ACTIO TRIBUTORIA

A comparison of the respective modalities of application and effects of the three remedies in solidum (actiones quod iussu, institoria and exercitoria) with those of the actio de peculio suggests that the set of three remedies aims at protecting third contracting parties while the latter is more advantageous to the principal while limiting his liability for his dependant’s transaction.

Since the explicitly acknowledged purpose of all these remedies is to promote those economic activities carried out by dependants in order to maximise their principal’s profit (quaestus), it is obvious that the actio de peculio is lacking in this respect because of its bias toward the latter. The Roman praetor obviously ended up noticing this shortcoming and came up with an analogous remedy, maintaining both the dependent’s autonomy in his economic activities and the principal’s limited liability for his dependant’s transaction, but cancelling, in specific conditions, the preferential treatment of the latter, now to be set on an equal footing with all other creditors with regard to the peculium, provided that he was aware of his dependant’s dealing with his peculium, or merx peculiaris, as surety.^[597] This additional remedy is the so-called actio tributoria, with which D.14.4 (a total of twelve excerpta, from Labeo to Ulpian) is concerned.^[598]

Ulpian rightly underlines that this remedy is of significant usefulness (‘edicti non minima utilitas’), because it stands halfway between the actiones in solidum and the actio de peculio, in that it increases all creditors’ (other than the principal) protection, as they are no longer topped by the principal with regard to distribution of the peculium in case of bankruptcy. Both required conditions are fairly easy to meet: the principal’s knowledge (scientia) is passive, and calls not for an explicit show of willingness (voluntas) typical of the actiones quod iussu, institoria, and exercitoria - through iussum or praepositio - but for acceptance (patientia) on his part of his dependant’s creativity and dynamism, possibly, but not necessarily, within the context of a business (negotiatio) to which the merx peculiaris may be attached.

The very concept of merx peculiaris is controversial.

Whether it represents some kind of capital investment attached to the dependant or a fictitious patrimony akin to the peculium after deductions, it bestows on the actio tributoria its commercial relevance.^[599] Like the peculium, the merx peculiaris must be estimated. Consequently, all difficulties described in connection with the practical application of the actio de peculio remain well alive with the actio tributoria. Worse, the third contracting party acting as plaintiff on the actio tributoria must prove the principal’s awareness (scientia) - less traceable than his willingness expressed through iussum or praepositio - and establish a connection between the merx peculiaris and the transaction at the origin of litigation. In addition, the asset to be distributed needs clarification. Ulpian unambiguously states that only what belongs to the merx peculiaris - as opposed to the peculium as a whole - is taken into account (‘sed id dumtaxat quod ex ea merce est’).^[600] The same author acknowledges that the principal may be in doubt of what belongs to it.^[601] Gaius suggests in his commentary of the provincial edict that the difference may be substantial enough for a plaintiff to choose the actio de peculio over the actio tributoria, since the merx peculiaris may consist at times of a small part only of the whole peculium or since the deductions to which the principal would have been entitled in connection with the actio de peculio happen to be insignificant.^[602] The plaintiff’s choice of one or the other remedy will in any case extinguish his claim.^[603]

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Source: Plessis P.J. du. (ed.). New Frontiers: Law and Society in the Roman World. Edinburgh University Press,2013. — 256 p.. 2013

ACTIO TRIBUTORIA

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