APPENDIX IL FORMULATION AND LITIS CONSUMPTIO IN THE ACTIONS ADIECTITIAE QUALITATIS.

These intimately connected topics have been the subject of much contro­versy in recent years. No generally accepted solution of all the problems has been produced. In the following paragraphs space allows of no more than a general account of the matter.

The most accepted view as to formulation is that of Keller⁴. He holds that in the actio de peculio the intentio was in ius, with a fiction of liberty,

1 Ante, p. 214. ’ Ante, p. 233.

⁸ See Ulpian in 13. 3.1. pr. ⁴ Litis contestation 432. where the contract was by a slave, and assuming of course that the claim is one which ordinarily gave an intentio in ius. This view is adopted with new argument by Lenel¹. For ordinary formulae in ius the suggested form is the simplest way in which to raise the issue, all that is needed being a change of name in the condemnatio, and the fiction of liberty in the case of a slave. It is clear on the texts that there was a fiction of liberty*, and this would not be needed in a formula in factum. And a text dealing with the novation of the obligation strongly suggests that the intentio was in ius^{[2519] [2520] [2521] [2522]}. But the chief argument is the ipso iure consumptio which appears in some of the texts*.

The intentio thus framed, stating the transaction between the parties, brings into issue the whole obligation, but we know that the defendant could not be condemned beyond the extent of the peculium and any versio. It is not quite clear how this restriction was expressed in the formula. It has been supposed that there was a praescriptio limiting the issue^{[2523] [2524], but the language of many texts[2525] [2526] leads Lenel to the opinion, now usually accepted, that there was a taxatio in the condemnatio—dumtaxat de peculio et in rem verso, or the like[2527].}

From this formulation it would follow, since a indicium is none the less legitimum because the liability is praetorian", that the action once brought could not be renewed except by some form of praetorian relief. But the texts tell a confused story, a fact which is not surprising, since there were disputes on points which might have been expected to affect the matter. The jurists were hardly agreed as to whether the master could be said to owe at any moment more than was then in the peculium³. There was disagree­ment as to whether the natural obligation of the slave was eadem res with the praetorian obligation of the master^[2528], and there are other signs of doubt as to the exact nature of the res intended in the proposition that after litis contestatio in a indicium legitimum in ius there could be no new formula for eadem res. Further, we have to do with texts edited after the formula and indicia legitima had disappeared. When it is added that there is not yet unanimity on the point of formulation, and that the view has recently been broached that notwithstanding Gaius, the expressions actio praetoria and actio in factum mean much the same thing¹¹, it is easy to see that we cannot expect a very simple tale from the texts. One fact does tend to simplify matters: a text of Ulpian, citing Julian, and dealing with the case of action against one of two persons liable, declares that where one is only liable for a part, action against him releases the other, but on equitable grounds the Praetor restores the action¹. This text, much suspected on linguistic grounds, is now proved by the discovery of a scrap of the original to be in the main genuine, the word rescissorium having been omitted*.

Prima fade, the simplest case is that of renewal of the action against the same defendant, aucto peculio. Ulpian tells us that the action lies³. Paul, dealing with the case in which the peculium is insufficient, observes that security cannot be claimed for subsequent accessions, though it can be in the actio pro sodo, giving as his reason for the difference, that in pro socio the defendant owes the whole amount⁴.

15.1. 32. pr. Erman, see below, has held its doctrine classical.

² Z. S. S. 27. 369. Much of the controversial literature is rendered obsolete by this dis­covery. Apart from the literature cited by Lenel, Ed. Perp. (2) 278, n. 2, see Keller, Civ. Proz. n. 927; Karlowa, E. E. G. 2. 1142; Pokrowsky, Z. S. S. 20. 115; Ferrini, Z. S. S. 21.190; Affolter, Institut. 214, 280 etc.; Gradenwitz, Z. S. S. 27. 229; Erman, Servus Vicarius, 498; Melanges Appleton, 203 sqq.

⁸ 15.1. 30. 4. ⁴ 15. 1. 47. 2. ⁶ Melanges Appleton, 241.

⁸ 15. 2.1.10. ⁷ Ante, p. 227. ⁸ Ferrini, loc. cit.

⁹ Z. S. S. 27. 229. ¹⁰ Erman, M51. Appleton, 229, following Affolter. others, e.g. Ulpian, that the liability and the consumptio were only to the extent of the existing peculium. There is nothing a priori improbable in this, in view of the fact that there might well be, and in fact were in other connexions, doubts as to the exact nature of the eadem res, further claim on which was barred. It might well be held that what was barred was what might be effectively claimed in that action. The intentio is not the whole formula. A praescriptio could limit its consumptive force¹, and some may have thought a condemnatio might do so, particularly in view of the fact that the only existing obligation is that expressed in the Edict, limited to the peculium. But we know from Gaius* that in ordinary cases a limited condemnatio did not in fact limit the consumptive effect of the intentio. No doubts appear on this point, and, except for the text of Ulpian, there is no text suggesting limited consumptio in case of the renewed actio de peculio, aucto peculio.

On the whole the more probable view seems to be that in classical law the action was not renewable without relief, and that Ulpian⁷ either wrote non potest or, more probably, added a requirement of restitutio⁹. In another case in which the question was of the renewal of action in regard to the same peculium, so that there is no doubt of the consumptio, Ulpian, in declaring that the action may be renewed, does not expressly mention restitutio, but uses the equivalent expression, permittendum est⁹. The same conclusion is deducible from the rule that in the case now to be considered of claim against one owner, after action against another, the plaintiff might proceed as if the earlier iudicium were rescinded and could recover not only what existed, but further accessions, not being bound to sue the other as at the time of the first action¹⁰. The language is significant and it is Ulpian who is speaking.

In relation to the renewal of the action against another person there are several cases to be considered. In those of common owners, and coheredes who have succeeded to the slave, either could be sued for the whole, was liable to the extent of the whole peculium, and could deduct for debts due to the other¹¹. As we learn that of two owners he could be sued in respect of whom there was no peculium¹², the rule was no doubt as in the last case, and it would be immaterial whether the renewed action was against the same or another owner.

^I See, e.g., 21. 1. 48. 7.

* 12. 6. 11; 34. 3. 5. 2; ante, p. 217.

⁶ 12. 6. 60. pr.; ante, p. 696.

’ 15. 2. 1. 10.

^II 15. 1. 11. 9,27. 8; ante, p. 378.

a G. 4. 57. « 15. 1. 50. 2.

⁶ See, however, Ennan, Melanges Appleton,229,242. ’ 15. 1. 30. 4. 8 Cp. 3. 5. 46. 1.

“ 15. 1. 32.1.

“ 15. 1.12.

It is odd to find another rule applied as between two fructuaries or bonae fidei possessores, since they had the same remedies as common owners for adjustment¹. But Ulpian, quoting Julian, tells us in a suspected text, now proved, by discovery of a fragment of the original, to be substantially genuine*, that neither could be condemned for more than he held, or deduct except for what was due to himself*, that suing one freed the other, and that on equitable grounds a remedy was given by restitutio actionis. In fact there was a change of view as to the fructuary’s liability de peculio*. The earlier lawyers held him liable only so far as he acquired. On that view the present question could not have arisen, except in a common undertaking. Then the view appeared that the acquirer must be sued first, and that is the rule from which the present text starts, since Julian, who favoured that view⁸, is the source of this text. When the rule was accepted that either could be sued on any contract, the present restriction became unnecessary. But as between owner and fructuary Justinian’s rule is still that the fruc- tuary can be sued primarily only for what concerns him, but the action is restored against the owner and vice versa’. There is no communi dividundo between them. A similar limitation of the right of action and deduction, with restitutio actionis, occurs in the case of coheredes liable only to the actio annalis⁷, but here the division is due to the express provision of the XII Tables.

In the case of vendor and buyer, within the annus utilis, the rule applied is due to the fact that neither, if he is sued, and has paid in full, can recover from the other. Thus, though either can be sued for the whole, he is liable only to the extent of the peculium he holds. Though the other is freed, the claimant has restitutio actionis, to recover any balance still due*.

The relief is sometimes called restauratio of the old action*. There are signs of dispute as to the effect of this. Strictly it might seem to restore the action only against the old defendant. This would be useless in the present case. Some seem to have held that it only went so far as to give the claimant what he could have recovered in the earlier action if the present defendant had been a party. The view which prevailed was that the con­demnatio would be based on the present state of the peculium¹â€™. It is in fact restitutio in integrum. It is elsewhere called rescissio iudicii¹¹, which expresses the same idea. It has been said that this makes what has been paid an indebitum¹². But the debt is not rescinded : what was paid was due and cannot be recovered. Nor indeed is the old judgment rescinded: the new judge is merely directed to proceed as if the matter had not been before the court.

We have assumed that the earlier action has proceeded to judgment. But there are cases of translatio iudicii, in which a pending action is trans­ferred. If a dominus dies, pending the action, the iudicium is transferred

» 10. 3. 7. 6, 7.

⁸ 15. 1.15.

⁸ 15.1. 19.1, 37. 3.

⁸ 15.1. 30. 5, 37. 2, 47. 3. “ 15. 1. 47. 3.

» 15.1. 32. pr. ; cp. Z. S. S. 27. 369 and D. 15.1.19. 1.

¹ Ante, p. 339. ⁶ 15. 1. 37. 3 ; ante, p. 840.

’ 11. 1.18; 15.1. 14.1, 32. pr.

⁹ 15. 1. 32. pr. w 15. 1. 32; cp. 12. 2.26.1.

¹⁹ Ferrini, m. Ennan, Mèi. Appleton, 355. to the heres. Is this mere succession or rescissio iudicii 1 The point might be very material, as, if the claim were liable to be barred by time, the second action, regarded as a new one, might be too late. The material texts do not deal with slaves: it is enough to say that Koschaker has shewn¹ that it is a mere case of succession. He has also shewn, however², that no inference for the identity of the two indicia can be drawn from use of the term translatio iudicii. The point has already been considered in connexion with noxal actions⁸, and the view adopted that transfer of a pending noxal action against the slave, freed, or against a new owner, is a case of mere succession. Koschaker takes a different view⁴, at least in the case of the man himself. He shews that Ulpian calls the noxal indicium inutile, while Paul says the iudex must transferre indicium“. As a void indicium cannot be transferred, he holds that the second must be new. Admitting the possibility of dis­agreement, he yet thinks that Paul agrees with Ulpian. It is quite possible, however, that Ulpian agrees with Paul, merely holding that there can be no valid judgment against the alleged dominus. But in view of the doubts which certainly existed⁶, no stress can be laid on Ulpian’s mode of expression.

We have hitherto assumed that where litis contestatio has occurred, what is consumed is the obligatio stated in the intentio, limited sometimes by praescriptio. This agrees with the language of the texts’ and accounts for the rules arrived at. But the matter is less clear when we turn to the other actiones adiectitiae qualitatis. The intentio being the same in all cases the bringing of one action ought to bar any other except for relief, and this is the result deducible from most of the texts. All possible combinations are not represented, and, apart from the institutional books, Ulpian is the sole authority. We learn that de peculio and tributoria barred each other⁸, and that de peculio barred quod iussu*. As to de in rem verso there is a text which seems to imply that it did not bar de peculio, and is so treated earlier in this book¹⁰. But it is more probably a case of praetorian relief against error in the actio de peculio, ignoring the fact that there has been a valid trial of the same issue under the de in rem verso clause.

Another text raises another apparent difficulty of the same kind. A filiusfa/milias accepts a indicium as defensor of his father in an actio de peculio, as it seems, on his own debt. The effect is to release his father. This, we are told, is a versio, to the amount of the peculium™, even before judgment. This excludes the possibility of the view that it is in the actio iudicati de peculio that the versio is made effective. But any new action is presumably barred. Von Tuhr shews reason for supposing the action to be one by the surety iudicatum solvi, which the defensor must have had¹². On this view the text has nothing to do with consumptio.

¹ Translatio Iudicii, 239 sqq., in opposition to Krtiger, Z. S. S. 15.140.

⁸ op. cit. 15. ________,__

⁸ Ante, p. 108. * op. cit. 220.

« Ante, p. 109. i G. 4. 53, 68,107 etc.

⁸ G. 4. 74 ; Inst. 4. 7. 5 ; D. 14. 4. 9.1.

¹⁸ Ante, p. 228. ¹¹ 15. 3.10. 3.

a __ -te The distinction is, however, sometimes brought out, e.p. in 5.1. 57.

“ ' ’ ⁸ 9. 4. 42; 40.12.24. 4.

» 14. 5. 4. 5.

¹² Actio de in rem verso, 147.

In relation to the actio institoria (and executoria) there is difficulty. It is clear that the primary obligation is brought into issue, for it bars action against the representative, and is said to lie ex persona magistri¹. And it bars another actio institoria, where the first was lost through a mistake as to the business for which the loan was made’. But the same writer, Ulpian, says in the same context, that if institoria has been brought on what is in fact a peculiare negotium, and thus lost, the actio tributoria is still available*. This seems to mean that institoria does not bar tributoria. Er man^{[2529] [2530] [2531] [2532] [2533] is inclined to explain the texts as expressing a difference of view, some jurists holding the primitive (Proculian) view that intentio consumitur; others taking all the conditions of the condemnatio into account, the claim being barred only where all are identical. He cites certain texts in support, but they refer to real actions’, where there is no question of the novatio necessaria produced by litis contestation And the frequent appeal to restitutio shews that it was not in this way that relief was found. It is possible in view of the language of the texts that Ulpian allowed restitutio, and that the present form of the text is due to the compilers[2534] [2535]. There is, however, another possibility. The formula of the actio tributoria is uncertain. It differs from the other actions in that the liability depends on the master’s dolus. It is not certain whether the bar of de peculio by tributoria depends on con­sumption, or on fairness9, or on express provision, as is suggested by one of the texts10. If the formula alleged an obligation of the dominus other than that of the representative there is no reason why it should not survive so far as consumptio is concerned. This would explain why tributoria is mentioned and not de peculio. But this solution seems to require that it be dolus not to admit, in the tributio, a debt now reduced to, at best, a naiuralis obligatio.}