CHAPTER XV. SPECIAL CASES (cont.). BONA FIDE SERVIENS. SERVUS MALA FIDE POSSESSUS. SERVUS FRUCTUARIUS, USUARIUS.

As to what is involved in bona fides a few words are necessary. Gaius tells us there must be a iusta possessio^[1210]. This appears to mean that iusta causa is required. On the other hand it is immaterial that the slave is furtivus³. So far as the bona fides itself is concerned, the texts give no indication that the words have any meaning other than that they bear in the law of uswapio. But just as a man may have bona fides and yet be unable to usucapt, because the thing is furtiva, so it is conceivable that one who cannot usucapt because his possession began in bad faith, may become a bonae fidei possessor for our purpose in the course of events. Broadly speaking a bonae fidei possessor is one who supposes himself to have the rights of owner, and whose acts will be regulated on that assumption. No man regards himself at the moment as a bonae fidei possessor³. The holder may know of the defect in his title before he is actually evicted : in that case he becomes a malae fidei

Bona Fide Serviens: Possession

332

[pt. i

possessor from the moment when he learns that he is not entitled. It is easy to see that difficulties might arise as to bringing that knowledge home to him. Judgment, or admission on his part, will settle the matter, and many facts equally decisive may readily be imagined.

It is a bonae fidei possessor who acquires: possession is necessary. To this general rule circumstances induced the admission of an excep­tion. In discussing servi hereditarii* we saw that the ordinary rules as to acquisition through slaves were relaxed on considerations of convenience. We have here a somewhat similar case. In a text of Africanus^{[1211] [1212] [1213] [1214] [1215] the case is put of a slave employed in commercial matters at a distance. His owner dies, having, by his will, freed him and instituted him heres pro parte. He, in ignorance of these events, continues his trading. Are the results of his dealings acquired to his coheirs ? The answer given in the text is that if the other heirs have entered and know of the facts they cannot acquire, for they no longer have bona fides. But if they have not yet entered or have entered without knowledge of the facts affecting him, or were, like him, neces­sarii, and ignorant of the facts, then the text does allow acquisition through him, but in an inconsequent and incomplete manner. If debtors have paid him in good faith, they are discharged (on a principle already considered“). But the money they pay is not acquired to the hereditas, but to him alone, and he is liable to actio negotiorum gestorum on account of it, but not to familiae erciscundae. In view of the rule that, if money due to the testator is paid to one of the herodes, the others have familiae erciscundae[1216], this must be due to the fact that he does not take it as heir, but as acting for his supposed master7. If he purports to lend money, there is no mutuum except as to his share and the money can be vindicated.}

The person bona fide possessed may be either a servus alienus or a Idler homo: the rules are in general the same, mutatis mutandis. We are concerned with the servus alienus, and shall consider the liber homo bona fide serviens only where some difference of rule calls for examination².

Though the bonae fidei possessor is not dominus, he is de facto in much the same position, and necessarily regards the slave as his. This fact is reflected in the law of legacy. Thus a legacy of “ my slaves ” may be construed to include those possessed in good faith by the testator, if this appears to be his intention’. Gifts to liberti are not within the restrictions of the lex Cincia, and we are told that gifts to one who, having been a bona fide serviens, has been declared free, are on the same level: he is pro liberto*.

' 41.1. 40; 45.3. 34. But in both these there is the assumption that the heredes still possess.

² Thus though the holder may possibly usucapt a servus alienus (41.1.10. 5), he cannot a freeman. Post, Ch. xxvin. For legislation as to disposition of his apparent peculium when he is found to be free, see C. Th. 4. 8. 6=®C. 7.18. 3.

» 32. 73. 1.

* Vat. Fr. 307. No doubt the rule will not apply to a gift to a servus alienus who has been in the donor’s possession, nor for obvious reasons is such a slave owned for the purpose of the Sec. Silanianum and Claudianum, 29. 5. 1. 2.

334 Delict» in respect of Bona Fide Serviens [pt. i

Like other things bona fide possessed, slaves may have fructus. The law as to restitution of these received during the action if the slave is vindicated, has already been discussed^[1217]. The fructus of a slave are fructus civiles, earnings and the like, differing in character from fructus naturales*. There is however no reason to suppose that there was any difference in legal rule. It is now generally held that the rule requiring restitution of fructus exstantes is due to Justinian*, and in fact it is not applied at all clearly to fructus of this sort.

The principles of the law as to delicts in respect of such slaves are in some respects difficult to gather. The bonae fidei possessor is not liable for servi corruptio, or for furtum, since he cannot be guilty of the dolus which these delicts require⁷: the case of iniuria is not discussed, but it is difficult to imagine a case in which he could be liable, even servi nomine. He may be liable to the actio Aquilia: Javolenus tells us that he is so liable, at least noxally*.

On the other hand, he is not entitled to the actio servi corrupti*, probably because the words servum alienum in the Edict¹⁰ are regarded as imposing on the plaintiff proof of ownership, though Ulpian gives two other reasons, namely, that nihil eius interest servum non corrunipi, and that if be had the right the wrongdoer would be liable to two, which he thinks absurd. Neither of these reasons is worth much, in view of the rules in the other delicts. He may have an actio iniuriarum if the wrong is plainly in contumeliam eius, though an iniuria is primarily regarded as against the dominus^[1218].

It is clearly laid down that a bonae fidei possessor has an actio furti in respect of the slave¹*, but the basis of his interesse is not clearly defined, though the rule is at any rate classical, and may be republican“. The right does not turn on the interruption of usucapion, since it is immaterial that the res is vitiosa¹*. His interest is not regarded as a

ch. xv] Furtum of Slave bona fide possessed 335

part of ownership, since what he recovers is not deducted from what the owner can get, as is that which the usufructuary recovers¹.

1 47. 2. 46. 1, 75. ⁹ In. 4.1. 15. ⁸ 47. 2. 75.

⁴ Ante, p. 282. ⁸ G. 8. 200. ⁶ In. 4. 1. 10.

’ 47. 2. 20. 1. « 47. 2. 54. 4.

⁹ 47. 2. 60. Probably in Justinian's law a depositee had it if he had a tus reteniiome on any account, though this is denied in the Collatio, 10. 2. 6.

“ 21. 2.16. 1. Il 47. 2. 75. « h. t. 46. pr.

336 Damnum to Slave bona fide possessed [pt. i

For damnum to the slave the bonae fidei possessor has an actio in factum, based on the lex Aquilia, even against the dominus\ As against third persons this is intelligible, though it is our informant, Ulpian, who tells us elsewhere that he has no actio semi corrupti as nihil eius interest semum non corrumpi¹. But it is surprising to find that he has the action against the dominus. The deprivation of enjoy­ment can hardly be a wrong if done by the owner entitled to possession, and accordingly it is generally held that the damage is the loss of his eviction remedy against his vendor, since it is now impossible for him to be evicted⁸. It is consistent with this that the text speaks only of oceisio¹, not of lesser damage. But another limitation, generally received⁶, does not seem so well founded. It is said that the action must be confined to the case in which the owner knew of the other’s possession and so acted in a sense mala fide. The principle on which this rests can demand no more than that he shall not know that he is owner, which must have been the usual case. But even so limited it does not seem to be justified. The lex Aquilia did not need mala fides. This idea is in fact due to the opinion that an owner cannot be guilty of culpa, and is an attempt to find another basis of liability. The other branch of the alternative seems preferable. But the limitation which has been accepted above, compels another, not indicated in the texts: it excludes the action against the dominus where the bonae fidei holder is a donee.

There remains another difficulty. It is said that a bonae fidei possessor, against whom a real action is brought is required to hand to the owner all profits he has received in respect of the thing, even Aquilian damages⁶. If this is so, his action against the dominus means little. But in point of fact this is said only for hereditatis petitio, against a person claiming to be heres, who was very differently dealt with from an ordinary bonae fidei possessor⁷. Moreover our actio Aquilia lies in favour of the bonae fidei possessor only if the slave is killed, and there can then be no question of a vindicatio of him. It may be added that a duty to account to the owner for such profits would not necessarily cover damages recovered from the dominus himself: we have already seen that a pledge creditor must account to the owner for damages for theft (probably also ex Aquilia), except where the owner was the wrongdoer⁸.

¹ 9. 2. 11. 8, 17. A liber homo bona fide servient has it in his own name when the subjection has ceased, 9. 2.13. pr.

» 11. 3. 1.1.

> Pernice, Sachbeschad. 196, and literature there cited.

� 9. 2.17.

⁶ Pernice, loc. cit. « 6. 3. 55. The rule in 6.1.17 is differently explained. See ante, p. 12.

Girard, Manuel, 901 sqq.

⁸ Ante, p. 283.

ch. xv] Noxal Liability of Bonae Fidei Possessor 337

The bonae fidei possessor is ipso iure liable to noxal actions for the acts of the slave. He is released by handing over the man, since the owner, if he attempts to vindicate him, is met by doli mali exceptio, unless he pays the damages¹, and, if he gets possession, can be sued by the Publician action, the exceptio iusti dominii being met by replicatio doli mali*. A bonae fidei possessor when sued by the dominus, can set off the cost of noxal defence⁸. Where the bonae fidei possessor is liable the dominus is not⁴, subject to questions of dolus*. The reason for the owner’s non-liability is that he has not potestas, and thus if a fugitivus steals from his dominus, a later bonae fidei possessor will be liable noxally⁶, if the man has not since been in the potestas of his owner. The owner can arrive at a similar result by bringing vindicatio for the slave, but in the noxal action he has not to prove dominium, and the holder cannot set off expenses. It should be added that a bonae fidei possessor, who dolo malo ceases to possess, does not cease to be liable, any more than an owner would⁷.

These rules are set forth in the texts with some indications of doubt, but no conflict of opinion is expressed. But that there were such differences is stated by Justinian, and, in view of the technical nature of the distinctions drawn, was inevitable. Justinian observes⁸ that if a slave in my bonae fidei possession stole from X or from me, it had been doubted whether I was liable to X, or could sue the dominus, and he refers to the rule which denies noxal right and liability in the same person. Some, in view of this rule, had held that the bonae fidei possessor was not liable, and could sue the dominus when the slave got back to him, for what he took while with the bonae fidei possessor, or before he got back to his owner. Justinian enacted that as he thought himself owner, he was to be liable for thefts committed by the thief while with him, and could have no claim against the dominus for thefts committed during that time. But when he ceases to possess the slave, and the slave gets back to his true owner, the former bonae fidei possessor ceases to be liable and has an action for things stolen by the slave from him at any time after the “ retention ” ceased. He adds that this lays down a general rule consistent with principle, making the possessor liable and not entitled for a certain time, and the owner liable and not entitled for another time. If really free, he is, after his freedom is shewn, personally liable, even to the bonae fidei possessor, and his late holder is not liable, this being not in any way inconsistent with the general principle excluding action by a person noxally liable for acts done while he was liable, even though the relation has ceased.

¹ Ante, p. 116.

⁴ 9. 4. 11.

’ 9. 4. 12.

» 9. 4.11, 28.

⁸ 47. 2. 64. 4.

⁶ 47.2. 17. 3.

⁶ Ante, pp. 104, 114.

« C. 6. 2. 21.

338 Noxal Liability of Bonae Fidei Possessor [pt. i

His point is that the action against the freeman is not a noxal action. It will be remembered that a former master has no action for delict against one he has freed¹, nor does Justinian allow it against an owner by a former bonae fidei possessor, for what was done during the possession². But in the present case the man having been actually free all through there can never have been any real question of noxal liability.

Two or three remarks on this enactment are necessary :

(i) It is clear from it that the unanimity in the Digest is due to the compilers, but the doctrine Justinian lays down is not new: there is no reason to doubt that it was held by the jurists to whom the Digest credits it’.

(ii) The spaces of time are not exhaustive. A bonae fidei possessor is liable so long as “retention” lasts, the owner as soon as the slave gets back to him. Is either liable for what the slave may steal in the interim, if he never in fact returns to either ? Apparently, not. The word retentio¹ shews that the rule applies only while actual potestas lasts. The question is suggested, by way of digression, whether the rule that a fugitivus is still possessed, applies to a fugitivus from a bonae fidei possessor. Apparently it does. The owner possesses only till another possesses’, and Paul says that the continuation of possession in a fugitivus is ttt impleatur usucapio*. The context shews that this must mean usucapio in the slave himself and not in what he possesses. On the other hand we are told, by Paul⁷, that to run away from a bonae fidei possessor is a case of fuga, unless the slave was intending to return to the owner. Paul says that the man’s state of knowledge is indifferent, which suggests that the interest of the master alone is in question. No doubt the conception of fuga is here considered from an entirely different point of view, but, even so, these texts confirm the view already expressed that the principles governing possession of a fugitivus were never a coherent whole⁸.

(iii) Justinian’s enactment says nothing about damnum. We have already seen that here the texts lay down’ an entirely different rule. The rules and the cause for the difference have already been considered:

»47.2.17.1. ’ C. 6. 2. 21.»nj{n. » 2tnie, pp. 101,129.

� C. 6. 2. 21. · Ante, p. 270.

e 41. 2. 1. 14. 1 21. 1. 43. 3.

⁶ Ante, p. 271. Salkowski (op. cit. p. 150) observes that logic requires that one who has run away from a bonae fidei possessor should be still possessed by him and acquire to him, but that the rule as to possession of a fugitive is a mere rule of convenience not to be extended. There are no texts, but he thinks that the fate of acquisition by such a man depends on events. If he returns to bonae fidei possessor, all acquisitions intra causas go to him: others to dominus. If he goes to dominus all is acquired to him. It may be remarked that while it is difficult to pursue the possible development of Roman rules on logical lines, it is practically impossible to say, without texts, what rules the jurists may have laid down on grounds of expediency.

9 9. 2.13.1, 27. 3; 41. 1. 54. 2.

ch. xv J Contractual Liability of Bonae Fidei Possessor 339 here it is enough to say that the limitation of Justinian’s enactment is an important confirmation of the views held by Girard¹.

The law as to the liability of the bonae fidei possessor on the dealings of the slave is not easily to be made out. Of usufructuary, we are told by Pomponius, in general terms, that the various edictal actions are available against him only so far as the transaction was one out of which he would acquire, i.e. ex re eius or ex operis servi*. The fructuary is so constantly assimilated to the bonae fidei possessor for such purposes that it is safe to treat the statement as applying to both. This is con­firmed by Paul for the actio tributoria: he is liable so far as the merx is his property’. Of quod iussu we are merely told by Marcellus and Ulpian^{[1219] [1220] [1221] [1222] [1223] [1224] that the action is available against a bonae fidei possessor. It is doubtful whether the limitation above given applies to this action : on a transaction authorised by him, he might be expected to be fully liable. But if so, and if, as may well be the case, the transaction concerns what is not really his property at all, but the peculium which belongs to the real owner, what is his position ? No doubt his right of retention for impensae may be made effective in some cases, but many circumstances may bar this. He cannot proceed on negotia gesta, since he was acting purely on his own account’, and for like reasons he does not seem to have a condictio. It might indeed be contended that the iussum was void if it was not in connexion with a matter out of which he acquired, like a iussum for a contract by servus alienus*. But there is no real reason for this: if I authorise a contract with my slave, the effect of performance of which is to vest property in a third person, I am none the less liable quod iussu. Of course, in the absence of some other determining factor, the fact that the contract was at my iussum would suffice to determine that it was ex re mea.}

On the actio de peculio we have a good deal of information, but it is not satisfactory^[1225]. The action is available against the bonae fidei possessor, and he can deduct only what is due to him, not what is due to dominus or another possessor^[1226]. But here disagreement begins. Pomponius, speaking indeed expressly only of servus fructuarius (but there is no reason to doubt the applicability of the remark to a bonae fidei possessor), says that this action, like the other edictal actions, is available against the fructuary only so far as he can acquire, i.e. ex re eius and ex operis*.

340 Actio de Peculio against Bonae Fidei Possessor [pt. i

But as the creditor contracts in view of the whole peculium, and has no means of determining the different causae, there is room for the view that the possessor is liable de peculio on all contracts, though of course he cannot be condemned beyond the amount of the peculium which belongs to him^[1227]. This view seems to have prevailed. Marcellus is of opinion that his liability ought to be perfectly general, but says that, at any rate, if the action is brought against the owner or fructuary, and full satisfaction is not obtained, the other can be sued for the balance. In this Ulpian and Papinian agree². Elsewhere Ulpian perhaps holds for complete liability as between two bonae fidei possessores, and Papinian lays down this rule as between owner and possessor³. Julian inclines to the intermediate view, that the person directly concerned is primarily liable, the other only for what the peculium of the first cannot pay. He does not however, so far as a rather obscure lea; can be made out⁴, require action to be brought first against the principal really concerned, but only that, if the other is first sued, an allowance be made for what can be recovered from the peculium belonging to the person primarily liable. The extreme view that either might be sued, looking at the matter from the creditor’s point of view, is quite in accordance with what is supposed to be the tenor of the Edict⁵. The intermediate views are equitable compromises. It is clear that Julian’s text has been corrupted in some way: it is not impossible that, as originally written, it expressed the view that the person primarily interested must be sued first’.

There remains a puzzling text which confines liability de peculio to the dominus, in a certain case. Money is lent to a slave, and he pays it to his bonae fidei possessor, on an agreement for manumission. The bonae fidei possessor goes through the form of manumission⁷. The lender asks against whom he may bring the actio de peculio. Papinian answers that though in general the creditor has a choice, here he may sue only the dominus. The money, he says, was acquired to him, and the payment by the slave to the bonae fidei possessor did not transfer the property, such a transaction, pro capite servi facta, being beyond the slave’s power of alienation: and he adds that even if the manumission is gone through it is not acquired thereby to the possessor, as not being really ea; re eius, but only propter rem eius. The point for us is that the actio de peculio is against dominus only, and that Julian emphasises the fact that he acquired on the loan. Salkowski⁸ lays down the rule ch. xv] Acquisition to Bonae Fidei Possessor 341 that mutuum was an exception to the general principle, and that only he in whom the money had vested could be sued de peculio on a mutuum. And the bonae fidei possessor would not acquire it unless it was received on his behalf, or applied to his concerns. The explanation is consistent with the text itself, but there is no other evidence of any such general rule as Salkowski seeks: the writer or writers of this text may well be laying down what is clearly a reasonable rule for an exceptional case¹.

We now pass to acquisitions through bona fide serviens. This topic has been thoroughly worked out by Salkowski^{[1228] [1229], whose excellent book has suggested most of what follows on this matter. The well-known general rule is that what he acquires ex re possessor is, or ex operis suis, is acquired to the bonae fidei possessor, everything else to his owner, or to himself if he be really free, the rule applying equally to dominium, iura in re, possessio and iura in personam[1230]. The right of the possessor is in no way derived from that of the owner; in fact it is adverse, a point of some importance. Thus if a bonae fidei possessor has acquired possession through the serviens, his master, or he himself, if free, can never claim accessio temporum[1231] [1232].}

There is one case in which one who is really a bonae fidei possessor acquires only ex re. This is the case of one who enters on an inheritance believing himself heir, but really not entitled. Such a person must restore to the heres all acquisitions through a slave except those ex re³. Thus the better way to put the rule in the text is that he acquires like any other bonae fidei possessor, but though he can, e.g., vindicate an acquisition ex operis, he must account for it^[1233]. Another text lays down an exceptional rule. Pomponius quotes Proculus as holding that where a thing is sold and delivered to a bona fide serviens, not within the causae, it is not acquired to the dominus because he does not possess the slave^[1234]. This is an isolated text depending on the notion that acquisition by traditio depended on the passing of possession, and it is universally agreed that such a slave could not acquire possession for his owner^[1235]. The text is illogical in that it allows a liber homo bona fide serviens to acquire in such a case, though he was incapable of possession. But, in fact, acquisition by traditio does not involve acquisition of possession’.

The two conceptions, ex operis and ex re, are not easy to define.

I. Ex operis. This means “by virtue of” or “in course of” his labours, rather than “by active proceeding on his part.” It does not however mean the immediate result of his labour. If I employ a slave to make a thing for me, I am using him but I am not acquiring through him. A conductor, who can acquire nothing through a slave, a usuary who cannot acquire ex operis, both of these will have the result of his labour¹. It involves essentially the acquisition of a right ex operis servi. Its field is therefore narrow. According to Salkowski it covers only the case of the slave hiring out himself or his service, being in some way active for a third person for hire². In two well-known cases the jurists discuss the limits of acquisition ex operis.

(a) Institution of, or legacy to, the slave. Here the view un­doubtedly dominant is that the bonae fidei possessor cannot acquire such things, as they are neither ex re possessoris nor ex operis servi. This is said by Gaius, Pomponius (quoting Aristo), Celsus, Paul, Ulpian, Modestinus³. But there are traces of a conflicting view. In legacy there could be no question of operae, but in inheritance there is an act of entry. If this is done iussu possessoris, cannot this be regarded as ex operis ? This doubt is suggested by Aristo (through Pomponius)⁴, and is by him recorded as having agitated one Varius Lucullus. This view may be understood in two ways. It may mean that its supporters hold that such an act of entry is a piece of labour, and the right to the inheritance is a direct result of it: a sort of uti, as if the man had been told to make some article. On this view there would be no question of acquisition ex operis. It is more probable that the supporters of this view treat the case as one of acquisition ex opera. But this could not be admitted. The opera involved in acquisition ex operis is not that expended in making the acquisition, but that which is the consideration for the acquisition. Both these ways of looking at it are open to the fatal objection that they would require acquisition of all hereditates, not merely those in which the testator intended to benefit the apparent master, and not only all inheritances, but under any transaction effected iussu possessoris, a reductio ad ab­surdum of the view. Accordingly Julian, the only weighty authority who thinks a bonae fidei possessor can acquire such things in any case, suggests that if the intent were to benefit the possessor, the entry of the slave, iussu possessoris, might be regarded as an acquisition ex re

¹ 7. 8.12. 6,14. pr.; 18. 6.17. They are fruits, deductis impensis. See Salkowski, op. cit. 118. He notes one text in which acquisition ex operis is referred to the immediate operar», 7.1. 23.1.

⁸ Mandate for an honorarium; acquisition from a societas to which the slave has contributed labour; acceptance of a contract for work, by the slave.

⁸ G. 2. 92; In. 2. 9. 4; D. 6. 1. 20; 28. 5. 60. pr.; 29. 2. 25.pr.; 41. 1. 10. 3, 4,19, 54.pr.; 48.10. 22. 4. See also C. Th. 4. 8. 6. See Salkowski, op. cit. 175 sqq. ⁴ 41.1.19.

ch. xv] Acquisition Ex Re: Special Cases 343 possessoris. He is clear that it cannot be ex opera¹. There is some­thing to be said for this view, but that which prevails is clearly that the possessor cannot acquire such things at all.

(6) Treasure trove^{[1236] [1237]. If such a slave finds treasure trove, to whom does the finder’s half go ? Tryphoninus states[1238], and rejects, a suggestion that it may go to fructuary or possessor, as being ex opera. But of course it is not. The event may happen while he is labouring, but the very existence of a finder’s half at all requires that the discovery shall not have been the object of his labour[1239] [1240] [1241], and if it were possible to acquire it on intentional search, it would not be an acquisition ex operis but fructus or product.}

II. Ex re. This is acquisition through or relating to the property of the bonae fidei possessor, not necessarily through any physical thing belonging to him. It would be perhaps more exact to say that acquisition ex re is acquisition by a transaction connected with his affairs’. Commercial dealings are so various that it is not possible to state the different forms, and a few illustrations, mostly from Salkowski, must suffice. Purchase with peculium belonging to the possessor’, sale ex peculio eius, taking traditio of a thing bought by the possessor, stipulating for the price of a thing sold by the possessor, loan of money for purposes connected with his property, or the peculium which belongs to him⁷, etc. Three cases appear to create a certain difficulty.

(a) Release of a debt. It is clear that if the possessor owes money, and the bona fide serviens takes an acceptilatio, or a pactum de non petendo, or any other pact which will base an exceptio, the benefit is acquired to the possessor. We are told that this is ex re’. Salkowski’ finds some difficulty in accepting this. He attributes the view that it was ex re to the practical needs of life which made it inconvenient to make the effect of a release depend on its causa. He holds that for this reason a release by way of gift was put on the same level as one given in discharge of some obligation, and was thus called ex re. The explanation seems unnecessary: the discharge is in re possessoris, it is in his affairs. If the possessor has lent money to A and borrowed money from B, and the bona fide serviens has received the money from A and a release from B, both these transactions are equally ex re possessoris.

(&) Donationes. In one text Gaius denies that a gift can go to the bonae fidei possessor, as it is not within the causae. This is from the

344 Acquisition to Bonae Fidei Possessor: Gifts [pt. i

Institutes¹, and thus is a mere general statement which might admit of exceptions. It is confirmed in the same general form by Pomponius, quoting Aristo^{[1242] [1243]. But Paul remarks that a gift given indistincte to a bona fide serviens goes to the dominus[1244], which implies that expression of intent might divert it to the possessor. And Ulpian, in a text which has been retouched, after expressing some doubt, appears as saying that donationes, mortis causa and inter vivos, are acquired to the possessor if intent to benefit him was shewn[1245] [1246]. It is not clear that this is Ulpian’s. It is however an application to donatio of the extension of the notion ex re which Julian tentatively suggested for hereditas3. The intention to benefit the possessor may reasonably be regarded as making the transaction his affair, one in which his patrimony is concerned in a more definite way than by the mere fact that it would be better off for the acquisition. Ulpian says the same thing of a payment of money made to satisfy a condition on liberty. This is, if the money is payable, as it usually is, out of peculium, an authorisation to give, if he likes. It is not a donatio by the owner of the slave. The intended receiver would have no sort of claim against the heres for it. It is however a gift so far as the receiver is concerned. If it is contemplations fructuarii, it goes to him[1247].}

(c) Gift by the bonae fidei possessor to the slave^{[1248] [1249]. Such a trans­action is clearly ex re. Its only legal effect is to transfer the thing into peculium. This is equally true though less obvious where the possessor gives the servus his operae. The only result is that the various acquisitions ex operis are in peculio3.}

Salkowski discusses⁹ at some length the origin of this principle of the two causae. Ex operis presents no difficulty: such acquisitions are in essence fructus. Ex re, says the author, is a growth due to trade exigencies, to avoid roundabout adjustments which would otherwise have been necessary. The jurists recognise the anomalous nature of the rule. They do not apply it to the case of the apparent filius- familias™, where the need is not so great, or to pledge creditor or to precario tenens¹¹. He thinks that in usufruct acquisitions were at first limited to operae. Acquisition of rights through servus fructuarius was first allowed in the normal case—usufruct created by w'ill¹⁹. According to Ulpian the rule was extended to all usufructs by Pegasus. Ex re ch. xv] Institution of Bona Fide Serviens 345

grows out of ex operis: traces of connexion appear¹. And it is not, he says, fully developed till after Sabinus. In hereditas and treasure trove, Julian and Tryphoninus find it necessary to negative current wide views as to the nature of ex operis*. Then acquisition ex operis gets narrowed down to cases of employment³ in trading, and it is recognised that ex re is uti not frui*. Salkowski remarks that there is little indication of development of an a posteriori juristic basis for these acquisitions’. The process of definition may have followed these lines, though in the state of the texts there is a good deal of speculation about any such conclusions. Salkowski is not very clear as to the reason for regarding acquisition through such slaves as anomalous. It seems the inevitable result of recognition of bonae fidei possession and usufruct as independent rights in rem, involving the right of employing the slave. To exclude his employment in the field of contract making, the most characteristic and important feature of slave labour in the absence of any theory of agency, would have been absurd, and illogical. That it was not allowed to pledge creditor or precario tenens is natural: the mere fact of possession, ad interdicta, was never recognised by the Romans as what is nowadays called a ius in rem: this has been achieved by more recent jurisprudence. And as the right of the bonae fidei possessor of a slave is a development from bonae fidei possessio in general, it is not surprising that it is not applied to putative patria potestas, where there is no possession at all. There seems no reason to regard ex re as the later of the two to develop: it may be remembered that in the case in which it was necessary to cut down the right of the bonae fidei possessor, i.e. in the case of hereditatis petition it was acquisition ex operis which was cut off, not that ex re: this was regarded as a matter of course.

We can now consider the effect of some transactions in cases in which there is not acquisition to the bonae fidei possessor.

(i) Hereditas. The bonae fidei possessor did not acquire, but the texts are not clear as to what did become of the hereditas. No entry of the serviens could bind his dominus, and if his circumstances became known in time, his dominus could make him enter⁷. But if he was a liber homo, Trebatius was of opinion that his entry, even iussu, made him liable as heir, since whatever his intent was he had gone through the act of entry. Labeo held that he was not bound by his entry unless he was willing to enter of his own account apart from iussum*, and the texts shew that this view prevailed. Veils non creditur qui

M.S. 14. or. « 41.1. 19, 63. 3 : 29. 2. 45.

’ 7. 8.16. 2, 20. < 7. 1. 12. 3; 45. 3. 36.

⁶ See also Pernice, Labeo, 2.1. 370. ⁶ Ante, p. 341.

’ 41. 1. 10. 4. ⁸ 28. 5. 60. pr.; 41.1. 19.

346 Institution of Bona Fide Serviens [pt. i

obsequitur imperio patris vel domini¹. Thus entry, merely iussu, does not bind him, but entry sine iussu, or where he was willing to enter apart from iussum, does². One of the texts, speaking of the case in which the intent is to benefit the possessor, contains a very puzzling remark: sed licet ei (sc. possessori) minime adquirit, attamen si voluntas testatoris evidens appareat restituendam earn hereditatem³. The words, which are interpolated⁴, seem to mean that if intent to benefit the possessor was clear then whether the liber homo entered sponte or iussu, or the servus alienus entered iussu domini, the person who acquired the hereditas would be under a fideicommissum to hand it back to, the bonae fidei possessor. It would have been simpler, as Salkowski remarks⁵, to allow the possessor to acquire where intent to benefit him was clear’. Salkowski doubts if the text be interpolated⁷, since it disagrees with a rule laid down by Justinian for an analogous case. It is clear that a person who doubted whether he was a filius or paterfamilias, or free, or statuliber, was personally bound if he entered even tussw⁸. This might make one engaged in a causa liberalis hesitate to enter even iussu. Justinian accordingly provides⁹ that if in the will he is described as servus Titii, he must enter on iussum, and if he refuses is to have no claim, even if really free. If however he is simply instituted, ut liber, in his awn name, the hereditas will await the issue of the causa liberalis, which will decide its destination. Thus the mere mention of the name of the possessor is to be conclusive evidence of intention to benefit him, and entitles him to claim the hereditas, and not merely a fideicommissum. But this rule is on the face of it a departure from ordinary rules, for a particular case, and in no way bars Tribonian’s authorship of the rule just discussed. The word fideicommissum is not used in our text¹⁰, and there is some difficulty as to the event in which the trust takes effect. All that is clear is that, if he enters so as to bind himself, the direction takes effect. But if he enters only iussu, so that the entry is null, according to the rules already stated, or does not enter, so that the gift goes to substitutes, it is not certain that the direction is binding. Salkowski thinks that in that case the direction is null¹¹. He holds also¹² that if bona fide serviens liber enters after his freedom is clear, there can be no question of restitution, for this would give bonae fidei possessor greater rights than those of a real owner, who can claim

¹ 60. 17. 4.

² 29. 2. 6. 4, 74. 2; 41. 1. 19, 54. pr.; cp. 29. 2. 25. 9. This would involve difficulties of proof, but these are held lightly by Boman lawyers. They lead Salkowski to think (op. cit. 184, 5) that the choice is made and intent shewn later, when the facts are known, bnt the texts are against this. 41.1. 54. 4 speaks of intent to acquire to himself, which is difficult to understand in the case of one in apparent slavery. This leads S. to the view mentioned.

⁸ 41. 1. 19. ⁴ Lenel, Palingen., ad h. I. ⁶ op. cit. 178.

⁸ We have seen that Julian suggested this and that it was adopted m the case of donatio. Ante, p. 343.

⁷ op. cit. 177. ⁸ 29. 2. 6. 4,34. pr., 74. 4. Salkowski, op. cit. 182—4.

⁸ C. 6. 30. 21. 10 41. 1. 19. ¹¹ op. cit. 185. ¹² op. cit. 178.

ch. xv] Acquisition: Special Cases 347

nothing if the slave enters after manumission. The analogy is not very close, for manumission is a voluntary surrender of all rights in the slave. And it is hardly possible to apply strict logic to the interpre­tation of interpolations of this sort.

(ii) Gift and legacy. In the cases in which these did not go to the possessor, they went to the liber homo or the dominus'. We do not learn that any rule was laid down as to restitution in case of intent to benefit the possessor in legacy. In donatio mortis causa the life of the actual beneficiary would be the material one from the point of view of survival“. The difficulties which might arise as to usucapio and consumption of such things do not here concern us.

(iii) Possession Possession can be acquired for us by persons bona fide possessed by us, within the causae, and, if it is in re pecuiiari, without our knowledge^{[1250] [1251] [1252] [1253] [1254]. But where these conditions are not satisfied we find a new principle. They do not acquire the possession for themselves or for the dominus. It is acquired to no one. One who is himself possessed cannot possess or usucapt*. An owner cannot possess through one who is possessed by another[1255]. It is odd that Ulpian in one text[1256] declares that what is possessed by a filiusfamilias bona fide serviens, peculiari causa, and thus not acquired to the holder, is possessed by the paterfamilias. This text conflicts with the rules already pointed out, and makes one capable of possessing through one possessed by another. It must be an error[1257].}

(iv) Contract. Here too the general principle applies : he acquires to the bonae fidei possessor ex re eius and ex aperis". The nature of the contract is in general immaterial^{[1258] [1259], mutuum being not often recorded. The only topic for discussion is the rule that even within the causae what cannot be acquired to the possessor goes to the dominus or to the man himself11. The rule appears to be an extension by Julian of an analogous rule in the case of servus communis'3. The case contemplated is that of a stipulation for what is already the property of the bonae fidei possessor. This is sound, since the owner can acquire anything, and the right of the possessor is merely cut out of his right. Conversely Paul}

348 Transactions in connexion with Peculium [pt. i tells us¹ that if a bona fide serviens stipulates for something that is his, within the duae causae, it goes to his holder, the doubt in the text being due to the fact that it is his own thing, and one cannot stipulate for that. Paul meets that by the reply that within the causae he is to be regarded as the holder’s slave, and to have no property beyond his peculium, of which the thing in question is not a part. But Ulpian says² that even if it is etctra causas the possessor will acquire on such facts. This contradicts the general rule and makes the possessor capable of acquiring beyond the causae. It has been proposed to omit a non, which would make the text orthodox⁸, but entirely empty. More acceptable is Salkowski’s view⁴, that it is a mistake of Ulpian’s due to the appearance of logical sequence and symmetry, coupled with the fact that otherwise the transaction would be void. The impossibility of acquisition beyond the causae, Ulpian himself emphasises⁵.

Most of the slave’s dealings are in connexion with his peculium in ordinary cases. This peculium, may be twofold, part belonging to the possessor, part to the owner, and the effect of his transaction will vary according to the part of the peculium with which it is concerned. His contract is often a part of a dealing entered on by his dominus or possessor. The possessor may sell and the slave stipulate for the price. In one case the possessor hands over money, by way of mutuum, out of that part of the peculium, which belongs to the owner, and the slave stipulates in the name of the possessor for its return. If this mutuum were a contract, it would be acquired to the possessor, for it is made by him, and the stipulation would be etc re, and so acquired to him. A mutuum, however, needs conveyance of the money, and this, on the facts, never occurred: there was no mutuum and so far no liability, and thus it is not ex re^e. If the stipulation was not nominatim to the possessor no doubt, as Salkowski says, Julian would treat it as acquired to the owner: unless this is so, it is not clear why the mihi is inserted.

Where A bought B’s slave S from a thief, and S with the peculium which belonged to B bought a res and it was delivered to A, B could condict the thing from A⁷. The text adds that if A has incurred any expense in the matter, he has de peculio against B. This involves a quasi-con tract of the slave with A⁸.

145. 3.20. pr. “41.1.23.2.

⁸ See for references, Salkowski, op. cit. 194, 5. ⁴ loo. oil. ’ 7.1. 25. 3.

⁶ 45. 3.1. 1. Salkowski thinks (gp. cit. p. 124) that if the coins are consumed the poaseucr acquiree the stipulation. This ie hardly consistent with the energetic language of the jurist (nsA>7 agit), or with the nature of stipulation: ex praesenti vires accipit, V. Fr. 55. Subsequent events may determine to whom it is acquired, but hatdly whether it exists or not. Nor is it needed: there is a condictio in any case if the money is consumed, 12.1.11. 2,13. pr.

1 19.1. 24. 1.

⁸ S, with B’s money, bought a thing for A. A’s action is negotiorum gestonm de pectdio. In 12. 1. 31.1 the same case is discussed and alternative remedies are considered. Ante, p. 226. ch. xv] Transactions of Serviens. Iussum. Nominatio 349

Purchase of freedom with peculium is a common case. A bonae fidei possessor cannot manumit, and any payment to him for this object is not acquired to him, on its receipt by the slave. Thus money borrowed from an extraneus and paid to the possessor for manumission, vests in the dominus^[1260], or, if the man was really free, can be condicted by the payer³. If a liber homo bona fide serviens gives an extraneus a mandate to buy him, in order to free him, and gives him money out of his own peculium, the extraneus paying the price and then manu­mitting him, what is the result when he is declared ingenuus³? He has, say Ulpian and Julian, an actio mandati against the extraneus to claim from him cession of his actions. There is an actio ex empto, for the sale is valid⁴. The money has become the property of the bonae fidei possessor, as it became that of the extraneus·. it cannot therefore be vindicated, nor, the transaction being a valid sale, is it a case for con- dictio³. If the money was ex peculio possessoris, he has simply received his own, and there are no actions to cede, for the extraneus cannot recover ex empto, not having really paid any price.

In some cases the answer to the question out of which peculium the consideration proceeds will determine who acquires, which is, till that is settled, in suspense⁶.

The effect of a transaction is often modified by iussum or nominatio, i.e. the slave enters on it at the command of, or in the name of, X. The effect of this can be shortly stated. If the serviens contracts nomi- natim to the possessor, ex re domini (or rather not ex re possessoris or ex opera), the contract is null: the possessor cannot acquire extra causas, and the fact that the agreement names him prevents the dominus from acquiring⁷. If on the other hand he stipulates nominatim for his owner, ex re possessoris, the acquisition is to the dominus, as it is only the fact that the possessor acquires which prevents him from acquiring on any contract of the slave, and as the possessor cannot here take, the owner does⁸. If he stipulates iussu possessoris but ex re alterius, he acquires to his dominus, quia iussum domino cohaeret. It has not the same privative or negative effect as nominatio³. If he stipulates ex re possessoris, iussu domini he acquires for the dominus¹³. It is not clear why iussum domini excludes acquisition to the fructuary or possessor ex re eius, since iussum has not in other cases any privative effect^[1261]. Logic would seem to require division. The text is clear and does not seem to be interpolated : the result is more symmetrical than

350 Dealings between Possessor and Serviens [pt. i logical. To give the iussum no effect at all would be to confine acquisition by owner to transactions ex re sua. To divide would be clumsy. The matter is the less important in that the acquisition domino, ex re fructuarii vel possessoris, is not definitive: we learn that there was doubt as to the remedy of fructuary or possessor, but on the authority of Cassius it is laid down that there is a condictio*.

Transactions between the possessor and the serviens in which no other person is concerned (i.e. within the causae) can have no legal effect except so far as they may affect the amount of the slave’s peculium’ (and subject to a question as to the liability of a liber hcrmo bona fide serviens on his promise). In the same way dealings between serviens and dominus (which are quite conceivable) will produce no other result so far as they are not within the causae. But if the contract with possessor be iussu domini or nominatim domino (and even this is conceivable though improbable), the dominus will acquire, and if, for example, the thing bought is paid for out of peculiwm which does not belong to the possessor, the owner acquires a right on the contract, (not de peculio, but absolute, for it is a contract made by his slave,) against the possessor. This needs no further authority’. In any case in which the owner acquires a right of action on the contract, the possessor must acquire, if it is a bilateral transaction, an actio de peculio, and conversely in any bilateral transaction in which the possessor acquires a direct action against the owner, the latter will have an actio de peculio*. In unilateral transactions the same rule holds. If the slave promises to possessor, ex re eius, the possessor acquires no actio. If it is extra causas he does’. What is and what is not ex re is to be determined on lines already laid down. The difficulty found by Salkowski on this point seems to be due to his regarding ex re as meaning “ originating in the property of,” instead of “ connected with the concerns of” the possessor’.

In the case of liber homo bona fide serviens we get new conditions. The jurists agree, apparently, that as he is a free man, capable of contracting, he must be liable to his holder on contracts with him. One case which attracts great attention is that in which the serviens manages the affairs of the possessor. Here, whether he acts iussu or

1 45. 3. 39; cp. 12. 7. 1—3. Pomponios expresses a present doubt and solves it on the authority of Cassius, who must have died fifty years before. He calls him Gains nosier. The remark may be from the compilers and refer to Gaius.

27. 1. 25. 5; 45. 1. 118. pr.

⁸ See 7.1. 25. 5. As to acquisition in suspense, post, p. 363.

⁴ Thus where S bought from P a res and paid for it with money of his peculium which belonged to D, D acquired an actio ex empto, and P an actio de peculio ex vendito. If he bought the thing from D, no action would arise unless he paid with peculium of P, in which case it was as if D were an extraneus.

⁸ 45. 1. 118. pr.

⁸ op. cit. 225.

ch. xv] Liabilities ofILbev Homo Bona Fide Serviens 351

not, he is liable to the possessor. There were doubts in early law, but apparently only as to the right remedy. Labeo doubted whether actio mandati would lie, because the special liabilities of that case are hardly applicable where he acted servili necessitate^[1262]. But the view which prevailed was that if there was authorisation there was actio mandati, and otherwise there was negotiorum gestorum*. Thus Pomponius says he is liable to me omnimodo, if he promises to me, quamvis in re mea, i.e. even in cases which would not have given me an actio de peculio against his dominus had he been a servus alienus³. Elsewhere Pomponius lays down the same rule for commodatum, saying nothing expressly of the connexion with res possessoris*. In another text Pomponius says that the liber homo may be liable to us by promise, sale, purchase, letting or hiring. The expression potent obligari* suggests some limitation, which at first sight seems to be called for, since it is obviously unfair that the liber homo should be liable on contracts the whole benefit of which has enured to the possessor. But the inclusive language of Papinian⁶ is strongly opposed to such a limitation.

The injustice is in fact only apparent, as will appear on examination of three typical cases. The possessor expends money on res peculiares of his own, and stipulates with the liber homo for reimbursement. When the man’s freedom is declared the former possessor can sue on the stipulation. But on the facts there is an exceptio doli. It is true that there was nothing fraudulent, but ipsa res in se dolum habet⁷. The serviens borrows from the possessor and buys things which are devoted to the peculium which belongs to the latter. There is no mutuum, as there was no intention to pass property to the serviens: the money is merely added to his peculium^B. His alienation within his powers is indeed a transfer, but it is no mutuum, and it is noticeable that mutuum is not mentioned as one of the ways in which a bona fide serviens can become liable. The serviens contracts with the possessor to buy a res of him. If he has paid for the thing out of his own property there is no question⁹. If he has not paid at all or has paid out of peculium possessoris, he is liable. But he is entitled to the thing and the former possessor cannot bring ex empto without satisfying the ordinary requirements of this action. These cases shew that, except where he had a real economic interest, the liability of the serviens was only nominal. Not much is left of Papinian’s quamvis ex re mea, for if it really is ex re mea, the obligation is nominal. Papinian’s language shews that he is dealing 352 Rights of Liber Homo Bona Fide Serviens [pt. i with a conclusion forced on him by logic: quid aliud did potest quo­minus liber homo teneatur. The equitable defence, the exceptio doli, where the benefit has gone to the possessor, is in no way opposed to his way of looking at the matter.

As to the rights of serviens on his contracts we have little informa­tion. We know that if the transaction was ex re possessoris, the serviens has no rights: from this point of view the transaction is one between a master and his slave^[1263]. Whether he necessarily had an action if it were extra causes is not clearly stated. In one case where he borrowed from an outsider and applied the proceeds to the concerns of the possessor, Paul allows him actio negotioru/m gestorum contraria³. He has some doubts which turn on the fact that, as he was apparently acting for his master, his act can hardly be regarded as intervention by a friend. His right is due to the fact that he has made himself liable to an outsider, and throws no light on the matter. But as the possessor would undoubtedly have been liable to the owner had he been a servus alienus, it may be assumed that he was liable to liber homo³.

In these matters the expression, ex re possessoris, is used in a way which may cause confusion. When we say that a possessor acquires on a slave’s contract ex re possessoris, we are speaking of a right acquired prima fade by the slave, and enuring to the possessor. But here we have been dealing with a totally different state of things: it is not a case where the possessor is in the background acquiring by the slave; the possessor and the slave appear as two opposing contracting parties, and what the possessor acquires is not what is undertaken to the slave, but what is undertaken by him. This does not however require any modification of the conception, ex re*. In the case of liber homo the point is unimportant, since the liability is not affected by the dis­tinction, but the servus alienus does not bind his owner by a promise to the possessor ex re possessoris. If the transaction is essentially in the concerns of possessor there will be no action against the owner: if it is not there will be de peculio. Thus if the slave sells and delivers to the possessor a res from the peculium which belongs to the dominus, the possessor will have de peculio ex empto against the dominus: not if it was in the possessors part of the peculium. If he buy a thing from the possessor there will be the same distinction according to the fund which pays for it". If he undertake a job, the question is, for which estate is it ? There does not seem to be a difficulty of principle, though the line may sometimes be difficult to draw.

» 3. 6. 35. • Post, p. 363.

* jlnte, p. 351.

XXIII. The Slave Mala Fide Possessed.

We are not concerned with a liber homo mala fide possessed: it is clear that mere forcible detaining of a freeman without pretence of right is not possession at all^[MCCLXIV]. There are texts which equally deny possession to any mala fide holder of a liber homo². Their logic is not very clear. Javolenus attributes the rule in the case of forcible detainer to the fact that civiliter eum in mea potestate non habeo². Africanus says we do not possess him because we have not animus possidendi*, which is not necessarily true: in fact he has in his mind the case of knowledge, not merely that we are not entitled, but also that he is really free“. Paul appears to hold that what is incapable of being commercially dealt with cannot be possessed’, which would cover bona fide possession⁷. In fact it is probably a hesitation to admit that a freeman could be possessed that led to the preference for the ex­pression liber homo bona fide serviens, though there is no doubt that he was possessed according to many texts⁸. There could be no noxal liability for such a person, and no acquisition through him. We are not told whether there was any liability on his contracts, but analogy suggests actio doli. The detainer would be liable to the interdict Quern liberum², and might come within the provisions of the lex Fabia¹⁰.

There are some cases of possession which are neither bonae fidei nor malae fidei. Such are those of precario tenens and pledge creditor. There are others which are more like malae fidei possession. Such are those of a slave given by a woman sine tutoris auctoritate, or given by wife to husband and trace versa. Here the consent of the owner is given but the law prevents ownership from passing. Salkowski shews that all these, so far at least as acquisition is concerned, are treated as malae fidei possessio^[MCCLXV]. There is no authority upon other points, but from the reluctance with which it was admitted that in the case of gift to a wife even possession passed¹², it seems most probable that the law ignored the transaction and treated the slave for all purposes, as far as possible, as still held by the owner.

The case with which we are concerned is that of one who holds a servus alienus as his own, with knowledge that he is not entitled, and adversely to the owner. The great breadth of the definition of furtum

354 Slave Mala Fide Possessed; Noxal liability [pt. i makes a malae fidei possessor usually a fur, though not always. But for our purpose this is immaterial.

A malae fidei possessor has no actio furti if the slave be stolen, his interesse not being honestum¹: it may be inferred that he has no actio Aquilia utilis², or servi corrupti², though no doubt he is liable on both these.

He is liable noxally for wrongs by the slave⁴. The reason given by Gaius is that it would be absurd that a bonae fidei emptor should incur this liability and the mere praedo escape. A sufficient reason seems to be that the malae fidei possessor has the potestas on which in classical law the liability depends⁸. As he appears to be owner the action will be brought against him: if the fact that he knew that he was not entitled were a defence he must raise it himself, and the result would be abandonment of the slave, which would release him even if he were liable’. It is nowhere stated whether he is noxally liable for damnum, but in all probability he is not, in this case, since the theory of potestas is not applied to it, and the liability always rests on dominium''. On the other hand, it is surprising to find that a malae fidei possessor hasfurti noxalis against the owner⁸. This is in direct conflict with the rule that one who is noxally liable for a slave cannot have a noxal action for what he does’. Celsus, who so states the rule, appears to see that it needs special justification, and he defends it on the grounds that otherwise misdeeds would go unpunished and that domini would profit by them: plerumque enim eius generis servorum furtis peeulia eorundem augentur. This is a poor reason : it gives a malae fidei possessor a profit which is at least as undesirable¹⁰.

It is surprising also to find that there is no authority as to the liability of malae fidei possessor on the slave’s negotia. Malae fidei pos­sessio occurs in many texts and cannot have been very rare. For it to endure, the holder must find it necessary to act in all respects as if he were owner. There will be buying and selling, and all ordinary transac­tions, as appears indeed from the texts we shall have to discuss. But of contracts by the slave purporting to bind himself or his holder there is not a word. The holder will, like any extraneus, be liable to the actions exercitoria and institoria. Apparently he will not be liable to the actio quod iussu¹¹. There will of course be de peculio against the dominus, and if the peculium is insufficient, it may be that there is de dolo against the possessor¹². Such a slave may well have a peculium, de facto, belonging to the holder. There seems to be no tributoria¹², and

1 47. 2. 12. 1. 2 9. 2. 17. » 11. 3. 1. 1.

⁴ 9. 4. 13. ⁵ Ante, p. 101. ⁶ Ante, p. 103.

7 Ante, p. 130. ⁸ 47. 2. 68. 4. » Ante, p. 106.

10 Other parts of this lex are suspected of interpolation on grammatical grounds. See Eisele, Z. S. S. 7. It may be a Tribonianism. See ante, p. 106.

11 Arg. 15. 4. 2. 2. « 4. 3. 6. « Arg. 14. 4. 1. 5. ch. xv] Slave Mala Fide Possessed: Acquisitions 355 indeed there is no trace of any edictal action. No doubt de dolo is available if there is no other remedy, and there is no reason for creating a limited liability¹.

Besides this apparent peculium of the possessor there may be a real peculium belonging to the owner. In such case questions may arise as to rights and liabilities as between himself and his owner. As there can be no question of the two causae, it seems that every bilateral contract between the slave and the possessor, will give the owner a direct right of action on the contract against the possessor, and the possessor an actio de peculio against the owner^{[1266] [1267].}

The law as to acquisitions is simple and is fully stated. The possessor can acquire nothing^[1268], whether he is a thief, one who holds vi clam aut precario, or one whose possession began in good faith so that he is usucapting^{[1269] [1270]. In like manner an heir who knows the man is alienus can usucapt him, but cannot acquire through him[1271]. Acqui­sitions therefore go to the dominus, and on his claiming the slave all must be restored to him. Three remarks are necessary to complete this statement.}

(«) Though a wife or husband, who has received a gift of a slave from the other, is so far in the position of a malae fidei possessor, that she (or he) can acquire nothing and must restore everything obtained through the slave, legacies, hereditates, partus, etc³, there is one relaxation. If a thing acquired by the slave is bought with money of the donee, he can claim to be allowed the price^[1272]. It seems that a malae fidei possessor cannot.

(fe) Things indirectly acquired through the slave must be restored. Thus where a malae fidei possessor has let out the slave’s operae, he acquires on his own contract, but is bound to pay the proceeds to the dominus: if the slave makes the contract, the money never vests in the possessor³.

(c) There are some cases in which the dominus cannot acquire, and in that case no one does. Thus he cannot acquire possession through the slave⁹, and a contract, nominatim furi, cannot be acquired to the dominus and so is simply void¹⁰.

356 Servus Fructuarius: General Rule» [pt. i

XXIV. Servus Fructuarius¹.

The prominence of Usufruct in Roman settlements of property makes this an important subject. No doubt the rules originated in relation to usufructs created by will: it is clear that this was always the normal case. The early history and development of the institution do not concern us: it is probable, as Kuntze says⁹, that the principles of the matter were only settled by the classical lawyers: indeed this is probably true of nearly every institution, with elaborate rules, known to the classical law. It is unlikely that usufruct in individual slaves was a common case; most usually it would arise in connexion with usufruct of a fundus instructus, or of the whole content of an inheritance·. But though usually so created it might be set up inter vivos, and, at least in the developed law, its mode of origin was so far as we are concerned immaterial, the rights and liabilities of the fructuary being the same in both cases^{[1273] [1274] [1275] [1276] [1277] [1278].}

The usufructuary is not owner, and thus a legacy of “ my slaves ” does not cover those in which I have a usufruct, and does cover those in which I have granted a usufruct to someone else’. The rules under the See. Silanianum and Claudianum as to the torture of slaves whose master has been killed do not apply to the case of one living on an estate, of which, with its slaves, the deceased had the usufruct·. The danger must have been equally great, but the senatusconsult speaks of domini^[1279], and fructuary is not dominus. It is of course the interest of the extraneus dominus which compels this literal construction—not any feeling of hesitation in construing widely a penal provision. For the slaves of a son not in potestate could be tortured if under the roof of the murdered man^[1280]. Most of the rules affecting the servus fructuarius regarded as a chattel are familiar and obvious. A legacy in the terms “I wish my slave S to serve Titius” is, as a matter of construction, a legacy of the usufruct to Titius’. A usufruct may be validly created in a slave conditionally freed¹⁰, or in mad, infirm or infant slaves¹¹: their defects will be material in estimating the value of the gift for the purpose of the lex Falcidia, but not otherwise. We get little information as to the mode of reckoning of the value of usufruct of a slave. No doubt the cost of maintenance must be deducted ch. xv] Servus Fructuarius: General Rules 357

from the annual value of his fructus, etc.¹, but as the usufruct ends with the life of either party, and might end, in classical law, in some cases, by the death of a son or slave through whom it had been acquired, there is evidently a complex actuarial question turning on the multiple expectation, which the Romans give no sign of having faced^{[1281] [1282]. An owner cannot of course be fructuary also, and thus if the fructuary becomes owner the usufruct ceases. We are told that if the owner of a slave make the fructuary his heir and leave the slave to another person, the slave is wholly due to the legatee, the usufruct being ended by confusio[1283]. This confusio is rather remarkable, as the slave never belonged to the heres*, who, in analogous cases, is treated as never having been owner®. It may be that our text really lays down a mere rule of construction, a view more or less strengthened by the fact that the text goes on to say that this would be avoided by a legacy of the usufruct to the heres3. But it is more likely, notwithstanding that the text in its present form gives the legatee a vindicatio, that Marcellus is considering a legacy per damnationem, which leaves ownership in the heres.}

But though an owner cannot be usufructuary, one of common owners may be, i.e. in that part of which he is not owner. In such a case he must give the ordinary securities of a fructuary, since his rights in that capacity could not come into discussion in communi dividundo³. Of course a usufructuary cannot become owner by usucapio, not because he has not the necessary animus, for he might have it, but because he has not possession but only quasi-possession^[1284]. But here a curious question arises. T is in process of usucapting a slave who belongs to X. X dies leaving a usufruct of all his property to T, and making Y his heres. At the death of T, when all the facts are known, Y claims the slave on the ground that usucapio could not have continued after T had become usufructuary of the slave. The result is nowhere stated. It seems clear however that if T accepted the usufruct, knowing that the slave was included, he at once ceased to possess. So much may be inferred from the texts dealing with conductio by one in course of usucapting^[1285], and one of them is so general⁹ as to suggest that whether T knew or not that the slave was included his possession would cease'⁹

Usufruct, though usually for life, is not always so. It may be

358 Semis Fructuarhis: Rights of Usufructuary [pt. i for a fixed time: in the case of a slave, it may be till manumission¹, and there is no difficulty in creating a usufruct of a statuliber^{[1286] [1287] [1288].}

The usufructuary has a right to the services of the slave, and may hire them out. They are indeed the normal fructus of the man³. The fructuary can compel the man to work, can teach him an industry, and can employ him in it^{[1289] [1290]. But he must not set him to inappropriate services, such as may lessen his fitness for the work for which he has been trained[1291] [1292], a rule laid down in the interest of the owner. Similarly he must not put him to dangerous work, in particular he must not make him fight as a gladiator, though if the slave do so fight, the reward goes to the fructuary[1293]. He may not torture the slave or beat him in such a way as to lessen his value, though he may correct him by reasonable castigation[1294]. If he torture the slave, he is liable to the actiones Aquilia, servi corrupti and iniuriarum3. In the same way the owner may not so punish the slave as to make him worth less to the fructuary, though, subject to this, he has plenissima coercitio so long as there is no dolus3. Neither has actio iniuriarum against the other for mere castigation of the slave, though dominus may have the action against the fructuary, and the converse is apparently true[1295] [1296] [1297]. In general an insult to the slave is regarded as against the owner unless it is plainly in contumeliam fructuarii11. If the slave be stolen, both have actio furti, based on their interesse[1298] [1299]: the owner may have it against the fructuary and vice versa13. In the same way each may be liable to the other for servi corrupt™, the fructuary’s action being utilis1*. The same rules apply under the lex Aquilia18.}

Though there had been doubts, it was early settled that fructuary did not acquire partus ancillarum. He had not even a usufruct in them, though of course special agreements could be made¹⁶.

The usufructuary has noxal actions for furtum, servi corrupt™ and iniuria, and presumably by an actio utilis for damnum¹⁷. Surrender frees the dominus and ends the usufruct by confusio¹³. The dominus ch. xv] Servus Fructuarius: Contractual liabilities 359 being noxally liable to third persons may surrender to them without incurring any liability to the fructuary¹. On the other hand, the fructuary is in strictness not liable for the slave’s delict. This however means little, since as we have seen he can be indirectly compelled to pay or surrender the man². It is remarkable that no text deals with the case of damnum. On principle it would seem that notwithstanding the special rules affecting noxal actions for this delict³, it was on this matter on the same footing as the others: the dominus being liable, by actio utilis, to the fructuary, and the latter having the indirect liability already mentioned⁴.

As to contractual liability the rules are in general simple. The fructuary is liable to the actio quod iussu, to the actio tributoria, and generally in the edictal actions, on matters through which he acquires to the slave—in others the dominus alone is liable⁸. But in de peculio he is liable on all contracts, since the other party relies on the whole of the peculium^f·. It is remarked by Salkowski⁷ that any other rule would be unfair to the creditor since it might be impossible, and would often be difficult for him to say to whom the right was acquired. But, as he shews, other views are represented: they have been discussed in connexion with the parallel case of bona fide serviens". The rule of later law seems to have been, so far as an obscure text of Julian can be made out’, that the creditor is not bound to sue either party first on contracts specially affecting him, but that if the dominus is sued first on a contract affecting the fructuary, he may deduct what could be recovered from the peculium of the fructuary¹⁰, so that the ultimate adjustment will be exactly as if the fructuary had been sued first. The rule is on the face of it anomalous, since the liability of dominus is unlimited: the reason of it may be that otherwise there would be no means of adjustment, since there is no iudicium communi dimdundo or the like between them¹¹, and the obligations of a usufructuary do not clearly cover any reimbursement in such a case. If the case be reversed, and the usufructuary be sued first on a contract not affecting him, the same rule ought to apply, and with more logical justification, but the point is not raised in the texts. If there are two usufructuaries,

¹ 42. 1. 4. 8.

² 7. 1. 17. 2; 9. 4. 17. 1, 27. pr. See an/e, p. 116 sq. ⁸ Ante, p. 130.

⁴ See 9. 4.19. 1. Kuntze thinks (op. cit. 41) that this text deals with furtum and gives fructuary a noxal action against dominus. That rule is clear, but this text deals with damnum: it is one of a group all from the same book, dealing with damnum. The words “verba ejficiunt,” etc., which are meaningless as to furtum, are intelligible under the lex Aquilia. It has nothing to do with owner’s liability to fructuary. It merely says that the existence of usufruct does not bar owner’s liability ex Aquilia, where he has hired the slave. For whatever question might arise as to potestas, this does not affect damnum. Ante, p. 130.

⁸ 14. 4. 1.6, 2; 15.1.2; 15. 4.1. 8. ⁸ 15.1.19.1. See Erman, Z. S. S. 20. 247.

1 op. cit. 204.

⁸ Ante, p. 339. Salkowski (loc. cit.) credits the wider view to Julian. Chief texts, 15. 1. 2,13, 19. 1, 37. 3, 50. 3.

⁸ 15.1. 37. 3. ¹⁸ Salkowski, op. cit. 229. ¹¹ Cp. 10. 3. 8. 4.

360 Loss of Usufruct in Slave, by Non-use [pt. i and one has been sued, the plaintiff may proceed against the other or others till satisfaction¹. Nothing is said here as to deduction of what is in the peculium of the fructuary really concerned, as there is communi dividundo between fructuaries’.

It may be added that the liability de peculio lasted as in other cases for one year from the expiration of the interest’.

Usufruct of a slave, as of anything else, may be lost by non-use, and there is a rather puzzling text⁴ in which the question is raised whether if the slave runs away, this involves non-use, so that by lapse of constitutum tempus the usufruct will be lost’. Clearly mere adverse possession of the subject of the usufruct does not end it: the fructuary’s right is independent and does not depend on possession’. Ulpian reports Pomponius’ as thinking that if the slave transacts business ex re mea, this is enough to prevent time from running against me, the usufructuary. He adds that the mere fact that no effective use is made of him is immaterial, since no such use is made of sick or infant slaves, and yet our usufruct in them is unaffected. He cites Julian as holding that so long as the man is not possessed by a third person, the fructuary’s right is in no way affected: his quasi-possession continues as does possession by an owner in the like case.

The argument as a whole is not very satisfactory. The analogy between these and infant and sick slaves is worthless: of them all the use is being made of which they are capable, which is not the case with the fugitive. It may further be questioned whether the exceptional rule that a fugitivus is still possessed should be extended by analogy⁷, but if that step is taken, the further step is natural, i.e. to regard the continued quasi-possession as amounting to uti, since in technical language possession is often treated as equivalent to use⁸. And uti without frui is enough to preserve usufruct⁹. The analogy with loss of ownership by lapse of time is halting, since ownership is ended by adverse enjoyment, while mere non-enjoyment ends usufruct¹⁰, with no requirement of adverse possession. Justinian in one text seems to lay down a rule that usufruct is to be barred only by such facts as would bar vindicatio, but another later text of bis shews that he still regarded it as lost by non-use¹¹. But all this affects Julian’s analogy rather than any rule laid down. His curious parallel of usufruct¹² (instead of quasi­possession) with possession, which Salkowski thinks¹â€™ to indicate a hazy view of the matter, seems rather to be due to the fact that there is no

115.1.32.^. See App. II. »10.3.7.7. «15.2.1.9.

⁴ Salkowski, on. cit. 152, 3; Kuntze, op. oil. 59.

« V. Fr. 89 = D. 7. 1. 12. 3,4. « 7. 6. 5. 1; 41. 2. 52. pr.

7 Cp. 50.17.141. pr. & Acquisition by long possession is called usucapio.

⁹ 7. 4. 20; 50. 16.115. ¹⁰ 7. 1. 38.

n C. 3. 33. 16. 1; C. 3. 34.13; Accarias, Precis, § 279. ¹³ V. Fr. 89 in fin. ¹³ loc. cit.

ch. xv] Servus Fructuarius: Acquisitions 361

substantive to express “quasi-possession”: his meaning is clear, that just as possession is not interrupted, so time is not running against the fructuary because his quasi-possession (wit) remains. In the next text, as it appears in the Digest¹ (but it is not in the Vatican Fragments), Julian (or Pomponius) considers the case of a slave who has passed into the possession of a third person. Quasi-possession has ceased, so that this form of uti has ceased. Time begins to run against the. fructuary. But if the slave contracts ex re fructuarii, this is use, and keeps the usufruct alive, the acquisition being to the fructuary. There seems no objection to this view or any contradiction of what the jurist has already said^{[1300] [1301] [1302].}

Such infant slaves as are mentioned above can hardly be lost by non-use, other than adverse possession’. There is no profit in them, and till they are of such an age as to be able to work, they are regarded as valueless*.

Before entering on the subject of acquisition it may be remarked that slaves held in usufruct have the same power of alienation as other slaves: they cannot, for instance, even with administratio, alienate by way of donatio*.

In relation to acquisition through servi fructuarii, which is the most important topic, most of the questions of principle have been dealt with by anticipation in connexion with bona fide serviens. The general principles being the same in the two cases it is not necessary to repeat the discussions, and the rules, so far as they are identical, will therefore be dealt with mainly by way of reference. The general rule is that the fructuary acquires ex re and ex operis servi: all else goes to the dominus*, the fructuary having no interest in it^[1303]. A few remarks are needed on cases of special interest.

(a) Inheritance and legacy. We have seen that after some doubts it was settled that bonae fidei possessor could not acquire such things through the slave. The same principle was generally held in case of servus fructuarius*. Most of the doubters speak only of bonae fidei possessor, but Labeo⁹ thinks that usufructuary would acquire if testator intended to benefit him. Salkowski thinks¹⁰ this must be accepted as

362 Servus Fructuarius: Acquisitions [pt. i the law of Justinian’s time, as the texts shew that they have been handled by the compilers. But this seems very doubtful in view of the large number of texts which contradict it¹. It is more reasonable to suppose that the compilers fell here into a plausible error, than to read limitations into all the other texts.

(b) Donatio². Here it is perfectly clear that in the later law the fructuary would acquire if the intent of the donor was to benefit him³. Releases to the slave for the fructuary are valid as being ex re*. Gifts by fructuary to the slave are dealt with as in the case of the bonae fidei possessor*. We are told by Paul, however, that, if the intent was to benefit the dominus, the gift may take effect in his favour. This is no doubt a late development and may be an interpolation⁶.

(c) Possession’. Possession can be acquired, within the two causae, for the fructuarius², and through this possession usucapio may operate, subject to the ordinary rules as to knowledge of the principal in matters not within the peculium². In relation to usucapio there seems no reason to distinguish, as Kuntze seems inclined to do¹⁰, between servus fructuarius and bona fide serviens. There had been some doubt, mentioned by Gaius and rejected by Paul¹¹ (who refers to the analogous case of the filiusfamilias), as to whether there could be possession through such slaves, since they were not possessed. Papinian gives, as a reason for allowing it: cum et naturaliter a fructuario teneatur et plurimum ex iure possessio mutuetur¹². Kuntze¹³ remarks that the reason is not a good one since detention is not possession, and doubts whether these words be Papinian’s. But though possession of the man is un­necessary to the acquisition of possession through him, the fact that he is not possessed is not without importance. We have seen¹⁴ that if the serviens does not acquire possession for his bonae fidei holder, he does not acquire it at all, for the owner cannot acquire possession through one who is in fact possessed by another. This difficulty does not arise in the case of a servus fructuarius.

(d) Contract. Any contract which the slave can make at all he can make, within the causae, for the fructuary. Here, as in the case of the bona fide serviens, we get the rule that what he cannot acquire to the fructuary the slave acquires to the owner, even within the causae™. The rule is illustrated by the case of a servus fructuarius who stipulates for the usufruct in himself. This is a res sua so far as the fructuary is

1 e.g. 29. 2. 45. 3 (Julian); h. t. 25. pr. (Ulpian); 41. 1. 47 (Paul); 41. 1. 10. 3 (Gaius); G. 2. 92; In. 2. 9.4. None of these texts speaks of intent.

2 Ante, p. 343. 8 7. 1. 22, 24, 25. pr.; 41.1. 49.

* Ante, p. 343 ; 7. 1. 23. pr.; 46. 3. 63; 46. 4. 11. pr.; V. Fr. 72.

e 41. 1. 49.

8 7. 1. 21; 41. 2. 1. 8, 49. pr.; G. 2. 94. n 41.2. 1.8; In. 2. 9. 4; G. 2. 94. 1* Ante, p. 347.

8 Ante, p. 343 ; 7. 1. 31; 7. 8. 16. 2. �

⁷ Ante, p. 347; Salkowski, op. cit. 164 sqq.

s 41. 4. 7. 8; G. 2. 94. ¹⁰ op. cit. 34.

¹² 41. 2. 49. pr. ¹⁸ op. cit. 34.

w Ante, p. 347; D. 7.1. 25. 3.

ch. xv] Acquisitions: Iussum: Nominatio 363 concerned and thus cannot be acquired to him : it goes therefore to the owner¹. The doubt in the case of the liber homo bona fide serviens cannot arise here.

The rules as to the effect of iussum and nominatio are the same as in the case of bona fide serviens*. If the stipulation is nominatim domino or iussu domini, even ex operis or ex re fructuarii, it is the owner who acquires³. If, on the other hand, he stipulates nominatim fructuario, not within the causae, the agreement is null *: the dominus cannot acquire in contradiction of its terms. If it is at the iussum of the fructuary, the dominus can acquire³ The same principle is illustrated by the rule that if the stipulation is domino aut fructuario, not within the causae, the agreement is valid : all is acquired to the dominus, though payment may be made to the fructuary, who is regarded as solutionis causa adiectus*. On the other hand if he stipulates domino aut fructuario, ex re fructuarii, the agreement is void for uncertainty, since he can acquire in such a way for either, and we cannot say which has acquired and which is solutionis causa adiectus*.

Many of a slave’s transactions would relate to his peculium, and in the present case he may have two peculia. A transaction will be ex re domini or ex re fructuarii according to the peculium to which it belongs. Thus in bilateral transactions it may happen that till payment is made it may be impossible to say to whom the thing is acquired. Under this head three cases may be discussed⁸.

(i) The slave, about to lend money, stipulates for its return from the intending borrower. Here, till the money is lent, any action by either can be met by exceptio doli. When it is lent the payment declares for whom the stipulation was acquired ab initio*. No doubt, as Salkowski says¹⁰, it will be for fructuary to prove that it was ex re eius, the dominus being able to recover unless the borrower proves that it was ex re fructuarii. In another case the stipulation was for “ whatever money I shall lend you¹¹.” The case seems exactly the same, though Salkowski holds¹² that here there is no obligation till the money is lent, and that it is in no way retrospective. But if the money is lent, and the stipulation is sued on, it must be that stipulation, and it must have

¹ 7.1. 25. 4. Salkowski» op. cit. 193, accepts the view of the Gloss that the stipulatio is made with the fructuary himself.

² Ante, p. 349.

⁸ 7. 1. 25. 3,4; 41. 1. 37. 5; 45. 3. 22, 23, 39. The expression ex re is used inclusively: the slave’s operae are res fructuarii.

< 45. 3. 22, 23, 31; 7. 1. 25. 3.

⁸ 45. 3. 31. As to condictio for adjustment (45. 3. 39) see ante, p. 350.

« 45. 3. 1. 5, 28. pr.·, 46. 3. 98. 7. Cp. In. 3. 19. 4.

⁷ 45.3. 1. 5; 46. 3. 98. 7.

⁸ For full discussion see Salkowski, op. cit. 197—220, from which much of what follows is drawn.

⁸ 7. 1. 25. 1. io op. cit. 202. n 45. 3. 18. 3. ¹² loc. cit.

364 Servus Fructuarius: Acquisition in Suspense [pt. i been acquired when it was made. Fitting’s view¹ that it is conditional and retrospective seems preferable.

(ii) The slave buys, and takes delivery with a credit term, so that ownership passes though the price is not yet paid. The ownership is in suspense till the price is paid. There are three distinct points :

(a) The rights of the parties during the suspense^{[1304] [1305] [1306] [1307] [1308] [1309]. Neither fructuary or dominus can redhibit, for this would be to abandon rights which may not be his’. There can be no actio ex empto*. There can hardly be an actio Publiciana, since, the price not being paid, the slave knows that ownership has not passed, and it is his knowledge which is decisive®. There can be no condictio furtiva*. There is no actio Aquilia[1310], at any rate unless there is some mistake of fact as to whether the price has or has not been paid[1311]. On the other hand, on the principles already laid down the vendor can bring an actio ex vendito de peculio against either[1312], and condemnatio, if for the full price, will end the suspense. Salkowski thinks it will end it in any case if there is no peculium, apud alterumw. But if the owner has paid half de peculio, and the fructuary then pays the other half, they will own pro ratan.}

(b) Termination of the suspense by payment. The thing vests in the owner of the money^[1313]. Only one text deals with this matter in detail^[1314]. If it is paid out of the peculium of one no question arises. If it is paid out of both, Ulpian reports Julian as holding, reasonably, that they acquire pro rata. Ulpian then goes on to consider other possi­bilities. If the slave pays the whole price out of each peculium the thing belongs to him out of whose peculium it was first paid for, the other being entitled to vindicate the coins since the slave has no power of gratuitous alienation. If it was all paid together, Ulpian holds that there is no alienation at all, and no payment^{[1315] [1316] [1317] [1318]. All the money is vindicable.}

(c) Effect of termination of the usufruct before the price is paid. Here, if the usufruct ends before the thing is handed over, the jurists are ch. xv] Servus Fructuarius: Acquisition in Suspense 365

agreed that payment by the fructuary cannot make the thing vest in him. He is now a mere third person, and cannot, by paying the price, acquire an actio ex empto on the slave’s contract¹, and no delivery to the slave can make the thing vest in him. He ceases to be liable to the actio de peculio even utilis and annalis*, not merely because the usufruct is ended, since liability de peculio is not bound up with acquisition, but because the vendor has not completed the requirements for an actio ex vendito before the fructuary’s connexion with the slave ceased. If now the fructuary pays the price, after the usufruct is ended by capitis deminutio, Julian says^[1319] that he can have no actio ex empto, but has condictio indebiti against the vendor. There is the difficulty that the error must be one of law. But though it is generally held that the condictio indebiti would not lie on error of this kind, the opinion is not very securely based : this is not the only text which gives it on error of law^{[1320] [1321].}

If the thing has been handed over before the usufruct ends, and payment is made after its close, the view of Marcellus and Mauricianus is that no such payment can vest the thing in the fructuary. But Julian lays it down and Ulpian accepts it as the equitable view, that payment even then will determine the thing to the fructuary^[1322]. As Salkowski says’, this equitableness seems to rest on the ground that the rule gives him rights correlative to his liability de peculio, which would logically require him to make the payment within one year, since his liability de peculio lasts no longer. But the texts give us no further assistance. Salkowski goes on to remark that the rule of pendency seems to have been settled by Julian. He infers an original doctrine, that the delivery vested the thing in the dominus, with a liability to divest on payment by the fructuary, and compares the case with that of legatum per vindicationem, according to the Sabinians⁷.

It should be observed that this pendency is not a necessary accom­paniment of a sale on credit to such a slave. Payment is only one way of determining with whose affairs the thing is connected, decisive only in absence of other evidence. If, for instance, the slave was managing a shop for the fructuary, and bought on credit stock-in-trade which was delivered to that shop, there can be no doubt that this is in re fructuarii, and payment by the owner will not affect the matter⁸.

(iii) The slave lets out his operae for a term at so much a week or for a lump sum: during the term the fructuary dies. Here all the texts 366 Servus Fructuarius: Acquisition in Suspense [pt. i agree as to the law. The fructuary is entitled to the hire for the time for which the usufruct lasted, and the owner to the rest¹. Salkowski thinks² that if it was for a lump sum the usufructuary acquires the whole, and dominus must condict his share. The text he cites’ does indeed refer only to annos singulos, but it does not exclude the other case. Paul definitely includes it⁴. Nor is there any reason for the distinction: as Salkowski remarks, whether the payment is in annos singulos or not, it is equally one stipulation. But the jurists disagree as to the basis of the rule. Ulpian says⁶ that for the years during which the usufruct lasts, the fructuary acquires, but for the later years transit ad proprietarium stipulatio semel adquisita fructuario. His language is confused, but he seems to mean that the whole is in the fructuary (it is indeed one stipulation), and part is divested. He remarks that this is unusual, since the owner is not a universal successor. He adds that there will be a repeated transition if the usufruct is lost by capitis deminutio and restored by virtue of repetitio. This is to state the rule, not to explain it. Kuntze⁸ thinks it involves the notion that the obligation is really rooted in the slave, and passes with him. But as Salkowski observes⁷ the language gives no hint of this, and one would expect so remarkable a principle to be mentioned, and the same result ought to arise in all cases of transfer of a slave who had made such a contract.

Papinian⁸, quoting the rule from Julian, takes a different view. He treats it as a case of suspense. At the beginning of each year it is acquired to the fructuary for that year if the ■ usufruct is still on foot. When this expires it is definitively acquired to the owner. Papinian’s language is applicable only to the case of agreement for yearly payments, but the reasoning is equally applicable to the other case: it is as easy to divide a mass pro rata as a number of sums. This view differs in practical result: if the whole were regarded as vesting, as Ulpian holds, in the fructuary, it would be possible for him to destroy the owner’s right by giving a release⁸. In other respects also Papinian’s explanation is to be preferred. There is nothing exceptional in regard­ing a slave’s stipulation as conferring independent rights on two people: this is the ordinary rule in contracts by a common slave¹⁰. And it is only in so far as the operae are within the usufruct that the fructuary acquires a promise in respect of them. If a slave stipulated for so much a year for operae during the usufruct, and then stipulated for the same rate afterwards the first would be acquired to the fructuary, the second to the dominus. Here the same result is attained by treating the one

¹ 7. 1. 25. 2, 26 ; 45. 3. 18. 3. ² op. cit. 217. ⁸ 7.1. 25. 2.

⁴ 5. t. 26. ⁶ 5- t· 25· 2· ⁸ OP· cit. 67.

’ loc. cit. ⁸ 45.3. 18.3. ⁹ Salkowski, loc. cit.

¹⁹ Post, p. 379.

ch. xv] Transactions between Slave and Usufructuary 367 stipulation as divided. This does not meet Ulpian’s language, but that is very confused, and as Papinian shews^[1323] that the rule was Julian’s and was not explained by him, it does not appear too much to regard Ulpian’s words as an erroneous explanation by him or the compilers.

The case of transactions between the slave and his holder has already been considered in connexion with the bona fide serviens². The same principles apply here. So far as they are ex causis they can only affect the peculium. This is expressed in several texts which mention letting of his operas to the slave, stipulation by the slave ex re, promise to the fructuary ex re, and hiring a thing from fructuary³. In such things fructuary is treated as dominus*, and a general rule is laid down that a contract, which if made with a third person is acquired to fructuary, is legally null if made with him’. One case looks exceptional. If the slave stipulates for the usufruct in himself, he acquires this to the dominus". The Gloss regards this as made with the fructuary, and Salkowski’ explains the rule on the ground that as what is stipulated is a right which can be created only by cessio in iure, it would be null if the stipulation had been sibi dart, so that to make it valid it must be construed as if it had been nominatim domino. This artificial view is open to objections. It contradicts the general rule just cited⁸, which says that all such things are void nisi nominatim domino. To say that because it would be invalid in any other form it is to be construed as if it were nominatim domino is to reduce these words to an absurdity, and they are stated in the adjoining paragraph⁹. If the view is sound the same rule must apply to a stipulation for a usufruct in any subject­matter of the usufruct. Indeed the restriction to usufruct is misleading, for the same rule must apply to any stipulation for a right, since it must be bad if the slave stipulated sibi¹". But in fact there is no reason to treat the stipulation in our text as made with the fructuary: on the contrary, the case is paralleled with another in which it is clear that the stipulation was with a third person^[1324]. It is thus covered by the rule that what cannot be acquired by the fructuary goes to the dominus, even within the causae¹².

If the slave’s contract with the fructuary be iussu domini, or nominatim domino, or if it be extra causas, it is acquired to the dominus, and he has an action on it against the fructuary, while, if it is bilateral, the latter has an actio de peculio against him¹³. If the slave deals with dominus, the agreement is null if extra causas, even though in the name or at 368 Transactions between Slave and Usufructuary [pt. i command of the fructuary. If it be within the causae the fructuary acquires on a promise to the slave, and the owner has an actio de peculio against him on bilateral transactions. These propositions do not need further authority, but one text raises a difficulty. Ulpian says^[1325] that the fructuary has sometimes an actio de peculio against dominus, as, e.g., if the slave has a peculium with dominus, and none, or less than he owes the fructuary, with the latter. The same is true, he says, conversely, though between common owners pro socio or communi dividundo suffices. If the text refers to contracts within the causae, it breaks the rule that promises to the fructuary in such matters are null². If it refers to matters not within the causae, the limitation that he cannot sue if there is the means of satisfaction within his own peculium conflicts with what is implied in the text last cited. Salkowski⁸ assumes it to refer to the latter, and justifies it on the ground that he can in fact treat the debt as â€? peculiar,’ and so make it effective against creditors de peculio. This is hardly satisfactory. It is not absolutely certain that he can deduct such a debt, since in such a matter the slave is a serous alienus. The rule that there could be no deduction if there were other means of recovery⁴, and the present rule that it can be recovered by action if there is no means of deduction are a vicious circle, but the first of these rules is not so well established as to justify us in laying stress on this point.

But even admitting the right to deduct we are little better off. There may be no â€?peculiar’ creditors, and it is unfair to make him pay himself out of his own money, when the dominus has benefited under the transaction. Suppose the slave hires a house from the fructuary, nominatim domino, and dominus has lived or stored property in it. It is absurd that the fructuary should be compelled to recoup himself at his own expense or at that of creditors. Even if there are creditors the unfairness may be the same, for if the peculium is solvent the right of deduction is worthless, and dominus gets the house for nothing. Only if the peculium is insolvent is anything like justice done, for the disappointed creditors can proceed against the dominus under his subsidiary liability⁶. Only if it is penniless, and there are other creditors to the amount of the debt of dominus, is full justice done. The texts cited by Salkowski in support are not convincing. A person who has de peculio against the owner of a slave buys the slave. He has de peculio still against the vendor for a year, but, says Ulpian, he can, if he prefers, deduct the amount from the peculium if he is sued de peculio*. Gaius and Paul and Julian say that he must allow for what ch. xv] Servus Usuarius: Position: Acquisitions 369

he has in peculio if he sues the vendor^[1326]. But here there is a voluntary acquisition of the slave after the debt was contracted, which quite differentiates the case. And his right to deduct, which gives an air of similarity to the cases, is due to the fact that the slave is now his slave. In our case he is still servus alienus so far as res extra causas are concerned. It may be added that the text, in declaring the rule to apply both ways, ignores the fact that while the dominus can conceivably acquire on all contracts of the slave, the fructuary cannot on those extra causas. This rather suggests that the text is to apply to those within the causae, as to which either can theoretically acquire, and that Ulpian is limiting the general rule laid down by Papinian'², that there can in no case be actio de peculio against dominus on such a contract.

XXV. Servus Usuarius. 0ferae Serve

The difference between ususfructus and usus is expressed in their names, but it is not easy to say exactly what is involved in use as opposed to fructus. In the case of land there was a gradual improve­ment in the rights of usuary, till it was settled that he was even entitled to some of the fruits³. The case of the slave shews the same tendency, as we shall see in the matter of acquisitions. Apart from acquisition the rules were much the same as in usufruct, and the texts say little of usus.

Usus is indivisible : the only result which the texts draw from this we shall deal with under operae servi\ The usuary is entitled to opera and ministerium, he may employ the slave for the purposes of his family, not merely personal to him, and in his business. He may take his whole time, but he may not hand him over to anyone else⁵. He has an interesse for actio furti*. He is never mentioned in connexion with noxal rights and liabilities, so that the rules are no doubt the same as in ususfructus. Subject to the fact that his field of acquisition is less, the rules in the actiones honorariae are as in usufruct⁷. He can acquire a release by acceptilatio in the same way⁸.

As to acquisitions there is a marked difference. The usuary is entitled uti and not frui. Hence he can acquire ex re and not ex operis, acquisition ex re being a form of uii⁹. It is possible for the slave to have a peculium in relation to usuary, and acquisition in connexion with this is ex re^w. We have seen that employing a slave in business is uti, not 370 Acquisitions by Servus Usuarius. Operae Servi [pt. i frui^[1327]'. hence he can be employed as institor and his contracts in that capacity will enure to the usuary². The text adds that usuary can acquire iussu; this does not mean that every traditio at iussum of usuary will be acquired to him, but only that iussum is an indication, not necessarily conclusive, that the acquisition is ex re usuarii. But hire for services is the slave’s typical fructus, and therefore the usuary cannot locate his services, or rather cannot definitively acquire what is paid for the hire’. But Gaius tells us that he may take money from the slave in lieu of services⁴. This evasion is somewhat doubtfully put and is attributed to Labeo. The resulting situation is not explained. It can hardly mean that he lets the slave work for other people, the proceeds going into the slave’s peculium, belonging to the usuary. This would be allowing the slave to locate his services. The reward for such services would unquestionably belong to the dominus. It may be that he allows the slave, in return for a sum, paid ex peculio, to dispose of the produce, e.g. of a farm he is allowed to till, the proceeds forming part of the peculium. It may mean that the money comes from the dominus, i.e. from the peculium which belongs to him, so that usuary can now get nothing out of his service though he can still acquire ex re. His service then belongs to the peculium attaching to his dominus.

Operae servorum may be called a kind of usus\ They are indivisible. Thus a legacy of operae servorum must be given in full, and money allowed if necessary for the Falcidian deduction, while in usufruct, though the valuation, to arrive at the amount to be deducted, has to be made in the same way, yet, when it is made, the heres can retain the proper proportion of the thing itself⁶. The rights of personal enjoyment in this case are as in usus^r, but it differs in several ways:

(i) No text refers to it, except as created by legacy, and it is commonly held that it can arise in no other way.

(ii) The beneficiary can let the operae or allow the slave to do so’.

(iii) It is not lost by capitis deminutio, or by non-use⁹.

(iv) It is not lost by death of the beneficiary, but passes to the heir¹⁹. Apparently it is commonly for the life of the slave, but it may be only for a fixed time.

(v) It is lost, as usufruct and usus are not, if a third person usucapts the man^[1328].

ch. xv] Operae Servi 371

(vi) We are told that in actu consistit, and so it does not exist at all, until dies venit—until it is actually due¹. The practical meaning of this seems to be that it cannot be lost, e.g. by surrender before that time^{[1329] [1330]. The idea has one other remarkable result. The legacy of usus or usufruct " cedes ” only on aditio[1331]. This postponement is partly due to the intransmissibility of the right, and partly to the fact that earlier “ ceding ” might increase the risk of loss by capitis deminutio. Neither of these affects the present case, and yet, here, dies cedens is postponed still further. Ulpian settles a doubt by saying that it cedes only when it is actually claimed[1332] [1333]. It is clear that Ulpian has in mind a legacy for a certain time, and his rule means that the days do not begin to run till the operae are claimed6. If the slave is unwell, the person entitled can wait till he is well again, but as Ulpian says, if the man falls ill after the claim is set up, the days count as against the legatee.}

It may be noted that a gift of operae semi is necessarily a specific gift of the slave or slaves, alone, while one of usus might be, and probably usually was, part of a wider gift, e.g. of usus fundi instructi. As a specific institution it is a late juristic development. For Terentius Clemens and Julian it is another word for usus³. Papinian, Paul and Ulpian are the only jurists who treat it as having distinct rules, and Paul shews⁷ that its rules were doubtful in his time. What was happening was the assignment of a strict legal meaning to an untech- nical word of the lay vocabulary.