CHAPTER XI. SPECIAL CASES (cont.). S. HEREDITARIUS. S. DOTALIS. S. DEPOSITUS, COMMODATUS, LOCATUS, IN PRECARIO.

All this would apply equally well to the case of a slave pure legates, but the Edict⁶ deals only with the freed slave. There is, however, a text which says that the action is available if the slave is pure legates, and adds that it lies if the ownership in him is changed⁶. This is obscure, but it is clear that the case is not within the actual words of the Edict—hanc actionem indulgendam. As extant, the text says the action is to lie if ownership is changed or lost, or liberty is gained post intervallum modicum aditae hereditatis. The form and content of this text suggest that it may be a pure insertion of the compilers. However this may be, it is certain that its sweeping generality cannot represent the law, for it gives the action where liberty is not attained. Mommsen⁷ corrects by omitting vel libertas competit, so that the acquisition of liberty is implied in all the cases it deals with, but this alteration makes the words post intervallum modicum, etc., apply to the transfer of ownership. This is inconsistent with what has been said, and moreover would make the rule apply where the heres himself sold the slave⁸. The alteration of vel into et before libertas competit brings the new rule into exact line with the principle of the Edict, and the scribe’s error would be a very likely one in view of the two preceding expressions with vel.

The hereditas being pro domino, the slave can acquire for it’: his acquisitions of whatever kind belong to it, and therefore go to the heres postea factus^w, even though the slave is legates¹¹. What he acquires is reckoned in iudicium familiae erciscundae, and can be recovered by hereditatis petitio¹² As to his acquisition of possession, there were disputes. In one text it is said¹³ that if such a slave buys, and acquires possession, and then loses it again, the heres on entry has the Publician, quasi ipse possedisset, whether the dealing was peculiar!

1 h. I. 3. ² 47. 4. 2. » 47. 4. 1. 4, 3.

⁴ 47. 4. 1. 1, 15. ⁶ 47. 4. l.pr.; Lenel, Ed. Perp. § 135.

• 47. 4. 1. 5, 6. ’ ad h. I.

⁸ The action cannot lie against legatee, for if it is a debt purely due from peculium (15.1. 27. 1), heres should have deducted and can now condict (ante, p. 229). If it be regarded as noxal it is excluded as the crimen expilatae hereditatis is.

2 41. 1. 61. pr.; 45. 3.16; 49. 15. 29.

1» In. 2. 22. 2; 3. 17. pr. ¹¹ 31. 38.

⁴² 10. 2. 12. 1. ¹⁹ 6. 2. 9. 6, 10. nomine or not. In view of the controversy as to whether legal possession was needed for the Publician or not, the text does not prove that his possession is the heir’s : it rather suggests that it is not, except in re peculiari. It is clear that such a slave can continue and complete usucapio already begun, but this is of little importance, since all that is needed for that, in the case of a hereditas, is that there be no adverse possession¹. Apart from this, even in re peculiari, the matter is not clear. In two texts of Paul and Julian in which the power is asserted the language is obscure and the remark may be compilers’ work². Papinian tells us, in one text³, that if such a slave begins tenere peculiari causa, usucapio does not begin till aditio, for how, he asks, can that be usucapted, which the deceased never possessed ? In another text⁴ he tells us that if such a slave comparat, usucapio begins to run, but this is singulari iure. This is so like Papinian’s own way of looking at acquisition of possession peculii causa, as allowed on utilitarian grounds, and not based on principle⁵, that it seems necessary to understand this text only of “ peculiar ” acquisition. It then con­tradicts the other. Mommsen suggests that a nisi has dropped out of the text first mentioned⁶, so that the denial would apply only to extra-peculiar acquisition⁷.

Legacies and institutiones can be made to a servus hereditarius, owing to the rule that servi persona inspidenda est et in testamentis³. But though he can be instituted, he cannot enter⁹. In quibus factum personae operaeve substantia desideratur nihil hereditati adquiri potest, and therefore, quia adire jubentis domini persona desideratur, heres exspectandus est¹⁰. It follows that he never really acquires a hereditas to the hereditas, but only to the heres. Thus it does not form part of the hereditas¹¹. The institutio depends for its validity on the testamenti factio of the deceased, whom the hereditas represents, not on that of the heres, though, of course, the heres will not get it unless qualified to take, or beyond the proportion he is qualified to take¹².

A miles filiusfamilias can make a will. This creates a sort of quasi-inheritance, the existence of which depends on entry. If no one enters it is peculium and belongs to the paterfamilias¹³. Hence arise some difficult cases. Acquisitions by legacy or stipulation, by a

^I 41. 3. 20, 31. 5, 40. 2 41. 2. 1. 5; 44. 7. 16. »41.3.45.1.

⁴ 41. 3. 44. 3. » 41. 2. 44.1.. ⁶ ad 41. 3. 35. 1.

It is surprising that the titles dealing with possessory interdicts do not discuss dispossession of servi hereditarii.

⁸ 28. 5. 31. 1, 65; 30. 116. 3; 31. 82. 2.

⁹ 28. 5. 6. 2, 21. 1, 53. 10 41. 1. 61. pr.

^II Where a heres coactus, on entry, ordered a servus hereditarius to enter on a hereditas left to the slave, he acquired and need not hand it on to the fid^icommissarius, 36. 1. 28. 1.

¹² 28. 5. 53; 31. 55. 1. ™ 49. 17.14. pr. servus castrensis where there is a will, but no one has yet accepted, go like those of servus hereditarius, if an heir enters, but if not, they go to the pater. Thus if a usufruct is left to him it takes effect for heres or father. The event does not transfer it from one to the other¹: it vests in one or the other^{[1035] [1036]} according to the event. So if a thing is stolen from the slave the heres if he enters has no actio furti, for furtum hereditati non fit, but if he does not enter the father has the action^[1037]. There were clearly some doubts, but the result of this way of looking at the matter is that the father has no interest in the meantime. Thus where a slave, common to X and a peculium castrense, stipulates after the death of the miles, and before the heir has accepted, X acquires the whole. For, the text says, there is no real hereditas, but only, by imperial constitutions, a right of testation, which becomes a hereditas, then and then only when the heres has accepted. Ac­cordingly it cannot be acquired to the hereditas : the fact that no right is allowed to the father, to take half, expresses the view that in the meantime he has nothing in the property^{[1038] [1039]}. But this reasoning would lead to the view that all transactions of a servus castrensis peculii in the interval are void, if the devise is not accepted. Papinian, in fact, raises this question, in relation to stipulation and traditio, and decides that notwithstanding the father’s interim lack of interest paterna verecundia compels the view that such things are acquired to him’. The text adds that if a legacy is left to such a slave, though, propter incertum, it is for the time being acquired to no one, it vests in the father if the will does not operate^[1040]. Another text, of Tryphoninus^[1041], discusses the case of a legacy to a servus castrensis peculii vesting during the heir’s deliberation, the legacy being under the will of a person in relation to whom the father was an incapaa:. Certainly, says the writer, it will go to the heres, the point of the observation being, apparently, that here there can be no question of its having vested in the father in the meantime, and only shifting at entry of the heir. He has already remarked that the imago successionis has prevented the father’s owner­ship of the slave from existing in the interval. He uses the same case to Exclude the notion of a pendency of dominium., but it only proves that the gift to the heres can take effect though there be no pendency: the real objection to the notion is that the very idea of hereditas implies that in the meantime the property does not belong to anyone, which is inconsistent with the notion of pendency, as applied elsewhere¹.

Gifts of usufruct to servus hereditarius create difficulties. They cannot be completely acquired because ususfructus sine persona constitui non potest². For the same reason, such a slave cannot stipulate for one, even conditionally³. But there may be a legacy of usufruct to him, and as the persona is necessary, heres exspectandus est: it does not cede till entry of the heir, so that there can be no question of its failing then, quasi mutato dominion The aditio here mentioned is that on the hereditas to which the slave belongs: the rule is independent of the fact that legacy of usufruct never cedes till entry under the will by which it is created. In a certain will a slave is legated. Before aditio, another inheritance, under which a legacy of usufruct is left to this slave, is entered on. The legacy does not cede until the inheritance, in which he is, is entered on, and will fail if he dies in the meantime. On entry it will go to the then owner of the slave⁵.

Before leaving this branch of the subject, it is necessary to consider a group of texts, the gist of which is that the heres cannot acquire, by a servus hereditarius, what is part of the hereditas. At first sight these texts seem merely to lay down the truism that as heres is not owner till entry, the acquisition of things by servi hereditarii cannot be acquisition to him. And this is the only obvious meaning which can be given to the texts which apply the rule to acquisition of the hereditas or part of it⁶. But another text⁷, dealing purely with possession, speaks of the rule as having been laid down by the ancients (yeteres putaverunt), an expression not likely to have been used about so obvious a rule. And the text is followed by remarks which shew the case contemplated to be that of acquisition of res hereditariae after entry, i.e. solely a question of possession, since ownership in such things is acquired by the fact of entry; the slave having of course ceased to be a servus hereditarius in the technical sense. Other texts, which shew that the rule is applied only to slaves acquired by the strictly hereditary title, deal also expressly with possession. Thus of slaves legated to us we can acquire the possession of all by one, as well as if they had been given or sold

¹ See Otto and Schilling, ad h. I. See alsopojt, Ch. xvi.. ² 41. 1. 61.1.

3 Vat. Fr. 55, 60; D. 45. 3. 26, ex praesenti vires accipit stipulatio quamvis petitio ex ea

suspensa sit. _a.

4 lb.; 7. 3.1. 2 ; 7. 4. 18, i.e. in the slave: the remark is belated in the Digest. Ante, p. 152.

5 i.e. the legatee. If the slave had not been legated it would have belonged to the heres. Text doubtful, but this seems to be the sense. There was another difficulty. Acquisitions by servi hereditarii were divided among coheirs (post, Ch. xvi.). But no part of this, a usufruct, could be separated from the person to whom it was given,—nee a personts discedere potest. It could not be divided by the iudex in familiae erciscundae: if the heirs would not hold it in common, he must arrange for enjoyment and compensation with security, 10. 2. 15, IQ.pr. Text doubtful.

6 29. 2. 43; 41. 1. 18. As to common slaves, post, Ch. xvi. 7 41. 2. 1. 16. to us¹. And where A is heres pro parte and a slave is legated to him, he can, on aditio, acquire by that slave possession of a fundus hereditarius¹. And where A has sold a slave to B, or owes him a slave in any way, and delivers him after B’s death to B’s heir, the heir can acquire possession of res hereditariae through him, precisely because he was not acquired iure hereditaria³. When it is remembered first, that the rule is an ancient one⁴, so ancient indeed that the classical jurists give no reason for it and treat it as a technicality to be confined within as narrow limits as possible, secondly, that every text which does not apply it to the hereditas or part of it applies it expressly to possession, and, thirdly, that hereditas was susceptible of possession and usucapion in early law’,it seems safe to regard the rule as applying properly to acquisition of possession alone⁶.

Even so limited, what is the rationale of the rule? No doubt difficult questions might arise in the absence of such a rule⁷, but the same difficulties would arise in the case, for instance, of the slave legatus to the heir. Moreover, the rule has a technical look about it, and is hardly likely to rest on a purely utilitarian basis. The rule contemplates things possessed by the deceased, which, as we know, are not possessed by the heres till he has actually taken them⁸. It appears to rest on the unity of the inheritance : a taking by one of the slaves (whether authorised or not) of a thing in the possession of the dominus or of another slave would have effected no change in possession during the life of the ancestor, or while the hereditas was iacens. The same act is not allowed to produce a different effect merely because the owner­ship of the hereditas has changed.

We have anticipated some of the rules as to contract by a servus hereditarius. It is laid down that he cannot contract in the name of his late owner: there is no such person⁹. The question whether he can stipulate in the name of the future heir is much debated, the decision really turning on the question already considered whether, and how far, the hereditas can be said to represent the future heir¹⁰. Cassius, Gaius and Modestinus are reported as holding that he can do so, on the ground, in the case of the first two, that aditio relates back¹¹. But the weight of authority is the other way: we may take the rule

1 41. 2. 1. 16. ⁹ 41. 2. 1. 17. s 41. 2. 38. 2.

t 41. 2. 1. 16. ⁰ G. 2. 54.

⁸ The texts are concerned only with acts of acquisition by the slave: they do not for instance mean that if I acquire possession of one of the slaves I do not thereby acquire possession of his peculium which he possesses. It would perhaps, but this is less probable, not require an independent act of acquisition of even res non peculiares, which the slave now possessed by me had acquired to.his late owner and held through the interval.

7 e.g. if heres gave a general iussum to all the slaves to take possession.

841. 2. 23. pr.

912. 1. 41; 45. 3. 18. 2; In. 3. 17. 1. w Ante, pp. 252, 3.

n 45. 3. 28. 4, 35.

ch. xi] Contracts by Servus Hereditarius 261 as being that he cannot¹. Of course he can make a stipulation or pact in rem'², or in the name of a fellow slave, or of the hereditas, or with no name at all³. So in bilateral transactions. If he grants a commodatum or a depositum, the heres can recover the thing, and has the ordinary rights of action⁴.

The hereditas is released by an acceptilatio to such a slave on a promise by his deceased master⁵.

Promises in certain forms by way of surety are subject to special time limits. If a promise is made to a servus hereditarius and security taken by way of fideiussio, it is not clear when time begins to run. Javolenus holds⁶ that it ought to begin at once, since a plaintiff’s incapacity to sue, for which the surety is in no way responsible, ought not to increase the latter’s liability. Venuleius⁷ records a doubt, and cites the contrary view of Cassius that in such a case, time runs only from the day when action became possible. The form of the hypothesis suggests that the texts were originally written of fidepromissores, who were released in two years, by the lex Furia. This is an express release by statute for a particular case. It is not necessarily governed by the general rules of prescription of actions: hence the doubt.

The heres is liable de peculio on transactions by servus hereditarius, e.g. sale⁸, though he may deduct, as a debt due to the dominus, any damage done to the hereditas*. In quod iussu, analogy suggests that a contract made after the death of a dominus on his iussum, does not bind the heres in solidum, as iussum, like mandate, is in most cases revoked by death, at least as against one who knew¹". The same question arises in connexion with actio institoria. Ulpian says¹¹ that if a man has appointed his slave institor, and died, the heres is liable on contracts made with him after the death, by one who did not know of it. This expresses the same rule, but Paul says¹², very explicitly, that the action lies, even though the other party knew of the death, and the heres vias mad, so that there could be no question of his having authorised it. He cites Pomponius, who says that a creditor who contracted with a going concern ought not to be defeated by knowledge that the dominus was dead. This way of looking at the matter makes the hereditas represent

¹ 2. 14. 27. 10; 45. 3. 16, 18. 2, 28. 4. ² 2. 14. 27. 10.

² In. 3. 17. pr.·, D. 45. 9·. 18. 2; 45. 3. 35.

⁴ 16. 3.1. 29; C. 4. 34. 9. -S', hereditarius lent money and took a pledge and handed the pledge back to the debtor in precarium. The precarium was valid, i.e. the thing could not be usucapted by the debtor, 44. 7. 16. This has a meaning as it stands, as the thing might not have been his own, (see however Gradenwitz, Interp. 38,) but it was originally written of jiducia, in which the ownership passed. He could not reacquire it by usureceptio. As it stands in the Digest the rule is confined to res peculiares, of which alone the slave could have acquired possession. The limitation is added presumably by the compilers: it would not be needed in the other case.

⁵ 46. 4. 11. 2. 6 44.3.4. 7 45.3.25.

⁸ 15.1. 3. pr.; 18. 5. 8. ⁹ 15.1. 27.1. Also in de in rem verso. See 15.1. 3.1.

¹⁹ See Roby, Rom. Priv. Law, 2.122.

¹¹ 14. 3. 5. 17. ¹² 14. 3. 17. 3.

262 Contracts by Servus Hereditarius [pt. i the deceased, but emphasises the fact that credit is given to the business rather than to the owner, and avoids the paralysis of business which would result from adoption of the view that death ended the liability.

Africanus discusses the case¹ of a man freed and ex parte heres who, not knowing his status, goes on with his dealings. He is not a servus hereditarius, but on the facts he is a bona fide serviens of the other heirs, and the case is dealt with on those lines. What would have been the result if the heirs had known ? So far as contractual rights and liabilities are concerned, it seems that the heredes could not be liable except so far as the facts could be brought within the field of actio insti­toria. And they would have the actio negotiorum gestorum contraria against him, since there is nothing on the facts involving any disquali­fying fraud. But, directly, they would acquire nothing through him^{[1042] [1043].}

All rights resulting from transactions of servus hereditarius depend on the entry of the heir. They are in a sense conditional, and fall to the ground if there be no heres^[1044]. But any heres suffices. A slave who was heres under a substitution which took effect was liable de peculio et in rem verso on his contracts made in the interim^{[1045] [1046].}

As to the actual result where no heir enters, we have no informa­tion. The property will pass to the fisc, subject to the rights of creditors. The fisc can vindicate what the man has purported to convey, and must give back what has been given to him. But this will not do justice in all cases. The slave may have done damage, for which a noxal action would have lain against the heir. Goods handed over, under one of his contracts, may have been consumed. Is the fisc liable in this and similar cases^[1047]? We are not told, and, indeed, except in regard to freedom of slaves, we are told very little as to the obligations of the fisc in such cases, though there is some detail about its rights. Of course if no heir enters, it is usually because there is no profit in it, and nothing will go to the fisc, but this would not always be so—there must be cases in which no heir is discoverable⁶.

VII. Servus Dotalis.

The special rules relative to servi dotales are due mainly to the peculiar double ownership in dos^[1048]. We know that the vir is owner, ch. xi] Servus Dotalis. Noxal Liability. Acquisitions 263 subject to a duty of return, in certain events, at the end of the marriage. Thus a slave given in dos is alienated, for the purpose of making annalis the actio de peculio^[1049]. On the other hand, the wife has a definite though postponed interest in the dos: quamvis in bonis mariti dos sit, tamen mulieris est². But this does not exactly state the case: in fact it cannot be stated in terms of any other situation. The rules are, to a great extent, the product of compromises. The vir has more than bonitary right: he has vindicatio, even from the wife⁸, and thus, though he somewhat resembles a usufructuary, his rights are really much greater. But the wife’s interest is not absolutely postponed: there are several texts which shew that she can take steps to protect it.

The law of noxal liability might be expected to provide problems arising from this state of things. Yet the Sources yield apparently only one text dealing with the matter: it tells us⁴ that if a dotal slave steals from the husband, the wife is liable to compensate, with a right, if she did not know his quality, to surrender the slave. We have already seen⁵ that this is not really noxal liability, and we must not infer that the vir, having this claim, is not noxally liable. Certainly the slave is not in potestate uxoris. The vir has the ordinary powers of owner, and thus can manumit, and becomes the patron of the libertus². The lex Julia, prohibiting alienation of land, says nothing of slaves; they may thus be alienated, their price being part of the dos, and the vir being accountable for wasteful dealing. In the same way the wife’s interest in the slave leads to the rule that the vir is liable for illtreat- ment of him, even though he habitually illtreats his own slaves⁷.

As to acquisitions the general rule is that the vir is entitled to fruits without accounting and to what is acquired ex operis, or ex re mariti, but other acquisitions are part of the dos⁶. Partus ancillarum are not fruits⁹, and thus are dotal and do not belong absolutely to the vir¹². But if, as is often the case, the slaves have been received at a valuation, and their value is to be returned, this is looked at as a sort of sale, and as the risk is with the vir, he may keep partus and other accidental accretions^[1050], the rule applying equally if the wife has the choice between the slaves and their value¹⁹. If the vir manumits a slave the iura in bonis

will normally form part of the dos^[1051]. This is inevitably so, if the manumission is without consent of the wife²: but there are other possibilities. If the wife assents, and intends a gift to her husband, then, since gifts between them are allowed manumittendi causa³, the slave is in fact the husband’s and the dos has no claim on the iura patronatus*.

The husband’s right to fruits depends on the existence of the mar­riage, and thus everything which is acquired by a slave, given in dos, before the marriage takes place, or after its end, is part of the dos³. As to legacy, hereditas, and, probably, other gifts, acquired during the marriage, there is an apparent divergence of opinion. We are told by Julian⁶ that as aditio hereditatis is not in opera servili, any hereditas on which a dotal slave enters belongs to the dos. Modestinus seems to agree’. And Paul⁸ seems to say that any land left to a dotal slave is dotal. On the other hand, Pomponius” holds that such things are dotal, si testator noluit ad maritum pertinere. And Ulpian¹⁰ says that the gift is not dotal, si respectu mariti heres sit institutus vel ei legatwn datum. And Julian himself says^[1052] that they go back if they are acquired before the marriage or after its end, which seems to imply that they would not necessarily do so, if acquired during the marriage. It must also be remembered that Julian¹² in another connexion tells us that an institution of a slave, propter me, is an acquisition ex re mea, which, if applied to dotal slaves, gives the same result. It is likely that Julian’s remarks as to acquisitions not actually during the marriage do not concern our case, but that he is laying down the rule that even though, strictly, dos exists only during the marriage, the husband’s duty to account is the same at any time when he is holding it as dos¹³. The true view of the texts seems to be that such things are as a general presumption, in the dos¹*, but that if the gift is expressly with a view of benefiting the vir, then it is ex re eius and he acquires it absolutely¹⁵. But it is still possible that this application of the conception of acqui­sition ex re was a novelty in Julian’s time.

We are told¹⁶, but the remark must be confined to cases in which the acquisition is dotal, that though aditio is always at the command of the vir, the wife must be examined before witnesses, lest she be prejudiced. If they both wish to refuse, the vir can safely do so. If she wishes to accept but he does not, he may convey the slave to her to be reconveyed to him after entry; in this way he runs no risk¹.

A single text^{[1053] [1054] seems to be all the existing authority as to the actio de peculio, etc. in the case of a dotal slave. Its decision starts evidently from the fact that vir is owner of the slave. There may be two peculia, but, for the purpose of the actio de peculio, it is immaterial whether the contract was in connexion with the dotal part of the peculium or the other: all alike is liable, as belonging to the vir. It follows that all debts due to him, or to his household, may be deducted. But when the time comes for settlement of accounts, he must charge himself with what, on principles already laid down, concerned him, and charge to dos what was paid on dotal account[1055]. Similar rules would apply to quod iussu and de in rem, verso. But as to tributoria and exerdtoria or institoria it may be doubtful. For all the profit of any transaction of the slave results from his operae, and goes to the dominus, who should therefore bear any loss. The title[1056] [1057] dealing with his right to deduct says nothing about damages in such actions. He cannot charge for the maintenance of the thing, even though the money expended was not directly with the aim of turning it into profit, but for the general preservation of it6. Moreover so far as fungibles in the peculium are concerned8, they are at his risk: he must give them back to the same amount, whatever has happened in the meantime.}

VIII. Servus Gommodatus, Locatus, Depositus.

As such a relation gave the holder no right in the slave, but only a right, ex contractu, against the dominus, there is not much to be said about the case. The holder was not noxally liable for what the slave did⁷. We have already discussed the historical development of the law as to his rights on delicts committed by the slave, in respect of him or his property, and of damage, by a slave of the borrower, to a thing lent⁸. If such a slave did harm to a third party, and the owner was sued, he had no regress, ex locato, etc. The liability of the borrower for damage to the slave is governed by the ordinary law of contract: the contractual rela­tion would not in any case bar the actio servi corrupti. There are, however, special cases in which a man might be liable for the wrongs of

266 Semis Commodatus, etc. Slaves in precario [pt. i slaves in his employ, even though his right in them were only a ius in personam. All these cases seem to be of praetorian origin¹.

Such holders were liable on the contracts of such slaves whom they had appointed institores or magistri navium, and though they did not acquire contractual rights through them, they could sue the dominus, ex commodate or ex conducto, for cession of the actions which had been acquired through them^{[1058] [1059] [1060] [1061] [1062]. It is sometimes held[1063], not on textual authority, but by reason of the inconveniences which would be caused by the contrary rule, that a slave hired to serve as institor or magister navis acquired dominium to his employer. The difficulty undoubtedly exists. Yet the refusal to allow acquisition of actions through his contracts, the fact that the only known legal results of the relation are praetorian, the absence of any reference to this case in the passages and titles which deal with acquisition through others, and the fact that one held in precario acquired nothing to his holder* make it difficult to accept this opinion. The case of servus fructuarius so appointed is no authority: the text means that this is an acquisition ex re. There is however no reason to think a servus alienus was often so appointed[1064].}

IX. Slaves held in Precario.

As a holder in precario is corqmonly assimilated to a commodatarius it is not surprising that we find little mention of the rights and liabili­ties oi precario tenens on acts of the slave. A few remarks are all that is possible. Precarium ancillae is, by a presumption of intent, preca­rium partus*. The tenens is not noxally liable^[1065], and has no actio furti if the slave be stolen, at any rate until the interdict de precario has been issued, when he becomes liable for culpa (custodia), and so has the same interest as commodatarius*. Presumably the dominus is liable on delicts done by the slave to the tenens*. The tenens can acquire nothing through the slave¹⁰ and, probably, is liable on his contracts only when any other extraneus would be.