CHAPTER X. SPECIAL CASES. SERVUS VICARIUS. S. FILIIFAMILIAS. S. IN BONIS. S. LATINI.

Another text says that a legacy of vicarius includes one of his peculium’. This is so contrary to principle, and to express texts’, that it gives rise to doubts. The opening and concluding clauses are regarded by Gradenwitz as interpolated^[993]. This of itself would throw doubt on the rest which though short is the most important part. But this looks as doubtful as the other parts: Ulpian is as little likely to have said putamus as to have described himself as a slave¹â€™.

Except for one unimportant chance allusion¹¹, the texts seem to be silent as to acquisition and alienation by vicarii. This is probably due to absence, or rarity, of practice. The vicarius is the lowest class of slave and probably rarely acts independently. As a clerk he contracts, and there are difficult questions to answer, as to the effect of his contracts. It is easy to see that similar difficulties might arise in connexion with iura in rem, and rarity seems the only explanation of the silence of the texts. It is not desirable to occupy much space with speculation: it must suffice to suggest a few of the questions which arise. In general it is clear that he acquires to the servus ordinarius, his acquisitions forming part of the peculium; but it is also not to be doubted that he can acquire, directly, to the dominus¹. This would result from iussum, and perhaps, though this is not so clear, from acquisition nominatim to him. The ordinary results of his operas will go to servus ordinarius³.

It is surprising that there is not a single text dealing with a claim by the master on a contract by vicarius, though there are many texts dealing with liability on his contracts. Of course the right must vest in the master; the distribution of any proceeds of action being deter­mined by the rules of acquisition as between the master and the ordinarius, of which we have had to admit ignorance.

It is not possible to consider the further complications which result in all these cases if the vicarius has himself a peculium. But since we shall have to deal with the liabilities resulting from his acts, and are not in this case left so much in the dark by the texts, it is important to say a word or two about his peculium. We are told that gift of a peculium to a slave is a gift of one to his vicarius³, which no doubt means that ordinarius can give him one without further authorisation from the dominus.

i Erman, op. cit. 452—455. ³ 18. 1. 31. ³ Post, Ch. xvi.; cp. 33. 8. 22. 1.

⁴ 49. 17. pass. ⁶ Ante, p. 200. ⁶ Ante, p. 135.

⁷ Ante, p. 152. So, in institutions, the question for whom he acquired was probably decided on principles similar to those applied between owner and fructuary (post, Ch. xv.). No doubt owner must assent, and it was the knowledge of vicarius which was material for cretio, ante, p. 143.

⁸ 15. 1. 6.

ordinarius this is enabling another person to pledge the owner’s credit, to the extent at least of part of the peculium. It does not follow from this that a slave with libera administratio can confer a similar right on his vicarius ¡, indeed the absence of texts dealing with alienations by vicarius suggests that this is not so^[994]. The principles of concessio peculii were fixed, as we have seen², early, and not in view of any resulting obligation. But a gift of administratio is a later idea and definitely authorises alienation. It is by no means obvious that a delegation of this power should proceed as a matter of course. It is to be remembered also that, so long as a peculium exists, contracts, even if prohibited, bind the master’, but this is not true of specific alienations under an existing administratio*.

The peculium may consist wholly or in part of property given by the owner of the ordinarius*. In arriving at the actual content of the peculium, complications result from the existence of debts between ordinarius and vicarius. Thus a debt of ordinarius to vicarius is not deducted in a legacy of peculium ordinarii*, for obvious reasons, though it is in strictness a debt to a conservus, while conversely a debt of vicarius to ordinarius will be deducted from a legacy of peculium vicarii.

Upon the liabilities created by the contracts of vicarius, there is a good deal of authority, not all of a very intelligible kind. The chief difficulty is due to the fact that, besides the liability of the master to the extent of the peculium vicarii, which certainly exists, however it may be enforced, there is, or may be, also, a secondary liability limited to the peculium of the ordinarius, for acts done under his authority, or with his knowledge, such that, if done by the ordinarius, under the authority, or with the knowledge, of the dominus, they would impose a special liability on the latter.

Before entering on the difficulties of the texts, it is necessary to face an important question. We have seen that the vicarius is the slave of the ordinarius, and only secondarily the slave of the dominus. But this notion can be pushed too far. One critic’ goes so far as to say that as vicarius was not directly the slave of the dominus, no direct actio de peculio, etc., could be brought against the dominus on his account, but that all such actions took the form of an actio de peculio ordinarii, vicarii nomine, a view which leads Affolter to such awkward forms as actio de peculio ordinarii de in rem verso vicarii nomine, and actio de peculio ordinarii quod iussu vicarii nomine. This view is rested mainly on principle, reinforced by the consideration that the direct action cannot be made out from the texts, while this indirect form is often mentioned. But the facts are otherwise. An actio de peculio vicarii is mentioned at least three times², and, for Affolter’s form, he gives no reference, and search has not revealed any instance. We have seen the dominus giving money to vicarius for his peculium², authorising exercitio by the vicarius³, having knowledge of his trading⁴, and benefiting by versio in rem eius of his acquisitions⁵. The evidence is overwhelming in favour of a direct actio de peculio on contracts by vicarius.

The rules as to deductions from the peculium vicarii present little difficulty. In an action de peculio ordinarii, debts due from vicarius to dominus or a conservus can be deducted, but only from the peculium of vicarius, since outside that they have no existence⁸. The next text⁷ applies this principle to legacy of peculium ordinarii, and elsewhere⁸ Africanus points out that they cannot be deducted, even to the value of the vicarius himself, since he is not a part of his own peculium. Debts due from the ordinarius to him are not deducted though he is a conservus, since this would only mean removal of the sum from one part of the available peculium to another⁹. Conversely debts due from dominus to vicarius would be in peculio ordinarii, while debts due from vicarius to ordinarius would be neglected. In an actio de peculio vicarii, debts due to the dominus or ordinarius are deducted¹⁹, and, conversely, debts from them are added so far, in the case of ordinarius, as his peculium will go. Erman points out¹¹ that this may practically have much the same effect as if vicarius were in his own peculium. A creditor of peculium vicarii, enforcing a claim against ordinarius, might have the right to claim vicarius, or his value, as a part of peculium ordinarii¹².

It is also held by Erman¹³ that debts due to dominus from ordinarius can be deducted in an actio de peculio vicarii, since he is entitled to pay himself out of any part of the peculium of ordinarius at any time. He regards the right as subject to the limitation that such a payment might be dolose removal from the peculium, if the rest of the peculium ordinarii would suffice to pay it. The same result would be reached by the rule that deduction can be made only, si non hoc aliunde consequi potuit¹*. It may be doubted indeed whether it could be dolus to pay

¹ 14. 3.12; 16. 1. 19. pr.; 15. 3. 17. 1.

² Pomponius treats it as the normal case, 15.1. 4. 6. ³ 14.1.1. 22.

* 14. 4. 5.1. ⁸ 15. 3. 17. 1. ⁸ 15. 1. 17, 38. 2.

⁷ 15. 1. 18, 38. 2. ⁸ 33. 8. 16. 1.

⁹ In. 4. 7. 4; G. 4. 73; D. 15.1. 17. In 33. 8. 9 the same principle is applied to legacies.

¹⁰ 15. 1. 17. ' ¹¹ op. cit. 475,6...

¹² 15.1. 38. 2. This is all Erman means, though he once speaks of vicarius as actually in his own peculium (p. 475). Affolter seems to treat this as Erman’s real view, Z. S. S. loc. cit.

18 op. dt. 475, 479. ^w 15. 1. 11. 6. yourself with your own money, and, moreover, any debt deductible at all is, ipso facto, not in the peculium: there can be no question of removal¹. This circumstance destroys the force of the analogy set up by Erman between this case and that of a man who pays his own debts with the peculium of a slave, to the prejudice of the creditors of the latter^{[995] [996]}. But it is not clear that the right of deduction for such debts exists at all, even so limited. It seems to be asserted in one text’, but, as Affolter remarks^[997], the allusion is, on the face of it, to an actio de peculio ordinarii. And there is a text which throws doubt on it. Africanus tells us⁵ that if under a contract by vicarius, something is versum in peculium ordinarii, the creditor has an actio de in rem verso, de peculio ordinarii, and therefore subject to deductions for debts due to the dominus from that peculium. But if it is versum in rem domini there is no deduction for debts of the ordinarius. There will certainly be a deduction for debts due to the dominus from the vicarius^[998], since such debt, on general principle, destroys a versum'’. But if Erman’s view is correct, debts due from ordinarius ought to be deducted too, for they would be covered by the rule that a dominus can set off against a versum what he may claim from the peculium of the slave who made the versio.

One text dealing with actio de peculio is difficult. We are told that if an actio de peculio ordinarii has been brought there can be no further actio de peculio vicarii, but that if an actio de peculio vicarii has been brought, there may be an actio de peculio ordinarii³. Leaving out of con­sideration the question of consumptio litis³, the difficulty remains that, as it is a transaction of the ordinarius which gives de peculio ordinarii, and one of the vicarius which gives de peculio vicarii, it is not easy to see what this transaction is, which may give rise to either. We might of course suppose a transaction in which they both took part, but it is more likely that the case is one in which the vicarius made the contract with such privity of ordinarius as, if it had been of dominus, would have given an actio in solidwm. We shall have shortly to consider such cases.

There is little authority as to the actio de in rem verso. So far as the versio is in rem domini the ordinary principles apply: the versio is liable to cancellation for debts of the vicarius, but, as the text says, not for those of ordinarius'³. But, if it is in peculium ordinarii, the action is subject to another limit. It is practically de peculio ordinarii, and like any other such action is temporary, (not, as an ordinary actio de in rem verso is, perpetual,) and liable to be limited, by the death of the ordinarius, to an annus utilis, and to be cancelled by his debt to the dominus. Africanus observes that the actio de peculio et in rem verso is here brought on the peculium vicarii, and that it may seem odd that it should be affected by the death of the ordinarius. But, he adds, ea res cannot be in the peculium vicarii, except so long as the peculium ordinarii exists. The ea res is the versum, the reason being, as is said above, that the liability only arises by the intervention of the ordinarius, and is therefore subject to the limitation attaching to other obligations established by him. It does not mean, as the glossators supposed¹, that the peculium vicarii, and therefore all liability on his contract, ended with the peculium ordinarii. Whether that endured after the death of the ordinarius depended on the action of dominus: if he left it, it was still peculium. All that is needed is that he does not take it away^{[999] [1000]. There seems no reason to think Africanus adopted the form ea res non est in peculio vicarii when he meant “ there is no peculium vicarii[1001].”}

The meagreness of the textual authority^{[1002] [1003] strongly suggests that these cases were rare, and it may be that the discussion is mainly academic. An impression of the same sort is left by the one text[1004] which deals with actio tributoria. It leaves so many practical points undecided that the general result is not very informing. If the trading was with the knowledge of dominus but not of ordinarius, there is a direct actio tributoria6. The effect is that debts due to the master come into tributio, but those to ordinarius do not, but are deducted in full, notwithstand­ing the rule that debts due to conservi come into tributio[1005]. If the ordinarius alone knew, the text says there is an actio de peculio ordi­narii, such that what is due from vicarius to dominus is deducted, but not what is due to the ordinarius. The text expressly contrasts this with actio tributoria, and this seems to imply that it is not itself such an action. But, as Erman remarks8, it is incredible that the whole peculium of ordinarius should be liable on such a contract, not of his making or authorisation. It would be to put the case on the same level as that in which the ordinarius has given iussum for the contract. The “ inelegantia ” of this is obvious. If it is tributoria, the fund available is the merx peculiaris vicarii, as in the direct actio tributoria, but the present one has the disadvantage of being liable to extinction by the cesser of peculium ordinarii from any cause, and, further, that debts due to dominus are deducted in solidum, while in the other they come}

сн. x] Actio Tributoria. Actio Institoria 247 into tributio. But as debts to ordinarius are probably commoner, and as to these the rule is reversed, this may be rather an advantage. The general result is more rational, and is not wholly excluded by the fact that the action is expressly contrasted with actio tributoria. Such an action cannot be, properly speaking, tributoria, since the negotium is not sciente eo cuius in potestate est, as the Edict requires¹. It can be only an actio utilis or ad exemplum tributoriae.

There is a still further difficulty. If both knew, we are told that the creditor has the choice of these two actions, sic tamen ut utrumque tribuatur. If this applies to both actions, it is difficult to see the mean­ing of the option, so long as there is any choice, (i.e. so long as peculium ordinarii subsists,) since the merx available is the same, the claims are the same, and the same debts are brought into tributio. If the words quoted apply only to the direct actio tributoria, as Erman seems to hold⁸, then this must always be the best, since the debts due to dominus would be deducted in solidum in the other. It is difficult to suppose, as Erman does, that the option is mentioned only with a view to symmetry. The option indeed suggests that the action which is not tributoria is the ordinary de peculio ordinarii, in which the fund would be different. We have seen above that this leads to an inadmissible result. It is difficult to avoid the impression that the whole thing is an uncon­sidered dealing, either by Ulpian or by Tribonian, with a topic which did not arise in practice, and that impression is strengthened by the omissions⁸.

If a vicarius acts as magister navis or institor for the dominus, the ordinary rules apply⁴, these actions having indeed no necessary con­nexion with the household relation. In relation to actio exercitoria, we are told that if vicarius exercet by authority of ordinarius, the dominus is liable de peculio ordinarii, a plain application of principle, and if ordinarius himself is exercitor without authority, and vicarius is his magister navis, the same result of course follows⁵. The only text deal­ing with the actio institoria in this connexion" deals with a vicarius who is hired from the ordinarius and made institor by the third party, in which capacity he sells to his own dominus. The text observes that this is a sale, for, though the master is not liable to his slave, yet he can possess pro emptore, and usucapt. The owner has institoria utilis against the hirer. Its utilis character may be due to the fact that the transaction was between a man and his own slave’. The remedy the

¹ Lenel, Ed. Perp. § 103. ² op. cit. pp. 489, 490..

⁸ Did ordinarius cany out the tributio ? He could not unless he had administratio peculii, since it involved alienation (ante, p. 201). If he did not, did the dominus? If so, it is, or may be, his dolus which bases the action, and the distinction between the two cases becomes unreal.

< 14. 1. 1. 22, in fin. ÂŽ 14.1. 1. 22, 23. ⁸ 14. 3.11. 8,12.

? In 14.1. 5, where D contracts with his own slave acting as magister navis for X, Paul avoids giving the action a name.

other way is, for analogous reasons, a little indirect¹. The vicarius has no right of action to cede to his principal. Accordingly the text gives the employer an actio de peculio ordinarii on the contract of hire of vicarius, and de peculio vicarii on the mandate to him to sell. It then adds: pretiumque quo emisti in rem tuam versum videri poterit eo quod debitor servi tui factus esses. Apparently Julian’s point is that as the contract was with his own slave it is not directly enforceable, so that in a sense the rights acquired by him under it are clear profit².

The law as to noxal liability for a vicarius is not quite clear. Afri­canus tells us’ that if a dominus has defended a vicarius noxally, and has paid the damages, and afterwards freed the ordinarius, cum peculio, he may deduct from the peculium of the vicarius what he paid, since it was pro capite vicarii, and so made him a debtor. If there is not enough in that peculium, he can deduct from the rest of the peculium of the ordinarius, but, in that case, only up to the value of the vicarius, this being all for which ordinarius could have been liable. This text leaves open the question whether the liability is limited to the peculium ordinarii. Any such limitation seems unfair to the injured person, and, on the view of them which we have taken, is in no way compelled by the relations between vicarius and dominus. Pomponius lays down the rule in accordance with this view of the matter. He says⁴ the dominus is liable either to pay in solidum or to surrender. It is the more surpris­ing to find that Paul takes, or seems to take, a contrary view. He is dealing with the case of a servus exercitor whose vicarius does damage, and he says’ that dominus is liable, ac si is exercitor liber et hic vicarius servus eius esset ut de peculio servi tui ad noxam dedere vicarium dam­neris, with a further remark that if your ordinarius was privy to the damnum, you are noxally liable on his account. The words, de peculio...ad noxam dedere, look doubtful, since they set up no alternative such as is usually found in noxal actions, and, instead, limit even the sur­render to what may be less than the value of the vicarius. Accordingly it has been proposed⁸ to read aut noxae dedere, which avoids that difficulty, explains the language of our text, and has some authority. But this leaves the contradiction absolute. If the text was written as it stands, by Paul, which is not certain⁷, it is not clear that there is a contradiction. The text is dealing with the actio in factum against exercitor for damage by persons employed on the ship⁸, which, as Lenel

¹ Lenel, who holds that the actio institoria was always utilis where institor was a slave (Ed. Perp. § 102), thinks the exceptional circumstances account not for the use of the word, but for its retention by the compilers.

⁹ For other explanations see von Tuhr, De in rem verso., 260 sqq. It may be noted that the text is another authority for direct actions on account of vicarius.

³ 33. 8.16. pt. < 15.1. 23. ⁵ 9. 4.19. 2. ⁶ See Mommsen's text.

⁷ The part we have considered is oddly expressed, and the final clause besides being corrupt mere repetition.

⁸ Ante, p. 122.

says¹, may not have had any special edict, but, in any case, makes the exercitor personally liable, and not merely indirectly and vicariously, as in the case of ordinary liability for slaves. That this distinction is real appears from the fact that though, if the wrong-doer is his own slave, he is released by noxal surrender, the jurist finds it necessary to justify this by special reasons², instead of letting it go as a matter of course. As the liability is personal to the exercitor, it is, of necessity, de peculio, if he is an unauthorised slave, for it is not a delict of his. And the power of noxal surrender, being a special privilege, could not increase his liability. Hence the duty of dominus is to pay de peculio or surrender.

II. Servus Filiifamilias.

Of this slave there is little to be said. So far as we are here con­cerned the servus castrensis peculii is the slave of his immediate master³. No doubt the same is true for servus quasi castrensis, but authority is lacking.

On the other hand, slaves of a peculium profectitium are in much the same position as vicarii. The few differences are indicated by Erman⁴, the most important one being that the various actions adiec- titiae qualitatis may be brought against the filiusfamilias. But here some difficulties arise. It is a matter on which the texts are absolutely silent, and the commentators have made it their own. There is a con­troversy, on which we will not enter, as to what actions could be brought against a filiusfamilias: it is clear that the solution affects the present question. Thus it is said that no action attributing property could be brought against a filiusfamilias. Hence the actions which rest on com­mand or authorisation, such as quod iussu, exercitoria, institoria, would be available, while de peculio and tributoria were not, and must be brought against the pater. This leads to the odd result’, that a filius­familias might be sued de peculio for what he had fraudulently removed from the peculium, but though the action was the same, the iudex must ignore what is still in the peculium. This seems most unlikely, and indeed there is nothing in these edicts, so far as they are known, requiring dominium of the peculium in the defendant. On the other hand there is in the actiones quod iussu, de peculio, de in rem verso, and tributoria a requirement that defendant have potestas over the slave⁶.

¹ op. cit. § 78. ' '

² 4. 9. 7. 4. And it explains the language of our text. Cp. 47. 5.1. 5. In simple delict the personality of the ordinanus would not appear at all.

³ For the texts, Erman, op. cit. 518 sqq. ⁴ loc. cit.

⁵ Erman accepts it, op. cit. 521.

⁶ Lend, Ed. Perp, ad haec. The difficulties would be readily met by actiones utiles, but we have no information. Whether, on condemnation, he could pay ex peculio without administrate is disputed. See the authors cited, Erman, op. cit. 522. There is no evidence.

There is another case in which texts are equally lacking, and are much to be desired, since it is one which calls for clear distinctions. It is that of servus bonorum adventitiorum, of materna bona and the like. We are left in the dark. The fact is not surprising since the whole institution is post-classical. According to the main statutes which governed the matter up to the time of Justinian¹, the father had for the time being, a usufruct, but such that he could neither alienate nor pledge^{[1006] [1007] the property, but must, on the other hand, bring and defend all actions, and, generally, administer as if he were full dominus. This state of things is very anomalous[1008], and we cannot tell what it may have meant in our subject. Justinian legislates on the matter with amazing verbosity[1009] [1010], but he does not help us much. He gives the father certain powers of alienation, in case of need, and emphasises his independence in his administration: he is not to be interfered with in any way by the son. It is clear that he is in a very different position from that of an ordinary usufructuary: it seems likely that he is for all legal purposes owner, subject to such express restrictions as are placed on his powers, and to a general duty to account to the son.}

III. Servus in bonis.

This case could not occur under Justinian, and accordingly is not discussed in his compilations, our chief source of information. We have therefore no details as to these slaves. Broadly, the nudum ius quiri­tium counted for nothing, except for tutela. The lex lunia^[1011] expressly enacts that the tutor of a latinus impubes manumissus shall be he who had ius quiritium before the manumissio, so that tutela legitima and right to bona would be separated. All that a slave so held acquired he acquired to his owner in bonis¹¹. The quiritary owner could not free him^[1012]. On the other hand the bonitary owner could not make him a necessarius heres, because the manumission would make him only a Latin, and Latins could not take inheritances^{[1013] [1014]. Perhaps he could be instituted as a servus alienus could, and then if the ownership had ripened, he would be necessarius heres. If he were instituted with other heirs it seems that he would become a Latin, if, and when, some other heir entered2}

IV. Serves Latini.

This case could not occur under Justinian, and we have little infor­mation. Latins of all kinds had commercium, so that over a large field the ordinary law applies. Colonary Latins could make wills, and thus what was said of the last case applies to a certain extent here. Junian Latins could not make wills, and thus that class of question could not arise in connexion with them. The slave of a colonary Latin could acquire legacies and inheritances for his master: those of a Junian Latin could not, though the legacy or institution was not void but depended on the acquisition of citizenship by the Latin, before it was too late to claim¹. This at least seems the natural inference from the texts dealing with gifts to the Latin himself“.

V. Serves Peregrine

Though foreigners were still peregrines, it is practically true to say that, for legal purposes, the class of peregrines had ceased to exist under the law of Justinian. Here too we know but little. A peregrine had no commercium. Thus a slave could not acquire for him by manci­patio, or by direct testamentary gift⁸. Manumission could make him no more than a peregrine. Subject to such absolute restrictions as that a slave could not take part in any judicial proceeding, or in witnessing a will, he could do by derivation from the peregrine any commercial act that the peregrine could himself do. As a peregrine could himself sue or be sued⁴, on the fiction that he was a civis, it may be assumed that noxal actions were possible by means of analogous contrivances. Mutatis mutandis the same may be said of the actions de peculio etc.