CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.

The liability is in a sense not of the master but of the peculium*. Though, in view of legacies of it, the term peculium must have already had a legal meaning, there can be no doubt that the introduction of this action gave precision to the conception, since the liability is based on the existence and independence of the peculium. The practical meaning of this proposition is that it is essential to the claim that there be a peculium·. if there be none there is no action’. It does not depend on voluntas domini, and thus it is not barred by the master’s prohibition to trade^[864], or by the fact that he is a pupillus^[865]. On the other hand, if there is a peculium, the fact that, at the moment, nihil est in peculio, does not bar the action: all that is necessary is that there be something at the time of judgment^[866]. Other results of the view that it is a liability dependent on the peculium may be noted. A fideiussor for a dominus

208 Actio de Peculio: Nature of the liability [pt.

on a liability de peculio was liable only de peculio¹. A dominus who handed over the peculium, without fraud or delay, was entitled to release from a pending actio de peculio². But this view of the liability was attained, like most juristic developments, only gradually. Thus a text on interrogation has evidently been handled by the compilers, and that on the liability, though there be nothing in the peculium*, records a doubt. We are told⁶ that a creditor de peculio cannot get missio in possessionem rei servandae causa, if there is nothing in the peculium, where a dominus latitat, since he cannot be doing so fraudulently as, if the action were tried, he would be entitled to absolution. The case is compared with that of a debtor sub conditions, as to whom the same rule is laid down, though he may be afterwards condemned, iniuria iudicis. This parallel of Papinian’s seems to ignore the rule that the actio de peculio lies though there is nothing in peculio : it puts on the same level two cases, in one of which the condemnation is lawful, while in the other it is not. The true rule, at least for later law, is that laid down by Ulpian⁶, which allows missio in such a case, precisely because the question whether there is anything in peculio is material only at judgment.

The liability of the master is distinct from the dbligatio naturalis of the slave himself⁷. Hence arises an important distinction. Apart from questions of fraud, and the like, any transaction of the slave might impose an dbligatio naturalis on him⁸, but it was not every transaction, by which a slave purported to bind himself, that imposed an obligatio de peculio on his master. This fact leads some writers to hold that the whole theory of the liability of the master rests on representation of him by the slave. But the texts do not justify this view. A liability which arises, as we have seen, even though this transaction or all trans­actions were prohibited, can hardly be regarded as representative⁹.

¹ 46. 1. 35. 2 10. 3. 9. 8 11.1. 9. 8. See p. 207, n. 7.

¹ 15. 1. 30. pr.; cp. 34. 3. 5. 2. ⁶ 15. 1. 50. pr.

⁶ 42. 4. 7.15; cp. 15. 1. SO.pr.; 34. 3. 5. 2. Similar questions arise as to the consumptio of the naturalis obligatio by litis contestatio in this action. Post, Ch. xxix.

⁷ 15. 1. 50. 2. s post, Ch. xxix. » See Pernice, Labeo, 1.125,129.

¹⁰ Papinian reflects this way of thought: verius et utilius videtur Praetorem de huiusmodi contractibus non cogitasse, 17. 1. 54. pr.

ch. ix] Nature of transaction giving Actio de Peculio 209

The transaction giving rise to the actio de peculio must be a negotium¹: this action is not the proper remedy for a delict. If a slave inhabits a house from which something is thrown, there is no actio de peculio, though, unless the throwing is by the slave himself, there is no noxal action either². But this must be looked at carefully. A delict may give rise to a liability apart from that ex delicto, and this, if it is contractual or quasi-contractual⁸, gives an actio de peculio*·. It is held by Mandry' that the contractual or quasi-contractual character of the obligation constitutes the test of the possibility of the actio de peculio. He discusses several apparent exceptions and shews that they have no bearing on the law of this action⁶.

In these cases, where this action is given, but there is no contract, or the like, between the parties, there is a further limitation to the extent to which the defendant dominus has benefited¹⁰. This is, as Mandry shews¹¹, a mere application of a general rule applicable to all cases in which A is liable to make restitution · on what is, in essence, a delict, not his own. It is however immaterial whether the enrichment be to the patrimony or to the peculium™.

If the liability arises out of a negotium, the fact that it involves a delict does not of itself exclude the actio de peculio, and thus similar facts may give rise to actio noxalis, or de peculio, according to circum­stances. Thus an actio doli, servi nomine, will be de peculio if the relation in which it arises is one which gives rise to that action, while if the transaction is such as gives rise to a noxal action, the actio doli will itself be noxal¹⁸.

¹ 15.1.1. 2. ’ 9. 3. 1. 8, ante, p. 100. ⁸ Mandry, op. cit. 2. 234 egg.

* For slaves the chief case is condictio furtiva, 13.1. 4,19; 15.1. 3.12 ; 19.1. 30. pr. As to its quasi-contractual nature, Monro, De furtis, App.

6 loc. cit. « 4. 2. 16. 1; 43. 16. 16. ’ 42.8.6.12.

⁸ Mandry, loc. cit., gives another explanation.

⁸ 38. 5.1. 22. Mandry does not discuss this text in this connexion.

io See n. 4. n op. cit. 2. 239 egg. “ 15.1. 3.12; 19.1. 30. pr.

1» 4. 3. 9. 4. As to this text see ante, p. 118. Further illustration, 4. 9. 3. 3; 47.2. 42. pr. Ante, p. 100.

210 Nature of transaction giving Actio de Peculio [pt. i

Some cases give rise to an alternative between our action and noxal surrender, on principles which are not altogether clear. Ulpian¹ cites Pomponius as saying that the action in factum against a mensor is, in the case of his slave, magis noxalis, although the actio de peculio is also available. This seems to be a compromise due to the doubtful nature of the relation between the mensor and other party, the former being an official, at least in later law, and the relation being not strictly contractual, since the mensor is not civilly liable, and there is no locatio*. Misconduct is in essence delictal, since the action lies only for fraud’. It is to be noted that the text gives the choice to the injured party. In another case in which a slave drcumscripsit a minor and Praetorian restitutio in integrum is claimed, Pomponius says* that the dominus must give back what he received and, ex peculio, anything more. If this does not satisfy the claim and the slave was guilty of dolus he must be flogged or surrendered. This last clause has rather the look of an addition by the compilers. The case is one of a negotium and thus would give an actio de peculio but for the fact that the remedy is not an actio at all, but a praetorian cognition The essence of restitutio is that each party is to be restored to his original position’, and the jurist’s rule arrives at this, so far as it is consistent with the overriding principle that a slave is not to make his master’s position worse⁷.

Pomponius mentions a case⁸ in which a slave of the heres steals a res legata, and sells it, and he gives the opinion of Atilicinus that there is an actio in factum against the master, claiming either noxal surrender or payment, ex peculio, of what has been received on the sale. Here the theft was before entry, otherwise the legatee would have had actio furti noxalis and condictio furtiva de peculio. The mention of sale is made to exclude the possibility of any contrectation after entry’. There is thus no actio furti or condictio furtiva, since the legatee is not owner, and it is a res hereditaria™. At the time of the theft there is no contractual or quasi-contractual relation between the legatee and the heir or the slave, so that there is no actio de peculio. There is no crimen expilatae hereditatis, since the injured person is not the heresⁿ. The decision is thus a juristic expedient, not very logical, to provide for a casus omissus in the law of expilatio : it gives the legatee the same compensation, apart from delict, as he would have had had he been owner, subject to the further restriction, due to the delictal air of the facts, that the master is not to be liable beyond the value of the slave¹â€™.

¹ 11. 6. 3. 6. ⁹ Though a wage be paid, 11. 6.1.

8 lb. for its return, as if it had been a deposit, on the death of the slave, the point being that he knew there could be no real dos. The money was recoverable by actio depositi de peculio, by the daughter, who was her father’s heir⁴. This is pure contract, but where a freewoman married a slave thinking him free she could condict the dos, de peculio¹. The dominus is liable to refund, de peculio, what the slave has won in a gambling house: it is not noxal, quia ex negotio gesto agitur*.

Any ordinary negotium gives the action⁷, but it must be a negotium of the slave. This is illustrated in many texts* and expressly laid down in the Edict, in the words: quod cum eo qui in alterius potestate, esset negotium gestum erit*.

In genera] the obligation is what that of the slave would be, if he were a freeman¹⁰, and thus¹¹ it is affected by his acts after the making of the bargain. This would follow from the ordinarily accepted formula of the action, which expresses the obligation as that of the subordinate¹*, and this seems a sufficient basis, itself resting on the Edict. But Mandry, observing that the same character recurs in other accessory obligations where the formula is not so expressed, prefers to rest it on the accessory nature of the obligation¹*, the dominus being in fact a defensor, whose obligation is necessarily the same as that of the principal debtor. As, however, the slave cannot be attacked in any way it is difficult to see defensio, and Mandry¹⁴ finds defensio not of the slave, but of the negotium. But this is fanciful¹*. The obligation starts from the arising quasi-contractual relation: hence a further limitation to thepeculium, as a slave may not make his master’s position worse.

^I 15. 1. 1. 4. ³ C. 4. 26.11. Cp. 15. 1. 1. 8, 27. pr.; Mandry, op. cit. 1. 846 sqq.

• Negotiorum gestio by a slave, or, in re peculiars, for a slave, 8. 5.5.8; P. 1. 4.5. A slave acting as tutor, 27. 5.1. 2; 15.1. 52. pr., as to which case,post, p. 217.

< 16. 8. 27. ® C. 5. 18. 8. ⁸ 11. 5. 4. 1.

⁷ Sale, 21. 1. 28. 4, 57.1*, 21. 2. 89. 1; 42. 8. 6.12. Locatio, 14.8.12; 19.2.60. 7. Deposit, 15. 1. 5. pr.; 16. 8. 1. 17, 42. Commodatum, 18. 6. 8. 4. Mutuum, 4. 8. 20; 15. 1. 50. 8; In. 4. 7. 4. (C. 4. 26. 18 negatives only quod iussu, on the facts. Haenel, Dissens. Dom. 198.) Constitutum by slave, 13. 5.1. 8 (as to constitutum by master, 18. 5.19. 2). Pledge or precarium to him, 15.1. 5.1, 86; 43.26.18. Societas, 16. 2. 9. pr. Contract by slave exereitor, 4. 9. 7. 6; 14. 1.1. 20.

⁸ 18. 6. 21.1; 47. 2. 54.1, where there would be no difficulty if de peculio were available. See also ante, p. 207.

» 15.1. 1. 2; In. 4. 7, Rub. ¹⁰ 15.1.1. 4; 19.1. 24. 2.

^II op. cit. 2. 303 sqq. He illustrates by cases of dolus (4. 3. 9. 4; 18. 6. 8. 5; 16. 8.1. 42), culpa (47. 2. 14.10, 52. 9), mora (22.1. 82. 8 ; 45.1. 49), and destruction of the thing (45.1. 91.5).

» Post, App. n. ¹⁸ 45.1. 91. 4, 5. ¹⁴ op. cit. 2.277.

¹⁶ And it cannot be reconciled with the limitation to the peculium.

212 Nature of the liability de Peculio [pt. i words of the Edict and its nature is determined thereby. That the Praetor was guided by the idea of defensio is unlikely: he saw that the better class of men honoured the contracts of their slaves by allowing them to fulfil them ex peculio, and he voiced popular morality by enforcing this as a legal duty¹.

Logically, acts of the dominus ought to be immaterial to the obligation de peculio. There is no authority in the case of slaves. In the case of sons the rule is so expressed, and there are evidences of an attempt to get rid of the injustice which must result, if the act of the dominus was in any way wrongful². But as the son is liable to an action, the conditions are different from those in the case of a slave. No doubt in an appropriate case there would be an actio doli³. For mora, causing discharge of the obligation, the actio utilis would suffice⁴, and there seems no reason for imposing any liability at all in respect of culpa³. The case of father and son is one of solidary obligation: two are liable for the same debt. As it is primarily the debt of the son, the father’s liability is accessory, akin to surety⁶. But the slave is not liable to action: the master is not answerable for another’s debt: there is no solidarity. No doubt the principles in one case may react on the other, but it is doubtful if the conception of solidarity is of any help in this con­nexion⁷.

The action lies, generally speaking, on any contract of the slave: it need not have been in any close relation to the peculium, and on the other hand it need not have had any reference to the do-minus³. This follows indeed from the usually adopted formulation of the action, according to which the master is liable, so far as the peculium will go, to the extent to which the slave would have been liable, if he had been free. With this agree the rule that prohibition of this, or all contract, by the dominus does not bar the action⁹, and the rules as to liability of the alienee, ex ante gestis™. It would seem also to lead to a liability de peculio on contracts made before there was a peculium, since in that case too the slave if free would have been liable. On the other hand the conception of the liability, as based on the creation of a peculium, is

¹ Cp. the discussion in connexion with noxal actions, ante, p. 113. No doubt defeneio is one of the analogies present to the minds of the Jurists who interpret the Edict.

² An actio utilis is given against him where his mora has allowed the obligation to be discharged, e.g. by destruction of the thing due (45. 1. 49. pr.), and there is analogy for restitutio actionis, 46. 3. 38. 4. Fully discussed by Mandry, op. cit. 2. 305 sag.

^e Arg. 4. 3.18. 5—20. ⁴ See n. 2; 45.1. 49. pr.

⁶ M. holds that there was a remedy here too but the texts do not near this out, op. cit. 2.309 eg. As to dolus in relation to the fund available,post, p. 218, and as to another special case,post, p. 219.

6 Machelard, Obi. Solid. 416; Van Wetter, Obligations, 1.260eg^,y.; Mandry, op. cit. 2.288вод. The point is important in relation to release of one by act of the other.

7 A slave with authority, but not without, could discharge a debt by payment {ante, p. 159) and a slave could take an acceptilatio {ante, p. 155). His pact, ne peteretur, whether in rem or in the name of dominus was a good defence to an actio de peculio (2. 14. 17. 7, 18, 21. 5). And with authority he could delegare debitorem, 15. 1. 48. 1. As to novation of his liability, see post, p. 216.

8 3. 5. 5. 8,13; 15.1. 27.8. 9 15.1. 29.1, 47. pr. w Post, p. 229.

ch. ix] Actio de Peculio ex ante gestis 213

somewhat opposed to this. Only three texts¹ seem to raise the point. One says’ that an adrogator is liable de peculio qua/mvis Sabinus et Cassius etc ante gesto de peculio actionem dandam non esse existimant. If this refers to contracts by the adrogatus it is conclusive for later law, since a dvis sui iuris cannot have a peculium. But it is in direct conflict with the Edict on the matter, which runs: Quod cum eo qui in alterius potestate esset negotium gestum erit³. This would not cover the case of the adrogatus, and the opposition of Sabinus would have rested on more definite grounds. Moreover, one would have expected an analogous rule in the case of a freeman enslaved, t.e. that there was a general liability de peculio. But what we do find, and we find it in the case of adrogatus too, is that the new dominus or pater is liable to the extent of the bona he receives, and there is no word of actio de peculio*. It appears then that the rule laid down and opposed by Sabinus and Cassius is that if the adrogatus had a slave the adrogator is liable de peculio on his contracts made before the adrogation. This is the rule of the Digest for all cases of alienation, but understood in this sense the text says nothing as to the need of a peculium at the time the contract was made. In another text a slave living as a freeman acts as tutor⁶: there is no actio depeculio. But this text is so obscure as to be quite inconclusive⁹. The third⁷ contemplates a debt from a fellow-slave who acquires a peculium only after the negotiwm. But the words vel prout habebit are probably an addition by the compilers. On the whole it seems probable, though far from certain, that in view of the form of the Edict, coupled with the fact that there is no text throwing doubt on the inference from it, there need not have been any peculium at the time of the negotium³. If this is so, it must follow that there need be no knowledge that there is a peculium. This is indeed clear on other grounds. For though there are several texts which speak of the creditor as contracting in view of the peculium¹¹, there are others the facts of which are such as to exclude this knowledge, and this is not made an objection¹⁰. And it is impossible to apply the notion of reliance on the peculium to the case of condictio furtiva¹¹.

There remains another difficulty to be met in deducing the rules of this action from the words of the Edict. These would lead to the

¹ In 15.1. 47. pr., sometimes cited, there is nothing to shew that the slave had no peculium. a 15.1. 42. ⁸ 15.1.1. 2.

⁴ Post, Ch. xvin. But Mandry understands the text in this sense. Op. cit. 2. 133.

⁶ 15.1. 52. pr. ⁰ See post, p. 217, and for a different view, Pothier ad h, I.

⁷ 15.1. 7. 7.

⁸ See also 15.1. 27. 2, cit. Mandry, loc. cit. In 15. 1. 27. 8 Julian may seem to contradict this. But his meaning, as appears from 34. 3. 5. 2, is merely that even if a man cannot recover what he has paid in excess ot peculium, it does not follow that a co-owner can so pay and charge it against him. Seep. 217.

» 15.1.19.1, 32. pr. w 15.1. 3. 8, 38. pr.

u Or where the action is given, nomine jilii, on iudicatwn on a claim not enforceable by actio de peculio, 15.1. 3.11. As to 2.14. 30. l,post, p. 216. 214 Restrictions on Scope of Actio de Peculio [pt. i allowance of the action in every case which satisfied the foregoing conditions, but it is clear that in many cases, in most of which the slave’s intervention is essentially donandi animo, the action is refused, the cases closely approximating to those which were not covered by a grant of administratio. The exclusion is a piece of juristic work, resting for the most part on grounds of equity, not in all cases the same. It was reasonable to protect the master from liability for what were in effect gifts, but it was clear to the lawyers that the Edict did not always protect where protection was needed and a way out was found in such phrases as verius...videtur praetorem de huiusmodi contractibus servorum non cogitasse^[867]. Other exclusions may be explained as turning on the point that there must be an actual negotium, and thus if what is done is a nullity, if done by a slave, there is no actio de peculio, even though it would have been valid if done by a freeman. The chief cases are the following:

(a) Transactions involving alienation. The slave’s act is void unless it was in some way authorised, and thus the subsidiary rights, such as the actio de peculio, will not arise. Thus the action does not lie on unauthorised pledge or precarium by a slave®.

(b) Judicial and quasi-judicial proceedings. As a slave cannot take part in such matters³, he cannot consent to a reference; any decision on it is null and gives no actio de peculio. That this is due to the procedural aspect of the matter appears from the fact that, even though the decision is the other way, the master acquires no right⁴. A similar point arises in connexion with the offer of an oath to the adversary. Either party may, during the procedure, with certain pre­liminaries, offer an oath to the other party, who will lose the action unless he either takes the oath or offers it back,—relatio iurisiurandi. This is called iusiurandum necessarium and a slave can have no part in it³. But, before litigation, either party can offer an oath to the other, who may take it or leave it, but cannot offer it back in any binding way. If taken, it gives either exceptio iurisiurandi, or as the case may be, an action in which the issue is only the taking of the oath. This is iusiurandum voluntarium. As it is extra-judicial, there is no clear reason why it cannot be taken or offered by a slave. But it is similar to the other in effect: it is described as being almost equivalent to res iudicata^[868], and there may therefore be doubt as to whether a slave can take any part in it. It is clear, however, that if a slave takes such an oath, the master has the benefit, so that no procedural objection is felt⁷. Ulpian however holds that if he offer ch. ix] Restrictions on Scope of Actio de Peculio 215 an oath and it is sworn there is no actio de peculio, as there would be in the case of a son¹. If the money is not due it is in effect a gift. Pau] hints doubtfully at a contrary view. Quidam et de peculio actionem dandam in dominum si actori detulerat serous iusiurandwm. eadem de filiofamilias dicenda erunt¹. This, being merely obligatory, would not depend on administratio. Again he says: Serous quod detulit vel iuravit servetur, si peculii administrationem hdbuit^{[869] [870] [871]. The way in which the text is continued from Gaius suggests that Paul did not write it as it stands. There can be no doubt that Ulpian’s is the rational view[872] [873].}

(c) Promises by slaves. There is difficulty in this case, since texts dealing with such promissiones are few. But so far as primary obliga­tions are concerned (i.e. apart from surety and expromissio) there are several texts which shew that they can be made by slaves, so as to give an actio de peculio³, subject to the ordinary restrictions on stipulation^[874]. As they have a power derived from the dominus they can even promise in the form: Spondeo^[875], but as their sponsis is void at civil law and gives only a praetorian right of action it is doubted by Gaius^[876] whether it can be guaranteed by sponsor or fidepromissor. But from what has been seen in the case of alienations, and will shortly be seen in the case of surety, it is likely that a promise by a slave made gratuitously, or donandi animo, is simply void^{[877] [878] [879], though this is not expressly stated.}

(d) Surety and the like. In the case of fideiussio, by the slave, the rule is simple: the transaction creates liability de peculio, only if it is in re domini or peculiari^{[880] [881], not if it is given in a matter in which neither he nor dominus has any interest. There must be a iusta causa interoeniendi11. So also in the case of mandate operating as surety. Any ordinary mandate gives actio de peculio[882]. But, in mandatum qualification, there will be actio mandati de peculio if the transaction affects the peculium'3, but not for an independent voluntary act of surety11.}

The same principle applies to expromissio—a promise by the slave to pay the debt of a third person. This is valid and gives actio de peculio, if there is.a iusta causa interveniendi^a—otherwise it is a mere nullity. But in no case can it produce the usual effect of expromissio: it can never novate the existing debt*. This is because the slave’s promise is at civil law no more than a mere pact: it is not a contract verbis, such as novation requires ’, and though it gives an actio de peculio, this is because it would have been a contract verbis if he had been free^{[883] [884] [885]. Sabinus[886] [887] seems to have held that the form of words was the material point, and that if they were gone through with a slave, novandi animo, the old obligation was ended, whether a new one was created or not. But the other is clearly the better view. However, though it does not novate, it is at least a pact, giving an exceptio pacti conventi, if the circumstances are such that an actio de peculio is available, since the creditor evidently means to accept this liability instead of that of the debtor6. The text adds that the plea is not allowed if he thought the slave free, but this is not because there is no actio de peculio, for there may be3, but because his agreement contemplated a liability in full and this he has not got.}

(e) Slave’s mandate to third person to buy him. Papinian⁷ tells us that a slave’s unauthorised mandate, for this purpose, is null, and gives no actio de peculio. The reason is that the Praetor cannot be supposed to have contemplated contracts of this kind quo se ipsi mala rations dominis auferrent. Diocletian⁸ gives a different reason for the rule. He says that it cannot be good ex persona servi, since, if he were free, his mandate to buy him would be null, nor ex persona domini, since a man’s mandate to buy what is his already is bad. Nevertheless, he observes, the resulting sale will be good, and will give the master a right of action, thus presumably subjecting him to de peculio. But he is clearly contemplating an underlying purpose of manumission, in connexion with which topic, these texts belong to a group which give great trouble’. Ulpian cites Pomponius¹⁰ as discussing the effect of a mandate to buy himself on the understanding that he is to be re­purchased. He lays it down that the sale is good if it takes place, but that no action will lie on the mandate to secure either the sale or the repurchase: as to the last case he says: esse iniquissimum ex facto servi mei cogi me servum redpere quern in perpetuum alienari volueram.

There are a few texts which suggest that a master is not liable de peculio on the contracts of a fugitive who is acting as a free man. The rule would presumably be juristic—based on such considerations

ch. ix] Naturalis Obligatio of the Slave 217

as exclude the action in the class of cases last discussed¹. But in fact the rule can hardly be so. It is clear that the owner acquires through such slaves², and the observation, aequum Praetori visum est sicut com­moda sentimus....ita etiam obligari, seems to require the liability. In one text liability de peculio is clearly contemplated on such facts³. The unfavourable texts can be otherwise explained. One has just been considered⁴. In another the action would have been refused in any case: the apparent freedom is mentioned only to explain the events⁶. In the third the action is not refused, but declared useless because on the facts there is nihil in peculio⁰.

It must be borne in mind that the Edictal liability of the master is distinct from the “ natural ” liability of the slave. Many circumstances might end the one without affecting the other⁷. Thus we are told that a surety may be validly taken for the slave’s obligation, after an actio de peculio has been begun against the master, since the naturalis obligatio has not been put in issue⁸. These points will recur later⁹. Here it must be noted that, though distinct, they have the same object, and that thus, as in solidary obligations, discharge of one will destroy the other, if it amount to real or fictitious satisfaction. Thus acceptilatio to a slave bars the actio de peculio¹⁰. We are told by Ulpian that payment by the master in excess of the peculium cannot be re­covered¹¹. The reason of this is not clear¹². It may be said that, as the limitation, de peculio, is placed, as is commonly held¹³, not in the intentio but in the condemnatio, the master’s obligation covers the whole debt, and thus it cannot be said that the money was not due. But the Edict expresses the limitation to the peculium. The point may be that there is an actual pending action, in which the obligation is stated generally, as we have said, and thus it cannot be said not to be due¹⁴. Although the action is essentially one in which the liability is limited to the peculium, the actual loss may in fact exceed this. Thus if the dominus sues on the transaction the defendant may set off a claim in full, though any action by him would have been limited to the peculium¹⁰. So, if a slave has bought, the dominus, if he wishes to redhibit, must give back all

¹ The fact that the peculium is not relied on is immaterial. ² 46. 3. 19, 34. 5.

8 14. 3.1. pr., 2. 8. 8. 2. * 2. 14. 30. 1. * 15. 1. 3. 8. Ante, p. 214.

⁶ 15. 1. 52. pr. Ante, pp. 211, 213. Cp. 27. 5. 1. 2. 7 Post, Ch. xxix.

8 15. 1. 50. 2. ² post, Ch. xxix. « 46. 4. 11. 1. ¹¹ 12. 6.11.

¹² Machelard, op. cit. 286, sets it down to the natural obligation of a father to pay his son’s debts. But it is not confined to sons, and there is no obvious natural obligation to pay a debt the contracting of which may have been prohibited.

¹³ Post, App. n.

¹⁴ 15. 1. 47. 2 marks off de peculio from another case, precisely because in the latter, the debtor universum debet, though it speaks of all as due even here. Vangerow, Pand. § 625, treats the rule of 12. 6. 11 as an application of the rule that if the money is due, it cannot be recovered, though it be paid by the wrong person (12. 6. 44) if it is paid in satisfaction of that debt. He assumes that it was paid on account of the slave’s liability, which is inconsistent with the words per imprudentiam. In 34. 3. 5. 2 where Julian forbids recovery, Ulpian and Marcellus allow it, the money not being due. Here there is no pending action. See p. 213.

w 16. 2. 9.pr.

accessories in solidum, and he cannot sue ex empto without having paid the price¹. Thus the dominus cannot benefit by bringing his action when there is nothing in the peculium.

More important are the imputations to the peculium on account of dolus. The Edict contains an express provision² that the liability is to cover not only the actual peculium, but also anything which would have been in the peculium but for the dolus of the defendant. Such dolus may take various forms³. But payment to another creditor is not dolus, as the principle of the action is that there are no priorities⁴. It need not be the master’s own fraud: it is enough if it be that of his tutor, curator or procurator, but here the liability is limited to what he has received, and is made dependent on the solvency of the tutor⁵. The rule is Ulpian’s. Elsewhere he lays down a similar rule without special reference to this action, but there he does not require solvency of the tutor, and does require actual enrichment of the pupil⁶. Thus the rule is that he is liable so far as he is enriched, and, even though what he has received has not enriched him⁷, if the tutor is solvent so that he can recover from him. The act must have been done fraudulently, i.e. with knowledge that it was detrimental to persons who were likely to claim: for this purpose, knowledge that there is a debt is enough⁸.

The effect is not to make the act done void: the thing is not in peculio, but its value peculio imputatur*. As such an imputation is made only if the creditor’s claim cannot otherwise be met, the same money cannot be imputed twice, having been in fact paid away¹⁰.

As dolus is a delict, this imputation has a delictal character, and is therefore subject to the limit that it cannot be made more than an annus utilis after the right arose¹¹. It is curious to find this rule in what is essentially a contractual action¹². But in fact the dolus has nothing to do with the obligation. It is not mentioned or involved in the intentio, which expresses a liability to pay a certain debt. There are subsidiary instructions to the iudex as to the fund available, and this includes property obtained by dolus. It is a natural analogy, and no more, to limit the claim in the way in which it would be limited, if this money were the direct object of the action¹³.

I 21. 1. Sl.pr. « 15. 2. l.jw. Lenel, Ed. Perp. §104. 1.

³ e.g. adeeming the peculium or part, conniving at the slave’s so dealing with the peculium as to damage the prospects of creditors, destroying the property or putting it to non*peculiar uses, or any similar act by which the fund is lessened, 15. 1. 9. 4, 21. pr.; 15. 3.19.

* 15. 1. 21. pr.

³ 15.1. 21. 1, 2. The same rule is applied to the dolus of anyone under whom he holds.

« 4. 3. 15; 44. 4. 4. 23. 1 Ante, p. 178.

⁸ 15. 1. 21. pr. ⁹ 15. 1. 21. pr. See Mandry, op. cit. 2. 403.

¹⁰ 15.1. 26. So if instead of being paid to a creditor, it is set off against claims from the slave, u 15. 1. 30. 6. 12 Mandry, op. cit. 2. 404..

¹⁸ As the amount of the peculium is not in issue, litis contestatio in no way fixes it: the iudex must take into account dolus after that date, 15.1. 21. 2.

These rules raise the question what is to happen if the dominus convert property ex peculio to his own use, sine dole malo. The answer to this question takes us back to the actio de in rem verso. In the later state of the law there can be no doubt that, in such a case, the actio perpet/ua de in rem verso w&s available. We are so told in one text¹, and the case in which there had been such a conversion of res from the peculium is that discussed in the text immediately following²: Si plures agant de peculio, proficere hoc ei cuius pecunia in rem versa est debet, ut ipse uberiorem actionem habeat. This is consistent with the conception of the actio de in rem verso which we have adopted, though not with others discussed. We are told indeed in one text that ademptio is not a versio“. But on the broad meaning given to the notion of dolus, it is clear that dolose ademption was the normal case. It is dolose ademption which is here in view, as in another text which says: dolum malum acdpere debemus si ademit peculium*. There is involved in this matter a historical development⁶. At one time, before the imputation for dolus was introduced, and before debts to the slave were included in the peculium, the actio de in rem verso lay in all cases of ademptio and the like, being indeed a very necessary supplement to the rather ineffective actio de peculio. The successive introduction of these two extensions of the “ peculiar ” claim improved the position of the ordinary creditor de peculio, at the possible cost of the creditor de in rem verso, from whom specific things had been received. At that stage the utility of de in rem verso is confined to the rare case of ademptio sine dolo malo“, and that of expiration of the actio de peculio, so that it became possible to doubt, as it was doubted, according to Ulpian, whether the actio de in rem verso 'ftsjs, of much use⁷.

There exists, in certain cases, a still further liability for dolus of the dominus. Ulpian tells us⁸ that where dos has been paid to a son, and actio de peculio is brought there is a liability, si quid dolo malo patris capta fraudataque est mulier, as when, having the property, he will not restore it. He cites Pomponius as saying that this was expressed in the case of pledge, and applies equally to all bonae fidei indicia,“. So stated this looks like a sweeping exception to the rule that dolus of the dominus (apart from dolose withdrawal) is immaterial¹⁰. But it is shewn by

¹ 15. 3.1. 1. ’ 15. 3. 1. 2. » 15. 3. 5. 3.

⁴ 15. 1. 21. pr. Mandry, op. cit. 2. 402.

⁸ Ante, p. 185. « See 15. 3. 14.

⁷ 15. 3. 1. 1. As to date of introduction of these two factors, there is no certainty. The dolus clause is likely to be the older, as involving a less abstract conception, as not involving natural right or obligation in the slave, as being expressed in the Edict, and as having been known to the Augustan jurists. The inclusion of debts cannot be traced earlier than Pomponius,

15.1. 4.1, 21. pr., 49. 2; 15. 3.1.1. See Von Tuhr, Actio de in rem verso, 275.

⁸ 15.1. 36.

⁹ Other texts: deposit, 15.1. 5.pr.; 16.3.1.42; 2. 13.4.3; Commodatum, Pledge, 13. 6. 3.5; Dos, 15.1. 36. See post, p. 224.

1® Ante, p. 212.

220 Debts to Peculium added to Fund [pt. i

Lenel that the citation from Pomponius referred originally to fiducia, in the formula of which action he finds other evidence of the existence of such a clause¹. Its utility here was plain, since the dominus would be owner of the thing. It was carried over, naturally, to pignus, and thence by juristic interpretation to other bonae fidei actions in which restitution was desired. Here it was not so necessary since the injured party could vindicate the thing, or bring the actio ad exhibendum. This indeed is what Africanus tells him to do². Apart from fiducia the liability is not expressed in the formula: it results from juristic interpretation³. Thus, notwithstanding the general words of the main text⁴, it applies only to dolus taking the form of non-restitution, and only to the actions in which that point arises⁶.

We have seen that the peculium may consist not only of peculiares res, but also of debts to it⁶. It must be noted that these are not merely imputed to the peculium for the purpose of the actio de peculio, but are an integral part of it⁷, and thus are, e.g., included in a legacy of it⁸. Such debts may be either from outsiders or from the dominus himself. Claims against outsiders, on delict, contract or any other causa, are in the peculium⁶, but not necessarily at their face value: allowance is to be made for cost of recovery and risk¹⁰. Debts from the master, on contract and quasi-contract, are in the peculium unless the master has decided that they shall not be. For, as we have seen that the whole peculium can be destroyed by his mere wish, so we learn that he can release himself from any debts¹¹, though he cannot thus make himself a debtor. For this result there must be what would be a debt in causa civili: a mere acknowledgment sine causa will not suffice¹². This does not mean that they must be such as would be actionable if the parties were independent, but that they must be such as would in that case create some legal obligation¹³.

Such debts must be connected with the peculium¹'¹, but they may be from the dominus himself, or from any fellow-slave who has a peculium¹⁵, and, in the last case, it is immaterial whether they are from delict or

¹Ed. Perp. § 107; Cicero, de Off. 3. 17; D. 13. 6. 3. 5.

² 15. 1. 38. This may give an indication of date. Julian gives it in pignus, in an un­interpolated text (13. 6. 3. 5; Lenel, loc. cit.). Africanus ignores it in deposit. Ulpian allows it in all this group of actions, 15. 1. 5.pr., 36; 16. 3. 1. 42 (where the reference to Julian hardly justifies the view that he allowed it in deposit); 13. 6. 3. 5; 2. 13. 4. 3; 24. 3. 22. 12. He is following Pomponius who is of the same date as Africanus.

³ 13. 6. 3. 5. ⁴ 15. 1. 36. _t.

⁵ See as to this Lenel, loc. cit.\ Karlowa, op. cit. 2. 1146, 7; Mandry, op. cit. 2. 407.

⁶ Ante, pp. 193, sqq. ⁷ 15. 1. 7. 6.

8 Ante, p. 194. ² 15. 1. 7. 4, 5.

¹⁰ 15. 1. 51. If creditor claims to reckon them in full he must accept cession of actions as payment.

¹¹ 15. 1. 7. 6. ¹² 15. 1. 4. 1.

¹³ 15. 1. 49. 2. Post, Ch. xxix. It may be doubted if Justinian’s validation of pactum donationis (C. 8. 53. 35. 5) made such pacts create a debt to thepeculium.

¹⁴ Post, Ch. xxix. ¹⁸ 15. 1. 7. 7. ch. ix] Debts to Dominus deducted from Fund 221 contract¹. The adjoining text’, however, says: Si damnum servo dominus dederit, in peculium hoc non imputabitur, non magis quam si subripuerit. The context suggests that what is contemplated is damage to or theft from the peculium. But such acts would amount to dolose removal, except in case of negligent damage: the text must be under­stood of acts affecting the slave himself, who is not in his own peculium. Presumably there is no liability for mere negligent damage to a res peculiaris³.

In arriving at the nett peculium there is another important step to be taken. The dominus may deduct all debts due to him⁴. No such deduction is made for debts due to third persons: the principle of the action is, occupantis melior solei esse conditio*. But he may deduct debts due to persons in his potestas, since such debts are, on ordinary principles, acquired to him⁶. He may deduct also debts due to persons whose tutor, curator or procurator he is. This is subject to the provision that he may not do it fraudulently, which seems to mean that he may not so deduct if there is a sufficient remedy for his pupillus otherwise⁷.

Debts so deductible may have the most various origins. Any form of contract which was open to slaves might base such a deduction⁸. A case which recurs in several texts is that of money promised for manumission, which is deductible, as soon as the manumission has taken place⁹. One text is considered by Mandry¹⁰ to raise a difficulty in this connexion. A slave agrees by pact for a sum to be paid for manumission, and then finds a reus to promise it to the dominus¹¹. Mandry regards this as a case of expromissio novating the natural obligation of the slave. This would make a pact capable in itself of creating a natural obligation. But the contract of the reus is not contemplated as secondary: it is primary, and the patisti of the slave is no more than an understanding with the master as to the terms which he will accept. It is not in the least obligatory. As to quasi-contract (apart from matters connected with delict), there are some points of interest. There may be a claim on negotiorum gestio by the slave, or, conversely, on account of gestio by the dominus¹². Payments made on behalf of

115.1.9.1. 2 15. 1. S.pr.

⁸ He is liable, like any third person, for such proceeds of a theft by one of the slaves as he may have received, 15.1. 9.1. As to debts between slave and vicarius, post, pp. 244 sqq.

⁴ 15. 1. 5. 4; G. 4. 73; etc. ⁵ 15. 1. 52. pr.

⁶ 15. 1. 9. 3; 83. 8. 6. pr.; G. 4. 73; In. 4. 7. 4. Not debts to their vicarii. Nor of course debts due to servi castrensis peeulii of a son, 49.17.10.

⁷ 15.1. 9. 4. See post, p. 224. Machelard has observed (op. cit. 174) that this may operate detrimentally to himself. For while the privilege of dominus takes priority (15.1. 52. pr.) the debts it covers take priority by date. If there is a debt to the pupil older than that to dominus and there is not enough to pay both, the pupil has first claim.

⁸ 15. 1. 9. 6, 56. » 15. 1.11. 1. ¹⁰ op. cit. 1. 378.

n 45. 1. 104. 12 15. 1. 9. 7, 8, 49. 1.

222 Debts to Dominus deducted from Fund [pt. i the slave are deductible if they would have created obligation apart from the slavery¹. There are, however, some difficulties, if he has bound himself for the slave, e.g. by becoming surety for him, or by giving a mandate for a loan of money to him^{[888] [889] [890] [891] [892]. It was thought by some jurists that the sum could be deducted before payment, but the view which prevailed was that no such deduction should be made, but that security should be taken from the creditor suing, to refund if the dominus were ultimately called on to pay. The chief practical difference is that the creditor has the use of the money in the meantime. What is true of his own liability is true of obligations de peculio. If he has rightly paid under such an obligation, he can deduct. If he has been condemned he can deduct before payment. But he cannot deduct for a claim which is pending or threatened, since melior est conditio occupantis, and it is only the judgment which definitely gives priority’.}

We are told that the dominus is not entitled to deduct the cost of curing the slave, in illness, because rem suam potius egit¹. This hardly seems a sufficient reason, since the slave certainly has an interest in his own health, and the presence of personal interest in the gestor does not bar the action^[893]. The fact that the slave is not in his own peculium is not material, for it is clear that the debts on account of which a deduction may be made have no necessary connexion with the peculium, as is shewn by the rules as to compensation for wrongs done by the slave, shortly to be considered⁶.

For delictal penalties in respect of wrongs to the dominus no deductions can be made^[894]: we know that no action can ever lie on account of such wrongs, and the master’s power of correction does away with the need of such penalties^{[895] [896]. On the other hand, if the slave or his vicarius commits a delict against a third person, and the master pays damages in lieu of surrender, these may be deducted’. It is the more surprising to find that if he surrenders the slave he may not, in any actio de peculio, deduct the value of the slave[897]. If it were a vicarius this is obvious, since the man is no longer in the peculium, and such a surrender is not dolus, and thus, assuming the values equal, the fund for the creditor will be the same as if he had paid and deducted the damages. But, in the case of the principal slave, as ch. ix] Debts to Dominus deducted from Fund 223 he is not in his own peculium, the creditor will have a less fund, if the master pay and deduct, than if he surrender. The theoretical justifica­tion is that surrender of the slave cannot by any process be brought within the notion of negotiorum gestio on his behalf, or any other form of quasi-contractual obligation.}

Though there is no claim for penalties in respect of theft of, or damage to, the master’s property^[898], there is a claim, in simplum, in the nature of condictio furtiva¹, and also for the damage’. An illustration given of this is damage to a fellow-slave⁴, but we are told that if a slave kill or injure himself, there is no deduction’. The text gives the grotesque reason that a slave has a perfect right to knock himself about. The truth underlying this curious statement is that the whole conception of debts between master and slave assumes their independence pro tanto from an economic point of view. From this standpoint an act of the slave, taking effect entirely in himself, cannot be regarded as creating an obligation to the dominus. If the master spends money in treatment of a slave who has so injured himself, we are told that this can be deducted’. Like medical treatment of a sick slave, it is the master’s own affair, but it is an expense to him caused by the slave’s act⁷.

Just as the actio de peculio will lie ex ante gestis, so, too, debts may be deducted, though they arose before ownership of the slave began⁸. Thus the heres may deduct for debts due to himself before he became owner of the slave’. Mandry remarks that these texts shew that the jurists, before Julian, doubted whether this rule would apply where, owing to the slave’s being pure legatus, the heres never was actually dominus. He suggests that this is due to the standing expression, deducto eo quod domino debetur^w. It was agreed, however, that if the heres did become owner he could deduct for damage done, by the slave, to the hereditas iacens^[899].

The owner of a slave may become heres to a creditor de peculio. No doubt, in such a case, he may deduct the amount of that debt as against his own creditors de peculio. But if he sells the inheritance he must account for that debt, i.e. the vendee can claim what he would have had if the hereditas had been in other hands¹², just as he could if the master himself had been the debtor¹². On the same facts it was settled after some doubts that the peculium was to be taken as it was at the death, for the purpose of determining the amount of the hereditas, 224 Debts to Dominus deducted from Fund [pt. i in view of the lex Falcidia¹. But this is only a minimum, as in other cases, and thus if the peculium increases, so that a greater part of the debt can be paid, the hereditas is increased, ex post facto'*.

Ulpian tells us that the right of deduction is to be applied only, si non hoc aliunde consequi potuit^{[900] [901] [902]. Mandry[903] shews that this must not be taken as putting the right of deduction in a subordinate position. He cites several cases in which the rule was not applied[904], and concludes that it operated only where deduction would be a fraud on the “peculiar” creditor. He illustrates this by the remark of Ulpian, that the dominus may deduct for debts due to his ward, dummodo dolo caveat[905]. It may also be pointed out that the word potuit3 limits the rule to the case in which he has in the past had an opportunity of getting in the money and has neglected to do so, and that this was precisely the case in the only hypothesis of fact to which the rule is applied[906]. The other texts shew that the mere fact that he might have brought an action is not such an opportunity5.}

It is important to notice that the effect of a deduction is merely to determine what is the fund available for the creditor. If the peculium is solvent there is no question of deduction, and where a deduction has to be made its effect is merely the striking of an authoritative balance. It is not in any sense payment to the dominus³. Hence it follows that if nothing is actually taken from the peculium, by the dominus, the debt to him still exists, and consequently the deduction can be made again if an action is brought^[907].

We have seen that debts to the dominus take precedence of all others, that, in fact, debts to him are deducted as a preliminary in determining what the peculium is. Hence nullum privilegium domino praeponi potest. This does not affect the existence of privileges inter se among other creditors¹⁹, and we have an illustration of privilege in the claim of dos^u. But there is a text¹² which seems to put the claimant of dos in a better position. It observes that the wife has a privilege in an action for recovery of dos, over other creditors, and adds, et si forte domino aliquid debeat servus, non praeferatur mulier, nisi in his tantum rebus, quae vel in dotem datae sunt vel ex dote comparatae, quasi et hae ch. ix] Debts to Dominus deducted from Fund 225

dotales sint. This text has been supposed to raise a difficulty¹, since a privilege in any person is inconsistent with the principle on which rests the deduction of the debts of the slave to dominus, i.e., that the avail­able fund does not include them. But the language of the text shews that it contemplates something narrower than the ordinary privilege. It confines the claim to specific res dotales, and is thus merely an application of the rule, as to plaintiffs capti et fraudati by refusal to return specific extant things, which we have discussed and seen to apply to the case of dos^{[908] [909].}

What is the juristic basis on which the right of deduction rests? Why is it that debts to the dominus are regarded as standing subtractions from the apparent peculium^[910]? It must be noted first, that it is inde­pendent of the Edict and formula, neither of which contains any words so limiting the idea of peculium. It is involved in the very definition of the fund^{[911] [912]. This conception is the result of practice, and, probably, apart from the actio de peculio, and before its introduction, masters who were in the habit of honouring their slave’s transactions had refused to consider as peculium any more than the nett fund left after their claims were deducted’. This might be merely a juristic con­struction, but it is probably the true explanation: the jurists adopt the definition accepted in practice. A somewhat different point is mentioned by Ulpian[913] (as if it were the same), as the reason why he can also deduct for debts to his ward : since he is treated as having first sued on his own account, he ought to do the same for his ward. This gives a similar result, since as we shall see[914] [915], it is the giving of judgment which determines priority among creditors, though the judgment be still unsatisfied. But it is, in fact, no explanation, for it does not shew why he is supposed praevenisse. The same explanation occurs in the same text in a still more questionable form. It is supposed that the dominus not only egit but exegit. Of itself this might mean no more, but the words which follow are quite inadmissible: defend­endum igitur erit quasi sibi eum solvere cum quis de peculio agere conabitur3. We have, however, seen that deductio is in no sense a solutio, and the words have rather a Byzantine look about them. The}

226 Actio de Peculio always in personam [pt. i real origin was forgotten in the later classical time: these are mere constructions.

The actio de peculio is always in personam¹, and therefore’ the dominus is bound litem defendere, with all that that implies. If the plaintiff has a right in rem, or a possessory right, he can of course proceed by vindicatio or other appropriate remedy, and has no need to appeal to any fund’. The action meliorem facit causam occupantis*, priority being determined not by date of litis contestatio, but by that of judgment. Thus if two actions are pending at once, the amount of the first condemnatio is deducted from the fund available for what may be due under the second®. On the other hand, the priority so gained yields to any legal privilege, attaching to any other debt, as to which there seem to be no rules peculiar to this action^{[916] [917] [918] [919] [920] [921] [922]. The intentio of the action brings into issue the whole obligation, but the terms of the condemnatio limit the liability to the present amount of the peculium, which is considered as it is at condemnatio, the action being regarded as exhausting the creditor’s right to its then content’. But judgment or payment releases, in effect, only pro tanto: the creditor may renew his action till complete satisfaction[923] [924]. If the debt is not fully paid under the action no security can be exacted for the remainder. The text contrasts this case with that of pro socio. In that case we are told that such security can be required, quia socius universum debet*.}

A few rather complex cases may be taken from the texts as illustra­tions of these rules. A, in good faith, buys B’s slave from C, who has stolen him. The slave, with peculium which belongs to B, buys, from D, a man who is conveyed to A^{[925] [926]. B can condict the man from A, while A can sue B for any loss he incurs on the transaction by the slave, ex negotio gesto11. On the other hand, B, as owner of the slave, may, as an alternative, bring actio ex empto on the contract made by his slave, provided he pay the price in solidum, and C can condict the man from A. Or the peculium, being still B’s, can be vindicated by him, and if he does this he is liable de peculio for the price of the man bought by his slave. If, however, the res peculiares have been consumed in the hands of the vendor, D, they cannot be vindicated, and there is no actio de ch. ix] Death, Sale or Freeing of Slave: Actio Annalis 227 peculio for the price against B, since it has been paid. And if the vendor, D, has paid them away to a bonae fidei possessor he is entitled to absolution in the vindication, on ceding any actions he may have against him, and in that case there is no actio de peculio.}

Hereditatis petitio is brought against A, who possesses, inter alia, the price of goods belonging to the inheritance, which have been sold by slaves who still hold the money^[927]. The action will not be de peculio, since hereditatis petitio is an actio in rem. If however the ground of claim is not sale of any goods, but the fact that one of the slaves is a debtor to the hereditas (and the defendant claims to be heresy, the action will be limited as if it were de peculio³.

If a slave sells, the actio redhibitoria is de peculio. The text adds : in peculio autem et causa redhibitionis continebitur*, and goes on to explain this obscure expression in terms which shew that causa red­hibitionis means either the difference between the value and the price, or the actual value of the man sold. As the former meaning is insignificant, since the whole price is in the peculium, the latter is to be preferred, so that the peculium will contain not only the apparent res peculiares, but also the value of the man whom the vendor will receive back, if steps are taken by the buyer⁸. It follows that the limitation to the peculium is not likely to be detrimental to the buyer, though the text goes on to observe that it is possible even then for the peculium to be so overburdened with debt to the dominus that the buyer may not get back his price.

We have hitherto assumed that the relation between the various parties has not altered since the date of the negotium: we must now consider the effect of death of the dominus and death, manumission or alienation of the slave.

The peculium, in strictness, ceases to exist if from any cause the dominus ceases to have the slave⁸. It is plain that this might lead to injustice, and accordingly a rule was introduced, by a special Edict, that an owner liable de peculio remained so liable for one annus utilis from the death, alienation or manumission of the slave’. It is not a juristic extension but a separate provision⁸. This is not without importance. A creditor de peculio, who thinks the contracting son dead, brings this actio annalis. He is repelled by evidence that the son has been dead

228

Actio Annalis

[pt. I more than a year. The son is not really dead at all. There is nothing to prevent him from bringing the ordinary actio de peculio, for his right under this edict has not been in issue, and is not consumed^[928].

The year runs, according to the Edict, from the time quoprimum de ea re experiundi potestas erit². On its terms this seems to cut down the action to what might be less than one year from the death, but it is explained as running only from the death³, and then only if the claim is already actionable⁴. The liability is essentially de peculio⁵, and thus there must have been an unadeemed peculium at the time of the death⁸, etc., and it must have remained with the former owner’. It covers this, and what has been fraudulently removed therefrom⁸. It is subject to the ordinary additions and deductions for debt, except that the defendant cannot deduct for debts incurred since the alienation⁹. So long as the liability exists the fund is regarded as capable of increase by accretion, and of loss by any diminution in value, or destruction¹⁰, but as it has lost its objective separateness, it is probable that there can be no dolose removal after the slave is gone^[929]. The condemnation is, as in all cases, limited to the content of the fund at judgment¹². The liability applies only to obligations entered into before the sale¹³, etc., but with that restriction it covers all cases of “peculiar” liability¹⁴.

Though it is brought under a different Edict the action is in general the same in form and in essence as the ordinary actio de peculio¹⁵. Thus the intentio says nothing as to the limit of a year: this point is raised by exceptio¹⁸ As the defendant may not have peculium it has been thought that the formula contained words expressing this requirement¹â€™. But this is nowhere stated, and it may have been regarded as officio iudicis. Indeed if they are uvanted here they are wanted in every action, since even where a sole owner is sued, there may be a peculium in the hands of a bonae fidei possessor or usufructuary¹⁸.

So far the matter is clear, but there are difficulties which can best be considered by taking the various cases of transfer one by one.

ch. ix] Transfer of Slave: Liability de Peculio 229

(a) Transfer of the slave, inter vivos, by sale or gift. All alienations are on the same footing^[930]: both alienor and alienee are liable, the former for a year, the latter, like any other owner, in perpetuum. Each is liable to the extent of the peculium he holds². The liabilities are distinct. Thus the alienee is not accountable for dolus by the alienor³, while, on the other hand, he is liable to the extent of all the peculium in his hands, whether it came from the alienor or not⁴. There can, however, be no actio de peculio against him, unless the fund in his hand is really a peculium, i.e. unless he has made a tacit or express concession Neither, if sued, can deduct any debt due to the other⁶, though the alienee can deduct debts due to himself, even before the acquisition, on which he has de peculio against the old owner’. He is in fact choosing deduction instead of action. If he prefers to sue the old owner intra annum he may do so, but in such a case he must allow for any peculium the slave has with him⁸. On the other hand, the vendor may have the actio de peculio against the vendee, for claims accruing after the sale, even within the year, and he need not allow for peculium in his possession⁹. But he has no actio de peculio in respect of a contract before the sale, either with himself or with another slave, even though it were before he (the vendor) became owner¹⁰.

Action against one does not, in practice, bar action against the other for any balance due, no matter who was sued first^[931]. According to Proculus, Ulpian and Paul, the plaintiff may choose which he will sue, but cannot sue both at once: he must rest on his right to sue again for any balance¹², there being moreover a rule, that, if he was met in his first action (i.e. against the vendor) by any exceptio except the annua exceptio, he cannot sue for what, but for the defence raised, he might have received from that peculium¹³. But a text of Gaius says: Illud quoque placuit, quod et lulianus probat, omnimodo permittendum creditoribus vel in partes cum singulis agere, vel cum uno in solidum¹*. As the adjoining texts both deal with sale, this is sometimes held¹⁶ to be a conflicting view. If so, it is an extremely direct conflict, for the opposite rule is expressed in equally strong terms: potest eligere¹³, non 230 Manumission of Slave: Liability de Peculio [pt. i esse permittendum actori dividers actionem¹. But the text seems to refer to another matter. Its language is inappropriate to the present case. Cum singulis, cum uno, are not appropriate words for persons standing in the relation of vendor and purchaser. They denote a group in the same position. And what partes can be meant ? It seems most likely that, as Mommsen assumes, this text deals with a case in which there are several heirs².

We have seen that the vendor is liable so far as he retains the peculium. But what is retention of the peculium ? If the man is sold, sine peculio, there is no difficulty. If a price is fixed for the peculium, that and not the peculiares res is the peculium'¹. But if no separate price is reserved for it, Ulpian tells us that the vendor is not regarded as retaining it: the price of the slave is not peculium⁴. This is a rather unguarded statement, since some of it is clearly the price of the peculium. No doubt, what the rule means, in practice, is, that if the peculium were of any importance, and went with the man, it was not allowed to pass as a mere accessory, but an express price was put on it. If the vendor is liable de peculio, because he has transferred the man cum peculio, with a special price for the latter, he cannot deduct for debts due to him⁵. If the vendor is liable de pecidio, because the man was sold without it, he can deduct only for debts which accrued before the sale : those subsequent have no relation to his position as owner: his remedy is de peculio⁶.

(b) Manumission inter vivos. If the peculium is retained, the old owner is liable to the actio annalis’’. If it passes, the question whether the new libertus can be sued is perhaps to be answered as in the case of manumission by will cum peculio⁶. But the cases are not quite the same: there is dolus in the dominus who hands over the peculium, and he may be liable on that account. The case is not discussed⁹.

(c) Transfer on death¹⁹ Under this head there is some difficulty, and, as it seems, some historical development. There are several cases, which must be taken separately.

If the heirs succeed to both the slave and the peculium, the liability de peculio is, as in the case of other hereditary debts, divided, ipso iure,

¹ 15. 1. 47. 3. 2 Of the vendor? Post, p. 231.

« 15. 1. 33, 34. * 15. 1. 32. 2.

⁵ He could have deducted before delivery, and can recover by cond. indeb. and ex vendito so far as peculium will go. If now allowed to deduct he would unduly profit, as he has received the full value of the res peculiares, and the creditor cannot proceed against the buyer at least on account of the old peculium.

⁶ 15. 1. 38. 3, 47. 5. A gift of the slave, cum peculio, creates the same liability as sale without a price for it, the new owner is liable to the ordinary a. depeculio·, the old owner is not liable at all, 15. 2. 1. 6, 7. If it were sine peculio, the new owner is not liable, the old one is liable to the actio annalis.

1 15. 2. 1. 7. e Post, p. 231.

⁹ See, however, C. Th. 2. 32. 1 (C. 4. 26. 13. 4).

¹⁰ Death of the slave leaves the actio annalis and nothing more, 15. 2. 1. pr. As to the special edict for emancipated sons etc., see Lenel, Ed. Perp. § 104. ch. ix] Death of Dominus: Liability de Peculio 231 quite apart from any division of res hereditariae¹. But though as heirs they are liable pro parte, they are also common owners, and thus, like other common owners, they are liable in solidum*. Accordingly a creditor may choose in which way he will proceed. He may sue the heirs, as such, pro parte, in which case the right of deduction will also be divided, or he may sue any one as being one of common owners, in solidum. This seems to be the true meaning of a citation from Julian, which has already been mentioned as being misplaced and maltreated by Ulpian or Tribonian^{[932] [933] [934] [935] [936]}. Illud quoque placuit, quod et lulianus probat, omnimodo permittendum creditoribus vel in partes cum singulis agere, vel cum uno in solidum. Mommsen refers the text to heirs of a vendor, liable to the actio annalis. But Julian himself elsewhere denies the right to sue one of the heirs by the actio annalis in solidum*.

If the heirs succeed to the peculium without the slave, because he died, or was freed inter vivos, or sold, by the deceased, or freed or legated by the will, they are liable to the actio annalis for the year or the unexpired part of it“. Each heir is liable only pro parte* and can deduct only what is due to him’. Each is liable for dolus so far as he has profited, and absolutely for his own^[937]. Action against one releases all, but, as this would operate unjustly in view of the limitation just mentioned, the creditor can get restitutio actionis on equitable grounds’. Here, too, any of the heirs may be creditors, but, as they are not common owners they may have de peculio inter se^{[938] [939]. Such a creditor must, pre­sumably, allow for the peculium which has come to him11. It may be added that the slave himself, if he is a heres, is liable depeculiow. There can be no personal liability in the freedman: his contracts do not become actionable against him by his manumission13. The legatee of the slave will be his owner and liable as such.}

But difficulties arise where the slave is freed or legated, with the peculium. Here it is clear that views changed, and conflicting opinions are retained by Justinian¹⁴. In the case of manumissus it might be sup­posed that the actio de peculio was inapplicable to him, since it presupposes

232 Liability of heres, de Peculio [pt. i

potestas', but Labeo, Julian, Javolenus^{[940] [941] [942] [943], and Caracalla in the Code[944] all make him liable, and the heres exempt. On the other hand, Pomponius, Caecilius, Ulpian (remarking that there had been doubts), and Marcian (very decidedly), take the view that the heres is liable, the action not lying against the manumissus1. There is a similar conflict in the analogous case of legacy to a third person cum peculio: the cases are grouped together and are, no doubt, governed by the same principle. It seems clear that the older view was that of Labeo, that the heres was not liable, and that while this view is held by some as late as Paul, the view that has by this time really triumphed is that the heres is liable and that he must protect himself by taking security from the legatee, before handing over the peculium. If he has so guarded himself he is not liable[945]. This way of looking at the matter, coupled with the fact that Julian[946] [947] is clearly talking of a legacy per damnationem, leads Karlowa’ to think that the dispute applied only to this form of legacy, that the legatee was always liable in legacy per vindicationem, and that, after doubts, it was settled that, in legacy per damnationem, the heres was liable, even after transfer. This conjecture is more or less confirmed by the fact that the texts in question speak of a duty on the heir to hand over the peculium. But the language of Ulpian in discussing the doubt seems inconsistent with this limitation8. Moreover the duty to transfer the peculium does not imply a duty to transfer ownership: such language is used where it is clearly a legacy, per vindicationem. Thus Ulpian cites Labeo as exempting the heres, quia neque ad eum pervenerit, which must refer to vindicatio, and Pomponius says that in this very case he must take security before handing over[948].}

What is the difference of principle underlying these doubts^{[949] [950] ? All are agreed that possession of the peculium is essential to the liability: indeed Javolenus seems to hold that of itself enough, for in a case in which the peculium alone is left, he regards the liability as passing in all except pending actions11. There is, however, the difficulty, that the actio annalis is, as the form of the Edict shews[951], intended for use against the former master18. Accordingly the jurists seek to make the}

heir liable, by an artificial view as to what is retention of the peculium, analogous to that taken in the case of sale, with which Paul associates this case¹. Caecilius holds that he retains it by handing it over, since he is thereby released from his obligation to do so, and is thus so much the better off^{[952] [953]. This is subterfuge: if the economic or “ beneficial ” state of things is to be decisive, the peculium was never his at al [954]l[955].}

B. Actio Tributoria¹.

The general principle of the liability enforced by this action, (which, like the others, is Edictal,) is that if a slave trades with the peculium or part of it to the knowledge of his dominus, (though not necessarily with his consent,) the dominus is liable so far as that part of the peculium will go, its proceeds and profits being included, the master having no right to deduct what is due to himself, but ranking as an ordinary creditor, the fund being distributed among the creditors pro rata¹. The actual actio tributoria is only the last stage in a rather elaborate procedure, set forth in the Edict. It contains a rule that any creditor of the class stated, can call on the dominus to distribute the merces, according to the above-mentioned principle—vocatio in tributum^e. The distribution is done by the master unless he prefers to hand over the fund as a whole, in which case the Praetor will appoint an arbiter to carry out the distribution^[956]. The Edict then lays down the rule that if the dominus fails to make proper tributio, then, and then only, the actual actio tributoria can be brought^[957]. Of the procedure in the vocatio, the texts tell us little or nothing. The vocatio is generally held to proceed from the Praetor; mainly, it seems, on the grounds that the word vocatio is used so often that it must he Edictal^[958], and that, as the dominus and the other creditors are vocati^{[959] [960], the summoner must be the Praetor11. The acceptance of this view raises another question. If the vocatio is by the Praetor, is it contained in the Edict (set in opera­tion by a creditor), as Lenel seems to hold in his conjectural restoration[961], or does it require a subsequent act, a decretum of the Praetor, as is held by some writers13? The Corpus luris contains no evidence of any such decretum1*, but it is very faintly suggested by the language of Theophilus,}

234 Actio Tributoria: Requirements [pt. i commenting on the text of the Institutes¹ in which this action is treated, and still more faintly by the corresponding scholia in the Basilica². But, in fact, the assumption that the vocatio issues from the Praetor is some­what hasty. It is nowhere said that the Praetor vocat: the impersonal form is always used. It does not follow from acceptance of the view that the word stood in the Edict. It does not follow from the fact that creditors are vocati. The simplest and most obvious view, entirely con­sistent with the texts, is that the creditor or creditors, who desiderant tribui, by that act vacant ad tributum the dominus and the other creditors³. In any case a creditor applies, and the Edict authorises the dominus to conduct the distribution⁴.

It is essential that the slave have been engaged in trade. Though the word merx is used, the Edict covers all kinds of business⁵, handicrafts as well as dealing’. But it must be a negotiatio, i.e. a continuous course of trading, something more than an isolated negotiant?. The trading must have been with the peculium or part of it⁸, and the master must have known of the matter, though not necessarily of the individual transaction⁹. The texts make it clear that mere knowledge suffices : it is not necessary that he approve. He need not velle; non nolle is enough, patientia, not voluntas. An attitude of indifference, non protestari et contradicere, satisfies the Edict¹⁰. Nothing could be more explicit, and this same distinction is also brought out in other connexions¹¹. Yet Mandry¹² regards scientia as involving voluntas, on account of the rule that scientia pupilli domini does not suffice¹³, a rule that he considers to depend on the fact that such a person is not willensfahig, which implies in turn that scire is, in this connexion, an act of the will, i.e. voluntas. But apart from other objections, the real point of this text is that the effect of the state of mind, whatever it be, is to impose an obligation, and a pupillus cannot bind himself¹⁴. The scientia of a pupillus does not suffice¹⁵: that of his tutor, or of the curator of a furiosus™, or of a general procurator does¹⁷.

The right to demand tributio, and, therefore, to share in it, applies only to creditors of the trade, and in respect of debts due in connexion ch. ix] Actio Tributoria: Requirements and Rules 235

¹ In. 4. 7. 3 dvayKaCet rdv 3ea slave has several businesses of the same or different kinds, the tributio is made separately for each one, and thus a creditor will be confined to the trade or trades, in connexion with which his contract was made¹⁰. The rule, no doubt juristic, is explained by Ulpian as based on the fact that credit was given to that particular business, which, if the slave had two businesses of the same kind, is not certainly true. He adds that the other rule might cause loss to one who dealt with a solvent business, for the benefit of those who had trusted an insolvent one¹¹. The fund available for distribution covers not only stock and its proceeds, but tools of trade, vicarii employed in the business, and debts due to it”. Obviously it does not cover goods entrusted to the slave for sale: these and goods deposited for custody and the like can be vindicated by their owner¹⁸. In the same way a creditor with a pledge can enforce it against the other creditors¹⁴. The division of the fund is pro rata among the creditors who have proved their claim, and so far as the texts go, there is no indication of any

¹ 14. 4. 5. 4,15,18; G. 4. 72; In. 4. 7. 3.

² On this view a casual transaction with one who afterwards turned out to be managing such a business would not suffice.

•op. cit. 2. 429. Seej?ost, App. I.

* Ulpian speaks of creditors giving credit to the merx: he does not speak of the dominus,

14.4.5.15.......

6 14.4. 5. 3; 14. 1. 1. 20, 6.pr. It is called quasi tributoria, exemplo tributoriac. This is because the contract is not the stave’s.

6 14. 4.1. pr. 5. 9. «At. 5. 10. · b. t. 5. 7. » b. t. 5.15,16.

¹¹ How in such a case debts due to the master not attaching to any business were dealt with does not appear: perhaps charged pro rata. Mandry, op. cit. 2. 433.

» 14. 4. 5. 12—14. 1« b. t. 5. 18.

¹⁴ There must be an actual pledge: the mere fact that all the stock had been bought from one creditor and he was unpaid gave him no priority, b. t. 5. 8,17.

[pt. I privilege for particular debts. It does not appear whether the merx is sold or distributed in kind. Two texts do, indeed, suggest sale of it¹, and no doubt this would usually be the most convenient course, but there is no indication that this was necessary, nor are we told of any rules as to the conduct of the sale. But there is not here, as there is in the actio de peculio, any preference for first comers^{[962] [963] [964]. The demand of one creditor does not compel others to come ins: it merely authorises them to do so, and thus, if less than the whole number appear and divide the fund, they must give security for a refund on account of other claims by outstanding creditors, and for any debts, due to the dominus, which may not then be reckonable[965] [966]. It may be presumed that if the dominus or a creditor who has come in has deliberately refrained from proving any liquid debt, he cannot avail himself of the security[967].}

It is in carrying out the distribution that the dominus may incur liability to the actual actio tributoria^{[968] [969]. Mere failure to carry out his duty properly is not enough: there must have been dolus’’. Liability does not arise if the act were done by mistake and not persisted in after discovery of the error8. Of course dolus may take many forms[970]. One text on the nature of the necessary dolus raises a curious point. Labeo, deciding a doubtful point[971] [972], observes that if the dominus denies, cuiquam deberi, this is such dolus as justifies the action, for which view he, or Ulpian, gives the reason alioquin expediet domino negare. No one can have doubted that refusal to satisfy a liquid and known claim was dolus: this cannot have been the doubtful point. The real question is: if a creditor claims tributio, and the master says there are no debts, and there is therefore no tributio, can this be said to be dolus in tribuendo 1 Yes! says Labeo, otherwise a master need never be liable to the action.}

Dolus must on general principle be proved by the plaintiff, and in its absence the defendant is entitled to absolution¹¹.

If the slave of an impubes or furiosus trades, sciente tutors vel curators, we have seen that there may be tributio. But he is not to profit or lose by his guardian’s dolus, and we are told that he is liable only so far as he has profited. Pomponius thinks he is liable, but

ch. ix] Nature of the Actio Tributoria 237

will be discharged by cession of the actions which the facts have given him against bis guardian. Ulpian agrees that at any rate he must cede those actions¹. But if the incapax, during or after the incapacity, but while he is doli capax, is himself guilty of dolus, he is liable: the guardian’s scientia is needed to bring the Edict into operation, but the ward’s dolus suffices².

The action is perpetua though the slave be dead’, and it lies against the heres, or other successor, only in so far as he has received anything. Hence if the slave is freed by will, and his peculium is left to him, Labeo says the heres is not liable, since he has not received the peculium, and has committed no fraud. But we have seen that it is his right and duty to take security for peculiares actiones*, at least according to the view which prevailed, and, accordingly, Pomponius here observes that if he has failed to do this or to deduct, he is liable, since this is practically dolus in him⁶.

It is clear that these last rules have a very delictal look, and it is commonly held that the action is essentially delictal⁶, partly on the evidence of these rules, and partly on that of the use of the expression, dolum malum coercet domini'¹. But we are told by Julian⁸ that the action, non de dolo est, sed rd persecutionem continet, from which fact he deduces the further rule that it is perpetua against the heres, though the slave be dead, quamvis non aliter quam dolo interveniente competat. This language seems to negative delictal character, and Mandry⁹ holds that the action is contractual, and grouped with the other actiones adiectitiae qualitatis. He observes that there were other actiones based on dolus, but contractual, e.g., depositi, and it may be added that the rule that heres was liable only so far as he profited applied there too¹⁰. He points out that if a vicarius traded sdente ordinario, the master was liable de peculio ordinarii, and the debts due to ordinarius were not deducted¹¹: this be regards as an actio tributoria de peculio, and as negativing the delictal character of our action, since de peculio does not lie on delict. Karlowa¹² contends that this action is not tributoria at all, but an ordinary actio de peculio, given on the peculium of the ordi­narius for contract by vicarius made with his knowledge. But such an actio de peculio is inadmissible: there is no way of harmonising this text with ordinary principle except by treating it as a tributoria de peculio™. It may be said, further, that the place of our action in the Edict¹⁴, and its treatment in the Institutes¹³ indicate that it is an

1 14. 4. 3. 1. The rule differs in form, though perhaps no more, from that laid down in de peculio, ante, p. 218.

⁶ 14. 4. 9. 2.

2 14. 4. 3. 2, 4. ⁸ h. t. 7. 5, 8. < 33. 8. 18; ante, p. 232.

⁸ See the literature cited, Mandry, op. cit. 2. 450.

⁹ op. eit. 2. 4Ò0.

¹³ Post, pp. 243 sq.

7 14. 4. 7. 2. Karlowa, op. cit. 2. 1162. ⁸ h. t. 8.

io 16. 3. 1. 47. H14.4.5.1. 12 op. cit. 2. 1163.

1* Lenel, Ed. Perp. § 103. ¹⁵ In. 4. 7. 3.

238 Actio Tributoria: Consumptio litis [pt. i, ch. ix ordinary actio adiectitiae qualitatis, of like nature with the rest, and this seems the better view¹.

Between this action and that de peculio the creditor must choose, for having sued by one, he cannot fall back on the other^{[973] [974]. Mere vocaiio in tributum will not bar actio de peculio·. the facts thus ascertained will determine his choice, since, in the absence of the actions by which he can recover in solidum, the actio de peculio may be, on the facts, the best. There is no need to prove dolus, and though the dominus can deduct, the fund may be so much increased as will more than counterbalance this[975]. On the assumption that the action is contractual, there is no reason to see, in this rule of choice, anything more than the ordinary consumptive effect of litis contestatio. But those who think the action delictal cannot accept this view, for it would then seem that, on the analogy of the concurrence of actio Aquilia and a contractual action, the one does not necessarily bar the other, as to any excess recoverable by it[976] [977] [978].}

Presumably the action exhausts the claim to the then existing merx, and presumably also, there may be a renewed vocatio for later additions, to the same extent as there might be renewal of the actio de peculio.

There is little authority as to the relation of this action with the other Edictal actions. We are told that, as the facts which would base institoria (or exerdtoria) cannot base tributoria, the bringing of the former has no effect on the right to bring the latter, and probably the converse is true³.