CHAPTER VI. THE SLAVE AS MAN. COMMERCIAL RELATIONS, APART FROM PECULIUM. ACQUISITIONS.

It must be observed that we are concerned only with the acquisition of possession : a possession which has begun is not lost merely by the slave’s becoming insane, any more than it would be by his going to sleep^[619].

A text of Ulpian⁹ lays down a general rule that a slave of ours can acquire possession for us without our knowledge. Ulpian bases this view on a statement of Celsus to the effect that a servus alienus in the possession of no one acquires possession for me if he takes the thing, meo nomine. As it stands, this remark is no authority for Ulpian’s proposition. Celsus says nothing about ignorance, and is arguing from ch. vi] Acquisition of Possession through a Slave 133 the newly developed rule that possession can be acquired through a procurator. If so, why not through a serous alienus, provided he is not in the possession of anyone else, to whom he could acquire¹ ? When we remember that nominatio and iussum were almost equiparated in later classical law, for the purpose of transactions by a slave possessed in good faith or held in usufruct², it seems likely that Ulpian is doing the same thing here, and holding that you acquire possession through your slave if you know it, or have authorised it, or the possession is taken in your name. But the cases are not on the same plane. In the case of bonae fidei possessio the equalisation of iussum and nominatio is to determine the destination of an acquisition, not its possibility. They equally exclude the dominus, but no text, applying the rule to the acquisition of possession, says that if there was nominatio, the require­ment of scientia in the bonae fidei possessor did not exist.

Another remarkable text is credited to Paul. He holds that we do not acquire possession through our slaves unless they intend to acquire to us, and he takes the case of iussum by the owner A, the slave taking with the intention to benefit B. There is, he says, no possession³ in A. It is generally agreed that this text, making the effect depend on the will of the slave, is not good law for the classical age⁴.

The notion that one could not acquire possession through one he did not possess⁶, though it was set aside, as an absolutely general rule, in the classical law, survived for some purposes up to the time of Justinian.

¹ See Salkowski, Sklavenerwerb, 166. In 41. 3. 31. 2 it is said, perhaps by Tribonian, that a slave in libertate can acquire possession for anyone in whose name he takes. In 41.1. 53 it is said that we can acquire possession through anyone, if we intend to possess.

² Post, Ch. xv. ⁸ 41. 2. 1.19.

⁴ Ihering, Besitzwille, 287; Gradenwitz, Interpolationen, 220; Salkowski, op. cit. 46. They disagree as to whether it is an error of Paul or an interpolation: the latter seems most probable. See Gradenwitz. Note also the plural diximus. In other parts of the text Paul saysputo.

⁸ G. 2. 94, 95. 6 41. 8. 31. 2.

⁷ Where a causa liberalis is pending the man is in libertate·, yet, if he is really a slave, what is given to him vests in his master, even, says Gaius, possession, though it is clear there had been doubt. He justifies the rule by the case of the fugitivus, but this is not sound. The fugitivus is still possessed and his case provides not the reason, but the excuse, 40.12. 25. 2; post, Ch. xxvin.

⁸ 50.17. 18.

Where the possession has not yet, e.g. for lack of knowledge, vested in the dominus, it may nevertheless be legally important to him.

The mere possession may in some cases impose liability. Thus a master is liable to hereditaiis petitio for things which a slave has taken, if he possesses them or their price, or has an action for their price’. So in general an action lies against the master for things detained by the slave⁴. But there are some difficulties. Any person sued must take care of the thing: what is the position of the dominus, whose slave, holding the thing, disappears between litis contestatio and judgment ? What is the position of an impubes whose slave acquires possession of a thing in some way which creates liability ? A malae fidei possessor is liable for the safety of the thing : what is the position of the dominus who knows of the possession, but not of the mala fades ? We are told, in the case of the defendant whose slave has disappeared with the thing, at the time when judgment is to be given, that the judge must either postpone judgment, or allow the defendant to satisfy it by giving security for the restoration of the thing when he gets it^s. But the case of actual litigation is on a different footing from the others. It may be per­missible to argue from an analogous case. A husband is under a duty to take care of dos. If his slave receive a thing as dos it vests in him, but he is not under this duty until he has ratified the act*. A similar rule may well have applied here, and no doubt in the case of an impubes this ratification would not be valid without the auctoritas of the tutor. In all these cases there would be actio de peculio so far as the damage resulted from a negotium of the slave⁷.

In close connexion with this topic comes, necessarily, that of acquisition of dominium by usucapio. In general the possession will lead to usucapio, subject to the ordinary rules. Some points must,

i 41.10. 5. A slave cannot possess pro herede (41. 3. 4. 4). This does not mean that he cannot be the vehicle of such a possession, but that if a slave, thinking he is heres or that a thing belongs to a hereditas to which he has a claim, takes it while still a slave, he does not possess pro /teredo.

a 43. 16. 1. 22.

⁸ 5. 3. 34, 35. If a slave fraudulently makes away with a thing to the knowledge of his master, the latter is liable to A. ad exhibendum: if he did not know of the wrongdoing, only noxally, 10. 4. 16. If the slave holds someone’s will, the master is liable to the interdict de tabulis exhxbendis, 43. 5. 8. 4.

< C. 3. 32. 20. ⁸ 6. 1. 27. 4. « 23. 3. 46.

⁷ Another illustration 43. 26. 13. Post, p. 157, as to the question how far knowledge of the slave is imputed to the master. however, be noted¹. The slave’s power, being purely derivative, cannot increase that of the dominus. Thus if the master is absolutely in­capable of usucapio he cannot usucapt through his slave⁹.

There is somewhat more difficulty in relation to bona fides. Apart from peculium the rule seems to have been, (Paul, quoting Celsus, is our authority, but the text is inconclusive,) that both master and slave must have been in good faith—the slave when he took the thing—the master when he knew of the taking. It is not clear whether the slave must be in good faith at that time, but this seems the more logical view, since that is the initium possessions. Pomponius is quoted to the effect that if the acquisition is domini nomine the master’s state of mind is the material one, but in view of the language quoted by Paul from Celsus in the same text this is commonly understood to mean, “ is primarily considered’.” The language of Pomponius, and the general drift of the text, however, appear to express the view that, if the acquisition was domini nomine, the state of mind of the slave was immaterial, but the other view is more in harmony with the rules arrived at in other cases⁴. It must be remembered that usucapio results from possession’, and that in acquiring possession the master and the slave cooperate. It is diffi­cult to say what the master’s sdentia involved. It was something that the slave could not contribute*, and probably it included the animus sibi habendi, of which the slave, who could not habere, was clearly incapable. As we have seen that he also cooperated mentally, since he must have intelligence for taking⁷, it is natural that the bona fides of both parties should have been necessary. And this is the rule that Papinian lays down for the analogous case of sons’. As will be seen later, the rules in acquisitions to the peculium are different: here it is enough to say that where the acquisition is peculii causa, and the slave was in bad faith, if the thing ceases to be in peculio, e.g. by ademption of the peculium, or by its being paid by the slave to the master, e.g. for his liberty, this is not a new possession in the master, and the thing cannot be usucapted; causa possessions durat*.

Apart from these considerations there is no great difficulty in the law of acquisition of property, inter vivos, by a slave for his master. The slave though he can have nothing of his own¹⁰ acquires for him in nearly every way, and without his knowledge or consent¹¹. Things

^I Among the cases in which “putative causa” was allowed by some jurists, was that in which your slave alleged that he had bought the thing: a man may reasonably be in error as to the act of another, 41. 4. 11; 41. 10. 5; cp. 28. 8. 67. But this controversy has little to do with slavery.

³ 41. 8. 8. 1. Eum qui suo nomine nihil usucapere potest ne per servum posse Pedius ait. »41.4.2.11,12. Pothier, Pand. 17. 193. ⁴ 6. 2. 7. 18; 41. 3. 43. 1.

⁵ G. 2. 89; In. 2. 9. 8; D. 41. 2. 8. 8. ⁶ See ante, pp. 181 sq.

’ 41. 2. 1.10, etc. » 41. 8. 43. ³ 41. 4. 2. 12, 14.

¹⁰ G. 2. 87; In. 2. 9. 8; D. 41. 1. 10.1.

^II In. 2. 9. 8; D. 41. 1. 32. If a slave buys, his master has the Publician, 6. 2. 7. 10. If he finds treasure it is as if the master had found it, 41.1. 63, pr.

136 Acquisition of Dominium, inter Vivos [pt. i delivered to him are acquired to his master unless the slave was intended to act as a mere messenger: in that case the acquisition is not complete till the thing reaches the master¹. A slave can acquire by formal means, e.g. by mancipatio, but not by adiudicatio or cessio in iure^{[620] [621] [622], since he can take no part in a judicial process. If the ownership of the slave is in suspense, the question in whom any acquisition takes effect will also be in suspense; e.g. where a slave is given by husband to wife, by way of mortis causa donatio3, or where the slave is legatus and the legatee has not yet accepted[623]. The slave acquires to his bonitary, not his quiritary owner[624] [625]. We are told by Paul that a slave, mancipated metu, acquires for his old master[626]. The point is that, though mancipatio transfers dominium even in this case, the former dominus still has the slave in bonis[627].}

Was it necessary that the slave should intend to acquire to the master ? We have seen⁸ traces of a view that this was essential (at least for late law) in the case of possession, but so was knowledge of the dominus, and both these might seem material where the question was whether the dominus had acquired the substance of control. But in the present case it is clearly and repeatedly laid down in the Sources^[628] that knowledge of the dominus is not necessary. (The view that the slave must consent seems to rest on a false definition of tradition, as transfer of dominium by transfer of possession, itself based on texts which speak of acquisition of possession and through it of ownership^{[629] [630].) A priori, one would not expect the voluntas of the slave to be con­sidered in such a matter, and the law seems to have disregarded it11. But there is one text sometimes cited as proving the contrary[631]: the case is, however, one of a common slave and of a donatio, both material circumstances18}

A case which might have created difficulty is that in which the transferor hands over the thing, intending to transfer ownership, but to transfer it to X, who is not, but whom he supposes to be, the slave’s master. If he said nothing of his intent the gift would take effect in the slave’s master, though, on general principle, the donor would have a condictis. If he expressly said that he intended to convey the thing to

X, it seems that ownership would not pass to anybody, though posses­sion would as soon as the master knew of the receipt¹.

The law in the case of the institution of a slave is more complex. A man may institute his own slave or a servus alienus ; in either case pure or conditionally². But an institution of his own slave, cum liber erit, or sine libertate, is a mere nullity³. A servus alienus would, how­ever, ordinarily be instituted without liberty, and the words cum liber erit may be added: the words sine libertate or cum libertate are mere surplusage⁴. The institution of a servus proprius remains valid though he be alienated or freed : in the former case he acquires to his new master⁵, in the latter to himself.

Institution of a servus alienus is for most purposes institution of his master⁶. Thus the master must have testamenti factio with the testator⁷, has the right to the spatium deliberandi*, can get bonorum possession and may be burdened with fideicommissa™. These are due from him only if he acquires through the slave. If he frees before acceptance neither he nor the slave is strictly liable (for the latter was not rogatus), but this is met by a rule that an actio utilis lies against him who got the emolumentum hereditatisⁿ. If the owner sell the slave before acceptance, he remains liable for the fideicommissum as having the value in the price, and the buyer is not liable unless the vendor is insolvent¹². This rule is an equitable compromise: the buyer is strictly heres and liable. There seems no authority for the case of gift of the slave. Probably the donee is liable if he accepts the hereditas. There are many illustrations of this fact that a gift to a slave is essentially one to his master. If a slave is instituted, a legacy, poenae causa, to annoy his master is void¹³. If a man prevents the revocation of a will in which his slave is instituted, he can take nothing¹⁴. Writing a gift to your slave is penalised under the lex Cornelia de falsis, as writing a gift to yourself¹⁵. If a libertinus institutes his child’s slave this bars the patron as if it had been the child himself¹⁶.

¹ Not expressly discussed, except where on the facts there were other persons to whom the slave might possibly acquire, post, Ch. xv.

² 28. 5. 3, 31.

⁸ U. 22. 7, 11,12; D. 28. 7. 21, 22. It was treated as shewing no real intent to give.

* 28. 5. 3. pr.\ P. 3. 4 b. 7.

⁸ G. 2. 185, 188; Ulp. 22.12. D. 31. 83 is a case of construction raising some of these points.

⁶ As to the difference of personality, post, p. 140.

⁷ Ulp. 22. 9; D. 28. 5. 31; h. t. 53; 36. 1. 67. pr. « 28. 8. 1.

⁹ 37.11. 2. 9. If alienated while time is running the new dominus has only the rest of the time, 38. 15. 5. 2.

¹⁰ Even in favour of the slave himself, cum liber erit, 36. 1. 26. 1. As to operation of Sc. Pegasianum, D. 30. 11.

¹¹ 31. 62. 12 30. 11, 94. 1. ¹⁸ 34. 6. 1.

¹⁴ 29. 6. 1. 1; 38. 13. 1. Nor can the slave if freed, or children, even not inpotestae. They are “ within the mischief ” of the rule.

¹⁸ Or striking out a gift of liberty to a slave left to you. But writing a gift to a slave cum liber erit, or one of liberty to your own slave was not enough, 48. 10. 15. 4, 22. passim.

¹⁸ At any rate if the child acquires, 37. 14. 21. 3.

The gift is to the master whose the slave is at the time of entry: intervening alienations are immaterial^[DCXXXII]. Where a servus alienus was instituted, afterwards conveyed to a servus hereditarius and then usucapted by an extraneus, the institution was still good—media tem­pera non nocent³. Where a slave of one without ius capiendi was instituted and was freed, or sold, sine frauds legis, before any steps were taken, though after the death, the gift stood’. This was originally written when, and of a case in which, the man without ius capiendi was not incapax, but, though he had testamenti factio, was barred, by reason, e.g. of celibacy, from taking. The general rule was that we could institute the slave of one with testamenti factio, and no other⁴. But in Justinian’s time a man without ius capiendi was an incapax. It may be, then, that in his day the institution of the slave of one without testamenti factio (e.g. intestabilis) was good if he was alienated. It cannot have been so for classical law.

The owner of the slave is the person to benefit, whatever the intent of the testator⁵, even though he have to hand over the succession to some other person. Thus if a heres is under a fideicommissum to hand over the hereditas, and a servus hereditarius has an inheritance left to him, the heres can order him to enter. Like other acquisitions made after entry, this will not have to be handed over, unless there was an express provision, in the will, that even such things were to go’.

As a hereditas may involve liabilities the slave cannot effectively enter without the authorisation (iussum) of the owner⁷. We have a good deal of detail about this iussum. It must precede the entry: ratification did not suffice⁸. This is due to the fact that aditio is an actus legitimus, and does not admit of what is in effect a suspensive condition’. The iussum must durare: the authorisation of the master must be still existing at the time of the entry. Thus if he become insane before the entry, there is no iussum: furiosi nulla est voluntas¹⁰. So, if the slave is alienated before the entry, the new master is not bound by the old iussum^[DCXXXIII]. It may be in any form, e.g. by letter or messenger. It may even be nutu, in the case of a dumb, but not mentally defective, dominus¹³.

ch. vi] Institutio. Fideicommissa. Bonorum Possessio 139

The iussum must refer to that particular hereditas¹, and there can be no iussum to enter on the hereditas of one not yet dead, though it is not essential that the master be certain either that the man is dead or that the slave is heres. Paul, indeed, observes that the paterfamilias must know whether it is ex asse or ex parte, by institution or substitution, on intestacy or by will². Ulpian says, more exactly, that if the iussor thinks it is ex asse and it is ex parte, or ab intestate and it is by will, the entry does not bind him because such entry would, or might, put him in a worse position than he contemplated. If the error is the other way, it is a good entry, and error as to whether it was institution or substitution is equally immaterial⁸. A iussum may be conditional or dependent on someone’s consent⁴, and this must be given before the entry. Where the institutus reported that he thought the inheritance good, the paterfamilias replied that he had heard rumours to the con­trary, and that he authorised the institutus to enter, if after careful investigation he was satisfied that the estate was solvent. He entered at once, and Africanus held that this entry did not bind the pater­familias⁶. The iussum might be more or less explicit, and after disputes it was settled that authorisation to take bonorum possessio, or pro herede gerere, justified entry by the slave⁸.

Fideicommissariae hereditates and bonorum possessio are on the same level, so far as the substance of the right is concerned, but there are some differences of rule which need explanation. As the acceptance of fideicommissa, or of bonorum possessio, is not an actus legitimus, the necessary consent of the dominus may be by ratification⁷. We know that a dominus cannot enter for a slave, though he can depute a slave to enter for him⁸. We are told, indeed, not only that the slave must himself make aditio, but that he must give a real consent, and thus if an apparent consent is obtained under threats, and so is unreal, there is no sufficient aditio⁶. The line between this and a real consent obtained by command, which appears in some texts, must have been rather narrow¹⁰. It should be observed that the dominus can pro herede gerere, by consent of the slave¹¹, and that Pius enacted that if the

¹ 29. 2. 25. 5. If the slave is alienated before bonorumpossessio is obtained, the buyer has only the residue of the time, 38. 15. 5. 2.

a 29. 2/93. pr.

⁸ 29. 2. 25. 11. Paul’s dictum must be understood of pupillary substitution, involving possible liability for debts of the pupillus. Ulpian says (h. 1.12, 13) that iussum to enter under the will of X does not authorise entry as a substitute of an impubes unless the words of authorisation cover this, and shew that it w^ras contemplated.

< 29. 2. 25. 10. ⁸ 29. 2. 51. 1.

⁶ 29. 2. 25. 7. See h. I. 8, 9 as to what is a sufficient iussum. Though a dumb slave cannot make formal aditio by speech he can of course pro herede gerere (29. 2. 93. 2). Mutus heres could not make a formal acceptance, but might depute a slave (29. 2. 5, 26). There seems no reason to doubt that a slave could make cretio for his master. It is somewhat on the same footing as mancipatio.

I 29. 2. 6.1, 48; 36. 1. 31. 2, 42, 67. pr. ⁸ 29. 2. 26, 36.

⁹29. 2. 6. 7. ¹⁹ 29. 4. 1. 3; C. 6. 24. 3. 2. in Jin.

II C. 6. 30. 4.

140 Institutio. Distinct personality of Slave [pt. i dominus continued long in enjoyment, in any case, this should be a valid gestio: a somewhat untruthlike presumption of the consent of the slave¹. The rule in fideicommissa is different: the dominus himself can accept’. Bonorum possessio may be applied for by anyone for anyone³, and thus, no doubt by the dominus. But, we are told, the consent of the slave is needed as in aditio*. This may be because the words of the Edict, declaring that a grant will be made to him, imply his personal assent. It seems likely, though there is no con­clusive text⁵, that a dominus cannot himself repudiate the slave’s institution : it is clear that he cannot repudiate a fideicommissum*. On the other hand he can repudiate a bonorum possessio to which the slave has a claim⁷. This is surprising in view of the rule that the slave’s consent is necessary to bonorum possessio and of the maxim, Is potest repudiare qui et acquirers potest*.

The slave and his master are distinct persons, and are so regarded for many purposes in this connexion. It is difficult, however, to lay down any general principle which will cover all the cases. They are not treated as independent persons where this would defeat the purpose of some rule of law⁹. Where A was instituted, and his slave, S, sub­stituted, and A ordered S to enter, as substitute, in order to avoid legacies, all are due, subject to the Falcidian fourth¹⁰. But they are not lumped together: those charged on A are paid first, and then those charged on S, so far as the lex Falcidia allows¹¹. This preference is applied in all such cases where a man obtains a hereditas, omissa causa testamenti¹². But in our present case it is a recognition of duality, for a man cannot be simply substituted to himself¹³.

Where A and his slave S are instituted, in unequal shares, and less than three-fourths are left away from the share of S, Paul tells us that the difference is added to the share of A, for the benefit of legatees claiming from him. This prevents the unfair treatment of legatees by a misapplication of the rule that the Falcidia is, in the case of distinct charges on different heirs, reckoned separately for each heir¹⁴. Here too duality is disregarded only so far as is necessary to prevent the evasion. If they were treated as two absolutely, no such account would be taken. If as one the Falcidian deduction would be spread over all. It will be observed that this is not the rule of confusio which causes so much discussion in the case of an institutes who acquires also as substitutes™.

1 29. 2. 6. 3. 2 36. 1. 67. pr. » 37. 4. 7.

⁴ 36. 1. 67. pr. s 29. 2.13. 3, 18. « 31. 34. 2. ’ 38. 9. 1. 3.

8 29.2.18; 38.9.1.1. Lenel thinks the general provisions as to repudiation were in the Edict (Ed. Perp. § 165). The point of the present rule seems to be that, as the cooperation of both is needed to acquisition, the repudiation by the master is enough to shew that this is impossible.

9 See ante, p. 137, for some illustrations of this.

10 29. 4. 25. ii 35. 2. 22. 2. 12 29. 4. 6. pr.

¹⁸ 28. 6. 10. 7. K 35. 2. 21. 1.

¹⁴ See e.g. Vangerow, Pand. § 535; Windscheid, Lehrb. § 653, n. 8.

There, if confusio occurs at all, the legacies are grouped together and all suffer equally. Here there is no relief to the legatees from the dominus except so far as there is a surplus over the quarta Falcidia in the share of the slave. The same rule applies in the case of a father and son¹. Paul’s rule deals only with· the case in which the legacies charged on the dominus are in excess, not with the case in which those charged on the slave are so. In the case of institution and substitution it seems clear on the authority of Paul^{[634] [635] that there was no confusio in favour of legacies, charged on the heres who failed to take, in so far as they were chargeable on the substituted coheres. In our present text[636], Paul goes on to say something, which is commonly interpreted as meaning, that, here too, there was no relief in the case in which it was the legacies charged on the slave which were in excess. But the wording is so corrupt that it is impossible to be sure as to its meaning.}

Where X whose slave was heres by will, and who was himself heres ab intestate, directed his slave to enter, and the slave did not do so, it was as if X had praetermitted. He should have made the man enter^{[637] [638]. It is not easy to see the necessary dolus malus on these facts’. Where a slave is made heir there can be no legacies from the master, though there may be fideicommissa, and in such a case the legacies are first reckoned with any deduction for the lex Falcidia, and the fideicommissum is payable on the rest[639].}

Where a slave is instituted pure for part and conditionally for another part, and there is a coheir, and the slave duly enters for the first part, Paul tell us he must enter again for the second, and it will pass with him if be is freed or alienated before entry^[640]. This is one of a group of texts which have given rise to much controversy^[641]. If X is instituted pure for one part, and conditionally for another, then, apart from controversy as to what happens if he dies, he is at once heres ex asse, if there is no substitute to the conditional part⁹. No fresh entry is needed even if there is a coheir¹⁰. In our case¹¹, where it is a slave, Paul justifies his different view on the ground that in order that all may be acquired by the one entry, it is necessary that all remain in the same state : the rule, that one entry suffices, does not, moreover, accord­ing to him, apply where the hereditas is acquired through another person¹². That it should vest in the new owner seems consistent with principle. The conditional share is certainly not acquired till the

14:2 Institutio. Distinct personality of Slave [pt. i condition is satisfied¹ and at that time the old owner is no longer owner. Since nothing remains even momentarily in the slave*, another entry must be necessary. The view that, even if there is no change, fresh entry is necessary, is a natural result. But there is a text of Ulpian^[642] which applies the rule that entry for one share is entry for all, and declares, as it is commonly understood* that if the slave has once entered, though he be sold, a substituted share which falls in will go to his old master, as being a mere appendix. The text is obscure: it may indeed be read as agreeing with Paul’s view. Its form is, however, opposed to this, and elsewhere Ulpian and Modestinus decide a case in terms which suggest that the common interpretation is the right one. They say that if one substitutes to an impubes “ Whoever shall be my heir,” this means heres scriptus, and thus if a man has taken a share through a slave he cannot claim under this substitution, if the slave is no longer his, because he is not personally the heres scriptus¹. They treat this as the fact which bars: if they had taken Paul’s view the the question could not possibly have arisen⁸.

According to the view almost universally held by the classical lawyers, an unconditional legacy to the slave of the heres was void ab initio, by the regula Catoniana. But the rule was different in the converse case of a legacy to the dominus of an instituted slave. Such a legacy was good ab initio, though it would “ evanesce,” if the dominus became heres through the slave^[643]. The reason assigned in the texts is that it is not true that if the testator died at once the gift could have no force: the legacy would cede at once in the dominus, but he might transfer the slave before ordering entry.

There are other illustrations, of a different type, of this principle that the slave is a distinct person, and that his persona is considered rather than that of the dominus, except in relation to capacity to take⁸. If the terms refer expressly to the slave, it is he who must do any act rendered necessary. A slave, being in a manner an instrument of his master, can enter for him. But the master cannot so enter for the slave. Thus if X and his slave are instituted, the slave entering at X’s order acquires all for him, but if X enters, he acquires only his share : the slave must still enter for the other⁸. Where knowledge is

ch. vi] Effect of Error on Institutio of Slave 143 material it is the knowledge of the servos institutus and not of his dominus which is considered. Thus where a slave is instituted, vulgari cretione, it is the state of his knowledge which determines the time allowed¹. An institutus can enter if he is sure that an alleged posthumous child does not exist, but not otherwise. If he is a slave and he is sure, but the dominus has his doubts, the entry is valid*.

We have also to consider the case of a slave instituted by one who thought he was free. This is really a case of a wider problem : what is the effect of error on an institutio ? Vangerow³ thinks the rule to have been, that, if the error were such that the institution would not have been made in knowledge of the facts, it was absolutely void, and he treats any departures from this as exceptional. There is no doubt of the rule for legacies⁴, but in view of the dislike of intestacy it would not be surprising if a different rule were applied here. Of the texts he cites, one⁶ says that where a child instituted proved to be suppositus, the inheritance was taken away, quasi indigno. This really makes against Vangerow’s view, for it implies that such an institution was prima fade valid. The same case is discussed in an enactment of Gordian⁶, who on the authority of Severus and Caracalla, uses similar language—aufe- rendam d successionem. His other cases are of exheredations declared null on the ground of error. They are cases in which a false reason is expressly assigned for exheredation⁷ and thus are mere illustrations of falsa causa treated as condition, and of little weight in the present connexion⁸. On the whole the view of Savigny’ seems preferable, that these institutions under error were valid, the cases in which they were set aside being exceptional. The same conclusion can be drawn from two cases which directly concern us. One¹⁰ is the well-known case of Tiberius’ slave, Parthenius. A slave is instituted under the impression that he is a paterfamilias, and X is substituted to him si heres non erit. Tiberius decides that he and X shall divide. This is justified by Julian¹¹ on the ground that the words, si heres non erit, when spoken of a man supposed to be free, mean “ if neither he, nor anyone to whom he shall hereafter become subject, becomes heir.” This condition¹² is satisfied on the facts and the substitute is admitted. But there is nothing to exclude the institutus, and thus they share¹³. The reasoning requires

was met, see, e.g. Accarias, §§ 849, 465. But if the slave were instituted, he could enter, no doubt with consent of curator, 29. 2. 63. If a beneficiary has been directed to pay money to a slave Aeres, it may not be paid to his master, 35.1. 44. pr.

¹ G. 2. 190. ² 29. 2. 30. 7. ⁸ Lehrb. § 431.

⁴ 32. 11. 16. ⁸ 49.14. 46. pr. ⁸ C. 6. 24. 4.

⁷ 28. 2. 14. 2, 15.

⁸ 35. 1. 72. 6. In fact a contrary inference might be drawn from them.

⁸ System, 3. 377, dt. Vangerow, loc. dt. ¹⁰ In. 2. 15. 4. “ 28. 5. 41.

¹² A substitution is essentially a conditional institution.

¹⁸ The decision is exactly similar to that given by Gaius (2. 177) in the case of cretio imperfecta.

that error shall not vitiate an institution, and is strictly logical, if the interpretation given to the words, si heres non erit, be accepted. It is a strong case of interpretation according to intent, the ordinary rule in testaments¹, but the decision does not deserve the severe language which is sometimes used of it’.

The case may be compared with one considered by Severus’. A, a miles, institutes J, ut libertum suum, and adds, “ if he will not or cannot enter from any cause, I substitute V.” J proves to be a common slave of A and Z. Severus says that the result is a question of intent. If A thought J his own sole libertus, and did not mean any other person to acquire through him, the condition of the substitution has arisen, and V can take the inheritance. If, however, the words were used in the ordinary sense, and J entered at.the command of Z, V has no claim^{[644] [645]. There can be no question of sharing, for if J takes anything at all, he does adire, and the substitute V is excluded. Here the interpretation by intent resembles that in the last case, but it is more forced : the word adire has not the ambiguity which, with a little good will, can be seen in the expression si heres non erit, and J is here allowed to shew that the testator gave the words a meaning that they cannot possibly bear. The fact that the testator is a miles is emphasised, and it may be that this accounts for the liberal interpretation[646] [647].}

The main principles in the case of legacies and fideicommissa singularum rerum are much the same^[648]. A legacy sine libertate to the testator’s own slave is invalid^[649]. A gift to A and one to his slave, though they are distinct legacies, are one for the purpose of the lex Falcidia⁸. Gifts to servi alieni depend on the testamenti factio of the master, and are in the main equivalent to gifts to him’. The rules as to the admissibility and construction of gifts cum or sine libertate are, in classical law, as in institutions^{[650] [651]. A legacy to a serous alienus is void if the testator buys him, as it is now in ea causa in qua incipere non poterat11· A legacy without liberty to the testator’s slave, not legated, is void, and ademption of the liberty is ademption of the legacy“. Acceptance of a legacy to his slave bars the dominus from attacking the will1, and, if he does attack it, he loses any benefit[652] [653] [654].}

If a legacy is left to two of my slaves independently, or to me and one of my slaves, or to my slave in the will, and to me in a codicil, and I refuse on one gift, I can take all on the other⁸. This is the law of Justinian : in classical times it would have depended on the form of the gift. Thus in legatum per damnationem, apart from the leges caducariae, one of the shares would have gone, on this hypothesis, to the heres.

The ownership of the slave at the time of dies cedens determines the fate of the legacy^{[655] [656] [657], assuming initial validity, and thus if he is alienated or freed before that date, the right will pass to his new owner or him­self as the case may be“. It must be noticed that, in legacies to a slave, the time of dies cedens is postponed. Thus if there is a legacy to a slave also freed, it does not cede till aditio, since otherwise it must fail as he is not qualified to take till the heir enters’. It is similarly post­poned in the case of a slave who is himself legatus, so that the rule applies to all possible legacies to a slave of the testator[658]. The text adds that if the slave has been freed after the will is made he can take the legacy himself, the fact that he was a slave of the testator being no bar, since, even if the testator had died at the time of making the will, the benefit and burden of it would never have been on the same person. These rules are simple : they are applied in the texts to the solution of many complex cases.}

Where A was legatee of an optic servi, and there was a legacy to a slave of the testator, without liberty, then, if before any heir entered he became the only slave of the testator, he was a servus legatus and the legacy to him was good. But if he did not become the sole slave, or in any case if there was a heres necessarius, the legacy to the servus proprius would fail⁸. The case does not conflict with the regula Catoniana. Since it is always possible for this diminution to occur, so that he becomes a servus legatus, whose gift does not cede till aditio, it is not true that if the testator had died at once the benefit and burden must have been in the same person. If the heres were a necessarius it would be bad, for though the diminution might occur before the death, it still remains true that, had the testator died at once, the gift must have failed. If the legacy to the slave was simple, and that of the slave was conditional, the former must fail unless the condition of the latter is satisfied before dies cedit for the former. This is the form in which the foregoing case would, it seems, have presented itself to the jurists who held that legatum optionis was conditional¹. Justinian’s change did not affect the matter, since the ownership of the slave did not pass even now till a choice was made, so that if there were still several slaves, the ownership of the slave legated would still be in the heres, at the time when the legacy to him vested. It may be noticed further that as this choice could not be made till after aditio, the fact that the legatee did in fact choose the same slave would not save the legacy to him².

A simple legacy to a slave of the heres is bad ab initio by the regula Catoniana³. It is in substance a gift to the heres, and it is not saved by the considerations we have been discussing. The coming of dies cedens fixes the legacy on the heres, and benefit and burden must therefore be on the same person. If other heirs enter, then, whether he enter or not, the legacy will be good so far and so far only as it is chargeable on the other heirs⁴. There had been disagreement as to these rules. Servius declared all such gifts valid, perhaps ignoring altogether the regula Catoniana, but said that it would “ evanesce,” if at dies cedens he was still in potestas. This suggests that he is treating the dies cedens, rather than the making of the will, as the initiwm. The Proculians in general held that all such gifts were bad, because, says Gaius, we can no more owe conditionally, than we can simply, to one in our potestas, a reason which is little more than begging the question. The Sabinians took the view which Justinian ultimately adopted, limiting the rule to simple gifts, so that a conditional legacy would fail only if, at dies cedens, the legatee was still in potestas of the heres*.

Another text raises new hypotheses’. A legacy adeemed under a condition is regarded as given under the contrary condition⁷. If it was originally given pure, this makes it a conditional gift. Does this exempt from the regula a legacy originally given pure I Florentinus tells us that it does not: ademption is to take away, not to confirm a legatee’s right⁸. A testator who intended to remove the difficulty would hardly put the alteration in that form. The decision turns on that point: how will it stand if, in a codicil, he gives the legacy subject to a condition, clearly corrigendi animo 1 Here it is not so clear that he does not mean to benefit the legatee: it may be that the gift would be regarded

¹Ante, p. 18; Machelard, Dissertations, 525.

² 33. 5. 15. A slave, S, is left to X, a legacy to S, and optio servi to Y. Y chooses S. X takes the gift to S as being his owner when dies cedit, 33. 5. 11.

8 34. 4. 14..pr.; G. 2. 244; In. 2. 20. 32.

⁴ Machelard, op. cit. 504..

⁵ Dies incertus is a condition in wills, 30. 30. 4, and, further, no security could be exacted by the slave for such a legacy. If however he became free pendente conditions, personal security, with a hypothec, could be taken as a compromise between the claims of obsequium and the rights of ordinary legatees, 36. 3. 7.

⁶ Machelard, op. cit. 514. ⁷ 34. 4. 10. pr.

⁸ h. t. 14. pr.

as conditional ab initio, and so free from the rule. As a correction it would supersede the earlier gift and the legacy would be good¹. How if a gift, originally conditional, becomes simple by satisfaction of the condition, vivo testatore ? May we not say that the rule should not apply, and the legacy should stand, if the slave is not the property of the heres at dies cedens ? For it would not have failed if the testator had died when he made the will, which is the test of Celsus².

The case of a legacy of A’s property to As slave has been supposed to create a difficulty. We are told that such a legacy is valid’. It has been said however that, as it would be null, if the testator died at once, it infringes the regula and might be expected to be void. Several attempts to explain the rule have been made on these assumptions¹. But the text says not a word about the regula Catoniana, and it is clear, on an unbiassed reading of it, that Paul is talking of a legacy which he regards as absolutely valid’, and in no way dependent on alienation or manumission of the slave. It is a strong expression of the slave’s individuality: cum enim, says the text, servo alieno aliquid testa­mento damus, domini persona ad hoc tantum inspidtur ut sit eum eo testamenti factio, ceterum ex persona servi constitit legatum. The heir must give the dominus the value of the thing. The case is thus easily distinguished from that of legacy to a slave of the heres, which must be meaningless, if the testator die at once, since the heres would have to pay himself, and from that of a legacy to A of his own property, which would be valid only if there were a condition, si vivo testatore id alienaveris, or the like⁶.

Doubtless this recognition of the slave’s individuality is progressive, but here as in institutions, it may be said that the rule, in the later classical law, was that the full effect of duality was allowed, except where it amounted to an evasion of some restrictive law⁷. An interesting case somewhat analogous to that which we have been discussing is con­sidered by Africanus. A legacy is left by X to A. B makes a donatio of the same thing to A’s slave. The master can still sue ex testamento, notwithstanding the rule as to duae lucrdtivae causae. This is not covered by Paul’s rule, since a donatio is not a testamentary gift, and Paul’s general proposition applies only to these. But Africanus⁸, writing earlier than Paul, though probably as late as Valens, does not rest his decision on this principle, but on a rather more subtle idea. He says that if the gift had been a discharge of the legacy, so would a similar gift from the heres of X. This he says is inadmissible, since a debt to

¹ 35. 1. 89..

² 34. 7. 1. pr. media tempora non nocent, 28. 5. 6. 2. The principle if not the maxim applies to matters other than institutions. See, e.g. G. 2.196.

⁸ 31. 82. 2. Paul, quoting Valens. ⁴ Machelard, op. cit. 5O6sqq.

⁶ Pellat, Revue Historique de Droit, 9. 224. ⁶ 34. 7. 1. 2; In. 2. 20. 10.

’ Ante, p. 140. ⁸ 30. 108. 1.

the dominus is not discharged by a payment, invito eo, to the slave¹. This is indeed a recognition of individuality, but of a very different kind: it expresses the principle that a slave cannot bind his dominus².

A legacy to a slave, post mortem domini, is valid, says Gaius³. It goes to the heres even though the slave is freed by his master’s will, since dies cedit on the death, and the liberty is not operative till later. If however the heres is a necessarius, the text says doubtfully that it will go to the slave, as both events occur at the same time. A text which is a model of ambiguity seems to discuss a converse case⁴. If a slave is legated and the will contains a gift to him cum morietur ipse servus, this is valid. It is not obvious why there was any doubt. The text adds by way of reason : propterea quod moriente servo, id quod ipsi legatum erit ad eum cui ipse legatus fuerit perventurum sit. There may have been doubt as to whether this was not a conditional legacy, which might fail because it did not vest in the life, of the legatee, but Papinian and Ulpian³ are clear that there is no condition.

Where a will was upset by bonorum possessio contra tabulas, legacies to a slave were not saved though the dominus was one of those persons, legacies to whom were still good: we are not to enquire who benefits, but whom it was intended to honour⁶.

One text, of Julian, gives an odd illustration of the duality we are discussing. A slave is left, generaliter, to P the slave of T. After dies cedens, T frees P. If T chooses a slave, extinguitur Pamphili legatum, quia non esset in hereditate qui optari possit. But if T repudiates P can choose. For though by the manumission two distinct personae are established, yet there is an alternative legacy of one thing between them, so that if T vindicates, the option is at an end, but if he repudiates P can choose. The text⁷ lays down strange doctrine. The case is one of legatum generis, for dies cedit before choice, and T “ vindicates ” the man he chooses. But, as we have seen, dies cedens fixes the legacy on T, and P’s manumission after that date can give him no right: if T repudiates the heres should benefit⁸. The text may have been altered’, but, even so, it is difficult either to restore the

¹ C. 8. 42. 19.

² Post, p. 163. The text adds, after the statement that the legacy is still valid, the words, et maxime si ignorem meam factam esse. If this is limitative, it destroys the rule, for the heres will see that the legatee is informed. The grammar is doubtful, and there is corruption: the words are probably interpolated.

⁸ 30. 68. 1. Conversely a legacy of a usufruct to a slave post mortem suam is bad. V. Fr. 57. Whether, in classical law, an ordinary legacy to him post mortem suam was bad is not stated. It is hardly â€? within the mischief ’ of the rule.

* 30. 107. 1. ⁶ 36. 2. 4; 35. 1. 79. pr.

⁶ 37. 5. 3. 2. The existence of fideicommissa tacita involved forfeiture: Trajan provided that the beneficiary could keep half if he informed the Fisc, but he could not avail himself of this if the fideicommissum were to his slave, 49. 14. 13. 8. 7 33. 5. xo.

⁸ Ante, p. 145. Even if we treat it as I. optionis, it is no better: the text makes T capable of making the legacy vest in his favour after he lias freed P, a thing impossible.

⁹ Note the expression dies cesserit, the absurd reason given for the fact that, if T chooses, P is barred, and the accumulation of hypotheses. See Eisele, Z. S. S. 7.19 sqq. original form, or to say what principle it expresses for Justinian’s time. As it stands it interprets the gift as if it were “ to T and if T refuses then to P.” It is a sort of substitution, and the alternative legacy to P does not cede till he is freed, so that he can take it. This interpretation is suggested by the words inter eas vertitur¹ and by the fact that T’s vindication or repudiation is supposed to occur after the manumission: if it occurred before, the case would be that discussed elsewhere by Julian himself² of a gift to A and another gift of the same thing to A’s slave. If A refuses the gift to himself he can still claim under the gift to the slave.

The law as to Ademption of legacies gives rise to several points of interest. If a legacy is left to a slave, the inference is that, no matter who ultimately benefits, the slave is the person the testator had in mind, and thus it can be adeemed only from him and not from his dominus*. There are more striking results. If a slave is legated and there is a legacy to him, and he is sold or freed, this may be, and usually is, ademption of the legacy of him⁴. But intent to deprive the donee of the slave is not necessarily intent to revoke the gift to the slave, and thus we are told, by Julian, that if on such facts the slave is sold or freed, the legacy to the slave is due to his buyer or to himself·. So too there may be a legacy to a freed slave, and alienation of the slave is an ademption of the gift of liberty⁶. Express ademption of the gift of liberty destroys the legacy to him⁷, for the legacy has come into a position in which it could not have begun⁸. But it does not seem that sale of him would necessarily do so, at all events in late classical law. Thus Paul’ deals with a case in which there was a legacy with liberty to a slave. The slave was sold and the liberty thereafter expressly adeemed. The ademption he says is strictly ineffective, since as the slave is now alienus the liberty is already gone. Yet as the slave might be rebought the ademptio is not a mere nullity, and thus it has its indirect effect of adeeming the legacy to him, which will not go to his buyer¹⁰. If he had been freed, instead of sold, the ademption must be an absolute nullity, and therefore says Paul, (though there had been disputes,) it will not destroy any legacy, which the will gave him with his liberty: supervacua scriptura non nocet legato¹¹. The distinction between the two cases is that while you can contemplate repurchase you cannot contemplate reenslavement, nec enim fas est eiusmodi casus exspectari¹². If he is reenslaved, he is a new man. This distinction

¹ So also by the words si T vindicaverit, extinguitur Pamphili legatum.

² 30. 10. 1. ⁸ 34. 4. 21; 37. 5. 3. 2.

* 34. 4. 18; In. 2. 20. 12. ⁵ 30. 91. 2, 3, 5.

⁶ Post, Ch. xx. 1 34. 4. 32. 1; post, Ch. xx.

⁸ It is a simple legacy to a slave of the testator, 34. 8. 3. 2. ⁸ 34. 4. 26. pr.

io 34. 4. 26. pr. 11 h. 1.1. 1« 18.1. 6. pr., 34. 2; 45.1. 83. 5. is overlooked by Salkowski, who regards the distinction drawn as sophistical¹. He seems indeed to consider these cases as in some sort evasions of the regula Catoniana. But neither of them seems to con­flict in any way with that rule. Even if we consider dates between the making and the death to come into account, which is far from certain, there is no moment in which a legacy to that slave would be necessarily bad².

In the adjoining text Paul deals with the analogous case of a slave legated with a legacy to him. One would expect the same decision, for if ademption of his liberty by alienation or freeing does not adeem a gift to him, neither certainly will ademption of a gift of him in the same ways. But the text presents some difficulty. It remarks that if a slave, legatus with a legacy to him, is sold and the legacy to him is adeemed the ademption is good. This is clear, but Paul adds the reason, quia et legaium potest procedure si redimatur³. This implies that ademptio, by sale, of the gift of him adeemed the gift to him, for, unless the allusion is to the revival of both gifts by the repurchase, it is not to the point. This part of the text is, so far as its reasoning goes, (but no further,) in conflict with accepted doctrine⁴. Cujas explains it by supposing the legacy given contemplations legatarii cui serous relictus est³, but he gives no authority germane to the matter, and the text is quite general. The simplest solution is to suppose it one of the not uncommon cases in which Paul gives a correct rule, with a wrong reason⁶.

From the principle that the personality of the slave is considered in relation to every thing but testamenti factio, it follows that if the slave be dead at the time of dies cedens, the gift will fail⁷. A more striking application of the same principle is found in the rule laid down, by Julian, Papinian and Paul, that no legacy could be made to a servus alienus unless the gift would have been Valid if left to him when free⁸. The only illustration we have is that of a legacy of a praedial servitude to a slave: such a gift is bad, though he could stipulate quite effectively for it, provided the dominus owned the land to which it was to attach’. A text of Maecianus says: servitus servo praedium habenti recte legatur'³, which seems to mean that the rule did not apply if the fundus were in

¹ Sklavenerwerb, 32, n. 59.

³ A simple ademption, leaving the slave in the possession of the testator, would destroy the legacy (28. 5. 38. 4), not however by reason of the regula Catoniana. Gifts to a slave of the testator are bad whether simple or conditional (28. 5. 77; 30. 102; C. 6. 37. 4), and the regula does not affect conditional gifts, 34. 7. 3.

⁸34. 4. 27. pr.

* The text then says that if a slave legated is freed inter vivos, an ademption of the legacy of him is a nullity, and therefore he will take any legacy to him. The reason is that he is if reenslaved a new man (34. 4. 27. 1). Here too is the idea that ademption of a gift of him adeems a gift to him, but this is clear: it is a case of direct ademption. It implies also that manumission though it adeems the legacy of him does not affect the gift to him.

⁶ Cujas, cited Pothier ad h. I. ⁶ See post, Ch. xx.

f 31. 59; 36. 2. 16. 1. ⁸ 31. 82. 2; 33. 3. 5.

⁹33. 3. 5; 45. 3. 17; V. Fr. 56. ¹⁰ 32.17.1.

ch. VI] Acceptance and Repudiation of Legacies 151 the slave’s peculium. Mommsen¹ disbelieves the text and amends it so as to destroy its application to slaves. This may be because a slave cannot strictly be said habere. But the word was freely used in a loose sense in the case of slaves^{[659] [660], and the text is in harmony with the whole tendency of the law, since it is no doubt from the notion of peculwm that the recognition of the slave’s individuality started[661]. A converse case is considered by Ulpian[662] [663]. A legacy is made, to a slave, of a militia, i.e. an office of the kind which had become vendible. A slave could not hold such an office. The master was not the donee. But the slave could have held it if free. Accordingly the gift is good, the master getting the value of the office’. We learn incidentally, from this text, that, if the testator supposes a slave legatee to be free, the gift is not good, at any rate if the thing is one he would not knowingly have left to a slave[664].}

It is stated by Paul^[665] that the dominus can repudiate a legacy to his slave. It is equally clearly stated, by Modestinus, that he cannot so repudiate a fideicommissum to him^[666]. The reason why legacy was put on this footing seems to be that is repudiare potest qui et acquirere potest^[667], and a legacy to a slave, according to the doctrine which pre­vailed^[668], vests in the legatee, with no act, immediately on aditio. As it cannot vest in the slave it is in the master, and it is therefore for him agnoscere or repudiare. In fideicommissa, there is no such transition of ownership: the property passes only on restitutio. The probable reason why, though the dominus can accept, he cannot repudiate is that the conception of repudiation is not applicable at all to fideicommissa, and indeed our text does not say that the dominus cannot repudiate, but that a fideicommissum cannot be repudiated. All that the beneficiary has is a sort of obligation, which can of course be released in certain formal ways, like other obligations. As the text goes on to say, an informal act could at most give rise to an exceptio doli.

If a gift be made to a slave, mortis causa, it is a question of intent whether it is his death or that of his master, vivo donatore, which gives rise to a condictio for recovery".

As to the acquisition of iura in re aliena, the only cases as to which we have any authority are those of ususfructus and the like. We have

152 Acquisition of lura in Re Aliena [pt. i

seen that, except in case of peculium, a slave cannot acquire a praedial servitude by will¹. He can acquire it inter vivos, and ususfructus, usus, habitatio, and operae servorum can be acquired by him in all the ordinary ways’. As a slave’s possession is his master’s, so is his enjoy­ment of a servitude³. It is in connexion with these rights that we get the most striking illustrations of the principle that in gifts by will the personality of the slave is most considered, that of the master being material only so far as testamenii factio is concerned. A legacy of usufruct, whether to a slave or not, vests only when the heir enters⁴. The reason, credited by Ulpian to Julian, is: tunc enim constituitur ususfructus cum quis iam frui potest*. If the slave were dead at that time, the gift would of course fail⁶. But, in the classical law, the usufruct failed at once whenever the slave died, if it had been left pure, per vindicationem⁷. And since the right has taken effect in the master, but still attaches to the individuality of the slave, the same effect is produced if the slave be alienated or freed⁸. If it was created inter vivos, the slave’s individuality is not considered, and thus it is not affected by these facts. Moreover though, as we have seen, a legacy to a slave, post mortem suam, must fail, he can validly stipulate for a usufruct in this form⁹.

What is true of creation inter vivos is no doubt also true of creation by legatum per damnationem, or by fideicommissum, which have to be completed inter vivos. One text suggests the question whether, in the case of a conditional legacy, the usufruct is constituted ex persona servi. The text says that if two slaves are instituted and there is a simple legacy of land to X, deducto usufructu, the usufruct is based on the persona of the slave, but that if the legacy of the land was conditional, it is ex persona domini^w. Here the usufruct is regarded not as a part of the dominium, but as a distinct thing, which does not exist till the condition occurs and the land passes¹¹. The land then passes directly from the master, leaving the usufruct in him: the slaves do not appear in the matter. If the legacy of land had been simple, the usufruct would have sprung into existence at aditio, and would have been a normal acquisition ere testamento, through the slaves. But the same point would not arise in a direct legacy of usufruct. The

¹ Ante, p. 151.

² 7.1. 6.2, 3; 7. 8. 17; 36. 2. 9; V. Ft. 82. If a slave demands a precarium, ratihabente aut auctore domino, the dominus has it, and is liable to the interdict. If he did not consent there is only depeculio, or de in rem verso, 43. 26. 13. See ante, p. 134.

⁸43. 19. 3. 4. 4 7. 3.1. 2; V. Fr. 60.

⁶ Labeo had held a different opinion, i.e. that they ceded like other legacies (V. Fr. 60). But the chief advantage, that of transmissibility, did not arise here.

⁶ 36. 2. 16. 1. TV. Fr. 57. a lb.·, C. 3. 33. 17.

⁹ V. Fr. 57. Creation of usufruct in a slave in whom you have a usufruct does not affect it, 7. 4. 5.1.

¹⁰ V. Fr. 82.

¹¹ 46. 4.13. 2. It was looked at in both ways. Roby, de usufructu, 42. oh. vi] Acquisition of Usufruct. Ius Accrescendi 153

usufruct, even where it is left conditionally, comes to the master directly through the slave. And the principal text is quite general^[669].

Several texts discuss difficulties arising in the application of these principles, in cases, like the foregoing, where the gift is to two, the question being usually as to the existence of ius accrescendi. Justinian’ tells us that if one of two slaves through whom, or part of the slave through whom, the usufruct was acquired, were alienated, there had been doubt as to the effect on the usufruct. Some held it wholly destroyed; some pro parte lost; others, including Julian, held that it remained unaffected. This view Justinian adopted, before he passed the enactment sweeping away the importance of the continued owner­ship in all cases³. This is a case of ius accrescendi; it is so explained by Julian and Pomponius, cited by Ulpian, in the analogous cases of death of one of the slaves, or repudiation of the gift so far as it was acquired through one of them⁴. These and similar matters were the subject of much discussion, the doctrines being ultimately settled by J ulian.

In order to state them, as far as they are known, it is necessary to examine some questions of more general kind among the many to which the thorny topic of legacy of usufruct gives rise.

It is clear that there is ius accrescendi between fructuaries, if the thing is left per vindicationem coniunctim, or disiunctim, but not where it is left separately to two in parts⁵. And though there is ius accrescendi similarly in a legacy of property, there is the difference that in that case it occurs only if the gift never really takes effect in one of them: here it arises, even in case of subsequent failure⁸. Accordingly if it is left to two of a man’s slaves, the owner has ius accrescendi, as we have just seen⁷. How if it is left to a common slave, and one master loses or repudiates it? Ulpian quotes an array of jurists on this point—himself adopting Julian’s view that in such a case the other holder gets all. To the objection that there ought to be no more accrual here than there would be, e.g., where the holder of a usufruct loses by nonuse the usufruct of a divided part of it, he replies that it is not a question of ius accrescendi, but that so long as the slave whose persona is considered is his, no part ought to perish. The objection thus met seems to rest on the notion that the acquisition to the common owners is ab initio in parts, and the reply emphasises the individuality of the slave and also expresses the idea of continuous acquisition⁸. In the legacy of a usufruct to a slave however owned the acquisition is a single one made by him. Thus if it

154 Acquisition of Usufruct. lus Accrescendi [pt. i were left to a common slave and T, then on lapse of the share of one common owner, all goes to the other, not to T¹. The case is contrasted with that in which two heirs are instituted, and land is left to X, deducto usufructu. Here all are agreed that the heirs will have no ius accre­scendi. Julian assigns as the reason : videri usumfructum constitutum non per concursum divisum—an obscure expression which must mean “ originally created in partes*,” since it is added that this agrees with the view of Celsus, that there is ius accrescendi only where it was divided concursu, in duobus qui solidum habuerunt^{[670] [671] [672] [673] [674]. Celsus and Neratius apply the same rule in the case of common owners who mancipate, deducto usufructu*. There is no accrual. Consistently with this it is said by Ulpian, on the authority of Julian, Pomponius and Neratius, that if two slaves are instituted and there is a legacy of land, deducto usufructu, there is no ius accrescendi on lapse of the part acquired by either slave, but the legatee of the land gets the benefit[675]. The case of a common slave instituted, with the. same gift to an extraneus, is not considered: presumably in such a case the co-owner would benefit by a lapse, on the principle laid down by Ulpian in the case of legacy’: it is not exactly ius accrescendi. But this question is bound up with that whether the institution of a common slave was one institution or two—a matter which will call for discussion later[676].}

A principle running through all these cases is, that where two persons receive a gift by institution, they are regarded as taking distinct parts ab initio, while in a case of joint legacy, each is prima facie entitled to the whole: it is the accident that there are two of them which compels division^[677].

Justinian^[678] provided that however a usufruct was acquired through a slave, it was not to be affected by death, alienation, or manumission of him. This enactment lessened the possible cases of lapse and so far simplified the law. But it does not involve any general alteration of the way in which gifts were affected by the fact that they were acquired through slaves. And thus most of these rules pass into the Digest^[679].

In relation to iura in personam, the governing principle, that a slave can better our position but cannot deteriorate it¹¹, has many obvious illustrations. The slave has the power of stipulating ex persona domini ch. vi] Acquisition of lura in Personam 155

and the right vests in the dominus¹. He acquires invito, even vetanie, domino, even where it is an acquisition involving liabilities^{[680] [681]. But here the risk is not with the dominus until he knows and assents, nor, till then, can he be guilty of culpa in relation to the matter. Thus, we are told, in a case of such a promise of Dos, that, as it is an unfair acquisition, the other party has a right to a condictio for repayment, or release, as the case may be[682]. As a stipulation derives its force ex praesenti, the dominus acquires the right even though its operation be postponed, by condition or otherwise, till after alienation or manumission[683] [684]. It is indifferent whether the slave names himself or his master or a fellow­slave or no one[685]. His stipulation, domino aut extraneo, is valid : his master alone can sue, but the extraneus being regarded as solutionis causa adjectus, payment can be made to him6. On similar principles an acceptilatio taken by a slave on his transaction, or his master’s, bars action against the latter[686]. A slave’s capacity for stipulation being purely derivative, there are many limitations on it. Thus one who has no owner, a derelict, cannot stipulate[687], and a slave cannot make a stipulation which would not be good in substance if made by his master[688]. He cannot stipulate for a praedial servitude, unless the master has the praedium to which it is to attach[689] [690]. As a slave derives his capacity from his master, it might be supposed that he could not have more than the master had. But this would have involved inconvenience, and it is clear that for a master incapable of contracting from mental or physical defect, the slave could stipulate". The rule seems illogical, but its illogicality is concealed by the fact that a slave’s stipulation, as we have seen, did not require the consent or knowledge of the master.}

The difference of individuality has many marked effects in this connexion. A slave could not be adstipulator, this form of obligation being essentially personal^[691]. A slave’s contract is, for the purpose of jurisdiction, made at his domicile, rather than his master’s¹³. There is a very important rule that quae facti sunt non transeunt ad dominum¹*. This means in effect that the terms of the stipulation are to be literally interpreted, and thus where the stipulation involves any act to be done 156 Effect of Slave’s Stipulation for a Right [pt. i by or to the slave, it cannot be done by or to the master, though it is he who will enforce the contract if need be. Thus if a slave stipulates that he may be allowed to cross a field it is he who may do so, not his master¹. If he stipulates for this thing or that, as he shall choose, the choice is personal. But no question of dies cedens arises as in legacy, and if the slave dies before choosing, the right to choose passes to the master^{[692] [693]. If A promises to pay to me “ or to the slave of T,” it is no discharge to pay the money to T: he is not the solutionis causa adiectus[694]. But the maxim, quae facti sunt non transeunt, does not adequately express the rule. It is wider: nothing which is expressed to be done to the slave, or had by him, transit ad dominum, whether it be expressed as a matter of fact, or as a legal right. This leads to difficulties. If he simply stipulates for a right the matter is clear. But if he stipulates that he is to have that right, there is the obstacle that a slave is in­capable of a right. He cannot acquire the right to himself, and the mention of himself excludes the dominus. Julian thought that even such expressions as sibi habere licere and possidere licere, prima fade express a right, and so vitiate the stipulation. But Ulpian found a more reasonable way. Such words, he says, admit of being understood otherwise, as expressing merely detention, of which a slave is capable, and the accepted rule of the Digest is that where a slave so contracts, the words are to be so construed[695] [696]. The result is that his master has a different right from that which would have been created if the word mihi had not been used[697]. There is no trace of the further step of ignoring that word. If the stipulation refer to something that does not admit of such an interpretation as excludes the question of right, it is void, even under Justinian. Thus if a slave of the patron stipulates with a libertus that operae shall be rendered to him this is void, though if he does not say mihi it is quite good. This is laid down by Pomponius and Celsus, and similar rules are expressed by Ulpian and Papinian[698]. This hidebound logic seems out of place in the law of Justinian. The recognition of the slave’s individuality was due to considerations of convenience, and common sense, which might have led to its being disregarded in this case[699].}

Justinian’s enactments as to cautiones shew that the same principles were applied in the case of other unilateral contracts⁸.

ch. vi] Bilateral Contracts by Slave 157

In relation to bilateral contracts the matter is more complex. The general rule is that the slave binds the other party to his master, but not vice versa, apart from cases within the special praetorian remedies to be later discussed. But it is easy to state cases in which this rule would operate unjustly. Accordingly while the principle that the dominus could not be sued on his slave’s contract remained intact, his enforcement of his rights thereunder was made subject to his satisfying the claim of the other party. If he sued on his slave’s contract, com- pensaiio would be in solidum, though he could have been sued only de peculio¹. Where a slave bought, the master had an actio ex enipto against the vendor^{[700] [701], but to entitle himself to sue he must pay the whole price[702]. Where A buys B’s slave S from a thief and S buys a man V, B acquires the actio ex empto against the seller of V, subject to his paying all that would have been due had V been bought by a free man[703].}

But here too the individuality of the slave is material in many ways. It was penal to buy a res litigiosa knowingly. If a slave bought, knowingly, the penalty attached, unless it was under special mandate: in that case the master’s knowledge, and his alone, was material^[704]. In the actio redhibitoria the same principle applied: it was the slave’s scientia which barred the action unless it was under special mandate, in which case the master’s knowledge was material^[705]. The text remarks that good faith requires that deception of the slave should not hurt the master, while deception by him should^[706].

If the buyer from a slave is evicted he must give notice to the slave himself if he is alive^[707]. If a slave is to be free on paying to the heir there was a rule that if alienated he must pay it to the buyer^[708]. But if a slave were the buyer, the payment must be made, apart from peculium, not to him but to his dominus, notwithstanding this principle^{[709] [710]. This provision is probably due to the wording of the original rule in the XII Tables, where the word used was emptor, which means not buyer but acquirer11. This is not the slave but his master.}

There is less authority in relation to other contracts, but the principles are the same. The dominus can avail himself of a mandate by or to the slave even given against his will¹². If my slave commodates

158 Acquisition of lura in Personam [pt. i, ch. vi against my will I can sue the commodatarius¹. In the same way a constitutum may be made to a slave and he acquires the right to his master though the agreement be to pay the money to him².

Some contractual rights are acquired only as the result of an alienation. We shall see later that these require authorisation as the alienation does. Thus if a slave lends money without authority, there is no actio ex mutuo, but the money can be vindicated². If he pay under a fideiussio duly authorised, the owner will have actio mandati*. But if there was no authority to alienate the money, there can be no such action®.

If in order to benefit me, X paid under a fideiussio I had under­taken, I was entitled to recover the money from the principal debtor: it was as if I had paid®. If the fideiussio had been by my son or slave, and the intent was to benefit him and not me, I had, says Ulpian, quoting Marcellus⁷, no actio mandati against the principal debtor, though he is released. It is presumably the expressed intent not to benefit the dominus which excludes him; but one would have expected the action to be allowed, the proceeds being in peculio*.

Rights ex delicto are acquired in the same way. Thus the master has actio furti for what is stolen from his slave⁹. If it was a thing borrowed by the slave the master is entitled to actio furti so far as he is liable de peculio™. If my slaves are ejected I am entitled to the interdict de vi¹¹. Work done against my slaves’ opposition or concealed from them entitles me to the interdict quod vi aut clam¹². It may be added that delictal actions and condictio furtiva acquired through the slave are not lost by alienation or manumission of him¹²

In general the recognition of the slave’s individuality is the satis­faction of an obvious practical need, and the restrictions on it, though sometimes compelled by the words of an enactment, are for the most part inspired by considerations of the same kind. The texts provide a simple illustration of this. We are told that a master cannot get restitutio in integrum on the transaction of a minor slave. The point is that as no such transaction can bind the master unless he has in some way authorised it, he has himself to blame—sibi debebit imputare, cur rem minori commisit¹*.

¹ 13. 6. 14. If the latter knew that the slave had no business to do it, there would be furti as well. Where on similar facts the commodatarius pledged the thing, the pledgee refused to restore it till he was paid. The text discusses the circumstances under which the money could be recovered, but assumes the validity of the commodatum, 12. 6. 36.

² 13. 5.10. A master does not lose his action of deposit acquired through the slave by the alienation or manumission of the slave, 16. 3.1.17, 30.

⁸ 12. 1. 11. 2. See p. 159. < 17. 1. 12. 3.

5 46. 1. 19. As to difficulties rvhere he has administratio peculii, post, Ch. vni.

6 17. 1. 12.1. 1 h. I. 2.

8 The allusion to the slave may be interpolated: it is not carried through the text. Under many circumstances the son might have actio mandati.

9 P. 2. 31. 20. ¹⁰ 47. 2. 52. 9. ¹¹ 43. 16.1. 22.

12 43. 24. 3. pr. I⁸ 44. 7. 56. ¹⁴ 4. 4. 3. 11, 23.