CHAPTER VIII. THE SLAVE AS MAN. COMMERCIAL RELATIONS. PECULlUli. ACQUISITIONS, ALIENATIONS, ETC.

(3) There remained another development. If a slave contracted, the right of action was in the master, and was not at first regarded as part of the peculium. Gradually however such rights, in re peculiari, were regarded as part of the peculium for certain purposes, though their realisation would require the cooperation of the master. On the other hand, the slave’s debts to third parties were not treated as deductions from the peculium, but this turned on considerations connected with the actio de peculio, to be considered later. In the same way debts due from the master himself were included, though it is clear that this was a later development^{[803] [804]. On the other hand, debts due to the master were deducted as against other creditors, for reasons also to be considered later. These debts from slave to master, and from master to slave[805] [806], constituted, when they were recognised, a very important factor in the peculium’. To say money is owed to or by a slave is in strictness an inaccurate mode of expression: it is the master who can sue, and with certain limitations, be sued. But the usual form of words expresses the fact, with its legal consequences, that the obligation is contracted semi nomine1.}

As we shall see later, peculium is a collective term: it covers physical things and obligations, and is liable to deductions on account of claims due from it. Thus it has a significance other than that of the specific things which make it up.

The detachment of the fund from the master and establishment of it as a sort of property of the slave, is expressed in a host of rules, some of which may be mentioned here by way of illustration.

Slaves might have procurators to manage affairs of the peculium'. In the case of claim of a slave, if the slave died, the action must continue, to determine whose was the peculium^{[808] [809] [810] [811] [812] [813]. A stolen res peculiaris ceased to be furtiva on getting back to the peculium, and conversely, if a slave handled his res peculiares with fraudulent intent, they did not become furtivae till they reached a third person’. Upon manumission of a slave, inter vivos, whether vindicta or informally, he took his peculium, unless it was expressly reserved*. What passed on such a manumission was merely the physical things: there was no question of universal succession, and thus rights of action did not pass, nisi mandatis...actionibus*. It does not appear that cession could be claimed as of right, for in one text, in which the point arose, an express but informal gift of the rights of action was ineffective’. The principle seems to have been that the presumption applied only to those things of which the slave was in actual enjoyment. As to these it was appa­rently treated as a case of donatio inter vivos, completed by the slave’s possession after freedom.}

The reason for the distinction between the two cases, a distinction of old standing⁴, is not stated. The peculium is res hereditaria⁶, and perhaps the governing idea is that the heres is not to be deprived by a too easy presumption. In accordance with this is the above rule of the Syro-Roman⁶ Law-book: in the place and time at which that rule was law, the presumption, even in manumission inter vivos, was only of intent to deprive himself.

It is noticeable that if on such a manumission there was a gift of the peculium, the libertus had a right to claim transfer of actions, as debts due to the peculium were a part of it⁷.

There are a number of special rules to consider in the case of a legacy of the peculium, either to the slave or to an extraneus*. Peculium is a word with a recognised denotation, and in general means the same whether it is being defined in view of a slave legatee or an extraneus legatee or a creditor having claims on it¹. But as a gift of the peculium is a voluntary benefit, the donor can vary, enlarge or restrict it, as he pleases, whereas, when he is being sued on it, there is need of an exact definition of the peculium, so that neither party can vary it as against the other¹¹.

¹ 33. 8. 23. 2, 3. » 33. 8. 8. 3, 7 ; In. 2. 20. 20.

⁸ 35. 1. 57; 40. 7. 3. 1, 3. 7, 31. 1, 39; C. 4. 6. 9. Ab to difficulties in connexion with these payments, »oat, Ch. xxi.

< C. 7. 23. ⁸ 5. 3. 13. 6. ⁸ See p. 189, n. 6.

^I 33. 8.19.1. The legacy is a completed gift. If ordered to restore peculium he must give everything, not deducting anything for debts due to the master though these ipeo facto reduce the peculium, 40. 5. 41. 8.

⁸ Mandry, op. at. 2.182 sjj.; Karlowa, op. at. 2. 1137 syy.

⁸ Whether a legatee is claiming or a creditor is suing in respect of it, debts to dominue are deducted from the apparent mass, 33. 8. 6. pr.

io Karlowa observes (fee. cit.) that the frequency and form of references to legacy of peculium shew that it was common and of scientific interest. In fact the rules in the Digest are a compromise among conflicting tendencies.

^II 31. 2, 6. ¹⁸ 6. 1. 56; cp. In. 2. 20.18. of a peculium, even where the result is in conflict with expressed intention.

A legacy of the peculium to the slave himself includes all acquisitions up to the time of dies cedens, while, if it is left to an extraneus, nothing goes to the legatee which has accrued since the death, except ordinary accretions to the peculiares res^[816].

The question arises whether a legacy of peculium can be made, by anticipation, at a time when no peculium yet exists. The single text· says that it is immaterial that there be at the moment nihil in peculio. This implies an existing peculium, but one either overburdened with debts, or such that at the moment it is without assets, but the text continues non enim tantum praesens sed etiam futurum peculium legari potest. This may mean that it is immaterial whether there is any

1 Not, e.g., acquisitions ex opens, or ex aliena re, gifts, etc. 15. 1. 57. 1, 2; 33. 8. 8. 8; In. 2. 20. 20.

³ Ibid. Mandry seems to treat this as Ulpian's gloss, but both Tryphoninus and Ulpian speak of Julian as so accounting for the rule.

« 36. 2. 8; In. 2. 20. 17, 20. < In. 2. 20. 20.

6 Even a grex, to which the general rule applied, has a unity very different from that of a peculium, In. 2. 20.18. ⁶ 33. 8.11; cp. 32.11. pr. peculium at the time, and it is probable that this was the case. We hear of legacies of “all my slaves with their peculia',” and it is unlikely that a distinction would be drawn excluding those peculia which had been created after the will was made. But here another question arises. Legacies of peculium seem usually to have been made per vindicationem*, though there are cases recorded of gifts by fideicommissum³. Principle requires that what is left, per vindica­tionem, shall belong to the testator at the time of testation, and so far as we are expressly told this was departed from only in the case of “ fungibles⁴.” Accordingly Karlowa⁸ holds that a legacy per vindica­tionem of a peculium would have failed, before the Sc. Neronianum, as to after acquired things, since the texts give no hint of any relaxation in the case of peculium. Thus the testator if he wished to ensure the full efficacy of his gift would have to fall back on the form per damna­tionem³. Mandry⁷, on the other hand, holds that the restriction did not apply, that the peculium was considered as a unity, distinct from its content, and that this view, settled in early times, was adhered to in later ages, on grounds of convenience, whatever logical objections might be made to it⁸.

In all these rules the conception of the peculium as a unity has played a part; but this conception is entirely disregarded when the legatee sues for the property. He cannot bring a general action, but must sue for the specific things⁹. This is easily understood. The unity of the peculium is not intrinsic: it depends on its existence as a separate fund in the hands of the slave. When that separation has ceased, as it has in the typical case where the slave is the legatee, it differs in no way from other possessions of the person who has it. This excludes such an action as the vindicatio gregis¹³, but not an action analogous to hereditatis petitio. Such an action would however be an express creation, and apart from the less importance of the case, the analogy is defective. The hereditatis petitio vibs, primarily aimed at adverse assertors of the same title^{1 [817], a restriction which would make the action meaningless here. And whereas the heres, by aditio, has become seised of all the rights in the hereditas, we know that the legatee of peculium has not acquired the rights of action: he cannot “intend”}

that the peculium is his as the heir can say the hereditas is his, and the possibility of this assertion is the theoretical basis of the hereditatis petitio^[818].

We have now to consider how debts due to the peculium, and from it, are dealt with. Such debts are of several kinds. There may be debts due from the master, as the result of negotia between him and the slave; there may be debts due from him as having recovered from third persons debts due to the peculium; there may be debts due from outsiders, not yet recovered. On the other hand there may be debts due to the dominus and to other persons in the family, and there may also be debts to outsiders. On each of these cases there are some remarks to be made.

Apart from special questions of construction resulting from ex­ceptional facts, or from the use of exceptional words, a gift of peculium means, in general, a gift of the nett peculium, i.e. the fund which would be available to a creditor de peculio. The extent of this will be considered in the next chapter: here it is enough to state the general principle. Debts due to the dominus are deducted², as also are those due to the heres³, even though, owing to the fact that the gift of liberty was unconditional, he was never dominus*. In like manner debts to fellow slaves are deducted⁵, but not, for obvious reasons, those due to a OTcanws of the slave⁸. Debts will ordinarily result from negotia, but they may not. Thus if a slave has stolen or damaged property of his master, e.g. a fellow slave, the damage may be deducted, but only in simplum⁷.

As the vindication is only of specific things, and the debts are chargeable pro rata, the legatee, where there are debts, will be entitled only to a part of the thing sued for. Accordingly we are told that he has a vindicatio incertae partis³, since it cannot be known with certainty, beforehand, how much must be deducted⁹. It follows that before any judgment can be given in this vindicatio it must be made clear what the total fund and burdens are, and this difficulty has led to the view that all can be vindicated at once, i.e. in one formula. But, as Mandry observes¹⁰, trial of all by one index. would serve the same purpose^[819].

As in the actio de peculio, debts to third persons are not deducted¹² But inasmuch as the legatee is not always liable as such, the heres is not bound to hand over the peculiares res till security is given for debts to extranei on contract, or the like, and even on noxae which are already in iudicio¹.

No right to sue debtors to the peculium passes ipso facto by the legacy: obligations cannot pass without express cession of actions. It is clear that the legatee can require the heres to cede to him the right of action against debtors to the peculium, and to pay over to him anything recovered in any such action, and anything he himself owes* though the debt accrued after the death of the testator^[820]. The texts say nothing of the possible case of natural obligations to the peculium, but it must be assumed that if they are in any way paid to the heres, he must hand over the money received.

As to debts due from the master there is some difficulty. It is clear that a mere acknowledgment of indebtedness does not create a debt, and gives no right to claim^{[821] [822] [823] [824] [825] [826] [827]. Severus and Caracalla go further and lay it down that a legacy of peculium does not of itself entitle the legatee to claim to have money returned to him which he has expended out of the peculium on the master’s affairs’. This appears to be a rule of construction, resting on no general principle. Accordingly Ulpian observes4 that there is no reason why he should not have it, if the testator so intended, and he adds that, in any case, he is entitled to set off such a claim against debts due to the dominus. And Scaevola appears as holding, in a case in which a slave set up such a claim, and it was proved that it was the settled practice of the testator to refund such payments, that the slave was entitled to recover the money’. Here too the decision seems to be one of construction, resting on the proved custom. But Scaevola was writing before the date of the rescript, and it is possible to doubt whether the text is a mere survival, or is preserved by the compilers as expressing a limitation of the rescript on the lines suggested by Ulpian.}

In any case, the concluding words of this text, coupled with the feet that the heres must pay over what he owes, and what he has received from debtors to the peculium', shew that other debts due from the dominus, e.g. those resulting from receipt of debts to the peculium, can be claimed. The same inference can be drawn from the rule laid down in the above cited case of father and daughter, but it is remarkable that it should not be more clearly expressed⁸. The rule cannot safely be inferred from the general principle that peculium is the same, whether it be the subject of a legacy or of an action, for it is precisely in relation to these additions to the “peculiar” fund that the resemblance is not complete¹. There were many circumstances, under which the removal of a thing, from the peculium to the pairimonium, was a dead loss to the legatee, merely because on the facts there could be no suggestion of a debt². As it is said by Papinian: id peculium ad legatarium pertinet quod in ea causa moriente patre inveniatur³.

The conception of peculium, as meaning, not exactly the peculiares res, but the nett peculium·, i.e. that proportion of each thing which is left when deductible debts are allowed for, finds expression in a text of Ulpian⁴. He considers the effect of a legacy of peculium non deducto acre alieno. He says that such an addition is contrary to the nature of the legacy, and might almost be supposed to nullify it, but that the better view is that the gift is good, the addition adding nothing to it ; nec enim potest crescere vindicatio peculii per hanc adiectionem. The point is that as the legacy is a gift of the peculium, which is in fact a certain proportion of each peculiaris res, i.e. that left when debts are allowed for, it can give no more. The addition is meaningless, for there are no debts to deduct from this, and it might be treated as contra­dictory, since, if the adiectio is given any meaning at all, the gift is to be one both with and without deductions. It is observed by Mandry⁶ that this shews the conception of peculium as nett peculium to be not a mere interpretation of the testator’s wish, otherwise the obvious will of the testator would be allowed effect. And this also appears from Ulpian’s further observation⁶, that if the legatee happens to get posses­sion of the whole of a thing, he can meet the heir’s vindicatio with an exceptio doli, since his holding is in accord with the testator’s wish⁷. The case will be different, as Ulpian notes, if instead of adding those words, the testator has expressly remitted all debts or has released the debt, as he could, by a mere admission that there were no debts. Here there will be no debts to deduct and the legacy will take effect on the gross peculium. The same result would be attained by a legacy of all the peculiares res³. Conversely, notwithstanding this rigid inter­pretation of the word peculium, if the heres is forbidden to sue a particular debtor thereto, he will have no right of action to cede and the peculium will be so much the less².

¹ In legacy there could be no imputations for dolus.

³ A slave was to be free on paying 10 and to have his peculium. The 10 were not inpeculio. A. man agreed with a slave to free him for 10. 8 having been paid he freed him by will, cum peculio. The 8 were not inpeculio, 33. 88. 5.

8 33.8.19.2. ⁴ 33. 8. 6. 1. ⁸ op. cit.2. 193. «33.8.6.1.

7 He does not discuss the case in which the legatee, having received so many things as amount in value to the nett peculium, sues the heres for the incerta pars of another thing. Apparently, as there is a legacy of that, he can recover, subject to exceptio doli.

8 33. 8.10.

9 33. 8. 8. 6. Where the peculium was left to the slave, and there was a gift to wife of “ all my ancillae,” one in the peculium went to the slave, 33. 8. 15. Cp. A. t. 21; 32. 73. 5. As to

It may be added that, as a matter of construction, a legacy of servum cum peculio failed if the slave died, or was freed or alienated before it took effect: the peculium being a mere accessory, the gift of it depends on the principal gift, and fails if that does. The case is contrasted with that of a gift of servos cum vicariis, or of ancillas cum natis. Here the death, etc., of the principal thing will not bar the gift of the others, as they are more than mere accessories. The rule could be evaded by the use of apt words: all that the text says is that the expression servum cum peculio is not enough¹.

Any slave may conceivably have a peculium, even an impubes or a furiosus². But on a well-known principle, no liabilities arise on the transactions of impubes, save so far as the peculium is enriched, and the same is no doubt true in the case of a furiosus³.

It is essential that the peculium have been assented to by the dominus*, and thus, though the slave of a pupil or of a madman may have a peculium³, it must be in the first case the result of a concession by the father, and in the second of a grant during sanity⁸; neither the death nor the insanity of the master suffices of itself to destroy the peculium if it remains in the hand of the slave. A tutor cannot authorise the grant of a peculium’, or grant one himself by way of administratio (the second rule not being expressly stated, but seeming to follow from the language of the texts⁸). This is surprising since the tutor can give administratio peculii, iussum, and such authorisation as will give the actio institoria, while his knowledge suffices for the actio tributoria³. Mandry¹⁰ is inclined, doubtfully, to rest the rule on the fact that the concession is in the nature of a gift, and a tutor cannot make or authorise this. He notes that this does not harmonise with the rule that a slave even without administratio can give his vicarius a peculium¹¹, but adds that the Romans may not have felt this difficulty since they rest the right on a circuitous grant by the dominus. The cases of iussum and so forth may be distinguished on the ground that they are all interpretations simply of the Edict, while the question whether there is a peculium is one of civil law, which, in view of legacies of peculium, had its importance apart from the actio de peculio, and

these and connected texts, post, Ch. x. In. 33. 8. 14. Alfenus considers a gift: servus meus peculium suum cum moriar sibi habeto liberque esto. He is asked whether the legacy is good since the slave is to have it before he is free. His answer, that the order is immaterial and the legacy good, seems, at least in form, to miss the point. The words cum moriar, which can apply only to the legacy, must be ignored to make the gift good. Post, Ch. xx.

¹ 10. 2. 39. 4; 33. 8. 1, 2, 3. 4; In. 2. 20. 17.

² 13. 6. 3. 4; 15. 1.1. 3, 7. 3, 27. pr.

⁸ 15.1.1. 4. Immaterial whether owner male or female, h. t. 3. 2.

< 15. 1. 5. 4. ⁵ 15. 1. 3. 4. ⁸ h. I. 4; li. t. 7. 1.

⁷ 15. 1. 3. 3, 7. 1. ⁸ Mandry, op. cit. 2. 73.

⁸ e.g. 14. 3. 5. 18, 9; 15. 4. 1. 7, 2. ¹⁸ loc. cit.·, Pothier ad 15. 1. 1. 3.

H 15. 1. 6.

even before that existed. There still remains a difficulty in regarding the concessio peculii as a gift, in view of the restrictions which existed on the slave’s power of binding the peculium gratuitously¹. The origin of the rule may perhaps be looked for at a time when such a concessio created no obligation, so that there would be no case for tutoris auctoritas, when such a thing could not enter into the narrow field of administratio, as yet non-obligatory², and when the impubes as an incapax could not be supposed to know whether a slave did or did not deserve the favour.

The concession may be tacit³. But there must be more than intent to create a peculium: there must be an actual placing of the thing at the disposal of the slave in some way: desiderat enim res naturalem dationem⁴. Most of the texts dealing with this matter are concerned with increase of the peculium rather than with its establish­ment, but they may safely, so far, be applied to this. So far as res corporates are concerned there is little difficulty. There must be some­thing in the nature of an act of dedication®, though it may be tacit, as by leaving the things in the hands of a slave, in an inheritance to which one has succeeded⁸, the point being that the slave must have control: it must be re non verbis⁷. Naturally, not every case in which things are left with a slave amounts to peculii concessio. But general knowledge and assent to the peculium. is enough: if it is the sort of thing the dominus commonly allows to be in the peculium it is so without his express knowledge in each case⁸.

The peculium will thus cover not only what the master has given expressly, but also savings out of allowances, trading acquisitions, and gifts by outsiders intended to benefit the peculium⁷¹. It will include the peculium of a vicarius, which itself may come from many sources¹⁰. On the other hand, nothing acquired by a malefidum, committed against the dominus or another, can possibly found, or be in, a peculium¹¹. And it is important to note that a slave is not, for any purpose, in his own peculium¹². Obviously it may often be a difficult question of fact whether a res is or is not in the peculium, and whether there is a peculium or not¹³. Thus a gift of necessary clothing to a slave does not amount to a grant of a peculium, though apparently a gift of clothing, in excess of needs, might be so interpreted. On the other hand, when a slave has a peculium his ordinary clothing will be a part of it, but

¹ Post, pp. 204, 214. ² See Cuq, Institutions, 1. 325.

³ 15. 1. 6, 7. 1. Karlowa, op. cit. 2. 1133. Mandry shews (op. cit. 2. 82) that the slave’s consent was not needed.

⁴ 15. 1. 8. ⁸ 15. 1. 4. ⁶ 15. 1. 7. 1.

’ 15. 1. 4. 1. It must be clear that the slave is to hold it on his own account, not as caretaker or as managing his master’s business, h. t. 5. 4. It would not cover things deposited with him and vindicable by their owners, or things pledged with him even on a debt to the peculium, 13. 7. 28. 1; 14. 4. 5. 18.

8 15. 1. 4Q.pr.·, h. t. 7. 2. ⁹ 15. 1. 39. ¹⁰ 15. 1. 4. 6; h. t. 17.

n 15.1. 4. 2; 41. 2. 24; cp. 41. 3. 4. 7. ¹² 15. 1. 11.pr., 38. 2.

1» e.g. 15. 3. 16.

198 Content of Peculium: Acquisitions [pt. i not such clothing as is merely handed to him to be worn on state occasions or when attending on his master¹.

But a peculium may consist of claims as well as of res corporates, and it may be created by a gift of nomina and nothing more“. That these can be only claims from third parties is not absolutely certain on the texts, but Mandry’ supposes this limitation. Assuming it confined to debts from third persons, the question remains: what is the act of dedication? How do they become so transferred as to be in the peculium? Mandry gives the answer, that it is as soon as facts have occurred which would make a payment of the debt or interest to the slave a valid solutio*. He cites a text shewing that the fact that the transaction was in the slave’s name suffices’.

We have now to consider the conditions under which a thing acquired vests in the peculium. From many texts we learn that things are acquired to it, if the acquisition is ex peculio, or ex (or in) peculiari re or peculiari causa, or if it is peculii nomine*. These terms seem all to mean much the same thing, but we nowhere have any explanation of their significance. We have therefore to find on the evidence of the texts what the conditions are under which a thing acquired vests in the peculium. It may be assumed that the expressed intent of the dominus is overruling: if he says it is to be in peculio, it is: if he says the contrary, it is not⁷. But apart from this there has been much dis­cussion as to what are the decisive considerations’. It is desirable to consider two distinct cases.

(i) Cases of acquisition through a transaction creative of obligation— an “onerous transaction.” Here if the thing is acquired through the application of a res peculii*, or earned by labour, and the slave’s earnings are to be in his peculium, there can be no doubt that the peculium is increased by it¹⁰, i.e. by the debt so long as it is unpaid, the thing when it is delivered. The same rule applies to acquisitions from actions on delict affecting res peculiares¹¹. It is held by some writers¹â€™ that the intention of the slave is material. This view seems to rest mainly on the use of the expression, peculii nomine, which occurs frequently¹â€™. Both Mandry and Karlowa are clear that though this intent is necessary it need not be expressed to the third party, though the latter holds

¹ 15. 1.25,40. ^a 15. 1. 16. in fin....

⁸ op. cit. 2. 65 sqq. He remarks that obligation between slave and master implies peculium, that, apart from existing obligatio the debt would be unreal, and would consist in mere verba, not as principle requires, in res, and that this would certainly not suffice to increase an existing peculium, 15. 1. 4. 1, 49. 2....

⁴ If a slave eapromisit for a debtor to dominus, and the master deducts this in de peculio, the debt becomes a nomenpeculiare, 15.1. 56.

⁸ 33. 8. 26,posf, p. 199.

⁸ For illustrative texts, Mandry, qp. cit. 2.118. ⁷ 15.1. 8.

⁸ Mandry, loc. cit.â€?, Karlowa, op. cit. 2.1134, 5; Pemice, Labeo, 1.139 sqq.

• e.g. by sale or hire of it, or if it has provided the capital of a sodetas.

W e.g. 41. 3. 44. 7. n 15.1. 7. 4, 5. '

¹⁸ Mandry, Karlowa, locc. citt. ¹⁸ e.g. 21.1. 51; 41. 3. 31. 3; 41. 4. 2.12. ch. vm] Content of Peculium: Acquisitions 199 that it must have been possible for him to know it. Both hold that objective connexion will cause the intent to be presumed. As the dominus need know nothing of the matter, the only meaning that the rule can have, is that if the slave selling a thing, for example, in any way announced his intent that the price should be patrimonial, it would not be in the peculium. But for this there is no authority, and it is hard to reconcile it with the rule, laid down by Mandry himself¹, that a thing was in peculio, if it was so intended to be by the dominus, and it was in fact at the slave’s disposal whatever his intent. The true result of such a state of things is that the property is still in the peculium, but the slave has declared his intent to make a donatio of it to his master^{[828] [829]}.

(ii) Cases of “lucrative” acquisition. Under what circumstances is a donatio or a legacy or a hereditas given by another person to the slave, in his peculium^{[830] [831] [832] [833]1 It is certain that such a thing might be in the peculium*, and it is a fair inference from some of the texts that in the ordinary case it would be so. Thus we are told that legacies and in­heritances are in the peculium3, and that what officio meruit a quolibet sibi donari is in peculio3. A similar inference may be drawn from the texts dealing with gifts by one of common owners to the slave, where it seems to go as of course, though this is not expressly stated[834]. Where a slave receives from an ancilla a quasi dos this seems to be an effective transfer from one peculium to the other8. Again we are told that a dotal slave may have a peculium, duplici iuris, and the illustration given is of a hereditas left to him, respectu mariti3. The rule may be brought into harmony with principle by a text which observes that the peculium includes not only that to which the dominus has assented, but that to which he would assent if he knew of it10. But we are also told that, if a legatum purum is left to a slave, and he is freed after dies cedens he leaves the legacy with the dominus1'. In view of this text, and since a slave freed inter vivos takes his peculium with him unless it is expressly reserved, Mandry12 holds that such things are not normally in peculio though they may be. But this text is not conclusive, since this tacit passing of the peculium is not a rule of law, but only a pre­sumption of intent of the master to disseise himself. And though the 200 Acquisition of Possession of Res Peculiares [pt. i expression, apud dominum...relinquet, points to inter vivos manumission, the writer no doubt has all cases of manumission in his mind, and in manumission on death the peculium does not pass except expressly. On the whole the true view seems to be that such things are in the peculium unless the contrary appears.}

Apart from these questions as to the nature of the peculium, it is necessary to consider some points relative to acquisition and alienation of peculiares res. In relation to the peculium a slave is allowed, iure singulari, utilitatis causa, to acquire possession for the dominus without the latter’s knowledge¹. Possession so acquired gives the same right to the master as if it had been acquired by him, at least so far as usucapio is concerned: there is no authority as to Interdict. Thus the master has the Publician², and, conversely, any vitium in the slave’s possession affects the master, even ignorant of the possession, and even though the peculium have been adeemed³. Thus a man cannot usucapt a thing his slave has taken in bad faith⁴. But as the slave’s power is purely derivative, it is essential that the dominus have the power to acquire; if this is present the usucapio is complete without his know­ledge³. If a res peculiaris is stolen from my slave, I reacquire possession as soon as he gets it back, though I do not know it, unless I had in the meantime determined that it was not to be in the peculium: in that case as it is not in peculium, I do not reacquire possession till I know". The text adds that if my slave lose a (non-peculiar) thing and regain it, I do not repossess till I know. If my slave steal a thing from me and keep it in peculio, it is not really a part of the peculium: it is a res furtiva, and I do not possess it till I begin to hold it as I did before, or, knowing the facts, allow him to keep it in the peculium''.

As to iura in re aliena, there is a slight difficulty. We have seen⁸ that a legacy to a slave is valid only if it is such that it could take effect if he were free. But we are told that, if a slave had a fundus in his

¹ 41. 2. 1. 5, 24, 34. 2, 44. 1. D. 41. 2. 34. 2 does not mention peculium, but the restriction is implied. 41. 8. 31. 3 implies that there might be cases in which he might possess meo nomine ignorante me. This merely means that iussum is as good as knowledge, ante, p. 132. (The peculium did not include acquisitions from delict so that the rule did not cover these, 41. 2. 24.) The rule is one of mere convenience, though Paul rests it on the idea that previous authorisation (t.e. to have a peculium) is as good as knowledge (i.e. that he has that thing), 41. 2. 1. 5. But that principle applies only where the authority and knowledge apply to the same thing. Ante, p. 132.

a 6. 2. 7.10....

⁸ 41. 4. 2. 11, 12. Paul, resting on Celsus, says that even in re peculiars, if the dominus knows that the thing is aliena when the slave takes possession, there is no usucapio (h. 1.18). Thus dominus need not know, but if he does his bad faith is material. The rule may not have been accepted by the Sabinians who first admitted possession of res peculiares without knowledge by dominus (41. 2. 1. 5). See ante, p. 132.

⁴ 41. 4. 2.10. Though it had been conveyed to the master in a transaction with the slave: causa durat, 41. 4. 2.14.

⁶ 41. 3. 8. pr. So a buyer from a slave can add the vendor’s time to his own, for usucapio, in re peculiari, 44. 3.15. 8.

« 41. 3. 4. 7; 47. 2. 57. 2. 1 41. 3. 4. 9. ⁸ Ante, p. 150. ch. vin] Alienation ofRes Peculiares: Administratio 201 peculium, he could acquire a right of way to it even by legacy¹. The case has already been discussed^{[835] [836]}: it is enough to say that this is only one of a large number of exceptional rules applied utilitatis causa^[837].

We pass to the law as to alienation of things in the peculium. The mere possession of a peculium did not in itself increase the slave’s power of alienation: the voluntas of the dominus was still necessary^{[838] [839]. But the expression of this voluntas might take the form of a grant of plena or libera administratio, which did away with the need of special authorisation in each case[840] [841]. The gift of administratio might be expressly enlarged beyond its ordinary limits, or it might be expressly limited, and its extent, in any case, was a question of fact6. Apart from such variations the general rule was that administratio was necessary for any alienation or pledge’ of property, and that of itself it did not validate alienations by way of gift[842]. It authorised payment of a debt of the peculium, with the effect of transferring the property, discharging the debt and so releasing any surety[843]. Any alienation without, or in excess of, authority was void : it did not give iusta possessio, to one who knew of the defect[844] [845] [846]: such a person might indeed be liable for theft11. Even a receiver in good faith, though he could usucapt, had no accessio temporis13.}

Similar principles apply to matters other than alienation and pledge. A slave’s pact that he would not sue was null for obvious reasons. But he could effectively make such a pactum in rem, if it were in re peculiari, and he had administratio, but not donandi animo¹³. He could make a valid compromise with a thief, bona fide, in the interest of the dominus¹³. He could “ delegate ” his debtor¹⁶, while, as we have seen, without this power he could neither delegate nor novate¹⁶. He could offer an extra­judicial oath, the taking of which would give the other party an actio de peculio¹⁷. He could himself take the contrary oath, originally offered, or offered back, to him¹⁸.

Some cases need special discussion.

(a) Payment of debt. It is clear that this needs authority^[DCCCXLVII], though, as Mandry points out⁸, many texts say nothing of the requirement. But there is a difficulty on one point In general, if the alienation is not within authority, it is void, and the property, even money, can be vindicated³. But in the case of payment of a putative debt by a slave who has administratio, but not a power of making gifts, the texts are in conflict. Ulpian, in two texts, discusses the case of a filiusfamilias who has repaid money borrowed in contravention of the Sc. Mace- donianum. In one case the money is vindicable⁴: in the other there is a condictio. But the argument leads plainly to a vindicatio³, and the condictio, contradicting what the text has said, is probably an interpola­tion. Another case is more difficult. A slave pays ex peculio on a surety, in a matter which was no concern of the peculium. Papinian, whose hypothesis shews that the slave had some authority to alienate, gives the master a vindicatio⁵. Julian gives condictio'’. He does not speak of authority, but other parts of the passage shew that this is assumed. Julian held that alienation needed administratio⁵, and that administratio did not give an unlimited right: he adverts elsewhere to the well-known limit’. Mandry¹⁰ distinguishes the texts by the view that administratio gave an unlimited right of solutio ex peculio. There was a naturalis obligatio on the slave“, and we know, further, that usucapio pro soluto did not require a real debt¹⁸. But this still leaves it an individual view of Julian’s since the case in Papinian’s text is the same. Moreover Julian arrives at the same conclusion where a slave bribes a man not to inform of a theft by him. On the authority of Proculus he gives no vindicatio to the dominus but a condictio¹³. This is not a solutio. Pernice, accepting Mandry’s view¹⁴, but observing that the opinion is special to Julian, thinks it is a survival of an old rule that a slave could alienate res peculiares without administratio, a rule which he thinks may have been cut down by Proculus¹⁰. He does not advert to the text just cited¹³ in which Proculus is playing the opposite part, or to the fact that in the texts of Papinian and Julian there was authority, the only question being as to its extent. The better view seems to be that Julian while excluding donatio, contemplates animus donandi. This -was not necessarily present in either of bis two texts¹⁶. And though he gives a vindicatio where a son has lent money, contrary to the Sc. Macedonianum¹⁷, it is likely that here there was such an animus.

ch. vm] Administratio Peculii: Receipts 203

(&) Receipt of payment. The receipt of payment has the effect of discharging the debtor, and so of destroying a right of action. It is accordingly held, by some writers¹, that such a receipt requires adminis­tratio. Logically there is much to be said for this view, but the texts are adverse to it. It is true that Gaius, in a short phrase’ inserted between two texts of Paul, dealing with an analogous topic, observes that debts may be paid to one who has administratio. But this is far from shewing that that is the only condition on which payment can be made to him. Other texts shew that it is not. Where the contract was one which the slave could not have made without administratio, texts, referring to solutio, refer also to administratio*. But even here and in the text of Gaius (taken with its context) the point made is that the loan must have been with due authority, not the solutio*. On the other hand it is clear on several texts that any contract which has been validly made with a slave can be validly performed to him, and not one of these texts speaks of administratio. Ulpian says that any “peculiar” debtor can pay to the slave’, and, elsewhere⁸, that a slave’s deposit can be returned to him⁷. Thus the true rule is that any contract which the slave could validly make can be performed to him⁸. Some of these contracts need authority, while others do not, but this is material only on the question whether the contract is valid or not. The rule is stated as one of good faith⁹, and thus, on the one hand, it does not apply where the person bound has reason to think the dominus does not wish the payment to be so made, and, on the other, it does apply in the absence of such knowledge, even though, by manumission of the slave, or otherwise, the whole situation has in fact changed¹⁰.

(c) Novation. It is clear on the general tendency of the texts that a slave with administratio can novate debts, but not without it¹¹. He cannot of his own authority destroy an obligation, and therefore, if he has no administratio, his stipulation, while it will on ordinary principles create a new obligation, will leave the old one unaffected¹⁹. But though the rule is clear, the texts call for some remarks. A nova­tion may be effected in various ways. The texts consider the cases of a stipulation by the slave himself and of delegatio crediti. If the

¹ Mandry, op. cit. 2. 93; Karlowa, op. cit. 2. 1132. ^a 12. 2. 21.

⁸ 23. 3. 24; C. 8. 42. 3, mutuum. * Cp. 2. 14. 27. pr.; 44. 7. 14; 46. 3. 32.

⁸ 12. 6. 26. 8. ⁸ 16. 3. 11.

⁷ So Alfenus (46. 3. 35) and Pomponius (23. 3. 24).

⁸ This does not mean that the slave’s receipt was good, though the debt was not fully paid, but that the payment was a solutio, though made to the slave.

» 16. 3.11.

¹⁰ 12. 6.26.8; 16. 3.11; 46. 3. 32, 35; C. 8. 42. 3. Post, p. 205. Mandry recognises the rule (loc. cit.) but remarks that it rests on principles independent of the peculium. Tins is true, but it leaves no room for his contrary rule. See above, n.l. One to whom payment can be made can novate (2. 14. 27. pr.; 46. 2.10). Among exceptions Celsus, Paul and Pomponius mention contracting slaves (2.14. 27. pr.; 46. 2. 25; 46. 3. w). Since if they have administratio they can novate, it is clear that administratio is not needed to acceptance of solutio.

U 12. 2. 21; 46. 2. 25 (per se), P. 5. 8, etc. Cp. 46. 2. 20. ¹² 46. 2. 16.

204

Administratio Peculii: Donatio

[pt. I

“ peculiar ” debtor promises to a third party, to whom the peculium is indebted, the effect is no doubt a novatio of the debt to the peculium¹. But if the person to whom he promises is not a creditor of the peculium, Gaius tells us that there is no novation, if it was done donandi animo, but only if the slave authorised the stipulation as an act of gestio for him, so that the peculium acquires an actio mandate. In the case of a new stipulatio by the slave himself, he says that there is a novatio, maxim# si etiam meliorem suam condicionem eo modo faciunt. The use of the word maxime makes it uncertain what is the rule the text is intended to state. But it can hardly be that the novatory effect depended on the goodness of the bargain driven by the slave, and the grammar of the clause suggests interpolation^{[848] [849] [850].}

It is clear that administratio did not allow donatio^{[851] [852]. Many things are in effect gifts which are not so expressed, and it is not quite easy to tell what was the real principle. There is no reason to think an aliena­tion was bad merely because it was an unwise bargain, or because it became in effect a total loss. But where the transaction was foredoomed to be a loss, because the law forbad recovery, it seems clear from texts already considered[853] that the intent of the slave was not material[854] [855]. As the extent of administratio was a question of fact, it might be so wide as to cover donatio, and we are told that such an extension did not authorise mortis causa donatio[856]. It must also be remarked that ad­ministratio did not authorise alienation in fraud of creditors8. The text, which refers to filiifamilias but must apply equally to slaves, is solitary and has some obscurity. The reference is certainly to creditors of the son: we learn that if authority has been given, to do even this, it is as if the father had done it, and action against him is enough, as the creditors of the son are his creditors de peculio. The point of the text seems to be that any such alienation (i.e. detrimental and fraudulent in intent) was not merely voidable under the Paulian edict, but was void as not within the limits of administratio.}

The power of alienation does not depend on solvency of the peculium. Even though its debts exceed its assets, so that there is nihil in peculio, its property is still res peculiares, and the foregoing rules apply?.

ch. vin] Administratio. Cesser of Peculium 205

The rules as to gift and ademption of administratio are not fully stated: it seems that the statement would be but a repetition of the rules in iussum. Thus we are told that tutor and curator furiosi could give or deny (and therefore adeem) it to a slave^[857]. From the texts dealing with payment to a slave who has lent, with administratio², it may perhaps be inferred that death ended the power. Probably the rules of mandate applied.

As we have already seen, a transaction duly entered on by a slave was essentially the slave’s transaction whether it was in re peculiari, or in re dominica, iussu domini. The rules of administratio illustrate this, but add no new principle. Thus if a slave had acquired a right, payment, ex contractu, to him discharged, whether he had administratio or not³. Such a repayment could be validly made to him till the peculium was adeemed and the payer knew this⁴. It might be done though the master were dead, or the slave sold or freed, unless, in the case of death of the master, his death was known to the payer (the case being similar to mandate), or, in the other case, there were circumstances known to the payer shewing that such payment would be contrary to intent. Such circumstances would be that the slave had been freed sine peculio, or that his new master did not wish it’. We are however told that if a debtor to the peculium paid the slave fraudulenter, he was not released. From the context this seems to mean “if he knew the slave was going to commit malversation’.” It should be added that a stolen or fugitive slave, or one as to whom it is uncertain whether he is alive or dead, did not retain administration⁷. It may be presumed that knowledge of either of these states of fact would invalidate a payment to the credit of the slave.

It remains to consider how a peculium may cease to exist. To the existence of it, both intent of the master, and de facto control of the slave are necessary⁸. If the one or the other do not exist, there can be no peculium. Thus if the master takes a thing away, or expresses his determination that it is not to be in peculio, it ceases to be so⁹. And a similar mere expression of intent will suffice to adeem the peculium as a whole¹⁹. It should be noted that ademption does not require that the thing be removed from the custody of the slave.

206 Cesser of Peculium [pt. i, ch. vni

If a thing ceases to exist it is, of course, no longer in the peculium. If its destruction gave a right of action, this right is. But if it was by accident, the peculium is simply by so much the poorer. Mandry^[858] discusses a question which arises from this. If everything in the peculium ceases to exist in such a way, has the peculium ceased ? Many texts speak of a state of things in which nihil est in peculio, but, as Mandry shews, this means no more than that the debts exceed the value of the property. If a peculium is no more than a mass of res peculiares, it can have no real existence, in the absence of any res. The correct analysis of the situation would seem to be (and this is substantially Mandry’s view), that there is no more than a concessio which will be realised as soon as the slave has possession of anything within its terms. Thus, if I tell my slave he may keep his future earnings as peculium, he has no peculium until, and unless, he has some earnings. The rules of the actio de peculio deprive the question of any practical importance in that connexion: it may however have some significance in relation to legatum peculii².

It may be remarked, then, by way of conclusion, that the peculium does not alter the slave’s legal character: it implies certain authorities and makes others possible. But he is still a slave, and his faculties are still derivative. No legal process which is closed to the slave with no peculium is open to him if he has one, for it must be remembered that novation and delegation are not special processes, but processes devoted to a special purpose. So far as he can take part in a manci­patio with a peculium, he can without it: it is merely a question of authority⁸.