CHAPTER XVI. SPECIAL CASES {amt.). S. COMMUNIS. COMBINATIONS OF DIFFERENT INTERESTS.

For damnum to the slave by one of the owners the others have the actio Aquilia, pro parte^[1344]. For iniuria by one of the masters an action lies as if it had been by an outsider, except that no such action lies under the edict as to verberatio, because it uses the expression servum alienum, and the verberatio is done iure dominii³.

The cases of redemption of a common slave who has been captured and of the Aedilician actions on sale of a common slave have already been considered^[1345].

For any injuries to the slave each owner can of course sue: the right to compensation is, as we have seen, divided. But noxal surrender must be in solidum to any plaintiff: haec res divisionem non recipit¹³. It is, however, in the discretion of the iudex to order a surrender to the owners jointly¹⁶ In these cases, if he has been surrendered to one, the matter can be adjusted in the actio communi dividundo¹*.

For delict by a common slave¹⁶ all his owners are responsible, and, on a principle somewhat like that applied in case of delict by several persons, the liability of each is in solidum. It is as if, says Gaius,

374 Noxal Liability for Servus Communis [pt. i

quoting Sabinus, he was defending totum suum hominem, and he cannot be allowed to defend in part^[1346]: this is not defensio at all⁸ But while joint tort feasors are not released by proceedings against one⁸, a different rule applies here: since it is essentially one delict by one man⁴. Satis­faction by one of the owners discharges them all, e.g. if with the consent of the others he surrenders the man' or if he pays the claim’. Action against one releases all the others on litis contestatio⁷. If the action proceeds to judgment he can free himself by surrender, and for this purpose he can call on the other owners to hand over their shares to him, for surrender, giving security for return if he does not surrender, the demand being made by actio communi dividundo*. If, instead of surrendering, he prefers to pay, he can sue his co-owners for their share, by communi dividundo, but can only recover their quota of the value of the slave, if on the facts the condemnatio was for more than the value, so that it would have been better to surrender⁹. If the other owners enable him to surrender, and he does so, but on the facts it would have been wiser to pay, it seems that the other owners will have a claim in communi dividundo against him¹⁰.

Although if the action is once brought surrender of part is ineffective, an owner can always free himself before action brought by surrendering his part^[1347]. It hardly seems likely that the injured party can be compelled to accept this partial surrender, since it has the effect of making him part owner and thus bars any noxal action against the other owners¹⁸. It is even doubted whether he has the lesser right of compensation for the damage from his (now) co-owners by communi dividundo, since the wrong was before the community began.

We have anticipated the rule, based on the principle that one who is noxally liable for a man cannot have a noxal action for his act¹⁶, that one co-owner cannot have a noxal action against another¹⁸. The case is not without a remedy: the wrong must be allowed for by the other ch. xvi] Delict by Servus Communis: Scientia Domini 375

owner in the actio communi dividundo^[1348], and the iudex has discretion to allow surrender of the part in lieu of damages: the liability passes to a buyer from the co-owner exactly as noxal liability would. If the slave dies the remedy ceases, except as to any profit which has been received from the wrong².

The case is different where one of the owners was sciens. Such a person is liable in full with no power of surrender³. Some complications arise from the fact that while he is so liable, the other owner is none the less noxally liable. If the sciens is sued there can be no surrender, but the ignorans is freed⁴. If the ignorans is sued and surrenders, then notwithstanding the general law as to consumption of actions, the sciens can still be sued for any difference between the value of the slave and the damni persecutio, which presumably means the damages for the delict, and not the damage done⁶. The rules as to contribution are in the main simple. If the ignorans, being noxally liable, has been condemned to pay, he can recover half from the other⁶. It seems also that he has a claim against him for deterioration of the slave whichever of them has been sued, though one would have expected this rather in case of iussum than of mere scientia⁷.

376 Delict by Servus Communis: Scientia Domini [pt. i rest being poena. In respect of arbitrariness this explanation has no right to reproach the other: the text says very clearly that he can recover nothing at all. The older explanation is preferable¹: the matter is of little importance, the contradiction is sharp, and there can be no doubt as to which view represents the law.

There is a further complication : where several of a man’s slaves are concerned in a delict, the Edict² limits noxal liability, and provides that the owner, while he can free himself by surrendering all the slaves concerned, cannot be sued noxally for each, but can only be made to pay what could be recovered from a single freeman who had done the act.

If, of two domini, one dolo malo ceases to possess his part of a servus noxius, the injured person can choose whether he will sue the other holder by the ordinary noxal action, or bring the special praetorian action against the dolose owner, in solidum⁴. The text is clear that it is an electio, yet there seems as much reason for allowing an action against the wrongdoer to survive as in the other case⁵.

If one of common owners sued ex noxa falsely denies possession the liability is in solidum against him but not against the other: no doubt here too the detailed rules are the same⁶.

If all the domini were scientes, we learn that each of them is liable in solidum, quemadmodum si plures deliquissent, and action against one does not release the others⁷. We are told no more. The natural inference from this language is that the damages are recoverable from each, and that there is no right of regress⁸. The language used is precisely that employed where the liability of one is independent of what is paid by the other⁹. This implies the notion that they are separate delicts, which as our text shews is not exactly the case. Where there was absolute iussum, there is no reason to doubt that the law was so, and this has as a corollary the denial of any right of regress, which

¹ Both this and the adjoining 10 shew some confusion between scientia and iussum.

⁵ Ante, p. 118. ⁸ 47. 6. S. â€? 9. 4. 26..2.

5 Probably the text must not be understood to deny this: we may suppose the rules as to contribution to have been as in the last case. The case is not very practical. If all have dolo malo ceased to possess there is the same electio, 9. 4. 39. pr.

«11.1.17. ’9. 4. &.pr. ⁸ 9. 2. 11. 2; C. 4. 8. 1.

⁸ 9. 2.11. 2.

ch. xvi] Servus Communis: Contractual Liabilities 377 would be meaningless. Sell^[1350] thinks that payment by one discharges all, but that there is no right of regress⁸, a refusal which he shews not to be inconsistent with discharge by one payment, by citing the case of dolus by two tutors³. But this release is a rule special to dolus¹ and other cases where the claim is for indemnification merely⁶. The rule is probably the same in case of mere scientia, but if it be held that payment by one releases, it is inevitable that there be regress at least to the same extent as against one who was ignorans—perhaps to the extent of half the damages⁶.

We have seen that noxal actions do not lie for delicts by the slave against one of his masters’. Here too the law is somewhat affected by scientia on the part of one of the masters. In such a case there is a delictal action against the master personally⁸. This circumstance con­firms the view taken above as against that of Sell, since the scientia is treated as amounting to a separate delict’.

Where a common slave acts as exercitor, all the owners who consent are liable in solidum¹⁰, and one owner may be liable to the other. So if he is magister navis for one dominus, another may have an action on that account^[1351]. The same rule applies to institoria, and where several owners appoint, as the obligation is in solidum,, it is immaterial that their shares are unequal: adjustment is arrived at by the actio communi dividundo or pro socio¹³. In the actio quod iussu none are liable but those who command, but they are liable in solidum¹³. So also none is ordinarily liable to the actio de in rem verso except for what is versum,¹* to him. It is said however in the next text that there is an exception to this¹⁶. Marcellus, commenting on the foregoing rule, laid down by Julian, observes that sometimes one co-owner may be liable to this action for what has been versum to the other, being able to recoup himself by action against the other¹⁶: quid enim dicemus si peculium servo ab altero ademptum fuerit. And Paul adds, ergo haec quaestio ita procedit si de peculio agi non potest. The rule is remarkable: the explanatory comment is obscure. Marcellus seems to mean that the actio de peculio

378 Servus Communis: Contractual Liabilities [pt. I is barred against one and not against the other. Paul seems to say it is barred altogether. The most commonly accepted view is that this is an analogous extension of the rule in the actio de peculio to that de in rem verso, in the case in which de peculio is no longer available against the owner who benefited by the versio¹, since this enables the creditor to recover by one action instead of compelling him to bring two². This explanation requires, what is not impossible, that Paul and Marcellus ignore the rule that as between common owners, in view of the fact that all the peculium comes into account, an owner can be sued de peculio even though there is no peculium in respect of him³.

In the case of the actio tributoria, all the domini who knew of the trading must bring their debts into tributio: what is due to one who did not know is to be deducted in solidum*.

In the actio de peculio the matter is complicated by the fact that a slave may have peculium with one owner and not with the other³, and the peculium may be either a joint fund or in distinct funds⁶. The general rule is that the actio de peculio may be brought against any one of the owners on the basis of the whole of the peculium'. As the owner sued is liable over the whole fund, he is entitled to deduct debts due to other domini*, and the liabilities may be finally adjusted by communi dividundo*. The enlarged liability depends on the existence of this right¹⁰. But an owner in respect of whom there is no peculium, though he can be sued de peculio¹¹, cannot be made to bear any part of the burden in the ultimate distribution¹². The action for contribution can be brought immediately on condemnation de peculio·. it is not necessary to have actually paid¹³. We are not told expressly the basis of adjust­ment, but several texts¹⁴ shew that it was not determined by the fate of the acquisition, but that the liability was borne in proportion to the shares in the peculium, the reason assigned being that the payment has released the non-payer from an obligation¹³. If the peculium does not suffice to pay all, the action can be brought again¹⁶, and as in the case of

*Von Tuhr, De in rem verso, 240 sqq. He cites other explanations.

² i.e. de peculio against one owner followed by de in rem verso against the other.

⁸ 15. 1. 12. This text is Jolian’s, and shews that the present rule as thus explained, cannot be due, as Von Tuhr supposes, to him. It is possible that some part of the hypothesis of Marcellus has dropped out. See Von Tuhr, loc. cit.

* 14. 4. 3.pr., 5. 10.

6 15. 1. 7. 1; 45. 3. 1. 2; and for several cases, 15. 1. 16. ⁶ 15. 1. 15.

7 10. 3. 8. 4, 9, 15, 25; 14. 4. 3.pr.·, 15. 1. 11. 9, 27. 8, 51.

8 14. 4. 3.pr.; 15. 1. 11. 9, 15. ⁸ 10. 3. 8. 4, 15; 15. 1. 27. 8.

¹⁸ 15.1. 51. A and B have common property including a slave. A sells his share of the slave to C. A creditor sues C de peculio. C is not liable to the extent of A’s peculium, as he has no means of redressing the balance. If the creditor sues B within the annus utilis, B is Hable to the extent of A’s peculium, since A is liable de peculio and, as they have common property, the matter can be adjusted. If the year is up, A’s peculium is not reckoned in any case, h. t. 37. 2.

n 15. 1.12. »2 15. 1. 27. 8.

18 10. 3. 15. M 10. 3. 8. 4, 25; 15. 1. 27. 8.

w It must be remembered that acquisitions were common: there might however be a further adjustment, post, p. 386. ¹⁶ Post, App. u. ch. xvi] Servus Communis: Contractual Liabilities 379 vendor and buyer, no doubt the creditor having sued one owner is not in practice barred from suing another. As the comprehensive liability is due to the right of regress against the others, the peculium in their hands is not valued at its full amount, but deduction is made for cost and delay involved in recovering it, and as in similar cases, cession of the action against the other owner will discharge^[1352].

If the co-owner dies without representatives there is in strictness no longer any peculium of his, and accordingly, Julian tells us that in that case, the owner sued should be condemned only in the amount of actual peculium, and what can be recovered out of the bona of the deceased².

The right to claim contribution being completed by the condemna­tion to the “ peculiar ” creditor, it is not affected by subsequent loss or destruction of the peculium in the hands of the other owner, since, the peculium being a common fund, it is not fair that the loss should fall wholly on him who has to pay in the actio de peculio³.

The liability may be complicated by the existence of a right to the actio tributoria. If the owner who knew of the trading is sued thus, all that is due to the other owner may be deducted, and if that other is sued de peculio, what is due to either is deducted⁴.

The common liability extending over the whole, with the right of contribution, rests on the fact that it is a common fund, all the destinies of which ought to be common’: if therefore the peculia are not held as common but are kept distinct by the respective owners, then no owner can be sued for more than his own share, he can deduct only debts due to himself, and there is no occasion for contribution⁶.

It remains to be said that if the creditor is himself a co-owner there is no actio de peculio: the rights are adjusted by means of iudidum communi dividundo’’.

The law as to acquisition through common slaves is rather complex⁸: the general rule is that acquisitions are common, pro parte, whether inter vivos or on death⁸, and even where they are ex re unius ex dominie, though here they have to be accounted for¹⁰. So if I promise two things to a common slave, each owner is entitled to half of each, unless they are “ fungibles^[1353].” This community of acquisitions could be avoided by the 380 Servus Communis: Acquisitions [pt. i use of apt words. Thus if the acquisition was nominatim for one or more that one or more acquired the whole*. So if the acquisition was at the iussum of one, though the matter is disputed, the rule is laid down that he alone acquires: iussum is equivalent to nominatio for this purpose’. Further there are cases, in which one acquires alone apart from iussum or nominatio, mainly dependent on the principle that what cannot from any cause be acquired to one goes to the others pro rata^{[1354] [1355] [1356]. But the application of all these principles is full of difficulties.}

The effect of nominatio must be carefully analysed. It is a well recognised rule that if a slave makes a stipulation, nominatim, in favour of one who is not his master, the effect is merely null: the stipulation is void. The nominatio excludes his master, who is not named, but it does not avail to give a right to the extraneus. In other words its effect is simply negative or exclusive. The intent of the slave is not a material point. It cannot make an owner acquire what he would not, apart from this intent. The same principle governs the case of a common slave. The nominatio of one master necessarily excludes the others. The fact that the named one acquires the whole is due to the principle that what cannot be acquired to one goes to the other^{[1357] [1358]. Each of his owners is his owner and can thus acquire all his acquisitions’ If he stipulates nominatim for the owner to whom the thing belongs already the stipulation is a mere nullity[1359] [1360]. In one text we are told by Papinian’, that if a common slave of A and B stipulates from a third party for the part of him which belongs to A, nominatim for B, this is valid and B acquires, and that if no name is mentioned all goes to B in the same way[1361] [1362]. The text adds that if he stipulates for the same part sibi dari, this is void, presumably as being an absurdity’. Elsewhere Ulpian says[1363] that he cannot stipulate for himself sibi dari, though he can domino dari. This is not quite the same case, for he stipulates for the whole of himself. It can be valid only for that part which the owner has not already. If it were, or could be read, dominis dari, each would presumably acquire against the outsider an obligation for the part which belonged to the other. This is perhaps what Ulpian means by the closing words: non enim se domino adquirit, sed de se obligationem.}

The rule as to the effect of nominatio applies to all kinds of trans­action, to stipulation¹¹, mancipation¹², traditio¹³, emptio, mutuum¹*, and even accepit’Zaito¹, which, as being a release from debt, is a form of acquisition’. Gaius applies it to quodlibet negotium^{[1364] [1365] [1366].}

If a slave takes a promise to himself and one owner, nominatim, ordinary principles apply—the named dominus takes half, and all the domini, including the one named, take the other half pro parte dominion*. If he stipulates in the name of some or all of his domini, the principle above laid down would lead to the view that the nominatio will have no effect except to exclude those not named: the nominatio confers no right on any dominus which he had not apart from it. Thus the named masters ought to take pro parte, and if all are named the nominatio will have no legal effect. So Ulpian decides’. But Pomponius holds that if two domini are named, they take equally, though if it had been dominis meis they would take pro parte. If the words were to A and B, dominis meis, the order is material, the earlier being the material party, the later mere demonstration. As Salkowski shews’, the origin of Pomponius’ view is in the rules of interpretation applied to wills imposing burdens on the heres. If they are mentioned by name, and especially if some only are named, it is presumed that the testator intended them in their personal capacity, and the liability is equal. If they are called heredes, the liability is pro parte³. Salkowski holds the analogy applicable, but it seems out of place. In the case of a will we have to do with the intent of the testator, with words used by one who could make what disposition he liked, and whose intent governs the whole matter. In our case we have to do with a slave whose intent is not material, and whose nominatio has only a privative effect, a point which Salkowski seems here to overlook^{[1367] [1368].}

If the stipulation be to A or B (domini) it is void, as neither can be regarded as solutionis causa adiectus, for both can acquire on the stipula­tion, which is thus void for uncertainty^[1369]. If the same stipulation is made with a condition, “ whichever be alive ” on a day fixed in the stipulation for payment, Venuleius and Julian hold it still void. It is not saved by the condition, though on the day one be dead, so that there is no uncertainty“. Julian seems to hold that, as a stipulation ex praesenti vires accipit, there must be no uncertainty in the original

382 Servus Communis: Acquisitions: Nominatio [pt. i formulation. Salkowski observes¹ that Julian’s argument proves too much: it would, he says, invalidate any conditional stipulation. But this is hardly the case: the argument deals only with stipulations in which it is uncertain which acquires, not with those as to which it is uncertain whether there will be any acquisition at all. But the decision is not dependent on the rather ill-expressed argument. The stipulation is defective in that it leaves it quite uncertain what is to happen if they both survive. There seems little authority for the effect of conditions in saving stipulations which as drawn are subject to an ambiguity or doubt which may be cured by time^{[1370] [1371]. Julian elsewhere discusses a somewhat similar case. The common slave stipulates for 10 to T, on a certain date, with a further clause: “ if you do not then give it, do you promise to give M (the other owner) 20 ? ” These, he says, are two stipulations, but if T sue after the day is past, he can be met by an exceptio doli[1372]. In the foregoing case there cannot be two stipulations even with the help of the principle that a stipulation by a common slave is as many stipulations as he has masters[1373] [1374] [1375].}

Another case may be noted. A common slave stipulates, sibi aut P aut S, dominis. Ulpian holds that the word sibi acquires to all the masters and that the stipulation so far as it names P and S is void, on which account they are validly put in as solutionis causa adiecti¹. This seems quite in accordance with principle. The word sibi confers the right on all domini: the names which follow could not in any case confer rights on anyone, and the word sibi prevents their privative effect. It is this word sibi which distinguishes this case from that of a stipu­lation : Titio aut Seio, dominis³.

The principles are well illustrated in another text of Julian’s. A common slave stipulates to one dominus, A, by name. Then from a fideiussor he stipulates for the same payment “ to A or B, domini." This is valid, B is only solutionis causa adiectus^[1376]; the point is that as a fideiussor cannot be liable to one to whom his principal is not, there can be no question of B’s being entitled.

To complete the statement as to nominatio, it must be said that the origin of the acquisition is immaterial: if a stipulation is nominatim Titio ex re Maevii, Titius alone acquires⁸, and where on these rules one acquires or is excluded unfairly, the matter is adjusted by communi dividundo or pro socio³.

As we have seen, iussum by one master is put by later law on the same footing as nominatio^[MCCCLXXVII]. The rule in nominatio is a direct result of the fact that nominatio of a third party in any transaction prevented acquisition to the owner. This was not the case with iussum by a third party, and thus it is not surprising that the recognition of the effect of iussum was later. For the time of Justinian, the texts are explicit and general: iussum pro nomine accipimus*. But they are few and some are interpolated. Gaius tells us that the Sabinian school put iussum on a level with nominatio, while the Proculians treated it as having no effect at all⁸. The Institutes speak of the question as only finally settled by a constitution of Justinian⁴. On the other hand, texts of Ulpian which have no sign of interpolation treat the matter as quite settled⁸, and the only rule laid down in Justinian’s constitution is that if a stipulation is made on the iussum of one master, nominatim to another, the former will acquire’. The law speaks of this matter as having been much debated, but, apart from concurrence of the two, treats the recognition of iussum as settled. The only text in the Digest referring to the matter, and earlier than Ulpian, is one by Pomponius, the curious language of which suggests, first, that not all Sabinians, but only some named Sabinians, allowed force to iussum, and, secondly, that they were not sure of it: they say: posse ei soli adquiri⁷. The text has certainly been handled by the compilers. It is tempting to treat this text of Pomponius as shewing adoption by some Sabinians of the view that iussum was effective, that of Gaius as shewing the adoption of this view by all Sabinians, and those of Ulpian as shewing acceptance by all jurists. But such exactitude the texts are not strong enough to.permit.

If iussum concurs with nominatio, i.e. a master orders a contract⁸, and the slave contracts in the name of another, all we know of ante- justinianian law is that there were disputes. Justinian settles the matter, but his enactment contradicts itself, and commentators from the Glossators on have disagreed as to which line he takes. The most generally accepted view, i.e. that if the direction was to contract in the name of the iussor this prevails, but if it were a mere direction to contract, the nominatio does, is a mere plausible guess. It has no logical basis, but it may have approved itself to Tribonian’.

It must be supposed that iussum could not be by ratification: the common acquisition "once completed could not be varied by one master.

We can now return to the general principle. There are several special cases to consider¹.

(i) Treasure trove. Here the rule is that if a common slave finds treasure in a third person’s land, the finder’s half is divided amongst his owners, pro portioned This is clear, but the following text says that if it is found on land of one owner, both the owner’s half and the finder’s half go to the owner of the land³. Principle seems to require that he should take only his share of the finder’s half. Salkowski holds that the rule stated is to be confined to the case in which the treasure is found during work ordered by the owner, which would put it on a level with acquisition iussu unius domini, with which the text expressly compares it⁴.

(ii) Hereditas. If a common slave is instituted his masters are entitled pro portioned In strictness as there is only one institution there should be only one entry. But the slave can enter either at once for all or separately for each owner who authorises entry. We are told by Paul that the right of entering separately is not based on any theory of testator’s intention but is in the interest of the masters, utilitatis causa, lest delay by one injure the others’. The effect of entry at the command of one is to acquire to that one only to the extent of his share, with ultimate accrual if the other domini do not order entry within the period allotted’. Each owner has a separate tempus de­liberandi, which of course may not be the same in all cases⁸. If the slave has entered under the orders of one master and is afterwards freed, he can himself enter on his own account for the other half*. This must be true only if the time allowed to. the other master for deliberation has not expired: whether he had a new time or only the residue of the old is not told us.

All this looks very like treating them as distinct institutions. But this is negatived partly by the rule that he could enter once for all, but more obviously by the fact that, if the slave has once entered, the death of another master without ordering entry will not make a caducum. But there are traces of the view that they are distinct institutiones, in a certain conflict as to substitution. If one is instituted for several parts, he cannot take one and refuse the other, whether anyone is substituted to the other part or not¹⁰. In like manner Paul, the author of this text, says, elsewhere, that if the common slave has a substitute, entry at the order of one master bars the substitute, i.e. it is one institution¹¹. But Scaevola says that the substitute will take the share of any owner who

¹ In the following remarks Salkowski’s exposition is in the main followed.

² 41.1. 63.1. s h. I. 2.

⁴ op. cit. 3sqq. He thinks the limiting words are purposely omitted as they occur in the next case.

« In. 2.14. 3. « 29. 2. 68. 1 h. t. 67. 8 28. 8.1. nr.

« 29. 2. 64. M 29. 2. 80. pr. n h. t. 65.

ch. xvi] Acquisitions by Servus Communis 385 does not authorise entry^{[MCCCLXXVIII]}. This must rest on the view that they are distinct institutions, and not in any way joint, i.e. the substitutions must be regarded as distinct substitutions in each case².

(iii) Legacies, etc.³ The general rule is simple: a legacy to a common slave goes to his owners pro portioned But when we get beyond this there are disputes due to differences of opinion analogous to those mentioned in connexion with institutions, i.e., as to whether it is to be regarded as one legacy or several, whether the individuality of the slave is to be considered or those only of his domini. Thus if a legacy is left to a common slave under a condition of paying money, some jurists think the condition cannot be satisfied per partes, but only by paying all. The rule of the Digest given by Paul is that each owner can satisfy pro parte and so acquire’. This is the rule in cases where a legacy is left to two persons on such a condition—enumerations personarum videri esse divisa⁶, but not, says Javolenus, where it is left to one, even though circumstances divide it so that two stand in the place of the original legatee⁷. It is clear that the legacy to a common slave is for this purpose regarded as two. So Julian says, if a thing is left to a common slave, one can accept and the other refuse, nam in banc causam serous communis quasi duo servi sunt⁶. On the other hand, a senatusconsult under the lex Cornelia de falsis, penalising the writing of legacies, etc., to oneself, applies to legacies to a common slave: the name being a falsum must be struck out, and the whole gift is void⁹. A word cannot be pro parte pro non scripto¹⁶. Upon the question of accrual, the dispute is clearly brought out. In a legatum per vindicationem to two persons coniunctim or disiunctim if one refuses the other takes all, each being entitled in solidum—partes concursu fiunt. How if the legacy was to a common slave ? Here on the Proculian view reported by Celsus, there is no accrual, non enim coniunctim sed partes legatas,—nam si ambo vindicarent, each will have the part he had in the slave^[MCCCLXXIX]. That is to say that each is not entitled in solidum, and limited to a share only by concurrence¹². This construction of tfie gift does not seem inevitable, but it is accepted even by those who come to an opposite decision on the actual question, and hold that there is accrual. Julian holds, as reported by Ulpian¹³, that if one of the common owners refuses, the other gets it all, notwithstanding that they take pro parte dominica, and not

equally. This, says Julian, is because the persona of the slave is looked at. That is not very lucid. But the next text in the Vatican Fragments, laying down the rule that if it be left to a servus communis and Titius, and one master refuses, his share lapses to the other, remarks that this had been disputed, but the author, Ulpian, approves Julian’s view, not on the ground of ius accrescendi, but because quamdiu servus est cuius persona in legato spectatur, non debet perire portio¹. It is curious to find Julian, who holds that a servus communis in case of legacy quasi duo servi sunt^{[1380] [1381], cited as authority for this view which seems to contra­dict him.}

(iv) Possession^[1382]. There is little to be said here. Possession by one of common owners is possession by all. This must be nomine omnium*, and applies to retaining, not to taking, possession. There is no reason to suppose that apart from peculium. one of common owners who had not given iussum possessed a thing held by a common slave till he knew the slave had it'. In general we acquire possession through a common slave, sicut in dominio adquirendo*, which does not mean that when we acquire the one we acquire the other, but only that the rules as to the effect of iussum and nominatio, and as to acquisition pro rata in ordinary cases apply here too.

(v) Acquisition ex re unius. It is a general rule that the source of the money with which any acquisition was made is immaterial: the acquisition is common pro rata. A thing acquired by a common slave with stolen money is common^[1383]. So, obviously, if the thing with which it is acquired is the property of one owner: still the acquisition is to all, subject to adjustment by indicium communi dividundo. This is laid down in general terms in many texts^[1384]. It is immaterial whether it is ex peculio unius or with his independent property, not held by the slave^[1385]. Where an owner hands over property to a common slave on the terms that it is to remain his, and the slave buys land with it, the land is common¹⁹. Adjustment by communi dividundo is of course a remedy for any injustice¹¹: the rule is clear. A striking instance apart from peculium is that of damnum infectum. Where a common slave stipulates damni infecti, it is as if all the owners had stipulated, pro partibus. There is no hint that the menaced property was itself common¹. One text raises an apparent difficulty. Julian says that if a common slave lends money out of the peculium of one owner, he alone acquires the action ex mutuo². But as no person can acquire ex mutuo unless he was the owner of the money lent, this is a mere application of the principle that what cannot be acquired to one goes to the other’.

(vi) Bilateral contracts. To say that each acquires the rights pro portions and is liable in solidum, de peculio, subject to adjustment by communi dividundo, does not sufficiently explain the situation. There is at least one case in which such a subdivision of the resulting rights is not possible. If a common slave buys, one of the owners cannot by paying his quota acquire an actio ex empto for delivery of his part⁴, nor can he, on paying all, claim delivery of all: he has a right under the contract only to a part. If the thing bought has been delivered, there can be no redhibition unless all consent⁶. Other similar cases may arise, e.g., under a sale in which the buyer has a right of withdrawal within a certain time⁸, and under the other well known pacta adiecta. The texts do not discuss these cases. Can one owner claim relief for laesio enormist If a common slave lets a house, can one owner forfeit for non-payment of rent, pro parte, or absolutely, if the others do not wish to do so ? Probably, in all these cases, all must consent, but there is no authoritative answer to the questions.

(vii) Intent of the Slave⁷. We have already considered the question whether the intent of a slave can vary the effect of a transaction. One text, dealing with a slave of one owner, and saying that the master acquires possession through the slave only if the slave intends to acquire it to him, we have rejected as a statement of the classical law⁸. The same point arises in certain texts dealing with common slaves. In one text we are told by Paul that we can acquire by a common slave possession for ourself alone, si hoc agat servus ut uni adquirat, sicut in dominio adquirendo". Here too it seems likely that the words si... adquirat are a hasty and wrong explanation by the compilers, the cases in the mind of the jurist having been nominatio and iussum. But there is one pair of texts in sharp contradiction with each other which need careful examination. Ulpian says¹⁰ that if one intending to benefit me delivers a thing to a common slave of me and Titius, and the slave takes it either for Titius or for both, then, notwithstanding the intention of the slave, I alone acquire, just as, if a thing were delivered to my procurator, with the intent that I should acquire, and he took it for

139.2.42. 2 45.3.1.2..

⁸ 12. 1. 2. 4, Salkowski, op. cit. 68—70. ⁴ 21. 1. 31. 8.

⁶ h. I. 7. If a common slave is sold there is redhibition pro parte', the effect would not here be to force part ownership on one who was not common owner before, h. 1.10.

⁶41. 4. 2. 5. 7 Salkowski, op. cit. 45—64.

⁸ Ante, p. 133. « 41. 2. 1. 7. ¹⁰ 39. 5. 13. himself, he would acquire for me not for himself. On the other hand, Julian¹, dealing with a hypothesis which differs only in that the common owner has certainly given previous authorisation to the intending donor to deliver the thing to the common slave, says that if the slave takes it intending it to be for Titius, nobody acquires, and if the slave intended it to be common the transfer would be void as to half. And he says that in like case, if a procurator took it for himself there would be no transfer of ownership. It is clear on these texts that the deliverer names his intended beneficiary. But this has no relation to acquisition nomi­natin'!,, for it is perfectly clear on the texts that in that case the nominatio proceeds from the slave. All the texts assume this and one expresses it very strongly^{[1386] [1387]}.

Our two texts have been discussed and explained from time im­memorial. None of the explanations has been accepted as solving the problem^[1388]. Only a few remarks will be made here, and those with little confidence. There are two questions: (1) Why was the acquisition, apart from the intent of the slave, not common ? (2) Why was the slave’s intent material ? The intervention of a slave in a transaction may occur in three ways. He may be employed merely as a messenger to take the thing to his owner. In this case the delivery is not complete till the master has it: there can be no question of the personality of the slave^{[1389] [1390]. He may be the party to the whole transaction or to the con­veyance which completes it. In that case acquisition is through him, and in the circumstances of these texts the acquisition would on the face of it be common. For there is no iussum or nominatio and it is clear, from the earlier law as to donatio to a bona fide serviens, that the express intention of the donor to benefit the holder does not prevent acquisition to the owner[1391]. But the slave’s intervention may take a third form. If I direct my vendor to throw the thing in the sea, or in any way to dispose of it, and he does so, that is a valid traditio to me. The same is true if he delivers it to some other person for me, and it is immaterial who that person is : the acquisition is to me, if, for instance, the thing is delivered to a slave I have hired, who is to work on it. The slave is a mere receiver: there is no real question of acquisition through him’. This seems to be the present hypothesis and the acquisition is direct to the master who directed delivery to the slave. This makes Julian’s text orthodox, as to the first point[1392].}

ch. xvi] Acquisitions o/Servus Communis to one owner 389

Is the slave’s intent material ? No, says Ulpian, but, according to Julian, the transfer is effective only in so far as the slave takes with the intent of receiving for the intended donee. It may be that Julian is guided by precisely the consideration that the slave is not the agent who acquires, but a mere receiver who cannot be such in so far as he refuses to act as such¹.

Both texts treat of donatio, and Salkowski holds^[1393] that the rule applies only to that case. If the above account is correct, it must apply equally to any case in which the transaction is essentially the master’s altogether. But if a sale had been chosen, it would have been necessary to distinguish according to the circumstances of the previous contract. In donatio this is not the case. The declaration of intent to give is not itself a transaction and has no legal force. Whether it be made to the slave or direct to the master it is at once the master’s transaction when it is communicated to him and he directs delivery to the slave.

There are cases in which, independently of nominatio or iussum, one of the common owners acquires to the exclusion of the other. They all turn on the general rule, adopted on practical grounds of convenience, that what cannot be acquired to one of the common owners goes to the other^{[1394] [1395] [1396]. The rule is consistent with the principle that each owner, being owner, is potentially capable of acquiring in soHdum. The cases discussed in the texts are the following.}

(Đ°) If a common slave stipulates for a servitude, it will be acquired only to such of his owners as have tenements to which it can attach. Those who have such tenements will acquire, each in solidum^[1397]. If he mentions the land to which it is to belong, then it attaches to the owner of that land, wholly and alone⁸.

(б) Where one owner is about to marry and dos is promised to the common slave. Here the rule can apply only if the words used, or the circumstances, shew what marriage was in view^[1398].

(c) A thing promised to a common slave by a third party belongs already to one master. Whether the stipulation was sine nomine, or to all by name, the whole will go to those of his masters to whom it did not belong^[1399].

(d) A slave of A stipulates with C for a performance to a common slave of A and B. Here so far as the common slave belongs to B, he is serous alienus. But, says Julian, the rule applies that what one owner 390 Acquisitions from, one of joint owners [pt. i cannot acquire the other does. To bring this rule into operation we have, he says, to treat the stipulation as two distinct stipulations, one valid, the other void, each for the full amount¹. This is straightforward, but it has the difficulty that the transaction is not by the common slave at all. The acquisition is made by the slave of A. It is a bold rule of construction to avoid the inconveniences which would have resulted if the claim had been limited to one half². It is in fact the Sabinian view of the effect of a stipulation “ to me and a third person.” The survival of this view into the Digest seems to be due to the fact that the words are here construed as two stipulations, and not as one, in which case A would acquire, in the Proculian and later view, only one half. The Sabinians treat such a stipulation as one, with a name uselessly added³.

(e) Where a legal rule bars acquisition to one owner, the other takes all. Thus if a pupillus alienates to a common slave one of whose owners is his tutor, the conveyance to the tutor cannot take effect, as he cannot authorise a transaction for his own benefit⁴. Here too we have Julian to deal with, and it is probable that he regarded it as two transactions, otherwise, as Salkowski says⁸, the authorisation being pro parte null, the gift ought to have been valid only pro parte. This seems the only case mentioned".

Many difficult questions arise where the transaction brings one or more of the common owners into play on both sides; e.g. on purchase by a common slave from one of his owners. The general principle is that such a transaction is void, so far as concerns the proportion of the slave which is vested in the other party. If he stipulates nominatim or iussu for one master, from another, the transaction is good, but if he stipulates simply, the contract is void as to that part of him which the promisor owns, since a man cannot stipulate with himself or his own slave. The rest goes to the others⁷. It is not a case for the rule that what cannot be acquired to one goes to the other: the transaction is pro parte wholly void. In one case the slave appears on both sides. Having stipulated for his master A from his master B, he takes an acceptilatio for B from A. This is quite valid⁸. If a common owner

¹ 45. 3. 1. 4.

³ Salkowski discusses (op. cit. 106 sqq.) the inconveniences which would result from the other view, since we must assume that the form was not adopted for no reason, but because the other slave was concerned. He takes a somewhat different view of the meaning of Julian’s reasoning.

⁸G. 3. 103. * 26. 8. 12. ⁸ op. cit. 112.

⁸ S. (op. cit. 114) discusses the ease of a man who writes a legacy to a man of whom he is part owner: the name being a falsum the whole thing is void, 48.10.14. 1. The text has traces of an earlier view that it may have been valid for the other owner. Julian appears obscurely. If he held it valid at all he must, it seems, have held it wholly valid as two distinct gifts one of which had failed. S. discusses other possible cases.

⁷ 45. 3. 7.1. He may stipulate for himself nominatim to one of his masters though not to himself, 45. 3. 2,18.1. See Salkowski, op. cit. 85.

⁶ 46. 4. 8. 2. No authority on other contracts. ch. xvi] Acquisitions from one of joint, owners 391 pledges his part of the slave to the other this is valid, and will have to be reckoned with in communi dividundo^[1400]. No doubt the slave can do it himself.

There are few texts dealing with conveyance inter vivos. Where an owner gives money to a common slave, if his intent is merely to add to his peculium, held on his account, there is no change of ownership. But if he gives it as he would have given it to a servus alienus, the others take that share of the gift which they have in the slave²: his own proportion remains with the donor. Another text, obscure and corrupt, seems to lay down the same rule³. It will be observed that the rule brings about the same result as if the conveyance had been wholly valid: the owner of the slave has his right share of the thing conveyed, but by retention, not on conveyance. There is another case in the same range of ideas, but turning on a different principle. A common slave gives from his common peculium to the wife of one of his owners: the gift is void in proportion to the husband’s share in the slave⁴.

In relation to hereditas there are some complications, but as most of these arise where the gift is accompanied by a manumission, they will be considered later³. If the slave is instituted without liberty, this is ut alienus*, and he will take, on general principle, at the command of, and for the benefit of, his other master. If he is sole heir he takes all, and his other masters divide in proportion to their share in him⁷. If he is one of several heredes, we-are not told exactly what share he will take. Salkowski⁸ thinks that as he is sine libertate institutus, the gift being void as to that part of him which belonged to the testator, the other heirs can claim nothing, as his owners, through him, for they acquire him only on entry, and can claim nothing in the inheritance through him, as he is a servus her editor ius^[1401]. Thus his other owner will acquire through him the whole part of the hereditas which was left to the slave. It might be said, simply, that the gift ought to be void as to the share which belonged to the deceased, so that this part would go by accrual. But this is not to give sufficient force to Ulpian’s energetic language¹⁰: the institution is to be regarded as if he were a servus alienus. Paul uses the same expression—ut alienus—in laying down the rule that if I institute my co-owner and a common slave, sine libertate, this is valid¹¹. The rule seems to be that it is construed as institutio of a servus alienus for all purposes¹².

In legacy the rule is clear that where a legacy is left by one of his owners to a common slave, the other owners take the whole gift, not merely the proportion corresponding to their shares, dividing it in proportion to their shares in him¹. The reason for this is differently given by different jurists. Julian says it is because the other owner is the only one who can acquire at the time of dies cedens*. But this does not explain why it is not void pro parte as a gift inter vivos would be. In another text the same point arises, and Cassius is cited and approved, by Paul, as saying much the same thing, i.e. that it is to be treated as a case where all goes to one owner because the other cannot acquire³. This, as Salkowski says⁴, is simply giving the rule as a reason for itself. Why is it construed not as gifts inter vivos from one master are, but as gifts from third parties are, where from some cause one owner cannot acquire? We know that the reasou for this last distinction is, that in the case of gifts from an outsider there is no fundamental invalidity in the gift, but only in the receiver, so that the whole thing may con­ceivably be good, while, where the donor is one owner, the part of the transaction which is with himself is necessarily void, so that the gift fails pro parte*. Why is not this rule applied here ? The answer may be that we have here an instance, not isolated, of the extension to legacies of a rule laid down for institutions. The common slave is ut alienus for this purpose⁸, and is regarded as belonging to the other owners. This is expressed in a well-known text by Sabinus, Julian, Pomponius and Ulpian: it is acquired not propter communimem sed ob suam partem⁷. There is not the same theoretical difficulty that would have arisen in institutions, on the other construction, but here as elsewhere the same rule of construction is applied to all parts of the same document. The same thing is done in relation to the effect of impossible conditions⁸. The result is reasonable: it is unlikely that a testator who left money to a slave held in common with X meant his heir to share it⁹.

Co-heirs of an owner are co-owners of a special kind, but the most important and special rules arise where they do not succeed to the slave himself.

In regard to the Aedilician actions, as in the case of co-vendors, there can be redhibition to the heirs of a vendor pro parte, singly¹⁹, and,

¹ 33. 5. 11; P. 3. 6. 4. 2 33.5.11. ^s 35. 2. 49. pr.

⁴ op. cit. 29. s Ante, pp. 390,391. ⁶ Ulp. 22.10.

1 17. 2. 63. 9. Salkowski's explanation is rather abstract: he regards it as material that it is not acquired till entry (op. cit. 28—31). It may be noted that Paul tells us that if a co-owner makes his socius sole heres and gives a legacy to a common slave this is void: he is a slave of the heres, 28. 5. 90.

⁸In. 2. 14. 10; D. 28. 7. 14; cp. G. 3. 98 as to the dispute between the schools.

⁹So in jtdeicommissa, 35. 2. 49. pr.

¹⁰ 21. 1. 31. 10.

CH. xvi]

Coheredes as joint owners

393

conversely, if there are several heirs to a vendee, they cannot redhibit unless all consent¹, lest, as Pomponius says, the vendor be put in the awkward position of having the thing returned pro parte, while another heir claims damages. On the other hand if the slave be dead or redhibited, they may sue singly for any damage done to them². As they must sue together in the actio redhibitoria, Pomponius thinks it best for them to appoint a common procurator ad agendum³. If one co-heir or a person for whom he is responsible has made the slave worse, culpa or dolo, since this bars redhibition unless satisfaction is made⁴, the others can claim for the damages in the indicium familiae erdscundae³.

There can be no noxal action between them, and thus if a slave of the hereditas steals from an heir he has no actio furti, his remedy being indicium familiae erdscundae for simple damages, or surrender⁶. Each heir is liable noxally, and if he has defended, and rightly paid, he can recover pro parte in the same way⁷.

In relation to contractual liability, the point of interest is that if the slave is freed or dead or legated, sine peculio, they are not common owners, but they succeed, together, to the liabilities of the owner. As the slave is not common, and they may have nothing in common, they may have no indicium communi dividundo, and as the indicium familiae erdscundae can be brought only once, this may not be available for distribution of loss⁶. Moreover on general principle, debts are divided pro rata among the heirs. Thus, while common owners may be liable in solidum, ex institoria, the heirs not holding the slave are liable only pro parte³. So in the actio de peculio, where the liability is only annua owing to the death or freeing of the slave, the heirs may be sued all together or singly, but in this case each is liable only so far as his share of the peculium goes, and cannot deduct what is due to other heirs¹⁰. If the slave himself is one of the heirs¹¹, he is liable to be sued as such, de peculio, but he cannot be liable personally as a son would be¹². Coheredes can sue each other de peculio (though common owners cannot), but, apart from ownership of the slave, only like other creditors, pro parte¹³. This applies only to debts due to them personally : even if the slave is left to one of the heirs, there is no actio de peculio for debts to the estate: these might have been deducted in handing over the peculium¹⁴. So in the actio de in rem verso a heres is liable only pro parte for what was ver sum to the deceased, though he is of course absolutely liable as to what he himself has received¹⁵.

¹ h. I. 5, 7. ² h. I. 6. 3 h. I. 5, 9. < Ante, p. 61.

⁵21. 1. 31. 9. ⁰ 10. 2. 16. 6. ’ A. t. 25. 15.

⁸ h. t. 20. 4; 14. 3. 14. » 14. 3. 14. “ 15. 1. 14, 27. 3, 30. 1. u 15. 1. 30. 2.

¹² P. 2. 13. 9; C. 4. 14. 1, 2; D. 15. 1. 30. 2, 3; 16. 3. 1. 18. ^Is 15. 1. 29.

14 15. 1. 54, 58. See as to the difficulties, ante, pp. 230 sgq., and post, App. n.

15 15.1.30.1.

394

Joint Usufructuaries and Possessors [pt. i

XXVII. Combinations of the foregoing interests.

The texts deal mainly with questions of acquisition, and they are fully discussed by Salkowski^[1402]: a few remarks will suffice.

(I) Joint usufructuaries and bonae fidei possessores. In the range of contractual liabilities complicated questions might arise, but they would be matters of account rather than of law, e.g. in the actio tributoria, where, the slave having a common peculium, one alone of the holders or fructuaries knew of the trading. But there is no authority on this or on noxal rights or liabilities. As to acquisition it is to be remembered that neither nominatio nor iussum can make a fructuary or a bonae fidei possessor acquire beyond the two causae². So, one cannot acquire ex re of the other holder, or ex operis beyond his share. If then he stipulates ex opens simply, they acquire pro rata. If he does it nominatim for one, that one acquires pro parte: the rest is void, for the nominatio excludes both the owner and the other holder³. There is no logical reason why iussum should have had the same effect, but the rule of later law may have been so—iussum pro nomine accipimus*. As to acquisition ex re, there is some difficulty. What the slave acquires ex re utriusque they take pro parte, unless he expressly names one, or it is iussu unius, in which case all goes to that one, subject to adjustment by indicium communi dividundo (utilis)⁶. This at first sight seems as if one was acquiring ex re alterius. But it is impossible to say to what part of the affair the particular acquisition referred : the whole res concerns him’. But apart from iussum or nominatio, what exactly is meant by pro parte ? In proportion to their interest in the slave, or, as Salkowski thinks⁷, in the business ? This would be convenient, but it rests on an assumption which would be fatal to the rule just laid down as to the effect of nominatio, for it requires, since nominatio is privative only, that the named person shall acquire only to the extent of his interest in the concern. More probably his interest in the slave is the decisive point, subject to adjustment. No doubt they were often the same. There is another question. If it is ex re unius, and there is no iussum or nominatio, the other can acquire nothing. But does all go to the other fructuary, or does he acquire only to the extent of his interest in the usufruct, the rest going to the dominus ? In later law it is clear that all goes to the fructuary⁸. An earlier view limits it in the way suggested. Scaevola is cited as holding both views’. The doctrine which

ch. xvi] Other analogous cases 395

prevailed is rested on the view that the dominus cannot be concerned, as it is ex re fructuarii, and that what one fructuary cannot acquire must go to the other. The argument is rather ill put, but the result is convenient and may be supported in another way. An acquisition ex re is not like one ex operis, i.e. it is not from a causa· to which the other party is in part entitled, and thus there is no reason for applying the same rule¹, and making it in any way dependent on the division of the usufruct. The other view fails to take account of this distinction^{[1403] [1404]. There was never any doubt that if it was iussu or nominatim to the one whose res it was, he acquired the whole[1405].}

(II) A person not entitled holds the man in good faith, as usu­fructuary. The guiding principle is that he cannot acquire more than if he were a real fructuary, nor than any bonae fidei possessor can acquire^{[1406] [1407]. As their acquisitions are the same, there is nothing to be said.}

(III) A person not entitled is in possession in good faith as a common owner. The rule is the same’, but here it is a real limit. Though the acquisition is wholly ex re eius, he can by the rule acquire only pro parte, as that is the rule between common owners. No doubt adjustment is made by communi dividundo (utilis).

(IV) There is an existing usufruct, but there is an adverse bonae fidei possessor^[1408]. It would seem from what has been said^[1409] that the fructuary can acquire only ex re, at any rate we are not told that acquisition ex operis will avail to keep the usufruct on foot. The bonae fidei possessor will acquire ex re and ex operis. The fructuary can hardly acquire possession ex re, for the slave is in the adverse possession of someone else^[1410]. If the slave stipulates, ex operis, nominatim for the fructuary, this will exclude the possessor. But it does not seem that it ought to entitle the fructuary, for that he should acquire the whole of it as the result of nominatio implies that he would have acquired some of it, apart from nominatio. Salkowski, however², takes an opposite view on this last point, on the ground that the fructuary could have acquired ex operis but for the concurrence of the bona fidei possessor, which is excluded by the nominatio. This gives nominatio more than a privative effect.

(V) One of common owners has a usufruct or bona fide possession. The matter is discussed in only one text¹⁰ in which Paul says, sub- 396 Joint owner also a Usufructuary [pt. i, ch. xvi stantially, that if a slave who belongs to two, and is in the bona fide possession of one of them, stipulates at the order of the possessor, in re utriusque, they both acquire. This cannot be right: a common owner, jubens ex re utriusque, acquires in solidum¹: he cannot have acquired less because he was also a bonae fide/i possessor^{[1411] [1412] [1413]. Paul ignores either the common ownership or the iussum. The common owner must have acquired in solidum, subject to adjustment[1414]. With nominatio the result would be the same, as also in the unlikely case of iussum or nominatio of the non-possessing owner. Apart from nominatio or iussum, if it is ex operis, or ex re possessoris he alone acquires. Otherwise it is divided. The fact that the res is also common does not affect the matter, at this stage, though it is material in the ultimate settlement[1415] [1416] [1417] [1418].}