CHAPTER XXIX. EFFECT AFTER MANUMISSION OF EVENTS DURING SLAVERY. NATURALIS OBLIGATIO.

Fresh considerations arise if the master was in any way privy to the action of the slave he has since freed ¹³ There is a general rule or maxim 680 Manumission: Survival of Ddictal Obligation [pt.

Notwithstanding some loose language of Celsus, cited and corrected by Ulpian, it is fairly clear that we need consider nothing short of actual command: the master, sciens, qui non prohibuit, is personally liable but in no way excuses the slave^{[2420] [2421] [2422].}

The rule as recorded by Alfenus Varus at the end of the republic was that a slave is not excused by the order of his master in anything in the nature of a facinus. So, later, Paul’ says that a slave must not obey his master in fadnoribus, and Ulpian says^[2423] that slaves are excused for obeying their masters in matters quae non habent atrodtatem. But as to the exact position of the line between atrocia and trivial things it is not easy to be precise^{[2424] [2425]. Ulpian quotes Labeo as holding that iniuria, iussu domini, rendered the slave liable after liberty—noxa caput sequitur*. It is probable that Labeo was speaking of atrox iniuria. Conversely Ulpian agrees with Celsus that command of the master excuses the slave for wrongs under the lex Aquilia[2426]. Perhaps the true inference is that the distinction between fadnora and lesser matters was not clearly defined at any time, and there was a tendency to narrow the exemption[2427] [2428].}

The remedies against the master and the slave are alternative, and thus if the master is sued, the freedman is released, not it would seem ipso iure, but by an exceptio rd iudicatae*. We have already con­sidered the case of freedom supervening while a noxal action against the master is pending: the action was transferred, but there is, as we saw, much controversy as to the form of the transfer^{[2429] [2430]. The matter of delict may be left with the remark that obedience to a tutor or curator is on the same level as obedience to a dominus11.}

The very similar rules in criminal law have already been considered^[2431]: all that need be said here is that if a criminal slave is freed and afterwards condemned, he is punished as he would have been had he been still a slave⁸.

In relation to acquisition of property there is not much to be said, inasmuch as these transactions are, usually, so to speak, instantaneous. Acquisitions during slavery go to the master, even though ex peculiari causa. Those after liberty go to the man himself: the transition from slavery to freedom does not affect the matter, though there might be difficulties of fact as to the capacity in which the freedman received the res. Mutatis mutandis, the same is true of alienations. There are, however, a few exceptional cases. We know that a slave’s possession in re peculiari is the master’s³. If, however, he continues to possess secretly after he is free, his peculium not having been given to him, and his master subsequently gets the thing back, there is no accessio posses­sionum*. He is another man’, and his possession is not dependent on, but adverse to, his master. The question arises whether if a slave acquires a res in good faith for the peculium, and is in process of usucapting it, and is freed and retains it secretly, he can complete the usucapion. If he receives an acquisition ex re peculiari, after he is freed without peculium, he does not usucapt: the initium possessionis was not in good faith⁶. Probably the decision would be the same in our present case, for it is only on freedom that he himself acquires possession : the earlier possession was his master’s.

It is in connexion with wills that the most important questions arise in this matter. It is clear that an alienus servus instituted and freed during the testator’s life can acquire the hereditas for himself⁷. The same rule applies to legacies and fidmcommissa*. The extension of the principle to cover changes of status after the death and before entry, or dies cedens, is due to the desire to avoid intestacy. Its exten­sion to legacies in the same case with no special reason is an instance of a common practice which we have already observed. The general rule here laid down is illustrated by some complex cases ·. There were two heredes. A slave was left to one of them and money to the slave. The slave was freed vivo testators. He acquires the whole legacy, although it might appear that the gift ought to have been valid only as to half, inasmuch as it was, as to half, a legacy to the heres, of what would have been his in any case, and it could not convalesce by the manumission or alienation of the slave, by reason of the regula Cato­niana. But Julian overrides these points by remarking¹ (by way of proof that the whole vests in persona servi) that, if the heres to whom he was legatus had not entered, he could have claimed the whole from the other. The point for us, however, is the small one, that the intervening manumission leaves him entitled to claim^{[2432] [2433] [2434].}

These rules preserving the provisions of a will are in sharp contrast with those applied on intestacy. We have already seen how far servile relationships were recognised after liberty^{[2435] [2436]. Here we need consider only the effect of enslavement followed by manumission. The rule is clear and simple. One who is made a slave does not on manumission reacquire cognatic rights[2437], and, conversely, his relatives will reacquire no rights of succession to him. His mother has ceased to be his mother, though the text indicates that there had been doubts which were ended by a rescript of Caracall [2438]a[2439]. The same rule applied where the lapse into slavery occurred after death and before entry on the hereditas11. Several texts deal with the matter of testation from the other point of view. A person uncertain of his status, even though really freed or ingenuus, could not make a will[2440], and, consistently, a will made by a slave could not be valid, even though he were freed before he died8. The same rules applied to fideicommissa, at any rate so far as they were contained in wills. If, however, a slave makes a fideicommissum without a will, and dies free, Ulpian appears to say that his fideicommissum is valid, as operating only at his death, provided he has not changed his mind’. The rule is a remarkable one. There is no hint that in classical law a person who could not make a will could make a fidei­commissum. The language of Justinian as to codicils is opposed to such a view10, and Gaius11 mentions no such point in setting out the existing and the obsolete points of difference between legacies and fideicommissa. Ulpian12 lays down a rule that those can make fidei­commissa who can make wills. There is no sign that it is enough if the maker is qualified before he dies. Our present text is also from Ulpian. In other parts of it he says that deportati and those uncertain of their status cannot make fideicommissa, because they cannot make}

сн. xxix] Payment to Freedman of Debts to Dominus 683 wills¹. A later passage in the text observes that if a deportatus does make a codicil and is restitutus indulgentia principle, the fideicommisswm will be valid si modo in eadem voluntate duramt¹. But this case is less significant than ours, since such a complete restoration would restore the validity of a will³. The style is rather that of a legislator, and the rule may be from the compilers⁴.

Apart from naturalis obligatio, questions may arise as to payments to the man, after he is free, in respect of transactions during slavery³. Where a slave was appointed to collect debts and continued collecting them after he was free, this might be furtum in him³, but if the debtors were not aware that he was free the payment was a good discharge, though the original transaction was by the dominus''. If it had been a transaction of the peculium, the payment discharged, even though the payer did know of the freedom, if he did not know that the peculium had been adeemed⁸. If he did know this, his handing over the money did not discharge his debt to the dominus: it was not a payment but a donatio to the freedman’. On the same principle we are told that, if there was in all respects good faith, return to the man of a thing deposited by him discharged the obligation, though he had been freed¹⁰. The rule is old: Paul cites Alfenus as saying that the test question is whether the transaction was either peculiaris or with consent of the master. If it was either, the money may be paid to the slave after freedom, provided there is no circumstance from which the other party ought to infer that the dominus did not wish it to be so paid¹¹. So again, Ulpian rests on the authority of Sabinus the rule that good faith means ignorance that he has been freed¹². There is here no case of naturalis obligatio, but this rule, like the recognition of such obligatio, is a result of the acceptance of the fact that a slave¹³ is at natural law a man like another.

In the region of contract and the like the basis of the law is the conception of the slave as capable of naturalis obligatio. The exact method and period of the recognition of this principle have been much discussed, but they are points on which there can be little more than conjecture. The recognition is doubtless connected with that of debts to and from the peculium. Such debts were recognised even between slave and master, in republican times¹⁴, but it is unlikely that any general theory of natural obligation of the slave is so old. Pemice¹³ is

1 32. 1. pr., 2. ⁹ Л. I. 5. ⁹ 28. 3. 6. 12.

⁴ Vang erow justifies it, arguing from the words quasi nunc datum (Pand. § 540), on the view that, at least originally, a jideicommissum needed no form, and its initium might be regarded as occurring at any moment, e.g. death, if the maker has not changed his mind.

⁴ Ante, pp. 158,163, 202. ⁹ 46. 3. 18. ’ Ibid.; 12. 1. 41.

s 46. 3. 18. » 41. 4. 7. 2; cp. 17. 1. 12. 2.

io 16. 3. 11. ¹¹ 46. 3. 85 ; as to 44. 7. 14, post, p. 699.

¹² 16. 3.11. ¹⁹ Ante, p. 73. See Machelard, Obligations naturelles, 188.

¹⁴ 15.1. 9. 3; Mandry, op. cit. 1. 370. ¹³ Pernice, Labeo, 1.150 sqq.

of opinion that it is a development of the imperial lawyers and unknown to Labeo. He is inclined to see distinct origins for the recognition of naturalis obligatio in the slave. In relation to the dominus he thinks it is merely the recognition of a long existing practice. As regards extranei he considers it the result of a gradual change of doctrine, as the result of which the heres, and not the libertus, was made liable de peculio on earlier transactions¹. The point is that this had the effect of completely freeing the libertus from any liability, and the theory of naturalis obligatio came in to modify this. This appears to be practi­cally another way of saying that the obligatio was most important as between slave and master during slavery and at the moment of release, while in relation to extranei it was most important after the man was free. Hence as against the master it is closely related to the peculium: as regards extranei it soon frees itself from this association. In each case it satisfies an obvious economic need². The case of the slave is the most frequently treated case of naturalis obligatio, and is in all probability the original².

Whether Pemice’s distinction be treated as fundamental or not, it is clear that the two cases, subserving different needs, develop on some­what different lines, and they can best be treated separately.

A. Transactions between the slave and his master. Such obliga­tions can of course exist during the slavery*. They constitute additions to, or deductions from, the peculium, for the purpose of the actio de peculio⁵, and it is not easy to see any other importance they could have⁸. We are repeatedly told that there may be natural debts between slave and master and that they are reckoned in the peculium⁷. It must be remembered that a debt to the dominus took precedence of other debts⁸. Thus where the res peculiares were worth only 10, and the slave owed his dominus 10 and an outsider 10, the res peculiares belonged to the estate of the dominos*. But there was no debt unless there was a peculium. Thus where a slave A owed a slave B, of the same dominus, certain money, B could not claim anything on that account from his dominus, until A had a peculium¹⁰. Such obligations may arise from any transaction¹¹, even from payments in lieu of noxal

¹ Ante, pp. 230 sqq.

² Mandry remarks (op. cit. 1. 344) that 12. 6.13, which says that payment of fideiussor of a slave’s debt is irrecoverable, because the slave is naturally liable, is giving the motive of the rule in the guise of a consequence. On the question whether naturalis obligatio is the expression of a new philosophy of legal duty, see Machelard, op. cit., Generalisation, and authorities there cited.

⁸ As to this and the various uses of the word naturalis, see Gradenwitz, Natur und Sklave, 3, 26, 27, 35, 41.

⁴ 33. 8.16. ⁸ Ante, pp. 220 sqq. ⁶ Mandry, op. cit. 1. 157.

7 15. 1. 7. 6; 33. 8. 6. 4. e Ante, p. 221. ⁹ 35. 2. 56. 2.

¹⁰ 15.1. 7. 7. The peculium is left to a slave: he need not deduct debt from his vicarius to the dominus unless the vicarius has a peculium, 15.1.18. The word debt is used though there be no peculium, but the debt has only a potential existence.

¹¹ Payment by debtor of dominus, h. 1.11. 2; promissio, h. t. 56; loan, h. t. 49. 2. surrender^[2441], etc. It is clear from this case that though for the time being the only importance of the debt is in relation to the quantum of the peculium, the transaction itself need have no relation to that fund. On the other hand, there is no text declaring indebtedness of the dominus to the slave except in connexion with a peculium, mentioned or assumed. Mandry shews that all the texts involve payments or the like by the slave, inconceivable without a peculium³. From this he infers not only that the debt had no importance except in relation to peculium, but also that no such debt could arise except out of a transaction in connexion with it. But there seems no reason for laying down any distinction in principle from the rule in the converse case. The only difference is that it is not easy to formulate a case in which a slave could become a creditor of his dominus, except in dealings connected with his peculium. The existence of a debt either way is declared by Pomponius to be estimated ex civili causa³, an expression which he explains, by the remark that a mere entry in account of a debt, when there had been in fact no loan or other causa, will not make one. He does not appear to mean that the test as to addition or deduction is the question whether the state of things is such as between inde­pendent persons would have created an obligatio dvilis, but rather that it must be such as would have created an obligation of some sort. The writer is considering the relation of dominus and extraneus creditor in an actio de peculio, and lays it down that the dominus cannot deduct from the peculium, or the creditor claim an addition, for anything but a real debt⁴. We are told elsewhere that the dominus was a debtor only as long as he liked, and could destroy his debt to the slave by merely cancelling it⁶. This is not inconsistent. It would leave a liability to the creditor de in rem verso, or under the doli mali clause in the edict de peculio³. It must be remembered that we are here con­sidering only the rights of a creditor’. Two illustrative cases, slightly complex, but not otherwise difficult, may be taken from the texts. A slave exacts money from a debtor to his master. Ulpian, citing Julian⁸, remarks that here, if the dominus ratifies the act, there is a debt from the slave to his dominus. If, however, the dominus does not ratify, the slave is not a debtor to him. He has collected an indebitum, which could be recovered by condictio indebiti de peculio. Obviously the debtor might not recover in solidum. It must be supposed on the one hand that there had been no circumstance justifying the debtor in supposing he might pay the slave, and on the other that the slave was acting in good faith, so that there is no noxal action. A converse case is quoted by Paul from Neratius¹. My slave makes an expromissio to me for my debtor. I can deduct the amount of the debt from the peculium in any actio de peculio. Nevertheless, as a slave’s promise is not a civilis obligatio, and is, qua verbal contract, a nullity, the old obligatio is not destroyed: there has been no novatio*. Paul remarks that if the dominus deducts the amount of the expromissio in any actio de peculio, this makes the original debt vest in the peculium; Neratius thought it possible that the mere expromissio might have made the claim against the original debtor vest in the peculium. This seems the more reasonable view: the peculium would be increased by the amount of this claim, and reduced by whatever amount was still due to the master on the expromissio. Here, as elsewhere, mere deductio would not be payment to the master^{[2442] [2443] [2444] [2445] [2446] [2447] [2448] [2449]}.

There are many texts which appear to deny any obligation to or against slaves. Some speak in general terms: in personam servilem nulla cadit obligatio*; servus ex contractibus non obligatur*; dominus cum servo paciscens ex placitis teneri et obligari non potest*. These texts are really laying down a rule in general terms which were no doubt correct before the introduction of naturalis obligatio, but which in later law are true only of obligatio civilis’’. The transition is shewn by a text of Ulpian⁸ which says that slaves cannot owe or be creditors, and that in using language implying that they can, we rather point out a state of fact quam ad ius civile referimus obligationem. The rule of later law is more clearly laid down by Paul^[2450], who tells us that servus naturaliter obligat, and by Ulpian himself^[2451] in the well-known text ex contractibus (servi) dviliter non obligantur sed naturaliter et obligant et obligantur. It is this habit of using language expressing the old principle, too wide for the contemporary state of things, but correct as applied to the actual case under discussion, which explains and enables us to harmonise texts in apparent conflict, dealing with specific types of transaction. Thus Paul tells us that sale to a man’s own slave is no sale at all¹¹. Ulpian says there can be no sale between father and son¹². But elsewhere he says that where the dominus buys from the slave there is a sale though the dominus is not bound¹⁸. There is no conflict:

each text is giving on its facts a correct decision. Paul means that there is no such sale as is contemplated by an agreement, in a contract of sale, that it is to be void if the vendor can sell to another on better terms before a certain day (in diem addictio): it is not such a sale as involves alienation¹. Ulpian in his first text means that there is no actionable contract: in the second, that though this is so, there is a sale for certain purposes, e.g. in the sense necessary to give a iusta causa usucapiendi: there was a naturalis obligatio to deliver the thing.

Texts dealing with novatio give a similar series of apparent conflicts. Gaius tells us that a stipulatio from a slave is inutilis, whether the promise be made to his dominus or to another, and, in conformity with this, that if a slave stipulates, novandi animo, the old obligation stands ac si a nullo postea stipulatus fuissem. This is because novatio needs a verbal contract, and a slave’s promise cannot have that force. Novatio is a civil law conception, and at civil law there is no action on a slave’s promise. Another expression of Gaius, which may be that of Servius, quia cum servo agi non potest, expresses the effect of a slave’s promise more correctly^{[2452] [2453] [2454]. The difference between this view and that of later law is as to the essentials of novation. As Theophilus says, there is a naturalis obligatio, but this does not novate’. We have just considered the effect of such a transaction[2455] [2456] [2457] [2458]. Fideiussio gives rise to similar but somewhat greater difficulties. We know that there may be fideiussio on any obligation, natural or civil’. Accordingly there may be fideiussio on a slave’s naturalis obligatio, to his master or another’, and we are told that the very slave whose debt is in question may be the interro­gator on behalf of the master’. On the other hand if the obligation is the other way round, i.e. if the slave has stipulated from his master, we are told that a fideiussor is not bound, the reason assigned being that a surety cannot be liable for and to the same person[2459] [2460], a rule frequently laid down8. It is remarked by Pernice[2461] that the reason is unsatisfactory, since it would be equally true in the converse case. He is inclined to see the reason in a refusal to recognise the reality of a debt from his dominus to a slave11. But there is no reason to base the difference of treatment of the two cases on a rigid conservatism which would ignore the reality of an obligation which was in practice familiar. The reason}

688 Naturalis Obligatio: Negotia by the Slave [pt. n assigned by the text is sufficient. It is hardly correct to say that it would apply equally to both cases. Where a fideiussor promises to a dominus on behalf of a slave, the transaction is real and intelligible. The dominus has a right against the slave’s peculium, which may be made effective in an actio de peculio brought by any creditor of the slave, against whose claim a mere ademptio of the peculium would be no protection to the dominus, by reason of the doli mali clause of the edict. There may be no certainty of making it effective in this way, the peculium being already overloaded with debt to the dominus, or the slave, with administratio, having paid away all the liquid assets. Thus the fideiussio acquires something to the master. But in the other case, though the naturalis obligatio of the master to the slave is valid, the promise of the fideiussor to the slave on behalf of the dominus acquires nothing to the slave, but can operate only, if at all, in favour of the dominus. For, as we shall see shortly, rights acquired by a slave, by contract with extranei, vest absolutely in the dominus, and do not create any naturalis obligatio, in the ordinary sense, in favour of the slave¹. Thus the surety’s promise to the slave to pay the master’s debt to him is in effect nothing more than a promise to the master to pay on behalf of the master to the master: it is for and to the same person in a sense in which this cannot be said of the converse case².

The situation is fundamentally changed by a manumission of the slave. So far as his rights are concerned, the resulting state of things is simple. The general rule is quod quis dum serous est egit, proficere libero facto non potest³. His right, such as it was, against his dominus, has no significance except in relation to his peculium, and, if he does not take that, there can be no question of any right⁴. If he does take the peculium, the natural obligation persists, and if the former dominus pays the debt he cannot recover’. In one text a curious rule is laid down. Ulpian says⁶ that a serous heres necessarius who claims bonorum separatio, and does not intermeddle with the estate, can claim to keep a debt due from his master to him. Under such circumstances he cannot be entitled to his peculium, for it is part of the estate. But if he is not so entitled, there is no debt to him. Even though there were such a debt, he would be merely a creditor, and, assuredly, not entitled by virtue of what is a mere naturalis obligatio, to any priority over other creditors with claims at civil law. It has been suggested⁷ that the debt must be one which became claimable only after the death of the

1 44. 7. 56; post, p. 698.

2 It should be noted that the jideiussor has in any case an actio mandati de peculio againat the dominus, 16.1. 3. 7.

» 50.17. 146; cp. 2.14. 7. 18.

⁴ The right of recovery by statuliber who has paid more than he was dare iussus is only an apparent exception, 12. 4. 8. 6; 40. 7. 3. 6.

^s 12. 6. 64. ⁶ 42. 6.1.18. 1 Machelard, op. cit. 194. ch. xxix] Rights of Freedman against Dominus 689

dominus, e.g. where the dominus had taken a hereditas at some earlier date, with a conditional legacy to the slave, such a legacy being capable of taking effect, now that the slave has become sui iuris. The explana­tion is hardly satisfactory. The money is spoken of as a debitum : there is no suggestion of the sum having only now become due. Moreover the difficulty would still remain. There might be other legatees of the old hereditas still unpaid, but there is no hint of their having such a privilege. In the case supposed, they, and the slave legatee, would have been entitled to bonorum separatio against the creditors of the deceased heir of their testator¹, but that would apply only to the goods which formed part of the originally inherited estate, and could not have amounted to a general right of preference in the whole estate of the present deceased^{[2462] [2463]. But a more serious objection is the general form of the language, which is not such as would have been used if such a remote hypothesis, as that suggested, had been in the writer’s mind. He could hardly have thought the words si quid ei a testators debetur, an apt form by which to describe a sum which was never in fact due from the master. On the whole it seems probable that it is a hasty Tribonianism, laid down without much reference to principle.}

We have seen^[2464] that if the slave does not take his peculium his natural right against his dominus ceases on his manumission. This is not necessarily the case with his liabilities^{[2465] [2466]. If he does not take the peculium he cannot be sued for reliqua1. If he does, it is subject to debts to the master[2467], not actionable, but such that if he pays he cannot recover7. It is to be presumed, though we have no information, that his fideiussor is still liable. His position is awkward: he cannot sue the slave, his real principal, and his remedy de peculio, hardly worth anything in the circumstances, expires in any case in a year. He is in the position of one whose principal is insolvent, though in fact both slave and master may be wealthy.}

The slave’s liability comes into question mostly in connexion with his responsibility for past administration⁸. The texts need careful consideration. Where a slave, who has been engaged in administration for his dominus, is freed without his peculium, he cannot afterwards be sued for anything due on account of the actus¹¹. If he is freed dir ecto, there is a right to vindicate property in his possession, and if he is freed by fideicommissum, though the fiduciary must free without delaying the manumission on merely pecuniary grounds, an arbiter will

690 Liability of Freedman ex ante gesto [pt. n

be appointed, under rules already considered, to enquire into what is due. If this claim is satisfied, he need not fear further liability, apart from any benefit under the will¹. We know that in all cases of manumission there is a general duty to render accounts, and if the investigation shews that moneys have been made away with in such a way as to create a liability, the amount can be deducted from any legacy’. There seems to be no text expressly dealing with the case in which the peculium is left to the man, his administration ceasing on the manu­mission, and the loss not being discovered till the peculium has been received by the legatee. As debts to the dominus automatically reduce the peculium, it might seem that the amount could be recovered, so far as the peculium would go, by a condictio indebiti*, and this is suggested by at least one text⁴. But most of them contemplate retentio as the obvious and only remedy. In fact to allow a condictio indebiti in such a case is to give an action to enforce a naiuralis obligatio. It will be remembered that, apart from actual conveyance, the legacy vests in the legatee the ownership of the proper fraction only of each res peculiaris, so that communi dividundo is available. The texts to be considered in relation to the next point shew that, so far as this reten­tion is concerned, the liability is estimated on the analogy of an ordinary negotiorum gestio, and extends to faults committed at any time during the administratio, irrespectively of the then state of the peculium. But no text extends it beyond benefits received under the will⁶.

There is more difficulty in the case in which the freedman continues the administration which he began as a slave. He is of course liable in full for any misdoings after freedom, and there is a further rule, almost inevitable. If a transaction begun before, and continued after, he was free, is such that its parts cannot well be disentangled, all can be sued upon⁸. There are, however, some texts which seem to contemplate a wider liability in the case of a continued administratio. Paul cites⁷ from three Proculians (Proculus, Pegasus and Neratius) a somewhat subtle doctrine. They say that a man who began to administer as a slave, and continues when free, is bound to shew good faith. At the moment when he became free, he knew that any further action was barred by the freedom. He ought then and there, before taking the

¹ 40. s. 19.7»·.,³⁷; ⁴⁷ ·⁴· !■⁷·

²34. 3. 28. 7. Though during slavery the natural obligation to the master has no import­

ance except in connexion with peculiujq, it has a potential existence apart from that fund. A legacy is given to an actor who is freed. Reliqua may be charged against it though there be no peculium. See ante, p. 684..

⁸ It was only in a narrow class of cases that condictio indebiti was refused in case of legacy, G.4. 9; In. 3. 27. 7.

* C. 4. 14. 5. ⁶ 3. 5. 16—18. 1.

⁶ 3. 5.16. A slave bought a site and built on it. The house fell. After he was free he let the land. In an actio negotiorum gestorum only the looatio can be considered.

⁷ 3. 5. 17, 18. ch. xxix] Liability of Freedman ex ante gesto 691 peculium, to have debited himself with whatever losses had been caused by his fault at any time (a capite rationem reddendum, says Sabinus), and taken only the balance. Not to do this was a breach of his duty as a negotiorum gestor, and he is thus liable to an action, ex negotiis gestis, for the resulting loss, i.e. for what would have been saved had he then made the deduction. Neratius seems to require him to make the same allowance even out of after acquired assets¹. Paul adds from Scaevola⁸ the proposition that the maxim of Sabinus must not be understood to extend the liability beyond the then content of the peculium, or to enable the master revocare in obligationem losses incurred in slavery. This appears to repudiate the rule of Neratius of which there is no other trace, and which squares ill with the general language of the texts above cited⁸. The case differs from that of the ordinary negotiorum gestor with which it is equalised, in that the debt in that case was a full obligatio civilis. The action allowed by Proculus is to enforce a naturalis obligatio.

It is possible to release the slave even from the liability which attaches to him in the accepted doctrine. But it is also possible to increase the liability by special undertaking of the manumissus. He may specially promise operae, or money, or full compensation for waste during his slavery. A promise of this kind must be made or confirmed after the freedom is attained. Such a promise is valid and is not upset by the rule which forbade agreements onerandae libertatis causa*. These last are defined by Ulpian and Paul as such as are not bona fide intended to be enforced, but are to be held in terrorem over the libertus to be exacted if he offend, and so to secure obedience⁸. In the same way if a manumission was given on account of an agree­ment to give money, a promise to pay it, made after the man was free, is absolutely good, and not regarded as onerandae libertatis causa⁶. It is clear that the promise must be confirmed after freedom, whether it is for money or service. The rule is clearly laid down by Ulpian and Venuleius, though the latter shews that there had been doubts⁷. An enactment of A.D. 222⁸ lays down, however, a different rule. Where a slave had promised money for liberty, and there was

¹ 3. 5.17,18. pr. The case is compared with that of a negotiorum gestor who fails to debit himself with a liability which has since become time-barred: he must make good the loss.

² 3. 5.18.1.

³ As to the view that the freedom may not be burdened with old debt, see Machelard, Obi. Nat. 184.

⁴ 44. 5. 1. 4.

⁶ 44. 5.1. 5, 2. 2. Agreements breaking the rule are not necessarily void, but there is an exceptio, see 44. 5, passim. But a societas libertatis causa between patron and libertus is absolutely void, h. 1.1. 7; 38. 1. 36. It is perhaps a fraud on the * lex lulia et Papia,’ from a treatise on which one of the texts comes, 38.1. 36.

6 44. 5. 2. 2.

i 38. 1. 7. pr., 2; 40. 12. 44. pr.; ante, p. 442. Venuleius is clear that the oath puts only religious pressure on the man.

³ C. 4. 14. 3.

692 Liability of Freedman ex ante gesto [pt. n

no stipulation after liberty, it is said adversus eum petitionem per in factum actionem habes. The rule is strange and the language is at least unusual. If this is to be taken as law, it may be that, as Savigny says¹, it was treated as an innominate contract facio ut des, the inter­vening manumission being ignored. But this does not shew why it is ignored, and the rule is so inconsistent with that found in the other texts, that it seems most likely, in view of its clumsy language, that in its original form it advised a petition to the imperial court. Other texts shew the difficulty that was felt in dealing with this sort of case. A slave induced X to promise money for his freedom, undertaking to assume the liability after he was free. This he did not do. Pomponius, quoted by Ulpian, lays down the rule that the third party who promised has an actio doli against the manumissus, and if the patron has prevented the libertus from accepting the liability, the promisor has an exceptio doli against the patron². This assumes that there is no other action, a point which Ulpian makes clear. Here the dolus is after manumission, and it must be remembered that dolus is a delict. A further difficulty arises if the slave has committed dolus to his dominus before he is free. We know that in general no action lies³. What is to happen if the manumission was itself procured by fraud? There can be no restitution, even though the manumitter were a minor, except by Imperial decree ex magna causa⁴. Several texts tell us, however, that when the owner was a minor, there is a remedy against the dolose slave. One gives an actio doli against him’: another gives vel actio doli vel uiilis*. Another says that an indemnity can be obtained ab eo cuius iuris dictio est, quatenus iuris ratio permittit⁷. The actio utilis, whatever it may mean, may perhaps be neglected. It appears therefore that the later classical law allowed an actio doli on such facts. Yet as we know, and as one of these texts expressly says⁸, no action lies to a master against his freed slave for a delict committed during slavery. The result seems to be a very strong recognition of the principle that the actio doli is available where a wrong has been done and there is no other remedy⁰, eked out by the fact that the injured person is a minor¹⁰, and by the consideration that the dolus may be said to have been committed at the very moment at which liberty was obtained. The amount recoverable is the interesse of the manumitter—what he would have had had the manumission not occurred¹¹.

¹ Savigny, System, Beilage iv in fin. ¹ 4. 3. 7. 8.

s Ante, p. 107. * 4. 4. 9. 6, 10.

⁸ 4. 8. 7. pr. c 4. 4. 11. pr.

^I C. 2. 30. 2. 8 4. 4.11. „_r. 9 4. 3.1.1.

¹⁰ All the texts dealing with such dolus of the slave and most of those dealing with dolus of a third party, seem to discuss cases in which the owner is a minor. See the references, ante, p. 570.

^II 4. 4.ll.jw. No deduction for the problematical value of the man as a libertus, 19. 5. 5. 5; cp. 50.17.126. 1.

ch.xxix] TramaciioTwmiAExtranei: Naturalis Obligatio 693

B. Transactions between the slave and extranei. Most of the questions of principle which arise in this connexion have necessarily been discussed by anticipation—a fact which enables us to deal only briefly with some of the points.

In general where a slave contracts with an extraneus, he acquires the right to his master, and conversely, the extraneus will have, or may have, the actio de peculio, etc., against the master. But the naturalis obligatio of the slave is something distinct from the rights represented by these rules. So far as a liability of the slave is concerned, this may certainly exist independently of his peculium: the transaction may have had no relation to that fund : there may indeed have been no peculium when it was made¹. Some texts suggest it as arising where there could be no actio de peculio. Thus X stipulated from a slave of B for what was due from T to X. Gaius says, on Julian’s authority, that if the slave had a iusta causa interveniendi, so that the expromissio gave X an actio de peculio against B, X is barred from suing T by the exceptio pacti conventi, but not if there was no such causa interveniendi or if he thought the slave free’. The debt is not novated, even in the first case, for the slave’s promise is not a verbal contract’, but the facts are construed as a pactum ne a T peteretur. It will be noticed that this effect differs from that in a case already considered in which the expromissio is to the slave’s own master^{[2468] [2469] [2470] [2471] [2472]. There the benefit to the person to whom the promise was made, the master, was unreal if the peculium was solvent: it depended on the possibility of making certain deductions for which there might never be occasion : here the promisee has in any case acquired an actio de peculio. In this case it can hardly be doubted that the slave would be under a naturalis obligatio whether there were an actio de peculio or not. In another text a filiusfamilias is liable under circumstances which give no actio de peculio against his father’.}

The independence of the obligation is shewn by the fact that there may be pledge or fideiussio for the slave’s natural obligation inde­pendently of that de peculio. Thus, if a slave, having administratio peculii, gives a pledge for his natural obligation, this entitles the owner to regain possession of the thing pledged by an actio pigneraticia utilis". It must be assumed here that there was also a “ peculiar” obligation (as would ordinarily be the case), since otherwise the power of adminis­tratio would not have authorised any, even partial, alienation⁷.

694 Transact ions with Extranei: Naturalis Obligatio [pt. n

The case of fideiussio for such an obligation is considered in several texts. It may be either only for the obligatio honoraria, in which case it is dumtaxat de peculio, or for the natural obligation, in which case it is in solidum, whatever the state of the peculium'. An actio de peculio does not release the fideiussor on the natural obligation, the obligations being distinct³. Such a fideiussio may even be created after an actio de peculio has been brought, quia naturalis obligatio, quam etiam servus suscipere videtur, in litem translata non est³. Though pay­ment discharges both, they are plures causae*.

But though they are distinct obligations the money due is the same and payment will put an end to both. And the naturalis obligatio must in every case be at least as great as the obligatio honoraria. These points are illustrated in several texts. Thus if the slave pays, out of the peculium, having the necessary administratio, it is a valid solutio, even though an actio de peculio is pending, and the dominus will be released by the payment⁸. Conversely if the dominus pays under an actio de peculio, this releases the fideiussores of the slave’s obligation, Africanus observing that the one payment has ended the two obliga­tions⁶. The same result follows from an acceptilatio to the slave. Thus Paul says that if I have given an acceptilatio to the slave, the actiones honorariae become inutiles’’, and Ulpian says et servus accepto liberari potest, et tolluntur etiam honorariae obligationes si quae sunt³. Ulpian gives as the reason why both parties bound by an obligation are released by an acceptilatio to one: non quoniam ipsis accepto latum est, sed quoniam velut solvisse videtur is qui acceptilatione solutus est³. It seems that acceptilatio could not be effectively made to the dominus. Ulpian’s text, in which he says that acceptilatio to the slave releases the dominus'³, begins with the remarks that accepti latio to a son releases the honorary obligation of the father, and that acceptilatio to the father would be a mere nullity. Then he adds idem erit in servo dicendum. This is followed by the rule that the slave can take acceptilatio. One might expect a fortiori that the other part of the rule is to apply, for while it might be contended that the obligation of father and son could conceivably be regarded as one, since both are civil¹¹ (i.e. actionable), it

I 46. 1. SS. · 46. 3. 84; post, p. 69S. « 15. 1. 50. 2.

* 46. 3. 38. 2. X lent money to S the slave of Y, who freed him. S then became fideiussor to X. If this was for the obligatio annalis it is good, but if for the natural obligation it is null, for a man cannot become fideiussor for himself. If he becomes heres to a fideiussor of the natural obligation or vice versa, both obligations persist, one being natural and the other civil, though in the case of a filiusfamilias there would have been merger, both being civil, 46.1.21.2. See ante, p. 217 and post, p. 696. See also App. ir.

⁵ The slwe's fideiussores are released, 12. 6.13. pr.; 15.1. 50. 2 ; 46. 3. 84.

8 46. 3. 88. 2. 7 46. 4. 11. 1.

8 46. 4. 8. 4; cp. 34. 3. 5. 3. There is no obligatio de peculio if the slave no longer owes. The converse is not necessarily true, post, p. 697.

9 46. 4.16, eiusdem obligationis participes; cp. G. 3.169; In. 3. 29. 1; post, p. 697.

10 46. 4. 8. 4.

II Cp. 5. 1.57; 15. 1.3. 11.

ch.xxix] Tramaciionswi£AExtranei:NaturalisObligatio 695

is clear that those of slave and dominus are not. One is natural: the other civil. Moreover the promise of the son is a verbal contract, while that of the slave is not, but has only the force of a pact, so that the acceptilatio cannot be in essence more than a pact¹. The fact that son or slave can take acceptilatio for the father creates no difficulty^{[2473] [2474]: they are mere expressions of his personality for the purpose of acquisi­tion, but the converse is not true.}

There is some difficulty about informal releases. The dominus can take a pactum de non petendo, but this will not release the slave^[2475]. On the other hand the liability of the dominus depends on the ex­istence of that of the slave, and thus any pact which releases the latter will release the dominus. The acceptilatio to the slave is no more than such a pact^{[2476] [2477]. But a slave’s express pact, ne a se peteretur, is in strictness meaningless. The rule arrived at is that if the slave takes a pact in rem, e.g. ne peteretur, this destroys the natural obliga­tion and thus gives the dominus also an exceptio pacti, but if he agrees ne a se (servo) peteretur, this is in strictness a nullity. Paul seems to have reluctantly allowed an exceptio doli to the dominus in such a case[2478], and we must presume that the slave’s obligation is destroyed. In like manner it appears that a pact to the dominus, ne a se servove peteretur, would destroy the natural obligation, though strictly it means nothing so far as the slave is concerned6.}

It is clear that merely bringing an actio de peculio does not release the slave or his fideiussor. But Pomponius tells us^[2479] that where an actio de peculio has proceeded to judgment, fideiussores for the slave have an exceptio rei iudicatae. This would be more intelligible if the fideiussio were for the obligatio honoraria, but this case is not commonly called a fideiussio pro servo, and if it be understood of the obligatio naturalis the rule conflicts with those just laid down and with their reason, i.e. that the obligatio naturalis has not been brought into issue^[2480]. The texts which deal with this question^{[2481] [2482] have recently been very fully considered by Erman16. Most of them clearly express the view that the natural obligation and that de peculio are not eadem res, and this may 696 Transactions with Extranei: NaturalisObligatio [pr.n be justified on obvious practical grounds1. And if, as Julian holds, a natural obligation in the actual defendant can survive an adverse judgment[2483] [2484] [2485] [2486], a fortiori would it survive in the case of another person. This is not the only case in which a fideiussor can be taken for a natural obligation surviving litis contestation All this makes it difficult to understand the text which makes the judgment release the slave’s fideiussor, and this not ipso iure, as might have been expected, but ope exceptionis*.}

The last point is perhaps unimportant in the Digest where the distinction no longer exists. Apart from possible interpolation^{[2487] [2488] it may perhaps be explained on the ground that the exceptio was not excluded by the presence of ipso iure consumption The more serious conflict remains. It may be set down to a difference of opinion, readily con­ceivable on such a point, preserved in the Digest by oversight[2489]. The view that here the judgment was an absolution, while in both the other texts it was a condemnation, has met with some acceptance. Kruger[2490] supposes that there was no consumptio and not an ordinary exceptio rei iudicatae, but a “positive” exceptio rei contra A. A. iudicatae. This is an appeal to the “ praejudicial ” effect of judgment. And Erman observes[2491] that there is no sign of such an exceptio in classical law. Afiblter[2492] [2493], taking the same view of the judgment, holds that it is an ordinary exceptio, based not on a real identity, but on a “ synthetic ” identity resting on a relation of premiss and consequence. Judgment for the debt would not prove the natural obligation, but judgment that there was no debt would disprove it. This view Erman is inclined to accept11, but it is much the same as the other, in effect: it requires the same enquiry into the content of the judgment, for only a judgment denying the transaction altogether would negative the natural obliga­tion. And it is difficult to see how the nature of the judgment can affect the identity of the res, for this identity, however defined, is something already existing[2494]. Here too the texts give no evidence of any such function of the exceptio[2495], in fact it seems that every ch. xxix] Transactions with Extranei: Manumission 697 argument which Erman urges against the view which he rejects applies equally here1.}

Of the naturalis obligatio to the slave we hear little during the slavery. Everything he acquires is acquired to the dominus, who can sue on his contracts^{[2496] [2497] [2498].}

The slave’s natural obligation survives manumission. Thus, if after he is free, he promises to pay the debt, this is not a donatio but a soluiio*, and if he pays it he cannot recover^{[2499] [2500]. But it is still only a naturalis obligatio, and thus a manumissus cannot be sued on his contract made as a slave[2501] [2502] [2503], even as a statuliber0, unless he has acquired the liability de peculio'’ or the like, on account of his still having the peculium. Here too we have, however, to except the case in which a transaction, begun when he was a slave, is completed after manumission, and its parts are not readily separable. In that case he can be sued on the whole transaction, though it does not appear that this anomalous rule can have any application beyond mandatum and negotiorum gestio*.}

In the case of deposit there is a difficulty. Where a thing is deposited with a slave, Ulpian quotes Marcellus as saying that, after he is free, he cannot be sued on his contract of deposit, and it is neces­sary therefore to fall back on other actions^[2504], e.g. vindicatio or any delictal actions which may arise. But Paul cites Trebatius as holding that if he still has the thing it is he who must be sued and not the dominus, though in general action does not lie against the manumissus^[2505]. It is clear from the preceding clause¹¹ that he is not referring to the liability depeculio. Mandry¹² appears to regard this as resting on the principle already mentioned of a continuing negotium not separable in its parts¹⁸. But this leaves the conflict with Ulpian and Marcellus, and the mere 698 Transactions with Extranei: Manumission [pt. n continuing to hold a thing is a very different matter from continuing to look after business relations, as in the other texts. He suggests also that it may rest on grounds of utility, but this is an unlikely basis for a rule which dates from Trebatius. It may be suggested that the view, established as it was in pre-classical days, fails to distinguish between contract and quasi-contract in obligation re contracta. If the obliga­tion is regarded as resting not on any agreement, but on the mere holding of the property, it is easy to see that Trebatius may well have regarded the liability as continuing. If it be contended that this ignores the fact that the text itself regards the rule as exceptional, the answer is that the concluding words, licet ex ceteris causis in manu­missum actio non datur, are not from Trebatius, or probably even from Ulpian¹. It is likely that Trebatius was not discussing the actio depositi in its developed form at all^{[2506] [2507].}

As to rights arising out of the slave’s transactions, it is clear that these remain with the dominus. What he does as a slave proficere libero facto non potest^[2508]. Actions acquired to the master remain with him, notwithstanding manumission of the slave^{[2509] [2510]. This holds good even though the contract was so framed, by condition or the like, as to postpone the actual acquisition or right of action to alienation or manumission: initium spectandum est3. Where a slave conditionally instituted came to terms with creditors, as to dividend, before satisfying the condition, it was held that his pact made while he was a slave was not available to him after he was free. After doubts, Marcellus came to the conclusion that he had an exceptio doli3. The reason for the doubt may be that the dolus was committed to the man as a slave, and he can have no rights arising out of such a delict7. The difficulty may have been got over by regarding the dolus as consisting in the refusal to recognise the agreement after the man was free8. But to give an exceptio doli in such cases is to go a long way towards doing away with the rule that what he does in slavery non potest proficere libero facto. Marcellus adds a remark that if he had been instituted pure, and agreed before intermeddling, this would have been effective: he was free at the time, and as a result of the pact has lost his right of bonorum separatio, which must be claimed before he touches the property9.}

If the slave takes the peculium, he may of course have the right to have the actions attaching to it transferred to him, but this is no real exception¹⁰. The same is true of the conditions under which a payment may be validly made to a manumissus under a negotium conducted ch. xxix] Transactions with Extranei: Manumission 699 while he was a slave*. The rule gives him no right to claim such payment, nor does it release him from a duty to account to his former owner. But these rules as to solutio are not without importance in this connexion. For if, in view of the foregoing principles, the question be asked, what is meant by such statements as that serous sibi natu­raliter...alium obligat, or naturaliter obligat (et obligaiur)?, the rules as to solutio seem to afford the best answer: in the principal text they are expressly based on the natural obligation².

Another question which has given rise to some controversy is that why the obligation of the slave remained natural after manumission, and did not become actionable. Schwanert² gives the plain reason that it was natural before, and that there is nothing in the act of manumission to make it actionable. To this Pernice⁴ objects that it is not consistent with other opinions of Schwanert, but that is no objection to the opinion standing by itself. Sa vigny⁸ says it is because, as the slave’s contract was made in view of the peculium, which has gone to the dominus, it would be unfair to make him liable to an action. But this, as Pernice remarks, would equally negative a natural obligation. On Schwanert’s solution, Pemice makes the further observation that it is a sophism, by which he presumably means that it is little more than giving the rule as a reason for itself, the real question being: why was this so ? Why was not the manumission treated as creative of some type of action ? But this is hardly surprising. The creditor contracts in view of the facts: to have given him an action against the slave as well as, in ordinary cases, against the master would have been to give him a great advantage which he could not have anticipated when he made the contract. Sell⁸ takes much the same view as Schwanert: he rests the rule on the fundamental principle of procedure : neque enim actio quae non fuit ab initio nata oriri potest’. Pemice himself seems to rest it on the view that the whole conception of natural obligation of the slave was a late development, not thoroughly worked out. In fact the reason why a particular step in advance was not taken by juris­prudence cannot often be answered on juristic grounds: no doubt in this case the actio annalis met all needs. It must be observed, that any such development would be unique: there is no other case in which an obligation which was natural owing to defective capacity of the debtor, became civil when that incapacity ceased. But the different cases of natural obligation have so little in common that this counts for little.

1 Ante, pp. 158, 163, 203, 683.

2 44. 7. 14. Machelard, op. eit. 186, shews reason against inserting meo before servo. See

Gradenwitz, Natur and Sklave, 35..

⁸ Naturaloblig. cited Pernice, Labeo, 1.150. ⁴ loo. eit.

⁸ System, 2. 426, cited Pernice, loo. oit. ⁸ Sell, Aus d. Noxalrecht, 34, 35.

’ 47. 2.17.1.

TOO Naturalis Obligatio: Modes of Enforcement [pt.h

A more promising enquiry may be: why is the obligation of the slave ex contractu natural db initio, whether his dominus is liable or not, while his obligation ex delicto is civil in all cases^[2511]? The distinction is allied with the well-known and ancient rule: nemo delicti# exuitur quamvis capite minutus sit*. Both appear to rest on the close relation between delict and crime. A slave was always liable to punishment by judicial process for crime. Criminal law had a religious basis, and the fact that a man was a slave, or had, since his act, changed his status, could not protect him against the wrath of the gods. This connexion is very clearly shewn in one set of rules. The language used in discussing the question whether a slave is liable, after his manumission, for a delict committed at his master’s order, is identical with that used in determining whether a slave is criminally liable for what he has done under the same conditions. Some of the texts do not distinguish the two cases’.

All natural obligations were not necessarily enforceable to the same degree. We have seen that those with which we are here concerned admitted of pledge and fideiussio, and that a payment was not recover­able as an indebitum. But all these involve the consent of the slave. A question arises whether the obligation could be enforced against him by compensatio. No text answers the question either way. Sa vigny⁴ thinks compensatio was applicable, on the very doubtful evidence of a text which says that one who is directed to pay and be free can compen­sare**. But, as Machelard’ points out, there is here no question of compensatio in the judicial sense ; and a rule introduced favore libertatis cannot be extended, without authority, to a somewhat contrary effect. Machelard thinks compensation inadmissible as being contrary to the tendency shewn in the texts dealing with negotiorum gestio to release him from any liabihty for things done in slavery⁷. Mandry⁸ takes a similar view, citing the same and other texts which indicate the tendency against compulsory methods’. He observes that, in texts which seem to have a different tendency, there is always some fact after the freedom accounting for the liability¹⁰. This seems the most probable view. The fact that the dominus, in handing over the pecidium, could deduct for what was due to him on a natural obligation is clearly very slight evidence for the contrary opinion. Such debts were on an entirely different footing from those to outsiders. They were ipso facto deducted from the peculium. This fund being the creature of the master’s will was automatically lessened by their amount. A legatee

ch. xxix] Naturalis Obligatio: Scope 701

of the peculium could not vindicate the peculiares res except subject to a proportionate deduction for these. Nothing of the sort was true of debts to outsiders^[2512]. One text observes: etiam quod natura debetur venit in compensationem*. It has been shewn⁸ that this text refers to the obligation resulting from a partnership with a slave. The allusion is no doubt to the adjustment in the actio pro socio. Thus even where the societas is continued after freedom and the adjustment takes place then, it is not a question of true compensatio, of setting off a debt on one obligation against another, but of the interpretation to be given to the agreement of societas. It is in fact laying down the rule that even such natural obligations as cannot be used by way of compensatio must in such a case be brought into account.

It has been noted that the fact that the transaction gave no right to the actio de peculio did not prevent the arising of a natural obliga­tion⁴ : it is indeed in the absence of this action that the right would be most valuable. Its importance may easily be exaggerated: a right which was available only after manumission, and then not by action or set off, cannot have been very highly valued by creditors. It does not appear from the texts that a slave could so contract as to exclude the natural obligation. Classical law would perhaps have treated as a nullity the provision in his agreement that he was to be in no way personally liable. Whether any notice would have been taken of his proviso that the creditor was never to claim except by the actiones honorariae cannot be said, but on the analogy of what followed from a subsequent pactum de non petendo*, it seems likely that an exceptio doli might have been allowed.

In this chapter it has been assumed that a normal slave has been normally freed. There were other cases, which have been discussed in their places. Such are the captives returning with postliminium⁹, the servus poenae plene restitutus or pardoned ex indulgentia principis⁷. In the case of the slave freed by the public authority by way of reward or of punishment to his master⁸, there is little authority: probably the rules were normal.

a 16. 2. 6.

⁵ Ante, p. 695.

⁸ Ante, pp. 599 sqq.

⁸ Lenel, Paling., ad h. I.

⁸ Ante, pp. 307 sqq.