INTRODUCTION

In contrast with modern slave systems, the Graeco-Roman world used slaves in all kinds of ways and functions. Besides what we consider liberal trades, such as medicine or banking, there is plenty of evidence for slaves being involved in business activities, producing and distributing goods and services, or in public administration at all levels of government.

Craftsmen, traders and businessmen (and businesswomen) of servile status had many an opportunity to enter into contractual relationships with others, be they citizens, resident aliens and foreign travellers, freedmen, or slaves. In Athenian law, just like in archaic Roman law, contracts made by slaves apparently entailed no legal sanctions, social or religious pressure being presumably sufficient to enforce their provisions through fulfilment of obligations by both parties, whatever their respective social, economic and legal status.^[556] In pre-classical Roman law, all acquisitions by a slave benefit- ted the master’s patrimony exclusively, while conveyances were considered legally void, according to the twofold principle that slaves were entitled to better, meaning increase, their master’s patrimony, though not to worsen, meaning decrease, it. Such an imbalance was detrimental to those who wanted, needed, or were compelled to do business with slaves, while lowering the latter’s practical efficiency and therefore economic value. Consequently, Roman praetors devised ways of correcting this situation during the mid or late Republican period (at some point between the late third and early first centuries BCE) by granting business people a set of legal remedies (actiones) establishing, under specific conditions, various levels of contractual liability for the principal with regards to his dependant’s transactions.^[557]

In the ninth book of his commentary on the provincial edict, Gaius notes that

a proconsul does everything in order that anyone who enters into a contract with a person in power (alieni iuris, in potestate) gets his due in so far as circumstances allow it, based upon fairness, even though previously mentioned remedies, namely the actiones exercitoria, institoria, and tributoria, do not apply.^[558]

Gaius goes on, mentioning three separate remedies, one calling for total liability (in solidum), equivalent to the amount of the debt incurred through the contract, on the part of the principal on the ground of an invitation (iussum) pre-emptively addressed to potential contracting parties to deal with the dependant.^[559] The other two remedies call for the principal’s limited liability, up to the amount of the principal’s enrichment (versum) from his dependant’s transaction, or up to the amount of the dependant’s peculium, even in the absence of invitation or enrichment on the part of the principal.

Those six remedies were created by one or more praetors by the late Republican period.

Not much will be said here about those three remedies calling for the principal’s total liability. The actio quod iussu implies the awareness (scientia) and will (voluntas) of the principal to let third contracting parties deal with his dependant(s). Will and awareness are also implicit in the appointment (praepositio) by the principal of an agent as business manager or shipmas­ter, whose legal transactions carried out in connection with this specific activity (negotiatio) give rise, respectively, to an actio institoria or exercitoria. In all three cases, the principal unambiguously retains control over his dependant’s activity, the nature of which is clearly defined at the outset. In exchange, he stands surety for all debts arising from the dependant’s transac­tions. Litigation bears on simple, binary questions: is the slave indebted or not? Does the transaction fit the principal’s intention, expressed through iussum or implied in the praepositio, or not? If the answer to any of these questions is negative, the principal is not liable.

With regard to the other three remedies, namely the actiones de peculio, tributoria or de in rem verso, things are not so clear-cut, because the principal’s liability must not only be established, but also quantitatively estimated, on the basis of a sophisticated analysis of the assets and liabilities of the prin­cipal’s and/or agent’s property. Such an estimate requires the examination of account books and inventories, provided that they exist and are reliably kept. The purpose of this chapter is to identify and list the main obstacles a creditor could and undoubtedly would meet in figuring out what is in a slave’s peculium, and to ponder the consequences of this.

2.