PECULIUM

The central institution in this context is the peculium. As is well known, the significance of a slave's peculium is that the slave's owner could be sued on

1 “Melior condicio nostra per servos fieri potest, deterior fieri non potest”: D 50.17.133 (Gaius, Provincial Edict 8).

account of the slave's dealings for up to but no more than the value of the peculium. For these purposes it did not matter whether or not the owner knew of or consented to his slave's transaction.

There are a number of points at which we immediately find the need for principle to be moderated in favour of the demands of practice. The first arises from the fact that a slave could not be sued personally, so the issue was how far he should make it possible for someone else, the slave's owner, to be sued. Here there are countervailing considerations: on the one hand, the only reason anybody would be willing to deal with a slave would be because of his owner's liability up to the value of the peculium. On the other, the whole point of the peculium regime was to limit the owner's liability. For the slave to be of utility in trade or commerce, it is necessary for the owner to have some liability but not too much.

The second point is that, since a slave was a non-person, all property belonged to the slave's owner, whether or not it was in the peculium. But somehow rules had to be drawn up to allow these two types of an individual owner's property to be treated differently. In particular, if the peculium system was to work, it was necessary once litigation was in prospect for there to be some restriction on the freedom of owners to arrange and rearrange their affairs between property inside and outside a peculium.

We can gain some impression how this worked by looking at three texts from the Digest.² Before that it makes sense to look at the formula as recon­structed by Lenel.

Quod Aulus Agerius apud Stichum, qui Numerii Negidii potestate est, mensam argenteam deposuit, qua de re agitur quidquid ob eam rem Stichum, si liber esset ex iure Quiritium, Aulo Agerio dare facere oporteret ex fide bona, eius iudex Numerium Negidium Aulo Agerio dumtaxat de peculio et si quid dolo malo Numerii Negidii factum est quo minus peculii esset, vel si quid in rem Numerii Negidii inde versum est condemna, si non paret absolve.

Whereas AA deposited a silver table which is the subject of this action with Stichus,

2 For a slightly extended discussion of some of these points, cf. D Johnston, “Peculiar questions”, in P McKechnie (ed), Thinking Like a Lawyer: Essays on Legal History and General History for John Crook on his Eightieth Birthday (2002) 5.

3 O Lenel, Das Edictum Perpetuum, 3rd edn (1927) 282.

who is in the power of NN, whatever Stichus ought, if he were free under civil law, to give or to do for AA as a matter of good faith, for so much let the judge condemn NN to AA up to the amount of the peculium plus anything which by the fraud of NN has been removed from the peculium or anything which has been turned from there to the benefit of NN; if it does not so appear let him absolve him.

The formula directs the judge's attention to three questions, so far as quanti­fying Aulus Agerius' claim is concerned: first, the amount in the peculium; second, the amount of any property which has been fraudulently removed by Numerius Negidius from the peculium; third, the amount of any benefit which has flowed to Numerius Negidius from the transaction.

To turn to the texts:

Paul book 4 ad Sabinum, D 15.1.8: non statim quod dominus voluit ex re sua peculii esse peculium fecit, sed si tradidit aut cum apud eum esset pro tradito habuit. Desiderat enim res naturalem dationem. Contra autem simul atque noluit peculium servi desinit peculium esse.

An owner cannot immediately make his property into peculium by mere inten­tion but if he delivers it or holds it as delivered, for it requires an actual transfer. On the other hand, the peculium of a slave ceases to be a peculium as soon as the owner wishes.

The doctrine that it is enough for the owner nolle, not to wish, that something be part of the peculium for it to cease to be so is consistent with the fact that all of the property belongs to the slave's owner, and he is quite free to arrange his property as he sees fit. But once again, in practice and where trading partners are concerned, the pure doctrine is problematic. The difficulty is that, if property can be removed from the peculium by mere nolle, then it is not obvious how a creditor can ever persuade a judge that property which the owner claims was not in the peculium actually was. For the system to work there has to be something more. Some of the texts indicate the impor­tance of accounts, rationes, for these purposes. In the definitions of peculium advanced by various jurists there emerges the key point that its accounts are kept separately from those for the rest of the owner's patrimony.^[317]

D 15.1.5, Ulpian, book 29 ad edictum: peculium autem Tubero quidem sic definit, ut Celsus libro sexto digestorum refert, quod servus domini permissu separatum a rationibus dominicis habet, deducto inde si quid domino debetur.

Tubero, as Celsus reports him in book 6 of his digesta, defines the “peculium” as what a slave with his owner's permission keeps separately from his owner's accounts, less anything owed to the owner.

D 15.1.4pr., Pomponius book 7 ad Sabinum: peculii est non id cuius servus seorsum a domini rationem habuerit sed quod dominus ipse separaverit suam a servi rationem discernens: nam cum servi peculium totum adimere vel augere vel minuere dominus possit, animadvertendum est non quid servus sed quid dominus constituendi servilis peculii gratia fecerit. Sed hoc ita verum puto, si debito servum liberare voluit dominus, ut etiamsi nuda voluntate remiserit dominus quod debuerit desinat servus debitor esse. si vero nomina ita fecerit dominus ut quasi debitorem se servo faceret cum re vera debitor non esset, contra puto: re enim non verbis peculium augendum est.

What falls within the peculium is not what a slave keeps accounts for separately from his owner, but what the owner himself has separated, dividing his own accounts from those of his slave. Since the owner can remove entirely, increase or reduce the slave's peculium, what has to be considered is not what the slave did but what the owner did in order to establish the slave's peculium. I think it is true, if the owner wished to release his slave from a debt, that by mere intention the owner may release the debt so that the slave ceases to be his debtor. On the other hand, it is the opposite if the owner has recorded debts so as to appear to be indebted to his slave when actually he is not: for the peculium must be increased by facts not words.

From these tests we can draw some general conclusions:

1. A preliminary point is that all of this discussion needs to be seen against the background of Ulpian's observation that we misuse (abutimur) the term “owe” (debere) in applying it in this context, but that the intention is to refer to the factual rather than the legal position.⁶

2.

3. Matters are more complicated where relations between slave and slave­owners are concerned. The fact that something is mentioned in the accounts does not necessarily mean much in itself. It is just a piece of evidence. The texts are quite clear that a debt due to the peculium is not created simply by being entered into the accounts: it is created only by a legal transaction which properly gives rise to indebtedness. That emerges from the text taken from Pomponius and elsewhere.^[318] The conclusion therefore must be that a creditor could not tell, purely by requesting the slave's accounts, whether they accurately stated the value of the peculium. He might have to seek further details about certain transactions in order to form a view as to whether indebtedness to the peculium was genuine or fictitious. In any case, the Roman creditor would have been well advised to deduct any apparent indebtedness to the peculium by the slave's owner, since the slave-owner was always entitled as a first charge against the peculium to deduct any debts the peculium owed to him. As Digest title 15.1 shows, there were quite elaborate rules about what the owner was allowed to deduct.^[319] Consequently, before entering into a transaction with a slave, a creditor ought always to have assessed the creditworthiness of the peculium net of these deductions, since under no circumstances would he be able to rely on notional indebtedness between slave and owner if a contract ended in litigation.

The second question focused in the formula is about property which through the owner's fraud has ceased to be within the peculium.

D 15.1.21pr, Ulpian book 29 ad edictum: summa cum ratione etiam hoc peculio praetor imputavit quod malo domini factum est quo minus in peculio esset. Sed dolum malum accipere debemus si ei ademit peculium: sed et si eum intricare peculium in necem creditorum passus est, Mela scribit dolo malo eius factum. Sed et si quis cum suspicaretur alium secum acturum alio peculium avertat, dolo non caret. Sed si alii solvit, non dubito de hoc quin non teneatur, quoniam creditori solvitur et licet creditori vigilare ad suum consequendum.

With good reason the praetor also imputes to the peculium property which ceased to be in it as a result of the fraud of the owner. We must regard it as fraud if the owner takes away the peculium, and also (as Mela writes) if he allows the slave so to entangle the peculium as to prejudice the interests of creditors. If someone suspects he is going to be sued and diverts the peculium to someone else, he is fraudulent. But if he pays a creditor, I am in no doubt that he is not liable, since payment is made to a creditor and it is open to creditors to look out to obtain what is due to them.

The significance of the fraud provisions of the formula is not that property which left the peculium is brought back into it, but just that its value is taken into account in calculating the total extent of the owner's liability.^[320] This is a liability based on dolus, fraud. From that it follows: first, that by analogy with the action de dolo the “imputation” would extend only for one year from the date of the fraudulent act; and second, that dolus, that is fraudulent intent on the part of the owner, would have to be proved. The requirement to prove fraud is always a serious restriction on a remedy. Among the jurists in this context there is virtually no discussion of what would and would not amount to dolus.

This issue again raises sharply the question of legal doctrine. The property in the peculium belonged, after all, to the slave-owner. Taking the slave's peculium away is something that was perfectly within his legitimate power and might be perfectly innocuous: suppose, for example, that the slave had not been trading profitably and it was desired to let a different slave take over. As with any other remedy based on fraud, it would therefore be neces­sary to prove circumstances which showed that the removal of the peculium could not have been done for any legitimate reason but only for fraudulent purposes. This is a point which appears to be taken for granted by the jurists, and there is therefore no substantial discussion of it either in connection with the peculium or in connection with fraud in general.

If even removal of the peculium imposed a burden of proof on the creditor which might in certain circumstances be difficult to discharge, allowing a slave so to entangle the peculium as to cause disadvantage to creditors must have been much more difficult to establish. How would it work? The bolstering of the peculium’s balance sheet by creating fictitious debts due to it (mentioned by Ulpian) does not seem to fit the bill well, since in reality there was no property that was being fraudulently removed: it was never there in the first place. The most obvious manner of intricare would be to devise a peculium for a principal slave in which there were several other slaves each with his own sub-peculium. Ordinarily, a creditor would be able to have recourse only against the peculium of the slave with whom he had dealt: if he had had no dealings with the principal slave, then he could not have recourse against him, unless the principal slave knew of the transaction and could therefore be sued by another action.¹⁰ Add a sprinkling of transactions between one sub (or sub-sub) peculium and another, and the potential for complexity is as promising as that of the corporate groups with which we are nowadays familiar. But it is still not easy to see how these perfectly legitimate means of containing liability could be proved to be fraudulent, except on rather exceptional facts.

In considering the efficacy of the peculium-based remedies, we need there­fore to keep in mind the difficulty a creditor might face in establishing when it mattered that there was actually a peculium and that it contained assets sufficient to meet his claim. Of course this is not a difficulty that was unique to ancient Rome and which has since been overcome: creditors of Enron and WorldCom faced the same difficulties. Even audited accounts are no substi­tute for the clear vision afforded by hindsight. The Roman rules do, however, seem relatively generous to slave-owner's property no doubt reflecting both the fact that as a matter of law the property was the slave-owner's property and a reluctance to break with the principle that slaves should not affect their owners' position adversely.

C.