Unlimited liability of the paterfamilias

When a father owned a business (e.g., in agriculture, crafts, or manufacturing), he had unlimited liability (in solidum) for actions taken by his subordinates. When he appointed a son, a slave, or another employee to manage his busi­ness, he remained liable for contracts made by the business manager (institor) in connection with the business.

The praetor introduced two actions in his edict to allow creditors to directly sue the owner or principal of a business: the actio institoria and the actio exercitoria. The former allowed a general claim against the paterfamilias or owner of the business for acts committed by the business manager in the development of the business. The actio exercitoria, however, allowed a specific claim against the pater if he was a shipper (exercitor navis) or appointed a captain (magister navis). In the latter case, the father was liable for commercial transactions entered into by the ship’s captain.

The paterfamilias also had unlimited liability for actions taken by his sons- in-power or slaves when he had given them authorization (iussum) ahead of time or subsequent ratification (ratihabitio). Authorization could be revoked at any time before a transaction was concluded (Ulpian, D. 14.4.1.2). The paterfamilias could be sued directly in a praetorian action called actio quod iussu when he had authorized a transaction, in which case he could be liable for full damages to the plaintiff.

Peculium

The peculium was the institution that allowed sons and slaves to develop independent commercial activity.

Under Augustus, anything acquired by sons in the course of their military service became part of their military assets (peculium castrense). The sons had full capacity to dispose of such assets as they pleased, even by will (E. P. 20.10). Emperor Constantine extended this category to include all of a son’s earnings from any branch of public service. Around the same period, sons were permitted a limited interest in what they received from their mother or

Family law 137 her relatives (bona materna). This interest was eventually extended to any­thing they received from someone other than their father (bona adventitia).

Where a son or slave entered into a transaction, the father or master was liable to the extent of the peculium, after deducting anything that was due to himself - or to the extent to which the father or master’s estate had profited from the transaction (actio de peculio et de in rem verso, Gaius 4.72a). But where the father or master knew of the commercial business that his son or slave was entering with his peculium (Ulpian, D. 14.4.1pr.), the father or master, precisely because of his foreknowledge, was treated like an ordinary creditor, without having the privilege of deduction. If a creditor considered that he had been unfairly treated in the distribution process, he could bring the actio tributoria against the father or master to have his own share increased to the proper amount. All these actions (institoria, exercitoria, quod iussu, de in rem verso, de peculio, and tributoria) belonged to the category of actiones adiecticiae qualitatis (“added actions”) - a term that medieval glossators applied based on Paul, D. 14.1.5.1.