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1. Ulpianus, On the Edict, Book XXVIII.

There is no one who is ignorant of the benefit of this Edict, for sometimes we enter into agreements with the masters of vessels concerning the necessities of the voyage, without being aware of their civil status or character; and it was only just that the party who appointed the master of a ship should be liable, just as one who has placed an agent in charge of a shop or a business; since, in fact, there is greater necessity in making the contract with the master than with an ordinary agent, as circumstances permit anyone to make an investigation of the standing of an agent, and contract with him accordingly; but this is not the case with a master of a ship, for frequently neither the place nor the time permits a satisfactory decision to be reached.

(1) We must understand the master of a ship to be a person to whom the charge of the entire ship is committed.

(2) But if the contract is made with one of the sailors, an action will not be granted against the ship-owner; although one will be granted against him on account of any offence perpetrated by one of those who are on board the vessel for the purpose of navigating the same; for the cause of action on a contract is one thing, and that arising out of an offence is another; since the party who appoints a master permits contracts to be made with him, but he who employs sailors does not allow contracts to be made with them, but he should take care that they are not guilty of negligence or fraud.

(3) Masters are appointed for the purpose of leasing vessels either for the transportation of merchandise or of passengers, or for the purpose of buying stores, but if a master is appointed for the purchase or sale of merchandise, he will render the owner liable also on this ground.

(4) It makes no difference what the civil condition of such a master is, whether he is free or a slave, and whether, if he is a slave, he belongs to the owner or to another person, nor will it make any difference what his age is, as the party who appointed him has himself only to blame.

(5) We consider the master to be not only the person whom the owner appointed, but also him whom a master appointed; and Julianus, having been consulted with reference to this matter, gave this opinion in a case where the owner was ignorant of the appointment; where, however, he knows of it, and allows the individual designated to discharge the duties of the master of the ship, he himself is held to have appointed him. This opinion seems to me to be reasonable; for he who appointed him must be responsible for all the acts of the master, otherwise, the contracting parties will be deceived; and this should be admitted the more readily for the sake of the public welfare in the case of a master than in that of another agent. How then if the owner appointed the master in such a way that the latter would not be permitted to appoint anyone else; should it be considered whether we ought to admit the opinion of Julianus in this instance? For suppose he expressly forbade him as follows, "You shall not employ Titius as master." It must be said, however, that the welfare of those who make use of ships demands that the rule should be applied to this extent.

(6) We must understand the word "ship" to mean vessels and even rafts, employed for navigating the sea, rivers, or lakes.

(7) The Praetor does not grant a right of action against an owner for every cause, but only with reference to the particular thing for which the master was appointed; that is to say, if he was appointed for a certain kind of business, for instance, where a contract was made for the transportation of merchandise; or where an agreement was entered into or money expended for the purpose of repairing the ship; or where the sailors demand payment on account of their services.

(8) What if the master should borrow a sum of money, will this be held to be included in his powers? Pegasus thinks that if he borrowed the money with reference to the matter for which he was appointed, an action should be granted, and this opinion I think to be correct; but what if he borrowed it for the purpose of equipping or fitting out the ship, or for the employment of sailors?

(9) Wherefore, Ofilius asked if the master borrows the money for the purpose of repairing the ship, and converts it to his own use, will an action be granted against the owner? He says that if he received it with the understanding that he would expend it on the ship, and afterwards changed his mind, the owner will be liable, and can only blame himself for appointing a person of this kind. If, however, from the very beginning, he had the intention to defraud the creditor, and did not expressly state that he received the money on account of the ship, the contrary rule will apply. Pedius approves of this distinction.

(10) Where, however, the master is guilty of deceit with reference to the price of things which are purchased, the owner, and not the creditor, must suffer the loss.

(11) Moreover, where the master borrows money from another party, and with it satisfies the claim of him who lent him money for the purpose of repairing the ship; I think an action should be granted to the first-mentioned creditor, just as if he had lent the money to be expended on the ship.

(12) Therefore, the appointment prescribes certain terms to be observed by the contracting parties; and hence if the owner appointed the master of the ship only for the purpose of collecting the freight, and not that he might lease the ship, (although he may have actually leased it) the owner will not be liable if the master did this; and the same rule will apply where it was understood that he could only lease the ship but could not collect the freight; or if he was appointed for the purpose of contracting with passengers but not to offer the use of the ship for merchandise, or vice versa; then, if he exceeds his instructions, he will not bind the owner. But if the master was appointed only to lease the ship for the transportation of certain merchandise, for instance, vegetables, or hemp, and he should lease it to transport marble or other materials, it must be held that he will not be bound. For certain ships are designed for freight and others (as is generally stated) are for the transportation of passengers, and I know that a great many owners give directions not to transport passengers, and also that business must be transacted only in certain regions and in certain waters; for example, there are ships which carry passengers to Brundisium from Cassiopa or from Dyrrachium, but are not adapted for freight, and some also are adapted to river navigation, but are not suitable for the sea.

(13) Where several masters are appointed, and their duties are not divided, any transaction entered into with one of them will bind the owner; but if their separate duties are designated, as, for instance, one has charge of leasing the vessel, and another is to collect freight, then the owner will be bound by the acts of any one of them provided he is in the discharge of his duty.

(14) If, however, the party made the appointment, as is often done, in such a way that one of them is not to transact any business without the other, he who contracts with one alone will only have himself to blame.

(15) When we make use of the word "exercitor," we understand by it the party into whose hands all receipts and payments come, whether he is the owner of the ship, or whether he has leased it from the owner for a fixed amount for a certain time, or permanently.

(16) It makes but little difference whether the party who has control of the ship is a man or a woman, the head of a household, a son under paternal control, or a slave; but for a ward to have control of a ship we require the consent of his guardian to be granted.

(17) We have also the choice whether we would prefer to sue the person having control of the ship, or the master of the same.

(18) But, on the other hand, an action is not promised by the Praetor against those who contracted with the master, because he did not need the same assistance; he can, however, sue the master on the contract of hiring, if he is furnishing his labor for compensation; or, if he is doing this gratuitously, he can bring an action of mandate against him. It is clear that the prefects, on account of the administration of supplies, and, in the province, the Governors, who are accustomed to aid them by the exertion of extraordinary powers, can do so where contracts are made by the masters of vessels.

(19) If the party who has control of a ship is in the power of another, and manages the vessel with his consent, an action will be granted on account of business transacted with the master, against the party in whose power he is who has the management of the ship.

(20) But although an action is granted against the person under whose control he is who has the management of a ship, still, this is only done where he acts with the consent of the latter. Therefore, those who have control of the party having the management are liable for the entire amount, on account of their consent; because the ownership of vessels is a matter of the greatest importance to the public welfare. The employment of agents is not so advantageous, for the reason that they who have transacted business, with a knowledge of the owner, using capital belonging to the peculium, only have a right to their share in the distribution of the same. But if the owner was only aware of the fact, and did not give his consent when the contract was made with the master, shall we grant a right of action for the entire amount, as in the case where the party consented; or shall we only give one resembling the tributorian action? Therefore, the question being doubtful, it is better to adhere strictly to the words of the Edict, and not make the mere knowledge of the father or master in the case of ships an excuse for oppression, nor, in the case of merchandise purchased with the money of the peculium, extend mere consent so as to cause an obligation to be contracted for the entire amount. Pomponius also seems to indicate adherence to the principle that where one person is under the control of another and carries on business with his consent, he will be liable for the entire amount, but if he does not, that he will only be liable for the amount of the peculium.

(21) We must understand the term "under the control" to apply to both sexes, sons and daughters, and male and female slaves.

(22) Where a slave, who is part of a peculium, acts as the manager of a ship with the consent of a son under paternal control of whose peculium he forms a part, or where, a sub-slave manages a ship with the consent of the latter, the father or master who did not give his consent will only be liable for the amount of the peculium, but the son himself will be liable in full. It is clear if they manage the ship with the consent of the master or father, they will be liable for the entire amount, and, moreover, the son, if he gave his consent, will also be liable in full.

(23) But, although the Praetor only promises the action where the business is transacted with the master of the ship, still, (as Julianus has stated) the father or the master will be liable in full, even though the contract was entered into with the manager of the ship himself.

(24) This action is granted against the owner on account of the master of the ship, and therefore if suit has been brought against either of them, none can be brought against the other; but if any of the money has been paid, and this has been done by the master, the obligation is diminished by operation of law. If, however, it was paid by the manager in his own behalf, that is on account of the honorary obligation, or is paid in behalf of the master, the obligation is diminished; since where another party pays for me he releases me from the debt.

(25) Where several parties have joint-ownership of a vessel, suit can be brought against any one of them for the entire amount;

2. Gaius, On the Provincial Edict, Book IX.

In order that a person who contracted with one may not be obliged to divide his claim among several adversaries,

3. Paulus, On the Edict, Book XXIX.

Nor does it make any difference what share each of them has in the vessel, for the party who paid will recover from the others in the action on partnership.

4. Ulpianus, On the Edict, Book XXIX.

Where, however, several persons have the management of a ship between them, they must be sued in proportion to their shares in the same, for they are not regarded as masters for one another.

(1) Where several persons having the management of a ship appoint one of their number to be the master, they can be sued on his account for the entire claim.

(2) Where a slave belonging to several persons manages a ship with their consent, the same rule applies as where there are several managers. For it is clear that if he acted with the consent of any one of them, the latter will be liable for the entire amount; and therefore I think that in the case above mentioned all of them are liable in full.

(3) If a slave who had control of a ship with the consent of his owner should be alienated, the party who alienated him will, nevertheless, be liable. Hence he would also be liable if the slave should die, for the owner of the ship will be liable after the death of the master.

(4) These actions are granted without limitation of time both in the favor of heirs, and against them. Hence, if a slave who has control of a ship with the consent of his master should die, this action will be granted after the expiration of a year, although an action De peculio is not granted after a year has elapsed.

5. Paulus, On the Edict, Book XXIX.

If you have, as the master of your ship, someone who is under my control, an action will also lie in my favor against you if I enter into any contract with him. The same rule applies where he is owned in common by us. You will, however, be entitled to an action on lease against me, because you hired the services of my slave, as, even if he had contracted with another, you could proceed against me to obtain a transfer of the rights of action which I held on his account, just as you could have done against a freedman had you employed one; but if the services were gratuitous, you can bring an action on mandate.

(1) Moreover, if my slave has control of a ship, and I make a contract with his shipmaster, there will be nothing to prevent me from instituting proceedings against the shipmaster by an action which I can bring either under Civil or Praetorian Law; for this edict does not prevent anyone from suing the master, as no action is transferred by this edict, but one is added.

(2) Where one of the owners of a ship makes a contract with the master, he can bring an action against the others.

6. Paulus, Abridgments, Book VI.

Where a slave has control of a ship without the consent of his master, if he is aware of this, a tributorian action will be granted; but if he is ignorant of the fact, an action De peculio will be available. Where a slave owned in common has control of a ship with the consent of his masters, an action for the entire amount will be granted against them individually.

7. Africanus, Questions, Book VIII.

Lucius Titius appointed Stichus the master of a ship, and he, having borrowed money, stated that he received it for the purpose of repairing the ship. The question arose whether Titius was liable to an action on this ground only where the creditor proved that the money had been expended for the repair of the ship? The answer was that the creditor could properly bring an action if, when the money was lent, the ship was in such a condition as to need repairs; for, while the creditor should not be compelled to, himself, undertake the repair of the ship, and transact the business of the owner (which would certainly be the case if he was required to show that the money had been spent for repairs); still, it should be required of him that he know that he makes the loan for the purpose for which the master was appointed; and this certainly could not happen unless he also knew that the money was needed for repairs. Wherefore, even though the ship was in such a condition as to need repairs, still, if much more money was lent than was necessary for that purpose, an action for the entire amount should not be granted against the owner of the ship.

(1) Sometimes it should be considered whether the money was lent in a place in which that for which it was advanced could be obtained; for, as Africanus says, what would be the case if someone lent money for the purchase of a sail in an island of such a description that a sail could not be obtained there under any circumstances? And, in general, a creditor is obliged to exercise some care in the transaction.

(2) Almost the same rule applies where inquiry is made with reference to the institorian action; for, in this instance also, the creditor must know that the purchase of the merchandise for which the slave was appointed was necessary; and it will be sufficient if he made the loan to this end, but it should not also be required that he should himself undertake the task of ascertaining whether the money was spent for this purpose. The principle of tenancy in common extends not only to the ship but also to the cargo, unless otherwise provided for; the master, being regarded as the confidential agent of the owners, is held to be tacitly invested with authority to bind them without their consent in all matters having reference to the general management and navigation of the ship; a rule of unknown antiquity, but which is obviously derived from the earliest ages of commercial intercourse. He is personally liable for his contracts, from which responsibility, however, he may obtain exemption by special agreement. As in the case of a part-owner, he can sell or hypothecate all, or a portion of the cargo, as well as the ship, if any sudden against the others whose merchandise was saved, so that the loss may be distributed proportionally. Servius, indeed, answered that they should proceed against the master of the ship under the contract for transportation to compel him to return the merchandise of the others, until they make good their share of the loss. Even though the master does retain the merchandise, he will, in any event, be entitled to an action under the contract for transportation against the passengers.
 

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Tit. 2. Concerning the Rhodian Law of jettison.

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1. Paulus, Sentences, Book II.

It is provided by the Rhodian Law that where merchandise is thrown overboard for the purpose of lightening a ship, what has been lost for the benefit of all must be made up by the contribution of all.

2. The Same, On the Edict, Book XXXIV.

What is to be done if there are passengers who have no baggage? It evidently will be more convenient to retain their baggage, if there is any; but if there is not, and the party has leased the entire ship, an action can be brought on the contract, just as in the case of passengers who have rented places on a ship; for it is perfectly just that the loss should be partially borne by those who, by the destruction of the property of others, have secured the preservation of their own merchandise.

(1) If the merchandise is saved, and the ship is damaged, or has lost part of her equipment, no contribution should be made, for the condition of the things provided for the use of the ship is different from that on account of which the freight has been received; since, if a blacksmith breaks an anvil or a hammer, this will not be charged to him who hired him to do the work. Where, however, the loss occurred with the consent of the passengers, or on account of their fear, it must be made good.

(2) Where several merchants collect different kinds of goods in the same ship, and, in addition, many passengers, both slaves and freemen, are travelling in it, and a great storm arises, and part of the cargo is necessarily thrown overboard; the question was with respect to the following point, namely, whether it was necessary for all to make good what was thrown overboard; and whether this must also be done by those who had brought on board such merchandise as did not burden the ship; as, for instance, precious stones and pearls, and if this was the case, what portion of the same must be contributed; and whether it was necessary for anything to be paid for freemen, and by what kind of an action proceedings could be instituted? It was held that all those to whose interest it was that the goods should be thrown overboard must contribute, because they owed that contribution on account of the preservation of their property, and therefore even the owner of the ship was liable for his share. The amount of the loss must be distributed in proportion to the value of the property; no appraisement can be made of the persons of freemen; and the owners of the lost property have a right to proceed on the contract for transportation against the sailor, that is the master. An agreement also arose as to whether an estimate was to be made of the clothing and rings of each person, and it was held that this should be done, and that everything should be taken into account for contribution, except what had been brought on board for the purpose of consumption, in which would be included all kinds of provisions; and there is all the more reason in this, for if, at any time during the voyage, such articles should be lacking, each one would contribute what he possessed to the common stock.

(3) If the ship has been ransomed from pirates Servius, Ofilius, and Labeo state that all should contribute; but with reference to what the robbers carried away, the loss must be borne by the party to whom it belonged, and no contribution should be made to him who ransomed his property.

(4) The share is generally contributed in accordance with the valuation of the property which is saved, and of that which is lost; and it makes no difference if that which was lost might have been sold for a higher price, since the contribution relates to loss and not to profit. With reference, however, to those things on account of which contribution must be made, the estimate should be based upon not what they had been purchased for, but upon what they could be sold for.

(5) No estimate should be made of slaves who are lost at sea, any more than where those who are ill die on the ship, or throw themselves overboard.

(6) If any of the passengers should be insolvent, the loss resulting from this will not be suffered by the master of the vessel; for a sailor is not obliged to inquire into the financial resources of everybody.

(7) Where property which has been thrown overboard is recovered, the necessity for contribution is at an end; but if it has already been made, then those who had paid can bring an action on the contract for transportation against the master, and he can proceed under the one for hiring, and return what he recovers.

(8) Any articles thrown overboard belong to the owner of the same, and do not become the property of him who obtains them, because they are not considered as abandoned.

3. Papinianus, Opinions, Book XIX.

Where a mast, or any other part of the equipment of a ship is thrown overboard for the purpose of removing a danger common to all, contribution is required.

4. Callistratus, Questions, Book II.

If, for the purpose of lightening an overloaded ship because she could not enter a river or reach a harbor with her cargo, a certain portion of the merchandise is placed in a boat to prevent the vessel from being in danger outside the river, or at the entrance of the harbor, or in the latter, and the boat is sunk, an account should be taken between those who have their merchandise preserved on the ship and those who lost theirs in the boat, just as if the latter had been thrown overboard. Sabinus also adopts this view in the Second Book of Opinions. On the other hand, if the boat is saved with part of the merchandise, and the ship is lost, no account should be taken with reference to those who lost their property in the ship, because jettison necessitates contribution only where the ship is saved.

(1) But where a ship, which has been lightened in a storm by throwing overboard the goods of a merchant, is sunk in some other place, and the goods of certain merchants are recovered by divers for compensation; Sabinus also says an account must be taken between the party whose goods were thrown overboard during the voyage for the purpose of lightening the ship, and those who subsequently recovered their goods by means of divers. But, on the other hand, no account must be presented by the party whose merchandise was thrown overboard during the voyage to those whose merchandise was not thereby preserved, if any of it was recovered by divers; for it cannot be held to have been thrown overboard for the purpose of saving the ship which was lost.

(2) But where jetsam is made from the ship, and the merchandise of anyone which remained on board, is damaged; it is a matter for consideration whether he should be compelled to contribute, since he ought not to be oppressed by the double loss of contribution and deterioration of his property. The point, however, may be maintained that he should contribute in proportion to the present value of his property. Thus, for example, where the merchandise of two persons was each worth twenty aurei, and that of one of them became only worth ten, on account of having been wet; the party whose property was not damaged should contribute in the proportion of twenty and the other in the proportion of ten. An opinion can, however, be given in this instance, if we make a distinction as to the cause of the deterioration; that is to say, whether the damage resulted on account of the exposure resulting from throwing the merchandise overboard, or for some other cause; for example, where the merchandise lay somewhere in a corner, and the waves reached it. In this instance the owner will be compelled to contribute, but in the former one, ought he not to be released from the burden of contribution because the jetsam also injured him? Or ought he to be liable even if his goods were deteriorated by the splashing of water on account of the jetsam? A still finer distinction should be made, namely, as to whether the greater loss is sustained through the damage, or through the contribution; for example, if the merchandise is worth twenty aurei, and the contribution is assessed at ten, the damage, however, amounts to two, and this having been deducted because of the loss, must the owner contribute the remainder? How then if the damage amounted to more than the contribution? For example, if the property was damaged to the amount of ten aurei, and the contribution amounted to two, there is no doubt that the party should not bear both burdens. But here let us see whether a contribution should not be made to him; for what difference does it make whether I lose my property by its being thrown overboard, or have it deteriorated by being exposed? For just as relief is granted to a party for the loss of his property, so, also, it should be granted to him whose property has become deteriorated on account of the jetsam. Papirius Fronto also stated this in an opinion.

5. Hermogeniamis, Epitomes of Law, Book II.

The contribution of those who saved their merchandise from shipwreck does not indemnify anyone for the loss of the vessel; for it is held that the equity of this contribution is only admitted when, by the remedy of jetsam, during the common danger, the interest of the others is consulted, and the ship is saved.

(1) If the mast is cut away in order that the ship with its merchandise may be freed from danger, there will be an equitable claim for contribution.

6. Julianus, Digest, Book LXXXVI.

A ship beaten by a storm and with her rigging, mast, and yards burned by lightning, was carried into Hippo. Having been provided while there with a hasty and temporary equipment, she sailed for Ostia, and discharged her cargo uninjured. The question was asked whether those to whom the cargo belonged were obliged to contribute to the master of the ship in proportion to the loss? The answer was that they were not obliged to do so, as the expense was incurred rather for the purpose of equipping the ship, than to preserve the cargo.

7. Paulus, Epitomes of the Digest of Alfenus, Book III.

Where a ship is sunk or stranded, the opinion was given that whatever each one saves out of his own property he can keep for himself, just as in case of fire.

8. Julianus, On Minicius, Book II.

Those who throw any property overboard for the purpose of lightening a ship, do not intend to consider it as abandoned; since if they should find it they can carry it away, and if they have any idea of the place where it has been cast by the sea, they can claim it; so that they are in the same condition as anyone who oppressed by a burden throws it down on the road, expecting to return presently with others and remove it.

9. Volusius Marcianus, On the Rhodian Law.

A petition of Eudaimon of Nicomedia to the Emperor Antoninus; "Lord Emperor Antoninus, having been shipwrecked in Icaria we have been robbed by farmers of the revenue inhabiting the Cyclades Islands." Antoninus answered Eudaimon as follows: "I am, indeed, the Lord of the World, but the Law is the Lord of the sea; and this affair must be decided by the Rhodian law adopted with reference to maritime questions, provided no enactment of ours is opposed to it." The Divine Augustus established the same rule.

10. Labeo, Epitomes of the Probabilities of Paulus, Book I.

If you have made a contract for the transportation of slaves, freight is not due to you for a slave who died on the ship. Paulus says that, in fact, the question is what was agreed upon, whether freight was to be paid for those who were loaded on the ship, or only for those who were carried to their destination? And if this cannot be established, it will be enough for the master of the ship to prove that the slave was placed on board.

(1) If you hired a ship on condition that your merchandise was to be transported by her, and the master of the ship, without being compelled by necessity, placed your property on an inferior vessel, being aware that you did not wish this to be done; and your merchandise was lost, together with the ship in which it was last transported, you will be entitled to an action on the contract of leasing and hiring against the master of the first ship. Paulus, on the other hand, says that this is not true, provided both ships were lost on the voyage, since it occurred without the malice or negligence of the sailors. The rule is the same if the first master, having been detained by public authority, was prevented from sailing with your merchandise. This rule is also applicable if he entered into a contract with you under the condition that he would pay you a certain penalty if he did not, by a day agreed upon, land your goods in a place to which he had agreed to transport them, and he was not to blame if he did not wait; even though the penalty was remitted to him. We must observe the same rule in a similar imaginary case, where it is proved that the master, having been prevented by illness, was unable to sail, if his ship became unfit for navigation without any malicious intent or negligence of his.

(2) If you hire a ship capable of transporting two thousand jars and place jars on board, you are liable for the freight of two thousand jars. Paulus says that the fact is, if you hire the entire capacity of the ship, the freight for two thousand jars will be due, but if the freight was agreed upon according to the number of jars placed on board, the contrary rule will apply; for you owe for the transportation of as many jars as you placed on board.
 

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Tit. 3. Concerning the Institorian Action.

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1. Ulpianus, On the Edict, Book XXVIII.

It appeared just to the Praetor that, as we obtain advantages from the acts of agents, so also we should be bound by, and liable to be sued on, contracts made by them. He does not, however, provide the same with reference to the party who is appointed an agent, so that he also may institute proceedings. When, indeed, he employs his own slave as agent, he can be secure, as the rights of action are acquired for him; if, however, he employs either the slave of another or some freeman, he will not be entitled to an action, but he can sue the agent himself or his master, either on the ground of mandate, or on that of business transacted. Marcellus, however, says that an action should be granted to the party who appointed the agent against those who have made contracts with him,

2. Gaius, On the Provincial Edict, Book IX.

In the same form in which the agent made the contract, provided he cannot protect himself in any other way.

3. Ulpianus, On the Edict, Book XXVIII.

An agent is so called because he interposes in the transaction of business, and does it make much difference whether he is appointed to conduct a shop, or to engage in any other kind of employment:

4. Paulus, On the Edict, Book XXX.

As they sometimes take goods to the houses of honorable persons, and sell them there. The place where the property is sold or purchased does not change the cause of action, since in each instance it is true that the agent has bought or sold.

5. Ulpianus, On the Edict, Book XXVIII.

Therefore, no matter what business he has been appointed to transact he will be properly styled an agent.

(1) For Servius also, in the first book on Brutus, says that where any business is transacted with a person who has charge of a house, or with some one who has been appointed to superintend the building or to buy grain, he will be liable for the entire amount.

(2) Labeo also stated that where anyone has appointed a person to lend money at interest, to cultivate land, to engage in commerce, or to make contracts, he is liable in full.

(3) Moreover, where anyone has appointed his slave to have charge of a broker's table, he will be liable on his account.

(4) It is also settled that those who are appointed by clothing merchants or weavers of linen to go about for the sale of clothing, whom we ordinarily call circitores, should also be designated as agents.

(5) Anyone may also properly call muleteers agents,

(6) As well as those who are appointed by fullers and tailors. Stable-keepers should likewise be considered as occupying the place as agents.

(7) Labeo also says that if a shop-keeper despatches his slave to a distance for the purpose of purchasing merchandise and sending it to him, he must be considered to occupy the place of an agent.

(8) He also says that, if an undertaker has a slave whose duty it is to prepare corpses for burial, and he robs a corpse; a proceeding similar to the Institorian Action should be granted against him, although the suit for theft and that for injury will both lie.

(9) Labeo also says that, where a baker was accustomed to send his slave to a certain place for the purpose of selling bread, and he, having accepted money to deliver bread to certain parties every day, neglected to do so; there is no doubt that the baker will be liable, if he permitted the money to be given to him in this manner.

(10) Where a fuller, being about to start on a long journey, requested that directions should be given to his apprentices, to whom he had delivered his shop thoroughly equipped; and, after his departure, an apprentice had received clothing and taken to flight; the fuller will not be liable if the slave was left as an ordinary agent, but if this was done in a way to make him the manager of the business he would be liable. It is evident that if he stated to me that I might trust his workmen, he will not be liable to an Institorian Action, but to one on a contract for hiring.

(11) It is not, however, everything which is transacted with the business-agent which will bind the party who appointed him, but only where the contract was made with respect to the matter on account of which he was appointed, that is to say, only that for which he was appointed.

(12) Hence, if I appoint anyone to sell merchandise, I shall be liable on his account to the action on purchase; and likewise, if I should happen to have appointed him for the purchase of merchandise, I shall be liable to the action on sale; but a party will not be bound if the appointment was made to purchase and he sells, nor if he was appointed to sell and he purchases; and this opinion is approved by Cassius.

(13) But where anyone lends money to a business-agent appointed to purchase merchandise, there is ground for the Institorian Action, and, in like manner, if he was appointed to pay the rent for the shop; and I think that this is true unless he was forbidden to borrow.

(14) Where, however, a loan of oil is made to a party whom I have appointed to buy and sell oil, it must be said that the Institorian Action will lie.

(15) Likewise, if an agent, when he sold oil, received a ring as earnest, and does not return it, his master is liable to an Institorian Action; for the contract relates to the business which he was appointed to transact, unless he should have been directed to make sales for cash. Wherefore, if the agent should have accepted a pledge instead of money, an Institorian Action will lie.

(16) Moreover, the Institorian Action can be brought by a surety who had interposed in behalf of the agent, for this is a result of the transaction.

(17) If an agent has been appointed by anyone, and he who appointed him should die, leaving an heir who employs the same agent; there is no doubt that he will be liable. Again, if a contract was made with him before the estate was entered upon, it is but just that the Institorian Action should be granted to one who is ignorant of the facts.

(18) If, however, my agent, guardian, or curator, should appoint a business manager, it must be said that an Institorian Action ought to be granted, just as if he had been appointed by me.

6. Paulus, On the Edict, Book XXX.

The Institorian Action should also be granted against the agent himself, if he was one appointed for the transaction of all kinds of business.

7. Ulpianus, On the Edict, Book XXVIII.

Moreover, if anyone who is transacting my business makes an appointment, and I ratify it, the same rule will apply.

(1) It makes little difference who the business-agent may be, whether male or female, freeman or slave, your own slave, or that of another. It is also of no consequence who appointed him; for if a woman made the appointment, the Institorian Action will lie, just as the Exercitorian Action against the party having control of a ship; and if a woman is appointed, she herself will be liable. Again, if a woman under parental control, or a female slave is appointed, the Institorian Action can be brought.

(2) When the business-agent is a minor, he will bind the person who appointed him by the Institorian Action, as he must blame himself for appointing him.

8. Gaius, On the Provincial Edict, Book IX.

For many persons appoint boys and girls for the management of shops.

9. Ulpianus, On the Edict, Book XXVIII.

But where a minor himself makes the appointment, he will be liable if this was done with the consent of his guardian, otherwise not.

10. Gaius, On the Provincial Edict, Book IX.

An action will, nevertheless, be granted against him to the extent that he has pecuniarily profited by the transaction.

11. Ulpianus, On the Edict, Book XXVIII.

Where, however, a minor becomes heir to the party who made the appointment, it is perfectly just that the minor should be liable so long as he retains his appointment; for he ought to have been removed by his guardians if they were unwilling to make use of his services.

(1) But if he who made the appointment was under twenty-five years of age, he can only claim relief on account of his age after proper investigation has been made.

(2) A party is not deemed to occupy the position of one appointed to take charge of a business, if notice has been publicly given that no contracts shall be made with him, for it should not be permitted to transact business with him as an agent, and anyone who does not wish contracts to be made with him may prohibit it; but the party who appointed him will be bound by the appointment itself.

(3) To give public notice we understand to mean that it shall be made in plain letters, so as to be easily read from the ground; that is to say, in front of the shop or place where the business is carried on, not in a retired place, but in one which is conspicuous. Shall the notice be in Greek or in Latin letters? I am of the opinion that this depends upon the character of the place, so that no one can plead ignorance of the letters. It is certain that if anyone alleges that he is unable to read, or did not observe the notice, as many persons can read, and the notice was conspicuously posted, he will not be heard.

(4) It is essential that the notice should be permanently posted; for if the contract was made before the notice was set up, or it was concealed, the Institorian Action will be available. Hence, if the owner of merchandise posted a notice, but someone removed it, or through age, rain, or something of this kind, the result was that there was no notice, or it did not appear; it must be said that the party who made the appointment will be liable. If, however, the agent himself removed it for the purpose of deceiving me, his malicious act should prejudice the party who appointed him, unless he who made the contract also participated in the fraud.

(5) Any condition upon which the appointment depended must also be considered, for what must be done if the party desired business to be transacted with him under a certain condition, or through the intervention of a certain person, or under a pledge, or with reference to a certain matter? It is perfectly just that whatever the party was appointed for should be taken into account. Likewise, where the principal has several agents, and desired contracts to be made with all of them at once, or with one alone; and if he warned anyone not to contract with him, he should not be liable to the Institorian Action, for we can forbid either a certain person or a certain class of men or merchants from making a contract, or we can permit certain persons to do so. But where the principal has forbidden a contract to be made, sometimes with one man and sometimes with another, the changes being continual, the action should be granted to all of them against him, as parties who make contracts should not be deceived.

(6) Where the principal absolutely prohibited any contract to be made with him, he is not considered to occupy the position of an agent appointed for business purposes, since he is rather occupying the position of a custodian than of an agent, and therefore he cannot sell merchandise, not even the most paltry article, out of the shop.

(7) Where the Institorian Action has been properly brought, the Tributorian Action is excluded by operation of law, for the Tributorian Action with reference to the merchandise of the owner will not be available. If, however, the party was not the business-agent for the owner's goods, the Tributorian Action will survive.

(8) Where I hire from your slave the services of his slave, and make him the business agent for my merchandise, and he sells you any goods, this constitutes a purchase; for when a master buys from his slave it is a purchase, even though the master may not be liable, to the extent that the master can, as a purchaser, possess and acquire property by usucaption.

12. Julianus, Digest, Book XI.

Therefore an Institorian equitable action can be brought by you against me; or, on the other hand, I can sue you either for the peculium of the slave who is managing the business, and also on the contract for hiring, if I desire to do so; or for the peculium of the sub-slave, because I gave him directions to sell the goods, and the price at which you made the purchase may be held as having reference to your affairs for the reason that you became a debtor to your own slave.

13. Ulpianus, On the Edict, Book XXVIII.

A certain man appointed a slave for the management of an oil business at Aries, and authorized the said slave to borrow money, and he did so. The creditor, supposing the money had been borrowed on account of the business, brought the action of which we are treating, but was unable to prove that the slave had received it for that purpose. Although the right of action is extinguished, and he could not proceed further as being authorized to obtain loans of money, still, Julianus says that an equitable action will lie in his favor.

(1) It is important to remember that the master is only liable to the Institorian Action where no one renews the obligation, whether this be done by the agent or by some other party who stipulates with the intention of renewing it.

(2) Where two or more persons are conducting a shop, and they appoint as business-agent a slave whom they own in unequal shares, Julianus asks whether they are liable in proportion to their shares in the slave, or equally, or in proportion to their shares in the merchandise, or indeed, for the entire amount? He says that the better opinion would seem to be, as in the case of parties who have control of a ship, as well as the action De peculio, that any of them can be sued for the entire indebtedness, and that whatever he who is sued has paid, he can recover by the action on partnership, or by that for the partition of property held in common. This opinion we have also approved above.

14. Paulus, On Plautius, Book IV.

The same rule will apply if a slave belonging to another has been appointed to manage a business owned in common; for an action for the entire amount should be granted against either of the owners, and what either of them has paid he can recover a share of, either by the action on partnership, or by that for the partition of property held in common. It is certain that, wherever the action on partnership or that for the division of common property does not lie, it is established that each party can only have judgment rendered against him for his share; as, for example, where one to whose slave money was lent, having appointed two heirs, gave the slave his freedom; for each heir can only be sued for his share, because the action for the division of property held in common cannot be brought between them.

15. Ulpianus, On the Edict, Book XXVIII.

In conclusion, it should be remembered that these actions are granted without reference to time, and both in favor of and against heirs.

16. Paulus, On the Edict, Book XXIX.

Where a contract is made with the steward of anyone, an action is not granted against his master, for the reason that a steward is appointed for the collection of revenue, and not for profit. If, however, I have a steward who is also appointed for the sale of merchandise, it is not unjust that I should be liable to an action similar to the institorian one.

17. The Same, On the Edict, Book XXX.

Where anyone is appointed for the purpose of purchasing and selling slaves, beasts of burden, or cattle, not only the Institorian Action will lie against the party who appointed him, but also the action for rescission of contract, as well as that on the stipulation for double or single damages for the entire amount should be granted against him.

(1) If you have the slave of Titius as your business-manager, I can proceed against you under this Edict, or against Titius under the Edicts hereinafter mentioned; but if you have forbidden any contracts to be made with him, suit can only be brought against Titius.

(2) Where a child under puberty becomes the heir of a father who had business-agents, and then contracts are made with them; it must be held that an action can be granted against the child for the sake of the benefit of ordinary commerce; just as where, after the death of a guardian with whose consent an agent has been appointed, business is transacted with him.

(3) Pomponius also stated that an action should certainly be granted on account of a contract which was concluded before the estate was entered upon, even though the heir should become insane; for he is not to blame who, being aware that the principal is dead, contracts with the agent managing the business.

(4) Proculus says that if I notify you not to make a loan to a slave appointed by me, the exception, "If he did not notify him not to lend to that slave," may be granted. But if he has any property of his own, or anything arising from the contract has been employed in my business, and I am not willing to make payment to the amount to which I have been pecuniarily benefited, a replication based on malicious intent should be filed, for I must be held to be guilty of malicious intent through attempting to profit by the loss of another.

(5) It is true that a personal action for recovery will also be available in this instance.

18. The Same, Various Passages.

A business-agent is one who is appointed to take charge of a shop or a place to purchase or sell, or one who is appointed for such a purpose without any place being designated.

19. Papinianus, Opinions, Book III.

A praetorian action will be granted, as in the case of an Institorian Action, against a party who appointed an agent to borrow money; and this also is the case where the agent, who promised money to a party entering into a stipulation, is solvent.

(1) Where a master had a slave as business-manager at a table for receiving money, and after he had given him his freedom carried on the same business by his freedman, the fact of responsibility will not be removed by the change of civil condition.

(2) Where a son who was appointed by his father to have charge of his shop, borrowed money for the purpose of the business, and his father became his surety; he can be proceeded against by means of the Institorian Action, since, by becoming surety, he connected the act of borrowing the money with the business of the shop.

(3) A slave appointed solely for the purpose of lending money at interest does not, in the capacity of business manager, render his master liable in full, under Praetorian Law, by assuming a debt as surety; but so far as money which he promised to another (in consideration of the substitution of liability) at interest is concerned, an action can properly be brought against the master on the ground of money lent to the party who made the substitution.

20. Scaevola, Digest, Book V.

Lucius Titius had a freedman appointed to take charge of a money-broker's table, which he was conducting; and the said freedman gave an obligation to Gaius Seius in these words: "Octavius Terminalis transacting the business of Octavius Felix to Domitius Felis, Greeting. You have a thousand denarii in the bank of my patron, which I shall be bound to pay you the day before the Kalends of May." The question arose whether Lucius Titius having died without an heir, and his property having been sold, Terminalis could lawfully be sued on account of this letter? The answer was that he was not legally bound by these words, nor was there any ground of equity on which he could be sued; as he wrote this in the performance of his duty as a business agent, for the purpose of maintaining the credit of the bank.
 

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Tit. 4. Concerning the Tributorian Action.

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1. Ulpianus, On the Edict, Book XXIX.

The advantage of this Edict is far from being of trifling importance, as a master, who, otherwise, enjoys a privilege in the case of contracts made by a slave (since he is liable only for the amount of the peculium, the estimate of which is made after what is due to the master has been deducted), is, nevertheless, called upon by this Edict to contribute like any other creditor, if he was aware that the slave was transacting business with property belonging to the peculium.

(1) Although the term "merchandise" is one of limited signification, and does not apply to slaves who are fullers, tailors, weavers, or dealers in slaves, still, Pedius says in the Fifteenth Book that the Edict must be held to embrace transactions of every description.

(2) Merchandise of the peculium we do not understand to mean the same as the peculium itself, for the latter is considered to indicate the remainder after what has been due to the master has been deducted; but merchandise of the peculium renders a master liable to the Tributorian Action, even though there may be nothing whatever in the peculium, only however, where the business is transacted with his knowledge.

(3) In this instance we understand the word "knowledge" to signify that which includes consent, but (as I think) not merely consent but tolerance, for the master need not wish it, but he must not be unwilling. Hence, if he is aware of the facts, and does not protest and evince opposition, he will be liable under the Tributorian Action.

(4) The term "control" must be extended to both sexes, and also to all such as are subject to the power of others.

(5) The Tributorian Action will be applicable not only to slaves, but also to such as are serving us in good faith, whether they are free born, the slaves of others, or those in whom we have an usufruct,

2. Paulus, On the Edict, Book XXX.

Provided that the merchandise which is handled with the money of the peculium belongs to us.

3. Ulpianus, On the Edict, Book XXIX.

Where, however, a slave is held in common, and both owners are aware of the fact, an action will be granted against either of them, but if one of them knows and the other is ignorant, an action will be granted against the one who knows; and whatever is due to the one who was ignorant will be deducted in full. But if anyone should sue the owner who is ignorant, since proceedings are brought against him on the peculium, what was due to the party who knew will be deducted, and, indeed, in full; for if he himself was sued in the action on the peculium, what is owing to him would be deducted in full. This Julianus stated in the Twelfth Book of the Digest.

(1) If the slave of a ward or of an insane person, with the knowledge of his guardian or curator, employs the funds of the peculium in business transactions, I am of the opinion that the fraud of the guardian or of the curator should not prejudice the ward, or the insane person, nor should it be a source of gain to him; and hence he ought not to be liable to the Tributorian Action, on account of the fraud of the guardian, only so far as he may have derived any advantage from it. I think that the same rule applies to an insane person, although Pomponius, in the Eighth Book of Epistles, stated that if a guardian is solvent, his ward is liable on account of his fraud, and it is evident that he will be liable to such an extent that he must assign the right of action which he has against his guardian.

(2) Again, if fraud was committed by the ward himself, and he is of such an age as to be capable of it, it has the effect of rendering him liable; although his knowledge may not be sufficient for the transaction of business. What course must then be pursued? The knowledge of the guardian and curator should furnish ground for this action, and I have shown to what extent fraud may cause injury.

4. Paulus, On the Edict, Book XXX.

If the ward, whose guardian was aware of the facts, is guilty of fraud after reaching puberty, or the insane person when he becomes of sound mind, they will be liable under this Edict.

5. Ulpianus, On the Edict, Book XXIX.

Pomponius does not doubt, however, neither do we, that the knowledge and the malicious intent of an agent prejudice the principal.

(1) Where the sub-slave of my slave transacts business, and I am aware of the fact, I shall be liable to the Tributorian Action, but if I am not aware of it, and the chief slave is, Pomponius states in the Sixtieth Book, that an action De peculio should be granted, and that nothing should be deducted from the peculium of the sub-slave for what he owes to the chief slave, while what is due to me should be deducted. But if both of us were aware of the facts, he says that both the Tributorian Action and the one on the peculium will lie; the Tributorian Action on account of the sub-slave, and that on the peculium on account of the chief slave; but the plaintiff must decide under which action he would rather proceed, but in such a way that contribution shall be made of both what is due to me and what is due to the chief slave, while if the latter was ignorant of the facts, whatever was due to him from the sub-slave should be deducted in full.

(2) Moreover, where a female slave transacts business, we hold that the Tributorian Action will lie.

(3) Again, it makes little difference whether the contract is entered into with the slave himself or with his business manager.

(4) The terms, "On account of the business," are added with good reason, in order to prevent every kind of transaction carried on with him from affording ground for the Tributorian Action.

(5) By means of this action it is established that everything connected with the merchandise, or which has been received on account of it, shall be subject to contribution.

(6) Those who have slaves under their control are called upon to contribute, together with the creditors of the business.

(7) The question arose, however, whether the master has a right to share in the division of the merchandise only to the extent of what is due to him on account of the same; or whether he can do so on account of other matters? Labeo says that this is the case where money is due to him for any reason whatsoever; and that it makes very little difference whether the slave became indebted to him before or after the business was transacted, for it is sufficient that he has lost the privilege of deduction.

(8) What would be the case, however, if those who contracted with the slave received the merchandise itself by way of pledge? I think that it should be said that they will be preferred to the master by the right of pledge.

(9) Whether the debt is owing to the master or to those who are under his control, contribution must be made in every instance.

(10) Where there are two or more masters, contribution should be made to each of them in proportion to his debt.

(11) The entire peculium, however, is not subject to contribution, but only that which is connected with the business, whether it consists of merchandise, or whether the price of the latter has been received and placed in a peculium.

(12) Again, if money was due for merchandise from parties to whom the slave was accustomed to make sales, this also will be subject to contribution to the extent of the receipts.

(13) If, in addition to merchandise, this slave has in the shop utensils belonging to the business, are these also subject to contribution? Labeo says that they are, and this is perfectly just, for generally, and in fact always, such tools are derived from the stock. Other articles, however, which he had in the peculium will not be liable to contribution, as for instance, if he had silver or gold, except where he acquired them with money obtained from trade.

(14) Moreover, if he employed slaves in the business who had been acquired with the proceeds of the same, these also will be subject to contribution.

(15) If the slave had several creditors, but some of them were engaged in certain branches of commerce, are all of them to be brought in and called upon to share in the contribution; for example, if he was engaged in two kinds of business, such as cloak making and the weaving of linen, and had separate creditors? It is my opinion that they should be called upon separately to share in the contribution, for each of them gave credit rather to the business than to the party himself.

(16) Moreover, if he had two shops devoted to the same kind of business, and I, for example, purchased goods at the shop in the Bucinum, and someone else made purchases in that across the Tiber; I think it would be perfectly just that the contributions should be made separately, to avoid having one set of creditors indemnified out of the property of the other, and the latter suffer loss.

(17) It is evident that if merchandise is offered for sale in the same shop, even if what was there had been obtained with the money of one of the creditors, it will all be subject to contribution, unless it was pledged to the creditor.

(18) If, however, I have delivered my merchandise to be sold, and it is still in existence, let us consider whether it will not be unjust that I should be called upon for contribution? If, however, I have only a claim against the slave, there will be ground for contribution, but if this is not the case, for the reason that property which is sold does not cease to belong to me, even though I have disposed of it, unless the money has been paid, or a surety furnished, or satisfaction made in some other manner; it must be said that I can bring an action for recovery.

(19) Contribution, however, is made in proportion to the amount which is due to each one; and therefore if one creditor appears asking for contribution, he will obtain his share in full, but since it may happen that there is one other or several other creditors of the business conducted with a peculium, this creditor must furnish security that he will refund pro rata if other creditors should appear.

6. Paulus, On the Edict, Book XXX.

For this action does not, like that on the peculium, make the condition of the prior claimant the better, but it makes that of all of them the same, no matter when they file their claims.

7. Ulpianus, On the Edict, Book XXIX.

He should also furnish security that, if anything else should be found to be due to the master, he will refund it to him pro rata; for suppose that a conditional debt is about to be due, or that there is one which has been concealed; this also must be admitted, for the master should not suffer injury, even though he may be called to share in the contribution.

(1) What, however, must be done if the master refuses to make contribution, or to take this trouble, but is prepared to surrender the peculium or the goods? Pedius states that he should be heard, and this opinion is equitable; and generally, the Praetor should appoint an arbiter, by whose intervention the goods belonging to the peculium may be distributed.

(2) Where, through the malicious contrivance of anyone, the result is that the proper contribution was not made, the Tributorian Action is granted against him, in order to compel him to make good the amount by which what was contributed is less than it should have been. This action acts as a restraint upon the malicious intent of the master. It is held that too little is contributed, if nothing is contributed. Where, however, he, being ignorant of what the slave has invested in merchandise, contributes too little, he is not held to have acted with malicious intent; but if, having ascertained the facts, he neglects to make proper contribution, he is now not free from fraud. Hence if he obtains payment to himself out of the merchandise, he is, in fact, held to have fraudulently contributed too little.

(3) Again, if he permitted the property to be destroyed, or to be converted to an improper purpose, or intentionally sold it at too low a price, or did not require payment from the purchasers; it must be held that he will be liable to the Tributorian Action, if fraudulent intent existed.

(4) Moreover, if the master denies that anything is due to anybody, it should be considered whether there is ground for the Tributorian Action. The opinion of Labeo that this action will lie is the better one; otherwise it will be expedient for the master to set up a denial.

(5) This action is both perpetual and granted against the heir, but only for the amount which conies into his hands:

8. Julianus, Digest, Book XI.

Because the proceeding is not based upon fraud, but includes the prosecution of a claim, and therefore, even if the slave is dead, the master, as well as his heir, should be held perpetually liable for the act of the deceased; although the action will not lie except where fraud has been committed.

9. Ulpianus, On the Edict, Book XXIX.

What we state with respect to the heir will also apply to other successors.

(1) A party must elect by what kind of an action he will proceed, whether by the one on the peculium, or by the Tributorian Action, since he knows that he can not have recourse to the other. It is clear that if anyone desires to bring the Tributorian Action for one claim, and the one De peculio for another, he should be heard.

(2) Labeo says that if the peculium is bequeathed to a slave manumitted by will, the heir should not be liable to the Tributorian Action, as neither has obtained anything nor has been guilty of fraud. Pomponius, in the Sixtieth Book, states that the heir is liable to the Tributorian Action, unless he took care to obtain security for himself from the slave, or deducted from the peculium what should have been contributed. This opinion is not unreasonable, since he who acted in such a way as to avoid contribution is himself guilty of malicious contrivance. For the action against the heir with reference to what comes into his hands will be granted by us, as often as he is sued on account of the fraud of the deceased, but not when he is sued on account of his own.

10. Paulus, On the Edict, Book XXX.

The action De peculio can also be brought against a purchaser of the slave; but the Tributorian Action can not.

11. Gaius, On the Provincial Edict, Book IX.

It is sometimes more expedient for parties to bring suit by the action De peculio than by the Tributorian Action, for in the one of which we are treating that alone is subject to division which forms part of the merchandise with which the business is transacted, and whatever has been received on account of the same; but, in the action De peculio the entire amount of the peculium (in which also the merchandise is included) must be taken into consideration, and it may happen that the business is being conducted perhaps with a half, or a third, or even a smaller portion of the peculium; and it also may happen that nothing is owing by the party to his father or owner.

12. Julianus, Digest, Book XII.

One man brings a suit against the master on account of the slave, only on the peculium, another institutes proceedings under the Tributorian Action; the question arises whether the master ought to deduct from the peculium what he will have to make good to the plaintiff in the Tributorian Action? The answer is that proceedings can be instituted under the Tributorian Action only where the master, in distributing the value of the merchandise, did not comply with the terms of the Praetor's Edict; that is, when he has deducted a greater part of his own debt than he has apportioned among the creditors; as, for instance, where the merchandise was worth thirty aurei of which he himself had lent fifteen, and two other creditors had lent thirty, he deducted the entire fifteen, and gave the creditors the remaining fifteen, when he should only have deducted ten, and have given each of the creditors ten. Therefore, when he has acted in this way, it is not to be understood that he has released the slave from liability to him, for the reason that he still must pay five aurei on his account in the Tributorian Action. Wherefore, if he institutes proceedings with reference to the peculium, (if by chance there should be other peculium than that invested in the business) he has a right to deduct five aurei as being still a creditor of the slave.
 

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Tit. 5. Concerning transactions said to have taken place with a person under the control of another.

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1. Gaius, On the Provincial Edict, Book IX.

The Proconsul takes every precaution to enable one party who has contracted with another that is under the control of a third, where the above mentioned actions (that is to say the exercitorian, the institorian, and the tributorian) do not apply, to still obtain his rights, so far as circumstances permit, on the grounds of equity and justice. For if the business was transacted by the order of the party under whose control the person in question is, he promises an action for the entire amount with reference to the same; but if this did not take place under his direction, but he, nevertheless, profited by it, the Proconsul introduces an action to the extent to which this has been done, and if neither of these conditions exist, he establishes an action for the amount of the peculium.

2. Ulpianus, On the Edict, Book XXIX.

The Praetor says: "After proper cause is shown I will grant an action for the amount that the party is able to pay against anyone who is emancipated or disinherited, or who has rejected the estate of the person under whose control he was at the time the former died; whether the business was transacted on his own responsibility, or with the consent of the party to whose control he was subject; and whether this was done for the benefit of his own peculium, or for that of the estate of him under whose control he was."

(1) Further, if he had become his own master without emancipation, or was given in adoption and his natural father afterwards died, and, moreover, if he had been appointed heir to a very small share of the estate, it is perfectly just that, after investigation, an action should be granted against him for the amount that he is able to pay.

3. The Same, Disputations, Book III.

Should it be discussed in this instance whether what is due to others should be deducted? And, indeed if the parties who contracted with him when he was under the control of another are creditors, it may properly be held that the position of the prior claimant is the preferable one; except where there is a privileged creditor, for, not without reason consideration will be paid to this prior creditor. But if there are creditors who contracted with him after he became his own master, I think that they should be considered.

4. The Same, On the Edict, Book XXIX.

But where the son is appointed heir of a larger portion of the estate, it is in the choice of the creditor whether he will sue him for the share of the estate to which he is entitled, or for the entire amount of the claim. In this instance also it is the duty of the judge to decide whether he should be sued only for the amount which he is able to pay.

(1) Sometimes, however, if the son is disinherited or emancipated, an action will be granted against him for the entire amount; for example, if, when the contract was made with him, he denied that he was the head of the household; for Marcellus stated in the Second Book of the Digest that an action can be brought against him on account of his falsehood, even if he is not able to pay.

(2) Although an action can be brought against him on his contracts only for the amount that he is able to pay, still, he may be sued for the entire amount on account of his offences.

(3) Relief is granted to the son alone, and not to his heir also; for Papinianus states in the Ninth Book of Questions that an action for the entire indebtedness should be granted against the heir of the son.

(4) But ought not the lapse of time be considered, so that, if proceedings are instituted without delay against the son, the action may be granted for what he is able to pay, but if many years have elapsed he should not be indulged in this way? It seems to me that it ought to be considered, for the investigation of the case will include this.

(5) Where a party brings suit on the peculium when he could have brought an action on the ground of having been expressly authorized, he is in the position of not being able subsequently to bring an action on the ground of special authority given; and this is the opinion of Proculus. But if the plaintiff, having been deceived, brings the action De peculio, Celsus thinks that he is entitled to relief, and this opinion is reasonable.

5. Paulus, On the Edict, Book XXX.

Where a son under paternal control is sued and has judgment rendered against him during the lifetime of his father, an action on the judgment should be granted against him to the extent of his ability to pay, if he has been subsequently emancipated or disinherited.

(1) If the estate of his father has been restored to a disinherited son under the Trebellian Decree of the Senate, judgment should not be rendered against him to the extent of his capacity to pay, but for the entire amount, because, in fact, he is, in some respects, an heir.

(2) But if, having been forced to do so, he has interfered with the estate for the purpose of transferring it, the same proceedings should be taken as if he had rejected it.

6. Ulpianus, Disputations, Book II.

Marcellus states that a person who pretends to be the head of a family and enters into a stipulation under the direction of any one, is liable to an action on mandate, even though he cannot make good the amount; and, in fact, it is true that he should be liable, because he has been guilty of fraud. This also can be said with reference to all actions based on good faith.

7. Scaevola, Opinions, Book I.

A father allowed his son to borrow money, and directed the creditor by letter to lend it to him, and the son became an heir to his father for a very small portion of the estate. I answered that the creditor could decide whether he would prefer to sue the son, to whom he had lent the money, for the entire amount, or the heirs, each in proportion to the share to which he had succeeded. Judgment was rendered against the son to the extent of his capacity to pay.

8. Paulus, Decrees, Book I.

Titianus Primus appointed a slave for the purpose of lending money and taking pledges; and the said slave was also accustomed to bind himself for, and to pay the obligations of persons who dealt in barley. The slave having run away, and the party to whom he had been substituted to pay the price of the barley having sued his master on account of the business manager, he denied he could be sued on this ground, because he had not been appointed for the transaction of this business. But as it was proved that the same slave had transacted other business and had rented granaries, and paid money to many people, the Prefect of Subsistence rendered a decision against the master. We stated that he appeared to be a kind of surety, since he was paying the debts of another, for he assumed payment in behalf of others, but that it was not usual for an action to be granted against a master for a reason of this kind, nor did it appear that the master had directed him to do this. But as he seemed to have appointed the slave to act in his behalf in all these transactions, the Emperor confirmed the decision.
 

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Tit. 6. Concerning the Macedonian Decree of the Senate.

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1. Ulpianus, On the Edict, Book XXIX.

The words of the Macedonian Decree of the Senate are as follows: "Whereas, among the other causes of crime which nature bestowed upon him, Macedo also added indebtedness, and as he who lends money on doubtful security (without saying any more) often furnishes material for wrong-doing to parties who are evilly disposed; it is hereby decreed that no action or claim shall be granted to anyone who has lent money to a son under paternal control, even after the death of the parent to whose authority he was subject, so that those who, by lending money at interest, set an extremely bad example, may learn that the obligation of no son under paternal control can become a valid claim by waiting for the death of his father."

(1) If the question as to whether the son is under parental control is in abeyance, for instance, because his father is in the hands of the enemy, the question as to whether the Decree of the Senate has been violated is itself in abeyance; for if he should again come under parental control, the Decree of the Senate will become operative, but if he does not, it will not apply; and therefore in the meantime an action should be refused.

(2) It is certain that if a party who has been arrogated borrows money and afterwards obtains restitution, so that he can be emancipated, the Decree of the Senate will be available, for he was a son under paternal control.

(3) Any office held by a son under paternal control will not cause the Macedonian Decree of the Senate to become inoperative; for even though he be Consul, or hold any other office, the Decree of the Senate applies, unless he should have castrense peculium, for in this instance the Decree of the Senate will not be applicable.

2. The Same, On the Edict, Book LXIV.

To the extent that this has reference to the castrense peculium, since sons under paternal control perform the functions of heads of families, so far as the castrense peculium is concerned.

3. The Same, On the Edict, Book XXIX.

Where anyone believed an individual to be the head of a family, not having been deceived by vain folly or ignorance of law, but because he was publicly considered by most persons to be such, and acted, made contracts, and performed the duties of offices as the head of a household, the Decree of the Senate will not be applicable.

(1) Wherefore, Julianus states in the Twelfth Book of the Digest that the Decree of the Senate will not apply in the case of a party who was accustomed to farm out the public revenues, and this has been frequently decided by the Emperor.

(2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan; just as Julianus himself states in the Twelfth Book of the Digest, that if a son under paternal control makes a loan the Decree of the Senate is not applicable, since the money does not become a loan even if he had the unrestricted management of the peculium. For the father, when he granted him the management of the peculium, did not give him permission to waste it, and therefore he says the right to bring suit for the recovery of the money remains with the father.

(3) Only he, however, violates the Decree of the Senate who lent money to a son under paternal control, not one who contracted otherwise, for example, one who has sold, leased, or entered into a contract of another kind, for it was the giving of money which was held to be dangerous to their parents. And therefore, even though I have become the creditor of a son under paternal control, either because of purchase, or on account of some other contract in which I have not paid down any money, but in which I made a stipulation; although the transaction has become a loan, still, as the payment of money did not take place, the Decree of the Senate will not be applicable. This, however, can only be said where no fraud on the Decree of the Senate is intended; so that the party who could not lend money preferred to sell to him, in order that he might have the price of the property instead of a loan.

(4) If I entered into a stipulation with a son under paternal control, and lent him money after he became the head of the household, whether his change of civil status had occurred through the death of his father, or he had become his own master in some other way without affecting his civil rights; it should be held that the Decree of the Senate is not operative, because the loan was made to one who was already the head of a family;

4. Scaevola, Questions, Book II.

For what is commonly stated, namely: that it is not lawful to lend to a son under paternal control, does not relate to the terms of the transaction, but to the payment of the money.

5. Paulus, Questions, Book III.

Therefore, in this instance, judgment will be rendered against him for the entire amount, and not for what he is able to pay.

6. Scaevola, Questions, Book II.

On the other hand, it is very properly stated that, if you have entered into a stipulation with the head of a family, and afterwards lend the money to him when he has become a son under paternal control, the power of the Decree of the Senate should be exercised, because the substantial part of the obligation was completed by the payment of the money.

7. Ulpianus, On the Edict, Book XXIX.

Also, if a son subject to paternal control becomes a surety, Neratius states in the First and Second Book of Opinions that the Decree of the Senate is not applicable. Celsus says the same thing in the Fourth Book, but Julianus adds that if a pretext is sought, in order that a son under paternal control, who was about to receive a loan, may become a surety, another party appearing as the principal debtor; the fraud committed against the Decree of the Senate causes prejudice, and that an exception should be granted to the son under paternal control as well as to the principal debtor, since relief is granted also to the surety of a son.

(1) He also says that if I accept two debtors, a son under paternal control and Titius, when the money was to come into the hands of the former, but I accept Titius as the principal debtor, in order that, as surety, he might not take advantage of the Decree of the Senate; an exception based upon this fraudulent act should be granted.

(2) Moreover, if a son under paternal control when his father had been exiled or was absent for a long time, promised a dowry for his daughter, and gave property of his father in pledge; the Decree of the Senate will not apply, and the property of the father will not be liable. It is evident that if the son becomes the heir of his father, and brings an action to recover the pledge, he will be barred by an exception on the ground of fraud.

(3) It should be considered whether we ought to hold that a loan is not only the payment of money, but, in fact, the delivery of everything which can be lent. The words, however, seem to me to refer to money paid, for the Decree of the Senate says, "Has lent money." But if a fraud has been committed on the Decree of the Senate, for example, where grain, wine, or oil is lent, so that, these things having been sold, the money obtained from them may be used, relief should be granted to a son under paternal control.

(4) Where the son was under the control of one party when the loan was made, and is now under that of another, the intention of the Decree of the Senate remains, and an exception will therefore be granted.

(5) But if it was not the death of the father, but something else which happened to him, through which his civil status was changed, it must be said that the Decree of the Senate will be operative.

(6) The action should be denied not only to the party who lent the money, but also to his successors.

(7) Hence, if one person paid the money and another made the stipulation, the exception would be granted against the latter, even though he did not make the payment. But if one or the other of them was not aware that he was under the control of his father, the severe rule that the rights of both are prejudiced, is applicable. This is also the case where two debtors enter into the stipulation.

(8) Moreover, if I accepted two sons under paternal control as debtors, but thought that one of them was the head of a family; it will make a difference which of them got the money, so that, if I was aware that the one to whom the money went was a son under paternal control, I shall be barred by an exception; but if I did not know into whose hands it came, I will not be barred.

(9) The Decree of the Senate will apply whether the money was lent at interest, or without it.

(10) Although the Senate does not state to whom it grants the exception, still, it must be remembered that the heir of a son under paternal control, if he dies the head of a family, and his father, if he dies under paternal control, can make use of the exception.

(11) Sometimes, however, even though there is ground for the Decree of the Senate, still, an action will be granted against a third party; as, for instance, if a son under paternal control, who is a business manager, borrowed money; for Julianus states in the Twelfth Book that the business manager himself can make use of the exception based on the Decree of the Senate, if suit is brought against him; but the Institorian Action will lie against the party who appointed him. He further says that if the father himself had appointed him to carry on his business, or he was permitted to manage his own peculium the Decree of the Senate would not be available, since he would be held to have contracted with the consent of the father; for if the latter knew that he was transacting business, he may be held to have permitted this also, if he did not expressly forbid it.

(12) Thus, if he has borrowed money and employed it in his father's business, the Decree of the Senate will not apply, for he borrowed it for his father and not for himself. But if in the beginning he did not borrow it for this purpose, but afterwards employed it in the business of his father, Julianus says in the Twelfth Book of the Digest that the Decree of the Senate does not apply, and that he must be understood to have received it in the first place with the intention of employing it in his father's business. He will not, however, be held to have employed it in this manner if he pays to his father, for the settlement of his own debt, money which he has borrowed; and therefore, if his father was not aware of it, the Decree of the Senate will still be operative.

(13) Where it is stated that the Decree of the Senate does not apply in the case of a person who, being absent for the purpose of prosecuting his studies, borrowed money; it will be applicable if he, when borrowing the money, did not exceed a moderate limit, or, at all events, the amount with which his father was accustomed to provide him.

(14) If a son has borrowed money in order to satisfy someone who, if he should bring suit could not be barred by an exception, an exception based on the Decree of the Senate will not be available.

(15) Again, the Decree of the Senate will not apply if the father begins to pay what the son has borrowed, just as if he ratified the act.

(16) If, after he has become the head of a family, he pays part of the debt, the Decree of the Senate will not apply, and he cannot recover what he paid.

8. Paulus, On the Edict, Book XXX.

If, however, payment has been made through ignorance by a curator, the amount can be recovered.

9. Ulpianus, On the Edict, Book XXIX.

But if, when he has become the head of a family, he gives property by way of pledge, it must be said that the exception based on the Decree of the Senate should be refused him, to the extent of the value of the pledge.

(1) Where the son pays the creditor money which has been given to him, can a father claim said money as belonging to him, or can he recover it by a personal action? Julianus says that if, in fact, the money was given to him on the condition that he should pay it to the creditor, it must be held to have passed immediately from the donor to the creditor, and to have become the property of him who received it, but if it was merely given to him, the son had no right to dispose of the money, and therefore, if he paid it, an action for its recovery will lie in behalf of the father, in any event.

(2) This Decree of the Senate has reference also to daughters under paternal control, nor does it signify if they are said to have obtained ornaments with the money; for an action is refused by a Decree of the most eminent Order of the State to a party who has lent money to a son under paternal control; and it makes no difference whether the coins have been consumed, or still exist as part of the peculium. Much more, therefore, should a party who has lent money to a daughter under paternal control have his contract disapproved by the severity of the Decree of the Senate.

(3) Relief is not only granted to a son under paternal control and to his father, but also to his surety, and to the party under whose direction he acted, and who themselves may have recourse to the action on mandate, unless they have intervened with the intention of making a gift; for then, as they have no recourse to him, the Decree of the Senate will not be applicable. If, however, the parties intervened, not with the intention of making a gift, but at the wish of the father, the entire contract will be held to have been approved by the latter.

(4) Those also have intervened in behalf of a son under paternal control without the consent of the father, cannot recover after they have made payment; for this was decreed also by the Divine Hadrian, and it may be said that they will not recover their money. Still, however, they are protected by a perpetual exception, and so is the son himself, but he does not recover, for the reason that those only cannot regain what they have paid who are released from an action by way of penalty on the creditors, and not because the law intended that they should be absolutely discharged from liability.

(5) Although they cannot recover after having paid,

10. Paulus, On the Edict, Booh XXX.

because the natural obligation remains;

11. Ulpianus, On the Edict, Book XXIX.

Still, if not having pleaded an exception, they have judgment rendered against them, they can make use of the exception based on the Decree of the Senate. Julianus stated this in the case of a son who was himself under paternal control, just as in the case of a woman who becomes a surety.

12. Paulus, On the Edict, Book XXX.

Where money is lent to a son with the mere knowledge of his father, it must be said that the Decree of the Senate is not applicable. But if the father directed the loan to be made to the son, and afterwards changed his mind without the creditor being aware of the fact, there will be no ground for the Decree of the Senate, as the beginning of the contract should be considered.

13. Gaius, On the Provincial Edict, Book IX.

If we enter into a stipulation with a son under paternal control, for the payment of a loan made to a third party for the purpose of renewal, Julianus says that the Decree of the Senate will be no impediment.

14. Julianus, Digest, Book XII.

I have a son, and a grandson by him; a loan was made to my grandson under the direction of his father, the question arose whether this was done in violation of the Decree of the Senate? I stated that even though sons are included in the terms of the Decree of the Senate, still, the same rule should be observed also in the case of a grandson; but the direction of his father will not prevent the loan of the money from being considered as made in violation of the Decree of the Senate, as he himself is in such a position that he cannot borrow money if his father is unwilling.

15. Marcianus, Institutes, Book XIV.

It makes no difference who has made a loan to a son under paternal control, whether it is a private individual or a city; for the Divine Severus and Antoninus stated in Rescript that the Decree of the Senate is also operative in the case of a city.

16. Paulus, Opinions, Book IV.

If a son under paternal control during the absence of his father, borrows money as having received a mandate from his father, and enters into an obligation, and sends letters to his father to pay the money in a province; his father, if he disapproves of the act of his son, should immediately send a statement of his wish to the contrary.

17. The Same, Sentences, Book II.

Where a son under paternal control borrows money for the purpose of giving it as a dowry for his sister, his father will be liable to an action for property employed in his affairs; for he will have a right to recover the dowry if the girl dies during marriage.

18. Venuleius, Stipulations, Book II.

Julianus states that the creditor of a son under paternal control cannot receive a surety after the death of the latter, because no civil or natural obligation with which the surety is connected survives; but it is evident that a surety can be properly received from the father on account of the action on the peculium which may be brought against him.

19. Pomponius, Various Passages, Book VII.

Julianus states that an exception based on the Macedonian Decree of the Senate offers no hindrance to anyone except to a party who knew, or could have known, that he to whom he made the loan was a son under paternal control.

20. The Same, On the Decrees of the Senate, Book V.

If a person to whom money was lent while he was under the control of his father, after he himself becomes the head of the family, through ignorance makes a promise of the money in such a way that a new obligation is created, and suit is brought on the stipulation, an exception founded on the facts should be filed.