De institoria actione
(Concerning the Institorian Action.)
1 Ulpianus libro vicensimo octavo ad edictum. Aequum praetori visum est, sicut commoda sentimus ex actu institorum, ita etiam obligari nos ex contractibus ipsorum et conveniri. sed non idem facit circa eum qui institorem praeposuit, ut experiri possit: sed si quidem servum proprium institorem habuit, potest esse securus adquisitis sibi actionibus: si autem vel alienum servum vel etiam hominem liberum, actione deficietur: ipsum tamen institorem vel dominum eius convenire poterit vel mandati vel negotiorum gestorum. Marcellus autem ait debere dari actionem ei qui institorem praeposuit in eos, qui cum eo contraxerint.
1 Ulpianus, On the Edict, Book XXVIII. It appeared just to the Prætor 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 libro nono ad edictum provinciale. Eo nomine, quo institor contraxit, si modo aliter rem suam servare non potest.
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 libro vicensimo octavo ad edictum. Institor appellatus est ex eo, quod negotio gerendo instet: nec multum facit, tabernae sit praepositus an cuilibet alii negotiationi,
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 libro trigensimo ad edictum. cum interdum etiam ad homines honestos adferant merces et ibi vendant. nec mutat causam actionis locus vendendi emendive, cum utroque modo verum sit institorem emisse aut vendidisse.
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 libro vicensimo octavo ad edictum. Cuicumque igitur negotio praepositus sit, institor recte appellabitur. 1Nam et Servius libro primo ad Brutum ait, si quid cum insulario gestum sit vel eo, quem quis aedificio praeposuit vel frumento coemendo, in solidum eum teneri. 2Labeo quoque scripsit, si quis pecuniis faenerandis, agris colendis, mercaturis redempturisque faciendis praeposuerit, in solidum eum teneri. 3Sed et si in mensa habuit quis servum praepositum, nomine eius tenebitur. 4Sed etiam eos institores dicendos placuit, quibus vestiarii vel lintearii dant vestem circumferendam et distrahendam, quos volgo circitores appellamus. 5Sed et muliones quis proprie institores appellet, 6Item fullonum et sarcinatorum praepositus. stabularii quoque loco institorum habendi sunt. 7Sed et si tabernarius servum suum peregre mitteret ad merces comparandas et sibi mittendas, loco institoris habendum Labeo scripsit. 8Idem ait, si libitinarius servum pollinctorem habuerit isque mortuum spoliaverit, dandam in eum quasi institoriam actionem, quamvis et furti et iniuriarum actio competeret. 9Idem Labeo ait: si quis pistor servum suum solitus fuit in certum locum mittere ad panem vendendum, deinde is pecunia accepta praesenti, ut per dies singulos eis panem praestaret, conturbaverit, dubitari non oportet, quin, si permisit ei ita dari summas, teneri debeat. 10Sed et cum fullo peregre proficiscens rogasset, ut discipulis suis, quibus tabernam instructam tradiderat, imperaret, post cuius profectionem vestimenta discipulus accepisset et fugisset, fullonem non teneri, si quasi procurator fuit relictus: sin vero quasi institor, teneri eum. plane si adfirmaverit mihi recte me credere operariis suis, non institoria, sed ex locato tenebitur. 11Non tamen omne, quod cum institore geritur, obligat eum qui praeposuit, sed ita, si eius rei gratia, cui praepositus fuerit, contractum est, id est dumtaxat ad id quod eum praeposuit. 12Proinde si praeposui ad mercium distractionem, tenebor nomine eius ex empto actione: item si forte ad emendum eum praeposuero, tenebor dumtaxat ex vendito: sed neque si ad emendum, et ille vendiderit, neque si ad vendendum, et ille emerit, debebit teneri, idque Cassius probat. 13Sed si pecuniam quis crediderit institori ad emendas merces praeposito, locus est institoriae, idemque et si ad pensionem pro taberna exsolvendam: quod ita verum puto, nisi prohibitus fuit mutuari. 14Si ei, quem ad vendendum emendumve oleum praeposui, mutuum oleum datum sit, dicendum erit institoriam locum habere. 15Item si institor, cum oleum vendidisset, anulum arrae nomine acceperit neque eum reddat, dominum institoria teneri: nam eius rei, in quam praepositus est, contractum est: nisi forte mandatum ei fuit praesenti pecunia vendere. quare si forte pignus institor ob pretium acceperit, institoriae locus erit. 16Item fideiussori, qui pro institore intervenerit, institoria competit: eius enim rei sequella est. 17Si ab alio institor sit praepositus, is tamen decesserit qui praeposuit et heres ei extiterit, qui eodem institore utatur, sine dubio teneri eum oportebit. nec non, si ante aditam hereditatem cum eo contractum est, aequum est ignoranti dari institoriam actionem. 18Sed et si procurator meus, tutor, curator institorem praeposuerit, dicendum erit veluti a me praeposito dandam institoriam actionem.
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. 1For 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. 2Labeo 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. 3Moreover, where anyone has appointed his slave to have charge of a broker’s table, he will be liable on his account. 4It 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. 5Anyone may also properly call muleteers agents, 6As well as those who are appointed by fullers and tailors. Stable-keepers should likewise be considered as occupying the place as agents. 7Labeo 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. 8He 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. 9Labeo 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. 10Where 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. 11It 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. 12Hence, 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. 13But 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. 14Where, 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. 15Likewise, 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. 16Moreover, 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. 17If 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. 18If, 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 libro trigensimo ad edictum. Sed et in ipsum procuratorem, si omnium rerum procurator est, dari debebit institoria.
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 libro vicensimo octavo ad edictum. Sed et si quis meam rem gerens praeposuerit et ratum habuero, idem erit dicendum. 1Parvi autem refert, quis sit institor, masculus an femina, liber an servus proprius vel alienus. item quisquis praeposuit: nam et si mulier praeposuit, competet institoria exemplo exercitoriae actionis et si mulier sit praeposita, tenebitur etiam ipsa. sed et si filia familias sit vel ancilla praeposita, competit institoria actio. 2Pupillus autem institor obligat eum, qui eum praeposuit, institoria actione, quoniam sibi imputare debet, qui eum praeposuit.
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. 1It 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. 2When 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 libro nono ad edictum provinciale. Nam et plerique pueros puellasque tabernis praeponunt.
8 Gaius, On the Provincial Edict, Book IX. For many persons appoint boys and girls for the management of shops.
9 Ulpianus libro vicensimo octavo ad edictum. Verum si ipse pupillus praeposuerit, si quidem tutoris auctoritate, obligabitur, si minus, non.
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 libro nono ad edictum provinciale. Eatenus tamen dabitur in eum actio, quatenus ex ea re locupletior est.
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 libro vicensimo octavo ad edictum. Sed si pupillus heres extiterit ei qui praeposuerat, aequissimum erit pupillum teneri, quamdiu praepositus manet: removendus enim fuit a tutoribus, si nollent opera eius uti. 1Sed et si minor viginti quinque annis erit qui praeposuit, auxilio aetatis utetur non sine causae cognitione. 2De quo palam proscriptum fuerit, ne cum eo contrahatur, is praepositi loco non habetur: non enim permittendum erit cum institore contrahere, sed si quis nolit contrahi, prohibeat: ceterum qui praeposuit tenebitur ipsa praepositione. 3Proscribere palam sic accipimus claris litteris, unde de plano recte legi possit, ante tabernam scilicet vel ante eum locum in quo negotiatio exercetur, non in loco remoto, sed in evidenti. litteris utrum Graecis an Latinis? puto secundum loci condicionem, ne quis causari possit ignorantiam litterarum. certe si quis dicat ignorasse se litteras vel non observasse quod propositum erat, cum multi legerent cumque palam esset propositum, non audietur. 4Proscriptum autem perpetuo esse oportet: ceterum si per id temporis, quo propositum non erat, vel obscurata proscriptione contractum sit, institoria locum habebit. proinde si dominus quidem mercis proscripsisset, alius autem sustulit aut vetustate vel pluvia vel quo simili contingit, ne proscriptum esset vel non pareret, dicendum eum qui praeposuit teneri. sed si ipse institor decipiendi mei causa detraxit, dolus ipsius praeponenti nocere debet, nisi particeps doli fuerit qui contraxit. 5Condicio autem praepositionis servanda est: quid enim si certa lege vel interventu cuiusdam personae vel sub pignore voluit cum eo contrahi vel ad certam rem? aequissimum erit id servari, in quo praepositus est. item si plures habuit institores, vel cum omnibus simul contrahi voluit vel cum uno solo. sed et si denuntiavit cui, ne cum eo contraheret, non debet institoria teneri: nam et certam personam possumus prohibere contrahere vel certum genus hominum vel negotiatorum, vel certis hominibus permittere. sed si alias cum alio contrahi vetuit continua variatione, danda est omnibus adversus eum actio: neque enim decipi debent contrahentes. 6Sed si in totum prohibuit cum eo contrahi, praepositi loco non habetur, cum magis hic custodis sit loco quam institoris: ergo nec vendere mercem hic poterit nec modicum quid ex taberna. 7Si institoria recte actum est, tributoria ipso iure locum non habet: neque enim potest habere locum tributoria in merce dominica. quod si non fuit institor dominicae mercis, tributoria superest actio. 8Si a servo tuo operas vicarii eius conduxero et eum merci meae institorem fecero isque tibi mercem vendiderit, emptio est: nam cum dominus a servo emit, est emptio, licet non sit dominus obligatus, usque adeo, ut etiam pro emptore et possidere et usucapere dominus possit:
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. 1But 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. 2A 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. 3To 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. 4It 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. 5Any 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. 6Where 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. 7Where 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. 8Where 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 Iulianus libro undecimo digestorum. et ideo utilis institoria actio adversus me tibi competet, mihi vero adversus te vel de peculio dispensatoris, si ex conducto agere velim, vel de peculio vicarii, quod ei mercem vendendam mandaverim: pretiumque, quo emisti, in rem tuam versum videri poterit eo, quod debitor servi tui factus esses.
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 libro vicensimo octavo ad edictum. Habebat quis servum merci oleariae praepositum Arelatae, eundem et mutuis pecuniis accipiendis: acceperat mutuam pecuniam: putans creditor ad merces eum accepisse egit proposita actione: probare non potuit mercis gratia eum accepisse. licet consumpta est actio nec amplius agere poterit, quasi pecuniis quoque mutuis accipiendis esset praepositus, tamen Iulianus utilem ei actionem competere ait. 1Meminisse autem oportebit institoria dominum ita demum teneri, si non novaverit quis eam obligationem vel ab institore vel ab alio novandi animo stipulando. 2Si duo pluresve tabernam exerceant et servum, quem ex disparibus partibus habebant, institorem praeposuerint, utrum pro dominicis partibus teneantur an pro aequalibus an pro portione mercis an vero in solidum, Iulianus quaerit. et verius esse ait exemplo exercitorum et de peculio actionis in solidum unumquemque conveniri posse, et quidquid is praestiterit qui conventus est, societatis iudicio vel communi dividundo consequetur, quam sententiam et supra probavimus.
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. 1It 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. 2Where 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 libro quarto ad Plautium. Idem erit et si alienus servus communi merci praepositus sit: nam adversus utrumque in solidum actio dari debet et quod quisque praestiterit, eius partem societatis vel communi dividundo iudicio consequetur. certe ubicumque actio societatis vel communi dividundo cessat, quemque pro parte sua condemnari oportere constat, veluti si is, cuius servo creditum est, duobus heredibus institutis ei servo libertatem dederit: nam heredum quisque pro sua parte conveniendi sunt, quia cessat inter eos communi dividundo iudicium.
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 libro vicensimo octavo ad edictum. Novissime sciendum est has actiones perpetuo dari et in heredem et heredibus.
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 libro vicensimo nono ad edictum. Si cum vilico alicuius contractum sit, non datur in dominum actio, quia vilicus propter fructus percipiendos, non propter quaestum praeponitur. si tamen vilicum distrahendis quoque mercibus praepositum habuero, non erit iniquum exemplo institoriae actionem in me competere.
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 Idem libro trigensimo ad edictum. Si quis mancipiis vel iumentis pecoribusve emendis vendendisque praepositus sit, non solum institoria competit adversus eum qui praeposuit, sed etiam redhibitoria vel ex stipulatu duplae simplaeve in solidum actio danda est. 1Si servum Titii institorem habueris, vel tecum ex hoc edicto vel cum Titio ex inferioribus edictis agere potero. sed si tu cum eo contrahi vetuisti, cum Titio dumtaxat agi poterit. 2Si impubes patri habenti institores heres exstiterit, deinde cum his contractum fuerit, dicendum est in pupillum dari actionem propter utilitatem promiscui usus, quemadmodum ubi post mortem tutoris, cuius auctoritate institor praepositus est, cum eo contrahitur. 3Eius contractus certe nomine, qui ante aditam hereditatem intercessit, etiamsi furiosus heres exsistat, dandam esse actionem etiam Pomponius scripsit: non enim imputandum est ei, qui sciens dominum decessisse cum institore exercente mercem contrahat. 4Proculus ait, si denuntiavero tibi, ne servo a me praeposito crederes, exceptionem dandam: ‘si ille illi non denuntiaverit, ne illi servo crederet’. sed si ex eo contractu peculium habeat aut in rem meam versum sit nec velim quo locupletior sim solvere, replicari de dolo malo oportet: nam videri me dolum malum facere, qui ex aliena iactura lucrum quaeram. 5Ex hac causa etiam condici posse verum est.
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. 1If 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. 2Where 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. 3Pomponius 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. 4Proculus 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. 5It is true that a personal action for recovery will also be available in this instance.
18 Idem libro singulari de variis lectionibus. Institor est, qui tabernae locove ad emendum vendendumve praeponitur quique sine loco ad eundem actum praeponitur.
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 libro tertio responsorum. In eum, qui mutuis accipiendis pecuniis procuratorem praeposuit, utilis ad exemplum institoriae dabitur actio: quod aeque faciendum erit et si procurator solvendo sit, qui stipulanti pecuniam promisit. 1Si dominus, qui servum institorem apud mensam pecuniis accipiendis habuit, post libertatem quoque datam idem per libertum negotium exercuit, varietate status non mutabitur periculi causa. 2Tabernae praepositus a patre filius mercium causa mutuam pecuniam accepit: pro eo pater fideiussit: etiam institoria ab eo petetur, cum acceptae pecuniae speciem fideiubendo negotio tabernae miscuerit. 3Servus pecuniis tantum faenerandis praepositus per intercessionem aes alienum suscipiens ut institorem dominum in solidum iure praetorio non adstringit: quod autem pro eo, qui pecuniam faeneravit, per delegationem alii promisit, a domino recte petetur, cui pecuniae creditae contra eum qui delegavit actio quaesita est.
19 Papinianus, Opinions, Book III. A prætorian 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. 1Where 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. 2Where 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. 3A 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 Prætorian 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 libro quinto digestorum. Lucius Titius mensae nummulariae quam exercebat habuit libertum praepositum: is Gaio Seio cavit in haec verba: ‘Octavius Terminalis rem agens Octavii Felicis Domitio Felici salutem. habes penes mensam patroni mei denarios mille, quos denarios vobis numerare debebo pridie kalendas Maias.’ quaesitum est, Lucio Titio defuncto sine herede bonis eius venditis an ex epistula iure conveniri Terminalis possit. respondit nec iure his verbis obligatum nec aequitatem conveniendi eum superesse, cum id institoris officio ad fidem mensae protestandam scripsisset.
20 Scævola, 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.