De tributoria actione
(Concerning the Tributorian Action.)
1 Ulpianus libro vicensimo nono ad edictum. Huius quoque edicti non minima utilitas est, ut dominus, qui alioquin in servi contractibus privilegium habet (quippe cum de peculio dumtaxat teneatur, cuius peculii aestimatio deducto quod domino debetur fit), tamen, si scierit servum peculiari merce negotiari, velut extraneus creditor ex hoc edicto in tributum vocatur. 1Licet mercis appellatio angustior sit, ut neque ad servos fullones vel sarcinatores vel textores vel venaliciarios pertineat, tamen Pedius libro quinto decimo scribit ad omnes negotiationes porrigendum edictum. 2Peculiarem autem mercem non sic uti peculium accipimus, quippe peculium deducto quod debetur accipitur, merx peculiaris, etiamsi nihil sit in peculio, dominum tributoria obligat, ita demum si sciente eo negotiabitur. 3Scientiam hic eam accipimus, quae habet et voluntatem, sed ut ego puto, non voluntatem, sed patientiam: non enim velle debet dominus, sed non nolle. si igitur scit et non protestatur et contra dicit, tenebitur actione tributoria. 4Potestatis verbum ad omnem sexum, item ad omnes, qui sunt alieno iuri subiecti, porrigendum erit. 5Non solum ad servos pertinebit tributoria actio, verum ad eos quoque, qui nobis bona fide serviunt, sive liberi sive servi alieni sunt, vel in quibus usum fructum habemus,
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. 1Although 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. 2Merchandise 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. 3In 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. 4The term “control” must be extended to both sexes, and also to all such as are subject to the power of others. 5The 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 libro trigensimo ad edictum. ut tamen merx, qua peculiariter negotietur, ad nos pertineat.
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 libro vicensimo nono ad edictum. Sed si servus communis sit et ambo sciant domini, in utrumlibet ex illis dabitur actio: at si alter scit, alter ignoravit, in eum qui scit dabitur actio, deducetur tamen solidum quod ei qui ignoravit debetur. quod si ipsum quis ignorantem convenerit, quoniam de peculio convenitur, deducetur etiam id quod scienti debetur et quidem in solidum: nam et si ipse de peculio conventus esset, solidum quod ei deberetur deduceretur, et ita Iulianus libro duodecimo digestorum scripsit. 1Si servus pupilli vel furiosi sciente tutore vel curatore in merce peculiari negotietur, dolum quidem tutoris vel curatoris nocere pupillo vel furioso non debere puto, nec tamen lucrosum esse debere, et ideo hactenus eum ex dolo tutoris tributoria teneri, si quid ad eum pervenerit: idem et in furioso puto. quamvis Pomponius libro octavo epistularum, si solvendo tutor sit, ex dolo eius pupillum teneri scripsit: et sane hactenus tenebitur, ut actionem, quam contra tutorem habeat, praestet. 2Sed et si ipsius pupilli dolo factum sit, si eius aetatis sit, ut doli capax sit, efficere ut teneatur, quamvis scientia eius non sufficiat ad negotiationem. quid ergo est? scientia quidem tutoris et curatoris debet facere locum huic actioni: dolus autem quatenus noceat, ostendi.
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. 1If 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. 2Again, 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 libro trigensimo ad edictum. Si pupillus, cuius tutor scierit, pubes factus vel furiosus sanae mentis dolum admittant, tenentur ex hoc edicto.
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 libro vicensimo nono ad edictum. Procuratoris autem scientiam et dolum nocere debere domino neque Pomponius dubitat nec nos dubitamus. 1Si vicarius servi mei negotietur, si quidem me sciente, tributoria tenebor, si me ignorante, ordinario sciente, de peculio eius actionem dandam Pomponius libro sexagensimo scripsit, nec deducendum ex vicarii peculio, quod ordinario debetur, cum id quod mihi debetur deducatur. sed si uterque scierimus, et tributoriam et de peculio actionem competere ait, tributoriam vicarii nomine, de peculio vero ordinarii: eligere tamen debere agentem, qua potius actione experiatur, sic tamen, ut utrumque tribuatur et quod mihi et quod servo debetur, cum, si servus ordinarius ignorasset, deduceretur integrum, quod ei a vicario debetur. 2Sed et si ancilla negotiabitur, admittendam tributoriam dicimus. 3Item parvi refert, cum ipso servo contrahatur an cum institore eius. 4‘Mercis nomine’ merito adicitur, ne omnis negotiatio cum eo facta tributoriam inducat. 5Per hanc actionem tribui iubetur, quod ex ea merce et quod eo nomine receptum est. 6In tributum autem vocantur, qui in potestate habent, cum creditoribus mercis. 7Sed est quaesitum, dominus utrum ita demum partietur ex merce, si quid ei mercis nomine debeatur, an vero et si ex alia causa. et Labeo ait, ex quacumque causa ei debeatur, parvique referret, ante mercem an postea ei debere quid servus coeperit: sufficere enim, quod privilegium deductionis perdidit. 8Quid tamen si qui contrahebant ipsam mercem pignori acceperint? puto debere dici, praeferendos domino iure pignoris. 9Sive autem domino sive his qui in potestate eius sunt, debeatur, utique erit tribuendum. 10Sed si duo pluresve domini sint, utique omnibus tribuetur pro rata debiti sui. 11Non autem totum peculium venit in tributum, sed id dumtaxat, quod ex ea merce est, sive merces manent sive pretium earum receptum conversumve est in peculium. 12Sed et si adhuc debeatur mercis nomine a quibusdam, quibus solebat servus distrahere, hoc quoque tribuetur, prout fuerit receptum. 13Si praeter mercem servus iste in tabernam habeat instrumentum, an hoc quoque tribuatur? et Labeo ait et hoc tribui, et est aequissimum: plerumque enim hic apparatus ex merce est, immo semper. cetera tamen, quae extra haec in peculium habuit, non tribuentur, ut puta argentum habuit vel aurum, nisi si haec ex merce comparavit. 14Item si mancipia in negotiatione habuit ex merce parata, etiam haec tribuentur. 15Si plures habuit servus creditores, sed quosdam in mercibus certis, an omnes in isdem confundendi erunt et omnes in tributum vocandi? ut puta duas negotiationes exercebat, puta sagariam et linteariam, et separatos habuit creditores. puto separatim eos in tributum vocari: unusquisque enim eorum merci magis quam ipsi credidit. 16Sed si duas tabernas eiusdem negotiationis exercuit et ego fui tabernae verbi gratia quam ad Bucinum habuit ratiocinator, alius eius quam trans Tiberim, aequissimum puto separatim tributionem faciendam, ne ex alterius re merceve alii indemnes fiant, alii damnum sentiant. 17Plane si in eadem taberna merces deferebantur, licet hae quae [ed. maior extent] <ed. minor exstent> ex unius creditoris pecunia sint comparatae, dicendum erit omnes in tributum venire, nisi fuerint creditori pigneratae. 18Sed si dedi mercem meam vendendam et exstat, videamus, ne iniquum sit in tributum me vocari. et si quidem in creditum ei abiit, tributio locum habebit: enimvero si non abiit, quia res venditae non alias desinunt esse meae, quamvis vendidero; nisi aere soluto vel fideiussore dato vel alias satisfacto, dicendum erit vindicare me posse. 19Tributio autem fit pro rata eius quod cuique debeatur, et ideo, si unus creditor veniat desiderans tribui, integram portionem consequitur, sed quoniam fieri potest, ut alius quoque vel alii exsistere possint mercis peculiaris creditores, cavere debet creditor iste pro rata se refusurum, si forte alii emerserint creditores.
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. 1Where 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. 2Moreover, where a female slave transacts business, we hold that the Tributorian Action will lie. 3Again, it makes little difference whether the contract is entered into with the slave himself or with his business manager. 4The 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. 5By 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. 6Those who have slaves under their control are called upon to contribute, together with the creditors of the business. 7The 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. 8What 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. 9Whether the debt is owing to the master or to those who are under his control, contribution must be made in every instance. 10Where there are two or more masters, contribution should be made to each of them in proportion to his debt. 11The 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. 12Again, 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. 13If, 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. 14Moreover, if he employed slaves in the business who had been acquired with the proceeds of the same, these also will be subject to contribution. 15If 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. 16Moreover, 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. 17It 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. 18If, 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. 19Contribution, 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 libro trigensimo ad edictum. Non enim haec actio sic ut de peculio occupantis meliorem causam facit, sed aequalem condicionem quandoque agentium.
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 libro vicensimo nono ad edictum. Illud quoque cavere debet, si quid aliud domini debitum emerserit, refusurum se ei pro rata. finge enim condicionale debitum imminere vel in occulto esse: hoc quoque admittendum est: nam iniuriam dominus pati non debet, licet in tributum vocatur. 1Quid tamen si dominus tribuere nolit nec hanc molestiam suscipere, sed peculio vel mercibus cedere paratus sit? Pedius refert audiendum eum, quae sententia habet aequitatem: et plerumque arbitrum in hanc rem praetor debebit dare, cuius interventu tribuantur merces peculiares. 2Si cuius dolo malo factum est, quo minus ita tribueretur, in eum tributoria datur, ut quanto minus tributum sit quam debuerit, praestet: quae actio dolum malum coercet domini. minus autem tribuere videtur etiam si nihil tributum sit. si tamen ignorans in merce servum habere minus tribuit, non videtur dolo minus tribuisse, sed re comperta si non tribuat, dolo nunc non caret. proinde si sibi ex ea merce solvi fecit, utique dolo videtur minus tribuisse. 3Sed et si mercem perire passus est aut eam avertit aut vilioris data opera distraxit vel si ab emptoribus pretium non exegerit, dicendum erit teneri eum tributoria, si dolus intervenit. 4Sed et si negaverit dominus cuiquam deberi, videndum erit, an tributoriae locus sit: et est verior Labeonis sententia tributoriam locum habere: alioquin expediet domino negare. 5Haec actio et perpetuo et in heredem datur de eo dumtaxat quod ad eum pervenit,
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. 1What, 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 Prætor should appoint an arbiter, by whose intervention the goods belonging to the peculium may be distributed. 2Where, 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. 3Again, 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. 4Moreover, 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. 5This action is both perpetual and granted against the heir, but only for the amount which conies into his hands:
8 Iulianus libro undecimo digestorum. quia non de dolo est, sed rei persecutionem continet: quare etiam mortuo servo dominus, item heres eius perpetuo teneri debebit propter factum defuncti: quamvis non aliter quam dolo interveniente competat.
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 libro vicensimo nono ad edictum. Quod in herede dicimus, idem erit et in ceteris successoribus. 1Eligere quis debet, qua actione experiatur, utrum de peculio an tributoria, cum scit sibi regressum ad aliam non futurum. plane si quis velit ex alia causa tributoria agere, ex alia causa de peculio, audiendus erit. 2Si servo testamento manumisso peculium legatum sit, non debere heredem tributoria teneri, quasi neque ad eum pervenerit neque dolo fecerit, Labeo ait. sed Pomponius libro sexagensimo scripsit heredem nisi curaverit caveri sibi a servo vel deduxit a peculio quod tribuendum erat, teneri tributoria, quae sententia non est sine ratione: ipse enim auctor doli est, qui id egit, ne intribueret: totiens enim in heredem damus de eo quod ad eum pervenit, quotiens ex dolo defuncti convenitur, non quotiens ex suo.
9 Ulpianus, On the Edict, Book XXIX. What we state with respect to the heir will also apply to other successors. 1A 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. 2Labeo 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 libro trigensimo ad edictum. De peculio actione etiam cum emptore servi agi potest, tributoria non potest,
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 libro nono ad edictum provinciale. Aliquando etiam agentibus expedit potius de peculio agere quam tributoria: nam in hac actione de qua loquimur hoc solum in divisionem venit, quod in mercibus est quibus negotiatur quodque eo nomine receptum est: at in actione de peculio totius peculii quantitas spectatur, in quo et merces continentur. et fieri potest, ut dimidia forte parte peculii aut tertia vel etiam minore negotietur: fieri praeterea potest, ut patri dominove nihil debeat.
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 Iulianus libro duodecimo digestorum. Alius dumtaxat de peculio, alius tributoria servi nomine cum domino agit: quaesitum est, an deducere dominus de peculio debeat, quod tributoria agenti praestaturus sit. respondit: tributoria actione tunc demum agi potest, cum dominus in distribuendo pretio mercis edicto praetoris non satisfecit, id est cum maiorem partem debiti sui deduxit quam creditoribus tribuit, veluti si, cum in merce triginta fuissent, in quam ipse quidem quindecim crediderat, duo autem extranei triginta, tota quindecim deduxerit, et creditoribus reliqua quindecim dederit, cum deberet sola decem deducere, extraneis dena tribuere. cum igitur hoc fecit, nec intellegendus est servum a se liberasse eo, quod quinque adhuc nomine eius tributoria actione praestaturus sit: quare si agi de peculio coeperit, cum forte extra mercem peculium esset, quinque tamquam adhuc creditor servi deducere debebit.
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 Prætor’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.