Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book XXIX. The Prætor judged it to be the proper way to first explain the contracts of those who are subjected to the authority of another which give a right of action for the entire amount, and then to come to the present one, where an action is granted on the peculium. 1This Edict, moreover, is threefold, for from it arises an action on the peculium, one for property employed in the affairs of another, and one based upon the order of another. 2The words of the Edict are as follows: “Whatever business is transacted with him who is under the control of another.” 3Mention is made of him and not of her, still, however, an action is granted by this Edict on account of one belonging to the female sex. 4Where a contract is made with a son under paternal control or a slave who has not yet reached puberty, the action on the peculium is granted either against the master or the father, if the peculium of either of them has been increased in value. 5The word “control” is understood to be applicable both to the son and to the slave. 6The ownership of slaves should not be given greater consideration than the right of having authority over them; for we may be sued not only on account of our own slaves but also on account of those who are held in common, as well as of those who serve us in good faith as slaves, whether they are freemen, or the slaves of others.

2 Pomponius, On Sabinus, Book V. The action arising out of the peculium and the other prætorian actions are only granted against the person entitled to the usufruct or use, where the slave subject to usufruct or use would generally acquire, and in other cases against the owner of the property.

3 Ulpianus, On the Edict, Book XXIX. Although the Prætor promises this action where business was done with a party who is under the control of someone, still, it must be remembered that the action on the peculium is granted even if he is under the control of no one; for instance, where a contract is made with a slave belonging to an estate before the estate is entered upon. 1Wherefore Labeo says that if a slave is substituted in the second or third degree, and a contract is made with him while the heirs of the first degree are deliberating, and, afterwards, when they reject the estate, he himself becomes free and an heir, it may be said that an action can be brought against him on the peculium, as well as on the ground of property employed in the affairs of another. 2It is of little importance whether a slave belongs to a man or a woman, for a woman can also be sued in an action on the peculium. 3Pedius states that even owners under puberty can be sued in the action on the peculium, for the contract is not made with the minors themselves, and the authority of the guardian must be considered. He also says that a ward cannot give his peculium to a slave without the authority of his guardian. 4We say also that the action on the peculium should be granted against the curator of an insane person; for even the slave of the latter may have a peculium, not where it has been conceded that he should have it, but where he was not prohibited from having it. 5It has been discussed, whether if a son under paternal control or a slave becomes surety for anyone, or incurs liability in any other way, or gives a mandate, an action on the peculium will lie? The better opinion is that in the case of a slave the cause for giving the security or the mandate should be considered; and Celsus in the Sixth Book approves of this opinion in the case of a slave who is a surety. Therefore, where a slave intervenes as surety, and not as managing property belonging to the peculium, his master will not be bound on account of the peculium. 6Julianus also stated in the Twelfth Book of the Digest that where a slave directs that a payment be made to my creditor, it should be ascertained what reason he had for giving this mandate. If he directed him to make payment to the party as to his own creditor, the master will be liable on the peculium, but if he only performed the duty of a voluntary surety, the master will not be liable on the peculium. 7What the same Julianus stated agrees with the following, namely; if I accept a surety from my son, whatever I receive from the said surety I shall be compelled to make good, not on the ground of property employed for my benefit, but in an action on mandate to the amount of the peculium. You may understand that the same rule applies in the case of the surety of a slave, and where another person pays me in behalf of my son who is my debtor. He also stated that if my son was not my debtor, the surety will be entitled to make use of an exception on the ground of fraud, and to bring a personal action for recovery if he has made payment. 8Where a slave who is assuming to be a freeman, consents to arbitration, the question arises whether an action on the peculium should be granted for the penalty for non-compliance with the award, this being, as it were an instance of voluntary agency, just as it is granted in the case of a maritime loan? The better opinion seems to both Nerva, the son, and myself to be that an action on the peculium arising from a reference to arbitration by a slave should not be granted, since an action is not granted against him if the slave is condemned in court. 9Where a son is accepted as a surety, or is voluntarily bound in any way, the question arises whether he makes his father liable on the peculium? The correct opinion is that of Sabinus and Cassius, who think that the father is always liable on the peculium, and that the son differs in this respect from the slave. 10Wherefore, the father will always be liable where a reference to arbitration is made. Papinianus also makes a similar statement in the Ninth Book of Questions; and he says that it makes no difference what point was referred to arbitration, whether it was one on which a party could have brought an action on the peculium against the father, or one on which he could not have done this, as suit is brought against the father on the stipulation. 11He also says that the father is liable to an action on a judgment to the amount of the peculium, and this view Marcellus likewise holds, even in a case on account of which a father would not be liable to a suit on the peculium; for just as in a stipulation a contract is made with the son, so also a contract is made in a case in court; hence the origin of the proceeding should not be considered as the source of the obligation, but the liability under the judgment. Wherefore, he is of the same opinion where the son, acting as a defender of another, has a decision rendered against him. 12It is established that a personal action for recovery on the ground of theft can be brought against a son under paternal control. The question arises, however, whether the action on the peculium should be granted against the father or the master, and the better opinion is that the action on the peculium should be granted for the amount by which the master has been pecuniarily benefited by the theft which was committed. Labeo approves of this opinion, for the reason that it is most unjust that by the theft of the slave, the master should profit without being accountable. For the action on the peculium will also lie in a case where property has been carried away, and an action is brought on account of a son under paternal control to the amount which has come into the hands of the father. 13If a son under paternal control who is a duumvir, did not take care that security be given to insure the safety of the property of a ward, Papinianus says in the Ninth Book of Questions that the action De peculio will lie. I do not think that the question whether the son was made a decurion with the consent of his father changes anything, for the father was obliged to provide for the public welfare.

4 Pomponius, On Sabinus, Book VII. The peculium is not what the slave keeps an account of separately from his master, but is what the master himself has set aside, keeping a distinct account from that of the slave; for since the master can take away the entire amount of peculium from the slave, or increase or diminish it, the question to be considered is not what the slave, but what the master has done for the purpose of creating a peculium for the slave. 1I think this to be true, however, where a master wishes to release the slave from a debt, so that if the master has remitted what the slave owed by his mere will, the slave ceases to be his debtor, but if the master keeps his accounts in such a way that he makes himself appear indebted to the slave, when in fact he is not his debtor, I think that the contrary opinion is correct, for a peculium should be increased not by words but by business matters. 2From these rules it is apparent that not what a slave has without the knowledge of his master belongs to the peculium, but whatever he has with his consent, otherwise what a slave steals from his master will become a part of the peculium, which is not true. 3It often happens, however, that the peculium of a slave suffers diminution without the knowledge of his master; for example, where a slave damages his property, or commits theft. 4If you commit theft against me with the aid of my slave, this must be deducted from the peculium to the amount by which it is less than what I can recover on account of the stolen property. 5If the peculium of the slave is exhausted by the debts due to the master, the property nevertheless remains in the condition of peculium; for if the master should give a debt to the slave, or some other party should pay the master in the name of the slave, the peculium will be filled up, and there will be no need of a new grant by the master. 6Not only is that to be included in the peculium of any slaves of which they keep an account separate from the master, but also that which they have separate from the property of a slave to whose peculium they belong.

5 Ulpianus, On the Edict, Book XXIX. The father or master can be sued on account of a deposit only to the extent of the peculium, and where advantage has been taken of me through any wrongful conduct of theirs. 1Moreover, the father or master is liable only to the amount of the peculium, where any property has been delivered to a son under paternal control, or to a slave to be held on sufferance. 2Where a son under paternal control has tendered an oath, and it has been taken, an action on the peculium should be granted, as if a contract had been entered into; but it is different in the case of a slave. 3The peculium is so called on account of its being a trifling sum of money or a small amount of property. 4Tubero, however, defines peculium to be (as Celsus states in the Sixth Book of the Digest) what the slave has separate and apart from his master’s accounts with the permission of the latter, after deducting therefrom anything which may be due to his master.

6 Celsus, Digest, Book VI. Labeo says that the definition of peculium which Tubero gave does not include the peculium of sub-slaves, but this is not correct, for, by the very act that a master has granted peculium to his slave it must be understood that he has also granted it to the sub-slave.

7 Ulpianus, On the Edict, Book XXIX. Celsus himself approves of this opinion of Tubero. 1And he adds that a ward of an insane person cannot grant a peculium to his slave, but the peculium which has been previously granted (that is before the insanity occurred, or where it was created by the father of the ward), will not be taken away by these conditions. This opinion is correct, and agrees with what Marcellus added in a note on Julianus, namely: that it can happen that where a slave has two masters he may have a peculium with reference to one, but not with reference to the other; for instance, where one of the masters is insane or a ward, if, as he says, some hold that a slave cannot have a peculium unless it is granted by his master. I think, however, that in order for the slave to have a peculium, it is not necessary that it should be granted by his master, but that it cannot be taken away. The free administration of the peculium is a different matter, for this must be explicitly granted. 2It is evident, however, that it is not necessary for him to know all the details of the peculium, but to be generally informed as to them; and Pomponius inclines to this opinion. 3Pedius states in the Fifteenth Book that a minor, as well as a son and a slave, can have a peculium, since he says that in this instance, everything depends upon the grant of the master, and therefore if the slave or the son should become insane, he will retain the peculium. 4Property of all kinds, both chattels and land, may be included in the peculium; the party may also have in his peculium sub-slaves as well as the peculium of the latter, and, in addition to this, even claims due from their debtors. 5Moreover, if anything is owing to the slave in an action of theft or in any other action, it is counted as part of the peculium, and as Labeo says, an estate and a legacy likewise. 6Again, he will have in his peculium whatever his master owes him, for suppose he has expended money in the business of his master, and the latter is willing to remain his debtor, or his master has brought suit against one of his debtors. Wherefore, for example, if the owner has recovered double damages for eviction on account of a purchase by the slave, the amount must be turned into his peculium, unless the master should happen to have had the intention that this should not form part of the peculium of the slave. 7In like manner, if a fellow-slave owes him anything, it will belong to the peculium, provided he has a peculium, or shall acquire one afterwards.

8 Paulus, On Sabinus, Book IV. Any of his own property which the master desires to belong to the peculium, he does not at once render such, but only after he has delivered the same, or, if it was in the possession of the slave, has treated it as delivered; for property requires actual delivery. On the other hand, however, whenever he manifests unwillingness, the possessions of the slave cease to be peculium.

9 Ulpianus, On the Edict, Book XXIX. But if the master causes any damage to his slave, this will not be credited to the peculium, any more than if he stole it. 1It is clear that if a fellow-slave has committed any damage to property, or stolen it from the other, this will be considered to form part of the peculium, and Pomponius holds the same opinion in the Eleventh Book, for if the master either has recovered or can recover anything from a party who has stolen property from the peculium, this, Neratius says, in the Second Book of Opinions, must be credited to him. 2The peculium, however, is to be computed after what is due to the master has been deducted, for the master is presumed to have been more diligent, and to have proceeded against his slave. 3To this explanation Servius adds: “Where anything is due to those who are under his control,” for no one doubts that this also is owing to the master. 4Moreover, that also will be deducted which is due to those persons who are under the guardianship or care of the master or father, or whose business he is attending to, provided he is free from fraud; since if he destroys or diminishes the peculium by fraudulent acts, he will be liable; for if the master is always presumed to be more diligent and to bring suit, why may he not be said also to have proceeded against himself in this instance, in which he would be liable either on the ground of guardianship, or of business transacted, or in an equitable action? For, as Pedius very properly says, the amount of the peculium is diminished by what is owing to the master or father, because it is not probable that the master would consent to the slave having in his peculium what is owing to him. And, indeed, since, in other instances, we say that one who is attending to business for another or who is administering a guardianship, has recovered money from himself, why should he not in this case of peculium also have recovered what he ought to have done? Therefore this opinion may be defended, just as if he had paid the amount to himself, where anyone attempts to bring an action on the peculium. 5The creditor of the slave who has become the heir of his master, also deducts from the peculium whatever is owing to him, if he is sued, whether the slave has received his freedom or not. The same rule applies if the slave is bequeathed absolutely; for he can deduct what is due to him in this way, as if he had appeared and proceeded against himself, although he had, at no time, the ownership of the slave who was manumitted or bequeathed unconditionally; and this Julianus states in the Twelfth Book of the Digest. Julianus says in the same place, more positively, that it is certain if the slave has received his freedom on some condition, the heir can make the deduction, for he has become the master. To confirm his opinion, Julianus also states that if I become the heir of a party who, after the death of the slave or the son, could have been sued within a year on the peculium, there is no doubt that I can deduct what is owing to me. 6The master will make the deduction, whether the slave owes anything to him on a contract, or on accounts which remain unpaid. And also if he owes him because of some offence, as, for instance, on account of a theft which he has committed, the deduction will be made. It is a question, however, whether the amount of the theft itself, that is, only the loss which the master has sustained, shall be deducted, or in fact only so much as could be demanded if the slave of another had committed the offence; that is to say, with the penalties for theft. The former opinion is the more correct one, namely, that only the amount of the theft itself can be deducted. 7Where a slave has wounded himself, the master should not deduct this damage, any more than if he had killed himself or thrown himself over a precipice; for even slaves have a natural right to inflict injuries upon their bodies. But if the master has cared for the slave who has been wounded by himself, I think that he is indebted to his master for the expenses incurred; although if he had cared for him when he was ill, he would rather have been seeing after his own property. 8Again, if a master has bound himself on account of a slave, or, having done so has made payment, this will be deducted from the peculium; so, likewise, if money has been lent to him by the direction of his master; for Julianus states in the Twelfth Book of the Digest that this should be deducted. I think that this is true only where what was received did not come into the hands of the master or father, otherwise, he ought to charge this against himself. If, however, he becomes security for his slave, Julianus states in the Twelfth Book of the Digest, that this should be deducted; Marcellus, however, says that, in both instances, if the master has not yet lost anything, it is better that the money should be paid to the creditor, provided he gives security to refund it, if the master is sued on this account and pays anything; than that the deduction should be made in the first place, so that the creditor, in the meantime may profit by the interest on the money. Where, however, the master, having been sued, has judgment rendered against him, a deduction should be made in a subsequent action on the peculium, as the master or father has become liable on the judgment; for, if not having had judgment rendered against him, he should have paid the creditor anything on account of the slave, he could deduct this also.

10 Gaius, On the Provincial Edict, Book IX. If, however, the first action on the peculium is still in suspense, and judgment is rendered in the subsequent action, no account of the first action should be taken in any way in the decision of the second; because the position of the first creditor in an action on the peculium is the better one, for, not he who first joined issue, but he who first obtained a decision of the court, is held to be entitled to the preference.

11 Ulpianus, On the Edict, Book XXIX. Where a master who has been sued in a noxal action has paid the damages assessed, this ought to be deducted from the peculium; but where he surrendered the slave by way of reparation, nothing should be deducted. 1Moreover, if the master bound himself to pay something on account of the slave, this should be deducted; just as if the slave had promised to assume the obligation of a debtor to his master. The same rule applies if he has assumed an obligation to his master in consideration of his freedom, he, having become, to a certain extent, a debtor of his master, but only where suit is brought against him after he has been manumitted. 2Where, however, a slave has exacted payment from a debtor of his master, the question arises whether he has made himself a debtor to his master? Julianus, in the Twelfth Book of the Digest, says that the master will not be entitled to make a deduction, unless he ratified the collection of the money, and the same must also be said in the case of a son under paternal control. I think that the opinion of Julianus is correct, for we take into account natural debts in deductions from the peculium; for natural equity requires that a son or a slave should be released from liability because he seems to have exacted what was not due. 3It is a question, however, whether, what the master has once deducted, when he has been sued, he should again remove from the peculium, if suit is brought against him; or whether, where deduction has once been made, it should be held that he has been satisfied. Neratius and Nerva think, and Julianus also states in the Twelfth Book of the Digest, that if he really removed it from the peculium it should not be deducted, but if, in fact, he left the peculium in the same condition he should make a deduction. 4He further says that, if a slave has in his peculium a sub-slave worth five aurei, and he owes the master five, on account of which the master deducted the sub-slave, and the latter having afterwards died, the slave purchased another of the same value; he does not cease to be a debtor to the master, just as if the sub-slave had been a loss to the latter, unless he happened to die after he had taken him away from the slave and had paid himself. 5The same author very properly says that, if when the sub-slave was worth ten aurei, the master having been sued on the peculium paid five on account of the slave, because five were due to himself, and that afterwards the sub-slave died; the master can deduct ten aurei against another plaintiff on the peculium, because he had made the slave his debtor with reference also to the five aurei which he had paid on his account. This opinion is correct, unless he took the sub-slave away for the purpose of paying himself. 6What we have said, however, that is, that what is due to him who is sued on the peculium should be deducted, must be understood to mean if he could not recover this in any other way. 7Julianus then says that if a vendor who has sold a slave together with his peculium, is sued on the peculium, he should not deduct what is due to him, for he could have deducted this from the account of the peculium; and he can now bring a personal action to recover it as not having been due, since what is owing to the master is not to be included in the peculium. He can also, so he says, bring an action on sale. This is to be approved where there was so much in the peculium when it was sold that the master could satisfy his debt, but if afterwards there was an addition made to his claim, and the condition of the debt having been fulfilled, which debt the master has not satisfied, the contrary opinion must be held. 8He also asks, if anyone has obtained a slave on account of whom he had an action on the peculium, can he deduct what is owing to him since he is entitled to an action De peculio against the vendor? He says very properly that he can, for any other person, likewise, can choose whether he will bring suit against the vendor or the purchaser, and this party therefore selects deduction instead of suit. I do not see what the creditors have to complain of, since they themselves can sue the vendor if they think that perhaps there may be something in the peculium. 9But, not only what is owing to the party who is sued should be deducted, but also what may be owing to his partner, and Julianus holds this opinion in the Twelfth Book of the Digest; for, accordance with the same principle on which either may be sued for the entire amount, he has a right to deduct what is due to the other. This opinion is accepted:

12 Julianus, Digest, Book XII. For the reason that in this instance proceedings can be instituted against the one with reference to whom there is no peculium.

13 Ulpianus, On the Edict, Book XXIX. But that neither party can deduct what is due to the other is not true in the case of purchaser and vendor, of usufructuary and the mere owner, and in that of others who are not partners, as well as the sole proprietor and the bona fide purchaser; and this Julianus states in the Twelfth Book.

14 Julianus, Digest, Book XII. Moreover, where it is directed by a will that a slave shall immediately become free, suit on the peculium should be brought against all the heirs, and none of them can deduct more than is due to himself. 1Again, where the slave died during the lifetime of his master, and the master then died within the year, leaving several heirs, both the action on the peculium and the right of deduction are divided.

15 Ulpianus, On the Edict, Book XXIX. But if there are two bona fide possessors, it must still be said that neither can deduct more than is due to him; and the same rule applies where there are two usufructuaries, because they have no partnership between them. The same rule sometimes also applies to the case of partners, if they should happen to have separate peculia among themselves, so that one of them cannot be sued on account of the peculium of the other. Where, however, the peculium is in common, they may be sued for the entire amount, and what is owing to each one of them shall be deducted.

16 Julianus, Digest, Book XII. What then would be the case where the peculium of a common slave belongs to one of his masters alone? In the first place, if any one sells a half share in a slave, and grants him no peculium, and then, if any one gives money or property of any description to a slave owned in common, in such a way as to retain the ownership of said property, but to grant the slave the management of the same; Marcellus says in a note that this is an instance where one owner has taken away the peculium, or where an owner has actually granted one, but the grant is applicable to the obligations of his debtors.

17 Ulpianus, On the Edict, Book XXIX. If my ordinary slave has sub-slaves, can I deduct from the peculium of my ordinary slave what the sub-slaves owe me? And the first question is, whether their peculia are included in that of the ordinary slave. Proculus and Atilicinus think that as the sub-slaves belong to the peculium together with their own peculia, and indeed, what their owner (that is to say the ordinary slave) owes me can be deducted from their peculium, but that, however, which the sub-slaves themselves owe, can only be deducted from their own peculium. Moreover, if they are indebted, not to me but to the ordinary slave, the amount due will be deducted from their peculium as owing to a fellow-slave. That, however, which the ordinary slave owes to them will not be deducted from the peculium of the former, because their peculium is included in his. Servius was of this opinion, but I hold that their peculium will be increased, just as if a master is indebted to his slave.

18 Paulus, Questions, Book IV. The result of this is that if his own peculium is left to Stichus, and he brings suit under the will, he will not be compelled to surrender what his sub-slave owes to the testator, unless the sub-slave has a peculium.

19 Ulpianus, On the Edict, Book XXIX. Hence the question arises whether, if an action is brought on a peculium on account of the ordinary slave, proceedings can also be instituted with reference to the sub-slave, and I think this cannot be done. But where an action has been brought on the peculium of a sub-slave, one can also be brought on the peculium of the ordinary slave. 1There may be in my hands a peculium held by two different legal titles; as, for instance, if there is a dotal slave, he may have a peculium in which I am interested, and he may also have one in which my wife is interested, for what he has obtained through the business of the husband, or by his labor, belongs to the husband; and hence, if he has been appointed an heir, or a legacy has been bequeathed to him with reference to the husband, Pomponius says that he is not obliged to give it up. Therefore, if an action is brought against me on a contract in which I am interested, can I deduct everything that is owing to me, whether connected with my own business or with that of my wife? Or do we separate the cases of the husband and wife so far as the two peculia are concerned, to enable the origin of the debt for which suit is brought to be considered; so that if, in fact, proceedings are instituted with reference to the peculium in which the wife is concerned, I can deduct what is due from that contract, if on a contract in which I am interested I can deduct what belongs to me? This question is more clearly treated in the case of an usufructuary, whether suit on the peculium can be brought against him only on the contract which concerns him, or whether it can be brought on any contract? Marcellus states that the usufructuary is also liable, and on any contract, for he who makes the contract considers the entire peculium of the slave to be his own property. He says that it is evident that it must be admitted, in any event, that when the party who is interested in the matter has been first sued, he who has not obtained anything may be sued for the remainder. This opinion is the more reasonable one, and is approved by Papinianus. It must also be held in the case of two bona fide purchasers. But in the case of the husband, it is better to say simply that he is liable to the action on the peculium. If, however, the husband had paid something on account of a slave of this kind, can he deduct it as against the wife bringing an action on account of her dowry? And he says that if what was paid to the creditor relates to the peculium of each kind, it should be deducted pro rata from the peculium of both, and from this it may be understood that if the contract had reference to either peculium, there will be, on the one hand, a deduction made for the wife alone, and on the other, none will be made, if the contract had reference to that peculium which remained with the husband. 2Sometimes an action on the peculium is granted to the usufructuary himself against the master; as, for instance, if the slave has a peculium with reference to the former but with reference to the latter he has none, or less than what is due to the usufructuary. Conversely speaking, the same thing takes place, although in the case of two owners an action on partnership or one for the partition of common property will be sufficient;

20 Paulus, On the Edict, Book XXX. For partners cannot bring the action on peculium against one another.

21 Ulpianus, On the Edict, Book XXIX. The Prætor has also, for the best of reasons, charged to the peculium whatever the master had done with malicious intent through which the peculium is diminished. We must, however, understand malicious intent to signify where he has deprived him of the peculium, and also where he has permitted him to involve the affairs of the peculium to the prejudice of creditors; and Mela writes that this is an act performed with malicious intent. Moreover, if when anyone entertains the idea that some other party is going to bring an action against him, and transfer the peculium to someone else, he is not free from fraud. If, however, he pays the debt to a third party, I have no doubt that he is not liable, as he pays a creditor, and it is lawful for a creditor to be diligent in recovering what belongs to him. 1If the act is committed through the fraud of a guardian, the curator of an insane person, or an agent, it should be considered whether the ward, or the insane person, or the principal should be sued on the peculium? I think that if the guardian is solvent, the ward should make good what has been lost through his fraud, and especially is this the case if anything has come into his hands; and so Pomponius states in the Eighth Book of the Epistles. The same must be said in the case of a curator or an agent. 2A purchaser will not be liable for the fraud of the vendor, nor will the heir or other successor, except to the extent that property has come into his hands by reason of it. Whether the fraud has been committed before or after issue has been joined, it comes within the jurisdiction of the court. 3If the master or father refuses to answer in the action on peculium, he should not be heard, but he must be compelled to join issue as in the case of any other personal action.

22 Pomponius, On Sabinus, Book VII. If the master has given security against threatened injury with reference to a house which is part of the peculium, this should be taken into account, and therefore security should be furnished by the party who is bringing suit on the peculium.

23 The Same, On Sabinus, Book IX. The party giving security against threatened injury with reference to a house belonging to the peculium, must furnish it for the entire amount, just as a noxal action on account of a sub-slave must be defended for the full amount, because the plaintiff, if the defence is not properly made, removes the property, or holds it in possession as a pledge.

24 Ulpianus, On Sabinus, Book XXVI. The curator of an insane person can both give and refuse the management of the peculium to the slave, as well as to the son of the said insane person.

25 Pomponius, On Sabinus, Book XXIII. Any clothing is included in the peculium which the master has given for the slave to make use of permanently, and has delivered it to him with the understanding that no one else shall use it, and that it will be kept by him in compliance with these conditions. Clothing, however, which the master had given to the slave for temporary use and only to be employed for certain purposes at certain times, for example, when he is in attendance upon him, or waits upon him at the table, does not become part of the peculium.

26 Paulus, On the Edict, Book XXX. If the master has once, in a case of this kind, that is to say, where he has been guilty of fraud, made good the amount of the peculium after he has been sued; he will not be compelled to pay anything to others on the same ground. And, moreover, if the slave owes him as much as that by which he has fraudulently diminished the amount, judgment should not be rendered against him. It follows from what has been said that also where the slave has been manumitted or alienated, he will be liable also on the ground of fraud, within the year.

27 Gaius, On the Provincial Edict, Book IX. The action on the peculium is granted on account of both female slaves, and daughters under paternal control, and especially where the woman is a tailoress or a weaver, or conducts any ordinary trade, this action can be brought against her. Julianus says that the action on deposit, and also that on loan for use, should be granted with reference to them, and that the contributory action should be granted if they have transacted business with merchandise belonging to the peculium to the knowledge of the father or the master. This is still more certain where property has been employed for the benefit of the father or master, and the contract was made under his direction. 1It is established that the heir of the master should also deduct such property belonging to the estate as the slave, on whose account suit on the peculium is brought against him, had either removed, consumed, or damaged before the estate was entered upon. 2Where a slave has been alienated, although the Prætor promises an action on the peculium within a year, against the party who alienated him, still, an action is granted against the new master; and it makes no difference whether he has acquired another peculium with him, or whether he has granted to the same slave what he bought or received as a gift along with him at the time. 3It has also been decided (and Julianus approves of it) that creditors are, in any event, to be allowed to bring suit either for shares against individuals, or against any one party for the entire amount. 4Julianus, however, does not think that the party who sold the slave should be permitted to bring an action on the peculium against the purchaser with reference to what he lent to the slave before the sale. 5Moreover, if I make a loan to the slave of another, and buy him, and then sell him, he also does not think that an action should be granted me against the purchaser. 6He holds, however, that an action should be granted to me against the vendor, but only within a year to be computed from the day of the purchase, for the amount which I loaned him while he still belonged to another, that being deducted from what the slave has, as peculium, with reference to me. 7But as Julianus does not think that when he has been alienated, an action should be granted to me against the purchaser, with reference to what I myself have lent to my own slave; so also he denies that I should be allowed to institute proceedings against the purchaser on account of what my own slave has lent to another of my own slaves, if he to whom the loan was made has been alienated. 8Where anyone has contracted with a slave belonging to two or more persons, he should be allowed to bring suit for the entire amount against anyone of the owners he wishes; for it is unjust that he who contracted with one should be obliged to divide up his action against several adversaries, and an account should be taken not only of the peculium which the said slave has with reference to the party against whom proceedings are instituted, but also of that in which the other owner or owners are interested. No loss, however, will result from this to the party against whom judgment was rendered, as he can himself recover from his partner or partners by the action of partnership, or by that for the division of common property, whatever he has paid over and above his share. Julianus says that this will apply where the other owner was entitled to any peculium, for, in this instance, each one, by paying, will be held to have released his partner from debt; but where there is no peculium in which the other is interested, the contrary rule applies, because he is not understood to release him from debt in any way.

28 Julianus, Digest, Book XI. Wherefore, if no one has become the heir or possessor of the estate of the partner, he against whom the action was brought should have judgment rendered against him for the amount of whatever peculium he may be entitled to in addition to as much as he can obtain out of the estate.

29 Gaius, On the Provincial Edict, Book IX. Where anyone has, by will, ordered that a slave shall be free, and has left as heirs persons who have contracted with said slave, the coheirs may proceed against one another by the action De peculio, for each one is liable to anyone else who brings suit for the amount of the peculium to which he is entitled. 1Even though a master prohibits a contract to be made with a slave, an action on the peculium will lie against him.

30 Ulpianus, On the Edict, Book XXIX. The question arises whether the action on the peculium may be brought, even if there is nothing in the peculium when proceedings are instituted, provided only there is something in it at the time that judgment was rendered? Proculus and Pegasus say that it will, nevertheless, lie, for the claim is properly set forth, even though there may be nothing in the peculium. It has been established that the same rule applies with reference to an action for production, and an action in rem. This opinion is also approved by us. 1Where the action is brought against one who is heir to a share of the estate of his master or father, judgment must be rendered against him only to the amount of the peculium to which the heir who is sued is entitled. The same rule applies where property has been employed for his benefit, proportionately, unless he has used something for the benefit of the heir himself, nor can the heir be sued like one of the joint-owners, but only for his share. 2But if the slave himself is appointed heir to a share, the action may also be brought against him, in like manner. 3Where, however, the son is appointed, although only for a share, he will, nevertheless, be liable to an action for the entire amount, but if he wishes to obtain the proportionate obligation of his co-heir, he should be heard; for what if the property has been employed for the benefit of the father? Why should not the son recover from his co-heir what is included in the estate of his father? The rule is the same where the peculium, is very valuable. 4He who has once brought an action on the peculium, can again bring suit for the remainder of the debt if the peculium has been increased. 5Where a creditor has been beaten by a vendor by means of an exception grounded on the lapse of a year, relief should be granted him against the purchaser; but if this has been effected by any other exception, he should only be relieved to the extent that, where the amount which he could have obtained from the vendor has been deducted, he may recover the remainder from the purchaser. 6Where fraud is alleged, account must be taken of the time, for the Prætor might not permit fraud to be pleaded in bar after the term for bringing an action on fraud has elapsed, since this action is not granted after the expiration of the time established by law. 7In the case of the heir, however, the clause relating to fraud ought to be drawn up with reference to what has come into his hands, and not for more than this.

31 Paulus, On the Edict, Book XXX. Where, however, the heir himself has committed fraud he must make good the entire amount.

32 Ulpianus, Disputations, Book II. Where one of two or more heirs of a party who could have been sued within a year, has an action brought against him, and the slave has been manumitted, or this has been directed to be done, or he has been sold or died, all the heirs will be released from liability; even though the party who is sued may not have judgment rendered against him for a larger amount than that of the peculium which he has in his hands, and this Julianus also stated. The same rule applies where the property was employed for the benefit of any of the heirs. Where, however, there are several usufructuaries or bona fide possessors, and one is sued, he releases the others, although he should not have judgment rendered against him for a greater amount of the peculium than that which he has in his possession. But although this takes place in accordance with the strict rule of law, still, equity demands that an action should be granted against those who are released by an accident of the law, so that recovery rather than the bringing of the suit should discharge them; for he who makes the contract with the slave has in his mind, as his property, the entire amount of his peculium, wherever it may be. 1But although in this action the former one is restored, still, an account should be taken of both the increase and the decrease; and, therefore, whether at present there is nothing in the peculium or something has accrued to it, the present state of the peculium must be considered. Hence, so far as both the vendor and the purchaser are concerned, this seems to us to be the better opinion, namely: that we can recover from the purchaser what has accrued to the peculium and the claim of the purchaser is not to be regarded as retroactive, to the time when the vendor was sued, and as included in the same legal proceeding. 2If the vendor of the slave sells him along with the peculium, and delivers the peculium, suit cannot be brought against him on the same, even within a year; for, as Neratius has stated, this price of the slave is not peculium.

33 Javolenus, On Cassius, Book XII. But where anyone has sold a slave with the understanding that he was to receive a price for the peculium, the peculium is held to be in the hands of the party to whom the price of the same was paid.

34 Pomponius, Various Passages, Book XII. And not in the hands of him who holds the property constituting the peculium.

35 Javolenus, On Cassius, Book XII. But where the heir was directed to deliver the peculium on receipt of a certain sum, the peculium is not held to be in the hands of the heir.

36 Ulpianus, Disputations, Book II. It is a question whether, in contracts entered into in good faith, the father or master should be liable merely for the peculium, or for the entire amount; just as had been discussed in the action on dowry, where a dowry is given to a son, whether the father can only be sued for the amount of the peculium? I, however, think that the action can be brought not only for the amount of the peculium, but also to the extent that the woman has been deceived and defrauded by the malicious contrivance of the father; for, if he holds the property and is not ready to surrender it, it is only just that he should have judgment rendered against him for the amount that it is worth; for Pomponius said that what is expressly stated in a case of a slave to whom property has been given in pledge must also be understood to apply to other bona fide actions. For if property has been given in pledge to a slave, the action can be brought not only for the peculium, and for what has been employed in the business of the master, but it has also this additional sentence: “To the extent that the plaintiff has been deceived and defrauded by the malicious contrivance of the master.” The master is held to have acted fraudulently if he is unwilling to make restitution when he has the power to do so.

37 Julianus, Digest, Book XII. If a creditor of your son appoints you his heir, and you sell the estate, you will be liable for the peculium under this clause of the stipulation, namely: “Whatever sum of money derived from the estate that shall come into your hands.” 1If you permit your slave to purchase a sub-slave for eight aurei, and he purchases him for ten, and writes to you that he has bought him for eight, and you allow him to pay eight out of your money, and he pays ten, you can recover only two aurei on this ground, and these will be made good to the vendor only to the amount of the peculium of the slave. 2I sold to Titius a slave which I held in common either with him or with Sempronius. Before an action De peculio was brought against me because of said slave, the question arose whether, in a suit on the peculium against Titius or against Sempronius, an account should be taken of the peculium which was in my hands? I stated that, if the action was brought against Sempronius, under no circumstances, should an account be taken of the peculium in my hands, because he would have no right of action against me by which he could recover what he had paid. Moreover, if an action should be brought against Titius more than a year after I have made the sale, in like manner, the peculium in my hands should not be considered, for an action De peculio cannot now be brought against me. If, however, the action is brought within the year, then an account ought also to be taken of this peculium, for it is established that where the slave has been alienated, the creditor should be permitted to proceed against both the vendor and the purchaser. 3Where an action on the peculium has been brought against a party who has an usufruct in the slave, and the creditor has recovered less than the amount due to him, it is not unjust that he should obtain what he is entitled to out of the entire peculium, whether this is in the hands of the usufructuary or of the owner. It makes no difference whether the slave has hired his own services from the usufructuary, or has borrowed money from him. Therefore, an action should be granted him against the owner of the property, and that should be deducted which the slave has, as peculium, with reference to the usufructuary.

38 Africanus, Questions, Book VIII. I deposited ten aurei with a son under paternal control, and I bring an action of deposit on the peculium. Although the son owes the father nothing, and holds these ten aurei he thought, nevertheless, that judgment should no more be rendered against the father than if there was no peculium besides this, for as this money remains mine, it is not included in the peculium. He also says that if any other person whosoever brings suit for the peculium, there should not be the least doubt that it must not be computed. Therefore I ought to bring an action for production, and when the property is produced, bring one to recover it. 1Where a girl who is about to marry a son under paternal control promises him a certain sum of money as dowry, and a divorce having been obtained, she brings an action for the whole amount against the father; should she be released from the entire promise, or ought what the son owes the father be deducted? He answered that she should be released from the entire promise, since if an action was brought against her on the promise, she could certainly protect herself by the exception based on malicious intent. 2Stichus has in his peculium Pamphilus, who is worth ten aurei, and the said Pamphilus owes the master five aurei. If an action on the peculium is brought on account of Stichus, it was held that the value of Pamphilus should be estimated, and, indeed, the entire value, without deducting what Pamphilus owes to the master, for no one can be understood to be himself in his own peculium; and therefore in this instance the master will suffer a loss, just as he would if he had made a loan to any other of his slaves who had no peculium. He says that it will appear more evident that this is true, if it is stated that the peculium was left to Stichus, who, if he brings suit under the will, will certainly not be compelled to suffer a deduction for the amount that his sub-slave owes, unless this is taken out of his own peculium; otherwise the result will be that if the sub-slave owes the master just as much, and he himself will be understood to have nothing in the peculium, which is certainly absurd. 3I lent money to a slave whom I had sold to you. The question arose whether the action De peculio should be granted to me against you, in order that what remained in my hands out of the peculium should be deducted. This, in fact, is not in the slightest degree true, nor will it make any difference whether I institute proceedings within a year from the time that I made the sale, or afterwards; for, indeed, an action against me will not be granted to others who contracted with him at that time. Again, on the other hand, where those who had contracted previously with this slave bring an action against me, I cannot deduct what he began to owe me afterwards. From this it is apparent that the liability of the peculium which remained in my hands is not, in any way, affected by contracts made at a later date.

39 Florentinus, Institutes, Book XI. The peculium also consists of what anyone has saved by his own economy, or what he has, by the performance of any service, merited as a gift from someone, where the donor intended that the slave should have this as his own property.

40 Marcianus, Rules, Book V. The peculium is created, grows, decreases, and dies, and therefore Papirius Fronto very properly says that the peculium resembles a man. 1The question arose how a peculium is created. The ancients made a distinction in this respect, for if the slave has acquired what the master was not bound to furnish, this is peculium, but if he has acquired tunics or anything of this kind with which the master is bound to provide him, it is not peculium. Therefore peculium is created in this way, it grows when it is increased, it decreases when sub-slaves cease to exist or property is destroyed, it dies when it is taken away.

41 Ulpianus, On Sabinus, Book XLIII. A slave cannot owe anything, nor can anything be due to a slave; but when we make a misuse of this word we are rather indicating a fact, than referring the obligation to the Civil Law. Hence the master can rightfully demand from strangers what is owing to a slave, and with respect to what the slave himself owes, an action for this cause is granted against the master, on the peculium; and also to the extent that property has been employed in the affairs of the master.

42 The Same, On the Edict, Book XII. Some authorities very properly hold that an action on the peculium should be granted against an arrogator; although Sabinus and Cassius think that an action on the peculium should not be granted on account of business previously transacted.

43 Paulus, On the Edict, Book XXX. If, after I have brought an action against you on the peculium, and, before the case has been decided, you have sold a slave; Labeo says that judgment ought to be rendered against you with reference also to the peculium which he has acquired while in the hands of a purchaser, and that relief should not be granted you; for this happened through your own fault since you sold the slave.

44 Ulpianus, On the Edict, Book LXIII. Where anyone has made a contract with a son under paternal control, he has two debtors, the son for the entire amount, and the father only to the amount of the peculium.

45 Paulus, On the Edict, Book LXI. And, therefore, if the father has taken the peculium away from the son, the creditors can, nevertheless, bring suit against the son.

46 The Same, On the Edict, Book LX. He who grants the management of the peculium is understood to permit generally what he would be willing to permit specifically.

47 The Same, On Plautius, Book IV. Whenever a notice is placed in a shop as follows: “I forbid any business to be transacted with my slave Januarius,” it is established that the master has only obtained a release from liability under the Institorian Action, and not under that on the peculium. 1Sabinus gave the opinion that where a slave had become a surety, an action De peculio should not be granted against the master, unless the security had been furnished for the business of the master, or concerning property belonging to the peculium. 2If the action De peculio has once been brought, although when judgment is rendered there is found to be less in the peculium than he owes, it has, nevertheless, been established that there is no ground for giving security with reference to a future increase in the peculium, as this takes place in the action on partnership, because the partner owes the entire amount. 3Where a creditor of the slave has recovered a portion of the debt from the purchaser, Proculus says that an equitable action can be brought against the vendor for the remainder, but the plaintiff must not be allowed, in the beginning, to divide the action, so as to proceed at the same time against the purchaser and the vendor; since it is enough that this alone should be granted to him; so that when, having selected one defendant, he recovers less than the debt, an action will be granted him against the other, the former action having been rescinded. This is the modern practice. 4Not only any creditor whosoever can institute proceedings against the vendor on account of business previously transacted, but the purchaser himself can also do so, (and this opinion was held by Julianus), although he himself can make a deduction against another plaintiff, provided he makes allowance for what he has in his hands. 5Where a slave is sold without his peculium, the result is that the vendor can make use of the deduction; and if, after the sale, the slave becomes indebted to the vendor, this does not diminish the peculium, because he does not owe his master. 6What we have stated with reference to purchaser and vendor is the same as if ownership was changed in any other way, as by a legacy or by the gift of a dowry; for the peculium of the slave, wherever it may be, is understood to resemble the property of a freeman.

48 The Same, On Plautius, Book XVII. The free management of the peculium does not remain in the case of a fugitive or of a slave who has been stolen, nor in case of one who is not known to be either alive or dead. 1Anyone, to whom the management of the peculium has been given, can substitute his own debtor.

49 Pomponius, On Quintus Mucius, Book IV. Not only is that peculium which an owner has granted to his slave, but also whatever has been acquired without his knowledge, but which, if he had known of it, he would have permitted to be in the peculium. 1If my slave, without my knowledge, transacts my business, he will be considered to be my debtor to the same extent as he would have been liable, if, being a freeman, he had attended to it. 2In order that a slave may be considered a debtor to the master or the master to the slave, attention must be paid to the regulations of the Civil Law; and therefore, if the master has stated in his account that he is indebted to his slave, when, in fact, neither had he borrowed money, nor had any other cause for debt previously existed, the mere statement of account does not render him a debtor.

50 Papinianus, Questions, Book IX. At the time when there is nothing in the peculium, the father conceals himself, I, being about to bring an action De peculio against him, cannot be placed in possession of his property for the purpose of preserving it, because he who would be entitled to be discharged from liability if he had joined issue, is not concealing himself for the purpose of committing fraud. Nor does it make any difference if it should happen that a judgment against him may result; for, also, if a debt is due at a certain time, or under some condition, the party is not held to conceal himself on account of fraud, although he may be unjustly condemned by the judge. Julianus, however, thinks that a surety given at the time when there is nothing in the peculium is liable, since the surety can be accepted for a future right of action if he is accepted in this way. 1If a creditor appoints as heir a father who is liable on the peculium, since the time of death is regarded with a view to the operation of Lex Falcidia, the peculium in existence at that time will be taken into consideration. 2Even after the master has been sued on the peculium, a surety can be taken in behalf of the slave; and therefore, for the same reason as that for which if a slave should pay the money after issue has been joined in an action, he cannot recover it any more than if issue had not been joined, a surety will be held to have been lawfully accepted, because the natural obligation, which even a slave is held to incur, is not made an issue in the controversy. 3A slave belonging to another, while he was serving me in good faith, paid me money borrowed from Titius, in order that I might manumit him, and I did so; the creditor asked whom he could sue on the peculium. I said that, although in other instances the creditor would have the choice, yet in the one stated suit should be brought against the master, and he could bring an action against me for production of the money which had been obtained by him, and had not been alienated on account of the transaction which was said to have taken place with reference to the civil condition of the slave; nor should the distinction of those be admitted who think that if I do not manumit the slave, the money should belong to his master, but if the manumission takes place, the money is deemed to have been acquired by me, since it is given to me, rather on account of my business, than as being derived from my property.

51 Scævola, Questions, Book II. With reference to what is due to a slave from strangers, the master should, by no means, have judgment rendered against him for the amount of the debt, where anyone brings suit on the peculium; since both the expense incurred in bringing the action and the result of the execution may be uncertain, and the delay of time granted to those who have been held judicially liable, or that consumed in the sale of the property, should be considered, if this is the better thing to do; therefore, if the party is ready to assign his rights of action he will be discharged. What is said where an action is brought against one of several partners, namely: that the entire peculium must be computed, because the proceeding is against the partner, will have the same result if the party is ready to assign his rights of action; and, in the case of all those whom we say are liable on this account since they have a right of action, the substitution takes the place of legal payment.

52 Paulus, Questions, Book IV. A question is asked with reference to an actual occurrence, namely: where a party who was administering a guardianship as a freeman was pronounced to be a slave, whether, if his master was sued by the ward whose claim has been stated by rescript to be preferable to those of other creditors of the slave, what is owing to the master should be deducted from the peculium. And if you think it can be deducted, whether it makes any difference if he became indebted to the master while he was still enjoying his freedom, or afterwards; and will the action on the peculium lie in favor of a boy who has not reached puberty? I answered that no privileged claim could take preference over that of the father or master, if he was sued on the peculium on account of the son or the slave. It is evident that in the case of other creditors account should be taken of privileged claims, for what if a son has received a dowry or has managed a guardianship? This has been very properly stated in a rescript, with reference to a slave who was acting as guardian, and, for the reason that the position of the more diligent creditor is usually better than that of the others, so far as they are concerned, the action will be barred. Clearly if he has loaned money out of property belonging to the ward or has deposited money in a chest, an action for the recovery of the same will be granted him, as well as an equitable action against the debtor; that is to say, if they have used up the money, for he had no power to alienate it. This also should be held in the case of any guardian. Nor do I think it makes any difference whether, when he became indebted to the master, he was in possession of his freedom, or whether this happened subsequently; for if I make a loan to the slave of Titius, and then become his master, I can deduct what I have previously lent him, if suit is brought against me on the peculium. What course must then be pursued? Since proceedings cannot be instituted on the peculium, an equitable action founded on that on guardianship, should be granted against the master, so that what this party had as his own property may be understood to be his peculium. 1If a dowry is given to a son under paternal control, or he has administered a guardianship, an account should be taken of the privileged claims in an action on the peculium, and, in the meantime, continuance having been granted in the action of other creditors, or security furnished, if those who have no privilege institute proceedings first, what they have received shall be restored, if suit on the privileged claim is afterwards brought against the father.

53 The Same, Questions, Book XI. If Stichus was not deprived of the peculium when he was manumitted, it is held to have been granted; he cannot, however, sue debtors unless the rights of action have been assigned to him.

54 Scævola, Opinions, Book I. A testator bequeathed to one of his heirs, in addition to his share, certain lands already equipped, together with the slaves; these slaves were the debtors of the master. The question arose whether an action on the peculium would lie against him in favor of the other heir? The answer was that it would not.

55 Neratius, Opinions, Book I. He whom I was suing on the peculium was forcibly carried away by you; what was the peculium at the time that you removed him by force must be considered.

56 Paulus, On Neratius, Book II. What my slave has promised to pay to me for one of my debtors should be deducted from the peculium, and is, nevertheless, due from the debtor. But let us see whether the obligation of him for whom the promise was made should not be held to become a part of the peculium. Paulus says that if, when anyone brings an action on the peculium the master wishes to deduct this, he undoubtedly makes the claim part of the peculium.

57 Tryphoninus, Disputations, Book VIII. Where a son or a slave, with reference to whom an action on the peculium alone has been brought, dies before the case is terminated, that peculium will be taken into consideration which any of the parties possessed when he died. 1Julianus says that where anyone by his will directs that his slave shall be freed, and bequeaths to him his peculium, he is understood to bequeath it at the time when he becomes free; and therefore all increase of the peculium, of whatever description, acquired before the estate was entered on, will belong to the manumitted slave. 2But where anyone bequeaths the peculium of the slave to a stranger, the question is as to the supposed intention of the testator; and the more probable opinion is, that whatever was in the peculium at the time of his death is bequeathed, with the understanding that any accessions which may be made to the property of the peculium when the estate is entered upon, as, for instance, the offspring of female slaves and the increase of flocks, are owing, but that whatever was given to the slave or he acquires by his own labor, does not belong to the legatee.

58 Scævola, Digest, Book V. A party left to one of his heirs certain lands as they were equipped, together with slaves and other property, and whatever was there. These slaves were indebted to the master with reference to their monthly accounts, as well as for other reasons. The question arose whether the action on the peculium would lie in favor of the other heirs against him for the money owed by them? The answer was that it would not lie.