Quando de peculio actio annalis est
(When the Action on the Peculium is Limited to a Year.)
1 Ulpianus libro vicensimo nono ad edictum. Praetor ait: ‘Post mortem eius qui in alterius potestate fuerit, posteave quam is emancipatus manumissus alienatusve fuerit, dumtaxat de peculio et si quid dolo malo eius in cuius potestate est factum erit, quo minus peculii esset, in anno, quo primum de ea re experiundi potestas erit, iudicium dabo’. 1Quamdiu servus vel filius in potestate est, de peculio actio perpetua est: post mortem autem eius vel postquam emancipatus manumissus alienatusve fuerit, temporaria esse incipit, id est annalis. 2Annus autem utilis computabitur: et ideo et si condicionalis sit obligatio, Iulianus scripsit ex eo computandum annum, non ex quo emancipatus est, sed ex quo peti potuit condicione existente. 3Merito autem temporariam in hoc casu fecit praetor actionem: nam cum morte vel alienatione extinguitur peculium, sufficiebat usque ad annum produci obligationem. 4Alienatio autem et manumissio ad servos pertinet, non ad filios, mors autem tam ad servos quam ad filios refertur, emancipatio vero ad solum filium. sed et si alio modo sine emancipatione desierit esse in potestate, annalis erit actio. sed et si morte patris vel deportatione sui iuris fuerit effectus filius, de peculio intra annum heres patris vel fiscus tenebuntur. 5In alienatione accipitur utique venditor, qui actione de peculio intra annum tenetur: 6sed et si donavit servum vel permutavit vel in dotem dedit, in eadem causa est: 7item heres eius, qui servum legavit non cum peculio. nam si cum peculio vel legavit vel liberum esse iussit, quaestionis fuit: et mihi verius videtur non dandam neque in manumissum neque in eum, cui legatum sit peculium, de peculio actionem. an ergo teneatur heres? et ait Caecilius teneri, quia peculium penes eum sit, qui tradendo id legatario se liberavit. Pegasus autem caveri heredi debere ait ab eo, cui peculium legatum sit, quia ad eum veniunt creditores: ergo si tradiderit sine cautione, erit conveniendus. 8Si praecepto servo et peculio rogatus sit heres restituere hereditatem, si de peculio conveniatur, Trebelliani exceptione non utetur, ut Marcellus tractans admittit: is autem cui restituta est hereditas non tenetur, ut Scaevola ait, cum peculium non habeat nec dolo fecerit quo minus haberet. 9Usu fructu quoque exstincto intra annum actionem dandam in usufructuarium Pomponius libro sexagensimo primo scripsit. 10Quaesitum est apud Labeonem, si, cum filius viveret, tu credens eum mortuum annali actione egeris et, quia annus praeterierat, exceptione sis repulsus, an rursus experiri tibi comperto errore permittendum est. et ait permitti debere dumtaxat de peculio, non etiam de in rem verso: nam priore iudicio de in rem verso recte actum est, quia annua exceptio ad peculium, non ad in rem versum pertinet.
1 Ulpianus, On the Edict, Book XXIX. The Prætor says: “After the death of him who was under the control of another, or after he has been emancipated, manumitted, or alienated, I will grant an action only to the amount of the peculium, within a year from the time when proceedings could first have been instituted with reference to the matter, where anything has been done through the malicious intent of him under whose control the party was, on account of which the value of the peculium is diminished.” 1So long as the slave or the son is under control, the action on the peculium is not limited by time, but after his death, or after he has been emancipated, manumitted, or alienated, it becomes limited by time, that is to say to a year. 2The year will, however, be computed to the extent that it is available, and therefore Julianus says that if the obligation is conditional, the year must be computed, not from the time when the party was emancipated, but from that at which, if the condition was complied with, suit could be brought. 3The Prætor, with good reason, made the action temporary in this instance, for, as the peculium is extinguished by death or alienation, it is sufficient for the obligation to be extended for a year. 4Alienation and manumission, however, relate to slaves, and not to sons, but death refers to slaves as well as sons, emancipation, however, to sons alone. Moreover, if he ceases to be under control in some other way, without emancipation, the action will only lie for the term of a year. Also if the son becomes his own master through the death or deportation of his father, the heir of his father, or the Treasury, will be liable to the action on the peculium within a year. 5In case of alienation, a vendor is undoubtedly included, who is liable to an action on the peculium within a year. 6But also, if he has given away the slave, or exchanged him, or bestowed him by way of dowry, he is in the same position. 7So, likewise, is the heir of one who has bequeathed the slave, but not with his peculium; for if he had bequeathed him with his peculium, or had directed him to be free, a question might arise; and it seems to me to be the better opinion that the action De peculio should not be granted against a manumitted slave, nor against him to whom the peculium was bequeathed. Will the heir then be liable? Cæcilius says that he will be liable, because the peculium is in the hands of him who released himself from obligation by delivering it to the legatee. Pegasus, however, says that security should be furnished to the heir by him to whom the peculium has been bequeathed, because the creditors apply to him, and therefore if he delivers it without security, suit can be brought against him. 8Where the heir is asked to deliver up the estate the slave and the peculium being reserved, and an action on the peculium is brought against him, he cannot make use of the Trebellian exception; as Marcellus, when discussing this point, admits. He, however, to whom the estate is delivered, is not liable, as Scævola says, since he has not the peculium, nor has committed any fraudulent act to avoid having it. 9Pomponius also, in the Sixty-first Book, says that if an usufruct is extinguished, the action should be granted against the usufructuary within a year. 10The question was raised by Labeo whether if you, during the lifetime of the son whom you believed to be dead, brought an action, and, because the year had elapsed, were defeated by an exception; you should be permitted to again institute proceedings after the mistake had been discovered? He says you should be permitted to do so only for the amount of the peculium, but not for what had been employed for the benefit of the property of the other party; for in the former case the action with reference to any advantage which had been obtained by its employment was properly brought, because the exception based on the lapse of a year relates to the peculium, and not to what had been used for the benefit of the property.
2 Paulus libro trigensimo ad edictum. Cum post mortem filii familias annua adversus patrem actio est, quemadmodum adversus eum esset perpetua vivo filio, ideo si ex causa redhibitionis erat de peculio actio, sex mensum erit post mortem filii: idemque dicendum in omnibus temporalibus actionibus. 1Si servus cui creditum est apud hostes sit, de peculio actio in dominum non anno finienda est, quamdiu postliminio reverti potest.
2 Paulus, On the Edict, Book XXX. Since, after the death of a son under paternal control, an action, limited to a year, will lie against the father, just as a perpetual action will lie during the lifetime of the son; therefore, if an action De peculio, in a case involving a rescission of contract, is brought, it must be within six months after the death of the son; and the same should be said with reference to all other actions which are of a temporary character. 1Where a slave, to whom money has been loaned, is in the hands of the enemy, the action on the peculium against the master is not limited to a year, so long as the slave can return under the law of postliminium.
3 Pomponius libro quarto ad Quintum Mucium. Definitione peculii interdum utendum est etiam, si servus in rerum natura esse desiit et actionem praetor de peculio intra annum dat: nam et tunc et accessionem et decessionem quasi peculii recipiendam (quamquam iam desiit morte servi vel manumissione esse peculium), ut possit ei accedere ut peculio fructibus vel pecorum fetu ancillarumque partubus et decedere, veluti si mortuum sit animal vel alio quolibet modo perierit.
3 Pomponius, On Quintus Mucius, Book IV. The term peculium must sometimes be employed even if the slave has ceased to exist in the course of nature, and the Prætor grants an action on the peculium within a year; for, in this instance also, both increase and diminution are to be taken into consideration, as belonging to the peculium, although it has ceased to exist, as such, through the death or manumission of the slave; so that there may be an accession to it as to a peculium, by crops, or by the yield of flocks, or by the offspring of female slaves, and a diminution, as, for instance, where an animal has died, or has been lost in any other way.