De in rem verso
(Concerning the action based on the advantage derived by a father or a master with reference to his property.)
1 Ulpianus libro vicensimo nono ad edictum. Si hi qui in potestate aliena sunt nihil in peculio habent, vel habeant, non in solidum tamen, tenentur qui eos habent in potestate, si in rem eorum quod acceptum est conversum sit, quasi cum ipsis potius contractum videatur. 1Nec videtur frustra de in rem verso actio promissa, quasi sufficeret de peculio: rectissime enim Labeo dicit fieri posse, ut et in rem versum sit et cesset de peculio actio. quid enim si dominus peculium ademit sine dolo malo? quid si morte servi exstinctum est peculium et annus utilis praeteriit? de in rem verso namque actio perpetua est et locum habet, sive ademit sine dolo malo sive actio de peculio anno finita est. 2Item si plures agant de peculio, proficere hoc ei, cuius pecunia in rem versa est, debet, ut ipse uberiorem actionem habeat. certe si praeventum sit ab aliquo et actum de peculio, de in rem verso actio an cesset, videndum. et refert Pomponius Iulianum existimare de peculio actione peremi de in rem verso actionem (quia in peculium conversum est quod in domini rem erat versum et pro servo solutum est, quemadmodum si ipsi servo a domino fuisset solutum), sed ita demum, si praestiterit ex actione de peculio dominus quod servus in rem eius verterat: ceterum si non praestiterit, manet actio de in rem verso.
1 Ulpianus, On the Edict, Book XXIX. Where those who are under the control of another have nothing in the peculium, or have something, but not the entire amount; the persons having them under their control are liable if what was received has been used for the benefit of their property, the contract being held to have been rather made with them. 1Nor does the action having reference to the employment of property in the affairs of another, seem to have been promised without effect, as that on the peculium would be sufficient; for Labeo very properly says that the property may be so applied, and the action on the peculium not be applicable; for what should be done if the owner had taken away the peculium without malicious intent? What if the peculium is put an end to by the death of the slave, and the year in which the suit can be brought has elapsed? For the suit having reference to the employment of property in the affairs of another is perpetual, and will lie whether the party has taken away the peculium without malicious intent, or the action on the peculium is terminated by the lapse of a year. 2Moreover, if several are bringing suits on the peculium, he should be benefited whose money has been employed in the business of the master, so that he will have the more profitable action. If someone has come forward and brought an action on the peculium, it should certainly be considered whether the action founded on the employment of property for another’s benefit will not lie. Pomponius states that Julianus is of the opinion that the action on the ground of the employment of property for another’s benefit is destroyed by the action on the peculium, because what has been employed for the benefit of the master and paid on account of the slave, has been bought into the peculium, just as if it had been paid by the master to the slave himself, but only so far as the master has paid in the action on the peculium what the slave had used in his affairs; otherwise, if he has not paid it, the action based on the employment of the property remains.
2 Iavolenus libro duodecimo ex Cassio. Qui nummis acceptis servum manumissit, agi cum eo de in rem verso non potest, quia dando libertatem locupletior ex nummis non fit.
2 Javolenus, On Cassius, Book XII. The action founded on the employment of property for another’s benefit cannot be brought against anyone who has liberated a slave in consideration of money received; because, by granting him his freedom, he is not enriched by the money.
3 Ulpianus libro vicensimo nono ad edictum. Quod si servus domino quantitatem dederit, ut manumittatur, quam a me mutuam accepit, in peculium quidem hanc quantitatem non computari, in rem autem videri versum, si quid plus sit in eo quod servus dedit quam est in servi pretio. 1In rem autem versum videtur, sive id ipsum quod servus accepit in rem domini convertit (veluti si triticum acceperit et id ipsum in familiam domini cibariorum nomine consumpserit) aut si pecuniam a creditore acceptam dominico creditori solverit (sed et si erravit in solvendo et putavit creditorem eum qui non erat, aeque in rem versum esse Pomponius libro sexagensimo primo ait, quatenus indebiti repetitionem dominus haberet) sive cum servus domini negotii gerendi administrandive causa quid gessit (veluti si mutuatus sit pecuniam, ut frumentum compararet ad familiam alendam vel si ad vestiendam) sive peculiariter mutuatus postea in rem domini vertit: hoc enim iure utimur, ut, etiamsi prius in peculium vertit pecuniam, mox in rem domini esse de in rem verso actio possit. 2Et regulariter dicimus totiens de in rem verso esse actionem, quibus casibus procurator mandati vel qui negotia gessit negotiorum gestorum haberet actionem quotiensque aliquid consumpsit servus, ut aut meliorem rem dominus habuerit aut non deteriorem. 3Proinde si servus sumpsit pecuniam, ut se aleret et vestiret secundum consuetudinem domini, id est usque ad eum modum, quem dominus ei praestare consueverat, in rem videri domini vertisse Labeo scribit. ergo idem erit et in filio. 4Sed si mutua pecunia accepta domum dominicam exornavit tectoriis et quibusdam aliis, quae magis ad voluptatem pertinent quam ad utilitatem, non videtur versum, quia nec procurator haec imputaret, nisi forte mandatum domini aut voluntatem habuit: nec debere ex eo onerari dominum, quod ipse facturus non esset. quid ergo est? pati debet dominus creditorem haec auferre, sine domus videlicet iniuria, ne cogendus sit dominus vendere domum, ut quanti pretiosior facta est, id praestet. 5Idem Labeo ait, si servus mutuatus nummos a me alii eos crediderit, de in rem verso dominum teneri, quod nomen ei adquisitum est: quam sententiam Pomponius ita probat, si non peculiare nomen fecit, sed quasi dominicae rationis. ex qua causa hactenus erit dominus obligatus, ut, si non putat sibi expedire nomen debitoris habere, cedat creditori actionibus procuratoremque eum faciat. 6Nec non illud quoque in rem domini versum Labeo ait, quod mutuatus servus domino emit volenti ad luxuriae materiam unguenta forte, vel si quid ad delicias vel si quid ad turpes sumptus sumministravit: neque enim spectamus, an bono domini cesserit quod consumptum est, sed an in negotium domini. 7Unde recte dicitur et si frumentum comparavit servus ad alendam domini familiam et in horreo dominico reposuit et hoc periit vel corruptum est vel arsit, videri versum. 8Sed et si servum domino necessarium emisset isque decessisset vel insulam fulsisset eaque ruisset, dicerem esse actionem de in rem verso. 9Sed si sic accepit quasi in rem domini verteret nec vertit et decepit creditorem, non videtur versum nec tenetur dominus, ne credulitas creditoris domino obesse vel calliditas servi noceret. quid tamen, si is fuit servus, qui solitus erat accipiens vertere? adhuc non puto nocere domino, si alia mente servus accepit aut si, cum hac mente accepisset, postea alio vertit: curiosus igitur debet esse creditor, quo versatur. 10Si mutuatus sit pecuniam servus ad vestem comparandam et nummi perierint, quis de in rem verso agere possit, utrum creditor an venditor? puto autem, si quidem pretium numeratum sit, creditorem de in rem verso acturum et si vestis perierit: si autem non fuit pretium solutum, ad hoc tamen data pecunia, ut vestis emeretur et pecunia perierit, vestis tamen familiae divisa est, utique creditorem de in rem verso habere actionem. an et venditor habeat, quia res eius pervenerunt in rem domini? ratio hoc facit, ut teneatur: unde incipit dominus teneri ex una causa duobus. proinde et si tam pecunia quam vestis periit, dicendum erit utrique dominum teneri, quoniam ambo in rem domini vertere voluerunt.
3 Ulpianus, On the Edict, Book XXIX. If, however, the slave pays his master a certain sum of money which he has borrowed from me, in order that he may be manumitted, the said sum of money should not be computed as forming part of the peculium, but there is held to have been employed in the business of the master any amount in excess of the value of the slave which the latter paid. 1Property is held to have been employed in the business of the master, if the slave uses in his master’s business the very article which he received; as, for instance (where he received wheat and used it up as food for the slaves of his master) or where he pays to one creditor of his master money which he has borrowed from another creditor. But if he made a mistake in paying, and thought a party to be a creditor who was not one, Pomponius says in the Sixty-first Book that this also is property employed for the benefit of the master, so far as the right of the latter to recover it as not being due is concerned; or where the slave, for the sake of transacting or managing the business of his master, performed any act (for example, if he borrowed money for the purpose of purchasing grain for the maintenance of his slaves, or in order to clothe them) or, when, having borrowed for the peculium, he afterwards uses the money for his master’s benefit; for the law which is at present in force provides that there may be an action on the ground of property employed for another’s benefit, even though he employs it at first for the benefit of the peculium, and afterwards in the business of his master. 2We state, as a general rule, that an action founded on the employment of property in the business of another will lie in those cases in which an agent would be entitled to an action on mandate, or a person who had transacted business without being empowered to do so, could bring suit on the ground of voluntary agency; and wherever the slave has consumed anything in order that the property of the owner might be improved, or not deteriorated. 3Thus, if a slave has obtained money in order to support, feed, and clothe himself, according to the custom of his master, that is to say, to the extent to which his master was in the habit of furnishing him with these necessaries; Labeo states that he will be held to employ the money for his master’s benefit and therefore this will be the case with reference to a son. 4But where, having borrowed money, he adorns his master’s house with stucco work and certain other things which are more for the purpose of pleasure than for that of utility, he will not be held to have employed the money in this manner; for the reason that an agent could not have charged this, unless he had happened to have the order of the master or his consent, nor should the master be burdened on account of what he himself would not have done. What course then should be pursued? The master should permit the creditor to remove these things—of course without injury to the house—lest the owner should be forced to sell it in order to make good the amount by which its value had been increased. 5Labeo also says that if a slave having borrowed money from me lends it to another, the owner is liable to the action based on property used for another’s benefit, because an obligation has been acquired by him; and this opinion is approved by Pomponius, if he did not make the obligation a liability of the peculium, but treated it as acquired on the account of his master. For which reason the master will be bound to the extent that if he did not think it was advantageous to himself to hold the obligation of the debtor, he could assign the rights of action to his creditor, and make him his agent. 6Labeo says that it is also an instance of the employment of property for the business of the master where a slave, having borrowed money, uses it with his master’s consent to purchase articles of luxury, for example, ointments, or anything which he may have obtained for pleasure, or for some dishonorable purpose; for we do not consider whether what was consumed was for the good of the master, but whether it was employed in his affairs. 7Hence, it is very properly said also that if a slave has procured grain for the purpose of feeding the slaves of his master, and has deposited the same in his master’s granary, and it has been destroyed, or spoiled, or burned, it is held to have been employed in the affairs of the master. 8Moreover, if he purchased a necessary slave for his master, and the slave died, or he propped up a building and it fell down; I should say that an action for property employed for the benefit of another will lie. 9Where, however, he received it for the purpose of employing it in the affairs of his master, but did not do so, and deceived the creditor; it is not held to be so employed, nor is the master liable, lest the credulity of the creditor prejudice the master or the craftiness of the slave injure him. What, however, would be the case if the slave was one who was in the habit of employing what he received in the affairs of his master? Even in this instance, I do not think that this injures a master if the slave receives it with a different intention, or if he received it with this intention but afterwards employed it for another purpose; since the creditor should be careful to ascertain the way in which it was employed. 10If the slave borrowed money for the purpose of purchasing clothing and the money is lost, who can bring the action for property employed for the benefit of another, the creditor or the vendor? I think, however, that if the price has been paid, the creditor will be entitled to the action based on the ground of property employed for another’s benefit, even though the clothing has been destroyed; but if the price has not been paid, but the money was given for the purpose that clothing should be purchased, and the money was lost, but the clothing has been divided among the slaves, the creditor will undoubtedly be entitled to the action for money employed in the business of another. But has not the vendor also a right of action, because his property has been used in the affairs of the master? Reason demands that he should be liable, hence the result is that the master will be liable to two parties on account of one transaction. Therefore, even if both the money and the clothing have been destroyed, it must be said that the master will be liable to both, since both intended to employ the articles in his affairs.
4 Gaius libro nono ad edictum provinciale. Sed dicendum est occupantis meliorem condicionem esse debere: nam utrisque condemnari dominum de in rem verso iniquum est.
4 Gaius, On the Provincial Edict, Book IX. But it must be said that the position of the more diligent party should be the better one, for it is unjust that the master should have judgment rendered against him in favor of both on the ground of the employment of property for his benefit.
5 Ulpianus libro vicensimo nono ad edictum. Si res domino non necessarias emerit servus quasi domino necessarias, veluti servos, hactenus videri in rem eius versum Pomponius scribit, quatenus servorum verum pretium facit, cum, si necessarias emisset, in solidum quanto venissent teneretur. 1Idem ait, sive ratum habeat servi contractum dominus sive non, de in rem verso esse actionem. 2Quod servus domino emit, si quidem voluntate eius emit, potest quod iussu agi: sin vero non ex voluntate, si quidem dominus ratum habuerit vel alioquin rem necessariam vel utilem domino emit, de in rem verso actio erit: si vero nihil eorum est, de peculio erit actio. 3Placet non solum eam pecuniam in rem verti, quae statim a creditore ad dominum pervenerit, sed et quae prius fuerit in peculio. hoc autem totiens verum est, quotiens servus rem domini gerens locupletiorem eum facit nummis peculiaribus. alioquin si servo peculium dominus adimat vel si vendat eum cum peculio vel rem eius peculiarem et pretium exigat, non videtur in rem versum.
5 Ulpianus, On the Edict, Book XXIX. If a slave purchases articles, which are not necessary, as if they were required by his master, as, for instance, slaves; Pomponius says that they will be held to have been employed in his affairs to the extent of the true value of the slaves; but if he should purchase articles which were really necessary, the master will be held liable for the entire amount for which they were sold. 1He also says that, whether the master ratifies the contract of the slave or not, the action on the ground of property employed for his benefit will lie. 2An action based on his order can be brought for what the slave purchased for his master, if he did so at his desire, but if he did not make the purchase at his desire, but the master indeed ratified his act; or, on the other hand, if he purchased something necessary or beneficial to the master, an action for property employed for his benefit will lie; but if none of these conditions exist, an action on the peculium will lie. 3It is established that not only the money which passes at once from the creditor to the master is employed for the benefit of the latter, but also that which was in the peculium in the first place. This, however, is true in every instance in which the slave transacting his master’s business makes him more wealthy with the money of the peculium. Otherwise, if the master deprives the slave of the peculium, or sells him along with it, or disposes of the property belonging to the peculium and collects the price of the same, this is not held to be employed in the business of the master.
6 Tryphoninus libro primo disputationum. Nam si hoc verum esset, etiam antequam venderet rem peculiarem, de in rem verso teneretur, quia hoc ipso, quod servus rem in peculio haberet, locupletior fieret, quod aperte falsum est.
6 Tryphoninus, Disputations, Book I. For, if this were true, he would be liable to the action for property employed for his benefit, even before he sold what composed the peculium; because by this very fact that the slave had the property in the peculium he would become more wealthy, which is manifestly false.
7 Ulpianus libro vicensimo nono ad edictum. Et ideo et si donaverit servus domino rem peculiarem, actio de in rem verso cessabit, et sunt ista vera. 1Plane si mutuum servus [ed. maior accepit] <ed. minor acceperit> et donandi animo solvit, dum non vult eum debitorem facere peculiarem, de in rem verso actio est. 2Illud verum non est, quod Mela scribit, si servo meo argentum dederis, ut pocula tibi faceret ex quolibet argento, mox factis poculis servus decesserit, esse tibi adversus me de in rem verso actionem, quoniam possum pocula vindicare. 3Illud plane verum est, quod Labeo scribit, si odores et unguenta servus emerit et ad funus erogaverit quod ad dominum suum pertinebat, videri in rem domini versum. 4Idem ait et si hereditatem a servo tuo emero quae ad te pertinebat et creditoribus pecuniam solvero, deinde hanc hereditatem abstuleris mihi, ex empto actione me id ipsum consecuturum: videri enim in rem tuam versum: nam et si hereditatem a servo emero, ut quod mihi ab ipso servo debebatur compensarem, licet nihil solvi, tamen consequi me ex empto quod ad dominum pervenit. ego autem non puto de in rem verso esse actionem emptori, nisi hoc animo gesserit servus, ut in rem domini verteret. 5Si filius familias pecuniam mutuatus pro filia sua dotem dederit, in rem versum patris videtur, quatenus avus pro nepte daturus fuit. quae sententia ita demum mihi vera videtur, si hoc animo dedit ut patris negotium gerens.
7 Ulpianus, On the Edict, Book XXIX. And, therefore, also, if the slave gives his master things forming part of the peculium, the action for property employed in his affairs will not lie; and this is true. 1It is evident that, if the slave should borrow money, and pay it to his master with the intention of giving it to him; provided he does not wish to make him a debtor to the peculium, an action for property employed in the affairs of the master can be brought. 2What Mela says is not true, namely, that if you give silver to my slave in order that he may make cups out of any silver he chooses, and then, after the cups have been made, the slave dies; you will be entitled to an action for property employed for the benefit of another against me, since I can bring an action to recover the cups. 3What Labeo says is entirely true, that is, if the slave purchases perfumes and ointments and uses them at a funeral which concerned his master, he will be held to have employed them in his master’s business. 4He also says that if I purchase from your slave an estate which belonged to you, and I pay money to the creditors, and then you deprive me of said estate, I can recover it by an action on purchase; for it would be held that it was employed in your affairs. Moreover, if I purchase an estate from a slave in order that I may set off what is due to me from said slave, even though I paid nothing, still I can recover in an action on purchase what has come into the hands of the master. I, however, do not think that the purchaser is entitled to an action for property employed in the business of another, unless the slave had the intention of employing it in his master’s affairs. 5If a son under paternal control, having borrowed money, gives it as dowry for his daughter, it is held to have been employed in the affairs of his father to the extent that the grandfather was about to give the dowry for the granddaughter. This opinion seems to me to be correct, only where he gave the money with the intention of transacting the business of his father.
8 Paulus libro trigensimo ad edictum. Et nihil interesse Pomponius ait, filiae suae nomine an sororis vel neptis ex altero filio natae dederit. idem ergo dicemus et si servus mutuatus fuerit et domini sui filiae nomine in dotem dederit.
8 Paulus, On the Edict, Book XXX. And Pomponius says that it makes no difference whether he gives it for his daughter, or his sister, or a granddaughter, the issue of another son. We shall, therefore, say the same where a slave has borrowed money, and given it as dowry, on account of the daughter of his master.
9 Iavolenus libro duodecimo ex Cassio. Si vero pater dotem daturus non fuit, in rem patris versum esse non videtur.
9 Javolenus, On Cassius, Book XII. If, indeed, the father was not about to give a dowry, it is not held to have been employed in his business.
10 Ulpianus libro vicesimo nono ad edictum. Si pro patre filius fideiusserit et creditori solverit, in rem patris videtur versum, quia patrem liberavit. 1Cui simile est, quod Papinianus libro nono quaestionum scribit, si filius quasi defensor patris iudicium susceperit et sit condemnatus, de in rem verso teneri patrem: namque filius eum iudicio suscepto liberavit. 2Idem tractat Papinianus et si, quod patrem dare oporteret, a filio sim stipulatus et ita convenerim filium, nam et hic de in rem verso fore actionem: nisi si donare patri filius voluit, dum se obligat. 3Quare potest dici et si de peculio actionem quasi defensor patris susceperit, teneri patrem de in rem verso usque ad peculii quantitatem: cuius sententiae id erit emolumentum, ut, si finita sit actio de peculio, de in rem verso conveniatur. ego et ante condemnationem post iudicium patris nomine acceptum de in rem verso patrem teneri puto. 4In rem autem versum videtur, prout aliquid versum est: proinde si pars versa est, de parte erit actio. 5Sed utrum in sortem dumtaxat tenebitur dominus an et in usuras? et si quidem promisit usuras, Marcellus libro quinto digestorum scribit dominum praestaturum: sed si non sint promissae, utique non debebuntur, quia in stipulatum deductae non sunt. plane si contemplatione domini pecuniam dedi non gerenti servo negotia domini, sed ipse gerens, negotiorum gestorum actione potero etiam de usuris experiri. 6Versum autem sic accipimus, ut duret versum: et ita demum de in rem verso competit actio, si non sit a domino servo solutum vel filio. si tamen in necem creditoris, id est perdituro servo vel filio solutum sit, quamvis solutum sit, desinit quidem versum, aequissimum autem est de dolo malo adversus patrem vel dominum competere actionem: nam et peculiaris debitor, si fraudulenter servo solverit quod ei debebat, non liberatur. 7Si domini debitor sit servus et ab alio mutuatus ei solverit, hactenus non vertit, quatenus domino debet: quod excedit, vertit. proinde si, cum domino deberet triginta, mutuatus quadraginta creditori eius solverit vel familiam exhibuerit, dicendum erit de in rem verso in decem competere actionem: aut si tantundem debeat, nihil videtur versum. nam, ut Pomponius scribit, adversus lucrum domini videtur subventum: et ideo, sive debitor fuit domino, cum in rem verteret, nihil videri versum, sive postea debitor esse domino coeperit, desinere versum: idemque et si solverit ei. plus dicit et si tantundem ei donavit dominus, quantum creditori solvit pro se, si quidem remunerandi animo, non videri versum, si vero alias donavit, durare versum. 8Idem quaerit, si decem in rem domini vertit et postea tantandem summam a domino mutuatus sit, habeat praeterea et peculium decem, videndum ait, utrum desiit esse versum? an vero, quoniam est peculium, unde [ed. maior trahatur] <ed. minor detrahatur> debitum, de in rem verso non tollimus actionem? an potius ex utroque pro rata detrahimus? ego autem puto sublatam de in rem verso actionem, cum debitor domini sit constitutus. 9Idem quaerit, si in rem tuam verterit et debitor tuus factus sit, mox creditor eiusdem summae quam tibi debuit, an renascatur de in rem verso actio an vero ex postfacto non convalescat? quod verum est. 10Idem tractat, an ex eventu possit in rem patris filius vertere, veluti si duo rei pater et filius fuerint et filius mutuatus suo nomine solvat, vel si filio iussu patris credidisti et filius creditum tibi solvisset. mihi videtur, si quidem pecunia ad patrem pervenerat, videri in rem versum: quod si non fuit et suum negotium gerens filius solvit, non esse de in rem verso actionem.
10 Ulpianus, On the Edict, Book XXIX. Where a son has become surety for his father and has paid the creditor, he is held to have employed the money in the affairs of his father, because he released the latter from liability. 1What Papinianus states in the Ninth Book of Questions is an instance similar to this, namely: where a son undertook the conduct of a case as the voluntary defender of his father, and judgment was rendered against him, his father is liable to an action for property employed in his behalf, for the son released him from liability by undertaking his defence. 2Papinianus also discusses the case in which I stipulated with the son for what the father was compelled to pay, and then I brought suit against the son; for, in this instance, also, an action will lie for money employed for another’s benefit, unless the son, when he bound himself, intended to make a gift to his father. 3Wherefore, it can be said that if he appears in an action on the peculium as the defender of his father, the latter will be liable to the action for property employed for his benefit, to the extent of the peculium; and the benefit to be derived from this opinion will be that if the action De peculio should be terminated, he can be sued in that for money employed for his benefit. I think that the father is liable to an action for money employed for his benefit, even before an adverse decision was rendered, after issue has been joined in behalf of the father. 4Property is held to have been employed in the affairs of a father to the extent that any use of the same is made; and hence if a part has been employed, an action can be brought for that part. 5But will the master be held liable only for the principal, or for the interest as well? And, indeed, if the slave promised interest, Marcellus states in the Fifth Book of the Digest that the master must pay it, but if he did not promise it, it certainly is not due, because it was not included in the agreement. It is evident that if I, having the master in mind, paid money to a slave who was not managing his master’s business, but I myself was managing it, I shall be able to institute proceedings to collect the interest also, by an action based on voluntary agency. 6We understand property to be employed in the business of a master when it continues to be so employed; and hence an action on the ground of property employed in his affairs will only lie where payment has not been made by the master to the slave or the son. If, however, this has been done to the prejudice of the creditor, that is to say, if the money has been paid to the slave or the son who is liable to lose it, since it has been paid, it ceases to have been employed for this purpose; but it is perfectly just that the action on the ground of malicious intent should lie either against the father or the master; for a debtor to the peculium, also, is not released from liability, if he fraudulently pays the slave what he owed him. 7Where the slave is a debtor of the master, and, having borrowed money from another pays him; he does not employ it in the business of the latter to the extent to which he is indebted to him, but he does so as far as the excess is concerned. Hence, if, when he owed his master thirty aurei, having borrowed forty, he paid the sum to his creditor, or spent it on the slaves; it must be said that an action for the employment of money in the business of another to the amount of ten aurei will lie; but if he owes the whole amount, it is not held to have been employed in this manner; for, (as Pomponius says), it is considered that relief is granted against the profit of the master, and therefore, if he was indebted to the master when he used the property in his affairs, it is held that nothing was employed for that purpose, but if afterwards he became indebted to him, it ceases to be employed for that purpose; and the same rule will apply if he should pay him. He says moreover, that if a master makes him a present of an amount equal to that which he paid the creditor in his behalf, and this was done with the intention of remunerating him, the money will not be held to have been employed for his benefit. If, however, he gave it to him in any other way, the use of the money for this purpose will still exist. 8He also makes the following inquiry. If he employed ten aurei in the business of his master, and afterwards borrowed the same amount from the latter, and, in addition to this, he has a peculium of ten aurei, should it be considered that the employment of the money in his master’s affairs has ceased? Or shall we, indeed, not take away the right of action for property employed in his affairs, as there is peculium from which the debt can be paid; or should we preferably make the deduction from each, pro rata? I think, however, that the action for money employed for the benefit of the master has ceased to be available, since he has become a debtor to the master. 9He also asks whether, if he has employed money in your affairs, and has become your debtor, and then your creditor for the same amount that he owed you, the action based on the employment of money for the benefit of another is revived, or whether it cannot be reestablished retroactively? The latter opinion is correct. 10He also discusses the point whether a son can employ property in the affairs of his father in accordance with what may transpire; for example, if the father and son are co-debtors, and the son, having borrowed money, pays it in his own behalf; or if you have lent money to the son under the direction of the father, and the son has paid you the debt. It seems to me that if the money had actually come into the hands of the father, it will be held to have been employed in his business; but if this was not the case, and the son paid while transacting his own affairs, an action on the ground of property employed in the business of another will not lie.
11 Paulus libro trigensimo ad edictum. Quod servus in hoc mutuatus fuerit, ut creditori suo solveret, non erit in rem versum, quamvis actione de peculio liberatus sit dominus.
11 Paulus, On the Edict, Book XXX. Whatever a slave has borrowed for this purpose, namely, in order to pay it to his own creditor, will not be employed in his master’s business, although the latter is released from liability to an action on the peculium.
12 Gaius libro nono ad edictum provinciale. Si fundum patri dominove emit servus vel filius familias, versum quidem esse videtur, ita tamen, ut, sive minoris sit, quam est emptus, tantum videatur in rem versum quanti dignus sit, sive pluris sit, non plus videatur in rem versum quam emptus est.
12 Gaius, On the Provincial Edict, Book IX. If a son under paternal control or a slave purchases land for his father or master, this will be held to have been employed in his affairs; but in this way, that, if it was worth less than the sum for which it was purchased, it would be held to have been employed in his business to the amount of what it is worth; if, however, it is worth more, no greater sum will be held to have been employed for that purpose than that for which it was purchased.
13 Ulpianus libro vicensimo nono ad edictum. Si in rem alterius ex dominis versum sit, utrum is solus in cuius rem versum est, an et socius possit conveniri, quaeritur. et Iulianus scribit eum solum conveniri in cuius rem versum est, sicuti cum solus iussit: quam sententiam puto veram.
13 Ulpianus, On the Edict, Book XXIX. If property has been used in the business of one of two masters, the question arises whether he alone for whose benefit it was employed can be sued, or his partner as well? Julianus says that he alone should be sued in whose affairs the money was employed, just as where he alone directed the contract to be made; and I think this opinion to be correct.
14 Iulianus libro undecimo digestorum.. Marcellus notat: Interdum et propter hoc quod in rem alterius socii versum est de in rem verso cum altero agi potest, qui conventus a socio petere potest id in quo damnatus fuerit. quid enim dicemus, si peculium servo ab altero ademptum fuerit? Paulus: ergo haec quaestio ita procedit, si de peculio agi non potest.
14 Julianus, Digest, Book XI. Note by Marcellus. Sometimes, also, the action for property employed in the affairs of another can be brought against one joint-owner; for the reason that such employment of property has taken place, and he, having been sued, can recover from his partner the amount for which judgment has been rendered against him. What shall we say, however, if the slave has been deprived of the peculium by one of the owners? Paulus says that this question only arises where an action on the peculium does not lie.
15 Ulpianus libro secundo disputationum. Si filius familias constituerit quod pater debuit, videndum est, an de in rem verso actio dari debeat. atquin non liberavit patrem: nam qui constituit, se quidem obligat, patrem vero non liberat. plane si solvat post constitutum, licet pro se videatur solvisse, hoc est ob id quod constituit, in rem tamen vertisse patris merito dicetur.
15 Ulpianus, Disputations, Book II. Where a son under paternal control has agreed to pay what his father owed, it should be considered whether the action for the employment of property in the affairs of another ought to be granted. He did not, however, release his father, for he who makes such an agreement binds himself, indeed, but does not discharge his father from liability. It is evident that, if he pays after making the agreement, although he may be held to have done so in his own behalf, that is on account of his having made the agreement, he will, nevertheless, be properly said to have employed the property in the affairs of his father.
16 Alfenus libro secundo digestorum. Quidam fundum colendum servo suo locavit et boves ei dederat: cum hi boves non essent idonei, iusserat eos venire et his nummis qui recepti essent alios reparari: servus boves vendiderat, alios redemerat, nummos venditori non solverat, postea conturbaverat: qui boves vendiderat nummos a domino petebat actione de peculio aut quod in rem domini versum esset, cum boves pro quibus pecunia peteretur penes dominum essent. respondit non videri peculii quicquam esse, nisi si quid deducto eo, quod servus domino debuisset, reliquum fieret: illud sibi videri boves quidem in rem domini versos esse, sed pro ea re solvisse tantum, quanti priores boves venissent: si quo amplioris pecuniae posteriores boves essent, eius oportere dominum condemnari.
16 Alfenus, Digest, Book II. A certain party leased a tract of land to his slave for cultivation, and gave him oxen, and as these oxen were unsuitable for the work, he ordered them to be sold and others to be obtained by means of the money received. The slave sold the oxen, and bought others, but did not pay the money to the vendor, and afterwards became financially embarrassed. He who sold the oxen brought suit against the master in an action on the peculium, and for money which had been employed in his business, as the oxen on account of which the money was demanded were in possession of the master. The answer was, that no peculium was held to exist, except what remained after what the slave owed to the master had been deducted, and that it seemed to him that the oxen were, in fact, employed in the master’s affairs, but that he had paid on this account the amount that the first oxen had been sold for; and that judgment should be rendered against the master for the excess of the value of the last oxen.
17 Africanus libro octavo quaestionum. Servus in rem domini pecuniam mutuatus sine culpa eam perdidit: nihilo minus posse cum domino de in rem verso agi existimavit. nam et si procurator meus in negotia mea impensurus pecuniam mutuatus sine culpa eam perdiderit, recte eum hoc nomine mandati vel negotiorum gestorum acturum. 1Cum Sticho vicario servi tui Pamphili contraxi: actio de peculio et in rem verso ita dari debet, ut, quod vel in tuam ipsius rem vel in peculium Pamphili versum sit, comprehendatur, scilicet etiamsi mortuo vel alienato Sticho agatur. quod si Pamphilo mortuo agam, magis est, ut, quamvis Stichus vivat, tamen de eo, quod in peculio Pamphili versum est, non nisi intra annum quam is decessit actio dari debeat: etenim quodammodo de peculio Pamphili tum experiri videbor, sicuti si, quod iussu eius credidissem, experirer: nec nos movere debet, quod Stichus de cuius peculio agitur vivat, quando non aliter ea res in peculio eius esse potest, quam si Pamphili peculium maneat. eadem ratio efficiet, ut id, quod in peculio Pamphili versum sit, ita praestari debere dicamus, ut prius eius, quod tibi Pamphilus debuerit, deductio fiat, quod vero in tuam rem versum fuerit, praestetur etiam non deducto eo quod Pamphilus tibi debet.
17 Africanus, Questions, Book VIII. A slave, having borrowed money for the business of his master, lost it without negligence; it was held that, notwithstanding this, an action for money employed in the business of another could be brought against the master. For, in like manner, if my agent, being about to spend money in my business, and having borrowed money lost it without negligence, he can properly bring an action against me on the ground of mandate, or on that of business transacted. 1I entered into a contract with Stichus the sub-slave of your slave Pamphilus; the action on the peculium and that for property employed in the affairs of another ought to be granted in such a way that whatever had been employed in your business or with reference to the peculium of Pamphilus, should be included in the same; that is to say, even if it was brought after Stichus had died, or been alienated. If, however, I bring suit after the death of Pamphilus, the better opinion is that, even though Stichus may be living, still, with reference to what has been employed for the benefit of the peculium of Pamphilus, the action should not be granted, except within a year from the time when he died; for I should then be held to be, as it were, instituting proceedings with reference to the peculium of Pamphilus, just as where I brought suit for what I lent by his direction. It should not concern us that Stichus, on whose peculium suit is brought, is living, since this property cannot be in his peculium, unless that of Pamphilus still remains. The same principle will compel us to hold that what has been employed for the benefit of the peculium of Pamphilus, must be made good in such a way that what Pamphilus owes you shall first be deducted, but what has actually been used in your business shall be made good even if what Pamphilus owes you had not been deducted.
18 Neratius libro septimo membranarum. Quamvis in eam rem pro servo meo fideiusseris, quae ita contracta est, ut in rem meam versaretur (veluti si, cum servus frumentum emisset quo familia aleretur, venditori frumenti fideiusseris), propius est tamen, ut de peculio eo nomine, non de in rem verso agere possis, ut unius dumtaxat in quoquo contractu de in rem verso sit actio, qui id ipsum credidit quod in rem domini versum est.
18 Neratius, Parchments, Book VII. Although you have become surety for my slave in a contract which was made with reference to my business, for example, if where a slave had purchased grain for the maintenance of the entire body of slaves, you gave security to the vendor of the grain; still, the better opinion is that you may bring the action De peculio on this account, but not an action based on the employment of property in the affairs of another; so that an action on the latter ground will lie in any contract solely in favor of the person who loaned the very property which has been employed in the affairs of the matter.
19 Paulus libro quarto quaestionum. Filius familias togam emit: mortuo deinde eo pater ignorans et putans suam esse dedicavit eam in funus eius. Neratius libro responsorum ait in rem patris versum videri: in actione autem de peculio quod in rerum natura non esset uno modo aestimari debere, si dolo malo eius quocum agatur factum esset. atquin si filio pater togam emere debuit, in rem patris res versa est non nunc quo funerabitur, sed quo tempore emit (funus enim filii aes alienum patris est: et hoc Neratius quoque, qui de in rem verso patrem teneri putavit, ostendit negotium hoc, id est sepulturam et funus filii patris esse aes alienum, non filii): factus est ergo debitor peculii, quamvis res non exstet, ut etiam de peculio possit conveniri, in quam actionem venit et quod in rem versum est: quae tamen adiectio tunc necessaria est, cum annus post mortem filii excessit.
19 Paulus, Questions, Book IV. A son under paternal control purchased a toga; and afterwards, having died, his father being ignorant of the fact, and supposing it to be his, used it at his funeral. Neratius states in the Second Book of Opinions that this is held to be employment of property in the affairs of the father, but that, in the action on the peculium, what does not exist should be computed only in one instance, that is where this is occasioned by the malicious fraud of him against whom suit is brought. If, however, the father was obliged to purchase a toga for his son, it was employed in the affairs of his father, not now when it was used at the funeral, but at the time he purchased it, for the funeral of the son is a debt of the father. Neratius, also, who thought that the father was liable on the ground of property employed in his business, explains that this transaction (that is to say the burial and the funeral of the son) constitute a debt of the father and not of the son. He, therefore, having become a debtor to the peculium, although the property is not in existence, can also be sued on the peculium; and in this action is also included what has been employed in his affairs; which addition is, however necessary, after a year has elapsed from the death of the son.
20 Scaevola libro primo responsorum. Pater pro filia dotem promisit et convenit, ut ipse filiam aleret: non praestante patre filia a viro mutuam pecuniam accepit et mortua est in matrimonio. respondi, si ad ea id quod creditum est erogatum esset, sine quibus aut se tueri aut servos paternos exhibere non posset, dandam de in rem verso utilem actionem. 1Servus absentis rei publicae causa pupilli servis pecuniam credidit subscribente tutore stipulatione in personam tutoris translata: quaesitum est, an adversus pupillum competat actio. respondi, si, cum in rem pupilli daretur, id in rem eius versum est et, quo magis actus servorum confirmaretur, tutor spopondit, posse nihilo minus dici de in rem verso cum pupillo actionem fore.
20 Scævola, Opinions, Book I. A father promised a dowry for his daughter and agreed that he would support her; and, as he did not keep his promise, the daughter borrowed money from her husband, and died during marriage. I gave it as my opinion that, if what had been lent had been expended for something without which she could not support herself, or could not maintain her father’s slaves, an equitable action should be granted on the ground of property employed in the business of the father. 1The slave of a party who was absent on public business lent money to the slaves of a ward, the guardian signing the stipulation, which stated that the latter was responsible for the contract. The question arose whether an action would lie against the ward? I answered that, if the property was given for the business of the ward it was employed for that purpose; and although, in order that the contract with reference to the slaves might be the better confirmed, the guardian had made the promise, it should, nevertheless, be said that an action for property employed in the business of another might be brought against the ward.
21 Idem libro quinto digestorum. Filiam familias duxit uxorem patre dotem promittente et convenit inter omnes personas, uti eam pater aut ipsa se tueretur: maritus ei mutuos nummos dedit, cum iuste putaret patrem eius ministraturum tantum salarium, quantum dare filiae suae instituerat: eos nummos illa in usus necessarios sibi et in servos quos secum habebat consumpsit, aliquantum et (cum ei res familiares creditae essent) ex pecunia mariti in easdem causas convertit: deinde priusquam pater salarium expleret, moritur filia: pater impensam recusat: maritus res mulieris retinet: quaero, an de in rem verso adversus patrem actio competat. respondit, si ad ea id quod creditum est erogatum esset, sine quibus aut se tueri aut servos paternos exhibere non posset, dandam de in rem verso utilem actionem.
21 The Same, Digest, Book V. A man married a girl under paternal control, the father having promised a dowry, and it was agreed between all the parties that either the father, or she herself, should meet the expenses of her support. The husband lent her money, as he very properly thought that the father would give her an allowance to the amount that he had proposed to give his daughter. She used this money for necessary purposes for herself and for the slaves which she had with her, and the management of his domestic affairs having been committed to her, she used a certain amount of the money of her husband for the same purpose. Then, before the father had paid the allowance, the daughter died, the father refused to pay the expenses, and the husband retained the property of his wife. I ask whether an action for money employed for his benefit will lie against the father? The answer was that if what was lent was expended for articles without which she could not maintain herself, or support the slaves of her father, an equitable action for property employed for another’s benefit should be granted.