TITLE VII.-OF ACTIONS GRANTED IN RESPECT OF TRANSACTIONS WITH A PERSON ALIENI JURIS.

SEVENTH DIVISION.-Pr. By the strict Civil Law, no person could bind himself except by his own act: the mandator was not even bound to him who had negotiated with his mandatarius (person commissioned). But the Prætors thought it equitable that in certain cases a party should be bound by the act of another, and hence the distinction between direct and indirect actions. Direct actions are those granted against a person on account of his own act (1): indirect actions are those which do not arise from the act of the party against whom they are granted, but from an engagement contracted, or a misfeasance committed by some person under the defendant's power, or from damage caused by some animal belonging to him (t. 9, post).

The indirect actions granted by the Prætorian law against the paterfamilias in respect to contracts made with his filius-familias or his slave are six the actions quod jussu, exercitoria, institoria, tributoria, de peculio, and de in rem verso.

§ 1. The action quod jussu is an action granted against the paterfamilias or the master, to compel him to discharge entirely (in solidum) such obligations as his filius-familias or his slave may have incurred by his order (jussu). The Prætor, in introducing this action, followed the principles of equity; for he who, under such circumstances, treated with the filius-familias or the slave must have relied on the credit of the pater-familias.

§ 2. The action exercitoria is an action granted against the master who put forward his slave, or against the pater-familias who put forward his filius-familias, as commander of a vessel, by reason of contracts made by such commander in regard to the business intrusted to each of them. Such contracts being made in seeming conformity with the wish of the master or the pater-familias, the Prætor held it equitable to grant, as against the master or the pater-familias, an action for the whole debt. This action is called exercitoria, because the exercitor is the name for the person to whom the ship's daily profits (quotidianus navis quæstus) belong.

§ 2. The action institoria is an action granted against a master or a

(1) Actions are called directa in a different sense when opposed to actions contraria. Again, actions are called directo when brought under the precise circumstances for which they were created, in

which case they are opposed to actiones utiles, which are granted on principles of analogy-the right to bring them being extended to cases similar to those for which they were originally created.

pater-familias, who have respectively given a slave or a filius-familias of theirs charge of a certain business, to enforce liabilities incurred by such slave or filius-familias, in reference to the business which each has been appointed to conduct. The action is called institoria, because the person charged with the management (præpositus) is called institor; and it is granted for the recovery of the whole claim.

§ 2. The actions exercitoria and institoria are granted not only when a slave or a filius-familias is the person to whom the management is given, but also when the person to whom management is given is a freeman, or a slave not under the power of the person who gives him the management, because the same principle of equity applies.

§ 3. The action tributoria applied when a filius-familias or a slave employed the whole or part of his peculium (peculiari merce) to carry on a business of which his pater-familias or master had notice. Now when a person contracted with either of them in regard to such business, the Prætor held that the whole business fund (quicquid in his mercibus erit) and the benefits arising therefrom, should be distributed proportionally between the master, if anything was due to him, and the other creditors who should demand payment. And since the Prætor authorised the pater-familias or the master to make such distribution, if any of the creditors complained that the proper portion had not been assigned to him, the Prætor granted to such plaintiff this actio tributoria.

§ 4. The action de peculio is an action granted to those who have made contracts with the filius-familias, or the slave, against the paterfamilias or the master, in order to compel either of these last to pay a sum equal to the peculium, though neither pater-familias nor master have given their consent to the obligation (sine voluntate domini) (1). In order to estimate (cum autem) the value of the peculium, you must first deduct the sum which the slave or the filius-familias owes to his master or pater-familias, or to the person subject to the power (potestas) of the latter, and the remainder is the peculium. Sometimes, however, you do not deduct from the peculium that which the filius-familias or the slave owes to a person subject to the power of the pater-familias or the master: viz., when such person himself constitutes a portion of the peculium, e.g., a vicarius servus: for in that case any sum which might be paid to such servus would become part of the peculium; there would be confusio.

§ 4. The action de in rem verso is an action granted by the Prætor to those who have made contracts with the filius-familias or the slave, against the pater-familias or the master, on account of, and up to the

(1) If the obligation was contracted with the consent of pater-familias or master, there was an action quod jussu.

value of, the profit which has accrued to the pater-familias or the master (si quid in rem ejus versum fuerit). As profit accruing for their benefit, we reckon all sums expended necessarily or profitably on behalf of the pater-familias or master by the filius-familias or the slave; e.g., money borrowed by them to pay creditors, or to support a dilapidated building, &c:

§ 4. It was possible to claim de peculio and de in rem verso in one and the same action, and indeed such was the common course (1); because the creditor might often by such means recover the whole debt, where part only would be recoverable by one of these actions. When such was the course the formula contained two condemnations (duas condemnationes), and the judex had first to examine whether any benefit had accrued to the master or the pater-familias: and if he determined that none had, or that they had not profited by the whole amount, he had then to estimate the value of the peculium. Thus, suppose the slave of Sempronius borrowed of Titius ten sesterces, suppose he paid five to the creditors of his master, and expended the other five in any way he pleased, a condemnatio would be pronounced against Sempronius for the whole five sesterces, of which he had reaped the benefit; and as to the five others, condemnatio would be pronounced against him to the extent of the peculium.

§ 5. Again, the same transaction may raise the action quod jussu, or the action institoria, or exercitoria, and also the action de peculio, or de in rem verso, and it is for the creditor to select which he pleases. Hence, as the text says (§ 5), it would be absurd to abandon the action quod jussu, or the action institoria, or exercitoria, by means of which we may easily recover the whole of our debt, and subject ourselves to the difficulty of proving that the master or the pater-familias has derived a profit, or that the slave has a peculium, and that sufficient to pay the whole. Again, he who may bring the actio tributoria may also bring the actio de peculio and de in rem verso, and the creditor may select whichever he thinks best. When a large sum is due to the master or to the pater-familias out of the peculium, it is generally best for the creditor to bring an action tributoria, because by it neither master nor paterfamilias has any privilege, i.e., no deduction is made for any sum due to either of them, and they are in the same position as the other creditors; whereas in the action de peculio you begin by deducting the sum due to the master or pater-familias, and the condemnatio in favour

(1) This seems to be the meaning of § 4: not that actions de peculio and de in rem verso constitute only one action, for each of them may be enforced separately, one after the other. In the Digest the title de peculio is distinct from the title de in rem

verso (D. 15, t. 2, and 3). The action de in rem verso is perpetual, whereas the action de peculio is open only for one year after the death of the slave, or after any other event putting an end to the peculium.

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of the creditors is only for the surplus of the peculium after such deduction. On the other hand, and especially where a small sum is due to the master or to the pater-familias, it may be the better course for the creditor to bring an action de peculio, because it affects the whole of the peculium; whereas the action tributoria affects only such part of the peculium as may be included in the business-fund (tantum quo negotiatur): there is yet a further reason for bringing an action de peculio where some profit has accrued from the obligation to the pater-familias or the master, because then you may bring an action de peculio and de in rem verso at the same time.

§ 6. But as to these actions of which we have just spoken, it was not always the same whether the obligation was contracted by a filiusfamilias or by a slave (eadem fere jura). There were cases in which the slave could not bind his master even de peculio, but in which the filiusfamilias could bind his pater-familias (1). On the other hand, there was one obligation, which when contracted by the slave, bound the master de peculio, but which when contracted by the filius-familias did not bind the pater-familias, viz., the obligation arising from a loan of money. For the Sc. Macedonianum, passed with the view of putting down usury and preventing the dangerous abuses caused by loans made. to filii-familias, decreed that any person who lent money to a filiusfamilias (2) without the consent of the pater-familias of the borrower, should have no right of action either against the pater-familias or against the filius-familias, even though the latter should become sui juris.

It has been said that actions quod jussu and de in rem verso are indirect prætorian actions; but Justinian says (§ 8) that a man may bring a civil and direct action, viz., condictio, against any pater-familias or master who has directed a contract to be made, or has derived any benefit from a contract, just as if such pater-familias or master had himself contracted: now, these direct actions already existing, why introduce indirect actions?

Probably by direct actions Justinian alludes to the new law; for it seems that the indirect prætorian actions were not abolished, but that certain direct actions were added-being admitted in practice and sanctioned by the jurists (condici PLACET). Observe, however, that the only direct action was the condictio, and that it was confined to two cases: 1. When a person contracted with a filius-familias or slave, by direction of the pater-familias or master; for then the credit was given

(1) A filius-familias might become surety for another, but a slave might not.

(2) According to Theophilus this Sc. was passed in regard to one Macedo, who, being encumbered with debts, in consequence of

sums borrowed by him when a filiusfamilias, made an attempt upon the life of his father, in order to procure his patrimony. D. 14, 6, 1.

to them. 2. When profit accrued to the pater-familias or master by the contract. Now condictio (originally confined to the recovery of pecunia certa) never applied except to enforce unilateral contracts, or where credit had been given (D. 12, 1, 9, 2), or profit derived (D. 12, 1, 23, 32); hence the necessity for these indirect prætorian actions, for they were required to enforce bilateral contracts-involving mutual obligations such as emptio-venditio, locatio-conductio, &c., which might be made by a slave for his master, and to enforce which the condictio was inapplicable.

TITLE VIII.-OF ACTIONES NOXALES.

Pr. Directly the master might not be sued for wrongs (delicta) committed by his slave: but leave was given to sue him indirectly by an actio noxalis (1). An action is called noxalis which arises ex delicto, or quasi ex delicto, and by which the defendant is allowed either to pay the amount of the condemnatio (litis æstimationem) or to abandon the cause of damage to the demandant.-Noxa (§ 1) means the cause of the injurious act, viz., the slave, and noxia the act itself, as theft, theft with violence (rapina), injuria, &c.

§ 2. The master was allowed to discharge himself by abandoning the noxa, because it would have been unjust that the wrongful act of the slave should expose the master to lose more than the slave himself who did the wrong.

§ 4. Actiones noxales are derived either from the Civil or the Prætorian law from the Civil law we have the actio furti manifesti, which is derived from the Twelve Tables; the action for damage wrongfully caused (damni injuria), which is derived from the lex Aquilia; from the Prætorian law we have the actio injuriarum; and that for theft with violence (rapina). Observe, the actio noxalis is not a distinct and separate right of action: it is the ordinary action raised by a particular delictum, but so modified as to allow the master to discharge himself by abandoning the noxa. Hence an action does not cease to be an actio furti, legis Aquiliæ (2), &c., though it is noxalis.

§ 3. The effect of abandoning the noxa was that the master, who

(1) A master cannot be sued de peculio on account of wrongs committed by his slave; for when a man intrusts his slave with a peculium, though he authorises him to make contracts in regard to it, he cannot be considered as authorising the commission of wrongs. An actio noxalis cannot be brought unless the wrong committed by a slave is a private wrong (priratum delictum), for as to public wrongs

(crimes), the slave himself is the person to be accused and punished.

(2) For the whole difference is, that the condemnatio is in the alternative either to pay or to abandon the slave, instead of simply to pay. So the actions quod jussu, de peculio, are the ordinary actions emptirenditi, locati-conducti, but modified by the prætor.