on the part of the debtor, the right namely to pay his original § 74. creditor.

There is no assignment in the case of a novation (sup. p. 300), where a new obligation, in favour of a new creditor, is created by means of a new contract, in lieu of the former obligation. The practical effect of such a novation may be to assign an obligation, but in point of form, it is never an assignment. It means invariably, not the transfer of a prior obligation, but the substitution of a new obligation in place of an old one.

§75. Liability for Debts Contracted by Another.

I. Master and Slave.

The owner of a slave is liable to a noxal action for the delicts of his slave (sup. p. 331). Contracts made by a slave do not bind his master absolutely and in all circumstances, but only in the following cases: (1) if the master grants his slave a peculium; (2) if the contract is concluded by order (jussus) of the master.

1. Where the master grants his slave a peculium, i. e. where he hands over to the slave certain property with directions to manage it independently the slave, for example, employing his peculium for the purpose of setting up some business on his own account-in any such case the master can be sued by the praetorian actio de peculio on any contract concluded by the slave-except where a gift was intended—and can be made liable to the extent of the peculium (peculio tenus). Since the peculium remains the property of the master (for the slave is incapable of acquiring property), the master's liability in such cases affects his own property (though only to the extent of the peculium), but the debts for which he is rendered liable are the contractual debts of his slave, i. e. the debts of another. The slave himself is bound 'naturaliter' by his contracts (p. 108). Whatever the slave owes his master (as, for example, when a slave, for purposes of his peculium, borrows money from his master and binds himself to repay it) diminishes the peculium, and, conversely, whatever the master owes the slave increases the peculium. Although, as between master and slave, there can be no civil law obligation, never

$75.

§ 75. theless their mutual contracts and quasi-contracts operate to increase and diminish the peculium. Thus, if a slave makes a contract with a third party by which his master is benefited (if he, for example, borrows money which he converts to the use of his master, say, by paying his master's debts), he (the slave) is entitled-on the analogy of the actio negotiorum gestorum contraria-to be compensated by his master on account of such loan to the extent to which the master has been enriched by the transaction, to the extent, in other words, to which the master has been actually benefited by the loan. This claim to compensation against the master operates to increase the peculium pro tanto, so that in measuring the extent to which the master is liable to third parties suing him by the actio de peculio, the amount of such claim has to be taken into account. But creditors, with whom a slave concludes transactions beneficial to his master, are not confined to the actio de peculio. They may sue the master by the 'actio de in rem verso' and make him liable to the extent of his enrichment, i. e. so far as the transaction has actually benefited him, to the extent, in other words, of the claim for compensation which his slave has against him. And in this actio de in rem verso the master is not entitled to deduct any claims which he may have against his slave on other grounds.

If the peculium is given to the slave for the purpose of carrying on some mercantile business, the slave's commercial creditors can sue the master by the actio tributoria,' a kind of liquidation proceedings in which the creditors demand to have the merx peculiaris (i. e. the capital invested in the business) distributed among themselves in the proportion of their respective claims. The master is not entitled in this case to deduct the amount his slave owes him; he is only entitled to rank as an ordinary creditor and to receive, as such, a proportionate satisfaction of his claims.

2. If the slave in concluding a contract is acting under the orders (jussus) of his master, the master is liable to the creditor on an actio quod jussu for the whole amount (in solidum). The instructions need not be expressly given for the particular contract; general instructions are sufficient for the purpose. If a master makes his slave captain of a ship (magister navis), and thereby confers upon

him, in a general way, all the powers incident to the duties of a ship- § 75. captain, as such, any third party contracting with the slave in his capacity of captain (e. g. for the carriage of goods) may sue the master (i. e. the owner of the ship, 'exercitor navis') by the actio exercitoria for the whole amount of his claim. Or again, if a master appoints his slave to act as his authorized representative in any other kind of business ('institor'), say, as a waiter or a clerk, any person contracting with the institor as such may sue the master by the actio institoria and render him liable-as in the former case for the whole amount due under the contract.

II. Paterfamilias and Filiusfamilias.

A paterfamilias is liable on the contracts of his filiusfamilias in the same way in which a dominus is liable on the contracts of his slave. In some cases, therefore, his liability is restricted-for example, when he gives his son a peculium (profecticium, inf. § 88), or when the son concludes a contract benefiting his father-in others, it is unrestricted, for example, when the father authorizes his son to conclude some transaction, either in a general way or specifically. The actions by which a creditor can sue a paterfamilias on the contracts of the filiusfamilias are precisely the same as those by which he can sue a dominus on the contract of a slave.

III. Principal and Agent.

A principal is liable on all contracts made by his agent, i. e. by a free person whom the principal has chosen to represent him, provided only the agent, in concluding such contracts, discloses the fact of his agency, in other words, explicitly refers to the commission under which he is acting (sup. p. 146). The same actions by which a paterfamilias or dominus can be rendered liable for acts performed by the son or slave on the strength of a general authority bestowed upon them, are equally available where the person upon whom the authority is conferred is not subject to the power of another. Thus the actio exercitoria and institoria are equally applicable where a free person is appointed captain of a ship or manager of a business (institor). Wherever an authority—whether general or special-is conferred for any other purposes, wherever, that is to say, in the case of an unfree representative the actio quod jussu would lie, in all such

§ 75. cases, where the representative is a free person, the actio quasi institoria is available. If the contract, though concluded without authority, was nevertheless entered upon in the interest of another party (e. g. a contract made by a negotiorum gestor), the creditor with whom the contract was concluded may sue the other party by the actio utilis de in rem verso. The defendant, in such cases, is liable to the extent to which he was enriched by the transaction, in other words, to the extent to which he himself would be compellable to compensate the negotiorum gestor. IV. Nature of the Actions enumerated.

All the actions we have just enumerated are praetorian actions. It is a fixed rule of the civil law, to which there is no exception, that the liability for a contract shall attach in all cases to the contracting party himself, and not to the dominus, paterfamilias, or principal. A contract concluded by one person in the name of another, and operating as against that other, is a thing unknown to the civil law. The praetor, however, taking the liability of the contracting party— the only existing liability as far as the civil law was concerned-as his basis, granted the creditor the actions we have just discussed against the dominus, paterfamilias, and principal (dominus negotii) respectively. The praetorian action was superadded to the civil law action (non transfertur actio, sed adjicitur). In a clause annexed to the formula it was explained why the liability of the real party to the contract gave rise to an action against another person, who, according to the civil law, had no liability whatever. Hence modern writers usually call these praetorian actions 'actiones adjecticiae qualitatis.' An actio adjecticiae qualitatis, then, is an action by which a person is sued on a contract concluded by his representative, whether free or unfree. It is the action which would be available, in each particular case, against the contracting party himself, qualified however by the clause referred to (adjecticia qualitas), which clause indicates at the same time, the limits, if any, within which the liability of the defendant is enforceable. If the contract in question is, for example, a sale, the vendor may proceed against the person represented, i.e. the dominus, paterfamilias, &c., by the actio venditi de peculio, or the actio venditi de in rem verso, or the actio venditi institoria, &c., as the case may be.

Roman law never advanced beyond the point of view according to § 75. which the contract made by a representative imposes, on principle, a liability, not on the person represented, but on the representative himself who is the contracting party, the point of view, in other words, that the liability of the person represented, where it occurs, is in all cases a liability for the act of another, to wit, the representative. Modern systems of law have adopted the other principle, viz. that a contract concluded by an authorized agent, acting in the name of the person he represents, is directly binding on the principal, in other words, that the liability on which the principal is sued is not the liability of another, but his own. Instances of actions after the type of the Roman actiones adjecticiae qualitatis could only occur, therefore, in modern law, if a filiusfamilias were to receive a peculium profecticium from his father (actio de peculio), or if a person were to conclude an unauthorized contract in the interest of another (actio de in rem verso, utilis de in rem verso), i. e. in cases where the liability falls, and is intended to fall, in the first instance, on the contracting party himself, and where the principal's liability, if any, is still, as it was in Roman law, a liability for the act of another, viz. the actual party to the contract.

§ 36 I. de action. (4, 6): Sunt praeterea quaedam actiones, quibus non solidum, quod debetur nobis, persequimur, sed modo solidum consequimur, modo minus: ut ecce, si in peculium filii servive agamus. Nam, si non minus in peculio sit, quam persequimur, in solidum pater dominusve condemnatur: si verso minus inveniatur, eatenus condemnat judex, quatenus in peculio sit.

§ I I. quod cum eo (4, 7): Si igitur jussu domini cum servo negotium gestum erit, in solidum praetor adversus dominum. actionem pollicetur, scilicet quia, qui ita contrahit, fidem domini sequi videtur. § 2: Eadem ratione praetor duas alias in solidum actiones pollicetur, quarum altera exercitoria, altera institoria appellatur. Exercitoria tunc locum habet, cum quis servum suum magistrum navis praeposuerit, et quid cum eo ejus rei gratia, cui praepositus erit, contractum fuerit. Ideo autem exercitoria vocatur, quia exercitor appellatur is, ad quem cottidianus navis quaestus pertinet,