34 Si minus in intentione complexus fuerit actor, quam ad eum pertineret, veluti si, cum ei decem deberentur, quinque sibi dari oportere intenderit, aut cum totus fundus eius esset, partem dimidiam suam esse petierit, sine periculo agit: in reliquum enim nihilo minus iudex adversarium in eodem 35 iudicio condemnat ex constitutione divae memoriae Zenonis. Si quis aliud pro alio intenderit, nihil eum periclitari placet, sed in eodem iudicio cognita veritate errorem suum corrigere ei permittimus, veluti si is, qui hominem Stichum petere deberet, Erotem petierit, aut si quis ex testamento sibi dari oportere intenderit, quod ex stipulatu debetur.

36 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 vero minus inveniatur, eatenus condemnat iudex, quatenus in peculio sit. quemadmodum autem 37 peculium intellegi debeat, suo ordine proponemus. Item si de dote iudicio mulier agat, placet eatenus maritum condemnari debere, quatenus facere possit, id est quatenus facultates eius patiuntur. itaque si dotis quantitati concurrant facultates eius, in solidum damnatur: si minus, in tantum quantum

restitutio was granted only after a careful inquiry by the praetor, in which both laesio and iusta causa had to be proved by the applicant ; under Justinian the process was that of an ordinary action, the difference in the remedy being no longer formal, but material only.

§ 34. In minus petitio, under the formulary system, the plaintiff could sue for the residue in a subsequent action, though, if he attempted to do this in the same year of praetorship, he would be defeated by the exceptio litis dividuae, Gaius iv. 56, 122. Similarly, if, having several actions against the same defendant, he brought one or some before one iudex, but postponed the rest merely to annoy his opponent, he could within the same praetorship be met by the exceptio litis residuae, Gaius loc. cit. Zeno's enactment, which enabled the plaintiff to rectify his error in the course of his original action, is in Cod. 3. 10. 1. 3.

§ 35. Though the rule had been practically the same under the older system, it was necessary then to commence a fresh action with a corrected formula, Gaius iv. 55: 'primo vinculo tenentur, et mutare illis formulam non licet' Seneca, ep. 117. 4.

§ 36. For the actio de peculio see Tit. 7. 4 and notes inf.

§ 37. In the cases mentioned in this and the two next sections the

facere potest. propter retentionem quoque dotis repetitio minuitur: nam ob impensas in res dotales factas marito retentio concessa est, quia ipso iure necessariis sumptibus dos minuitur, sicut ex latioribus digestorum libris cognoscere liceat. Sed et si quis cum parente suo patronove agat, item si socius 38 cum socio iudicio societatis agat, non plus actor consequitur, quam adversarius eius facere potest. idem est, si quis ex donatione sua conveniatur. Compensationes quoque oppositae 39

:

defendant was said to have a beneficium competentiae, which was pleaded in defence as an exceptio, the creditor being bound to spare him enough of his property to live on, except in actions based on delict and fraud in condemnatione personarum, quae in id quod facere possunt damnantur, non totum quod habent extorquendum est, sed et ipsorum ratio habenda est, ne egeant' Dig. 50. 17. 173; cf. Dig. 42. I. 19. I. This privilege was accorded by the law on three grounds. On account of the peculiar personal relation between the parties it belonged to husband and wife against one another, to parents against children, patrons against freedmen (§ 38 inf.), and to the father-in-law if sued by the husband for a promised dos durante matrimonio. By reason of the nature of the obligation upon which the action was based it was possessed by the husband and his representatives when sued for the recovery of a dos, by socii inter se, and by the promisor of a gift (§ 38 inf.). On account of the personal position of the debtor it belonged to the insolvent who had made a cessio bonorum (§ 40 inf.), to soldiers against all creditors whatsoever, and to children who had been recently released from patria potestas in respect of debts contracted while alieni iuris, unless by the father's death they had come into substantial property. Finally, the beneficium might be acquired by contract, Dig. 2. 14. 49.

When sued for the recovery of the dos at the termination of the marriage by the wife, her heirs, or the paternal ascendant who had given it, or during the marriage on account of mismanagement or insolvency, the husband or his heirs or representatives could deduct impensae necessariae, by the sum of which the value of the dos was held to have tacitly (ipso iure) diminished. For impensae utiles as distinct from necessariae the husband could advance a claim only by actio mandati or negotiorum gestorum, Cod. 5. 13. 5. The old retentiones propter liberos, propter mores, etc., described by Ulpian, reg. 6. 9-17, were obsolete in the time of Justinian.

§ 38. If the societas was omnium bonorum, the partner against whom the actio pro socio was brought could plead beneficium competentiae as a matter of right; if unius rei, the praetor would grant it only after investigation: 'quod autem de sociis dictum est, ut et hi in quantum facere possint condemnentur, causa cognita se facturum praetor edicit' Dig. 42.

I. 22. I.

§ 39. See notes on § 30 supr.

plerumque efficiunt, ut minus quisque consequatur, quam ei debeatur: namque ex bono et aequo, habita ratione eius, quod invicem actorem ex eadem causa praestare oporteret, in reliquum eum cum quo actum est condemnaret, sicut iam 40 dictum est. Eum quoque, qui creditoribus suis bonis cessit,

si postea aliquid adquisierit, quod idoneum emolumentum habeat, ex integro in id quod facere potest creditores cum eo experiuntur: inhumanum enim erat spoliatum fortunis suis in solidum damnari.

VII.

QUOD CUM EO QUI IN ALIENA POTESTATE EST

NEGOTIUM GESTUM ESSE DICITUR.

Quia tamen superius mentionem habuimus de actione, quae in peculium filiorum familias servorumque agitur: opus est, ut de hac actione et de ceteris, quae eorundem nomine in parentes dominosve dari solent, diligentius admoneamus. et quia, sive cum servis negotium gestum sit sive cum his, qui in potestate parentis sunt, fere eadem iura servantur, ne verbosa fiat disputatio, dirigamus sermonem in personam servi dominique, idem intellecturi de liberis quoque et parentibus, quorum in potestate sunt. nam si quid in his proprie observetur, separatim ostendimus.

§ 40. For cessio bonorum see p. 377 supr.

Tit. VII. The rule of the civil law, already more than once alluded to, was that in no case could any liability attach to a man' upon the contracts or quasi-contracts made by those in his power, whether slaves or children: 'melior condicio nostra per servos fieri potest, deterior fieri non potest' Dig. 50. 17. 133; cf. Tit. 6. 10 supr. The manifest injustice of this in concrete cases led to a praetorian change, by which one with whom a slave contracted, and who previously had no remedy against any one, was enabled, under certain circumstances, to sue the master, or with whom a filiusfamilias contracted could sue the father in preference to the son, against whom of course he had always had his remedy. The extent to which the pater or dominus was thus made answerable varied according to the circumstances of the case. In some cases he became liable to the creditor in solidum, as where he had, either expressly or by implication, directed or subsequently adopted the contract; in others his obligation was not coextensive with that of the son, as where he knew nothing of the transaction, and had derived no personal

Si igitur iussu domini cum servo negotium gestum erit, in 1 solidum praetor adversus dominum actionem pollicetur, scilicet 2 quia qui ita contrahit fidem domini sequi videtur. 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 eius rei gratia cui praepositus erit contractum fuerit. ideo autem exercitoria vocatur, quia exercitor appellatur is, ad quem cottidianus navis quaestus pertinet. institoria tunc locum habet, cum quis tabernae forte aut cuilibet negotiationi servum praeposuerit et quid cum eo eius rei causa, cui praepositus erit, contractum fuerit. ideo autem institoria appellatur, quia qui negotiationibus prae

advantage from it. Of these variations in the superior's liability a full and precise account is given in this Title. The six praetorian actions by which he could be made to discharge the obligation, and which are here discussed, are called by the commentators actiones adiectitiae qualitatis (after Dig. 14. 1. 5. 1, cited in Excursus IX supr.; cf. Dig. 45. 1. 91. 5 ‘filiusfamilias, qui iussu patris promisit. . . . quasi accessionem intellegens eum qui iubeat '), because they are alternative to the remedy against the actual contractor, or give the creditor a remedy where he had none at all by the civil law. The advantage of the change was not all for the creditor, for it enabled men to freely employ their children and slaves as agents in bilateral contracts, and so largely facilitated the business of every day life; the wider benefit of two of these actions in the same direction has already been explained in the Excursus referred to.

The reference in the first line of the text is to Tit. 6. 8. 10 and 36 supr. Slaves and children in power do not stand on precisely the same footing in this matter (fere eadem iura servantur); see § 7 inf. and Bk. iii. 19. 6 supr.

§ 1. The actio quod iussu lay whether the iussus was given to the slave (Dig. 14. 5. 2; 15. 4. 1. 2) or to the third party with whom he contracted, Dig. 15. 4. 1. 1, Cod. 4. 26. 13, but only where the contract was made on behalf or in the interest of the dominus or pater: 'quid si dominus fide iusserit pro servo? ait Marcellus, non teneri quod iussu, quasi extraneus intervenit' Dig. 15. 4. 1. 5; this, however, is disputed, some maintaining exactly the opposite view, and others holding that it is immaterial whether the slave or son makes the contract for himself or for the superior. If the contract was in reality the master's own, and he used the slave merely as an instrument, he could be sued by direct action upon it, as the only true contractor, Dig. ib. 5. pr. Subsequent ratification had the same effect as a precedent iussus: 'si ratum habuerit quis quod servus eius gesserit vel filius, quod iussu actio in eos datur' ib. 1. 6.

§ 2. The two actions described in this section were due to the in

ponuntur institores vocantur. Istas tamen duas actiones praetor reddit et si liberum quis hominem aut alienum servum navi aut tabernae aut cuilibet negotiationi praeposuerit, scilicet 3 quia eadem aequitatis ratio etiam eo casu interveniebat. Introduxit et aliam actionem praetor, quae tributoria vocatur. namque si servus in peculiari merce sciente domino negotietur et quid cum eo eius rei causa contractum erit, ita praetor ius dicit, ut, quidquid in his mercibus erit quodque inde receptum erit, id inter dominum, si quid ei debebitur, et ceteros creditores pro rata portione distribuatur. et quia ipsi domino distributionem permittit, si quis ex creditoribus queratur, quasi minus ei tributum sit, quam oportuerit, hanc ei ac

sufficiency of quod iussu, which was inapplicable without a specific authorization, or where the agent was an extranea persona. The appointment of filiifamilias or slaves, especially the latter, to manage some branch of trade or business (for examples see Mr. Poste's note on Gaius iv. 71), or to command a merchant vessel was extremely common at Rome, and unless the principal had been liable on contracts made by such agents within the scope of their commission, more particularly in the case of slaves, business would have been much hampered: 'cum interdum ignari, cuius sint condicionis et quales, cum magistris propter navigandi necessitatem contrahamus' Dig. 14. I. I. pr. It would seem that both of these actions were originally designed to render only masters and fathers liable, and were subsequently extended to cases where the agent was an extranea persona; Gaius iv. 71.

§ 3. The actio tributoria could come into application only where the slave (or filiusfamilias) who traded with a merx peculiaris sciente domino (or patre) found himself embarrassed and unable to satisfy his trade creditors in full; here the latter could demand a distribution among themselves of that portion of the peculium which had been embarked in the business in the ratio of their several claims. The division was made by the dominus, who was treated as an ordinary creditor, and therefore could not deduct debts owing to himself in full, though he had the privilege of paying all his own claims pro rata, whether arising out of the business or not, Dig. 14. 4. 5. 6 and 7; the actio tributoria lay against the dominus at the suit of any creditor who thought himself unfairly treated. If the slave had his peculium engaged in different businesses, they were kept apart, the creditors in each being entitled to satisfaction only out of the capital embarked in that one upon which these debts arose, Dig. ib. 5. 15. 16. Any creditor who got his debts paid in full while the solvency of the affair was unsuspected had to bind himself to refund in case any others should present their claims: 'non enim haec actio, sicut de peculio, occupantis meliorem condicionem facit, sed aequalem condicionem quandoque agentium' Dig. ib. 6.