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If the defendant was not only a debtor but a creditor of the plaintiff, if he had something owing to him from the plaintiff as well as owed something to him, it was evidently the most convenient way that he should be allowed to balance one debt against the other (compensatio, pensare cum), and only account for the surplus, supposing a surplus was still due from him.

Under the prætorian system, in all actions bona fidei, the judge, who could take all the circumstances of the case into his consideration, set off, as a matter of course, any debt due to the defendant from the plaintiff in consequence of the same set of circumstances (ex eadem causa) by which the debt on which the action was brought became due. (GAI. iv. 61.) In one case, however, viz. that of a banker (argentarius), a much stricter system prevailed. The argentarius could only sue a customer for the sum due to him after allowing for what he owed to the customer. If he sued for more, it was a plus-petitio. (GAI. iv. 64.) The bonorum emptor, or purchaser of an insolvent's estate, had also to make a deduction of what was due to the defendant from the insolvent when he sued a debtor of the insolvent. (GAI. iv. 65.) Between this deductio and the compensatio required from the argentarius there were some differences: compensatio was only of things of the same kind, only of debts due, and had to be inserted in the intentio; whereas the deductio was of things of different kinds, of debts not due as well as due, and being inserted in the condemnatio did not expose the plaintiff to the risk of plus-petitio. (GAI. iv. 66-68.) In the actions stricti juris, which arose from unilateral, not bilateral contracts, there could be no reciprocal rights, as in a bilateral contract, giving the defendant a claim ex eadem causa. But the rule grew up and was confirmed by a rescript of Marcus Aurelius (see paragr. 31), dolo facit qui petit quod redditurus est. (D. xliv. 4. 8.) If the plaintiff claimed a sum which directly he had obtained it he would have to pay back to the defendant, be was guilty of a dolus; he had acted as if he had a right to the money, whereas he had not. Accordingly the defendant could avail himself of the exception of dolus. What the effect of this exception was is not certain. Some think that if the plaintiff was found to owe the defendant anything of a similar kind, although ex dispari causa, which he had not allowed for in stating the amount of his claim, he entirely failed in his action. He did not recover any surplus which might be really due to him. The exception stopped the action altogether. The formula ran: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat condemna; si non paret, absolve. Dolus malus did appear, and all the judex could do was to absolve the defendant. (PAUL. Sent. ii. 5. 3.) Others suppose that the defendant had to pay any balance found to be due by him. (See DEMANGEAT, 2. 629.)

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But we must not suppose that compensatio was originally looked on as a means of extinguishing an obligation. In theory of law, each debt subsisted separately. Certainly in the case of

the argentarius it is hard to draw any line between an extinction of obligation and the way in which debts due to customers were necessarily deducted; but it was necessary that the debts due to and from the argentarius, although ex dispari causa, should be in eadem re, that is, should both consist, for instance, of money or wine. This was an exceptional case, and, generally speaking, the two debts clearly subsisted together, although, when, by submitting the facts to the knowledge of the judex in the case of actions bona fidei, and by the exceptio doli in the action of law, the set-off was claimed, its effects were retroactive, and may be said to have commenced from the moment when the two debts first began to exist together. (C. iv. 31. 4.)

Under Justinian the debts were held to operate as mutually extinguishing each other ipso jure. When the parties came before the judex, he ascertained their respective claims on each other, and if there was, on the whole, a balance in favour of the plaintiff, awarded the amount to him. All the old distinctions were done away, and it no longer made any difference whether the two debts arose from the same transaction, or whether things of the same kind were payable (the words ex eadem causa in the text are, therefore, under Justinian's legislation, inaccurate). But Justinian made it requisite that the defendant's claim should be clearly well founded, and that the amount should be at once ascertainable, and not need further inquiry to determine it (causa liquida) (see C. iv. 31. 14. 1), and he would not allow any set-off to an actio depositi. (See paragr. 30.)

40. 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.

40. So, when a debtor who has made a cession of his goods to his creditors subsequently acquires something of an advantageous character, the creditors may compel him by a fresh action to pay as much as he is able, but not more; for it would be inhuman to condemn a man to pay the full amount who has already been deprived of all his property.

D. xlii. 3, 4. 6.

TIT. VII. QUOD CUM EO, QUI IN ALIENA POTESTATE EST, NEGOTIUM GESTUM ESSE DICITUR.

Quia tamen superius mentionem habuimus de actione, quæ in peculium filiorumfamilias servorumque agitur: opus est, ut de hac actione et de ceteris, quæ eorundem nomine in parentes dominosve dari solent, diligentius admoneamus. Et quia, sive cum servis negotium gestum sit sive cum his, qui in potestate pa

We have already spoken of the action which may be brought relative to the peculium of filiifamilias or of slaves. And we must now speak of it more fully, and also of all other actions which may be brought against ascendants and masters as representing children and slaves. But, as the law is almost the same, whether the dealing

rentis sunt, fere eadem jura 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 ostendemus.

is with a slave, or with one under the power of an ascendant, to avoid prolixity, we will treat only of slaves and their masters, leaving what we say of them to be understood as applicable also to children and the ascendants, under whose power they are. For anything which is peculiar to children and ascendants we will point out separately. GAI. iv. 69.

By the strict rule of the civil law, the parent or master could not be bound or prejudiced by any act of a child or slave. But a sense of equity gradually broke in upon this rule, and, in certain cases, the contracts and delicts of persons alieni juris came to affect those in whose power these persons were.

This Title treats of the contracts of persons alieni juris, which were considered to concern the master or parent (1) whenever they were made by his order, and (2) whenever he had profited by them.

1. Si igitur jussu domini cum servo negotium gestum erit, in solidum prætor adversus dominum actionem pollicetur, scilicet quia qui ita contrahit, fidem domini sequi videtur.

1. Thus, then, if any one deals with a slave acting under the command of his master, the prætor will give an action against the master for the whole of what is due under the contract; inasmuch as, in this case, the person who contracts does so as relying on the faith of the master.

GAL. iv. 70.

The jussus domini extended to cases where the master subsequently ratified the contract, the ratification being equivalent to a mandate. (D. xv. 4. 1. 6.)

If the slave had been merely the instrument of his master, if, for instance, the master arranged that money borrowed for himself should be told out to his slave, the prætor would give a condictio, not an action quod jussu. (D. xv. 4, 5. pr.)

2. Eadem ratione prætor duas alias in solidum actiones pollicetur, quarum altera exercitoria, altera institoria appellatur. Exercitoria tunc locum habet, cum quis servum suum magistrum navis præposuerit et quid cum eo ejus rei gratia, cui præpositus erit, contractum fuerit. Ideo autem exercitoria vocatur, quia exercitor appellatur is, ad quem cottidianus navis quæstus pertinet. Institoria tunc locum habet, cum quis tabernæ forte aut cuilibet negotiationi servum præposuerit et quid cum eo ejus rei causa, cui præpositus erit, contractum fuerit. Ideo autem institoria appellatur, quia qui

2. For the same reason the prætor also gives two other actions for the whole sum due, the one called the actio exercitoria, the other the actio institoria. The action exercitoria may be brought when a master has made his slave commander of a vessel, and a contract has been entered into with the slave relating to the business he has been appointed to manage. This action is named exercitoria, because he, to whom the daily profits of a ship belong, is said to be an exercitor. The action institoria may be brought when a master has intrusted his slave with the management of a shop or any particular business, and a contract has

negotiationibus præponuntur, institores vocantur. Istas tamen duas actiones prætor reddit et si liberum quis hominem aut alienum servum navi aut tabernæ aut cuilibet negotiationi præposuerit, scilicet quia eadem æquitatis ratio etiam eo casu interveniebat.

Liberum hominem.

been made with the slave relating to the business he has been appointed to manage. This action is called institoria, because persons to whom the management of a business is intrusted are called institores. The prætor likewise permits these two actions to be brought if any one commits to a free person, or to the slave of another, the management of a ship, a warehouse, or any particular affair, as the principle of equity is the same.

GAI. iv. 71.

We have seen at how late a period of Roman law it was that one freeman could act for another. (See Bk. iii. Tit. 26.) It was, in fact, by extending these actions institoria and exercitoria, so as to embrace the case of a mandatary, that the prætor made the principal directly responsible, and thus enabled him to be really represented by the agent.

3. Introduxit et aliam actionem 3. The prætor has also introduced prætor, quae tributoria vocatur. Namque si servus in peculiari merce, sciente domino, negotietur et quid cum eo ejus rei causa contractum erit, ita prætor jus dicit, ut, quidquid in his mercibus erit quodque inde receptum erit, id inter dominum, si quid ei debebitur, et ceteros creditores prorata portione distribuatur. Et quia ipsi domino distributionem permittit, si quis ex creditoribus queratur, quasi minus ei tributum sit, quam oportuerit, hanc ei actionem accommodat, quæ tributoria appellatur.

another action called tributoria; for, if a slave with the knowledge of his master trades with the merchandise belonging to his peculium, and contracts are made with him in the course of business, the prætor ordains that all the merchandise or money arising from his traffic shall be distributed between the master, if anything is due to him, and the rest of the creditors of the slave in proportion to their claims. And as the master himself is permitted to make the distribution, if any creditor complains that he has received too small a share, the prætor will permit him to bring the actio tributoria.

GAI. iv. 72; D. xiv. 4. 1 ; D. xiv. 4, 5. 11; D. xiv. 4. 7. 1, 2.

The actio tributoria was only given against the master when there was fraud (dolus) in the distribution; but there would be dolus directly the master had notice that a creditor had received nothing, or less than his share. (D. xiv. 4. 7. 2, 3.)

4. Præterea introducta est actio de peculio deque eo, quod in rem domini versum erit, ut, quamvis sine voluntate domini negotium gestum erit, tamen sive quid in rem ejus versum fuerit, id totum præstare debeat, sive quid non sit in rem ejus versum, id eatenus præstare debeat, quatenus peculium patitur. In rem autem domini versum intellegitur, quidquid necessario in rem ejus impenderit servus, veluti

4. The prætor has also introduced an action relating at once to a pecuiium, and to whatever has been applied to the profit of the master; for although the slave contracts without the consent of his master, yet the master ought, if he has profited by anything, to pay all up to the amount of his profit; if he has not received any profit, he ought to pay up to the amount of the slave's peculium. Everything is understod as profiting the master which is la

si mutuatus pecuniam creditoribus ejus solverit, aut ædificia ruentia fulserit, aut familiæ frumentum emerit, vel etiam fundum aut quamlibet aliam rem necessariam mercatus erit. Itaque si ex decem utputa aureis, quos servus tuus a Titio mutuos accepit, creditori tuo quinque aureos solverit, reliquos vero quinque quolibet modo consumpserit, pro quinque quidem in solidum damnari debes, pro ceteris vero quinque eatenus, quatenus in peculio sit: ex quo scilicet apparet, si toti decem aurei in rem tuam versi fuerint, totos decem aureos Titium consequi posse. Licet enim una est actio, qua de peculio deque eo, quod in rem domini versum sit, agitur, tamen duas habet condemnationes. Itaque judex apud quem ea actione agitur, ante dispicere solet, an in rem domini versum sit, nec aliter ad peculii æstimationem transit, quam si aut nihil in rem domini versum intellegatur aut non totum. Cum autem quæritur, quantum in peculio sit, ante deducitur, quidquid servus domino quive in potestate ejus sit, debet, et quod superest, id solum peculium intellegitur. Aliquando tamen id, quod ei debet servus, qui in potestate domini sit, non deducitur ex peculio, veluti si is in hujus ipsius peculio sit. Quod eo pertinet, ut, si quid vicario suo servus debeat, id ex peculio ejus non deducatur.

out in his necessary expenses by the slave; as, for instance, if the slave borrows money with which he pays the debts of his master, repairs his buildings in danger of falling, purchases wheat for the establishment, or land for his master, or any other necessary thing. Thus if your slave borrows ten aurei of Titius, pays five to one of your creditors, and spends five, you ought to be condemned to pay the whole of the first five, and so much of the other five as the slave's peculium would cover; whence it will appear, that if all the ten aurei had been spent to your profit, Titius might have recovered the whole from you; for although it is the same action in which the plaintiff seeks to obtain the peculium, and the amount by which the master has profited, yet this action contains two condemnations. The judge before whom the action is brought, first inquires whether the master has received any profit; and then, when he has ascertained that no part or not the whole of the sum due from the slave has been expended to the profit of the master, he proceeds to estimate the value of the peculium, in estimating which, a deduction is first made of what the slave owes his master, or any one under the power of his master, and the remainder only is considered as the peculium. But it sometimes happens, that what a slave owes to a person in the power of his master is not deducted, as when he owes something to a slave who forms part of his own peculium: that is to say, if a slave is indebted to his vicarius, the sum due cannot be deducted from the peculium.

GAI. iv. 73, 74; D. xiv. 5. 1; D. xv. 3. 3. 1 ; D. xv. 1. 17.

This action is generally called de peculio et in rem verso, because, in most cases, the judge had to take notice of both the profit derived by the master and of the amount of the slave's peculium. But in some cases, as, for instance, where the slave had no peculium, the action could be brought de in rem verso only, and so it would naturally be, if it could be shown that the master had reaped all the benefit of the contract. (See end of next paragraph.)

Si quid vicario. The vicarii formed part of the peculium of the ordinary slave; anything, therefore, deducted from the peculium, as owed to the vicarii, would, if paid, again enter into the peculium as the property of the ordinary slave. It was, therefore, useless to pay it.

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