CASE 119: As Though He Were a Pater Familias

D. 44.7.39 (Gaius libro tertio ad edictum provinciale)

Filius familias ex omnibus causis tamquam pater familias obligatur et ob id agi cum eo tamquam cum patre familias potest.

(Gaius in the third book on the Provincial Edict)

A son-in-power is bound in all matters as though he were a pater familias, and for this reason an action can be brought against him as though he were a pater familias.

1.      A Legal Fiction.

2.      Suing a Son-in-Power. A son is liable for his contracts. Is the father also li­able? Ulpian, D. 15.1.44: “A person who contracts with a son-in-power has two debtors, the son for the entire amount and the father for up to the value of the (son's) peculium." (See the following Case.) That is, both the father and the son can be sued separately on the same contractual obligation, though the plaintiff's recovery would ultimately be limited to the value of the obligation. But this brings up the central problem with the son-in-power's liability: if the son is sued for the entire amount (in solidum), he has no assets with which to satisfy a judgment, and so the plaintiff must rely on the fathers generosity (which may, in fact, often have been forthcoming). Otherwise, the plaintiff has to wait until the son comes into his inheritance.

3.      The SC Macedonianum. This decree of the Senate (senatusconsultum, SC), which dates to the reign of Vespasian (A.D. 69-79), displays something of the tensions in the Roman legal regime. According to the decree's preamble (D. 14.6.1 pr.), Macedo, an upper-class son-in-power, borrowed heavily from moneylenders, who pressed him for repayment; he then murdered his father in order to obtain his inheritance. The Senate, seeking to ease such tensions, decreed that a person who lent money to a son-in-power could not sue on the debt even after the death of the paterfamilias. How effective is this likely to have been as a remedy? What problems would you anticipate? The jurists tend to interpret the decree fairly narrowly. For an example of the decree's ap­plication, see Case 132.

D. 5.1.57 (Ulpianus libro quadragensimo primo ad Sabinum)

Tam ex contractibus quam ex delictis in filium familias competit actio: sed mortuo filio post litis contestationem transfertur iudicium in patrem dumtaxat de peculio et quod in rem eius versum est. certe si quasi procurator alicuius filius familias iudi­cium acceperit, mortuo eo in eum quem defenderit trans iudicati datur.

(Ulpian in the forty-first book on Sabinus)

An action can be brought against a son-in-power from both contracts and delicts. But if a son-in-power dies after the joinder of issue (litis contestatio), the trial is transferred to his pater (familias), with liability limited to the amount of the pe­culium and to the benefit he derived from this.

Obviously, if a son-in-power accepted a lawsuit as someone’s legal represen­tative (procurator), upon his death the person whom he defended is subject to a transfer of the trial or an action on the judgment.

1.      Limits on the Father’s Liability.

2.      Procurator. The second portion of the Case deals with an exception: the son has undertaken to represent someone in court (as a procurator for the lawsuit) and so has assumed responsibility for seeing the lawsuit through to its end and paying any judgment. Typically, he would protect himself against an ad­verse result in or out of court by making an agreement for indemnification with the principal. Does the jurist assume such an agreement was made? What would be the outcome if the son-in-power had not died? That is, would his pater familias assume responsibility for any liability he had incurred?

Gaius, Institutiones 4.70

Inprimis itaque si iussu patris dominive negotium gestum erit, in solidum praetor actionem in patrem dominumve comparavit, et recte, quia qui ita negotium gerit, magis patris dominive quam filii servive fidem sequitur.

D.

Si iussu domini ancillae vel iussu patris filiae creditum sit, danda est in eos quod iussu actio.

(Gaius in the fourth book of his Institutes)

First of all, therefore, if business is conducted on the order (iussum) of a father or master, the praetor provides an action against the father or master for the entire amount, and rightly so. For one who conducts business in this manner relies more on the credit (style='font-style:italic'>fides) of the father or master than on that of the son or slave.

(Paul in the thirtieth book on the Edict)

If credit is extended to a slave woman on the order (iussum) of her master, or to a daughter on the order of her father, the action on the order (actio quod iussu) should be granted against them (the master or father).

1.      What Is an Order? To circumvent the legal regime described in the previous three Cases, a person who enters into a contract or other transaction with a son­in-power (or a slave) must have a basis for establishing the liability of the pater. Roman law provides several such bases. We look first at the situation in which the transaction occurred because the pater gave an “order” (iussum) for it to occur. Why should this be an exception? The order can be entirely informal and very general (e.g., Ulpian, D. 15.4.1.1: “Do whatever business you want with my slave Stichus, at my risk”); but it can also be more restricted in its terms, and in any case may be revoked at any time prior to an actual transaction (ibid. 2). More important is a broader issue: can this action be brought if the order is given just to the son or slave, or just to the other party, or does it make no difference? Does Gaius’s reference to reliance on the fathers credit suggest an answer? Is the fathers “order” really better described as an authorization?

2.      Ratification.

3.      Orders and Agency. In the second text, Paul apparently presumes that the slave woman or the daughter would not herself be liable (see Case 118). If a son had concluded the transaction on his fathers order, would he be liable, separately from his father? (The answer is yes; why?)