CASE 125: The Nature of the Fund
lustinianus, Institutiones 4.6.10
Actiones autem de peculio ideo adversus patrem dominumve comparavit Praetor, quia licet ex contractu filiorum servorumve ipso iure non teneantur, aequum tamen esset peculio tenus, quod veluti patrimonium est filiorum filiarumque, item servorum, condemnari eos.
( Justinian in the fourth book of his Institutes')
The praetor provided actions on the peculium against a father or an owner (of a slave) because, although by (civil) law itself they are not liable on the contract of sons or slaves, nonetheless it is fair that they be condemned up to the value of the peculium, which is like the property (patrimonium) of sons and daughters or of slaves.
1. The Institutes of Justinian.
This elementary textbook of Roman law was published in Constantinople in A.D. 533 under the general authority (and putative authorship) of the Emperor Justinian, who was also responsible for the compilation of the Digest and the Codex, our two most important sources for classical Roman law. Justinian’s Institutes is based heavily on the Institutes of the classical jurist Gaius, which was written nearly four centuries earlier.2. The Praetor’s Edict. As Justinian suggests, the Roman praetor probably just recognized a pre-existing social institution. Peculia are well attested at Rome by the early second century B.C., and indeed such funds are characteristic of virtually all known slaveholding systems. The praetor permitted third parties who had entered into dealings with the holder of a peculium to sue the person responsible for setting it up but limited his liability “to the value of the peculium.” The same action also established an exception to this limited liability where the contents of the peculium had been “turned to the benefit” of the paterfamilias (Cases 122-123).
Case 135 illustrates how the two causes of action worked together.3. Explaining the Liability. Why does Justinian think that it is “fair” that masters or fathers have limited liability on peculium transactions? In this context, how is it relevant that a peculium can be described as the constructive “property” of children or slaves, even though they cannot own anything in the legal sense? The jurists also occasionally seem to regard peculia as belonging to their holders; a good example is Florentinus, D. 15.1.39, who defines the peculium as consisting of “what a person has earned by his own thrift or has been given by a third party in return for services, plus that which he (the owner) wished his slave to have as his own property (proprium patrimonium).”
Some legal rules follow this logic; for example, if a slave is freed by a living master, the slave keeps his or her peculium unless the master expressly states otherwise (Papinian, Frag. Vat. 261). Within Roman law, what prevented further extensions of the idea?