CASE 126: The Contents of a Peculium

D. 15.1.7.4-7 (Ulpianus libro vicensimo nono ad edictum)

(4)     In peculio autem res esse possunt omnes et mobiles et soli: vicarios quoque in peculium potest habere et vicariorum peculium: hoc amplius et nomina debitorum.

(5)     Sed et si quid furti actione servo deberetur vel alia actione, in peculium com­putabitur: hereditas quoque et legatum, ut Labeo ait.

(Ulpian in the twenty-ninth book on the Edict)

(4)     A peculium can contain all sorts of property, both movables and land. A pe­culium can also contain “underslaves” (vicarii) and the peculium of underslaves, as well as accounts receivable from debtors. (5) But also if anything is owed to the slave from the action on theft or some other action, this is assigned to the pe­culium; and likewise an inheritance or legacy, as Labeo says.

(6)     But the peculium will also have what the master owes to it, for example, if he (a slave) spends to the master’s benefit and the master wished to remain his debtor, or if the master sues his (the slave’s) debtor.

(7)     But also if a fellow slave owes something to him, this belongs to the pe­culium if he (the fellow slave) has a peculium or to the extent he will have one.

1.      The Assets of a Peculium. In relation to a slave (although the Case would also apply to a child-in-power), Ulpian lists the assets of a typical large peculium: movable and immovable property, including on occasion slaves who might have peculia of their own (see below); debts owed to the peculium by third parties, including not only transactional debts but also judicial judgments and bequests; and debts owed to the peculium by the master as well as by fel­low slaves who have peculia of their own. The total value of the assets may usually not be calculated unless the master is sued on a debt owed by the slave in connection with the peculium. Then the master's liability is limited to the value of the peculium; but that value is calculated only after making im­portant deductions that are discussed in Case 135. The peculium is therefore not an object in itself (e.g., it cannot be claimed by a lawsuit over ownership: Julian, D. 6.1.56) but rather only an amalgam of tangible and intangible property. The jurists often think of it primarily as an accounting entity; thus, a late Republican jurist (Tubero, cited by Celsus and Ulpian, D. 15.1.5.4) de­scribes it as “what a slave, with his masters permission, holds separate from the masters accounts, with debts to the master deducted.” How close is this to a modern corporation? See also Case 127 on forming a peculium.

2.      Ownership of the Peculium.

3.      Underslaves (Vicarii). One of the most startling aspects of Roman slavery is that the peculium of a privileged slave often contained other slaves, called vic­arii (loosely, “underslaves”), to whom the principal slave (ordinarius) might grant sub-peculia of their own (see Celsus, D. 15.1.6). These vicarii could then enter debt relationships not only with third parties but also with their master, their principal slave, other vicarii, and other slaves held by the master. The re­sulting relationships were potentially very complex, of course. Third parties who entered into contracts with a vicarius could sue the master on the basis of the sub-peculium of the vicarius (masters liability limited to its value) and, if they failed to get full satisfaction, next on the basis of the peculium of the ordi­narius (masters liability limited to the value of this peculium) (Ulpian, D.

4.      Slaves and Sons. In several of the Cases in this section, the emphasis is on slaves rather than on sons. Does this suggest that Roman fathers frequently looked to their slaves rather than their sons for entrepreneurship? If so, what impact might this have had on the development of free entrepreneurship at Rome? One small piece of evidence in this matter is that a son was allowed to entrust management of his peculium to a procurator, who presumably might handle it more professionally (Ulpian, D. 3.3.33 pr.).

D. 15.1.4 pr. (Pomponius libro septimo ad Sabinum)

Peculii est non id, cuius servus seorsum a domino rationem habuerit, sed quid dominus ipse separaverit suam a servi rationem discernens: nam cum servi pe­culium totum adimere vel augere vel minuere dominus possit, animadvertendum est non quid servus, sed quid dominus constituendi servilis peculii gratia fecerit.

D. 15.1.7.2-3 (Ulpianus libro vicensimo nono ad edictum)

(2)     Scire autem non utique singulas res debet, sed pachumeresteron, et in hanc sen­tentiam Pomponius inclinat. (3) Pupillum autem tam filium quam servum pe­culium habere posse Pedius libro quinto decimo scribit, cum in hoc, inquit, totum ex domini constitutione pendeat. ergo et si furere coeperit servus vel filius, retineb­unt peculium.

(Pomponius in the seventh book on Sabinus)

Property in a peculium is not what a slave keeps in a separate account from the master but what the master himself detaches by dividing his account from the slave’s. For since the master is able to remove a peculium entirely, or increase or diminish it, we must observe not what the slave (does) but what his master does by way of establishing the slave’s peculium.

(Ulpian in the twenty-ninth book on the Edict)

(2) But he (the master) should be aware not of each and every object (in the pe­culium) but of it en bloc, a view that Pomponius tended to favor.

1.      The Father’s Will. The issue in this Case is important: to what extent is the initial existence of a peculium (as well as its continuation and eventual disso­lution) dependent on the will of the pater familias? Many jurists, like Pompo­nius and Ulpian in this Case, appear to regard this dependence as absolute. But problems arose. For instance, what if the pater went insane? The peculium simply continued if the pater granted it before going insane (Ulpian, D. 15.1.7.1). But could it arise thereafter? Obviously, a madman cannot grant it himself, but his legal guardian could do so (see Ulpian, D. 15.1.3.4, 7.1; on the curator, see Chapter VA.3). Both passages give the same justification: “the madmans slave can have a peculium, not in the sense that he was permitted to have one, but that he was not forbidden to have one.” Is this just a common- sensical solution to the problem (as with marriage by the children of the in­sane, Case 101), or is a deeper issue at stake? Compare Ulpian, D. 15.1.24 (the peculium of a madman's child).

2.      style='font-weight:bold'>How Formal? If the pater must consent, does he have to do so formally? No special ceremony is known, though Paul (D. 15.1.8) says that the paters in­tent alone is not enough; at least in the case of tangible property, he must ei­ther hand over property to the holder of the peculium or, if the holder already has it, treat it as handed over. What seems to be crucial is that the pater con­fers on the holder actual day-to-day control of the property; and this initial conferral is in fact apparently enough, in itself, to create a peculium.

3.      A Test Case: Clothing. A pater gives his son clothing to wear. Use the princi­ples of this Case to determine whether the clothing is in the son's peculium. See Pomponius, D. 15.1.25 (of a slave; only if given for his permanent use, but not if only for special occasions such as processions; does this seem right?).

4.      The Profits of Crime. Pomponius, D. 15.1.4.2: “It follows that a peculium contains, not what a slave has without his master's knowledge, but (what he has) with his master's assent. Otherwise, the peculium will also contain what a slave stole from his master; but this is untrue.” Does this result in fact follow from more general principles? The peculium also did not contain property ob­tained illegally from third parties (see Javolenus, D. 41.2.24).

5.      The Holder's Will. As Ulpian stresses, it is not essential that the holder of a peculium enjoy full legal capacity; even a minor or a lunatic can have a pe­culium. But there's a catch, of course: by nature, minors and lunatics are in­capable of becoming legally obligated to third parties and so cannot obligate the pater.