CASE 128: Slave Women and Daughters
D. 15.1.27 pr. (Gaius libro nono ad edictum provinciale)
Et ancillarum nomine et filiarum familias in peculio actio datur: maxime si qua sarcinatrix aut textrix erit aut aliquod artificium vulgare exerceat, datur propter eam actio.
depositi quoque et commodati actionem dandam earum nomine Iulianus ait: sed et tributoriam actionem, si peculiari merce sciente patre dominove negotientur, dandam esse. longe magis non dubitatur, et si in rem versum est, quod iussu patris dominive contractum sit.(Gaius in the ninth book on the Provincial Edict)
An action on the peculium lies regarding slave women and daughters-in-power. Especially if a woman acts as a seamstress or weaver or practices some common trade, an action is given for this reason.
Julian holds that an action should lie in respect of these women also for deposit and loan-for-use, as well as the actio tributoria if they conduct business with the property in the peculium with the knowledge of their pater (familias) or owner. This is particularly true if something has been turned to his benefit or if a contract was made on the father’s or owner’s order.
1. Nature of the Trade. The contracts of a daughter-in-power, like those of slaves of both sexes, were invalid at law (see Case 118) but were enforceable against a paterfamilias through the peculium. What does Gaius mean by specifying certain trades as “especially” relevant to women? If the slave woman or daughter-in-power does not practice such a trade, does the action fail? Suppose she works as a prostitute or procuress.
2. Julian’s Extension.
The contracts of deposit and loan-for-use are both gratuitous contracts, meaning that no money changes hands. In the former, one person receives property from another and promises to safeguard it and to return it on demand; in the latter, one person lends property to another for that persons use, with the borrower similarly promising return on demand. Why does Julian regard these contracts as ones that are suitable for enforcement by means of the womans peculium? Does he seem more reluctant to permit liability when a woman transacts business with her peculium property? Why is it “particularly true” in the case where the pater ordered a transaction or took benefit from it (see Cases 121-123)? On the actio tributoria, see the Discussion on Case 137; on the general legal status of women, see Chapter VB.1-2.D. 41.2.3.12 (Paulus libro quinquagensimo quarto ad edictum)
Ceterum animo nostro, corpore etiam alieno possidemus, sicut diximus per colonum et servum, nec movere nos debet, quod quasdam etiam ignorantes possidemus, id est quas servi peculiariter paraverunt: nam videmur eas eorundem et animo et corpore possidere.
D. 41.2.44.1 (Papinianus libro vicensimo tertio Quaestionum)
Quaesitum est, cur ex peculii causa per servum ignorantibus possessio quaereretur. dixi utilitatis causa iure singulari receptum, ne cogerentur domini per momenta species et causas peculiorum inquirere. nec tamen eo pertinere speciem istam, ut animo videatur adquiri possessio: nam si non ex causa peculiari quaeratur aliquid, scientiam quidem domini esse necessariam, sed corpore servi quaeri possessionem.
(Paul in the fifty-fourth book on the Edict)
But we take possession also by our own intent but through another’s physical act, as for instance through a tenant farmer and a slave. Nor should it influence us that we possess some property even though unaware of it, that is, what slaves have acquired through a peculium; for we are held to possess this property through their intent and physical act.
(Papinian in the twenty-third book of Questions of Law)
Question has arisen as to why, on the basis of a peculium, possession is acquired through a slave for those unaware of it. I answered that this exceptional rule was introduced for the common good, so that owners not be compelled constantly to examine the content and circumstances of peculia. Nor is this an example of our being held to acquire possession by intent (alone). For if something is not acquired on the basis of the peculium, the owner’s knowledge is required but possession is taken through the slave’s physical act.
1. Different Explanations. Paul (see also Case 116) and Papinian agree that, although a slave or child-in-power ordinarily can acquire property for a pater only if he knows of their act, his knowledge is not required when they take possession through their peculia. The two jurists disagree, however, on how this rule should be explained. In Case 116, Paul argues that the rule results from the legal nature of a peculium: children and slaves “are understood to possess by our will since we allowed them to have a peculium.” What does this mean? Is Paul suggesting that the peculium includes a general authorization to acquire property in the pater’s name, and that a general authorization removes the need for knowledge of individual acquisitions? Would he be willing to extend this legal theory to other persons not subject to another's power, such as a procurator (see Case 115)? Should Papinian's emphasis on the peculiar nature of “this exceptional rule” be interpreted as indicating that he is cautious about such extensions? The underlying problem here is the extent to which the jurists were willing to encourage development of commercial relationships outside the familia. Why should it matter exactly how a legal rule is explained?
class=31>