CASE 130: Free Administration

D. 15.1.46 (Paulus libro sexagensimo ad edictum)

Qui peculii administrationem concedit, videtur permittere generaliter, quod et spe­cialiter permissurus est.

D.

Si servus mihi vel filius familias fundum vendidit et tradidit habens liberam peculii administrationem, in rem actione uti potero. sed et si domini voluntate domini rem tradat, idem erit dicendum: quemadmodum cum procurator voluntate domini ven­didit vel tradidit, in rem actionem mihi praestabit.

(Paul in the sixty-second book on the Edict)

A person who grants administration of the peculium is understood to give blan­ket authorization for everything he would have permitted in particular cases.

(Ulpian in the seventeenth book on the Edict)

If a (third party’s) slave or son-in-power has free administration of his peculium, and he sells a farm and hands it over to me, I will be able to use an action in rem (to assert ownership of the farm). Likewise, if he hands over the master’s prop­erty by the master’s will (domini voluntate), the same holds true. In like manner, when a procurator sells or hands over (property to me) with the owner’s consent, he will provide me with the action in rem.

1.      Free Administration. A child or slave who was given a peculium was not thereby automatically entitled to deal with the property in it.

2.      Conveying Title. In the fragment from Ulpian, a child or slave sold a farm in the peculium and handed it over to the buyer. The issue is whether the buyer thereby acquires title. What conditions does Ulpian set for the validity of the buyers title? How does free administration differ from a specific authorization of the sale (see Case 121)? In general, a peculium holder needed free adminis­tration not only in order to transfer title (Venuleius, D. 44.3.15.3; Paul, D. 41.2.14 pr.) but also to encumber the property, for instance, by using it as se­curity for a debt (Paul, D. 12.6.13 pr., 13.7.18.4). Granted the risks that are involved, why would a pater have been willing to allow a child or slave to alienate property in a peculium?

3.      Paying Peculium Debts. A son-in-power has free administration of his pe­culium. He buys and receives a horse, and he promises to pay the price of the horse in a month; a friend of his guarantees the payment (as a surety).

color=black face="Book Antiqua">4.      Restricted Authorization. A pater could also limit the authorization given to a child or slave, and the determination of how far the authorization went is treated as a matter of fact (Marcian, D. 20.3.1.1). One restriction might be to forbid alienation of property. What would the consequence be if the peculium holder nonetheless tried to transfer ownership of something to a third party? See Diocletian, C. 4.26.10.1 (A.D. 294; the transaction is void), and Proculus, D. 12.6.53 (the pater can reclaim the property or its value). Are third parties adequately protected if they mistakenly assume that the peculium holder has free administration?

5.      Prohibited Transactions. A son-in-power runs a shop. In the shop his father posts a sign saying: “I forbid transactions with my son.” The son purchases and receives goods from someone who is aware of the sign, and he promises to pay for them in a month. The sign is effective in barring a managerial action (actio institoria; see Case 124); but can the seller at least sue on the peculium? See Gaius, D. 15.1.29.1, and Paul, D. 15.1.47 pr. (yes; both of a slave). This holding seems to conflict with the rule above on restricted authorization; how might the conflict be resolved?

6.      Limits on Free Administration. Although the grant of free administration is fairly extensive, it is not unlimited.

D. 39.5.7 pr.-3 (Ulpianus libro quadragensimo quarto ad Sabinum)

(pr.) Filius familias donare non potest, neque si liberam peculii administrationem habeat: non enim ad hoc ei conceditur libera peculii administratio, ut perdat. (1) Quid ergo, si iusta ratione motus donet, numquid possit dici locum esse dona­tioni? quod magis probabitur. (2) Item videamus, si quis filio familias liberam pe­culii administrationem concesserit, ut nominatim adiceret sic se ei concedere, ut donare quoque possit, an locum habeat donatio: et non dubito donare quoque eum posse. (3) Nonnumquam etiam ex persona poterit hoc colligi: pone enim filium esse senatoriae vel cuius alterius dignitatis: quare non dicas videri patrem, nisi ei specialiter donandi facultatem ademit, hoc quoque concessisse, dum liberam dat peculii administrationem?

(Ulpian in the forty-fourth book on Sabinus)

(pr.) A son-in-power cannot make a gift, not even if he has free administration of a peculium. For the reason that he is granted free administration of the peculium is not that he squander it.

(1)     What then if in making a gift he is motivated by a good reason? Can it be said that there is any room for a gift? The better view is that it is valid.

(3)     Sometimes this result can be inferred from the type of person concerned. Take the son of someone of senatorial or some other (high) rank: why would you not say that the pater (familias),style='font-weight:bold'> unless he specifically takes away the power of making gifts, seems to have granted this as well, provided that he has given him free administration of his peculium?

1.      Good Reason. In Ulpian’s opinion, what might a “good reason” be for making a gift? In section 1, his reference to the “better view” strongly suggests that some jurists disagreed. Presumably they held that a gift from a peculium is void, even if motivated by a good reason. What justification might they have offered for this position? From the following Case, would you judge it likely that Julian held the “better view”?

2.      Elite Gifting. Why should the social status of the person concerned affect the legal rule? Does Ulpian recognize that gift giving was widely practiced to the point of constituting a norm in such circles?

3.      Manumitting Slaves. Can a son-in-power successfully manumit slaves in his peculium? The Emperor Alexander held that he could not (C. 7.11.2; A.D. 222-235). What might Alexander’s reasoning have been?

D.

... quemadmodum ipse dicit Iulianus libro duodecimo, si filius familias cre­diderit, cessare senatus consultum, quod mutua pecunia non fit, quamvis liberam peculii administrationem habuit: non enim perdere ei peculium pater concedit, cum peculii administrationem permittit: et ideo vindicationem nummorum patri superesse ait.

D. 12.1.2.4 (Paulus libro vicensimo octavo ad edictum)

In mutui datione oportet dominum esse dantem, nec obest, quod filius familias et servus dantes peculiares nummos obligant: id enim tale est, quale si voluntate mea tu des pecuniam: nam mihi actio adquiritur, licet mei nummi non fuerint.

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

... As Julian himself says in the twelfth book (of his Digests), if a son-in-power makes a loan (to another son-in-power), the decree of the Senate (SC Macedo- nianum) does not apply, the reason being that the money is not (effectively) loaned even if he (the lender) had free administration of his peculium. For his fa­ther, when he granted him administration of the peculium, was not authorizing him to squander it. Accordingly, he says the father can sue to recover the coins.

(Paul in the twenty-eighth book on the Edict)

In giving a loan (of money), the giver must be the owner (of the money that is lent). It is not a contradiction that a son-in-power and a slave create an obliga­tion by giving (in loan) cash from their peculia. For this situation resembles one in which you give (your) money (as a loan) on my authorization; I acquire the action (for repayment), although the coins were not mine.

1.      Two Opinions. A son-in-power who has free administration of his peculium lends money to a third party. Is the loan effective? This turns on whether the son had the capacity to transfer ownership of the money as part of making the loan. If he did, the loan is effective (and so his father can sue for repayment); but if not, it is ineffective (and so his father can sue to recover the coins them­selves or their value). What might explain the sharply different views of Julian and Paul? Does Julian assume that all loans are wasteful, or that they cannot serve legitimate business purposes? Would it matter to him if the loan bore interest? Ulpian, in any case, agreed with Paul (see D. 12.1.11.2). On the SC Macedonianum, which made loans of money to sons-in-power irrecoverable, see the Discussion on Case 119. If a son uses peculium cash to repay a money­lender, can his father recover the payment? See Ulpian, D. 14.6.9.1 (citing Ju­lian; yes). Is Julian too vigilant in protecting the father? Compare Gaius, D. 2.14.28.2 (citing Julian).

style='font-size:8.0pt;line-height:122%;font-weight:bold'>2.      Hush Money. If a son pays off someone who threatens to reveal a crime the son has committed, can his pater recover the payment? See Julian, D. 12.5.5 (yes; of a slave).

D. 15.1.21.3 (Ulpianus, libro vicensimo nono ad edictum)

Si dominus vel pater recuset de peculio actionem, non est audiendus, sed cogendus est quasi aliam quamvis personalem actionem suscipere.

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

If a master or pater (familias) declines to defend an action on the peculium, he is not to be accorded a hearing (by the judge); rather, he must be compelled to take up the defense as though it were any other lawsuit, despite its personal character.

1.      Who (Or What) Is Being Sued? This disarmingly modest little Case raises a very important legal issue. As we have seen, when a pater permits a son or slave to have a peculium, he opens himself to being sued on their authorized transactions; but his liability is ordinarily limited to the value of the peculium. In a sense, therefore, the liability attaches not to the pater but to the peculium; and certainly, if there is no peculium, in the absence of fraud this form of lia­bility does not exist (Paul, D. 21.1.57.1). On the other hand, the plaintiff does not actually sue the peculium but rather proceeds directly against the pater, who, as Ulpian says, is “compelled to take up the defense.” What this means is that the defendant paters liability is not confined to the actual property in the peculium; rather, the current value of the peculium only determines the maximum amount of his personal liability, but a judgment for the plaintiff can be satisfied from any of his assets. What argument might a pater familias have used to deny his liability?

2.      A Slave Sold with His Peculium. Test your understanding of the principle in this Case by considering the following problem. Sempronius gives his slave a peculium, on the basis of which the slave incurs a debt to a third party. Sem­pronius then sells to Titius the slave together with his peculium. If the third- party creditor now decides to sue, who is the proper defendant, Sempronius or Titius? Does the defendants liability include any increase in the peculiums value after the date of the sale? See Ulpian, D. 15.1.32.1-2.

3.      A Useful Year. A son-in-power incurs a debt on the basis of his peculium but then dies before paying the debt. Since by definition the son has no assets, the debtor seems to be left in the lurch, with no one to sue. To prevent the injus­tice that would result, the praetor allowed debtors to bring suit against the pater for up to one “effective year” (annus utilis) after the son's death or eman­cipation; see Ulpian, D. 15.2.1 pr. (and similarly for a slave).

4.      Double Liability? A son-in-power is liable on his contracts, even if he has no assets of his own with which to pay his debts (Cases 118-119); but often he can be effectively sued after he becomes sui iuris (see Ulpian, D. 14.5.2). Sup­pose that a creditor sues the father on his son's peculium and wins, but the value of the peculium is insufficient to pay off the debt. After the son becomes sui iuris, can the creditor bring a second lawsuit against the son for the re­mainder?