CASE 135: Deductions from the Peculium
D. 15.1.9.2-4 (Ulpianus libro vicensimo nono ad edictum)
(2) Peculium autem deducto quod domino debetur computandum esse, quia praevenisse dominus et cum servo suo egisse creditur.
(3) Huic definitioni Servius adiecit et si quid his debeatur qui sunt in eius potestate, quoniam hoc quoque domino deberi nemo ambigit. (4) Praeterea id etiam deducetur, quod his personis debetur, quae sunt in tutela vel cura domini vel patris vel quorum negotia administrant, dummodo dolo careant, quoniam et si per dolum peculium vel ademerint vel minuerint, tenentur: nam si semper praevenire dominus et agere videtur, cur non dicatur etiam hoc nomine eum secum egisse, quo nomine vel tutelae vel negotiorum gestorum vel utili actione tenebitur? nam ut eleganter Pedius ait, ideo hoc minus in peculio est, quod domino vel patri debetur, quoniam non est verisimile dominum id concedere servo in peculium habere, quod sibi debetur. sane cum ex ceteris causis ipsum a semet ipso exegisse dicimus qui negotia vel tutelam geret, cur non etiam in specie peculiari exegerit, quod exigi debuit? defendendum igitur erit quasi sibi eum solvere, cum quis agere de peculio conabitur.(Ulpian in the twenty-ninth book on the Edict)
size=1 color=black face="Book Antiqua">(2) But (the value of) the peculium should be assessed after deducting what is owed to the master, since the master is regarded as having preceded (any third party) in suing his own slave.
(3) To this rule, Servius added (that deduction should first be made) also if something is owed to those in his (the master’s) power, since nobody doubts that this too is owed to the master.
(4) Further, also deducted is what is owed to those persons who are in the tutelage or care of the master or father, or whose affairs they administer; (but this is the rule) provided they are free from dolus (intentional deceit), since they are likewise liable if through dolus they either reclaim or diminish the peculium. For if the owner is always held to precede (a third party) in suing (on a claim against thepeculium), why should it not be held that he also “sued himself” on behalf of those to whom he is liable for tutelage or administration of affairs or by an analogous action?
For, as Pedius convincingly observed, what is owed to the master or father is for this reason no longer in the peculium, since it is unlikely that the master would let a slave keep in his peculium something that is owed to himself (the master).
Since in other cases we say that a person who administers (another’s) affairs or a tutelage has “collected from himself’ (by deducting debts owed to him), why in the case of a peculium should he not also collect what should be collected?
So the view is defensible that he (the father or master) in a sense pays himself whenever someone tries to sue on the peculium.
1. What Can the Pater Deduct? As we saw in Case 126, the value of a peculium includes debts “owed” to it by the pater familias and by other slaves belonging to him (apart from those in the peculium itself).
However, as this Case shows, when suit is brought on the peculium, its value is reduced by the debts that the peculium owes to these same persons. Indeed, even if the pater has only an indirect interest in the debt (e.g., where he is the guardian of a sui iuris minor to whom the peculium owes money; how might that happen?), he can also deduct this debt. And most debts can be deducted, particularly if a debt results from a contract open to slaves. Try to discover the pattern that underlies the following examples:• The pater has paid a debt owed by the peculium or has been found liable for the debt in a trial; this is deductible from the peculium; see Ulpian, D. 15.1.9.8 (of a slave).
• The pater has formally promised to pay a debt owed by the peculium; this is deductible even before payment; see Ulpian, D. 15.1.11.1 (of a slave).
• The pater has paid medical expenses for his son or slave; this is not deductible; see Ulpian, D. 15.1.9.7 (of a slave). Why not? Ulpian reasons that the master is looking after his own interests. Convinced?
• lang=EN-US>The peculium holder damaged property that belonged to the pater but that was not in the peculium; the loss is deductible; see Pomponius, D. 15.1.4.3 (of a slave).
• The peculium holder stole property belonging to a third party; if the pater paid its owner for the property, its value is deductible, but not any additional penalty; see Ulpian, D. 15.1.9.6, and Africanus, D. 19.1.30 pr. (both of a slave).
2. Why Can the Pater Deduct? This is a far more difficult issue.
Before the value of a peculium is assessed for judicial purposes, the pater can deduct debts owed to him or his other slaves. However, debts owed to third parties not in the familia cannot be deducted. This makes the pater a preferred creditor, since in effect the peculium assets are used to satisfy him before other creditors such as the plaintiff. Accordingly, these third parties need to take care in extending credit to a peculium, since (even in the absence of fraud; see the following Case) there is always a possibility that a peculium is or may become valueless because of debts to the pater. (For this reason, a modern corporation cannot prefer its ordinary stockholders to its unsecured creditors.) What explains the Roman rule? Ulpian gives two justifications:• In section 4, he cites the jurist Pedius to the effect that “it is unlikely that the master would let a slave keep in his peculium something that is owed to himself (the master).” Is the issue, then, simply what the pater wants? Why should his desires be preferred to those of other creditors? One answer may be that the practice has a customary (prelegal) origin: masters were initially willing to satisfy other creditors only after they had satisfied themselves.
• Also in section 4, Ulpian says that “the owner is always held to precede (a third party) in suing,” and that he has, in effect, “collected from himself” by deducting debts owed to him. Does this do any more than restate the problem?
Can you think of a more convincing explanation than these?
More on the topic CASE 135: Deductions from the Peculium:
- CASE 135: Deductions from the Peculium
- CASE 204: Legacy of a Peculium*
- Conflicts with Authorities, to 135 ce
- CASE 138: The Camp Peculium
- Contents
- Frier Bruce W., McGinn Thomas A.J.. A casebook on Roman family law. Oxford University Press,2004. — xxi+506 p., 2004
- CHAPTER V. COLLEGIA AND CORPORATE CAPACITY