CASE 137: Alternative Remedies

Gaius, Institutiones 4.74

Ceterum dubium non est, quin et is, qui iussu patris dominive contraxit cuique ex­ercitoria vel institoria formula competit, de peculio aut de in rem verso agere possit.

(Gaius in the fourth book of his Institutes)

All the same, it is beyond doubt that a person who has made a contract in re­liance on the order of the pater or master, or who has standing as plaintiff in the actio exercitoria or the actio institoria, can (also) bring a suit on the peculium or for benefit received.

But no one will be so stupid that, if he can undoubtedly recover the entire amount by raising either of the former actions, he will subject himself to the hardship of proving either that the person with whom he contracted had a pe­culium and that he can be paid in full out of this peculium or that the amount he seeks was turned to the benefit of the pater or owner.

1.      Diverse Remedies. This Case reveals something of the realities of Roman liti­gation. The same transaction can often give rise to multiple theories of liabil­ity; Gaius is advising plaintiffs to pick the theory that makes it easiest for them to prove liability. The actio institoria lies against the owner who places another person in charge of a business and concerns that persons transactions with third parties (see Case 124; the actio exercitoria is similar but involves the command of ships); but this manager might be a son or slave with a peculium, and if so, the customer could also sue on this basis.

2.      Another Alternative. Creditors of a peculium had yet another possibility, the actio tributoria (action on division), which we will not consider in detail here. In brief, when a son or slave was doing business with all or a portion of his pe­culium, and he contracted debts with the pater’s knowledge, creditors could sue the pater if the peculium then became insolvent. This liability effectively forced the pater to share out the business portion of the peculium among all its creditors, including himself (i.e., unlike in the action on the peculium, the pater was not given preference as a debtor); any creditor dissatisfied with the allocation could bring the actio tributoria. See D. 14.4. Gaius (Inst. 4.74a) re­marks that creditors generally prefer the action on the peculium and on bene­fit received: “The tributoria takes account only of that part of the peculium with which the son or slave was transacting, plus what was earned from it; but the action on the peculium (takes account) of it all.” Can you imagine cir­cumstances in which creditors might nonetheless prefer a division?