CASE134: Computing the Balance
Gaius, Institutiones 4.72a
Est etiam de peculio et de in rem verso actio a praetore constituta. licet enim negotium ita gestum sit cum filio servove, ut neque voluntas neque consensus patris dominive intervenerit, si quid tamen ex ea re, quae cum illis gesta est, in rem patris dominive versum sit, quatenus in rem eius versum fuerit, eatenus datur actio.
Versum autem quid sit, eget plena interpretatione. At si nihil sit versum, praetor dat actionem, dumtaxat de peculio, et edictum utitur his verbis. quod edictum loquitur et de eo, qui dolo malo peculium ademerit. si igitur verbi gratia ex HS X, quae servus tuus a me mutua accepit, creditori tuo HS V soluerit, aut rem necessariam, puta familiae cibaria, HS V emerit et reliqua V quolibet modo consumpserit, pro V quidem in solidum damnari debes, pro ceteris V eatenus, quatenus in peculio sit. Ex quo scilicet apparet, si tota HS X in rem tuam versa fuerit, tota me HS X consequi posse; licet enim una est formula, qua de peculio deque eo, quod in rem do- mini versum sit, agitur, tamen duas habet condemnationes. itaque iudex, apud quem ea formula agitur, ante dispicere solet, an in rem domini versum sit, nec aliter ad peculii aestimationem transit, quam si aut nihil in rem do- mini versum intellegatur aut non totum.(Gaius in the fourth book of his Institutes)
An action is also given by the praetor concerning the peculium and for benefit received. For although a business transaction may be arranged with a son-in- power or a slave without the wish or consent of the pater (familias) or master coming into play, if, all the same, something of substance from that transaction should be turned to the benefit of the pater (familias) or master, an action will be given for the full amount turned to his benefit.
The meaning of “turned to the benefit” requires detailed interpretation. But if there is no benefit, the praetor grants an action (only) for “as much as the peculium contains,” and the Edict uses these very words. But the Edict also applies to a person who diminishes the peculium (of his slave or son) in deliberate bad faith (dolo malo).
So if, for example, out of the 10,000 (sesterces) which your slave accepts from me as a loan, he pays 5,000 to your creditor or purchases necessities, say food for the household, and he uses up the other 5,000 in some other way, you should be found liable for the entirety of the first 5,000, and for the second only for as much as the peculium contains.
From this it is clear that if all 10,000 were turned to your benefit, I can be awarded the full amount upon suit. For although there is one formula for (both) the action on the peculium and that for benefit received by the pater (familias) or master, nevertheless there are two condemnations. Thus the iudex, before whom the formula is raised, typically examines first whether anything has been turned to the benefit of the pater (familias) or master, and does not move to valuing the peculium before it is clear that nothing has been turned to the benefit of the pater (familias) or master, or not (at any rate) the whole claim.
1. The Calculating Plaintiff. This Case (which is very heavily reconstructed after the first two sentences, mainly from Justinian, Inst. 4.7.4) is wonderful because it vividly illustrates the practical perils that plaintiffs faced in bringing lawsuits on peculium debts. Although the benefit received by the pater (see Cases 122-123) involves a different theory of liability than an action on the peculium, the Roman praetor, in his Edict, bundled the two together in a single action, presumably because the exact accounting boundaries between peculium assets and those of the pater were often difficult to know in advance of fact-finding in a trial.
Follow Gaius's explanation of how a iudex usually calculates damages in these lawsuits. As a plaintiff, what strategy would you pursue in presenting your case to the iudex? Are you in a better position if you can prove that your extension of credit has ended up benefiting the pater familias?2. When Can a Plaintiff Claim? Liability on the peculium must stem from a “transaction” with the slave or child-in-power (Ulpian, D. 15.1.1.2: negotium). This transaction will usually be a contract that the plaintiff had entered into with the holder of the peculium; by this contract the holder undertook a debt that has not yet been paid. But the jurists give some examples that are hard to think of as transactions. Suppose, for instance, that a third party who is insolvent gives a son-in-power property in order to conceal it from a creditor; if the text is to be believed, Ulpian, D.42.8.6.12 (of a slave), makes the son's pater liable to the creditor for benefit received by him or up to the value of the son's peculium. In what sense had the creditor entered into a transaction with the son? In any case, generally a son's liability arising from his delicts did not give rise to an action on the son's peculium; see Cases 139-141.
3. At What Point in Time Is the Peculium Evaluated? Suppose that a peculium has no assets at the present time. Can a plaintiff nonetheless sue a pater on a peculium debt, in the hope that the peculium will have some value when the judgment is eventually made? See Ulpian, D. 15.1.30 pr. (yes).
4. Plaintiff Protection. Gaius notes situations in which those who do business with a peculium are protected: first, if a pater materially benefits, even innocently or even without wishing this, from peculium assets that are traceable to the customer (liability for benefit received); second, if the pater acts in bad faith to reduce the value of the peculium, for instance, by stripping it of assets in anticipation of bankruptcy (see Case 136).
To which of the two protections do the examples given by Gaius refer?5. Limited Liability. It is worth considering, at this point, exactly why it is that a pater should enjoy a limited liability in relation to a peculium managed by a child or slave. Is this related to the fact that he (or she, in the case of a sui iuris woman with a slave) does not consent to particular business dealings with the peculium holder? What is the logic here? Is the legal institution of the peculium in fact well designed to unleash some of the entrepreneurial capacity of those in another's power?