Contractual Liability
In modern law, the way in which a person becomes contractually bound by another person’s acts is through the law of agency. Although it is the agent who acts, the person who acquires rights and incurs obligations through those acts is not the agent but the principal, the person on whose behalf the agent acts.
Roman law, however, did not develop a concept of agency in the way that it exists in modern law.[740] There was no general principle of liability for another’s acts. While there was a form of contract (called mandate)[741] by which one person could be authorised to act on another’s behalf, this was not true agency as the authorising party (the mandator) did not directly acquire any rights or incur any obligations from the transactions entered into by the other. Again, while a depenÂdant could acquire rights for the master, he or she could not impose binding obligations.[742] The praetor did, however, intervene to create a range of actions by which a master could be held liable for acts carried out by those subject to his or her authority.[743] These actions came to be known as the actiones adiecticiae qualitatis.The precise details of the development of these actions is unclear, including their dates and the order in which they were introduced.[744] A basic distinction can be made, however. Some of these actions are based on the authorisation by the master for the dependant (or, sometimes, someone else) to enter into bindÂing transactions. We shall look at these first. The other actions, to be considered afterwards, are based on the holding of a peculium by the dependant, with the liability of the master being limited to the extent of the peculium.
(1) Actions Based on Authorisation
The first group of actions is based on the consent of the master to be bound.
It was not enough just to be aware of the transactions in question.[745] Three actions fall into this category.(a) Actio Quod Iussu
The actio quod iussu (the ‘action for what has been ordered') was available to make the master liable in full under any transaction that he[746] has specifically authorised the dependant to enter into. This authorisation could be for a single transaction, or could be more general.[747] Thejustification for holding the slave or paterfamilias liable was that ‘one who enters into such a transaction puts faith in the father or the master rather than the son or the slave'.[748] It was therefore reasonable to hold the master liable. The implication of this is that the third party had to be made aware of this authorisation. The master could, however, ratify the transaction after the fact.[749] This would have the effect of imposing liability on the master retrospectively.
(b) Actio Institoria and Actio Exercitoria
The actio institoria and the actio exercitoria were two very similar actions, and were the only ones of the actiones adiecticiae qualitatis that applied to the actions of perÂsons other than a dependant. They were therefore the closest that Roman law came to agency in the modern sense.
The actio exercitoria was available when a slave, filiusfamilias or third party was put in charge of a ship, and the actio institoria applied when such a person was put in charge of a land-based business. In either case, the master or employer was liable in full for transactions entered into by the person put in charge,[750] as long as they were in the scope of the appointment.[751] The justification for this is much the same as with the actio quod iussu, although the authorisation here is general rather than there being specific authorisation for individual transactions. The reasoning behind this is obvious, however, especially for the actio exercitoria. If I put someone in charge of my ship for a trading voyage, they will not be able to seek my authorisation for transactions while they are away.
Even with a landÂbased business, such as a shop, it is unlikely that I will find it convenient to have to authorise every transaction personally. That would take away most or all of the advantage in appointing someone to manage the business for me. The effect of these two actiones would be to make my general authorisation to manage the ship or the business sufficient.(2) Actions Based on the Peculium
In circumstances where a dependant had authorisation to enter into a transacÂtion, the master was liable without limit, as we have seen. Where no such authoriÂsation could be identified, whether that authorisation was general or specific, there was, however, an alternative.
We have seen (in Chapters 6[752] and 7[753]) that a dependant might be entrusted with a fund of money or property, called apeculium. The dependant would be allowed to treat this as his or her own, even though a dependant could not own property and could not effectually contract on his or her own behalf.[754] The peculium remained the property of the master. The praetor introduced various actions that allowed the master to be held liable up to the extent of the peculium.
It might be difficult to prove the existence and extent of the peculium. Accordingly, as Gaius points out, it would be better to use the actio quod iussu, the actio exercitoria or the actio institoria where possible.[755] Where it was not posÂsible to meet the requirements of any of those actions, the actions based on the peculium provided an alternative. First we need to consider how the content of the peculium was determined.
(a) The Peculium
The scope of apeculium was potentially very broad:[756]
In a peculium there can be any kind of property, both moveables and land. It can also contain underslaves and the underslaves’ peculium. Furthermore, it can contain debts.[757]
Thus, as we can see, a slave’s peculium could include other slaves, with peculia of their own.
It could also contain debts, including debts ‘owed’ by master to slave.[758] Even though such a debt was not legally possible,[759] it was treated as being possible for these purposes. In the same way, anything owed to the master could be considÂered as reducing the value of the peculium.[760]All of the property in the peculium continued to belong to the master, and it could be difficult to tell whether a particular item was included in the peculium. The basic principle was that this question was determined by the intentions of the master, who could add or remove items at will.[761] It therefore did not include anything that the master was not aware of the dependant having.[762] The awareness of the master could be quite general, however:
The peculium cannot exist without the master’s knowledge and agreement. He, however, may be unclear about its content and components, both in terms of nature (or quality) and quantity.[763]
Transfer of an item to the peculium required delivery of that item to the depenÂdant.[764] The master could, however, remove anything from the peculium by mere intention.[765] [766] [767] [768] If, though, the master removed anything from the peculium with the intention of defrauding creditors, that thing would be deemed still to form part of the peculium?0 (b) Actio de Peculio The actio de peculio was an action used to impose liability on the master, for the actings of the dependant, up to the value of the peculium?21 For these purposes, debts owed to the master were deducted from the value of the peculium?0 As we have seen, the value of the peculium was deemed to include anything removed by the master with the intention of defrauding creditors. A party who had made a contract with a dependant could pursue the master using the actio de peculio, and the result would be that the master would be held liable under that contract to the extent of the peculium. There was no time limit for the bringing of the actio de peculio as long as the depenÂdant remained in the power of the master. However, if that power ended — whether through death, emancipation, manumission or alienation — any actio de peculio had to be brought within one year of that ending.[770] (c) Actio de In Rem Verso The next action to consider is the actio de in rem verso, the ‘action for what has been turned to the master’s account’. This could be combined with the actio de peculio: Gaius, for example, refers to a single actio de peculio et de in rem verso.[771] However, it does appear that they could be brought separately, and there were situations in which the actio de in rem verso could be brought even though the actio depeculio was unavailable.[772] The actio de in rem verso was intended to deal with the situation where the holder of thepeculium did something that benefited the master,[773] such as paying creditors of the master, repairing buildings or buying food.[774] As long as the expenditure was consistent with the habits of the master, the effect of the actio de in rem verso was that expenditure from the peculium, to the benefit of the master, could be treated as if it was still part of the peculium.[775] Given that medieval and modern law has no place for the concept of pecuÂlium, it might have been expected that the actio de in rem verso would not have been received as part of the ius commune. However, in what has been called ‘one of the more extravagant episodes within the history of the European ius commune',[776] the medieval jurists used the Roman texts on the actio de in rem verso as part of the basis of the law of unjustified enrichment.[777] This allowed the ius commune to deal with such situations where a benefit provided to one person ended up benefiting someone else.[778] By this means, Scots law received the actio de in rem verso, not at all as the Romans understood it, but as a basis on which (Stair says) ‘whatsoever tur- neth to the behoof of any makes him thereby liable, though without any engageÂment of his own'.[779] This development is an excellent example of the tendency of the medieval jurists to use the Roman texts to build something that the Romans would not have recognised as their own.[780] (d) Actio Tributoria The final action we need to consider is the actio tributoria. As a result, we can think of the actio tributoria being used as, in effect, an insolÂvency procedure. It would typically only be resorted to where the peculium was so burdened by debts to the master that third parties would be entirely or mostly excluded if the actio de peculio were used. The effect of the actio tributoria was to compel the master to divide up the peculium16 proportionately among the creditors of the peculium (including the master himself).[785] C.