1. Ulpianus, On the Edict, Book XXIX.
The Prætor judged it to be the proper way to first explain the
contracts of those who are subjected to the authority of another which give a
right of action for the entire amount, and then to come to the present one,
where an action is granted on the peculium.
(1) This Edict, moreover, is threefold, for from it arises an action on
the peculium, one for property employed in the affairs of another, and
one based upon the order of another.
(2) The words of the Edict are as follows: "Whatever business is
transacted with him who is under the control of another."
(3) Mention is made of him and not of her, still, however, an action is
granted by this Edict on account of one belonging to the female sex.
(4) Where a contract is made with a son under paternal control or a
slave who has not yet reached puberty, the action on the peculium is
granted either against the master or the father, if the peculium of
either of them has been increased in value.
(5) The word "control" is understood to be applicable both to the son
and to the slave.
(6) The ownership of slaves should not be given greater consideration
than the right of having authority over them; for we may be sued not only on
account of our own slaves but also on account of those who are held in common,
as well as of those who serve us in good faith as slaves, whether they are
freemen, or the slaves of others.
2. Pomponius, On Sabinus, Book V.
The action arising out of the peculium and the other
prætorian actions are only granted against the person entitled to the
usufruct or use, where the slave subject to usufruct or use would generally
acquire, and in other cases against the owner of the property.
3. Ulpianus, On the Edict, Book XXIX.
Although the Prætor promises this action where business was done
with a party who is under the control of someone, still, it must be remembered
that the action on the peculium is granted even if he is under the
control of no one; for instance, where a contract is made with a slave
belonging to an estate before the estate is entered upon.
(1) Wherefore Labeo says that if a slave is substituted in the second or
third degree, and a contract is made with him while the heirs of the first
degree are deliberating, and, afterwards, when they reject the estate, he
himself becomes free and an heir, it may be said that an action can be brought against him on the peculium, as well as on
the ground of property employed in the affairs of another.
(2) It is of little importance whether a slave belongs to a man or a
woman, for a woman can also be sued in an action on the peculium.
(3) Pedius states that even owners under puberty can be sued in the
action on the peculium, for the contract is not made with the minors
themselves, and the authority of the guardian must be considered. He also says
that a ward cannot give his peculium to a slave without the authority of
his guardian.
(4) We say also that the action on the peculium should be granted
against the curator of an insane person; for even the slave of the latter may
have a peculium, not where it has been conceded that he should have it,
but where he was not prohibited from having it.
(5) It has been discussed, whether if a son under paternal control or a
slave becomes surety for anyone, or incurs liability in any other way, or gives
a mandate, an action on the peculium will lie? The better opinion is
that in the case of a slave the cause for giving the security or the mandate
should be considered; and Celsus in the Sixth Book approves of this opinion in
the case of a slave who is a surety. Therefore, where a slave intervenes as
surety, and not as managing property belonging to the peculium, his
master will not be bound on account of the peculium.
(6) Julianus also stated in the Twelfth Book of the Digest that where a
slave directs that a payment be made to my creditor, it should be ascertained
what reason he had for giving this mandate. If he directed him to make payment
to the party as to his own creditor, the master will be liable on the
peculium, but if he only performed the duty of a voluntary surety, the
master will not be liable on the peculium.
(7) What the same Julianus stated agrees with the following, namely; if
I accept a surety from my son, whatever I receive from the said surety I shall
be compelled to make good, not on the ground of property employed for my
benefit, but in an action on mandate to the amount of the peculium.
You may understand that the same rule applies in the case of the surety
of a slave, and where another person pays me in behalf of my son who is my
debtor. He also stated that if my son was not my debtor, the surety will be
entitled to make use of an exception on the ground of fraud, and to bring a
personal action for recovery if he has made payment.
(8) Where a slave who is assuming to be a freeman, consents to
arbitration, the question arises whether an action on the peculium
should be granted for the penalty for non-compliance with the award, this
being, as it were an instance of voluntary agency, just as it is granted in the
case of a maritime loan? The better opinion seems to both Nerva, the son, and
myself to be that an action on the peculium arising from a reference to
arbitration by a slave should not be granted, since an action is not granted
against him if the slave is condemned in court.
(9) Where a son is accepted as a surety, or is voluntarily bound in any
way, the question arises whether he makes his father liable on the peculium?
The correct opinion is that of Sabinus and Cassius, who think that the
father is always liable on the peculium, and that the son differs in
this respect from the slave.
(10) Wherefore, the father will always be liable where a reference to
arbitration is made. Papinianus also makes a similar statement in the
Ninth Book of Questions; and he says that it makes no difference what point was
referred to arbitration, whether it was one on which a party could have brought
an action on the peculium against the father, or one on which he could
not have done this, as suit is brought against the father on the
stipulation.
(11) He also says that the father is liable to an action on a judgment
to the amount of the peculium, and this view Marcellus likewise holds,
even in a case on account of which a father would not be liable to a suit on
the peculium; for just as in a stipulation a contract is made with the
son, so also a contract is made in a case in court; hence the origin of the
proceeding should not be considered as the source of the obligation, but the
liability under the judgment. Wherefore, he is of the same opinion where the
son, acting as a defender of another, has a decision rendered against him.
(12) It is established that a personal action for recovery on the ground
of theft can be brought against a son under paternal control. The question
arises, however, whether the action on the peculium should be granted
against the father or the master, and the better opinion is that the action on
the peculium should be granted for the amount by which the master has
been pecuniarily benefited by the theft which was committed. Labeo approves of
this opinion, for the reason that it is most unjust that by the theft of the
slave, the master should profit without being accountable. For the action on
the peculium will also lie in a case where property has been carried
away, and an action is brought on account of a son under paternal control to
the amount which has come into the hands of the father.
(13) If a son under paternal control who is a duumvir, did not
take care that security be given to insure the safety of the property of a
ward, Papinianus says in the Ninth Book of Questions that the action De
peculio will lie. I do not think that the question whether the son was made
a decurion with the consent of his father changes anything, for the father was
obliged to provide for the public welfare.
4. Pomponius, On Sabinus, Book VII.
The peculium is not what the slave keeps an account of separately
from his master, but is what the master himself has set aside, keeping a
distinct account from that of the slave; for since the master can take away the
entire amount of peculium from the slave, or increase or diminish it,
the question to be considered is not what the slave, but what the master has
done for the purpose of creating a peculium for the slave.
(1) I think this to be true, however, where a master wishes to release
the slave from a debt, so that if the master has remitted what the slave owed
by his mere will, the slave ceases to be his debtor, but if the master keeps
his accounts in such a way that he makes himself appear indebted to the slave,
when in fact he is not his debtor, I think that the contrary opinion is
correct, for a peculium should be increased not by words but by business
matters.
(2) From these rules it is apparent that not what a slave has without
the knowledge of his master belongs to the peculium, but whatever he has
with his consent, otherwise what a slave steals from his master will become a
part of the peculium, which is not true.
(3) It often happens, however, that the peculium of a slave
suffers diminution without the knowledge of his master; for example, where a
slave damages his property, or commits theft.
(4) If you commit theft against me with the aid of my slave, this must
be deducted from the peculium to the amount by which it is less than
what I can recover on account of the stolen property.
(5) If the peculium of the slave is exhausted by the debts due to
the master, the property nevertheless remains in the condition of peculium;
for if the master should give a debt to the slave, or some other party
should pay the master in the name of the slave, the peculium will be
filled up, and there will be no need of a new grant by the master.
(6) Not only is that to be included in the peculium of any slaves
of which they keep an account separate from the master, but also that which
they have separate from the property of a slave to whose peculium they
belong.
5. Ulpianus, On the Edict, Book XXIX.
The father or master can be sued on account of a deposit only to the
extent of the peculium, and where advantage has been taken of me through
any wrongful conduct of theirs.
(1) Moreover, the father or master is liable only to the amount of the
peculium, where any property has been delivered to a son under paternal
control, or to a slave to be held on sufferance.
(2) Where a son under paternal control has tendered an oath, and it has
been taken, an action on the peculium should be granted, as if a
contract had been entered into; but it is different in the case of a slave.
(3) The peculium is so called on account of its being a trifling
sum of money or a small amount of property.
(4) Tubero, however, defines peculium to be (as Celsus states in
the Sixth Book of the Digest) what the slave has separate and apart from his
master's accounts with the permission of the latter, after deducting therefrom
anything which may be due to his master.
6. Celsus, Digest, Book VI.
Labeo says that the definition of peculium which Tubero gave does
not include the peculium of sub-slaves, but this is not correct, for,
by the very act that a master has granted peculium to his slave it
must be understood that he has also granted it to the sub-slave.
7. Ulpianus, On the Edict, Book XXIX.
Celsus himself approves of this opinion of Tubero.
(1) And he adds that a ward of an insane person cannot grant a
peculium to his slave, but the peculium which has been previously
granted (that is before the insanity occurred, or where it was created by the
father of the ward), will not be taken away by these conditions. This opinion
is correct, and agrees with what Marcellus added in a note on Julianus, namely:
that it can happen that where a slave has two masters he may have a peculium
with reference to one, but not with reference to the other; for instance,
where one of the masters is insane or a ward, if, as he says, some hold that a
slave cannot have a peculium unless it is granted by his master. I
think, however, that in order for the slave to have a peculium, it is
not necessary that it should be granted by his master, but that it cannot be
taken away. The free administration of the peculium is a different
matter, for this must be explicitly granted.
(2) It is evident, however, that it is not necessary for him to know all
the details of the peculium, but to be generally informed as to them;
and Pomponius inclines to this opinion.
(3) Pedius states in the Fifteenth Book that a minor, as well as a son
and a slave, can have a peculium, since he says that in this instance,
everything depends upon the grant of the master, and therefore if the slave or
the son should become insane, he will retain the peculium.
(4) Property of all kinds, both chattels and land, may be included in
the peculium; the party may also have in his peculium sub-slaves
as well as the peculium of the latter, and, in addition to this, even
claims due from their debtors.
(5) Moreover, if anything is owing to the slave in an action of theft or
in any other action, it is counted as part of the peculium, and as Labeo
says, an estate and a legacy likewise.
(6) Again, he will have in his peculium whatever his master owes
him, for suppose he has expended money in the business of his master, and the
latter is willing to remain his debtor, or his master has brought suit against
one of his debtors. Wherefore, for example, if the owner has recovered double
damages for eviction on account of a purchase by the slave, the amount must be
turned into his peculium, unless the master should happen to have had
the intention that this should not form part of the peculium of the
slave.
(7) In like manner, if a fellow-slave owes him anything, it will belong
to the peculium, provided he has a peculium, or shall acquire one
afterwards.
8. Paulus, On Sabinus, Book IV.
Any of his own property which the master desires to belong to the
peculium, he does not at once render such, but only after he has
delivered the same, or, if it was in the possession of the slave, has
treated it as delivered; for property requires actual delivery. On the other
hand, however, whenever he manifests unwillingness, the possessions of the
slave cease to be peculium.
9. Ulpianus, On the Edict, Book XXIX.
But if the master causes any damage to his slave, this will not be
credited to the peculium, any more than if he stole it.
(1) It is clear that if a fellow-slave has committed any damage to
property, or stolen it from the other, this will be considered to form part of
the peculium, and Pomponius holds the same opinion in the Eleventh Book,
for if the master either has recovered or can recover anything from a party who
has stolen property from the peculium, this, Neratius says, in the
Second Book of Opinions, must be credited to him.
(2) The peculium, however, is to be computed after what is due to
the master has been deducted, for the master is presumed to have been more
diligent, and to have proceeded against his slave.
(3) To this explanation Servius adds: "Where anything is due to those
who are under his control," for no one doubts that this also is owing to the
master.
(4) Moreover, that also will be deducted which is due to those persons
who are under the guardianship or care of the master or father, or whose
business he is attending to, provided he is free from fraud; since if he
destroys or diminishes the peculium by fraudulent acts, he will be
liable; for if the master is always presumed to be more diligent and to bring
suit, why may he not be said also to have proceeded against himself in this
instance, in which he would be liable either on the ground of guardianship, or
of business transacted, or in an equitable action? For, as Pedius very properly
says, the amount of the peculium is diminished by what is owing to the
master or father, because it is not probable that the master would consent to
the slave having in his peculium what is owing to him. And, indeed,
since, in other instances, we say that one who is attending to business for
another or who is administering a guardianship, has recovered money from
himself, why should he not in this case of peculium also have recovered
what he ought to have done? Therefore this opinion may be defended, just as if
he had paid the amount to himself, where anyone attempts to bring an action on
the peculium.
(5) The creditor of the slave who has become the heir of his master,
also deducts from the peculium whatever is owing to him, if he is sued,
whether the slave has received his freedom or not. The same rule applies if the
slave is bequeathed absolutely; for he can deduct what is due to him in this
way, as if he had appeared and proceeded against himself, although he had, at
no time, the ownership of the slave who was manumitted or bequeathed
unconditionally; and this Julianus states in the Twelfth Book of the Digest.
Julianus says in the same place, more positively, that it is certain if the
slave has received his freedom on some condition, the heir can make the
deduction, for he has become the master. To confirm his opinion, Julianus also
states that if I become the heir of a party who, after the death of the slave
or the son, could have been sued within a year on the peculium, there is
no doubt that I can deduct what is owing to me.
(6) The master will make the deduction, whether the slave owes anything
to him on a contract, or on accounts which remain unpaid. And also if he owes
him because of some offence, as, for instance, on account of a theft which he
has committed, the deduction will be made.
It is a question, however, whether the amount of the theft itself, that
is, only the loss which the master has sustained, shall be deducted, or in fact
only so much as could be demanded if the slave of another had committed the
offence; that is to say, with the penalties for theft. The former opinion is
the more correct one, namely, that only the amount of the theft itself can be
deducted.
(7) Where a slave has wounded himself, the master should not deduct this
damage, any more than if he had killed himself or thrown himself over a
precipice; for even slaves have a natural right to inflict injuries upon their
bodies. But if the master has cared for the slave who has been wounded by
himself, I think that he is indebted to his master for the expenses incurred;
although if he had cared for him when he was ill, he would rather have been
seeing after his own property.
(8) Again, if a master has bound himself on account of a slave, or,
having done so has made payment, this will be deducted from the peculium;
so, likewise, if money has been lent to him by the direction of his master;
for Julianus states in the Twelfth Book of the Digest that this should be
deducted. I think that this is true only where what was received did not come
into the hands of the master or father, otherwise, he ought to charge this
against himself. If, however, he becomes security for his slave, Julianus
states in the Twelfth Book of the Digest, that this should be deducted;
Marcellus, however, says that, in both instances, if the master has not yet
lost anything, it is better that the money should be paid to the creditor,
provided he gives security to refund it, if the master is sued on this account
and pays anything; than that the deduction should be made in the first place,
so that the creditor, in the meantime may profit by the interest on the
money.
Where, however, the master, having been sued, has judgment rendered
against him, a deduction should be made in a subsequent action on the
peculium, as the master or father has become liable on the judgment;
for, if not having had judgment rendered against him, he should have paid the
creditor anything on account of the slave, he could deduct this also.
10. Gaius, On the Provincial Edict, Book IX.
If, however, the first action on the peculium is still in
suspense, and judgment is rendered in the subsequent action, no account of the
first action should be taken in any way in the decision of the second; because
the position of the first creditor in an action on the peculium is the
better one, for, not he who first joined issue, but he who first obtained a
decision of the court, is held to be entitled to the preference.
11. Ulpianus, On the Edict, Book XXIX.
Where a master who has been sued in a noxal action has paid the damages
assessed, this ought to be deducted from the peculium; but where he
surrendered the slave by way of reparation, nothing should be deducted.
(1) Moreover, if the master bound himself to pay something on account of
the slave, this should be deducted; just as if the slave had promised to assume
the obligation of a debtor to his master. The same rule applies if he has
assumed an obligation to his master in consideration of his freedom, he, having
become, to a certain extent, a debtor of his master, but only where suit is
brought against him after he has been manumitted.
(2) Where, however, a slave has exacted payment from a debtor of his
master, the question arises whether he has made himself a debtor to his master?
Julianus, in the Twelfth Book of the Digest, says that the master will not be
entitled to make a deduction, unless he ratified the collection of the money,
and the same must also be said in the case of a son under paternal control. I
think that the opinion of Julianus is correct, for we take into account natural
debts in deductions from the 'peculium; for natural equity requires that
a son or a slave should be released from liability because he seems to have
exacted what was not due.
(3) It is a question, however, whether, what the master has once
deducted, when he has been sued, he should again remove from the peculium,
if suit is brought against him; or whether, where deduction has once been
made, it should be held that he has been satisfied. Neratius and Nerva think,
and Julianus also states in the Twelfth Book of the Digest, that if he really
removed it from the peculium it should not be deducted, but if, in fact,
he left the peculium in the same condition he should make a
deduction.
(4) He further says that, if a slave has in his peculium a
sub-slave worth five aurei, and he owes the master five, on account of
which the master deducted the sub-slave, and the latter having afterwards died,
the slave purchased another of the same value; he does not cease to be a debtor
to the master, just as if the sub-slave had been a loss to the latter, unless
he happened to die after he had taken him away from the slave and had paid
himself.
(5) The same author very properly says that, if when the sub-slave was
worth ten aurei, the master having been sued on the peculium paid
five on account of the slave, because five were due to himself, and that
afterwards the sub-slave died; the master can deduct ten aurei against
another plaintiff on the peculium, because he had made the slave his
debtor with reference also to the five aurei which he had paid on his
account. This opinion is correct, unless he took the sub-slave away for the
purpose of paying himself.
(6) What we have said, however, that is, that what is due to him who is
sued on the peculium should be deducted, must be understood to mean if
he could not recover this in any other way.
(7) Julianus then says that if a vendor who has sold a slave together
with his peculium, is sued on the peculium, he should not deduct
what is due to him, for he could have deducted this from the account of the
peculium; and he can now bring a personal action to recover it as not
having been due, since what is owing to the master is not to be included in the
peculium.
He can also, so he says, bring an action on sale. This is to be approved
where there was so much in the peculium when it was sold that the master
could satisfy his debt, but if afterwards there was an addition made to his
claim, and the condition of the debt having been fulfilled, which debt the
master has not satisfied, the contrary opinion must be held.
(8) He also asks, if anyone has obtained a slave on account of whom he
had an action on the peculium, can he deduct what is owing to him since
he is entitled to an action De peculio against the vendor? He says very
properly that he can, for any other person, likewise, can choose whether he
will bring suit against the vendor or the purchaser, and this party therefore
selects deduction instead of suit. I do not see what the creditors have to
complain of, since they themselves can sue the vendor if they think that
perhaps there may be something in the peculium.
(9) But, not only what is owing to the party who is sued should be
deducted, but also what may be owing to his partner, and Julianus holds this
opinion in the Twelfth Book of the Digest; for, accordance with the same
principle on which either may be sued for the entire amount, he has a right to
deduct what is due to the other. This opinion is accepted:
12. Julianus, Digest, Book XII.
For the reason that in this instance proceedings can be instituted
against the one with reference to whom there is no peculium.
13. Ulpianus, On the Edict, Book XXIX.
But that neither party can deduct what is due to the other is not true
in the case of purchaser and vendor, of usufructuary and the mere owner, and in
that of others who are not partners, as well as the sole proprietor and the
bona-fide purchaser; and this Julianus states in the Twelfth Book.
14. Julianus, Digest, Book XII.
Moreover, where it is directed by a will that a slave shall immediately
become free, suit on the peculium should be brought against all the
heirs, and none of them can deduct more than is due to himself.
(1) Again, where the slave died during the lifetime of his master, and
the master then died within the year, leaving several heirs, both the action on
the peculium and the right of deduction are divided.
15. Ulpianus, On the Edict, Book XXIX.
But if there are two bona fide possessors, it must still be said
that neither can deduct more than is due to him; and the same rule applies where there are two usufructuaries, because they have no partnership
between them. The same rule sometimes also applies to the case of partners, if
they should happen to have separate peculia among themselves, so that
one of them cannot be sued on account of the peculium of the other.
Where, however, the peculium is in common, they may be sued for the
entire amount, and what is owing to each one of them shall be deducted.
16. Julianus, Digest, Book XII.
What then would be the case where the peculium of a common slave
belongs to one of his masters alone? In the first place, if any one sells a
half share in a slave, and grants him no peculium, and then, if any one
gives money or property of any description to a slave owned in common, in such
a way as to retain the ownership of said property, but to grant the slave the
management of the same; Marcellus says in a note that this is an instance where
one owner has taken away the peculium, or where an owner has actually
granted one, but the grant is applicable to the obligations of his debtors.
17. Ulpianus, On the Edict, Book XXIX.
If my ordinary slave has sub-slaves, can I deduct from the peculium
of my ordinary slave what the sub-slaves owe me? And the first question is,
whether their peculia are included in that of the ordinary slave.
Proculus and Atilicinus think that as the sub-slaves belong to the peculium
together with their own peculia, and indeed, what their owner (that
is to say the ordinary slave) owes me can be deducted from their peculium,
but that, however, which the sub-slaves themselves owe, can only be
deducted from their own peculium.
Moreover, if they are indebted, not to me but to the ordinary slave, the
amount due will be deducted from their peculium as owing to a
fellow-slave. That, however, which the ordinary slave owes to them will not be
deducted from the peculium of the former, because their peculium
is included in his. Servius was of this opinion, but I hold that their
peculium will be increased, just as if a master is indebted to his
slave.
18. Paulus, Questions, Book IV.
The result of this is that if his own peculium is left to
Stichus, and he brings suit under the will, he will not be compelled to
surrender what his sub-slave owes to the testator, unless the sub-slave has a
peculium.
19. Ulpianus, On the Edict, Book XXIX.
Hence the question arises whether, if an action is brought on a
peculium on account of the ordinary slave, proceedings can also be
instituted with reference to the sub-slave, and I think this cannot be done.
But where an action has been brought on the peculium of a sub-slave, one
can also be brought on the peculium of the ordinary slave.
(1) There may be in my hands a peculium held by two different
legal titles; as, for instance, if there is a dotal slave, he may have a peculium in which I am interested, and he may also have one in
which my wife is interested, for what he has obtained through the business of
the husband, or by his labor, belongs to the husband; and hence, if he has been
appointed an heir, or a legacy has been bequeathed to him with reference to the
husband, Pomponius says that he is not obliged to give it up. Therefore, if an
action is brought against me on a contract in which I am interested, can I
deduct everything that is owing to me, whether connected with my own business
or with that of my wife? Or do we separate the cases of the husband and wife so
far as the two peculia are concerned, to enable the origin of the debt
for which suit is brought to be considered; so that if, in fact, proceedings
are instituted with reference to the peculium in which the wife is
concerned, I can deduct what is due from that contract, if on a contract in
which I am interested I can deduct what belongs to me?
This question is more clearly treated in the case of an usufructuary,
whether suit on the peculium can be brought against him only on the
contract which concerns him, or whether it can be brought on any contract?
Marcellus states that the usufructuary is also liable, and on any contract, for
he who makes the contract considers the entire peculium of the slave to
be his own property. He says that it is evident that it must be admitted, in
any event, that when the party who is interested in the matter has been first
sued, he who has not obtained anything may be sued for the remainder. This
opinion is the more reasonable one, and is approved by Papinianus. It must also
be held in the case of two bona-fide purchasers. But in the case of the
husband, it is better to say simply that he is liable to the action on the
peculium. If, however, the husband had paid something on account of a
slave of this kind, can he deduct it as against the wife bringing an action on
account of her dowry? And he says that if what was paid to the creditor relates
to the peculium of each kind, it should be deducted pro rata from
the peculium of both, and from this it may be understood that if the
contract had reference to either peculium, there will be, on the one
hand, a deduction made for the wife alone, and on the other, none will be made,
if the contract had reference to that peculium which remained with the
husband.
(2) Sometimes an action on the peculium is granted to the
usufructuary himself against the master; as, for instance, if the slave has a
peculium with reference to the former but with reference to the latter
he has none, or less than what is due to the usufructuary. Conversely speaking,
the same thing takes place, although in the case of two owners an action on
partnership or one for the partition of common property will be sufficient;
20. Paulus, On the Edict, Book XXX.
For partners cannot bring the action on peculium against one
another.
21. Ulpianus, On the Edict, Book XXIX.
The Prætor has also, for the best of reasons, charged to the
peculium whatever the master had done with malicious intent through which the peculium is diminished. We must, however, understand
malicious intent to signify where he has deprived him of the peculium,
and also where he has permitted him to involve the affairs of the
peculium to the prejudice of creditors; and Mela writes that this is an
act performed with malicious intent.
Moreover, if when anyone entertains the idea that some other party is
going to bring an action against him, and transfer the peculium to
someone else, he is not free from fraud. If, however, he pays the debt to a
third party, I have no doubt that he is not liable, as he pays a creditor, and
it is lawful for a creditor to be diligent in recovering what belongs to
him.
(1) If the act is committed through the fraud of a guardian, the curator
of an insane person, or an agent, it should be considered whether the ward, or
the insane person, or the principal should be sued on the peculium? I
think that if the guardian is solvent, the ward should make good what has been
lost through his fraud, and especially is this the case if anything has come
into his hands; and so Pomponius states in the Eighth Book of the Epistles. The
same must be said in the case of a curator or an agent.
(2) A purchaser will not be liable for the fraud of the vendor, nor will
the heir or other successor, except to the extent that property has come into
his hands by reason of it.
(3) Whether the fraud has been committed before or after issue has been
joined, it comes within the jurisdiction of the court.
(4) If the master or father refuses to answer in the action on
peculium, he should not be heard, but he must be compelled to join issue
as in the case of any other personal action.
22. Pomponius, On Sabinus, Book VII.
If the master has given security against threatened injury with
reference to a house which is part of the peculium, this should be taken
into account, and therefore security should be furnished by the party who is
bringing suit on the peculium.
23. The Same, On Sabinus, Book IX.
The party giving security against threatened injury with reference to a
house belonging to the peculium, must furnish it for the entire amount,
just as a noxal action on account of a sub-slave must be defended for the full
amount, because the plaintiff, if the defence is not properly made, removes the
property, or holds it in possession as a pledge.
24. Ulpianus, On Sabinus, Book XXVI.
The curator of an insane person can both give and refuse the management
of the peculium to the slave, as well as to the son of the said insane
person.
25. Pomponius, On Sabinus, Book XXIII.
Any clothing is included in the peculium which the master has
given for the slave to make use of permanently, and has delivered it to him with the understanding that no one else shall use it, and that it will
be kept by him in compliance with these conditions. Clothing, however, which
the master had given to the slave for temporary use and only to be employed for
certain purposes at certain times, for example, when he is in attendance upon
him, or waits upon him at the table, does not become part of the peculium.
26. Paulus, On the Edict, Book XXX.
If the master has once, in a case of this kind, that is to say, where he
has been guilty of fraud, made good the amount of the peculium after he
has been sued; he will not be compelled to pay anything to others on the same
ground. And, moreover, if the slave owes him as much as that by which he has
fraudulently diminished the amount, judgment should not be rendered against
him. It follows from what has been said that also where the slave has been
manumitted or alienated, he will be liable also on the ground of fraud, within
the year.
27. Gaius, On the Provincial Edict, Book IX.
The action on the peculium is granted on account of both female
slaves, and daughters under paternal control, and especially where the woman is
a tailoress or a weaver, or conducts any ordinary trade, this action can be
brought against her. Julianus says that the action on deposit, and also that on
loan for use, should be granted with reference to them, and that the
contributory action should be granted if they have transacted business with
merchandise belonging to the peculium to the knowledge of the father or
the master. This is still more certain where property has been employed for the
benefit of the father or master, and the contract was made under his
direction.
(1) It is established that the heir of the master should also deduct
such property belonging to the estate as the slave, on whose account suit on
the peculium is brought against him, had either removed, consumed, or
damaged before the estate was entered upon.
(2) Where a slave has been alienated, although the Prætor promises
an action on the peculium within a year, against the party who alienated
him, still, an action is granted against the new master; and it makes no
difference whether he has acquired another peculium with him, or whether
he has granted to the same slave what he bought or received as a gift along
with him at the time.
(3) It has also been decided (and Julianus approves of it) that
creditors are, in any event, to be allowed to bring suit either for shares
against individuals, or against any one party for the entire amount.
(4) Julianus, however, does not think that the party who sold the slave
should be permitted to bring an action on the peculium against the
purchaser with reference to what he lent to the slave before the sale.
(5) Moreover, if I make a loan to the slave of another, and buy him, and
then sell him, he also does not think that an action should be granted me
against the purchaser.
(6) He holds, however, that an action should be granted to me against
the vendor, but only within a year to be computed from the day of the purchase,
for the amount which I loaned him while he still belonged to another, that
being deducted from what the slave has, as peculium, with reference to
me.
(7) But as Julianus does not think that when he has been alienated, an
action should be granted to me against the purchaser, with reference to what I
myself have lent to my own slave; so also he denies that I should be allowed to
institute proceedings against the purchaser on account of what my own slave has
lent to another of my own slaves, if he to whom the loan was made has been
alienated.
(8) Where anyone has contracted with a slave belonging to two or more
persons, he should be allowed to bring suit for the entire amount against
anyone of the owners he wishes; for it is unjust that he who contracted with
one should be obliged to divide up his action against several adversaries, and
an account should be taken not only of the peculium which the said slave
has with reference to the party against whom proceedings are instituted, but
also of that in which the other owner or owners are interested. No loss,
however, will result from this to the party against whom judgment was rendered,
as he can himself recover from his partner or partners by the action of
partnership, or by that for the division of common property, whatever he has
paid over and above his share.
Julianus says that this will apply where the other owner was entitled to
any peculium, for, in this instance, each one, by paying, will be held
to have released his partner from debt; but where there is no peculium
in which the other is interested, the contrary rule applies, because he is
not understood to release him from debt in any way.
28. Julianus, Digest, Book XL
Wherefore, if no one has become the heir or possessor of the estate of
the partner, he against whom the action was brought should have judgment
rendered against him for the amount of whatever peculium he may be
entitled to in addition to as much as he can obtain out of the estate.
29. Gaius, On the Provincial Edict, Book IX.
Where anyone has, by will, ordered that a slave shall be free, and has
left as heirs persons who have contracted with said slave, the coheirs may
proceed against one another by the action De peculio, for each one is
liable to anyone else who brings suit for the amount of the peculium to
which he is entitled.
(1) Even though a master prohibits a contract to be made with a slave,
an action on the peculium will lie against him.
30. Ulpianus, On the Edict, Book XXIX.
The question arises whether the action on the peculium may be
brought, even if there is nothing in the peculium when proceedings are
instituted, provided only there is something in it at the time that judgment was rendered? Proculus and Pegasus say that it will, nevertheless,
lie, for the claim is properly set forth, even though there may be nothing in
the peculium. It has been established that the same rule applies with
reference to an action for production, and an action in rem. This
opinion is also approved by us.
(1) Where the action is brought against one who is heir to a share of
the estate of his master or father, judgment must be rendered against him only
to the amount of the peculium to which the heir who is sued is entitled.
The same rule applies where property has been employed for his benefit,
proportionately, unless he has used something for the benefit of the heir
himself, nor can the heir be sued like one of the joint-owners, but only for
his share.
(2) But if the slave himself is appointed heir to a share, the action
may also be brought against him, in like manner.
(3) Where, however, the son is appointed, although only for a share, he
will, nevertheless, be liable to an action for the entire amount, but if he
wishes to obtain the proportionate obligation of his co-heir, he should be
heard; for what if the property has been employed for the benefit of the
father? Why should not the son recover from his co-heir what is included in the
estate of his father? The rule is the same where the peculium, is very
valuable.
(4) He who has once brought an action on the peculium, can again
bring suit for the remainder of the debt if the peculium has been
increased.
(5) Where a creditor has been beaten by a vendor by means of an
exception grounded on the lapse of a year, relief should be granted him against
the purchaser; but if this has been effected by any other exception, he should
only be relieved to the extent that, where the amount which he could have
obtained from the vendor has been deducted, he may recover the remainder from
the purchaser.
(6) Where fraud is alleged, account must be taken of the time, for the
Prætor might not permit fraud to be pleaded in bar after the term for
bringing an action on fraud has elapsed, since this action is not granted after
the expiration of the time established by law.
(7) In the case of the heir, however, the clause relating to fraud ought
to be drawn up with reference to what has come into his hands, and not for more
than this.
31. Paulus, On the Edict, Book XXX.
Where, however, the heir himself has committed fraud he must make good
the entire amount.
32. Ulpianus, Disputations, Book II.
Where one of two or more heirs of a party who could have been sued
within a year, has an action brought against him, and the slave has been
manumitted, or this has been directed to be done, or he has been sold or died,
all the heirs will be released from liability; even though the party who is
sued may not have judgment rendered against him for a larger amount than that
of the peculium which he has in his hands, and this Julianus also stated. The same rule applies where the
property was employed for the benefit of any of the heirs. Where, however,
there are several usufructuaries or bona-fide possessors, and one is
sued, he releases the others, although he should not have judgment rendered
against him for a greater amount of the peculium than that which he has
in his possession. But although this takes place in accordance with the strict
rule of law, still, equity demands that an action should be granted against
those who are released by an accident of the law, so that recovery rather than
the bringing of the suit should discharge them; for he who makes the contract
with the slave has in his mind, as his property, the entire amount of his
peculium, wherever it may be.
(1) But although in this action the former one is restored, still, an
account should be taken of both the increase and the decrease; and, therefore,
whether at present there is nothing in the peculium or something has
accrued to it, the present state of the peculium must be considered.
Hence, so far as both the vendor and the purchaser are concerned, this seems to
us to be the better opinion, namely: that we can recover from the purchaser
what has accrued to the peculium and the claim of the purchaser is not
to be regarded as retroactive, to the time when the vendor was sued, and as
included in the same legal proceeding.
(2) If the vendor of the slave sells him along with the peculium,
and delivers the peculium, suit cannot be brought against him on the
same, even within a year; for, as Neratius has stated, this price of the slave
is not peculium.
33. Javolenus, On Cassius, Book XII.
But where anyone has sold a slave with the understanding that he was to
receive a price for the peculium, the peculium is held to be in
the hands of the party to whom the price of the same was paid.
34. Pomponius, Various Passages, Book XII.
And not in the hands of him who holds the property constituting the
peculium.
35. Javolenus, On Cassius, Book XII.
But where the heir was directed to deliver the peculium on
receipt of a certain sum, the peculium is not held to be in the hands of
the heir.
36. Ulpianus, Disputations, Book II.
It is a question whether, in contracts entered into in good faith, the
father or master should be liable merely for the peculium, or for the
entire amount; just as had been discussed in the action on dowry, where a dowry
is given to a son, whether the father can only be sued for the amount of the
peculium? I, however, think that the action can be brought not only for
the amount of the peculium, but also to the extent that the woman has
been deceived and defrauded by the malicious contrivance of the father; for, if he holds the property and is
not ready to surrender it, it is only just that he should have judgment
rendered against him for the amount that it is worth; for Pomponius said that
what is expressly stated in a case of a slave to whom property has been given
in pledge must also be understood to apply to other bona-fide actions.
For if property has been given in pledge to a slave, the action can be brought
not only for the peculium, and for what has been employed in the
business of the master, but it has also this additional sentence: "To the
extent that the plaintiff has been deceived and defrauded by the malicious
contrivance of the master." The master is held to have acted fraudulently if he
is unwilling to make restitution when he has the power to do so.
37. Julianus, Digest, Book XII.
If a creditor of your son appoints you his heir, and you sell the
estate, you will be liable for the peculium under this clause of the
stipulation, namely: "Whatever sum of money derived from the estate that shall
come into your hands."
(1) If you permit your slave to purchase a sub-slave for eight aurei,
and he purchases him for ten, and writes to you that he has bought him for
eight, and you allow him to pay eight out of your money, and he pays ten, you
can recover only two aurei on this ground, and these will be made good
to the vendor only to the amount of the peculium of the slave.
(2) I sold to Titius a slave which I held in common either with him or
with Sempronius. Before an action De peculio was brought against me
because of said slave, the question arose whether, in a suit on the peculium
against Titius or against Sempronius, an account should be taken of the
peculium which was in my hands? I stated that, if the action was brought
against Sempronius, under no circumstances, should an account be taken of the
peculium in my hands, because he would have no right of action against
me by which he could recover what he had paid.
Moreover, if an action should be brought against Titius more than a year
after I have made the sale, in like manner, the peculium in my hands
should not be considered, for an action De peculio cannot now be brought
against me. If, however, the action is brought within the year, then an account
ought also to be taken of this peculium, for it is established that
where the slave has been alienated, the creditor should be permitted to proceed
against both the vendor and the purchaser.
(3) Where an action on the peculium has been brought against a
party who has an usufruct in the slave, and the creditor has recovered less
than the amount due to him, it is not unjust that he should obtain what he is
entitled to out of the entire peculium, whether this is in the hands of
the usufructuary or of the owner. It makes no difference whether the slave has
hired his own services from the usufructuary, or has borrowed money from him.
Therefore, an action should be granted him against the owner of the property,
and that should be deducted which the slave has, as peculium, with reference to the
usufructuary.
38. Africanus, Questions, Book VIII.
I deposited ten aurei with a son under paternal control, and I
bring an action of deposit on the peculium. Although the son owes the
father nothing, and holds these ten aurei he thought, nevertheless, that
judgment should no more be rendered against the father than if there was no
peculium besides this, for as this money remains mine, it is not
included in the peculium. He also says that if any other person
whosoever brings suit for the peculium, there should not be the least
doubt that it must not be computed. Therefore I ought to bring an action for
production, and when the property is produced, bring one to recover it.
(1) Where a girl who is about to marry a son under paternal control
promises him a certain sum of money as dowry, and a divorce having been
obtained, she brings an action for the whole amount against the father; should
she be released from the entire promise, or ought what the son owes the father
be deducted? He answered that she should be released from the entire promise,
since if an action was brought against her on the promise, she could certainly
protect herself by the exception based on malicious intent.
(2) Stichus has in his peculium Pamphilus, who is worth ten
aurei, and the said Pamphilus owes the master five aurei. If an
action on the peculium is brought on account of Stichus, it was held
that the value of Pamphilus should be estimated, and, indeed, the entire value,
without deducting what Pamphilus owes to the master, for no one can be
understood to be himself in his own peculium; and therefore in this
instance the master will suffer a loss, just as he would if he had made a loan
to any other of his slaves who had no peculium. He says that it will
appear more evident that this is true, if it is stated that the peculium
was left to Stichus, who, if he brings suit under the will, will certainly
not be compelled to suffer a deduction for the amount that his sub-slave owes,
unless this is taken out of his own peculium; otherwise the result will
be that if the sub-slave owes the master just as much, and he himself will be
understood to have nothing in the peculium, which is certainly
absurd.
(3) I lent money to a slave whom I had sold to you. The question arose
whether the action De peculio should be granted to me against you, in
order that what remained in my hands out of the peculium should be
deducted. This, in fact, is not in the slightest degree true, nor will it make
any difference whether I institute proceedings within a year from the time that
I made the sale, or afterwards; for, indeed, an action against me will not be
granted to others who contracted with him at that time. Again, on the other
hand, where those who had contracted previously with this slave bring an action
against me, I cannot deduct what he began to owe me afterwards. From this it is
apparent that the liability of the peculium which remained in my hands
is not, in any way, affected by contracts made at a later date.
39. Florentinus, Institutes, Book XI.
The peculium also consists of what anyone has saved by his own
economy, or what he has, by the performance of any service, merited as a gift
from someone, where the donor intended that the slave should have this as his
own property.
40. Marcianus, Rules, Book V.
The peculium is created, grows, decreases, and dies, and
therefore Papirius Fronto very properly says that the peculium resembles
a man.
(1) The question arose how a peculium is created. The ancients
made a distinction in this respect, for if the slave has acquired what the
master was not bound to furnish, this is peculium, but if he has
acquired tunics or anything of this kind with which the master is bound to
provide him, it is not peculium. Therefore peculium is created in
this way, it grows when it is increased, it decreases when sub-slaves cease to
exist or property is destroyed, it dies when it is taken away.
41. Ulpianus, On Sabinus, Book XLIII.
A slave cannot owe anything, nor can anything be due to a slave; but
when we make a misuse of this word we are rather indicating a fact, than
referring the obligation to the Civil Law. Hence the master can rightfully
demand from strangers what is owing to a slave, and with respect to what the
slave himself owes, an action for this cause is granted against the master, on
the peculium; and also to the extent that property has been employed in
the affairs of the master.
42. The Same, On the Edict, Book XII.
Some authorities very properly hold that an action on the peculium
should be granted against an arrogator; although Sabinus and Cassius think
that an action on the peculium should not be granted on account of
business previously transacted.
43. Paulus, On the Edict, Book XXX.
If, after I have brought an action against you on the peculium,
and, before the case has been decided, you have sold a slave; Labeo says
that judgment ought to be rendered against you with reference also to the
peculium which he has acquired while in the hands of a purchaser, and
that relief should not be granted you; for this happened through your own fault
since you sold the slave.
44. Ulpianus, On the Edict, Book LXIII.
Where anyone has made a contract with a son under paternal control, he
has two debtors, the son for the entire amount, and the father only to the
amount of the peculium.
45. Paulus, On the Edict, Book LXI.
And, therefore, if the father has taken the peculium away from
the son, the creditors can, nevertheless, bring suit against the son.
46. The Same, On the Edict, Book LX.
He who grants the management of the peculium is understood to
permit generally what he would be willing to permit specifically.
47. The Same, On Plautius, Book IV.
Whenever a notice is placed in a shop as follows: "I forbid any business
to be transacted with my slave Januarius," it is established that the master
has only obtained a release from liability under the Institorian Action, and
not under that on the peculium.
(1) Sabinus gave the opinion that where a slave had become a surety, an
action De peculio should not be granted against the master, unless the
security had been furnished for the business of the master, or concerning
property belonging to the peculium.
(2) If the action De peculio has once been brought, although when
judgment is rendered there is found to be less in the peculium than he
owes, it has, nevertheless, been established that there is no ground for giving
security with reference to a future increase in the peculium, as this
takes place in the action on partnership, because the partner owes the entire
amount.
(3) Where a creditor of the slave has recovered a portion of the debt
from the purchaser, Proculus says that an equitable action can be brought
against the vendor for the remainder, but the plaintiff must not be allowed, in
the beginning, to divide the action, so as to proceed at the same time against
the purchaser and the vendor; since it is enough that this alone should be
granted to him; so that when, having selected one defendant, he recovers less
than the debt, an action will be granted him against the other, the former
action having been rescinded. This is the modern practice.
(4) Not only any creditor whosoever can institute proceedings against
the vendor on account of business previously transacted, but the purchaser
himself can also do so, (and this opinion was held by Julianus), although he
himself can make a deduction against another plaintiff, provided he makes
allowance for what he has in his hands.
(5) Where a slave is sold without his peculium, the result is
that the vendor can make use of the deduction; and if, after the sale, the
slave becomes indebted to the vendor, this does not diminish the peculium,
because he does not owe his master.
(6) What we have stated with reference to purchaser and vendor is the
same as if ownership was changed in any other way, as by a legacy or by the
gift of a dowry; for the peculium of the slave, wherever it may be, is
understood to resemble the property of a freeman.
48. The Same, On Plautius, Book XVII.
The free management of the peculium does not remain in the case
of a fugitive or of a slave who has been stolen, nor in case of one who is not
known to be either alive or dead.
(1) Anyone, to whom the management of the peculium has been
given, can substitute his own debtor.
49. Pomponius, On Quintus Mucius, Book IV.
Not only is that peculium which an owner has granted to his
slave, but also whatever has been acquired without his knowledge, but which, if
he had known of it, he would have permitted to be in the peculium.
(1) If my slave, without my knowledge, transacts my business, he will be
considered to be my debtor to the same extent as he would have been liable, if,
being a freeman, he had attended to it.
(2) In order that a slave may be considered a debtor to the master or
the master to the slave, attention must be paid to the regulations of the Civil
Law; and therefore, if the master has stated in his account that he is indebted
to his slave, when, in fact, neither had he borrowed money, nor had any other
cause for debt previously existed, the mere statement of account does not
render him a debtor.
50. Papinianus, Questions, Book IX.
At the time when there is nothing in the peculium, the father
conceals himself, I, being about to bring an action De peculio against
him, cannot be placed in possession of his property for the purpose of
preserving it, because he who would be entitled to be discharged from liability
if he had joined issue, is not concealing himself for the purpose of committing
fraud. Nor does it make any difference if it should happen that a judgment
against him may result; for, also, if a debt is due at a certain time, or under
some condition, the party is not held to conceal himself on account of fraud,
although he may be unjustly condemned by the judge. Julianus, however, thinks
that a surety given at the time when there is nothing in the peculium is
liable, since the surety can be accepted for a future right of action if he is
accepted in this way.
(1) If a creditor appoints as heir a father who is liable on the
peculium, since the time of death is regarded with a view to the
operation of Lex Falcidia, the peculium in existence at that time
will be taken into consideration.
(2) Even after the master has been sued on the peculium, a surety
can be taken in behalf of the slave; and therefore, for the same reason as that
for which if a slave should pay the money after issue has been joined in an
action, he cannot recover it any more than if issue had not been joined, a
surety will be held to have been lawfully accepted, because the natural
obligation, which even a slave is held to incur, is not made an issue in the
controversy.
(3) A slave belonging to another, while he was serving me in good faith,
paid me money borrowed from Titius, in order that I might manumit him, and I
did so; the creditor asked whom he could sue on the peculium. I said
that, although in other instances the creditor would have the choice, yet in
the one stated suit should be brought against the master, and he could bring an
action against me for production of the money which had been obtained by him,
and had not been alienated on account of the transaction which was said to have
taken place with reference to the civil condition of the slave; nor should the
distinction of those be admitted who think that if I do not manumit the slave, the money should belong to his master, but if the
manumission takes place, the money is deemed to have been acquired by me, since
it is given to me, rather on account of my business, than as being derived from
my property.
51. Scævola, Questions, Book II.
With reference to what is due to a slave from strangers, the master
should, by no means, have judgment rendered against him for the amount of the
debt, where anyone brings suit on the peculium; since both the expense
incurred in bringing the action and the result of the execution may be
uncertain, and the delay of time granted to those who have been held judicially
liable, or that consumed in the sale of the property, should be considered, if
this is the better thing to do; therefore, if the party is ready to assign his
rights of action he will be discharged.
What is said where an action is brought against one of several partners,
namely: that the entire peculium must be computed, because the
proceeding is against the partner, will have the same result if the party is
ready to assign his rights of action; and, in the case of all those whom we say
are liable on this account since they have a right of action, the substitution
takes the place of legal payment.
52. Paulus, Questions, Book IV.
A question is asked with reference to an actual occurrence,
namely: . where a party who was administering a guardianship as a freeman was
pronounced to be a slave, whether, if his master was sued by the ward whose
claim has been stated by rescript to be preferable to those of other creditors
of the slave, what is owing to the master should be deducted from the
peculium. And if you think it can be deducted, whether it makes any
difference if he became indebted to the master while he was still enjoying his
freedom, or afterwards; and will the action on the peculium lie in favor
of a boy who has not reached puberty? I answered that no privileged claim could
take preference over that of the father or master, if he was sued on the
peculium on account of the son or the slave. It is evident that in the
case of other creditors account should be taken of privileged claims, for what
if a son has received a dowry or has managed a guardianship? This has been very
properly stated in a rescript, with reference to a slave who was acting as
guardian, and, for the reason that the position of the more diligent creditor
is usually better than that of the others, so far as they are concerned, the
action will be barred. Clearly if he has loaned money out of property belonging
to the ward or has deposited money in a chest,(1) an action for the
recovery of the same will be granted him, as well as an equitable action
against the debtor; that is to say, if they have used up the money, for he had
no power to alienate it. This also should be held in the case of any
guardian.
Nor do I think it makes any difference whether, when he became indebted
to the master, he was in possession of his freedom, or whether this happened subsequently; for if I make a loan to the slave of Titius,
and then become his master, I can deduct what I have previously lent him, if
suit is brought against me on the peculium. What course must then be
pursued? Since proceedings cannot be instituted on the peculium, an
equitable action founded on that on guardianship, should be granted against the
master, so that what this party had as his own property may be understood to be
his peculium.
(1) If a dowry is given to a son under paternal control, or he has
administered a guardianship, an account should be taken of the privileged
claims in an action on the peculium, and, in the meantime, continuance
having been granted in the action of other creditors, or security furnished, if
those who have no privilege institute proceedings first, what they have
received shall be restored, if suit on the privileged claim is afterwards
brought against the father.
53. The Same, Questions, Book XL
If Stichus was not deprived of the peculium when he was
manumitted, it is held to have been granted; he cannot, however, sue debtors
unless the rights of action have been assigned to him.
54. Scævola, Opinions, Book I.
A testator bequeathed to one of his heirs, in addition to his share,
certain lands already equipped, together with the slaves; these slaves were the
debtors of the master. The question arose whether an action on the peculium
would lie against him in favor of the other heir? The answer was that it
would not.
55. Neratius, Opinions, Book I.
He whom I was suing on the peculium was forcibly carried away by
you; what was the peculium at the time that you removed him by force
must be considered.
56. Paulus, On Neratius, Book II.
What my slave has promised to pay to me for one of my debtors should be
deducted from the peculium, and is, nevertheless, due from the debtor.
But let us see whether the obligation of him for whom the promise was made
should not be held to become a part of the peculium. Paulus says that
if, when anyone brings an action on the peculium the master wishes to
deduct this, he undoubtedly makes the claim part of the peculium.
57. Tryphoninus, Disputations, Book VIII.
Where a son or a slave, with reference to whom an action on the
peculium alone has been brought, dies before the case is terminated,
that peculium will be taken into consideration which any of the parties
possessed when he died.
(1) Julianus says that where anyone by his will directs that his slave
shall be freed, and bequeaths to him his peculium, he is understood to
bequeath it at the time when he becomes free; and therefore all increase of the
peculium, of whatever description, acquired before the estate was
entered on, will belong to the manumitted slave.
(2) But where anyone bequeaths the peculium of the slave to a
stranger, the question is as to the supposed intention of the testator; and the
more probable opinion is, that whatever was in the peculium at the time
of his death is bequeathed, with the understanding that any accessions which
may be made to the property of the peculium when the estate is entered
upon, as, for instance, the offspring of female slaves and the increase of
flocks, are owing, but that whatever was given to the slave or he acquires by
his own labor, does not belong to the legatee.
58. Scævola, Digest, Book V.
A party left to one of his heirs certain lands as they were
equipped, together with slaves and other property, and whatever was there.
These slaves were indebted to the master with reference to their monthly
accounts, as well as for other reasons. The question arose whether the action
on the peculium would lie in favor of the other heirs against him for
the money owed by them? The answer was that it would not lie.
FOOTNOTES
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