alieni iuri/slaves/minors limited capacity to...

LIMITED CAPACITY TO TRANSACT

ALIENI IURI/SLAVES/MINORS

SHIP WRECKAGE AND ACTIO EXERCITORIA

D. 14.7.1: AFRICANUS

8 quaestionum pr. Lucius Titius Stichum magistrum navis praeposuit: is pecuniam mutuatus cavit se in refectionem navis eam accepisse: quaesitum est, an non aliter Titius exercitoria teneretur, quam si creditor probaret pecuniam in refectionem navis esse consumptam. Respondit creditorem utiliter acturum, si, cum pecunia crederetur, navis in ea causa fuisset, ut refici deberet: etenim ut non oportet creditorem ad hoc adstringi, ut ipse reficiendae navis curam suscipiat et negotium domini gerat (quod certe futurum sit, si necesse habeat probare pecuniam in refectionem erogatam esse), ita illud exigendum, ut sciat in hoc se credere, cui rei magister quis sit praepositus, quod certe aliter fieri non potest, quam si illud quoque scierit necessariam refectioni pecuniam esse: quare etsi in ea causa fuerit navis, ut refici deberet, multo tamen maior pecunia credita fuerit, quam ad eam rem esset necessaria, non debere in solidum adversus dominum navis actionem dari. 1. Interdum etiam illud aestimandum, an in eo loco pecunia credita sit, in quo id, propter quod credebatur, comparari potuerit: quid enim, inquit, si ad velum emendum in eiusmodi insula pecuniam quis crediderit, in qua omnino velum comparari non potest? Et in summa aliquam diligentiam in ea creditorem debere praestare. 2. Eadem fere dicenda ait et si de institoria actione quaeratur: nam tunc quoque creditorem scire debere necessariam esse mercis comparationem, cui emendae servus sit praepositus, et sufficere, si in hoc crediderit, non etiam illud exigendum, ut ipse curam suscipiat, an in hanc rem pecunia eroganda est.



Lucius Titius appointed Stichus the master of a ship, and he, having borrowed money, stated that he received it for the purpose of repairing the ship. The question arose whether Titius was liable to an action on this ground only where the creditor proved that the money had been expended for the repair of the ship? The jurist replied that the creditor could properly bring an action if, when the money was lent, the ship was in such a condition as to need repairs; for, while the creditor should not be compelled to, himself, supervise the repair of the ship, and transact the business of the owner (which would certainly be the case if he was required to show that the money had been spent for repairs); still, it should be required of him that he know that he makes the loan for the purpose for which the master was appointed; and this certainly could not happen unless he also knew that the money was needed for repairs. Wherefore, even though the ship was in such a condition as to need repairs, still, if much more money was lent than was necessary for that purpose, an action for the entire amount should not be granted against the owner of the ship.



(1) Sometimes it should be considered whether the money was lent in a place in which that for which it was advanced could be obtained; for, as the jurist says, what would be the case if someone lent money for the purchase of a sail in an island of such a description that a sail could not be obtained there under any circumstances? And, in general, a creditor is obliged to exercise some care in the transaction. (2) Almost the same rule applies where inquiry is made with reference to the institorian action; for, in this instance also, the creditor must know that the purchase of the merchandise for which the slave was appointed was necessary; and it will be sufficient if he made the loan to this end, but it should not also be required that he should himself undertake the task of ascertaining whether the money was spent for this purpose.

LUCIUS APPOINTED HIS SLAVE ONESIMOS AS A CAPTAIN OF A SHIP (MAGISTER NAVIS). DURING A SUDDEN STORM THE SHIP LOST SAIL AND GOT HEAVILY DAMAGED. ONESIMOS ONLY NARROWLY ESCAPING THE SAD END MANAGED TO NAVIGATE THE WRECK TO A SMALL ISLAND. THERE HE FOUND HOROS, SLAVE-MANAGER OF PORCIUS, A WELL KNOWN MERCHANT IN ROME. ONESIMOS BORROWED 1000 DENARII FOR THE NEEDED REPAIRS (PRIMARILY FOR LINEN TO MAKE NEW SAILS). IT TURNED OUT HOWEVER,, THAT ON THE WHOLE ISLAND THERE WAS NO ONE WHO WOULD HAVE FABRIC IN STOCK, AND THUS ONESIMOS USED THE MONEY TO PAY THE EXPENSES OF THE CREW (FOOD, INN ETC). CAN PORCIUS SUE ONESIMOS’ MASTER TO RECOVER THE MONEY? (CF. D. 14,1,7,1).

• Lucius Valerius Pastor has given his son-in-power, Aulus, a sea vessel thus constituting a peculium of 1000 in value. Aulus in turn appointed as the ship-captain, Syrus, a slave owned by Quintus Porcius Eutychus. During a sudden storm the ship was wrecked but Syrus managed to arrive relatively safely to Rhodos. The value of the damaged ship was obviously reduced to as little as 200. At Rhodos Syrus borrowed 1200 from Kastor to repair the ship. Whom may he sue if he does not get the loan back and if the money has been lost? Would it make any difference if money was indeed used for the repairs?

• Who can claim the slave?

• Aulus, Gaius’ tutor, bought a slave from Lucius, paying with his pupil’s money. The slave was to be delivered in a week time. In this time the guardian died and Maevius became his heir.



Aulus Lucius



Aulus Lucius

Gaius



Aulus Lucius

Gaius

inhe

ritanc

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Aulus

Maevius

Lucius

Gaius

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SaleAulus

Maevius

Lucius

Gaius

inhe

ritanc

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Sale

action on sale

Aulus

Maevius

Lucius

Gaius

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ritanc

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Actio tutelae

Sale

action on sale

Aulus

Maevius

Lucius

Gaius

inhe

ritanc

e


DIRECT/INDIRECT

REPRESENTATION

• Roman law: indirect representation as the principle

• the agent (procurator) acquires/obliges (for) himself

• by a separate act he transfers the effects of the transaction to the represented

• not very practical, yet not too cumbersome:

• slaves/alieni iuris are the natural representatives of their patres (actiones adiecticiae qualitatis)

• Late classical law: actio institoria utilis if a free person sui iuris was appointed as the manager – further medieval development.

VOID-ABILITY OF LEGAL TRANSACTIONS• D.44.7.58 Licinius Rufinus, Rules, Book VIII.

A ward, through borrowing money [without his guardian authorisation], does not render himself liable even by natural law.

• D.46.1.16.4 (Julian, book 53 of digest): (4) Natural obligations are not estimated solely by the fact that some action can be brought on account of them, but also where the money, once paid, cannot be recovered. For although natural debtors cannot strictly be said to be indebted, still they may be considered such, and those who receive money from them to have obtained that to which they were entitled.

• D.26.8.5pr. Ulpianus, On Sabinus, Book XL. A ward cannot legally bind himself to his guardian by the authority of the latter. It is clear that, when there are several guardians, it must be held that the authority of one of them is sufficient to enable the ward to bind himself to another, whether he lends him money, or enters into a stipulation with him. Where, however, there is only one guardian, and he lends money to his ward, or enters into a stipulation with him, he will not be bound to the guardian, but he will be naturally liable to him for the amount by which he has been pecuniarily benefited. For the Divine Pius stated in a Rescript that an action should be granted against the ward in favour of the guardian and indeed in favour of anyone else, for the amount by which the ward was enriched at his expense through the transaction.

DONEC QUIS NUNC

he will not be bound to the guardian, but he will be naturally liable to him for the amount by which he has been pecuniarily benefited. For the Divine Pius stated in a Rescript that an action should be granted against the ward in favour of the guardian and indeed in favour of anyone else, for the amount by which the ward was enriched at his expense through the transaction.

• On the Kalends of December 50 CE Titius lent to twelve-years-old Marcus 1000 denari. The boy's guardian was not present nor he authorise the transaction later. Marcus used the money to pay his Greek teacher and later paid back the debt employing the coins taken from his own safe-box.


• A. Will the guardian be able to claim back the money pay to Titius? Why?



• B. Will the situation change if the original date of the case was after 160 CE, say the Kalends of December 175 CE?



• B. Will the situation change if the original date of the case was after 160 CE, say the Kalends of December 175 CE?

• C. Let’s assume the date of the transaction was indeed the Kalends of December 175 CE, yet Marcus, having got the money, gambled it away playing dice in the local tavern. Will the solution differ now?

• Pupil’s debtor, Lucius, who had promised him 1000 by a stipulation, gave the money to the pupil. The Guardian was not present there. As it turned out, the pupil spent all the money on a party for his friends.


• Did Lucius fulfil his obligation by handing 1000 over to the pupil?



• Does Lucius have to pay again?



• Does Lucius have to pay again? • What would happen if the money hadn’t

been spent, or had been used for pupil’s commodity?

DONEC QUIS NUNC

SENATUSCONSULTUM VELLEIANUM

Ulpian, Edict, book 29, D. 16,1,2pr.-3: Now, first in the reign of the deified Augustus, and then soon afterward in that of Claudius, it was forbidden by imperial edict for women to intercede on behalf of their husbands. Thereafter a senatus consultum was enacted by which help was given in a very full manner to all women; the wording of the senatus consultum follows:

DONEC QUIS NUNC


"Because Marcus Silanus and Velleus Tutor, the consuls, had written what ought to be done concerning the obligations of women who became debtors on behalf of others, the senate lays down the following: Although the law seems to have said before what pertains to the giving of verbal guarantees and loans of money on behalf of others for whom women have interceded, which is that neither a claim by these persons nor an action against the women should be given, since it is not fair that they perform male duties and are bound by obligations of this kind, the senate considers that they before whom the claim would be brought on this matter would act rightly and consistently if they took care that with regard to this matter the will of the senate was observed".

DONEC QUIS NUNC


And so let us examine the terms of the senatus consultum, having first praised the foresight of the most distinguished order [the senate], because it brought help to women, seduced and deceived in many cases of this kind, on account of the weakness of their sex. But relief is only granted to them if they have not been guilty of deceit; for this the deified Pius and Severus have laid down by rescript. This is because relief is given to those who have been deceived, not to those who deceive. This has also been stated in a Greek rescript of Severus in the following terms: "The decree of the senate does not give assistance to women who are guilty of deception"; for it was the vulnerability of women, not their cunning that deserved assistance.

DONEC QUIS NUNC


For just as by custom the undertaking of civil duties by them has been denied to women, and these [undertakings] for the most part are not valid by operation of law, so much the more had that power to be taken away from them in which not only their work and mere employment was concerned but even the risk of the family property.

DONEC QUIS NUNC

PERSONAL COLLATERAL

DONEC QUIS NUNC

PERSONAL COLLATERAL

• Principal Creditor: Do you promise to give me 10,000 sesterti?

DONEC QUIS NUNC

PERSONAL COLLATERAL


• Debtor: I do promise

DONEC QUIS NUNC

PERSONAL COLLATERAL



• Principal Creditor to Guarantor: Do you promise to give me the same?

DONEC QUIS NUNC

PERSONAL COLLATERAL




• Guarantor: I do promise

DONEC QUIS NUNC

PERSONAL COLLATERAL





TWO OBLIGATIONS PARALLEL ARE CREATED.

DONEC QUIS NUNC

PERSONAL COLLATERAL





TWO OBLIGATIONS PARALLEL ARE CREATED.THE PRINCIPAL DEBTOR AND THE GUARANTOR ARE

JOINTLY AND SEVERELY LIABLE

HOW DOES IT WORK?

• The creditor sues the female guarantor.

• Having examined the cases (causa cognita), the praetor grants the formula (which is not automatic!):

• D. 16.1.21 Calistratus: If a woman has interceded on behalf of another, but that which was received was turned to her profit, the exception of the Senate’s decree does not apply, because she does not become poor.

CONDICTIO CERTAE CREDITAE PECUNIAE WITH DEFENCE ON THE GROUNDS OF SENATUS CONSULTUM

FRAUD OF THE WOMAN

SC. VELLEIANUM

• D. 16.1.30. Paul, Sentences, Book II. Where a woman becomes surety for another with the intention to deceive, or when she knew that she could not be held liable, an exception based on the Decree of the Senate will not be granted her; for the most Noble Order of the Senate does not exclude the action which will lie on account of fraud committed by a woman.

WOMEN PROTECTED BECAUSE THEY MAY BE INEXPERIENCED. IF THEY KNOW THEY ARE NOT BOUND BY THE COLLATERAL PROVIDED, PROVE

THEMSELVES EXPERIENCED ENOUGH NOT TO BE PROTECTED

CAIUS AQUILIUS IUDEX ESTO. SI PARET NEGIDIA AULO AGERIO DECEM MILIA SESTERTIUM DARE OPORTERE, QUA DE RE AGITUR, CAIUS AQUILIUS IUDEX NEGIDIAM AULO AGERIO DECEM MILIA SESTERIUM CONDAMNATO, SI NON PARET ABSOLVITO.

LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT NEGIDIA OUGHT TO GIVE ACCORDING TO CIVIL LAW TO AULUS AGERIUS 10,000 SESTERTII, WHICH IS THE CASE MATTER HERE, LET THE JUDGE CAIUS AQUILIUS CONDEMN NUMERIA FOR 10,000 IN FAVOUR OF AULUS AGERIUS. IF IT DOES NOT APPEAR, LET HIM ABSOLVE

CAIUS AQUILIUS IUDEX ESTO. SI PARET NEGIDIA AULO AGERIO DECEM MILIA SESTERTIUM DARE OPORTERE, QUA DE RE AGITUR, SI QUID CONTRA SENATUS CONSULTUM VELLEIANUM FACTUM ESSE DICETUR, CAIUS AQUILIUS IUDEX NEGIDIAM AULO AGERIO DECEM MILIA SESTERIUM CONDAMNATO, SI NON PARET ABSOLVITO.

LET CAIUS AQUILIUS BE JUDGE. IF IT APPEARS THAT NEGIDIA OUGHT TO GIVE ACCORDING TO CIVIL LAW TO AULUS AGERIUS 10,000 SESTERTII, WHICH IS THE CASE MATTER HERE, UNLESS ANYTHING IS SAID TO HAVE HAPPENED AGAINST SENATUS CONSULTUM VELLEIANUM LET THE JUDGE CAIUS AQUILIUS CONDEMN NUMERIA FOR 10,000 IN FAVOUR OF AULUS AGERIUS. IF IT DOES NOT APPEAR, LET HIM ABSOLVE

WHOM WOULD THE LAW PROTECT?


• Seia has provided surety for her husband Aulus for the debt he has taken from 20 years old Quintus.



• Can he sue Seia for the money?



• Can he sue Seia for the money?

• Will the situation differ if Aulus were bankrupt?

DONEC QUIS NUNC

• D. 4.4.12. Gaius, On the Provincial Edict, Book IV.

• Where a woman intervenes in behalf of a third party in the suit of a minor, no action can be granted him against the woman, but he, just like other persons, will be barred by an exception; because under the Common Law he will be entitled to restitution by an action against the original debtor; and this is the case if the original debtor is solvent, otherwise, the woman cannot invoke the aid of the Decree of the Senate.

DONEC QUIS NUNC

• D. 14.6.3 Ulpianus libro 29 ad edictum

• pr. Si quis patrem familias esse credidit non vana simplicitate deceptus nec iuris ignorantia, sed quia publice pater familias plerisque videbatur, sic agebat, sic contrahebat, sic muneribus fungebatur, cessabit senatus consultum. […] 2. Proinde et in eo, qui scire non potuit, an filius familias sit, Iulianus libro duodecimo cessare senatus consultum ait, ut puta in pupillo vel minore viginti quinque annis. Sed in minore, causa cognita et a praetore succurrendum: in pupillo autem etiam alia ratione debuit dicere cessare senatus consultum, quod mutua pecunia non fit, quam sine tutoris auctoritate pupillus dat…

DONEC QUIS NUNC

• D. 14.6.3 Ulpian, On the Edict, Book XXIX.

• pr. Where someone believed an individual to be the head of a family (pater familias), not having been deceived by vain folly or ignorance of law, but because he was publicly considered by most persons to be such, and acted, made contracts, and performed the duties of offices as the head of a household, the Decree of the Senate will not be applicable. […]

DONEC QUIS NUNC

• D. 14.6.3 Ulpian, On the Edict, Book XXIX.

• (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;

DONEC QUIS NUNC

• What was the scope and the content of sc. Macedonianum? Why was this decree passed? Evaluate its justification and identify possible (dis)advantages of the act.

• Explain Ulpian's statement from the principium of the text. Why under these conditions the Decree would not be applicable?

• Explain two different reasons in virtue of which the senatusconsultum will not be applicable in the case of a ward (A) and of a minor (B) lending money to a son-in-power. What is the nature of the legal acts undertaken by A and B.

DONEC QUIS NUNC

• Aulus, a son in potestate of Marcus, lent from his peculium 1000 to Quintus, son in potestate of Septimus. Could Marcus recover the money? (cf. D. 14.6.3.2)

CASE


CASE


• just as Julianus himself states in the Twelfth Book of the Digest, that if a son under paternal control makes a loan the Decree of the Senate is not applicable, since the money does not become a loan even if he had the unrestricted management of the peculium. For the father, when he granted him the management of the peculium, did not give him permission to waste it, and therefore he says the right to bring suit for the recovery of the money remains with the father.

A JOYFUL CHANUKKAH!

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