[ULPIANUS libro uicensimo octauo ad edictum. ]
[ULPIANUS on the edict, book 28.] There is no one who is ignorant of the utility of this edict.
§14.1.1.prUtilitatem huius edicti patere nemo est qui ignoret. nam cum interdum ignari, cuius sint condicionis uel quales, cum magistris propter nauigandi necessitatem contrahamus, aequum fuit eum, qui magistrum naui imposuit, teneri, ut tenetur, qui institorem tabernae uel negotio praeposuit, cum sit maior necessitas contrahendi cum magistro quam institore.
For since we sometimes enter into contracts with shipmasters under the necessity of sailing, while being ignorant of their status or of what sort of persons they are, it was equitable that the person who placed a master in charge of a ship should be held liable, just as he who appointed a manager of a shop or a business is held liable, since there is a greater necessity of contracting with a master than with a shop manager.
quippe res patitur, ut de condicione quis institoris dispiciat et sic contrahat: in nauis magistro non ita, nam interdum locus tempus non patitur plenius deliberandi consilium.
Indeed, the nature of the case allows one to examine the status of a shop manager and thus contract with him; but with the master of a ship it is not so, for sometimes the place and the time do not allow fuller consideration for forming a plan.
§14.1.1.1Magistrum nauis accipere debemus, cui totius nauis cura mandata est.
We must understand the master of a ship to be the one to whom the care of the entire ship has been entrusted.
§14.1.1.2Sed si cum quolibet nautarum sit contractum, non datur actio in exercitorem, quamquam ex delicto cuiusuis eorum, qui nauis nauigandae causa in naue sint, detur actio in exercitorem: alia enim est contrahendi causa, alia delinquendi, si quidem qui magistrum praeponit, contrahi cum eo permittit, qui nautas adhibet, non contrahi cum eis permittit, sed culpa et dolo carere eos curare debet.
But if a contract has been made with any of the sailors, an action is not granted against the exercitor, although an action is granted against the exercitor for the delict of any of those who are on board the ship for the purpose of sailing it. For the cause of contracting is one thing, and that of committing a delict is another; since he who appoints the master permits contracts to be made with him, whereas he who employs the sailors does not permit contracts to be made with them, but must see to it that they are free from fault and fraud.
§14.1.1.3Magistri autem imponuntur locandis nauibus uel ad merces uel uectoribus conducendis armamentisue emendis: sed etiamsi mercibus emendis uel uendendis fuerit praepositus, etiam hoc nomine obligat exercitorem.
Moreover, masters are appointed for the purpose of chartering ships either for cargo or for carrying passengers, or for buying tackle. But even if he has been appointed for the purpose of buying or selling merchandise, he binds the exercitor even on this account.
§14.1.1.4Cuius autem condicionis sit magister iste, nihil interest, utrum liber an seruus, et utrum exercitoris an alienus: sed nec cuius aetatis sit, intererit, sibi imputaturo qui praeposuit.
What the status of this master may be does not matter at all, whether he is a free man or a slave, and whether he belongs to the exercitor or to someone else; nor does it matter what his age is, since the person who appointed him must attribute the loss to himself.
§14.1.1.5Magistrum autem accipimus non solum, quem exercitor praeposuit, sed et eum, quem magister: et hoc consultus Iulianus in ignorante exercitore respondit: ceterum si scit et passus est eum in naue magisterio fungi, ipse eum imposuisse uidetur.
We understand as a master, however, not only the one whom the exercitor has appointed, but also the one whom the master has appointed; and Julian, on being consulted, gave this answer in a case where the exercitor was ignorant. On the other hand, if he knows and has allowed him to perform the office of master on the ship, he himself is deemed to have appointed him.
quae sententia mihi uidetur probabilis: omnia enim facta magistri debeo praestare qui eum praeposui, alioquin contrahentes deci- pientur: et facilius hoc in magistro quam institore admittendum propter utilitatem.
This opinion seems to me to be acceptable; for I, who appointed him, must guarantee all the acts of the master, otherwise those who contract with him will be deceived; and this is to be admitted more readily in the case of a master than in the case of a shop manager, because of its utility.
quid tamen si sic magistrum praeposuit, ne alium ei liceret praeponere? an adhuc Iuliani sententiam admittimus, uidendum est: finge enim et nominatim eum prohibuisse, ne Titio magistro utaris.
What if, however, he appointed the master on terms that he should not be allowed to appoint another in his place? It must be considered whether we still admit Julian's opinion. For imagine that he had specifically forbidden him to use Titius as master.
dicendum tamen erit eo usque producendam utilitatem nauigantium.
Nevertheless, it must be said that the utility of those who sail is to be extended thus far.
§14.1.1.6Nauem accipere debemus siue marinam siue fluuiatilem siue in aliquo stagno nauiget siue schedia sit.
We must understand a ship to mean either a sea-going ship or a river-going ship, or one that navigates on some lake, or even a raft.
§14.1.1.7Non autem ex omni causa praetor dat in exercitorem actionem, sed eius rei nomine, cuius ibi praepositus fuerit, id est si in eam rem praepositus sit, ut puta si ad onus uehendum locatum sit aut aliquas res emerit utiles nauiganti uel si quid reficiendae nauis causa contractum uel impensum est uel si quid nautae operarum nomine petent.
However, the praetor does not grant an action against the exercitor for every cause, but on account of that matter for which he was appointed there, that is, if he was appointed for that matter; as, for example, if the ship was chartered to carry a cargo, or if he bought some things useful for navigation, or if any contract was made or expense incurred for the purpose of repairing the ship, or if the sailors demand anything on account of their services.
§14.1.1.8Quid si mutuam pecuniam sumpserit, an eius rei nomine uideatur gestum? et Pegasus existimat, si ad usum eius rei, in quam praepositus est, fuerit mutuatus, dandam actionem, quam sententiam puto ueram: quid enim si ad armandam instruendamue nauem uel nautas exhibendos mutuatus est?
What if he has taken a loan of money? Shall it be deemed to have been done on account of that business? Pegasus thinks that if he borrowed for the use of that matter for which he was appointed, the action should be granted, which opinion I believe to be true. For what if he borrowed for the purpose of rigging or equipping the ship, or for maintaining the crew?
§14.1.1.9Unde quaerit Ofilius, si ad reficiendam nauem mutuatus nummos in suos usus conuerterit, an in exercitorem detur actio.
Hence Ofilius asks whether, if he borrowed money for the purpose of repairing the ship and then converted it to his own use, an action is granted against the exercitor.
et ait, si hac lege accepit quasi in nauem impensurus, mox mutauit uoluntatem, teneri exercitorem imputaturum sibi, cur talem praeposuerit: quod si ad initio consilium cepit fraudandi creditoris et hoc specialiter non expresserit, quod ad nauis causam accipit, contra esse: quam distinctionem Pedius probat.
And he says that if he received it on this condition, as though he were going to spend it on the ship, and afterwards changed his mind, the exercitor is liable, as having to blame himself for why he appointed such a man. But if from the beginning he formed the plan of defrauding the creditor and did not specifically declare that he was receiving it for the ship's cause, the contrary is true. Pedius approves of this distinction.
§14.1.1.10Sed et si in pretiis rerum emptarum fefellit magister, exercitoris erit damnum, non creditoris.
But even if the master has committed fraud in the prices of the things purchased, the loss will fall upon the exercitor, not upon the creditor.
§14.1.1.11Sed si ab alio mutuatus liberauit eum, qui in nauis refectionem crediderat, puto etiam huic dandam actionem, quasi in nauem crediderit.
But if, by borrowing from another, he has released the person who had lent money for the repair of the ship, I think that the action should be granted to this creditor as well, just as if he had lent money for the ship.