[AFRICANUS libro octauo quaestionum. ] §14.1.7.prLucius Titius Stichum magistrum nauis prae posuit: is pecuniam mutuatus cauit se in refectionem nauis eam accepisse: quaesitum est, an non aliter Titius exercitoria teneretur, quam si creditor probaret pecuniam in refectionem nauis esse consumptam.
[AFRICANUS libro octauo quaestionum.] Lucius Titius appointed Stichus as master of a ship; the latter, having borrowed money, declared in writing that he had received it for the repair of the ship. The question was asked whether Titius would be liable under the exercitorian action only if the creditor proved that the money had been spent on the repair of the ship.
respondit creditorem utiliter acturum, si, cum pecunia crederetur, nauis in ea causa fuisset, ut refici deberet: etenim ut non oporteret creditorem ad hoc adstringi, ut ipse reficiendae nauis 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 nauis, ut refici deberet, multo tamen maior pecunia credita fuerit, quam ad eam rem esset necessaria, non debere in solidum aduersus dominum nauis actionem dari.
He answered that the creditor would sue successfully if, at the time the money was lent, the ship was in such a state that it needed to be repaired; for just as the creditor ought not to be forced to take upon himself the care of repairing the ship and to manage the business of the owner (which would certainly be the case if he were required to prove that the money had been spent on the repair), so it must be required that he knows he is lending for the purpose for which the master was appointed, which certainly cannot be the case unless he also knows that the money is necessary for the repair. Therefore, even if the ship was in such a condition that it needed to be repaired, yet if a much larger sum of money was lent than was necessary for that purpose, an action in solidum against the owner of the ship ought not to be granted.
§14.1.7.1Interdum etiam illud aestimandum, an in eo loco pecunia credita sit, in quo id, propter quod credebatur, comparari potuerit: quid enim, inquit, si ad uelum emendum in eiusmodi insula pecuniam quis crediderit, in qua omnino uelum comparari non poterat? et in summa aliquam diligentiam in ea creditorem debere praestare.
Sometimes it must also be considered whether the money was lent in a place where that for which it was lent could be purchased; "for what if," he says, "someone lent money for buying a sail on such an island where no sail could be purchased at all?" In short, the creditor must display some diligence in this matter.
§14.1.7.2Eadem fere dicenda ait et si de institoria actione quaeratur: nam tunc quoque creditorem scire debere necessariam esse mercis comparationem, cui emendae seruus sit praepositus, et sufficere, si in hoc crediderit, non etiam illud exigendum, ut ipse curam suscipiat, an in hanc rem pecunia eroganda est.
He says that much the same must be said even if the inquiry concerns the institorian action; for in that case too, the creditor ought to know that the purchase of the merchandise, for buying which the slave was appointed, is necessary, and it is sufficient if he lent for this purpose, without also requiring him to take upon himself the care of whether the money is actually spent on this matter.