[ULPIANUS libro uicensimo octauo ad edictum. ] §14.3.13.prHabebat quis seruum merci oleariae praepositum Arelate, eundem et mutuis pecuniis accipiendis: acceperat mutuam pecuniam: putans creditor ad merces eum accepisse egit proposita actione: probare non potuit mercis gratia eum accepisse.
[ULPIANUS from the twenty-eighth book on the Edict.] A certain person had a slave appointed in Arles for the olive-oil trade, and the same slave also for receiving mutual moneys (loans). The slave had received a loan. The creditor, thinking that he had received it for the goods, brought the proposed action (institorian action), but he could not prove that the slave had received it for the sake of the goods.
licet consumpta est actio nec amplius agere poterit, quasi pecuniis quoque mutuis accipiendis esset praepositus, tamen Iulianus utilem ei actionem competere ait.
Although the action has been consumed and he will no longer be able to sue as if the slave had also been appointed for receiving mutual moneys, Julian nevertheless says that an analogical action lies for him.
§14.3.13.1Meminisse autem oportebit institoria dominum ita demum teneri, si non nouauerit quis eam obligationem uel ab institore uel ab alio nouandi animo stipulando.
Moreover, it will be necessary to remember that the owner is bound by the institorian action only if someone has not novated that obligation by stipulating, with the intention of novating, either from the manager or from another person.
§14.3.13.2Si duo pluresue tabernam exerceant et seruum, quem ex disparibus partibus habebant, institorem praeposuerint, utrum pro dominicis partibus teneantur an pro aequalibus an pro portione mercis an uero in solidum, Iulianus quaerit.
If two or more persons run a shop and have appointed a slave, whom they owned in unequal shares, as manager, Julian asks whether they are bound in proportion to their ownership shares, or in equal shares, or in proportion to the goods, or indeed in solidum (jointly and severally).
et uerius esse ait exemplo exercitorum et de peculio actionis in solidum unumquemque conueniri posse, et quidquid is praestiterit qui conuentus est, societatis iudicio uel communi diuidundo consequetur, quam sententiam et supra probauimus.
And he says that it is more correct that each one can be sued in solidum, following the example of shipowners (exercitores) and of the action concerning peculium, and whatever the one who is sued has paid, he will recover by the action of partnership or for the division of common property; which opinion we also approved above.