[ULPIANUS libro uicensimo nono ad edictum. ] §14.4.5.prProcuratoris autem scientiam et dolum nocere debere domino neque Pomponius dubitat nec nos dubitamus.
[ULPIANUS, from the twenty-ninth book on the Edict.] Neither Pomponius nor we doubt that the knowledge and fraud of an agent must harm the principal.
§14.4.5.1Si uicarius serui mei negotieter, si quidem me sciente, tributoria tenebor, si me ignorante, ordinario sciente, de peculio eius actionem dandam Pomponius libro sexagensimo scripsit nec deducendum ex uicarii peculio, quod ordinario debetur, cum id quod mihi debetur deducatur.
If a vicarius of my slave should carry on business, if indeed with my knowledge, I shall be held liable to the action for distribution; if without my knowledge but with the knowledge of the ordinarius, Pomponius wrote in his sixtieth book that the action on the peculium must be granted, and that what is owed to the ordinarius must not be deducted from the peculium of the vicarius, although what is owed to me is deducted.
sed et uterque scierimus, et tributoriam et de peculio actionem competere ait, tributoriam uicarii nomine, de peculio uero ordinarii: eligere tamen debere agentem, qua potius actione experiatur, sic tamen, ut utrumque tribuatur et quod mihi et quod seruo debetur, cum, si seruus ordinarius ignorasset, deduceretur integrum, quod ei a uicario debetur.
But if both of us knew, he says that both the action for distribution and the action on the peculium lie: the action for distribution in the name of the vicarius, and the action on the peculium in the name of the ordinarius. However, the plaintiff must choose which action he prefers to try, yet in such a way that both what is owed to me and what is owed to the slave are distributed, since, if the ordinarius slave had been ignorant, what was owed to him by the vicarius would have been deducted in full.
§14.4.5.2Sed et si ancilla negotiabitur, admittendam tributoriam dicimus.
But even if a female slave carries on business, we say that the action for distribution is to be admitted.
§14.4.5.3Item parui refert, cum ipso seruo contrahatur an cum institore eius.
Likewise, it matters little whether the contract is made with the slave himself or with his manager.
§14.4.5.4'Mercis nomine' merito adicitur, ne omnis negotiatio cum eo facta tributoriam inducat.
The phrase 'by reason of merchandise' is rightly added, so that not every business transaction made with him should induce the action for distribution.
§14.4.5.5Per hanc actionem tribui iubetur, quod ex ea merce et quod eo nomine receptum est.
Through this action, it is ordered that what is received from that merchandise and what is received on that account should be distributed.
§14.4.5.6In tributum autem uocantur, qui in potestae habent, cum creditoribus mercis.
Those who have the slave in their power are called to the distribution together with the creditors of the merchandise.
§14.4.5.7Sed est quaesitum, dominus utrum ita demum partietur ex merce, si quid ei mercis nomine debeatur, an uero et si ex alia causa.
But it has been asked whether the master will share in the merchandise only if something is owed to him on account of the merchandise, or indeed even if it is from another cause.
et Labeo ait, ex quacumque causa ei debeatur, paruique referret, ante mercem an postea ei debere quid seruus coeperit: sufficere enim, quod priuilegium deductionis perdidit.
And Labeo says that it may be from any cause whatever that it is owed to him, and it matters little whether the slave began to owe him anything before the merchandise or after: for it is sufficient that he has lost the privilege of deduction.
§14.4.5.8Quid tamen si qui contrahebant ipsam mercem pignori acceperint? puto debere dici, praeferendos domino iure pignoris.
But what if those who contracted took the merchandise itself as a pledge? I think it should be said that they are to be preferred to the master by right of pledge.
§14.4.5.9Siue autem domino siue his qui in potestate eius sunt debeatur, utique erit tribuendum.
Moreover, whether it is owed to the master or to those who are in his power, it must certainly be distributed.
§14.4.5.10Sed si duo pluresue domini sint, utique omnibus tribuetur pro rata debiti sui.
But if there are two or more masters, it will certainly be distributed to all in proportion to their respective debts.
§14.4.5.11Non autem totum peculium uenit in tributum, sed id dumtaxat, quod ex ea merce est, siue merces manent siue pretium earum receptum conuersumue est in peculium.
However, not the whole peculium comes into the distribution, but only that which is from that merchandise, whether the merchandise remains or its price has been received or converted into the peculium.
§14.4.5.12Sed et si adhuc debeatur mercis nomine a quibusdam, quibus solebat seruus distrahere, hoc quoque tribuetur, prout fuerit receptum.
But even if something is still owed on account of the merchandise by certain persons to whom the slave used to sell, this too will be distributed as it is received.
§14.4.5.13Si praeter mercem seruus iste in tabernam habeat instrumentum, an hoc quoque tribuatur? et Labeo ait et hoc tribui, et est aequissimum: plerumque enim hic apparatus ex merce est, immo semper. cetera tamen, quae extra haec in peculium habuit, non tribuentur, ut puta argentum habuit uel aurum, nisi si haec ex merce comparauit.
If, besides the merchandise, this slave had equipment in his shop, is this also to be distributed? Labeo says that this too is distributed, and it is most equitable: for usually this apparatus is from the merchandise, indeed always. However, other things which he had in his peculium outside of these will not be distributed, as for example if he had silver or gold, unless he acquired these from the merchandise.
§14.4.5.14Item si mancipia in negotiatione habuit ex merce parata, etiam haec tribuentur.
Likewise, if he had slaves in the business acquired from the merchandise, these too will be distributed.
§14.4.5.15Si plures habuit seruus creditores, sed quosdam in mercibus certis, an omnes in isdem confundendi erunt et omnes in tributum uocandi? ut puta duas negotiationes exercebat, puta sagariam et linteariam, et separatos habuit creditores.
If the slave had several creditors, but some with respect to certain merchandise, are they all to be merged into the same pool and all called to the distribution? For instance, suppose he carried on two businesses, say clothing and linen, and had separate creditors.
puto separatim eos in tributum uocari: unusquisque enim eorum merci magis quam ipsi credidit.
I think they should be called to the distribution separately: for each of them trusted the merchandise rather than the slave himself.
§14.4.5.16Sed si duas tabernas eiusdem negotiationis exercuit et ego fui tabernae uerbi gratia quam ad Bucinum habuit ratiocinator, alius eius quam trans Tiberim, aequissimum puto separatim tributionem faciendam, ne ex alterius re merceue alii indemnes fiant, alii damnum sentiant.
But if he carried on two shops of the same business, and I was, for example, the accountant of the shop which he had near the Bucinum, and another was the accountant of his shop across the Tiber, I think it is most equitable that the distribution be made separately, lest some should be made harmless and others suffer loss from the property or merchandise of another.
§14.4.5.17Plane si in eadem taberna merces deferebantur, licet hae quae extent ex unius creditoris pecunia sint comparatae, dicendum erit omnes in tributum uenire, nisi fuerint creditori pigneratae.
Clearly, if the merchandise was brought into the same shop, although the items that remain were acquired with the money of one creditor, it must be said that all come into the distribution, unless they have been pledged to that creditor.
§14.4.5.18Sed si dedi mercem meam uendendam et exstat, uideamus, ne iniquum sit in tributum me uocari.
But if I gave my merchandise to be sold and it remains, let us see if it is not unjust for me to be called to the distribution.
et si quidem in creditum ei abit, tributio locum habebit: enimuero si non abit, quia res uenditas non alias desinunt esse meae, quamuis uendidero; nisi aere soluto uel fideiussore dato uel alias satisfacto, dicendum erit uindicare me posse.
Indeed, if it went to him on credit, the distribution will take place; but if it did not go on credit, because sold things do not cease to be mine, although I have sold them, unless the money is paid or a surety given or satisfaction otherwise made, it must be said that I can reclaim them.
§14.4.5.19Tributio autem fit pro rata eius quod cuique debeatur, et ideo, si unus creditor ueniat desiderans tribui, integram portionem consequitur, sed quoniam fieri potest, ut alius quoque uel alii exsistere possint mercis peculiaris creditores, cauere debet creditor iste pro rata se refusurum, si forte alii emerserint creditores.
The distribution, moreover, is made in proportion to what is owed to each, and therefore, if one creditor comes desiring a distribution, he obtains his full portion, but since it is possible that another or others may also emerge as creditors of the peculiar merchandise, this creditor must give security that he will return his share in proportion if other creditors should happen to emerge.