Humanitext Reader

Justinian I · The Digest of Justinian §15.1.50.pr-15.1.50.3

Absence of Peculium, Suretyship, and Special Peculium Rules

Passage 2309 of 9271 · Latin

Summary

This section discusses, from the perspective of the action on the peculium, the hiding of a father when there is no peculium and the liability of a surety, the timing for valuing a peculium under the Lex Falcidia, the suretyship for a slave after a lawsuit has begun, and the ownership of money received from another's slave for manumission.

[PAPINIANUS libro nono quaestionum. ] §15.1.50.prEo tempore, quo in peculio nihil est, pater latitat: in bonorum possessionem eius rei seruandae causa mitti non possum, qui de peculio cum eo acturus sum, quia non fraudationis causa latitat qui, si iudicium acciperet, absolui deberet.
[PAPINIANUS in the ninth book of Questions.] At a time when there is nothing in the peculium, if a father hides, I, who am about to sue him on the peculium, cannot be put into possession of his property for the purpose of preserving it, because he who, if he accepted the trial, ought to be acquitted, does not hide for the purpose of defrauding.
nec ad rem pertinet, quod fieri potest, ut damnatio sequatur: nam et si in diem uel sub condicione debeatur, fraudationis causa non uidetur latitare, tametsi potest iudicis iniuria condemnari.
Nor does it matter that it is possible for a condemnation to follow; for even if a debt is due on a future day or under a condition, he is not deemed to hide for the purpose of defrauding, although he might be condemned through an injustice of the judge.
sed fideiussorem datum eo tempore, quo nihil in peculio est, teneri putat Iulianus, quoniam fideiussor futurae quoque actionis accipi possit, si tamen sic acceptus est.
But Julian thinks that a surety given at that time when there is nothing in the peculium is bound, since a surety can be accepted for a future action as well, provided, however, that he was so accepted.
§15.1.50.1Si creditor patrem, qui de peculio tenebatur, heredem instituerit, quia mortis tempus in Falcidiae ratione spectatur, illius temporis peculium considerabitur.
If a creditor should appoint as heir the father who was liable on the peculium, because the time of death is looked to in the calculation of the Lex Falcidia, the peculium of that time will be considered.
§15.1.50.2Etiam postquam dominus de peculio conuentus est, fideiussor pro seruo accipi potest et ideo, qua ratione, si post actionem dictatam seruus pecuniam exsoluerit, non magis repetere potest quam si iudicium dictatum non fuisset, eadem ratione fideiussor quoque utiliter acceptus uidebitur, quia naturalis obligatio, quam etiam seruus suscipere uidetur, in litem translata non est.
Even after the master has been sued on the peculium, a surety can be accepted for the slave; and therefore, by the same reasoning that if, after the action has been dictated, the slave pays the money, he can no more reclaim it than if the trial had not been dictated, by that same reasoning a surety also will be seen to be validly accepted, because the natural obligation, which even a slave is understood to contract, has not been transferred into the litigation.
§15.1.50.3Seruus alienus, cum bonae fidei seruiret mihi, nummos a Titio mutuatos mihi dedit, ut eum manumitterem, et manumissi: creditor quaerebat, quem de peculio conueniret.
A slave belonging to another, while serving me in good faith, gave me money borrowed from Titius so that I might manumit him, and I manumitted him: the creditor asked whom he should sue on the peculium.
dixi, quamquam creditor electionem alias haberet, tamen in proposito dominum esse conueniendum et eum ad exhibendum mecum acturum pecuniae nomine, quae ipsi esset adquisita nec in eam causam alienata, quae pro capite serui facta proponeretur: neque enim admittendum esse distinctionem existimantium, si non manumittam, domini pecuniam esse, manumissione uero secuta uideri pecuniam ex re mea quaesitam mihi, quoniam magis propter rem meam, quam ex re mea pecunia mihi daretur.
I said that, although the creditor would otherwise have a choice, nevertheless in the case proposed the master must be sued, and that he (the master) would bring an action for production against me on account of the money, which had been acquired for him and had not been alienated for that cause which was proposed as being done for the slave's head. For we should not admit the distinction of those who think that, if I do not manumit him, the money belongs to the master, but if manumission follows, the money is deemed to be acquired by me from my own property, since the money was given to me rather on account of my property than from my property.

Notes

  1. §15.1.50.prqui de peculio cum eo acturus sum — The antecedent of the relative pronoun qui is the implied subject "I" (first person singular) of the preceding mitti non possum. Acturus sum is the first person singular future active participle with sum.
  2. §15.1.50.2actionem dictatam — "Actionem dictare" or "iudicium dictare" is a legal term referring to the plaintiff's dictation or delivery of the formula (or initiation of the lawsuit, litis contestatio) to the defendant in the Roman formulaic procedure.
  3. §15.1.50.3ex re mea — "Ex re mea" (from my property) refers to the legal ground of acquisition by a bona fide possessor through a slave (ex re bonae fidei possessoris). In contrast, "propter rem meam" means "on account of my property (or position)." The money given by the slave to the bona fide possessor for manumission does not arise "from" the possessor's estate (ex re) but is merely given "on account of" his position (propter rem), meaning ownership remains with the true master.

Cite this passage

Justinian I, The Digest of Justinian §15.1.50.pr-15.1.50.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:15.1.50.pr-15.1.50.3

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.