[ULPIANUS libro uicensimo nono ad edictum. ] §15.1.9.prSed si damnum seruo dominus dederit, in peculium hoc non imputabitur, non magis quam si subripuerit.
[ULPIANUS libro uicensimo nono ad edictum.] But if a master has caused damage to his slave, this will not be imputed to the peculium, no more than if he has stolen [from him].
§15.1.9.1Plane si conseruus dedit damnum uel subripuit, in peculium uidetur haberi, et ita Pomponius libro undecimo scribit: nam et si quid dominus ab eo qui rem peculiarem subripuit uel consecutus est uel consequi potest, in peculium esse ei imputandum Neratius libro secundo responsorum scribit.
Clearly, if a fellow slave has caused damage or stolen, it is deemed to be held in the peculium; and so Pomponius writes in his eleventh book. For Neratius also writes in his second book of Opinions that if the master has recovered or can recover anything from the person who stole a piece of property belonging to the peculium, it must be imputed to the peculium for him [the slave].
§15.1.9.2Peculium autem deducto quod domino debetur computandum esse, quia praeuenisse dominus et cum seruo suo egisse creditur.
Moreover, the peculium must be calculated after deducting what is owed to the master, because the master is deemed to have preempted [other creditors] and to have brought an action against his own slave.
§15.1.9.3Huic definitioni Seruius adiecit et si quid his debeatur qui sunt in eius potestate, quoniam hoc quoque domino deberi nemo ambigit.
To this definition, Servius added also whatever is owed to those who are under the master's power, since no one doubts that this too is owed to the master.
§15.1.9.4Praeterea id etiam deducetur, quod his personis debetur, quae sunt in tutela uel cura domini uel patris uel quorum negotia administrant, dummodo dolo careant, quoniam et si per dolum peculium uel ademerint uel minuerint, tenentur: nam si semper praeuenire dominus et agere uidetur, cur non dicatur etiam hoc nomine eum secum egisse, quo nomine uel tutelae uel negotiorum gestorum uel utili actione tenebitur? nam ut eleganter Pedius ait, ideo hoc minus in peculio est, quod domino uel patri debetur, quoniam non est uerisimile dominum id concedere seruo in peculium habere, quod sibi debetur.
Furthermore, that which is owed to those persons who are under the guardianship or curatorship of the master or father, or whose affairs they administer, will also be deducted, provided that they are free from fraud (dolus); since if they have taken away or diminished the peculium through fraud, they are held liable. For if the master is always deemed to preempt and bring an action, why should he not be said to have brought an action against himself on that very account on which he will be held liable either under guardianship, or management of affairs, or an analogous action (utilis actio)? For as Pedius elegantly says, the reason why what is owed to a master or father is so much less in the peculium is that it is not likely that a master would concede to a slave to hold in his peculium that which is owed to himself.
sane cum ex ceteris causis ipsum a semet ipso exegisse dicimus qui negotia uel tutelam geret, cur non etiam in specie peculiari exegerit, quod exigi debuit? defendendum igitur erit quasi sibi eum soluere, cum quis agere de peculio conabitur.
Indeed, since in other matters we say that one who conducts affairs or a guardianship has exacted payment from himself, why should he not also, in the specific case of the peculium, be regarded as having exacted what ought to have been exacted? Therefore, when someone attempts to bring an action concerning the peculium, the defense must be made as if he had paid himself.
§15.1.9.5Sed et creditor serui, qui heres exstitit domino eius, deducit de peculio quod sibi debetur, si conueniatur, siue libertatem seruus acceperit siue non, idemque et si legatus sit pure seruus: nam quasi praeuenerit et ipse secum egerit, sic deducet quod sibi debetur, licet nullo momento dominium in manumisso uel legato pure habuerit.
But also, a creditor of a slave who has become the heir to his master deducts what is owed to himself from the peculium if he is sued, whether the slave has received freedom or not; and the same applies if the slave has been bequeathed unconditionally (pure). For as if he had preempted and brought an action against himself, he will deduct what is owed to him, although he never held ownership for a single moment over the manumitted slave or the unconditionally bequeathed slave.
et ita Iulianus libro duodecimo scribit.
And so Julian writes in his twelfth book.
certe si sub condicione seruus libertatem acceperit, minus dubitanter Iulianus eodem loco scribit heredem deducere: dominus enim factus est.
Certainly, if the slave received freedom under a condition, Julian writes in the same place that the heir deducts with even less doubt, for he became the master.
ad defensionem sententiae suae Iulianus etiam illud adfert, quod, si ei, qui post mortem serui uel filii intra annum potuit conueniri de peculio, heres exstitero, procul dubio deducam quod mihi debetur.
To defend his opinion, Julian also adduces this argument: if I become the heir to someone who, within a year after the death of a slave or a son, could have been sued concerning the peculium, I will without doubt deduct what is owed to me.
§15.1.9.6Siue autem ex contractu quid domino debeat siue ex rationum reliquis, deducet dominus.
Whether the slave owes something to his master from a contract or from the balance of accounts, the master will deduct it.
sed et si ex delicto ei debeat, ut puta ob furtum quod fecit, aeque deducetur.
But even if he owes it from a delict, as for example, on account of a theft he committed, it will equally be deducted.
sed est quaestionis, utrum ipsa furti aestimatio, id est id solum quod domino abest, an uero tantum, quantum, si alienus seruus commississet, id est cum furti poenis? sed prior sententia uerior est, ut ipsa furti aestimatio sola deducatur.
However, there is a question whether [the deduction should be] the actual value of the stolen property, that is, only what the master has lost, or rather as much as would be owed if a slave belonging to another had committed it, that is, including the penalties for theft? But the former opinion is more correct, that only the actual value of the stolen property itself should be deducted.
§15.1.9.7Si ipse seruus sese uulnerauit, non debet hoc damnum deducere, non magis quam si se occiderit uel praecipitauerit: licet enim etiam seruis naturaliter in suum corpus saeuire.
If the slave has wounded himself, the master ought not to deduct this damage, no more than if he has killed himself or thrown himself down a precipice; for even slaves are naturally permitted to rage against their own bodies.
sed si a se uulneratum seruum dominus curauerit, sumptuum nomine debitorem eum domino puto effectum, quamquam, si aegrum eum curasset, rem suam potius egisset.
But if the master has treated a slave who wounded himself, I think that the slave is made a debtor to his master under the head of expenses, although, if the master had treated him when he was sick, he would rather have been attending to his own property.
§15.1.9.8Item deducetur de peculio, si quid dominus serui nomine obligatus est aut praestitit obligatus: ita si quid ei creditum est iussu domini: nam hoc deducendum Iulianus libro duodecimo digestorum scribit.
Likewise, a deduction will be made from the peculium if the master has become obligated on behalf of the slave or has performed an obligation while being bound; so also if anything has been lent to the slave by order of the master, for Julian writes in the twelfth book of his Digests that this must be deducted.
sed hoc ita demum uerum puto, si non in rem domini uel patris quod acceptum est peruenit: alioquin secum debebit compensare.
But I think this is true only if what was received did not turn to the advantage of the master or the father; otherwise, he will have to set it off against himself.
sed et si pro seruo fideiusserit, deducendum Iulianus libro duodecimo digestorum scribit.
Moreover, Julian writes in the twelfth book of his Digests that if the master has acted as surety (fideiussor) for his slave, it must also be deducted.
Marcellus autem in utroque, si nondum quicquam domino absit, melius esse ait praestare creditori, ut caueat ille refusurum se, si quid praestiterit dominus hoc nomine conuentus, quam ab initio deduci, ut medii temporis interusurium magis creditor consequatur.
Marcellus, however, says in both cases that, if nothing has yet been lost to the master, it is better to provide for the creditor, by having him give security that he will return it if the master, being sued on this account, pays anything, rather than making a deduction from the beginning, so that the creditor may rather obtain the interest for the intervening time.
sed si de peculio conuentus dominus condemnatus est, debebit de sequenti actione de peculio deduci: coepit enim dominus uel pater iudicati teneri: nam et si quid serui nomine non condemnatus praestitisset creditori, etiam hoc deduceret.
But if the master, having been sued concerning the peculium, has been condemned, a deduction must be made in a subsequent action concerning the peculium; for the master or father has begun to be bound by the judgment. For even if, without being condemned, he had paid anything to the creditor on behalf of the slave, he would also deduct this.