[AFRICANUS libro octauo quaestionum. ] §15.3.17.prSeruus in rem domini pecuniam mutuatus sine culpa eam perdidit: nihilo minus posse cum domino de in rem uerso agi existimauit.
[AFRICANUS, Questions, book 8] A slave borrowed money to be turned to the account of his master and lost it without fault: he was of the opinion that nevertheless an action for what was turned to the account of the master can be brought against the master.
nam et si procurator meus in negotia mea impensurus pecuniam mutuatus sine culpa eam perdiderit, recte eum hoc nomine mandati uel negotiorum gestorum acturum.
For even if my procurator, intending to spend money on my affairs, should borrow money and lose it without fault, he will rightly bring an action on this account under mandate or management of affairs.
§15.3.17.1Cum Sticho uicario serui tui Pamphili contraxi: actio de peculio et in rem uerso ita dari debet, ut, quod uel in tuam ipsius rem uel in peculium Pamphili uersum sit, comprehendatur, scilicet etiamsi mortuo uel alienato Sticho agatur.
I have contracted with Stichus, the sub-slave of your slave Pamphilus: the action on the peculium and for what has been turned to account must be granted in such a way that what has been turned either to your own account or to the peculium of Pamphilus is included, of course even if the action is brought after Stichus has died or been alienated.
quod si Pamphilo mortuo agam, magis est, ut, quamuis Stichus uiuat, tamen de eo, quod in peculio Pamphili uersum est, non nisi intra annum quam is decessit actio dari debeat: etenim quodammodo de peculio Pamphili tum experiri uidebor, sicuti si, quod iussu eius credidissem, experirer: nec nos mouere debet, quod Stichus de cuius peculio agitur uiuat, quando non aliter ea res in peculio eius esse potest, quam si Pamphili peculium maneat.
But if I bring the action after Pamphilus has died, it is more correct that, although Stichus is alive, yet concerning that which was turned to the peculium of Pamphilus, the action ought to be granted only within a year of his death: for in a way I shall then seem to sue concerning the peculium of Pamphilus, just as if I were suing for what I had lent by his order. Nor should we be moved by the fact that Stichus, concerning whose peculium the action is brought, is alive, since that property cannot otherwise be in his peculium unless the peculium of Pamphilus remains.
eadem ratio efficiet, ut id, quod in peculio Pamphili uersum sit, ita praestari debere dicamus, ut prius eius, quod tibi Pamphilus debuerit, deductio fiat, quod uero in tuam rem uersum fuerit, praestetur etiam non deducto eo quod Pamphilus tibi debet.
The same reasoning will bring it about that we should say that what was turned to the peculium of Pamphilus ought to be paid in such a way that a deduction is first made of what Pamphilus owed to you, but what was turned to your own account must be paid even without deducting what Pamphilus owes to you.