[ULPIANUS libro trigensimo octauo ad edictum. ] §47.5.1.prIn eos, qui naues cauponas stabula exercebunt, si quid a quoquo eorum quosue ibi habebunt furtum factum esse dicetur, iudicium datur, siue furtum ope consilio exercitoris factum sit, siue eorum cuius, qui in ea naui nauigandi causa esset.
[ULPIANUS on the Edict, book 38] Against those who operate ships, taverns, or stables, if it is alleged that any theft has been committed by any of them or of those whom they keep there, an action is granted, whether the theft was committed with the assistance or counsel of the operator, or by any of those who were on board that ship for the purpose of navigation.
§47.5.1.1Nauigandi autem causa accipere debemus eos, qui adhibentur, ut nauis nauiget, hoc est nautas.
Moreover, we must understand those employed for the purpose of navigation to be those who are engaged so that the ship may sail, that is, the sailors.
§47.5.1.2Et est in duplum actio.
And this action is for double the value.
§47.5.1.3Cum enim in caupona uel in naui res perit, ex edicto praetoris obligatur exercitor nauis uel caupo ita, ut in potestate sit eius, cui res subrepta sit, utrum mallet cum exercitore honorario iure an cum fure iure ciuili experiri.
For when property is lost in a tavern or on a ship, the operator of the ship or the tavern-keeper is bound under the praetor's edict in such a way that it is in the power of the person whose property was stolen whether he prefers to sue the operator under praetorian law or the thief under civil law.
§47.5.1.4Quod si receperit saluum fore caupo uel nauta, furti actionem non dominus rei subreptae, sed ipse habet, quia recipiendo periculum custodiae subit.
But if the tavern-keeper or sailor has undertaken that the property will be safe, not the owner of the stolen property, but he himself has the action for theft, because by so undertaking he assumes the risk of custody.
§47.5.1.5Serui uero sui nomine exercitor noxae dedendo se liberat.
But in the name of his own slave, the operator frees himself by surrendering him for damage.
cur ergo non exercitor condemnetur, qui seruum tam malum in naue admisit? et cur liberi quidem hominis nomine tenetur in solidum, serui uero non tenetur? nisi forte idcirco, quod liberum quidem hominem adhibens statuere debuit de eo, qualis esset, in seruo uero suo ignoscendum sit ei quasi in domestico malo, si noxae dedere paratus sit.
Why, then, should the operator not be condemned, who admitted so bad a slave onto the ship? And why is he liable in full for the act of a free person, but not for that of his slave? Is it not perhaps because a person who employs a free man ought to have judged what kind of person he was, whereas in the case of his own slave, he should be forgiven as if for a domestic misfortune, provided he is ready to surrender him for damage?
si autem alienum adhibuit seruum, quasi in libero tenebitur.
But if he employed someone else's slave, he will be held liable as if for a free person.
§47.5.1.6Caupo praestat factum eorum, qui in ea caupona eius cauponae exercendae causa ibi sunt, item eorum, qui habitandi causa ibi sunt: uiatorum autem factum non praestat.
A tavern-keeper is responsible for the acts of those who are there for the purpose of operating the tavern, as well as of those who are there for the purpose of residing; however, he is not responsible for the acts of travelers.
namque uiatorem sibi eligere caupo uel stabularius non uidetur nec repellere potest iter agentes: inhabitatores uero perpetuos ipse quodammodo elegit, qui non reiecit, quorum factum oportet eum praestare.
For a tavern-keeper or a stable-keeper is not deemed to select a traveler for himself, nor can he turn away those who are journeying; but as for permanent residents, whom he did not reject, he has in a sense chosen them himself, and it is proper that he be responsible for their acts.
in naui quoque uectorum factum non praestatur.
On a ship, likewise, no responsibility is assumed for the acts of passengers.