52 The Law of Obligations

instruments.124 Thus, the acquisitive acts were not, as would also have

been conceivable, regarded as totally ineffective or irrelevant. Where,

on the other hand, the filiusfamilias or slave had incurred an obligation,

the paterfamilias was not normally bound.125 In fact, the position of the

creditor was very weak: slaves could not be parties to a lawsuit, and

execution against children in power, as long as they did not have

proprietary capacity, was excluded. In classical law these obligations

against persons in power were regarded as obligationes naturales.126 As a

result, it must have appeared unattractive and risky to contract with a

filiusfamilias or a slave. Thus, in order not to stifle legal relations and

business life, the praetor intervened and was prepared, under certain

circumstances, to grant actiones "adiecticiae qualitatis"127 against the

paterfamilias. The common denominator of most of these actions was

a (tacit or express, general or specific) authority given to the person in

power to act on behalf of the paterfamilias. This is particularly obvious

in the case of the actio quod iussu,128 where an express (formless)

authority even had to have been communicated to the party with

whom the person in power was about to contract, but it also applied to

the actio de peculio,129 where the son in power or the slave had been

given a peculium (the paterfamilias was then liable for all commercial

debts incurred up to the value of the peculium at the time of

condemnation); to the actio exercitoria,130 which lay against the

exercitor navis for commercial debts incurred (within the terms of the

so-called "praepositio")131 by his magister navis, and to the actio

institoria,132 which was available against an employer for commercial

debts incurred (again: within the terms of the praepositio) by an

employee who had been put in charge of a taberna or some other

negotiatio.133 Besides these, an actio de in rem verso134 was available if the

person in power had used what he had acquired under the contract

124 We find the same idea in public law: populus Romanus and municipia act through their

magistratus. Cf. also the post-classical concept of the delegatus prindpis (C. 1, 50 and 51).

Cf., for example, Gai. D. 50, 17, 133: "Melior condicio nostra per servos fieri potest,

deterior fieri non potest." Could slaves alienate property for their masters? For details, see

Hans Ankuin, "Mancipatio by Slaves in Classical Roman Law?", 1976 Acta Juri dice 1 sqq.;

idem, "Mancipatio by Slaves in Classical Roman Law", in: Huldigingsbundel Paul van

Warmelo (1984), pp. 6 sqq.

126 Cf., for example, Ulp. D. 44, 7, 14.

127 Cf. generally e.g. Claus, Stellvertretung, pp. 64 sqq. and passim. The term has its origin

in Paul. D. 14, 1, 5, 2: "[H]oc enim edicto non transfertur actio, sed adicitur."

128 D. 15, 4; C. 4, 26.

129 Gai. IV, 72a-74a; Itist. IV, 7, 4-4c; D. 15, 1; C. 4, 26.

130 D. 14, 1; C. 4, 25.

131 "Non tarnen omne, quod cum institore [se: vel exercitore] geritur, obligat eum qui

praeposuit, sed ita, si eius rei gratia cui praepositus fuerit, contractum est, id est dumtaxat

ad id quod eum praeposuit" (Ulp. D. 14, 3, 5, 11).

132 D. 14, 3; C. 4, 25.

133 On the interpretation of the term "institor", cf. the analysis by Nikolaus Benke, "Zu

Papinians actio ad exemplum institoriae actionis", (1988) 105 ZSS 597 sqq.

"4 D. 15, 3.

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Stipulatio atteri, Agency and Cession 53

to enrich the property of his paterfamilias. The most interesting of these

remedies in the present context were the actiones exercitoria and

institoria because they were granted irrespective of whether or not the

exercitor navis or institor was a person in power.135 Thus, we are

dealing here with instances where a freeman was able to obligate a third

party who had authorized him to do business on his behalf. This

approximated agency. However, magister navis and institor were and

remained the parties to the contract which had been concluded; the

liability was extended only to the exercitor navis/employer, who could

now be sued in solidum.136 Also, these "principals" were sometimes

granted the contractual actions of their "agents" against the other party

as actiones utiles.137

(c) Procuratio

Sixthly, attention has to be drawn to the institution of procuratio.138

Wealthy people used to have a procurator omnium bonorum to look

after and administer their property. In pre-classical times they would

appoint to this position one of their own freedmen who had been

specifically trained for the job and who, on account of the patronal

power, was still very much dependent upon his (former) master even

after manumissio had taken place. Later on, this power gradually

dwindled and the freedman was increasingly regarded as a legally

independent person (with the effect that reciprocal claims between

procurator and principal became possible); also, freeborn persons were

now employed as procuratores. As with tutors, procurators could

acquire possession and (through the acquisition of possession)

ownership for the principal.139 As in the case of the institor and the

magister navis, contractual rights acquired by the procurator were also

granted to the principal as actiones utiles.140 Eventually, Papinian also

made the principal liable for the debts incurred by the procurator in

connection with the range of activities for which he was appointed: he

135 Gai. IV, 71; Ulp. D. 14, 1, 1, 4; Ulp. D. 14, 3, 7, 1.

136 Liability in solidum = several persons owe one performance in such a manner that each

of them is bound to effect the whole performance, but the creditor is entitled to demand the

performance only once. Cf. today, for exampl e, § 421 BGB.

137 Cf. Marcell./Ulp. D. 14, 3, 1; Paul. D. 46, 5, 5.

13M Piero Angelini, II procurator (1971); Okko Behrends, "Die Prokuratur", (1971) 88 ZSS 215

sqq.; Hamza, (1983) 25 Acta Juridica Academiae Scientiarum Hungaricae 97 sqq.; J.-H. Michel,

"Quelques observations sur l'evolution du procurator en droit romain", in: Etudes offertes a

Jean Macqueron (1970), pp. 515 sqq.; Kaser, RPrll, pp. 100 sq.; idem, (1974)91 ZSS 186 sqq.;

Rcnato Quadrato, "D. 3, 3, i pr. e la definizione di 'procurator'" (1974) 20 Labeo 210 sqq.;

idem, ED, vol. 38, pp. 422 sqq.; Watson, Obligations, pp. 193 sqq. 139 Cf., for example, Gai. II, 95; (on which, see Claus, Stellvertretung, pp. 174 sqq., but

also Quadrato, ED, vol. 38, pp 426 sqq.); Inst. II, 9, 5. Nomination by the procurator

determined whether he or his principal acquired: see MacCormack, (1976) 23 RIDA 191 sqq. 140Pap./Ulp. D. 19, 1, 13, 25.

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