Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XIV1,
De exercitoria actione
Liber quartus decimus
I.

De exercitoria actione

(Concerning the Action Against the Owner of a Ship.)

1Ul­pia­nus li­bro vi­cen­si­mo oc­ta­vo ad edic­tum. Uti­li­ta­tem hu­ius edic­ti pa­te­re ne­mo est qui igno­ret. nam cum in­ter­dum igna­ri, cu­ius sint con­di­cio­nis vel qua­les, cum ma­gis­tris prop­ter na­vi­gan­di ne­ces­si­ta­tem con­tra­ha­mus, ae­quum fuit eum, qui ma­gis­trum na­vi im­po­suit, te­ne­ri, ut te­ne­tur, qui in­sti­to­rem ta­ber­nae vel neg­otio prae­po­suit, cum sit ma­ior ne­ces­si­tas con­tra­hen­di cum ma­gis­tro quam in­sti­to­re. quip­pe res pa­ti­tur, ut de con­di­cio­ne quis in­sti­to­ris di­spi­ciat et sic con­tra­hat: in na­vis ma­gis­tro non ita, nam in­ter­dum lo­cus tem­pus non pa­ti­tur ple­nius de­li­be­ran­di con­si­lium. 1Ma­gis­trum na­vis ac­ci­pe­re de­be­mus, cui to­tius na­vis cu­ra man­da­ta est. 2Sed si cum quo­li­bet nau­ta­rum sit con­trac­tum, non da­tur ac­tio in ex­er­ci­to­rem, quam­quam ex de­lic­to cu­ius­vis eo­rum, qui na­vis na­vi­gan­dae cau­sa in na­ve sint, de­tur ac­tio in ex­er­ci­to­rem: alia enim est con­tra­hen­di cau­sa, alia de­lin­quen­di, si qui­dem qui ma­gis­trum prae­po­nit, con­tra­hi cum eo per­mit­tit, qui nau­tas ad­hi­bet, non con­tra­hi cum eis per­mit­tit, sed cul­pa et do­lo ca­re­re eos cu­ra­re de­bet. 3Ma­gis­tri au­tem im­po­nun­tur lo­can­dis na­vi­bus vel ad mer­ces vel vec­to­ri­bus con­du­cen­dis ar­ma­men­tis­ve emen­dis: sed et­iam­si mer­ci­bus emen­dis vel ven­den­dis fue­rit prae­po­si­tus, et­iam hoc no­mi­ne ob­li­gat ex­er­ci­to­rem. 4Cu­ius au­tem con­di­cio­nis sit ma­gis­ter is­te, ni­hil in­ter­est, utrum li­ber an ser­vus, et utrum ex­er­ci­to­ris an alie­nus: sed nec cu­ius ae­ta­tis sit, in­ter­erit, si­bi im­pu­ta­tu­ro qui prae­po­suit. 5Ma­gis­trum au­tem ac­ci­pi­mus non so­lum, quem ex­er­ci­tor prae­po­suit, sed et eum, quem ma­gis­ter: et hoc con­sul­tus Iu­lia­nus in igno­ran­te ex­er­ci­to­re re­spon­dit: ce­te­rum si scit et pas­sus est eum in na­ve ma­gis­te­rio fun­gi, ip­se eum im­po­suis­se vi­de­tur. quae sen­ten­tia mi­hi vi­de­tur pro­ba­bi­lis: om­nia enim fac­ta ma­gis­tri de­beo prae­sta­re qui eum prae­po­sui, alio­quin con­tra­hen­tes de­ci­pien­tur: et fa­ci­lius hoc in ma­gis­tro quam in­sti­to­re ad­mit­ten­dum prop­ter uti­li­ta­tem. quid ta­men si sic ma­gis­trum prae­po­suit, ne alium ei li­ce­ret prae­po­ne­re? an ad­huc Iu­lia­ni sen­ten­tiam ad­mit­ti­mus, vi­den­dum est: fin­ge enim et no­mi­na­tim eum pro­hi­buis­se, ne Ti­tio ma­gis­tro uta­ris. di­cen­dum ta­men erit eo us­que pro­du­cen­dam uti­li­ta­tem na­vi­gan­tium. 6Na­vem ac­ci­pe­re de­be­mus si­ve ma­ri­nam si­ve flu­via­ti­lem si­ve in ali­quo stag­no na­vi­get si­ve sche­dia sit. 7Non au­tem ex om­ni cau­sa prae­tor dat in ex­er­ci­to­rem ac­tio­nem, sed eius rei no­mi­ne, cu­ius ibi prae­po­si­tus fue­rit, id est si in eam rem prae­po­si­tus sit, ut pu­ta si ad onus ve­hen­dum lo­ca­tum sit aut ali­quas res eme­rit uti­les na­vi­gan­ti vel si quid re­fi­cien­dae na­vis cau­sa con­trac­tum vel im­pen­sum est vel si quid nau­tae ope­ra­rum no­mi­ne pe­tent. 8Quid si mu­tuam pe­cu­niam sump­se­rit, an eius rei no­mi­ne vi­dea­tur ges­tum? et Pe­ga­sus ex­is­ti­mat, si ad usum eius rei, in quam prae­po­si­tus est, fue­rit mu­tua­tus, dan­dam ac­tio­nem, quam sen­ten­tiam pu­to ve­ram: quid enim si ad ar­man­dam in­struen­dam­ve na­vem vel nau­tas ex­hi­ben­dos mu­tua­tus est? 9Un­de quae­rit Ofi­lius, si ad re­fi­cien­dam na­vem mu­tua­tus num­mos in suos usus con­ver­te­rit, an in ex­er­ci­to­rem de­tur ac­tio. et ait, si hac le­ge ac­ce­pit qua­si in na­vem im­pen­su­rus, mox mu­ta­vit vo­lun­ta­tem, te­ne­ri ex­er­ci­to­rem im­pu­ta­tu­rum si­bi, cur ta­lem prae­po­sue­rit: quod si ab in­itio con­si­lium ce­pit frau­dan­di cre­di­to­ris et hoc spe­cia­li­ter non ex­pres­se­rit, quod ad na­vis cau­sam ac­ci­pit, con­tra es­se: quam di­stinc­tio­nem Pe­dius pro­bat. 10Sed et si in pre­tiis re­rum emp­ta­rum fe­fel­lit ma­gis­ter, ex­er­ci­to­ris erit dam­num, non cre­di­to­ris. 11Sed si ab alio mu­tua­tus li­be­ra­vit eum, qui in na­vis re­fec­tio­nem cre­di­de­rat, pu­to et­iam huic dan­dam ac­tio­nem, qua­si in na­vem cre­di­de­rit. 12Igi­tur prae­po­si­tio cer­tam le­gem dat con­tra­hen­ti­bus. qua­re si eum prae­po­suit na­vi ad hoc so­lum, ut vec­tu­ras ex­igat, non ut lo­cet (quod for­te ip­se lo­ca­ve­rat), non te­ne­bi­tur ex­er­ci­tor, si ma­gis­ter lo­ca­ve­rit: vel si ad lo­can­dum tan­tum, non ad ex­igen­dum, idem erit di­cen­dum: aut si ad hoc, ut vec­to­ri­bus lo­cet, non ut mer­ci­bus na­vem prae­stet, vel con­tra, mo­dum egres­sus non ob­li­ga­bit ex­er­ci­to­rem: sed et si ut cer­tis mer­ci­bus eam lo­cet, prae­po­si­tus est, pu­ta le­gu­mi­ni, can­na­bae, il­le mar­mo­ri­bus vel alia ma­te­ria lo­ca­vit, di­cen­dum erit non te­ne­ri. quae­dam enim na­ves one­ra­riae, quae­dam (ut ip­si di­cunt) ἐπιβατηγοὶ sunt: et ple­ros­que man­da­re scio, ne vec­to­res re­ci­piant, et sic, ut cer­ta re­gio­ne et cer­to ma­ri neg­otie­tur, ut ec­ce sunt na­ves, quae Brun­di­sium a Cas­sio­pa vel a dyr­ra­chio vec­to­res tra­iciunt ad one­ra in­ha­bi­les, item quae­dam flu­vii ca­pa­ces ad ma­re non suf­fi­cien­tes. 13Si plu­res sint ma­gis­tri non di­vi­sis of­fi­ciis, quod­cum­que cum uno ges­tum erit, ob­li­ga­bit ex­er­ci­to­rem: si di­vi­sis, ut al­ter lo­can­do, al­ter ex­igen­do, pro cu­ius­que of­fi­cio ob­li­ga­bi­tur ex­er­ci­tor. 14Sed et si sic prae­po­suit, ut ple­rum­que11Die Großausgabe liest ple­ri­que statt ple­rum­que. fa­ciunt, ne al­ter si­ne al­te­ro quid ge­rat, qui con­tra­xit cum uno si­bi im­pu­ta­bit. 15Ex­er­ci­to­rem au­tem eum di­ci­mus, ad quem ob­ven­tio­nes et red­itus om­nes per­ve­niunt, si­ve is do­mi­nus na­vis sit si­ve a do­mi­no na­vem per aver­sio­nem con­du­xit vel ad tem­pus vel in per­pe­tuum. 16Par­vi au­tem re­fert, qui ex­er­cet mas­cu­lus sit an mu­lier, pa­ter fa­mi­lias an fi­lius fa­mi­lias vel ser­vus: pu­pil­lus au­tem si na­vem ex­er­ceat, ex­ige­mus tu­to­ris auc­to­ri­ta­tem. 17Est au­tem no­bis elec­tio, utrum ex­er­ci­to­rem an ma­gis­trum con­ve­ni­re ve­li­mus. 18Sed ex con­tra­rio ex­er­cen­ti na­vem ad­ver­sus eos, qui cum ma­gis­tro con­tra­xe­runt, ac­tio non pol­li­ce­tur, quia non eo­dem au­xi­lio ind­ige­bat, sed aut ex lo­ca­to cum ma­gis­tro, si mer­ce­de ope­ram ei ex­hi­bet, aut si gra­tui­tam, man­da­ti age­re pot­est. so­lent pla­ne prae­fec­ti prop­ter mi­nis­te­rium an­no­nae, item in pro­vin­ciis prae­si­des pro­vin­cia­rum ex­tra or­di­nem eos iu­va­re ex con­trac­tu ma­gis­tro­rum. 19Si is, qui na­vem ex­er­cue­rit, in alie­na po­tes­ta­te erit eius­que vo­lun­ta­te na­vem ex­er­cue­rit, quod cum ma­gis­tro eius ges­tum erit, in eum, in cu­ius po­tes­ta­te is erit qui na­vem ex­er­cue­rit, iu­di­cium da­tur. 20Li­cet au­tem da­tur22Die Großausgabe liest de­tur statt da­tur. ac­tio in eum, cu­ius in po­tes­ta­te est qui na­vem ex­er­cet, ta­men ita de­mum da­tur, si vo­lun­ta­te eius ex­er­ceat. id­eo au­tem ex vo­lun­ta­te in so­li­dum te­nen­tur qui ha­bent in po­tes­ta­te ex­er­ci­to­rem, quia ad sum­mam rem pu­bli­cam na­vium ex­er­ci­tio per­inet. at in­sti­to­rum non idem usus est: ea prop­ter in tri­bu­tum dum­ta­xat vo­can­tur, qui con­tra­xe­runt cum eo, qui in mer­ce pe­cu­lia­ri scien­te do­mi­no neg­otia­tur. sed si scien­te dum­ta­xat, non et­iam vo­len­te cum ma­gis­tro con­trac­tum sit, utrum qua­si in vo­len­tem da­mus ac­tio­nem in so­li­dum an ve­ro ex­em­plo tri­bu­to­riae da­bi­mus? in re igi­tur du­bia me­lius est ver­bis edic­ti ser­vi­re et ne­que scien­tiam so­lam et nu­dam pa­tris do­mi­ni­ve in na­vi­bus one­ra­re ne­que in pe­cu­lia­ri­bus mer­ci­bus vo­lun­ta­tem ex­ten­de­re ad so­li­di ob­li­ga­tio­nem. et ita vi­de­tur et Pom­po­nius sig­ni­fi­ca­re, si sit in alie­na po­tes­ta­te, si qui­dem vo­lun­ta­te ge­rat, in so­li­dum eum ob­li­ga­ri, si mi­nus, in pe­cu­lium. 21In po­tes­ta­te au­tem ac­ci­pie­mus utrius­que se­xus vel fi­lios vel fi­lias vel ser­vos vel ser­vas. 22Si ta­men ser­vus pe­cu­lia­ris vo­len­te fi­lio fa­mi­lias in cu­ius pe­cu­lio erat, vel ser­vo vi­ca­rius eius na­vem ex­er­cuit, pa­ter do­mi­nus­ve, qui vo­lun­ta­tem non ac­com­mo­da­vit, dum­ta­xat de pe­cu­lio te­ne­bi­tur, sed fi­lius ip­se in so­li­dum. pla­ne si vo­lun­ta­te do­mi­ni vel pa­tris ex­er­ceant, in so­li­dum te­ne­bun­tur et prae­ter­ea et fi­lius, si et ip­se vo­lun­ta­tem ac­com­mo­da­vit, in so­li­dum erit ob­li­ga­tus. 23Quam­quam au­tem, si cum ma­gis­tro eius ges­tum sit, dum­ta­xat pol­li­cea­tur prae­tor ac­tio­nem, ta­men, ut Iu­lia­nus quo­que scribsit, et­iam­si cum ip­so ex­er­ci­to­re sit con­trac­tum, pa­ter do­mi­nus­ve in so­li­dum te­ne­bi­tur. 24Haec ac­tio ex per­so­na ma­gis­tri in ex­er­ci­to­rem da­bi­tur, et id­eo, si cum utro eo­rum ac­tum est, cum al­te­ro agi non pot­est. sed si quid sit so­lu­tum, si qui­dem a ma­gis­tro, ip­so iu­re mi­nui­tur ob­li­ga­tio: sed et si ab ex­er­ci­to­re, si­ve suo no­mi­ne, id est prop­ter ho­no­ra­riam ob­li­ga­tio­nem, si­ve ma­gis­tri no­mi­ne sol­ve­rit, mi­nue­tur ob­li­ga­tio, quon­iam et alius pro me sol­ven­do me li­be­rat. 25Si plu­res na­vem ex­er­ceant, cum quo­li­bet eo­rum in so­li­dum agi pot­est,

1Ulpianus, On the Edict, Book XXVIII. There is no one who is ignorant of the benefit of this Edict, for sometimes we enter into agreements with the masters of vessels concerning the necessities of the voyage, without being aware of their civil status or character; and it was only just that the party who appointed the master of a ship should be liable, just as one who has placed an agent in charge of a shop or a business; since, in fact, there is greater necessity in making the contract with the master than with an ordinary agent, as circumstances permit anyone to make an investigation of the standing of an agent, and contract with him accordingly; but this is not the case with a master of a ship, for frequently neither the place nor the time permits a satisfactory decision to be reached. 1We must understand the master of a ship to be a person to whom the charge of the entire ship is committed. 2But if the contract is made with one of the sailors, an action will not be granted against the ship-owner; although one will be granted against him on account of any offence perpetrated by one of those who are on board the vessel for the purpose of navigating the same; for the cause of action on a contract is one thing, and that arising out of an offence is another; since the party who appoints a master permits contracts to be made with him, but he who employs sailors does not allow contracts to be made with them, but he should take care that they are not guilty of negligence or fraud. 3Masters are appointed for the purpose of leasing vessels either for the transportation of merchandise or of passengers, or for the purpose of buying stores, but if a master is appointed for the purchase or sale of merchandise, he will render the owner liable also on this ground. 4It makes no difference what the civil condition of such a master is, whether he is free or a slave, and whether, if he is a slave, he belongs to the owner or to another person, nor will it make any difference what his age is, as the party who appointed him has himself only to blame. 5Ad Dig. 14,1,1,5ROHGE, Bd. 6 (1872), S. 403: Recht des durch den Procuristen Betrogenen, die ganze Contractsobligation gegen den Geschäftsführer oder gegen den Principal geltend zu machen.We consider the master to be not only the person whom the owner appointed, but also him whom a master appointed; and Julianus, having been consulted with reference to this matter, gave this opinion in a case where the owner was ignorant of the appointment; where, however, he knows of it, and allows the individual designated to discharge the duties of the master of the ship, he himself is held to have appointed him. This opinion seems to me to be reasonable; for he who appointed him must be responsible for all the acts of the master, otherwise, the contracting parties will be deceived; and this should be admitted the more readily for the sake of the public welfare in the case of a master than in that of another agent. How then if the owner appointed the master in such a way that the latter would not be permitted to appoint anyone else; should it be considered whether we ought to admit the opinion of Julianus in this instance? For suppose he expressly forbade him as follows, “You shall not employ Titius as master.” It must be said, however, that the welfare of those who make use of ships demands that the rule should be applied to this extent. 6We must understand the word “ship” to mean vessels and even rafts, employed for navigating the sea, rivers, or lakes. 7The Prætor does not grant a right of action against an owner for every cause, but only with reference to the particular thing for which the master was appointed; that is to say, if he was appointed for a certain kind of business, for instance, where a contract was made for the transportation of merchandise; or where an agreement was entered into or money expended for the purpose of repairing the ship; or where the sailors demand payment on account of their services. 8What if the master should borrow a sum of money, will this be held to be included in his powers? Pegasus thinks that if he borrowed the money with reference to the matter for which he was appointed, an action should be granted, and this opinion I think to be correct; but what if he borrowed it for the purpose of equipping or fitting out the ship, or for the employment of sailors? 9Ad Dig. 14,1,1,9ROHGE, Bd. 6 (1872), S. 403: Recht des durch den Procuristen Betrogenen, die ganze Contractsobligation gegen den Geschäftsführer oder gegen den Principal geltend zu machen.Wherefore, Ofilius asked if the master borrows the money for the purpose of repairing the ship, and converts it to his own use, will an action be granted against the owner? He says that if he received it with the understanding that he would expend it on the ship, and afterwards changed his mind, the owner will be liable, and can only blame himself for appointing a person of this kind. If, however, from the very beginning, he had the intention to defraud the creditor, and did not expressly state that he received the money on account of the ship, the contrary rule will apply. Pedius approves of this distinction. 10Where, however, the master is guilty of deceit with reference to the price of things which are purchased, the owner, and not the creditor, must suffer the loss. 11Moreover, where the master borrows money from another party, and with it satisfies the claim of him who lent him money for the purpose of repairing the ship; I think an action should be granted to the first-mentioned creditor, just as if he had lent the money to be expended on the ship. 12Ad Dig. 14,1,1,12ROHGE, Bd. 6 (1872), S. 85: Umfang der Ermächtigung des Inspectors einer Feuerversicherungsgesellschaft zur Feststellung des Schadens.Therefore, the appointment prescribes certain terms to be observed by the contracting parties; and hence if the owner appointed the master of the ship only for the purpose of collecting the freight, and not that he might lease the ship, (although he may have actually leased it) the owner will not be liable if the master did this; and the same rule will apply where it was understood that he could only lease the ship but could not collect the freight; or if he was appointed for the purpose of contracting with passengers but not to offer the use of the ship for merchandise, or vice versa; then, if he exceeds his instructions, he will not bind the owner. But if the master was appointed only to lease the ship for the transportation of certain merchandise, for instance, vegetables, or hemp, and he should lease it to transport marble or other materials, it must be held that he will not be bound. For certain ships are designed for freight and others (as is generally stated) are for the transportation of passengers, and I know that a great many owners give directions not to transport passengers, and also that business must be transacted only in certain regions and in certain waters; for example, there are ships which carry passengers to Brundisium from Cassiopa or from Dyrrachium, but are not adapted for freight, and some also are adapted to river navigation, but are not suitable for the sea. 13Where several masters are appointed, and their duties are not divided, any transaction entered into with one of them will bind the owner; but if their separate duties are designated, as, for instance, one has charge of leasing the vessel, and another is to collect freight, then the owner will be bound by the acts of any one of them provided he is in the discharge of his duty. 14If, however, the party made the appointment, as is often done, in such a way that one of them is not to transact any business without the other, he who contracts with one alone will only have himself to blame. 15When we make use of the word “exercitor,” we understand by it the party into whose hands all receipts and payments come, whether he is the owner of the ship, or whether he has leased it from the owner for a fixed amount for a certain time, or permanently. 16It makes but little difference whether the party who has control of the ship is a man or a woman, the head of a household, a son under paternal control, or a slave; but for a ward to have control of a ship we require the consent of his guardian to be granted. 17We have also the choice whether we would prefer to sue the person having control of the ship, or the master of the same. 18But, on the other hand, an action is not promised by the Prætor against those who contracted with the master, because he did not need the same assistance; he can, however, sue the master on the contract of hiring, if he is furnishing his labor for compensation; or, if he is doing this gratuitously, he can bring an action of mandate against him. It is clear that the prefects, on account of the administration of supplies, and, in the province, the Governors, who are accustomed to aid them by the exertion of extraordinary powers, can do so where contracts are made by the masters of vessels. 19If the party who has control of a ship is in the power of another, and manages the vessel with his consent, an action will be granted on account of business transacted with the master, against the party in whose power he is who has the management of the ship. 20But although an action is granted against the person under whose control he is who has the management of a ship, still, this is only done where he acts with the consent of the latter. Therefore, those who have control of the party having the management are liable for the entire amount, on account of their consent; because the ownership of vessels is a matter of the greatest importance to the public welfare. The employment of agents is not so advantageous, for the reason that they who have transacted business, with a knowledge of the owner, using capital belonging to the peculium, only have a right to their share in the distribution of the same. But if the owner was only aware of the fact, and did not give his consent when the contract was made with the master, shall we grant a right of action for the entire amount, as in the case where the party consented; or shall we only give one resembling the tributorian action? Therefore, the question being doubtful, it is better to adhere strictly to the words of the Edict, and not make the mere knowledge of the father or master in the case of ships an excuse for oppression, nor, in the case of merchandise purchased with the money of the peculium, extend mere consent so as to cause an obligation to be contracted for the entire amount. Pomponius also seems to indicate adherence to the principle that where one person is under the control of another and carries on business with his consent, he will be liable for the entire amount, but if he does not, that he will only be liable for the amount of the peculium. 21We must understand the term “under the control” to apply to both sexes, sons and daughters, and male and female slaves. 22Where a slave, who is part of a peculium, acts as the manager of a ship with the consent of a son under paternal control of whose peculium he forms a part, or where, a sub-slave manages a ship with the consent of the latter, the father or master who did not give his consent will only be liable for the amount of the peculium, but the son himself will be liable in full. It is clear if they manage the ship with the consent of the master or father, they will be liable for the entire amount, and, moreover, the son, if he gave his consent, will also be liable in full. 23But, although the Prætor only promises the action where the business is transacted with the master of the ship, still, (as Julianus has stated) the father or the master will be liable in full, even though the contract was entered into with the manager of the ship himself. 24This action is granted against the owner on account of the master of the ship, and therefore if suit has been brought against either of them, none can be brought against the other; but if any of the money has been paid, and this has been done by the master, the obligation is diminished by operation of law. If, however, it was paid by the manager in his own behalf, that is on account of the honorary obligation, or is paid in behalf of the master, the obligation is diminished; since where another party pays for me he releases me from the debt. 25Ad Dig. 14,1,1,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Where several parties have joint-ownership of a vessel, suit can be brought against any one of them for the entire amount;

2Gaius li­bro no­no ad edic­tum pro­vin­cia­le. ne in plu­res ad­ver­sa­rios di­strin­ga­tur qui cum uno con­tra­xe­rit:

2Ad Dig. 14,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Gaius, On the Provincial Edict, Book IX. In order that a person who contracted with one may not be obliged to divide his claim among several adversaries,

3Pau­lus li­bro vi­cen­si­mo no­no ad edic­tum. nec quic­quam fa­ce­re, quo­tam quis­que por­tio­nem in na­ve ha­beat, eum­que qui prae­sti­te­rit so­cie­ta­tis iu­di­cio a ce­te­ris con­se­cu­tu­rum.

3Ad Dig. 14,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Paulus, On the Edict, Book XXIX. Nor does it make any difference what share each of them has in the vessel, for the party who paid will recover from the others in the action on partnership.

4Ul­pia­nus li­bro vi­cen­si­mo no­no ad edic­tum. Si ta­men plu­res per se na­vem ex­er­ceant, pro por­tio­ni­bus ex­er­ci­tio­nis con­ve­niun­tur: ne­que enim in­vi­cem sui ma­gis­tri vi­den­tur11Die Großausgabe liest vi­de­bun­tur statt vi­den­tur.. 1Sed si plu­res ex­er­ceant, unum au­tem de nu­me­ro suo ma­gis­trum fe­ce­rint, hu­ius no­mi­ne in so­li­dum pot­erunt con­ve­ni­ri. 2Sed si ser­vus plu­rium na­vem ex­er­ceat vo­lun­ta­te eo­rum, idem pla­cuit quod in plu­ri­bus ex­er­ci­to­ri­bus. pla­ne si unius ex om­ni­bus vo­lun­ta­te ex­er­cuit, in so­li­dum il­le te­ne­bi­tur, et id­eo pu­to et in su­pe­rio­re ca­su in so­li­dum om­nes te­ne­ri. 3Si ser­vus sit, qui na­vem ex­er­cuit vo­lun­ta­te do­mi­ni, et alie­na­tus fue­rit, ni­hi­lo mi­nus is qui eum alie­na­vit te­ne­bi­tur. pro­in­de et si de­ces­se­rit ser­vus, te­ne­bi­tur: nam et ma­gis­tro de­func­to te­ne­bi­tur. 4Hae ac­tio­nes per­pe­tuo et he­redi­bus et in he­redes da­bun­tur: pro­in­de et si ser­vus, qui vo­lun­ta­te do­mi­ni ex­er­cuit, de­ces­sit, et­iam post an­num da­bi­tur haec ac­tio, quam­vis de pe­cu­lio ul­tra an­num non de­tur.

4Ad Dig. 14,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7.Ulpianus, On the Edict, Book XXIX. Where, however, several persons have the management of a ship between them, they must be sued in proportion to their shares in the same, for they are not regarded as masters for one another. 1Where several persons having the management of a ship appoint one of their number to be the master, they can be sued on his account for the entire claim. 2Where a slave belonging to several persons manages a ship with their consent, the same rule applies as where there are several managers. For it is clear that if he acted with the consent of any one of them, the latter will be liable for the entire amount; and therefore I think that in the case above mentioned all of them are liable in full. 3If a slave who had control of a ship with the consent of his owner should be alienated, the party who alienated him will, nevertheless, be liable. Hence he would also be liable if the slave should die, for the owner of the ship will be liable after the death of the master. 4These actions are granted without limitation of time both in the favor of heirs, and against them. Hence, if a slave who has control of a ship with the consent of his master should die, this action will be granted after the expiration of a year, although an action De peculio is not granted after a year has elapsed.

5Pau­lus li­bro vi­cen­si­mo no­no ad edic­tum. Si eum, qui in mea po­tes­ta­te sit, ma­gis­trum na­vis ha­beas, mi­hi quo­que in te com­pe­tit ac­tio, si quid cum eo con­tra­xe­ro: idem est, si com­mu­nis ser­vus no­bis erit. ex lo­ca­to ta­men me­cum ages, quod ope­ras ser­vi mei con­du­xe­ris, quia et si cum alio con­tra­xis­set, age­res me­cum, ut ac­tio­nes, quas eo no­mi­ne ha­bui, ti­bi prae­sta­rem, quem­ad­mo­dum cum li­be­ro, si qui­dem con­du­xis­ses, ex­per­ie­ris: quod si gra­tui­tae ope­rae fue­rint, man­da­ti ages. 1Item si ser­vus meus na­vem ex­er­ce­bit et cum ma­gis­tro eius con­tra­xe­ro, ni­hil ob­sta­bit, quo mi­nus ad­ver­sus ma­gis­trum ex­pe­riar ac­tio­ne, quae mi­hi vel iu­re ci­vi­li vel ho­no­ra­rio com­pe­tit: nam et cui­vis alii non ob­stat hoc edic­tum, quo mi­nus cum ma­gis­tro age­re pos­sit: hoc enim edic­to non trans­fer­tur ac­tio, sed ad­ici­tur. 2Si unus ex his ex­er­ci­to­ri­bus cum ma­gis­tro na­vis con­tra­xe­rit, age­re cum aliis ex­er­ci­to­ri­bus pot­erit,

5Paulus, On the Edict, Book XXIX. If you have, as the master of your ship, someone who is under my control, an action will also lie in my favor against you if I enter into any contract with him. The same rule applies where he is owned in common by us. You will, however, be entitled to an action on lease against me, because you hired the services of my slave, as, even if he had contracted with another, you could proceed against me to obtain a transfer of the rights of action which I held on his account, just as you could have done against a freedman had you employed one; but if the services were gratuitous, you can bring an action on mandate. 1Moreover, if my slave has control of a ship, and I make a contract with his shipmaster, there will be nothing to prevent me from instituting proceedings against the shipmaster by an action which I can bring either under Civil or Prætorian Law; for this edict does not prevent anyone from suing the master, as no action is transferred by this edict, but one is added. 2Where one of the owners of a ship makes a contract with the master, he can bring an action against the others.

6Pau­lus li­bro sex­to bre­vium. Si ser­vus non vo­lun­ta­te do­mi­ni na­vem ex­er­cue­rit, si scien­te eo, qua­si tri­bu­to­ria, si igno­ran­te, de pe­cu­lio ac­tio da­bi­tur. 1Si com­mu­nis ser­vus vo­lun­ta­te do­mi­no­rum ex­er­ceat na­vem, in sin­gu­los da­ri de­be­bit in so­li­dum ac­tio.

6Paulus, Abridgments, Book VI. Where a slave has control of a ship without the consent of his master, if he is aware of this, a tributorian action will be granted; but if he is ignorant of the fact, an action De peculio will be available. 1Where a slave owned in common has control of a ship with the consent of his masters, an action for the entire amount will be granted against them individually.

7Afri­ca­nus li­bro oc­ta­vo quaes­tio­num. Lu­cius Ti­tius Sti­chum ma­gis­trum na­vis prae­po­suit: is pe­cu­niam mu­tua­tus ca­vit se in re­fec­tio­nem na­vis eam ac­ce­pis­se: quae­si­tum est, an non ali­ter Ti­tius ex­er­ci­to­ria te­ne­re­tur, quam si cre­di­tor pro­ba­ret pe­cu­niam in re­fec­tio­nem na­vis es­se con­sump­tam. re­spon­dit cre­di­to­rem uti­li­ter ac­tu­rum, si, cum pe­cu­nia cre­de­re­tur, na­vis in ea cau­sa fuis­set, ut re­fi­ci de­be­ret: et­enim ut non opor­tet cre­di­to­rem ad hoc ad­strin­gi, ut ip­se re­fi­cien­dae na­vis cu­ram sus­ci­piat et neg­otium do­mi­ni ge­rat (quod cer­te fu­tu­rum sit, si ne­ces­se ha­beat pro­ba­re pe­cu­niam in re­fec­tio­nem ero­ga­tam es­se), ita il­lud ex­igen­dum, ut sciat in hoc se cre­de­re, cui rei ma­gis­ter quis sit prae­po­si­tus, quod cer­te ali­ter fie­ri non pot­est, quam si il­lud quo­que scie­rit ne­ces­sa­riam re­fec­tio­ni pe­cu­niam es­se: qua­re et­si in ea cau­sa fue­rit na­vis, ut re­fi­ci de­be­ret, mul­to ta­men ma­ior pe­cu­nia cre­di­ta fue­rit, quam ad eam rem es­set ne­ces­sa­ria, non de­be­re in so­li­dum ad­ver­sus do­mi­num na­vis ac­tio­nem da­ri. 1In­ter­dum et­iam il­lud aes­ti­man­dum, an in eo lo­co pe­cu­nia cre­di­ta sit, in quo id, prop­ter quod cre­de­ba­tur, com­pa­ra­ri po­tue­rit: quid enim, in­quit, si ad velum emen­dum in eius­mo­di in­su­la pe­cu­niam quis cre­di­de­rit, in qua om­ni­no velum com­pa­ra­ri non pot­est? et in sum­ma ali­quam di­li­gen­tiam in ea cre­di­to­rem de­be­re prae­sta­re. 2Ea­dem fe­re di­cen­da ait et si de in­sti­to­ria ac­tio­ne quae­ra­tur: nam tunc quo­que cre­di­to­rem sci­re de­be­re ne­ces­sa­riam es­se mer­cis com­pa­ra­tio­nem, cui emen­dae ser­vus sit prae­po­si­tus, et suf­fi­ce­re, si in hoc cre­di­de­rit, non et­iam il­lud ex­igen­dum, ut ip­se cu­ram sus­ci­piat, an in hanc rem pe­cu­nia ero­gan­da est.

7Africanus, Questions, Book VIII. Lucius Titius appointed Stichus the master of a ship, and he, having borrowed money, stated that he received it for the purpose of repairing the ship. The question arose whether Titius was liable to an action on this ground only where the creditor proved that the money had been expended for the repair of the ship? The answer was that the creditor could properly bring an action if, when the money was lent, the ship was in such a condition as to need repairs; for, while the creditor should not be compelled to, himself, undertake the repair of the ship, and transact the business of the owner (which would certainly be the case if he was required to show that the money had been spent for repairs); still, it should be required of him that he know that he makes the loan for the purpose for which the master was appointed; and this certainly could not happen unless he also knew that the money was needed for repairs. Wherefore, even though the ship was in such a condition as to need repairs, still, if much more money was lent than was necessary for that purpose, an action for the entire amount should not be granted against the owner of the ship. 1Sometimes it should be considered whether the money was lent in a place in which that for which it was advanced could be obtained; for, as Africanus says, what would be the case if someone lent money for the purchase of a sail in an island of such a description that a sail could not be obtained there under any circumstances? And, in general, a creditor is obliged to exercise some care in the transaction. 2Almost the same rule applies where inquiry is made with reference to the institorian action; for, in this instance also, the creditor must know that the purchase of the merchandise for which the slave was appointed was necessary; and it will be sufficient if he made the loan to this end, but it should not also be required that he should himself undertake the task of ascertaining whether the money was spent for this purpose. The principle of tenancy in common extends not only to the ship but also to the cargo, unless otherwise provided for; the master, being regarded as the confidential agent of the owners, is held to be tacitly invested with authority to bind them without their consent in all matters having reference to the general management and navigation of the ship; a rule of unknown antiquity, but which is obviously derived from the earliest ages of commercial intercourse. He is personally liable for his contracts, from which responsibility, however, he may obtain exemption by special agreement. As in the case of a part-owner, he can sell or hypothecate all, or a portion of the cargo, as well as the ship, if any sudden against the others whose merchandise was saved, so that the loss may be distributed proportionally. Servius, indeed, answered that they should proceed against the master of the ship under the contract for transportation to compel him to return the merchandise of the others, until they make good their share of the loss. Even though the master does retain the merchandise, he will, in any event, be entitled to an action under the contract for transportation against the passengers.