De operis libertorum
(Concerning the Services of Freedmen.)
1Paulus, On Various Passages. The services above mentioned signify daily labor.
2Ulpianus, On the Edict, Book XXXVIII. The Prætor promulgated this Edict in order to restrict the demands for services imposed in consideration of the grant of freedom; for he perceived that the demands for services imposed in return for freedom increased excessively, for the purpose of oppressing and annoying freedmen. 1Therefore, in the first place, the Prætor promises that he will grant actions with a view to requiring services to be rendered by freedmen and freedwomen.
3Pomponius, On Sabinus, Book IV. Where a patron has stipulated for services to be performed by his freedmen, he cannot demand them until after the time has passed when they are due. 1Nor can a part of the services be performed by the freedmen working a certain number of hours, because the obligation requires the labor of an entire day. Hence a freedman who has only worked six hours in the forenoon will not be released from labor for the entire day.
4The Same, On Sabinus, Book IV. A slave who was manumitted by two masters promised his services to both. One of them having died, there is no reason why a demand for the services of the slave should not be made by his son, even though the other master may be living. This has nothing in common with the succession to, or prætorian possession of an estate; as services are demanded from freedmen just as if money had been lent to them. This was the opinion of Aristo, and I think it to be correct; for it is held that an action should be granted to a foreign heir for services which were due but not performed, without the fear of his being barred by an exception; and therefore, it should be granted to the son, even if the other patron is living.
5Ulpianus, On Sabinus, Book XV. If anyone should stipulate for services to be rendered for the benefit of himself and his children, the stipulation will also apply to his posthumous heirs.
6The Same, On Sabinus, Book XXVI. Services appertaining to a trade, and others which are the same as the payment of money, pass to the heir; but those relating to the duties of the freedmen do not pass to him.
7The Same, On Sabinus, Book XXVIII. In order that, in a case of this kind, the obligation of an oath may be contracted in accordance with law, it is necessary that the person who is sworn be a freedman, and that he does so in consideration of the freedom which he has received. 1The question arises, if anyone should bequeath a legacy to his freedman, provided he will swear to pay ten aurei to his son, instead of giving his services, whether he will be bound by the oath. Celsus Juventius says that he will be bound, and that it makes very little difference for what reason the freedman takes an oath with reference to his services. I assent to the opinion of Celsus. 2In order that the oath may be binding, the freedman must take it after his manumission, and he will be equally bound whether he takes it immediately, or after a certain time. 3Moreover, he should swear that he will give his services, a gift, or a present; and he can promise any services whatsoever, provided that they can be lawfully and properly proposed. 4It was stated in a Rescript by the Divine Hadrian, and also subsequently by other Emperors, that a demand for services cannot be made against one who has obtained his freedom in consideration of the execution of a trust. 5The action to compel the performance of services will be granted against a minor when he reaches the age of puberty, and sometimes even while he is under that age; for services can be performed by him if he is a copyist, or one familiar with the names of citizens, or an accountant, or an actor, or the minister of any other kind of pleasure. 6If the children of a patron have been appointed to unequal shares of the estate, should they be entitled to an action to compel the performance of the services of freedmen, in accordance with their hereditary right to the estate, or to their shares? I think that the better opinion is that they will be entitled to an action in proportion to their hereditary right to the estate. 7It, however, makes little difference whether the children were under the control of the patron, or had been emancipated. 8If a patron should appoint his son, whom he had given in adoption, his heir, the better opinion is that he is entitled to the services of the freedmen. 9The children of a patroness are not excluded from demanding services from the freedmen of their mother.
8Pomponius, On Sabinus, Book VIII. Where a freedman has sworn to render his services to two patrons, it is held by Labeo that he owes a portion of them to each, and that this can be demanded of him; for services which have not been and could not be performed at the time are constantly required. This occurs whether the freedman has sworn to, or promised the patrons themselves, or a slave owned by both of them, to render his services, or where there are several heirs of one patron. 1It is established that anyone can act as surety for a freedman who takes an oath to render his services.
9Ulpianus, On Sabinus, Book XXXIV. Services are not property which, in the nature of things, exists. 1Services, however, to be performed from a sense of obligation, and which are to be rendered hereafter, are not due to anyone but the patron; as their ownership attaches to the person of the one who performs them, and to that of him to whom they are rendered. Services relating to a trade, and others of the same description, can be rendered by anyone and to anyone whomsoever; for where they have reference to some trade, they can be rendered to another by order of the patron.
10Pomponius, On Sabinus, Book XV. The slave of a patron cannot make the following stipulation with reference to a freedman: “Do you promise to render me your services?” Hence the stipulation should be made for the services to be rendered to his patron. 1Where a freedman takes the following oath with reference to his services, “I swear to render my services to my patron, or to Lucius Titius,” he cannot be released from those which he owes to his patron by rendering his services to Lucius Titius.
12Pomponius, On Sabinus, Book XV. Because the services rendered to Lucius Titius are different from those to which the patron is entitled. Where, however, the freedman promises a certain sum of money to his patron, who is poor, in consideration of receiving his freedom, or promises it to Titius, the addition of the name of Titius will certainly be valid.
13Ulpianus, On the Edict, Book XXXVIII. When a slave is purchased under this law, subject to the condition that he shall be manumitted, and he obtains his freedom in accordance with the Constitution of the Divine Marcus, any services which have been imposed upon him will be of no force or effect. 1Nor can services be demanded from a freedman to whom property has been assigned under the Constitution of the Divine Marcus promulgated for the purpose of preserving the freedom of slaves, whether they have obtained their freedom directly, or in accordance with the terms of a trust, even if those who have obtained it as the beneficiaries of a trust become the freedmen of the person himself; for they do not become freedmen under the same circumstances as slaves whom we manumit without being compelled to do so. 2The action to compel the performance of services will lie when the time for performing them has passed; the time, however, cannot elapse before the services begin to be due, and they begin to be due after the time for their performance has been indicated. 3Even if the freedman should have a wife, his patron is not prevented from demanding his services. 4If the patron is a minor under the age of puberty, his freedman is not considered to be married with his consent unless the authority of his guardian confirms it. 5Where the marriage of a freed woman is ratified by her patron, it will bar him from objecting to it subsequently.
14Terentius Clemens, On the Lex Julia et Papia, Book VIII. It is evident, when the freedwoman ceases to be married, that her services can be demanded, as almost all authorities hold.
15Ulpianus, On the Edict, Book XXXVIII. A freedman, after his services have been indicated, becomes so ill that he cannot perform them. Will he be liable, because it is clear that it is not his fault that he does not perform the services? 1Services cannot be promised, rendered, due, or demanded in part. Therefore Papinianus gave the following opinion, namely: where there are several distinct services and not merely one, and the patron who stipulated for them left several heirs, it is true that the obligation should be divided in proportion to the number of the heirs. Finally, Celsus, in the Twelfth Book, says that if a freedman, who has two patrons, should swear that he will render a thousand services to a slave held by them in common, five hundred, rather than a thousand halves of the services will be due to each one.
16Paulus, On the Edict, Book XL. A freedman must render those services to his patron which belong to a trade that he learned after his manumission, provided they are such as can be performed honorably and without danger to life; but those which he learned at the time of his manumission should not always be rendered. If, however, he adopted some dishonorable occupation after his manumission, he must perform those services which he could have rendered at the time when he obtained his freedom. 1Such services should be rendered to a patron as are suitable to the age, rank, health, requirements, and mode of life of both parties.
17The Same, On the Right of Patronage. A patron should not be heard if he demands services which the age of the freedman does not permit, or the weakness of his body cannot endure, or by the performance of which his condition, or mode of life will be injuriously affected.
18The Same, On the Edict, Book XL. Sabinus, in the Fifth Book of the Edict of the Urban Prætor, says that a freedman must render his services, and provide his own food and clothing. If, however, he cannot support himself, his food must be furnished him by his patron.
19Gaius, On the Provincial Edict, Book XIV. It is clear that services should not be required of a freedman without giving him certain days upon which to perform them, and allowing him sufficient time for earning enough to support himself.
20Paulus, On the Edict, Book XL. Unless this is done, the Prætor will not permit the services of a freedman to be rendered to his patron. This is entirely proper, because each one of them should furnish what he promised at his own expense, so long as what he owes is in existence. 1Proculus says that a freedman should go to Rome from his province in order to render his services; but, where he does so, the patron will lose the time consumed by him while coming to Rome. This is the case, provided the patron, as a good citizen and the careful head of a household, resides at Rome, or travels into the province, but if he wishes to wander about the world, the necessity of following him everywhere should not be imposed upon the freedman.
21Javolenus, On Cassius, Book VI. For the services should be rendered in the place where the patron resides, and of course at his expense for food and transportation.
22Gaius, On the Provincial Edict, Book XIV. Where a patron stipulates for services, the stipulation becomes operative when the patron makes the demand, and the freedman does not render them. Nor does it make any difference whether the words “when I demand them” are added or not; as one rule applies to the services of the freedman, and another to other matters. For as the performance of services is nothing more than the discharge of a duty, it is absurd to suppose that a duty should be performed on some other day than the one on which the person who is entitled to it wishes it to be done. 1When a freedman promises his patron to render him services, and does not include his children, it is settled that the services will only be due to his children if they become the heirs of their father. Julianus holds that, even if they become the heirs of their father, they will only have a right to demand the benefit of the services of the freedman where they did not become heirs through the intervention of another person. Therefore, if anyone, after having disinherited his emancipated son, should appoint his slave his heir, and the former should become his heir through the said slave, he ought to be barred from demanding the services of the freedman; just as a patron would be barred who did not impose any services upon his freedmen, or had sold those which he did impose. 2It should, by all means, be noted that in every kind of services such periods of time as are necessary for the proper care of his body should be granted to the freedman.
23Julianus, Digest, Book XXII. Services such as are promised by a freedman differ materially from those attaching to a trade or a profession; hence, if the freedman is an artisan, or a painter, as long as he is employed in this way he will be compelled to render his patron services of this kind. Therefore, just as anyone can stipulate for the performance of services relating to a trade for his own benefit, or for that of Titius, so, also, a patron can lawfully stipulate with his freedman for his services to be rendered either to himself, or to Sempronius; and the freedman will be released from his obligation by rendering his services to a stranger, just as he would be if he had performed them for his patron. 1Where there are several patrons who have designedly gone into different provinces, and have, at the same time, demanded the performance of services by a freedman, it may be said that the services are due, but that the freedman will not be bound, because it is not his fault, but that of his patrons, that the services are not performed; just as is the case where services are demanded from a freedman who is ill. Where the patrons are residents of two different towns, and each one has his domicile there, they should agree with reference to the rendition of services by the freedman; otherwise, it would be a hardship that one who can be released by working for ten days, should, because his patrons do not agree with reference to the rendition of his services, and both demand them at once, be compelled to work for five days for one of them, and to pay the other the value of the five days of labor to which he is entitled.
24The Same, Digest, Book LII. Whenever a certain kind of service is specified in the stipulation, as, for instance, those of a painter, or of some artisan, they cannot be demanded unless the time for their performance has elapsed, as in the contract itself, time for performance is understood to be given, although it may not be expressed in words; for example, when we make a stipulation for services to be rendered at Ephesus, sufficient time to do so is implied. Hence the following stipulation is void, “Do you promise to give me to-day a hundred pictures which you have painted?” Services, however, begin to be due from the date of the stipulation. Those which a patron requires from his freedman are not due immediately, because it is understood to be agreed among the parties that they shall not be due before the time for their performance has been indicated; that is to say, that the freedman shall perform his services according to the convenience of his patron; which cannot be said with reference to those of an artisan, or a painter.
25The Same, Digest, Book LXV. A patron who hires the services of his freedman is not always understood to receive payment for said services; but this should be ascertained from the nature of the services, and The position of the patron and the freedman. 1For, if anyone has a freedman who is a comedian, or the chief actor in a pantomime, and his means are moderate, so that he cannot avail himself of his services unless he leases them, it should be considered that it is the services of the freedman that he requires, rather than the compensation therefor. 2Likewise physicians very frequently manumit their slaves who belong to the same profession, as they cannot make use of their services without hiring them. The same rule can be said to apply to other occupations. 3But where anyone can make use of the services of a freedman, and prefers by hiring them to obtain their value, he should be considered to receive compensation for the services of his freedman. 4Sometimes, however, patrons hire the services of their freedmen at the request of the latter, and when this is done, they should be considered rather as receiving the price of their services than compensation for them.
26Alfenus Varus, Digest, Book VII. Where a physician, who thought that if his freedmen did not practice medicine he would have many more patients, demanded that they should follow him and not practice their profession, the question arose whether he had the right to do this or not. The answer was that he did have that right, provided he required only honorable services of them; that is to say, that he would permit them to rest at noon, and enable them to preserve their honor and their health. 1I also ask, if the freedmen should refuse to render such services, how much the latter should be considered to be worth. The answer was that the amount ought to be determined by the value of their services when employed, and not by the advantage which the patron would secure by causing the freedmen inconvenience through forbidding them to practice medicine.
27Julianus, On Minicius, Book I. If a freedman exercises the calling of a comic actor, it is evident that he should employ his services not only for the benefit of the patron himself, but also gratuitously at the entertainments of his friends; just as a freedman who practices medicine should, at the desire of his patron, treat the friends of the latter without compensation; for, in order that he may employ the services of his freedman it is not necessary for a patron always to give entertainments, or constantly to be ill.
28Paulus, On the Right of Patronage. Where a freedwoman, who has two or more patrons, marries with the consent of one of them, the other will continue to have the right to her services.
29Ulpianus, On the Edict, Book LXIV. Where suit is brought against a freedman to compel the performance of services, and his patron dies, it is established that the right of action does not pass to a foreign heir. If, however, there is a son, and he should not be the heir, even though issue may not have been joined in the case, he will, nevertheless, be entitled to the services of the freedman, unless he has been disinherited.
30Ad Dig. 38,1,30ROHGE, Bd. 4 (1872), S. 429: Unterschied zwischen Schiedsspruch und arbitrium boni viri bezüglich der Anfechtbarkeit.ROHGE, Bd. 16 (1875), Nr. 109, S. 427, 430: Vervollständigung absichtlich unvollständiger Vereinbarung. Arbitrium boni viri. Taxation des Geschäftsantheils eines ausgetretenen Gesellschafters.ROHGE, Bd. 18 (1876), Nr. 91, S. 345: Arbitrium merum, boni viri. Anfechtung propter magnam improbitatem.Celsus, Digest, Book XII. If a freedman should swear to render all the services that his patron may desire, the wishes of the patron will not be considered, except so far as is consistent with justice. The intention of freedmen who leave their services to the discretion of their patrons is based upon the fact that the latter will act with justice, and not because they wish to bind themselves heedlessly. 1An action is granted to a patron against his freedwoman, who marries without his consent, for services due from her before marriage.
31Modestinus, Rules, Book I. A freedman cannot be compelled to render services which he did not promise, where none were imposed, even if he may for some time voluntarily perform them.
32The Same, Pandects, Book VI. A freedman who promised money to his patron, which the latter demanded of him for the purpose of rendering his freedom oppressive, will not be liable; and if the patron should exact the money, he cannot obtain possession of his estate contrary to the provisions of the will of the freedman.
33Javolenus, On Cassius, Book VI. Services cannot be imposed upon a freedman in such a way that he shall be required to support himself.
34Pomponius, On Quintus Mucius, Book XXII. It should be noted that obligations for the performance of services are sometimes subject to diminution, increase, and modification; for when a freedman is enfeebled, the patron loses his services which had already begun to be due. If, however, a freedwoman who had promised her services is raised to such a rank that it will be improper for her to render them to her patron, the obligation will be annulled by operation of law.
35Paulus, On the Lex Julia et Papia, Book II. A freedwoman, who is more than fifty years of age, is not compelled to render services to her patron.
36Ulpianus, On the Lex Julia et Papia, Book XI. Labeo says that it is clear that a partnership formed between a freedman and a patron, in consideration of freedom being granted to the former, is void in law.
37Paulus, On the Lex Julia et Papia, Book II. “A freedman who has two or more male or female children under his control (exclusive of any who may have adopted the profession of buffoon, or have hired themselves to fight with wild beasts), will not be required to render their patron or patroness, or the children of the latter any services, or to make them any donation or present, or to do anything else which they have agreed to furnish, bestow, or perform, in consideration of freedom, with reference to which they have sworn, promised, or bound themselves; 1and if the said freedman should not, at the same time, have two children under his control, but only one of the age of five years, he shall be released from the obligation of performing services.” 1aJulianus says that the death of children is an advantage to a freedman, as releasing him from services subsequently imposed. 2If, after having lost a child, the freedman binds himself to render services to his patron and another child is afterwards born, Pomponius says that there is all the more reason for the child who is. dead to be joined with the living one, in order to release the freedman from liability. 3It makes no difference whether the freedman promises his services to the patron himself, or to those who are under his control. 4Ad Dig. 38,1,37,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 355, Note 8.If the patron should assign the services of his freedman to a creditor, the same rule cannot be said to apply; for this assignment is made instead of a payment. It may, however, be said that the freedman can be released by the above-mentioned law, if the patron has assigned the services to another, after the freedman has promised them; for it is true that he promised them to his patron, although he no longer owes them to him. But if in the beginning, the freedman should promise his services on account of the assignment of his patron, he will not be released. 5The release from the rendition of services not only has reference to those to be performed in the future, but also to such as are already due. 6Julianus says that even if suit has already been brought to compel the performance of services, a release will take place if children should be born. Where, however, a decision has been rendered for services to be performed, the freedman cannot be released, as he has begun to owe a sum of money. 7A posthumous child does not discharge the heirs of his father from liability, because the release should be derived from the freedman, and no one can be considered to be discharged after death. But children born before the death of the freedman will cause a release under the above-mentioned law. 8According to the spirit of the said law, even if the release has special reference to the person of the freedman, his sureties will also be discharged. If, however, the freedman should furnish a debtor as his substitute, this will be of no advantage to him.
38Callistratus, On the Monitory Edict, Book III. Services are only understood to be properly imposed where they can be performed without disgrace, and without danger to life. For if a slave, who is a prostitute, should be manumitted, she ought not to render the same services to her patron, although she may still profit by the sale of her body; and if a gladiator should be manumitted, he does not owe his patron the same services, because these cannot be performed without danger to life. 1Where, however, a freedman is employed in some trade, he should give his services relating thereto, even if he has learned the trade after his manumission. If he ceases to exercise that trade, he should contribute such services as are not inconsistent with his rank; as, for example, he can live with his patron, travel with him, or transact his business.
39Paulus, On Plautius, Book VII. A stipulation was entered into by a patron as follows, namely, “If you do not give me your services for ten days, do you promise to pay me twenty sesterces?” It must be considered whether an action for the twenty sesterces should not be granted, as having been promised for the purpose of rendering freedom burdensome; or whether services which have not been promised can be given; or whether this ought only to be assumed to have been promised, in order that the patron may not be entirely excluded? The Prætor decides that services have only been promised. 1Hence the following point arises, namely, whether the freedman can prevent a judgment for a larger sum than twenty sesterces from being rendered against him, because the patron seems to have valued his services at that amount, and therefore he himself should not desire to increase it. It would, however, be unjust to do this, nor is it necessary to show such indulgence to the freedman, for he should not, on the one hand, agree to the stipulation, and on the other complain of it as being unjust.
40Papinianus, Questions, Book XX. If the property of a patron is sold, an action will still be granted him to obtain any services of his freedman which have begun to be due after the sale. If he is able to support himself, an action will not be granted him to compel performance of the services which should have been rendered before the sale, since this relates to what took place before the property was disposed of.
41The Same, Opinions, Book V. A freedman who has been released from the obligation to render services, and hence has acquired full testamentary capacity, shall, nevertheless, be compelled to treat his patron with respect. The case is different with reference to furnishing support, where the necessities of the patron are assumed for the purpose of annoying the freedman.
42The Same, Opinions, Book IX. “I wish my slave, So-and-So, who is a mechanic of a low order, to be manumitted, in order that he may perform services for my heir.” The manumitted slave was not compelled to promise, but, if he should do so, an action will not be granted against him, for he who gave him his freedom under a trust cannot alter a public law.
45The Same, Opinions, Book II. Can the freedman of a merchant who deals in clothing conduct the same business in the same town, and in the same place, if his patron is unwilling for him to do so? The answer was that there is no reason, in the case stated, why he cannot do so, if his patron sustains no injury thereby.
47The Same, Trusts, Book VI. Campanus says that the Prætor should not allow the promise of any gift, present, or service to be imposed upon a slave who is manumitted under the terms of a trust. If, however, he permitted himself to be bound by an obligation, when he was aware that he could refuse, a suit to compel the performance of services should not be denied, because the slave is held to have donated them.
48Hermogenianus, Epitomes of Laiv, Book II. As in the case of a patron, so, also, his son, his grandson, and his great-grandson who consents to the marriage of a freedwoman, loses the right to require her services; for she to whose marriage he consented ought to be entirely at the disposal of her husband. 1If, however, the marriage-to which the patron consented is void, he will not be prevented from exacting her services. 2The exaction of the services of the freed woman is not refused to her patroness, or to the daughter, granddaughter, or great-granddaughter of her patron, where any of them consented to her marriage; because it is not improper that the services of a freedwoman who was married should be rendered to them.
49Gaius, On Cases. A freedman who has two patrons can, in some instances, perform different services for both of them, at the same time; as, for example, if he is a copyist, and works for one of his patrons by writing books, and takes charge of the house of the other while the latter is on a journey with his family; for nothing will prevent him from writing books while he is in charge of the house. Neratius stated the same opinion in his Works of Parchments.
50Neratius, Opinions, Book I. The nature of the services to be rendered depends upon the status of the person who renders them, for they must conform to his rank, his means, his mode of life, and his occupation. 1Moreover, a freedman, and everyone else who is required to perform services, must be supported, or he must be given sufficient time to provide for his maintenance; and, in every instance, time must be granted him for the proper and necessary care of his person.
51Paulus, Manuals, Book II. The right to demand services sometimes remains even after the right of patronage has ceased to exist, which occurs in the case of the brothers of him to whom the freedman has been assigned; or with reference to the grandson of one patron, where there is a son of another patron.