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. XLVII5,
Furti adversus nautas caupones stabularios
Liber quadragesimus septimus
V.

Furti adversus nautas caupones stabularios

(Concerning Theft Committed Against Captains of Vessels, Innkeepers, and Landlords.)

1Ul­pia­nus li­bro tri­gen­si­mo oc­ta­vo ad edic­tum. In eos, qui na­ves cau­po­nas sta­bu­la ex­er­ce­bunt, si quid a quo­quo eo­rum quos­ve ibi ha­be­bunt fur­tum fac­tum es­se di­ce­tur, iu­di­cium da­tur, si­ve fur­tum ope con­si­lio ex­er­ci­to­ris fac­tum sit, si­ve eo­rum cu­ius, qui in ea na­vi na­vi­gan­di cau­sa es­set. 1Na­vi­gan­di au­tem cau­sa ac­ci­pe­re de­be­mus eos, qui ad­hi­ben­tur, ut na­vis na­vi­get, hoc est nau­tas. 2Et est in du­plum ac­tio. 3Cum enim in cau­po­na vel in na­vi res per­it, ex edic­to prae­to­ris ob­li­ga­tur ex­er­ci­tor na­vis vel cau­po ita, ut in po­tes­ta­te sit eius, cui res sub­rep­ta sit, utrum mal­let cum ex­er­ci­to­re ho­no­ra­rio iu­re an cum fu­re iu­re ci­vi­li ex­per­i­ri. 4Quod si re­ce­pe­rit sal­vum fo­re cau­po vel nau­ta, fur­ti ac­tio­nem non do­mi­nus rei sub­rep­tae, sed ip­se ha­bet, quia re­ci­pien­do pe­ri­cu­lum cus­to­diae sub­it. 5Ser­vi ve­ro sui no­mi­ne ex­er­ci­tor no­xae de­den­do se li­be­rat. cur er­go non ex­er­ci­tor con­dem­ne­tur, qui ser­vum tam ma­lum in na­ve ad­mi­sit? et cur li­be­ri qui­dem ho­mi­nis no­mi­ne te­ne­tur in so­li­dum, ser­vi ve­ro non te­ne­tur? ni­si for­te id­cir­co, quod li­be­rum qui­dem ho­mi­nem ad­hi­bens sta­tue­re de­buit de eo, qua­lis es­set, in ser­vo ve­ro suo ignos­cen­dum sit ei qua­si in do­mes­ti­co ma­lo, si no­xae de­de­re pa­ra­tus sit. si au­tem alie­num ad­hi­buit ser­vum, qua­si in li­be­ro te­ne­bi­tur. 6Cau­po prae­stat fac­tum eo­rum, qui in ea cau­po­na eius cau­po­nae ex­er­cen­dae cau­sa ibi sunt, item eo­rum, qui ha­bi­tan­di cau­sa ibi sunt: via­to­rum au­tem fac­tum non prae­stat. nam­que via­to­rem si­bi eli­ge­re cau­po vel sta­bu­la­rius non vi­de­tur nec re­pel­le­re pot­est iter agen­tes: in­ha­bi­ta­to­res ve­ro per­pe­tuos ip­se quo­dam­mo­do ele­git, qui non re­ie­cit, quo­rum fac­tum opor­tet eum prae­sta­re. in na­vi quo­que vec­to­rum fac­tum non prae­sta­tur.

1Ulpianus, On the Edict, Book XXXVIII. An action is granted against those who have control of ships, inns, and other places of public entertainment, where anything is alleged to have been stolen by any one of them, or by persons in their employ; whether the theft was committed with the aid and advice of the proprietor himself, or the owner of the ship, or of those who were on board for the purpose of navigation. 1We understand the words “for the purpose of navigation,” to refer to those who are employed to navigate a ship, that is to say, the sailors. 2This action is also for double damages. 3For when property is lost in an inn or on a ship, the owner or lessee of the vessel, or the landlord, is liable under the Edict of the Prætor; so that it is in the power of the person from whom the property was stolen to proceed against the proprietor under the Prætorian Law, or against the thief under the Civil Law, whichever he may prefer. 4If the innkeeper or the owner of the ship received the property “to be safely cared for,” the owner of the same cannot bring the action for theft, but he who assumed responsibility for its safe-keeping will be entitled to bring it. 5The owner of the ship, however, can release himself from liability incurred by the act of his slave, by surrendering the latter by way of reparation for the damage committed. Why then should not the owner be condemned, who permitted so bad a slave to remain on his ship? And why is he held liable for the entire amount for the act of a freeman, and not for that of the slave? unless when he employed a freeman, it was his duty to ascertain what his character was; but he should be excused so far as his slave is concerned, just as in the case of a bad domestic, if he is ready to surrender him by way of reparation for the damage he committed. If, however, he employed a slave belonging to another, he will be liable, as in the case of a freeman. 6An innkeeper is responsible for the acts of those who are in his house for the purpose of transacting his business, as well as for all permanent lodgers; he is, however, not responsible for the acts of travellers, since an innkeeper cannot select the travellers, nor can he exclude them while they are pursuing their journey. He, however, to a certain extent, selects his permanent lodgers, if he does not reject them, and he must be liable for their acts. In like manner, the captain of a ship is not liable for the acts of his passengers.