Ulpianus, On the Edict, Book XXVIII. The Prætor says, “Whatever anyone is said to have loaned, I will grant an action for the same.” 1The interpretation of this Edict is not difficult; there is only one thing to be noted, and that is that the party who drew the Edict referred to a loan, while Pacuvius mentioned using something. Labeo says, however, that there is the same difference between a loan and something given to be used, as there is between genus and species; for. movable property may be loaned, but what belongs to land cannot be, although what belongs to the land may be given to be used. But it is also apparent that land may very properly be said to be lent, and Cassius holds the same opinion. Vivianus goes still further, and says that a lodging can be lent. 2Parties under the age of puberty are not liable to an action on a loan for use, since a loan of this kind cannot exist with reference to a ward without the authority of his guardian; and this principle is applicable to such an extent that even if, after he reaches puberty, the boy commits fraud or is guilty of negligence, he will not be liable to the action, because in the beginning the loan was inoperative.

Ulpianus, On the Edict, Book XXVIII. It seems to me, however, that if a ward is pecuniarily benefited, an equitable action on the loan should be granted against him, according to a Rescript of the Divine Pius. 1If the article lent is returned, but is returned deteriorated, it will not be held to be returned at all because it has been deteriorated, unless the loss is made good; for an article is properly said not to be returned, if it is returned in a deteriorated condition. 2In this action, as in other bona fide actions, the same oath shall be taken with reference to the claim, and so far as the value of the property is concerned, the time must be considered when the case was decided; although, in strict law, the time when issue was joined is that which must be taken into consideration. 3The heir of the party who received the loan can be sued for the same share which he has in the estate, unless he should happen to have the power to return the entire property, and does not do so; for then judgment will be rendered against him for the whole amount, since this would be in accordance with the decision of a good judge. 4Where a loan is made to a son under paternal control or a slave, the action must only be brought for the peculium, but the creditor can have a direct action also against the son himself. Moreover, if the party made the loan to a female slave or to a daughter under paternal control, an action De peculio is the only one that could be brought. 5The father or the owner will not have judgment rendered against him solely on account of the wrongful act of either the son or the slave, as fraud only on the part of the father or owner himself will be considered; a distinction which is made by Julianus, with reference to the action on pledge, in the Eleventh Book. 6There can be no loan of an article which is consumed by use, unless the person borrowed it for the purpose of pomp or ostentation.

Ulpianus, On the Edict, Book XXVIII. Where an agreement is made that the article lent shall be returned at a certain place or time, it is the duty of the judge to take into consideration the place or time mentioned. 1Where anyone brings this action, and accepts an estimate of the damages which is offered, he makes the article loaned the property of the party who tenders the money. 2We must now examine what it is that is to be taken into consideration in an action on loan for use, whether fraud or negligence, or every kind of risk; and, indeed, in contracts we are sometimes guilty of fraud and sometimes of negligence; of fraud in the case of deposit, because, as no benefit will be derived by the party with whom the property is deposited, it is reasonable that only fraud should be considered, unless where compensation happens to be made, for then (as has been enacted), negligence is included; or where it was agreed upon in the beginning that the party with whom the article was deposited should be responsible for both negligence and accident. Where, however, the advantage of both parties was concerned in a case of sale, hire, dowry, pledge, or partnership, responsibility attaches for both fraud and negligence. With reference to a loan, the entire advantage which accrues is generally that of the party to whom the property is lent; and therefore the opinion of Quintus Mucius, who thought that the party must be liable for negligence, and must also use diligence, is the more correct one. 3And if the property had been appraised before it was delivered, the entire risk must be assumed by him who agreed to be responsible for the amount of the appraisement. 4But where deterioration occurs, either through old age or disease, or where the property is stolen by robbers, or anything of this kind takes place; it must be said that the party who received the loan is not to be blamed for any of these things, unless some negligence occurred on his part. Hence, if any damage resulted through fire or the fall of a building, or any inevitable loss took place, the party will not be liable; unless, when he could have saved the property which was lent, he preferred to save his own. 5It is beyond question that he must use diligent care with reference to the property loaned. 6But whether he must use this care, where a slave has been loaned, was doubted by the ancient authorities; for sometimes a watch must be kept upon a slave, as where he is chained when lent, or where his age requires that he should be guarded; but if it was certain that the understanding was that the party who asked for him should guard him, it must be held that this should be done. 7Sometimes, however, the loss by death must be borne by the party who asked for the loan; since if I should lend you a horse for you to take to your villa, and you take it to war, you will be liable to an action on loan; and the same rule applies to the case of a slave. It is clear, however, that if I lent the horse to you in order that you might take it to war, the risk would be mine, for Nanusa says if I lend you a slave to plaster a wall, and he falls down from a scaffold, the risk is mine. I think, however, that this is true only where I lent him to you for the purpose of working on a scaffold; but if he should do his work on the ground, and you caused him to get up on a scaffold; or if, through some defect in the latter which was not built properly, even though not fastened by the party in question, or it happened through the age of the ropes or poles; I say that the party himself who requested the loan, must be responsible for the accident which occurred through his negligence. Mela stated that if a slave was lent to a stone-cutter and was killed by the fall of a scaffold, the artisan is liable to an action on loan, because he built the scaffold in a careless manner. 8Moreover, where a person uses the article lent to him in some other way than was intended, he is liable not only to an action on loan but also to one on theft; as Julianus states in the Eleventh Book of the Digest. He also says, “If I lend you a blank book and you cause your debtor to write therein a note to secure you, and I then erase this; if I lent the book to you in order that you might be secured, I am liable to you in a counter action.” But if this is not the fact, and you did not inform me that the note was written, you will also be liable to me in an action on loan, and he says you will even be liable to an action on theft also; since you made use of the property loaned in a different way than you should have done, just as anyone is liable for theft if he uses a horse or a garment for a different purpose than that for which it was lent. 9To such an extent must diligence be exercised with reference to property loaned for use, that it must be employed even with respect to whatever follows the property in question; as, for instance, where I lent you a mare which was accompanied by a foal, the ancient authorities held that you were also obliged to use proper care in the treatment of the foal. 10It is evident that sometimes he who asked for a loan will be responsible only for malice displayed with reference to the property borrowed, as, for instance, where anyone entered into an agreement to this effect, or where the party made the loan only for his own benefit; for example, where he made it to his betrothed or to his wife, in order that she might be better attired when she was brought to him; or where the Prætor exhibited games and made a loan to the actors, or someone voluntarily loaned things for this purpose to the Prætor. 11We must now examine in what particular instances an action on loan will be available; and the ancient authorities entertained doubts with reference to cases of this kind. 12I gave you something in order that you might pledge it to your creditor; you gave it in pledge; but you did not redeem it in order to return it to me. Labeo says that in this instance an action on loan will lie, and I think that this opinion is correct, unless I received some compensation, and then the action would be in factum on the contract of leasing and hiring. It is evident that if I give an article in pledge on your account and with your consent, an action on mandate will lie. Labeo also says, very properly, that if I am not guilty of negligence in redeeming the property pledged, but the creditor refuses to return it; you will then have a right of action on the loan only to the extent that I could assign to you my rights of action against him. It will, moreover, be held that I am not guilty of negligence if I have already paid the money, or I am prepared to pay it. It is clear that the costs of the proceedings and any other expenses must, in justice, be paid by the party who received the loan. 13Ad Dig. 13,6,5,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.If you ask me to lend you a slave with a dish, and the slave loses the dish, Cartilius says that you must assume the risk, since the dish is held to have been lent, and therefore you must also be responsible for negligence with reference to it. It is evident that if the slave takes to flight with the dish, the party who received the loan will not be liable, unless he was guilty of negligence in connection with the flight of the slave. 14If you ask me to furnish a dining-room for you as well as plate for service, and I do so; and then you request that I do the same thing on the next day, and as I cannot conveniently take the silver back to my house I leave it there, and it is lost; what action can be brought, and who must assume the risk? Labeo states with reference to the risk, that it makes a great deal of difference whether I placed someone to guard the property or not, for, if I did so, the risk is mine; but if I did not, the party to whom the property was left is responsible. I think, however, that an action on loan will lie, but that the party with whom the property was left must provide for its safe custody, unless some other arrangement was expressly agreed upon. 15Where a vehicle is lent or hired to two persons, Celsus, the son, says in the Sixth Book of the Digest that the question may arise whether each of them is liable for the entire amount, or only for a part of the same? He states that the entire ownership of anything cannot belong to two persons, nor can they have the entire possession, nor can one party be the owner of a portion of an article, for he can only have partial ownership of the entire article by means of an undivided share. However, the use of a bath, of a portico, or of a field, may belong to each party in its entirety, for I do not enjoy the use of a thing any the less because another also uses it; but where a vehicle is loaned or hired, I do have the use of a part of it, in fact, because I do not occupy the whole space of the vehicle; but he says it is the better opinion that I shall be responsible for fraud and negligence, as well as for diligence and care, with reference to the whole of it; wherefore, the two parties will be considered as joint-debtors, and if one of them, having been sued, pays the damages, the other will be released, and both of them will be entitled to an action for theft:

Ulpianus, On the Edict, Book XXVIII. Therefore the question arises if one of the parties brings the action for theft, should he only be sued for the loan? Celsus says that if suit should be brought against the other, namely, the one who did not bring the action for theft, and he is ready for the former—that is the one who, because of his bringing the action for theft, profited by the article lent—to be sued at his risk, he should be heard, and be discharged from liability. 1Ad Dig. 13,6,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 299, Note 8.If the lender has a right of action against the other joint-debtor under the Lex Aquilia, it should be considered whether he should not assign it, if the other had committed some damage which the party sued may be compelled to make amends for in an action on loan; since, even if the lender had a right of action against him under the Lex Aquilia, it is perfectly just that, when he brings suit on the loan, he should release the other right of action; unless someone might say that by instituting proceedings under the Lex Aquilia he will recover less than he recovered on account of the loan; and this appears to be reasonable.

Ulpianus, On the Edict, Book XXVIII. Where a debtor has given me in pledge property belonging to another, or has acted in bad faith with reference to the pledge, it should be said that the counter action will lie. 1A pledge can not only be given on account of money, but also for any other matter; as, for example, where a party gives a pledge to another that he will become his surety. 2We properly designate as a pledge something which is delivered to the creditor; and where not even possession passes to the creditor we call it hypothecation. 3In order for the action on pledge to be applicable, all the money must have been paid, or satisfaction be given with reference to the same. We understand by “satisfaction,” such satisfaction as the creditor desires, even though no payment may be made; whether he wished that security should be given to him by other pledges so that he may relinquish the one he has, or by sureties, or by providing another debtor, or by the payment of money, or by mere agreement, the action on pledge will arise. And, generally speaking, whenever the creditor is willing to relinquish the pledge, it is considered to be satisfied if he has received such security as he wished, even though he may have been deceived with reference to it. 4Anyone who has given the property of another in pledge can proceed by an action on pledge, if the debt has been paid by him. 5Ad Dig. 13,7,9,5ROHGE, Bd. 5 (1872), S. 289: Voraussetzungen der Klage.ROHGE, Bd. 20 (1877), Nr. 3, S. 7: Verzug des Pfandnehmers in Rückgabe des Pfandes als Folge der Weigerung der Annahme der Pfandschuld.Where a party brings the action on pledge before payment has been made, although he did not proceed properly in doing so, still, if he tenders the money in court, he has a right to recover the property pledged and his interest as well.

Ulpianus, On the Edict, Book XXVIII. It is not considered to be payment where issue is joined with the debtor with reference to the debt, or where a surety is sued. 1Where the obligation of the debt is renewed, this destroys the pledge, unless it is agreed that the pledge shall be renewed. 2If I receive a pledge from you with the understanding that I shall pay you money, and I fail to pay it, I will be liable to an action on pledge; although no payment has been made. The same rule will apply where a receipt has been given for the money loaned, or the condition on account of which the pledge was given should not be fulfilled, or a lawful agreement has been entered into that no demand for the money shall be made. 3Ad Dig. 13,7,11,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.If the property was pledged only with reference to the principal or the interest, the action on pledge can be brought where the money with reference to which the property was encumbered has been paid. But whether the interest was expressly mentioned in the stipulation or not, if the property was pledged with reference to it also, the action on pledge will not lie so long as any of it is due. The case is different where a party has promised to pay interest above the lawful rate, for this is absolutely illegal. 4Where the creditor left several heirs, and one of them is paid his share, the other heirs of the creditor should not suffer any injury, but having offered to the debtor what he has paid to their co-heir, they can sell the entire property. This opinion is not unreasonable. 5Ad Dig. 13,7,11,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 42.The money is understood to be paid not only where it was given to the party to whom the property was pledged, but where it was paid with his consent to someone else, or to one whose heir he is or to his agent, or to a slave appointed for the collection of claims. Therefore, if you rent a house and lease a part of it to me, and I pay the rent to your lessor, I can proceed against you by an action on pledge; for Julianus says that he can be paid. And if I pay a part of the rent to you and a part to him, the same rule must be said to apply. It is evident that the property which I brought into the house will be liable only for the amount of the rent of my room, as it is incredible that an agreement should have been made that my effects of trifling value should be liable for the rent of the entire house. It is held to have been tacitly agreed upon with the owner of the premises that the contract of the proprietor of the lodging-house should not benefit the former but that his own agreement should. 6Ad Dig. 13,7,11,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 12.An obligation by pledge through a free person is not acquired by us; and to such an extent does this principle apply that it cannot be acquired through an agent or guardian, and therefore they themselves can be sued in an action on pledge. Nor is this changed by what was decreed by our Emperor, namely, that possession may be acquired through a free person; for this is only applicable in order to enable us to obtain possession of property which has been pledged to us, but a free person will not always acquire the obligation itself for us. 7Where, however, my agent or guardian gives property in pledge, he himself can bring the action on pledge, and this applies to an agent if he had already been directed to give a pledge:

Ulpianus, On the Edict, Book XXVIII. When the creditor returns the pledge he should give the debtor security against fraud, and if a tract of land was pledged, he must give him security with reference to his title, if servitudes happen to have been lost through the failure of the creditor to make use of them.

Ulpianus, 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;

Ulpianus, On the Edict, Book XXVIII. It appeared just to the Prætor that, as we obtain advantages from the acts of agents, so also we should be bound by, and liable to be sued on, contracts made by them. He does not, however, provide the same with reference to the party who is appointed an agent, so that he also may institute proceedings. When, indeed, he employs his own slave as agent, he can be secure, as the rights of action are acquired for him; if, however, he employs either the slave of another or some freeman, he will not be entitled to an action, but he can sue the agent himself or his master, either on the ground of mandate, or on that of business transacted. Marcellus, however, says that an action should be granted to the party who appointed the agent against those who have made contracts with him,

Ulpianus, On the Edict, Book XXVIII. An agent is so called because he interposes in the transaction of business, and does it make much difference whether he is appointed to conduct a shop, or to engage in any other kind of employment:

Ulpianus, On the Edict, Book XXVIII. Therefore, no matter what business he has been appointed to transact he will be properly styled an agent. 1For Servius also, in the first book on Brutus, says that where any business is transacted with a person who has charge of a house, or with some one who has been appointed to superintend the building or to buy grain, he will be liable for the entire amount. 2Labeo also stated that where anyone has appointed a person to lend money at interest, to cultivate land, to engage in commerce, or to make contracts, he is liable in full. 3Moreover, where anyone has appointed his slave to have charge of a broker’s table, he will be liable on his account. 4It is also settled that those who are appointed by clothing merchants or weavers of linen to go about for the sale of clothing, whom we ordinarily call circitores, should also be designated as agents. 5Anyone may also properly call muleteers agents, 6As well as those who are appointed by fullers and tailors. Stable-keepers should likewise be considered as occupying the place as agents. 7Labeo also says that if a shop-keeper despatches his slave to a distance for the purpose of purchasing merchandise and sending it to him, he must be considered to occupy the place of an agent. 8Ad Dig. 14,3,5,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 15.He also says that, if an undertaker has a slave whose duty it is to prepare corpses for burial, and he robs a corpse; a proceeding similar to the Institorian Action should be granted against him, although the suit for theft and that for injury will both lie. 9Labeo also says that, where a baker was accustomed to send his slave to a certain place for the purpose of selling bread, and he, having accepted money to deliver bread to certain parties every day, neglected to do so; there is no doubt that the baker will be liable, if he permitted the money to be given to him in this manner. 10Ad Dig. 14,3,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 15.Where a fuller, being about to start on a long journey, requested that directions should be given to his apprentices, to whom he had delivered his shop thoroughly equipped; and, after his departure, an apprentice had received clothing and taken to flight; the fuller will not be liable if the slave was left as an ordinary agent, but if this was done in a way to make him the manager of the business he would be liable. It is evident that if he stated to me that I might trust his workmen, he will not be liable to an Institorian Action, but to one on a contract for hiring. 11It is not, however, everything which is transacted with the business-agent which will bind the party who appointed him, but only where the contract was made with respect to the matter on account of which he was appointed, that is to say, only that for which he was appointed. 12Hence, if I appoint anyone to sell merchandise, I shall be liable on his account to the action on purchase; and likewise, if I should happen to have appointed him for the purchase of merchandise, I shall be liable to the action on sale; but a party will not be bound if the appointment was made to purchase and he sells, nor if he was appointed to sell and he purchases; and this opinion is approved by Cassius. 13But where anyone lends money to a business-agent appointed to purchase merchandise, there is ground for the Institorian Action, and, in like manner, if he was appointed to pay the rent for the shop; and I think that this is true unless he was forbidden to borrow. 14Where, however, a loan of oil is made to a party whom I have appointed to buy and sell oil, it must be said that the Institorian Action will lie. 15Likewise, if an agent, when he sold oil, received a ring as earnest, and does not return it, his master is liable to an Institorian Action; for the contract relates to the business which he was appointed to transact, unless he should have been directed to make sales for cash. Wherefore, if the agent should have accepted a pledge instead of money, an Institorian Action will lie. 16Moreover, the Institorian Action can be brought by a surety who had interposed in behalf of the agent, for this is a result of the transaction. 17If an agent has been appointed by anyone, and he who appointed him should die, leaving an heir who employs the same agent; there is no doubt that he will be liable. Again, if a contract was made with him before the estate was entered upon, it is but just that the Institorian Action should be granted to one who is ignorant of the facts. 18Ad Dig. 14,3,5,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 73, Note 13a.If, however, my agent, guardian, or curator, should appoint a business manager, it must be said that an Institorian Action ought to be granted, just as if he had been appointed by me.

Ulpianus, On the Edict, Book XXVIII. Moreover, if anyone who is transacting my business makes an appointment, and I ratify it, the same rule will apply. 1It makes little difference who the business-agent may be, whether male or female, freeman or slave, your own slave, or that of another. It is also of no consequence who appointed him; for if a woman made the appointment, the Institorian Action will lie, just as the Exercitorian Action against the party having control of a ship; and if a woman is appointed, she herself will be liable. Again, if a woman under parental control, or a female slave is appointed, the Institorian Action can be brought. 2When the business-agent is a minor, he will bind the person who appointed him by the Institorian Action, as he must blame himself for appointing him.

Ulpianus, On the Edict, Book XXVIII. But where a minor himself makes the appointment, he will be liable if this was done with the consent of his guardian, otherwise not.

Ulpianus, On the Edict, Book XXVIII. Where, however, a minor becomes heir to the party who made the appointment, it is perfectly just that the minor should be liable so long as he retains his appointment; for he ought to have been removed by his guardians if they were unwilling to make use of his services. 1But if he who made the appointment was under twenty-five years of age, he can only claim relief on account of his age after proper investigation has been made. 2Ad Dig. 14,3,11,2ROHGE, Bd. 10 (1874), S. 381: Wirkung des theilweisen Widerrufs bez. der Einschränkung einer bisher unbeschränkten Vollmacht auf den Verkehr mit dritten Contrahenten.A party is not deemed to occupy the position of one appointed to take charge of a business, if notice has been publicly given that no contracts shall be made with him, for it should not be permitted to transact business with him as an agent, and anyone who does not wish contracts to be made with him may prohibit it; but the party who appointed him will be bound by the appointment itself. 3To give public notice we understand to mean that it shall be made in plain letters, so as to be easily read from the ground; that is to say, in front of the shop or place where the business is carried on, not in a retired place, but in one which is conspicuous. Shall the notice be in Greek or in Latin letters? I am of the opinion that this depends upon the character of the place, so that no one can plead ignorance of the letters. It is certain that if anyone alleges that he is unable to read, or did not observe the notice, as many persons can read, and the notice was conspicuously posted, he will not be heard. 4Ad Dig. 14,3,11,4ROHGE, Bd. 6 (1872), S. 85: Umfang der Ermächtigung des Inspectors einer Feuerversicherungsgesellschaft zur Feststellung des Schadens.ROHGE, Bd. 6 (1872), S. 403: Recht des durch den Procuristen Betrogenen, die ganze Contractsobligation gegen den Geschäftsführer oder gegen den Principal geltend zu machen.It is essential that the notice should be permanently posted; for if the contract was made before the notice was set up, or it was concealed, the Institorian Action will be available. Hence, if the owner of merchandise posted a notice, but someone removed it, or through age, rain, or something of this kind, the result was that there was no notice, or it did not appear; it must be said that the party who made the appointment will be liable. If, however, the agent himself removed it for the purpose of deceiving me, his malicious act should prejudice the party who appointed him, unless he who made the contract also participated in the fraud. 5Any condition upon which the appointment depended must also be considered, for what must be done if the party desired business to be transacted with him under a certain condition, or through the intervention of a certain person, or under a pledge, or with reference to a certain matter? It is perfectly just that whatever the party was appointed for should be taken into account. Likewise, where the principal has several agents, and desired contracts to be made with all of them at once, or with one alone; and if he warned anyone not to contract with him, he should not be liable to the Institorian Action, for we can forbid either a certain person or a certain class of men or merchants from making a contract, or we can permit certain persons to do so. But where the principal has forbidden a contract to be made, sometimes with one man and sometimes with another, the changes being continual, the action should be granted to all of them against him, as parties who make contracts should not be deceived. 6Where the principal absolutely prohibited any contract to be made with him, he is not considered to occupy the position of an agent appointed for business purposes, since he is rather occupying the position of a custodian than of an agent, and therefore he cannot sell merchandise, not even the most paltry article, out of the shop. 7Where the Institorian Action has been properly brought, the Tributorian Action is excluded by operation of law, for the Tributorian Action with reference to the merchandise of the owner will not be available. If, however, the party was not the business-agent for the owner’s goods, the Tributorian Action will survive. 8Where I hire from your slave the services of his slave, and make him the business agent for my merchandise, and he sells you any goods, this constitutes a purchase; for when a master buys from his slave it is a purchase, even though the master may not be liable, to the extent that the master can, as a purchaser, possess and acquire property by usucaption.

Ulpianus, On the Edict, Book XXVIII. A certain man appointed a slave for the management of an oil business at Aries, and authorized the said slave to borrow money, and he did so. The creditor, supposing the money had been borrowed on account of the business, brought the action of which we are treating, but was unable to prove that the slave had received it for that purpose. Although the right of action is extinguished, and he could not proceed further as being authorized to obtain loans of money, still, Julianus says that an equitable action will lie in his favor. 1It is important to remember that the master is only liable to the Institorian Action where no one renews the obligation, whether this be done by the agent or by some other party who stipulates with the intention of renewing it. 2Ad Dig. 14,3,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 407, Note 7; Bd. II, § 482, Note 16.Where two or more persons are conducting a shop, and they appoint as business-agent a slave whom they own in unequal shares, Julianus asks whether they are liable in proportion to their shares in the slave, or equally, or in proportion to their shares in the merchandise, or indeed, for the entire amount? He says that the better opinion would seem to be, as in the case of parties who have control of a ship, as well as the action De peculio, that any of them can be sued for the entire indebtedness, and that whatever he who is sued has paid, he can recover by the action on partnership, or by that for the partition of property held in common. This opinion we have also approved above.

Ulpianus, On the Edict, Book XXVIII. In conclusion, it should be remembered that these actions are granted without reference to time, and both in favor of and against heirs.

The Same, On the Edict, Book XXVIII. What is due at a certain time cannot be set off before the time arrives, even though it may be necessary for it to be paid. 1Where the judge does not consider the set-off, the right of action is saved to the creditor, for an exception based on the ground of a decision rendered cannot be interposed. I hold that the case is different if the judge has refused to consider the set-off on the ground that no debt existed; for then an exception based on a decision rendered will prejudice my case.

Ad Dig. 17,2,43ROHGE, Bd. 14 (1875), Nr. 78, S. 237: Theilungsklage. Gelegenheitsgesellschaft.The Same, On the Edict, Book XXVIII. Where suit has been brought for the division of property held in common, the right of action on partnership is not extinguished, for the latter has reference to the partnership and the obligations thereby contracted, and does not admit of adjudication; but if, an action on partnership is afterwards brought, less will be recovered by it than by the former one.

Ulpianus, On the Edict, Book XXVIII. If I rent you a lodging and afterwards remit the rent, an action on leasing and hiring will lie.

Ulpianus, On the Edict, Book XXVIII. If I give you a gratuitous lodging in my house, can I proceed against you on the ground of a loan for use? Vivianus says that I can; but it is safer to bring suit for the construction of the contract. 1If I give you a jewel the value of which has been appraised, on condition that you will restore it to me, or pay me the price of the same; and it should be destroyed before the sale was concluded, who must bear the loss? Labeo says, and Pomponius also holds that if I, as the vendor, ask you to dispose of it, the risk will be mine, but if you ask me to do so, it will be yours; and if neither one asks the other but we merely make an agreement, you will only be liable for fraud and negligence, and, in this instance, an action præscriptis verbis will certainly lie. 2Papinianus states in the Eighth Book of the Questions: “If I gave you an article for the purpose of examining it, and you allege that you have lost it, an action for the construction of the contract will lie only if I am ignorant where the article is. For if I know that it is in your possession, I can bring an action of theft, or one for the recovery of the property, or one for its production. Hence, if I have given the article to anyone to be examined, or for his own benefit, or for the benefit of both of us, I hold that he must be responsible to me for fraud and negligence, because of the advantage accruing to him; but not for its loss. Where, however, I have given the article to him for my own advantage, he will only be responsible for fraud, because this transaction closely resembles a deposit.” 3Where my neighbor and myself each have an ox, and it is agreed between us that I shall lend mine to him for ten days, and that he shall lend me his for the same space of time, for the purpose of doing our work; and either of the oxen should die while in possession of the other party, an action on loan for use will not lie, because the loan was not gratuitous, but proceedings for the construction of the contract can be instituted. 4Where, when you intended to sell me clothing, I requested you to leave it with me that I might show it to others more skilled in such matters than myself, and it was destroyed by fire, or by some other irresistible force; I will not be in the least responsible to you for its value. From which it is manifest that I am liable only for the want of ordinary care. 5Where anyone receives rings to be held as security for a wager, and does not surrender them to the one who wins it, an actio præscriptis verbis can be brought against him. The opinion of Sabinus, who thinks that, in this instance, an action for recovery, and one on the ground of theft, will lie, should not be adopted. For how can he bring an action on theft with reference to property whose possession or ownership he has never enjoyed? It is clear, however, that if the wager was dishonorable, the successful party can only recover his own ring.

Ulpianus, On the Edict, Book XXVIII. The right of action arising from a stipulation and from a will continues to exist even if the property which was due has been delivered; and although the title to it may be defective, an action can still be brought to recover it; as, for instance, I can bring suit for a tract of land, even though it has been conveyed to me, provided some right guaranteed by the bond has not been transferred.

The Same, On the Edict, Book XXVIII. The term “shop” means every kind of building which is fit for a habitation; evidently for the reason that these are generally closed with boards (tabulæ).

Ulpianus, On the Edict, Book XXVIII. We understand a furnished shop to be one in which the goods and the clerks are ready for business.

Ad Dig. 50,17,43ROHGE, Bd. 10 (1874), S. 263: Voraussetzung des Verzugs, wenn zur Erfüllung der Verpflichtung die Mitwirkung des Gläubigers nothwendig ist.Ulpianus, On the Edict, Book XXVIII. No one who denies that he owes anything is prevented from making any other defence unless the law prohibits it. 1Whenever several actions can be brought for the same thing, one alone should be employed.