BOOK III. a § 44 b Cf. D. 25, 2, 24. constante matrimonio permisit: sed nomen tamen inconveniens remanebat. . . . Sed nos constituimus, ut tales donationes non augeantur tantum, sed et constante matrimonio initium accipiant, et non ante nuptias sed propter nuptias vocentur.1 Because of thefts committed by one spouse against the other originally alone by occasion of divorcethe Praetorian edict gives to the party defrauded, after dissolution of the marriage, the actio rerum amotarum, in place of the condictio furtiva, here inadmissible," which it resembled." Rerum amotarum iudicium singulare introductum est adversus eam, quae uxor fuit, quia non placuit cum ea furti agere posse: quibusdam existimantibus, ne quidem furtum eam facere ut Nerva, Cassio, quia societas vitae quodammodo dominam eam faceret; aliis, ut Sabino et Proculo, furtum quidem eam facere, sicuti filia patri faciat, sed furti non esse actionem constituto iure, in qua sententia et Iulianus rectissime est: nam in honorem matrimonii turpis actio adversus uxorem negatur.-D. 25, 2, 1. 1 (Paul.), 1. 2 (Gai.).3 1 There is also another class of gifts, inter vivos, which was altogether unknown to the old jurists, but was afterwards introduced by the later emperors, and used to be called ante nuptias (before the marriage), and embraced a condition that it should only hold good if the marriage was concluded. And so it was called ante nuptias, because it was effected before marriage, and such a gift was never made after its celebration. But as augmentation of the dowry had been allowed even after marriage, the late Emperor Justin, our father, was the first to permit by a constitution that, where anything of this kind happened, the gift ante nuptias might also be increased, even during the marriage; but the inappropriate name, nevertheless, was still kept up. But we ... have enacted that such gifts may not only be increased, but may begin also during marriage, and shall be called, not gifts before marriage, but gifts on account of marriage. 2 A special action has been introduced in respect of stolen things against her that has been a wife, because it was deemed Ulp.: Res amotas dicimus non solum eas, quas mulier amovit cum divortii consilium iniisset, sed etiam eas, quas nupta amoverit, si cum discederet eas celaverit.-1. 17, § 1 eod.1 Gai. Rerum amotarum actio condictio est.— 1. 26 eod. Marcian. Rerum amotarum iudicium sic habet locum, si divortii consilio res amotae fuerint et secutum divortium fuerit; sed si in matrimonio uxor marito res subtraxerit, licet cessat rerum amotarum actio, tamen ipsas res maritus condicere potest: nam iure gentium condici puto res ab his, qui non ex iusta causa possident.-1. 25 eod.3 LAW OF THE PROPERTY OF PERSONAE ALIENO $149. THE OLDER LAW. PECULIUM PROFECTICIUM AND CASTRENSE.a BOOK III. a Cf. Anct. Law,' pp. 135 Filii familias-and the same holds absolutely of 146. not well to be able to proceed against her for theft, as some thought that she does not at all commit a theft, as Nerva and Cass., because community of life would make her in some measure owner; others, as Sab. and Proculus, that she does in fact commit a theft, as the daughter commits it on her father, but that, according to the law in force, the actio furti does not apply; and of this opinion is Julian, quite rightly; —for in honour of marriage an action against a wife involving infamy is withheld. 1 By stolen things we speak of not only those which a woman has stolen, having conceived the resolution of a divorce, but those also which she stole when married, if she concealed them when she was divorced. 2 The action for things stolen is a condictio. 3 The action for stolen things indeed obtains when things shall be stolen with the purpose of divorce, and a divorce shall have followed; but if the wife shall have taken things away from the husband during the marriage, although the action for stolen things falls through, the husband can sue for them by a personal action; for I suppose that by the i. g. he can claim things by condictio from those who have not possession thereof upon a legal title. a Part II. BOOK III. slaves have no property of their own; what they acquire they acquire for the paterfam., who, however, §§ 20, 50, 112. as a rule, is not bound by them;" between them and the pat. fam., as well as between those subject to the same potestas, no legal transactions can be concluded and no obligation can exist. Gai. iv. 78: Nulla omnino inter me. et eum, qui in potestate mea est, obligatio nasci potest.1 Ulp. Inter patrem et filium contrahi emptio non potest.-D. 18, 1, 2 pr.2 The principle of the incapacity for ownership of persons under domestic subjection was, however, curtailed increasingly-in particular more de facto than de iure-by the gradual development of the law of 'peculia.' PECULIUM is separate property, de facto severed from the property of the paterfam. (or master), and intended for one subject to his potestas, which can be committed to the more or less free control of such. Ulp. Peculium' dictum est quasi pusilla pecunia sive patrimonium pusillum.-1. 5, § 3, D. h. t. (de pec. 15, 1).-Cels.: Proculus ait .. audisse se rusticos senes ita dicentes 'pecuniam sine peculio fragilem esse,' peculium appellantes quod praesidii causa seponeretur.-1. 79, § 1, D. de leg. III. 32. : Ulp. Peculium autem Tubero quidem sic definit, ut Celsus refert: quod servus domini permissu separatum a rationibus dominicis habet 1 No obligation whatever can arise between me and a person under my power. 2 No sale can be contracted between a father and son. The word 'peculium' is, as it were, a small sum of money, or a small patrimony.-Proc. says. he has heard aged peasants speaking thus: 'Money without peculium is not to be depended on,' calling peculium that which was set aside for their support in need. deducto inde, si quid domino debetur.-1. 5, § 4, Pomp.: Peculii est non id, cuius servus seorsum Paul. Non statim quod dominus voluit ex re sua peculii esse, peculium fecit, sed si tradidit aut, cum apud eum esset, pro tradito habuit : desiderat enim res naturalem dationem; contra autem simul atque noluit peculium servi, desinit peculium esse.-1. 8 eod. Ulp. In peculio autem res esse possunt omnes et mobiles et soli: vicarios quoque in peculium potest habere et vicariorum peculium; hoc amplius et nomina debitorum.-1. 7, § 4 eod.* Gai. Peculii libera administratio specialiter 1 Now, according to Cels., Tubero thus defines peculium: what a slave with the approval of his master has set apart from the master's accounts, after deduction of what he owes the master. No part of the peculium is that which the slave may have computed independently of his master, but what the master himself shall have set apart, distinguishing his own account from that of the slave.-From these considerations it appears that not what the slave has had unknown to the master, but what he has had with his consent, appertains to the peculium. That which a master has been willing from his own property to treat as part of separate property he has not straightway made peculium, but if he has delivered it, or has regarded it as if delivered in the hands of the slave; for the property requires natural transfer. But, on the other hand, as soon as he is unwilling that a elave should have peculium, it ceases to be peculium. 4 But all things can be peculium, both movable and immovable; one can also have under-slaves as peculium, and the peculium of under-slaves; besides also capital sums in the hands of debtors. BOOK III. BOOK III. a § 112. concedenda est.-Ib. § 1. -verum est quod Iuliano placet, etiamsi maxime quis administrationem peculii habeat concessam, donandi ius eum non habere.-D. 2, 14, 28, 2.' The pater fam. always remains legally master of the peculium and of what is acquired 'ex re peculiari,' that is, subject of all proprietary rights contained in the peculium, so that the several active ingredients of the peculium legally belong to his property; he can reduce it at discretion, indeed entirely put an end to it; upon the death of the holder of the peculium, it reverts naturally to the pat. fam., and upon his death it forms part of his inheritance. But since it forms an independent whole separated from the rest of the family property, and capable of self-augmentation— intrinsically as well as by active acquisition by the holder of it-which whole is entirely and exclusively liable for the obligations of the subjecta persona to his creditors by the actio de peculio,'a it in fact appears as the holder's own property. Peculium ex eo consistit, quod parsimonia sua quis paravit vel officio meruerit a quolibet sibi donari idque velut proprium patrimonium servum suum habere quis voluerit.-Flor. 1. 39, D. h. t. -quasi patrimonium liberi hominis peculium servi intelligitur.-Paul. 1. 47, § 6 eod.2 Ulp. qui cum servo contrahit, peculium eius veluti patrimonium intuetur.-1. 32 pr. eod.3 1 The free control of the peculium must be granted in particular. the opinion of Jul. is correct, that even if the quite free control of peculium has been granted, the slave has no right of donation. 2 A peculium consists of that which a man has acquired by his thrift, or by render of services has earned as a present, from any one whatever, if somebody has desired that his slave should have it as his own patrimony. -the separate property of a slave is regarded like the patrimony of a freeman. 3 he that contracts with a slave has his separate property, his patrimony as it were, in view. |