Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/125

Rh in general when the master was sued on account of his slave (de peculio) he had a right to deduct from the peculium the amount of any debt due to himself, he had no such right when he was cognisant of the slave's action and had not forbidden it; he could then only claim rateably with other creditors. A son or daughter under power was for these purposes in the same position as a slave.

It was rarely that the Romans allowed a third party who was a freeman and independent to be privy to a contract. The freeman acquired and became liable for himself, and the principals to the contract in case of such an agent had to obtain transfers from him of the rights acquired: they could not themselves sue or be sued on the agent's contract. But two cases were regarded by Roman Law as exceptional. When a person provided a ship and appointed a skipper in charge of it, he was held liable in full for the skipper's contracts in connexion with it, if the person contracting chose to sue him instead of the skipper. And the like liability was enforced, if a man had taken a shop and appointed a manager over it. In both cases the rule held, whether the person appointing or appointed was man or woman, slave or free, of age or under age. The restriction of the owner's liability to the amount of the slave's peculium disappeared, and the privity of contract was recognised against the appointer, although the skipper or manager who actually made the contract was a free person acting as mediary. But this recognition was one-sided: the principal did not acquire the right of suing on the skipper's or manager's contract, if the latter were free ; he must, usually at least, obtain a transfer of the right of suit from him, the transfer being enforced by suing the skipper or manager as an employee or mandatee.

At one time there was a marked difference between the consensual contract along with most of those arising re on the one hand, and on the other hand stipulation and cash-loan (mutuum). In actions to enforce the former the judge had a large discretion, and the standard by which he had to guide his decisions or findings was what was fairly to be expected from business men dealing with one another in good faith. In actions to enforce the latter the terms of the bargain were to be observed strictly: the contract was regulated by the words used: the loan was to be repaid punctually in full. Gradually these latter contracts came to be treated similarly to the former so far as their nature permitted, and by Justinian's time the prevalence of equity was assured: the intention of the parties was the universal rule for interpretation of all contracts, and reasonable allowance was made for accidental difficulties in their execution, when there was no evidence of fraud.

Two modes were adopted in classical times for dealing with the engagements or position of parties where the terms and characteristics of