SWPS University of Social Sciences and Humanities
Between the objectivity and the subjectivity of slave in private law of ancient Rome
A brief discussion on the future of Roman law
Contents: 1. The need of new research in Roman law - the problem of the legal position of a slave. – 2. The slave as a thing in the light of law sources. – 3. Is it really truth that a slave was treated as a thing? – 4. The cases of recognition of slaves as a subject in private law. – 5. Summary.
Learning and teaching of Roman law at European universities has been experiencing a crisis since long time. In many countries belonging to the legal culture referred as civil law, the Roman law came out of the curricula of university, such as in France, the Netherlands and Belgium. In other countries, there is a process of slowly reducing the number of hours of lecture, for example: in Italy, Spain and Poland, or the process of connecting the Roman law with the civil law, for example in Germany.
There are of course many reasons for such situation. The politicians point the need to educate more "engineers of law" rather than human of law culture. According to many positivists, the lawyer should know the law and know how to use them, without a deeper reflection on its cultural and historical meaning. The responsibility for this situation, to some extent, also falls on the Romanists themselves who continue to practice just pure Romance. However, due to a lack of knowledge of Latin by the current generation, not to mention the knowledge of ancient Greek, the Roman law becomes less and less understandable. Taking the research topics not related with the problems of current times, for example: macipatio or legis actiones, does not encourage young people to study and listening to lectures on Roman law. Koschaker, already in 1947 wrote: Die Lage des Studium des römischen rechts ist heute zweifellos sehr ernst, wenn man von ihm wie früher fordert, das es ein lebendiges Glied der juristischen Bildung sein soll. In addition, the negative image of ancient Rome consolidates in movies and literature, presented as a world of violence, the world of slaves’ abuse and the endless wars.
Therefore, it should be positively assessed that many Romanists undertake the research on the Roman law issues and connected it with the dynamic of its development, with its functionality and often in conjunction with comparative legal method by which it is possible to connect the Roman law with the contemporary problems and their solutions. In the same spirit, the research on the timelessness of Roman law, adopted in the recent past, should be evaluated positively.
The new trend of the Romance studies researches is represented by the elaboration of such authors as: Luchetti and Petrucci, Giaro or Monateri and Somma. These authors use the previously mentioned new research methods, including the functional method, the economic analysis of law or the comparative-legal methods. Still, others Roman researchers engage in science activities popularizing the Roman law. Wołodkiewicz issued a number of interesting short publications in law journals popularizing various institutions and solutions derived from Roman law and having further legal significance today. Also, the textbooks on Roman private law with references to the corresponding modern solutions are written. These actions are necessary due to the contemporary ongoing cultural, social or technological changes in the system. The sensitivity on the human and his cases increases, which causes a lack of understanding of the various institutions of the ancient world, including slavery.
In this spirit, I would like to relate to the views on the legal position of a slave, showing a fairly static in textbook of Roman law. The slave is defined there as a thing, completely deprived of legal capacity and the capacity to legal actions. This study will try to recall the already known sources of Roman law concerning slavery, showing the dynamics of the development of the legal status of a slave. Primarily, I would like to show the development of the concept of slavery in ancient Rome which went towards empowerment of the slave.
Robleda in his publication devoted to the issue of slavery wrote that: Lo schiavo viene considerato dal diritto in Roma come una cosa, nel senso patrimoniale; dunque, come oggetto del diritto. Despite the fact that the completely different conclusion should be driven from Robleda’s studies, it means that the slave gradually become more and more the subject of rights, the thesis of the exclusive treatment of slaves as a thing in Roman law was reproduced in the older textbooks on Roman private law. Described, in those textbooks, legal and social status of slave was shown without the dynamics of change aimed to improve not only the social situation, but also slave’s legal situation. It should be noted that at present the situation is gradually changing and the Romance studies literature increasingly shows the process of empowerment slave, pointing to areas in which the law granted certain powers to the slave.
The preserved literary and legal texts, the numerous statements can be found that testify to the fact that the slave in the Roman private law was classified into the category of material things (res). Such legal status of slaves was independent from the method of division of things. The first analyzed text written by Gaius mentioned the division of things on material (corporales) – it means the things which can be touched and intangible (incorpolares) – it means things which cannot be touched, for example law.
Gai. Inst. 2.13: <Corporales> hae <sunt>, quae tangi possunt, veluti fundus homo vestis aurum argentum et denique aliae res innumerabiles.
According to the M Talamanca, the cited fragment of Gaius’ text is a part of systematics of things made in accordance to the schema of genus-species. The things (res) are the main category (genus) and the certain groups of things (species) make the nature of things more understandable. The specific characteristic of the things included in the category corporales is the ability to be touched and therefore they must be in the materialized form. To this group of things Gaius includes: lands, slaves, clothes, silver, gold and many other things which cannot be counted. This collection of material things made by Gaius has illustrative not a comprehensive character.
Another and historically older division of things, which testifies about the primary classification of slaves to the categories of thigs is a distinction made between res mancipi and res nec mancipi.
Titul. ex corp. Ulp. 19.1: Omnes res aut mancipi sunt aut nec mancipi. Mancipi res sunt praedia in italico solo, tam rustica, qualis est fundus, quam urbana, qualis domus item iura praediorum rusticorum, velut via, iter, actus, aquaeductus item servi et quadrupedes, quae dorso collove domantur, velut boves, muli, equi, asini. Ceterae res nec mancipi sunt. Elefanti et cameli, quamvis collo dorsove domentur, nec mancipi sunt, quoniam bestiarum numero sunt.
The classification of things as res mancipi and nec mancipi had primarily the economical meaning. The slave played an important role in the development and the functionality of Roman economy in time of the Roman Kingdom and in time of the Roman Republic. In addition to material things (corporales), including slaves, this category of things also included rights, for example: land easements (right of passage, transit and carrying water).
Strengthen the view in contemporary Romance doctrine, according to which the slave is the thing can find their grounding in another text, this time written by Paulus.
Paul. 11 ad ed. (D. 220.127.116.11): Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus: aliter atque cum servus manumittitur, quia servile caput nullum ius habet ideoque nec minui potest.
The Paulus’ fragment of text is about the legal consequence of emancipation. An important element of this institution was apparent sale filius familias, in order to produce legal effects in the form of liberation. The triple sales of son, in order to release him from his father's potestas, was made possible by the adoption of a legal fiction involving the temporary transfer him to a state of slavery. The son could be sold only if he became a fictional slave - … cum emancipari nemo possit nisi in imaginariam servilem causam deductus. Therefore, the liberation of filius familias was accompanied by capitis deminutio, it means by the diminution of his rights - status libertatis. In this context, at the end of this text there is a fragment about the liberation of slave through the apparent sale - … cum servus manumittitur. In such case, there was no situation with the diminution of right (capitis deminutio) because the slave is no subject of any rights is the in terms of privet law - … servile caput nullum ius habet ideoque nec minui potest.
In the quoted earlier passage written by Gaius Inst. 2.13, the slave was described by the term homo, hominis. According to the Heuman-Schekel’s dictionary, the term homo, homines, in legal texts, could be used as the name of various designates, inter alia, husband - quod si mulier aut homo perierit (D. 18.104.22.168) or legate - homo legatus (D. 30.45.2). But in source’s text, the term homo is used as a synonym of term servus. In this meaning, it was used in the process formula. However, the term homo, hominis is also used as the synonym of the term human being, independent from his or her civil status or gender.
The Romans division of people into freemen and slaves had its source in the constituted law, especially in ius gentium, which by Ulpian was the law applicable to all people - Ius gentium est .… hoc solis hominibus inter se commune sit. The institution of slavery belonged to the constituted order regardless of the source of slavery. Hence, the word humanus is etymologically derived from the term homo and it means a human being or just a man.
In the preserved texts of law, there is yet another concept to denote a human, namely persona, - it means a person. It should be noted, however, that modern, abstract understanding of this concept was alien during the republic and early principate. However, together with division of law made by Gaius into the law belonging to personae, res and actiones, the concept of persona has juridical meaning. Therefore, Tafaro writes that Persona diventò certamente sinonimo di ‘uomo’, visto da angolazioni diverse, ma espresse concetti più ampi e complessi di quelli normalmente compresi nel termine homo.
The synonymous character of terms homo humanus and persona meant that they were used by the Roman jurists in different contexts connected with the term of human being, sometimes alternately and not always accurately clarifying their meaning and content.
The explanation and clarification the semantic relationship between concepts homo humanus and persona allows us to understand the further course of the discussion associated with the legal situation of a slave in ancient Rome.
Gai. 1 Inst. (D. 1.5.3): Summa itaque de iure personarum divisio haec est, quod omnes homines aut liberi sunt aut servi.
In his text Gaius states that according to the law concerning persons, people (homines) are divided into the free (liberi) and slaves (servi). Therefore, regardless of the legal status (de jure personarum) eventually all are human (homines). The classification indicates the existing knowledge that this division is secondary to the basic category (genus), which is a man. Thus, the Romans eventually believed that the slave was also a human being. Only in the light of the rules of private or public law, some people have been deprived of rights or the rights belonging to other people were limited. The slaves as res mancipi were belonging to the first group (humans deprived of rights). The second group (humans with the limited rights) was consisted of those who had limited their legal status because of status civitatis or status familiae.
The Romans were aware that the slaves belong to the category (genus) described as a man (homo). Therefore, they used a fairly wide system of liberations motivated such actions by the fact that this is the original state of all people.
Ulp. l. 1 Inst. (D.1.1.4): Manumissiones quoque iuris gentium sunt. Est autem manumissio de manu missio, id est datio libertatis: nam quamdiu quis in servitute est, manui et potestati suppositus est, manumissus liberatur potestate. Quae res a iure gentium originem sumpsit, utpote cum iure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita: sed posteaquam iure gentium servitus invasit, secutum est beneficium manumissionis. Et cum uno naturali nomine homines appellaremur, iure gentium tria genera esse coeperunt: liberi et his contrarium servi et tertium genus liberti, id est hi qui desierant esse servi.
The fragment of Ulpian’s text about the liberations includes a relatively abundant information to clarify the treatment of slaves, not so much from the point of view of their position in society, but the position in light of the provisions of private law. At the very beginning this lawyer indicates that the emancipation (liberation) of slaves was the institution of the law of nations. This qualification is a consequence of recognizing the slavery as the institution of ius gentium, as it is referred to in the words - … cum servitus esset incognita: sed posteaquam iure gentium servitus invasit, secutum est beneficium manumissionis. Because of belonging to the same genus, regardless of the legal status of individuals, all men have the same nature - Et cum uno naturali nomine homines appellaremur … .
Another Ulpian’s text is the quintessence of the current reflections on the legal status of a slave.
Ulp. 43 ad Sab. (D. 50.17.32): Quod attinet ad ius civile, servi pro nullis habentur: non tamen et iure naturali, quia, quod ad ius naturale attinet, omnes homines aequales sunt.
The slave, in the private law – it means constituted law, did not have any rights and from this point of view, the slave was classified as a thing. However, thanks to separation of the natural order and the order of constituted law (ius gentium or ius civile), the Romans strongly believed that in this natural order every man is free and equal - … omnes homines aequales sunt.
The social or religion position of slaves was the consequence of recognition by the Romans the slaves as free men in the natural order. While the relationship of a slave man with a slave women was not considered as matrimonium within the meaning of ius civile, the contuberium was clearly distinguished from concubinage. In the preserved sources of law, there are numerous regulations concerning this relationship. Contuberium therefore had legal meaning to the legal and social order. In the poorer families, children up to seven years generally have not been divided into born free, children freedmen or born of a slave woman. According to S.F. Bonner, the slaves’ children were kept together with the free born children and they played and were educated together. The slaves had the right to participate and to watch public spectacles in amphitheaters. This possibility arises from the provisions contained in the lex Roscia theatralis - the Act coming from 67 BC. Then, the rule on occupying the seats in theaters (adsignatio) during public shows were introduced. These provisions were then replicated in the municipal laws, including lex Irnitana cap. 81 , lex Ursonensis cap. 70 or Tabula Heracleensis, ll. 135-141 .
The slaves also were able to hold certain offices or public functions (servi pubblici), for example in lex Irnitana cap. 78 stated that … quos ser vos publicos cuique negotio praesse placeat (ll. 34).These slaves are the most frequently performed its task in such departments of the public administration municipium as: archives, office accounting or in the law firms prepares documents for the current officials or Decurion. They could also work in the public baths, cleaning latrines, maintaining roads and other public infrastructure facilities: in ea ministeria quae non longe a poena sint. Solent enim eiusmodi ad balineum, ad purgationes cloacorum, item munitiones viarum et vicorum dari. Sometimes, the public slaves attained high public officials dignity, and thus gained prestige and importance in local communities, for example in Asculum, the slave bore the title dispensator arcae summarum.
The theoretical and dogmatic assumptions about the legal situation of slaves in ancient Rome, which were presented above, do not correspond with economic development and above all, with pragmatism of Romans. The numerous sources show that slaves were used not only to perform simple, menial work, but they also performed creative work, including management in the area of economic and social activity. Dynamically changing economic situation, especially at the end of the republic and later, forced to grant to slaves the legal capacity to carry out some of the legal actions. They gained gradually various forms of legal protection, despite of the principle expressed by …. - In personam servilem nulla cadit obligatio and often repeated in the Roman Law textbooks.
The basic impulse to the gradual empowerment of the slave was to create a legal and factual possibility to entrust him peculim, which is the separate from the owner property which was administrated by slave (libera administratio) by carrying out activities such as emptio venditio or locatio conductio. Robleda has the similar understanding according to which about the forming of slaves subjectivity in ius civile, we can speak only in the perspective of peculium, which is separated property by the owner, and then transferred to the slave in use or administration. It is worth noting that the oldest sources speaking about peculium managed by slaves come from the third century BC.
Ulp. 17 ad. Ed. (D. 22.214.171.124.): Si servus mihi vel filius familias fundum vendidit et tradidit habens liberam peculii administrationem, in rem actione uti potero.
The above Ulpian’s passage shows that slave could freely dispose of his assets, which means he could take legal actions as to increase the entrusted assets. A potential agreement (voluntas) to make legal actions with the respect to individual components of the asset, the slave received from dominus in the very fact of entrusting him peculium. In the above text, Ulpian clearly indicates that the slave could sell individual elements of peculium. As part of libera administratione, the slave could use components of peculium at his own discretion, for example: to give them to a third party for use (comodatum), for a lease, deposit or pledge (pignus).
In view of the possibility of a fairly broad dispose of components of peculium by the slave, the question about the limits of libera administratio is raised The Robleda’s point of view can be used here that servus could not diminish the value of the obtained estate. He must therefore keep to its owner the components of the asset or its equivalent, especially if they were expendable things. Therefore, the slaves administrated peculium was not be able to make donationes inter vivos or mortis causa disposition. The slave he could however spare the one’s debt to peculium only in the case if their property gained something in return. If debt cancellation by the slave does not lead to a makeweight property of peculium, such action was not considered valid.
Mousourakis rightly believes that the legal situation of a slave during the Imperial period was further shaped by caesarean legislation, not only in civil law but also in a criminal trial, where a slave could perform certain legal actions, especially the report on its owner when he participated in a conspiracy against the emperor, against the people closest to emperor, from family or against senior officials.
In the Dominate period, the far-reaching stratification of society, including the freemen, has been made. Quite a large masses of free men actually been reduced to the status of almost slavish. Other groups have the status of belonging to honestiores or potentiores and much worse was given to people belonging to humiliores or tenuiores. The latter class consisted of workers who were free men, traders, lower administrative staff in municipalities, agricultural workers of the colonies. In time, this group was growing with the new members, such as: refugees from areas of fighting, monks and hermits and finally foreigners settled in the territory of Rome. Thereby, the legal situation of legal entity, being one of the actors of economic activity, became less important. Also, the migration of people to large urban agglomerations had an impact on the social, political, economic and legal changes. As a result of the already formed the nucleus of mass society, the origin of man, in the light of the needs of the labor market or to increase trade, was of secondary importance.
In that perspective, the gradual improvement of social and legal situation of the slaves was seen. We cannot however to see this process in the point of view of current standards used in civil law or in the concept of human right. Such concept was not known in the ancient world. Therefore, P. Stein rightly considers that the status of people in ancient Rome was very diverse, and the boundary between free men and slaves slowly blurred.
Widely in the literature, especially in the textbooks, it is assumed that a slave in ancient Rome, belonged to the category of things - res. Such a classification had the economic justification, therefore, slaves were counted among the category of res mancipi – it means the things which are important for the development and functioning of the Roman economy in the time of Republic and the period of Principate. The Romans were aware, however, that in the natural order (ius naturale), all people are free, while the division into the free (liberii) and slaves came from the norms of positive law (ius gentium). Therefore, in the Roman law there were many ways of liberations, which is the ability of every slave to return the original state of man. Consequently, the slave in the legal system did not have the legal capacity nor the capacity to act. All commitments made by slaves had the character of natural liabilities (obligationes naturales).
Together with the economic development, the emergence of new forms gaining wealth already in the republican period, especially because of shifting away from an economy based on agriculture, the slave was gaining a stronger and stronger position in the trade. The manifestation of this new trend in the development was to equip the slaves in peculium. Thanks to that changes, the slave could engage in the trading of civil law, making numerous legal actions that have calved liability of the owner on the basis of one of actiones adiectitiae qualitatis or noxical liability in the event of committing a tort. Thus, in practice, also in the law practice, it began to move away from the original principle of depriving the slave of any legal capacity in the field of civil law (res) for becoming the active actor of trade, resulting in de facto slow, but gradual empowerment of slaves. This process is quite clearly evident in the post-classical time, when in the principate period the quite clear dividing line between free men and slaves were significantly blurred.
The final conclusion of this study must therefore conclude that the quite clearly and widely formulated in the textbooks thesis, according to which a slave in ancient Rome was the only thing and did not have the legal capacity nor the capacity to take any legal action, should be slowly displaced. This is because, this thesis is not entirely true, and does not correspond to the legal state of ancient Rome and does not correspond with contemporary sensitivity to human rights, especially for its freedom and equality. Without changing the source texts, we must adjust the massage about the Roman law to modern concepts and to the social, political and legal needs in order to preserve the Roman law from total oblivion.
[Per la pubblicazione degli articoli della sezione “Tradizione Romana” si è applicato, in maniera rigorosa, il procedimento di peer review. Ogni articolo è stato valutato positivamente da due referees, che hanno operato con il sistema del double-blind]
 P. Koschaker, in 1937, in his written speech to the German Academy of Law in Berlin stated about the crisis of research on Roman law. See: P. KOSCHAKER, Die Krise des römischen Rechts und die romanistische Rechtswissenschaft, München-Berlin 1938. Also see: B. SITEK, The perspective of scientific research on the Roman public law, Online: Diritto @ storia, 11 (2013) In: http://www.dirittoestoria.it/12/tradizione-romana/Sitek-Perspective-scientific-research-Roman-public-law.htm .
 The issue of need for teaching of Roman law at the universities has been already addressed in the article: B. SITEK Prawo rzymskie balastem, czy źródłem inspiracji dla postępu i rozwoju nowoczesnych badań?!, [in:] Państwo i prawo w dobie globalizacji. Rzeszowie 2011, 293-303.
 G. LUCHETTI, A. PETRUCCI, Fondamenti romanistici del diritto europeo. Le obbligazioni e i contratti dalle radici romane al Draft Common Frame of Reference, vol. I, Bologna 2015.
 T. GIARO, Römische Rechtswarheiten. Eine Gedankenexperiment, Frankfurt am Main 2007. The author shows the development of romance studies thought related to the concept of justice.
 P.G. MONATERI, T. GIARO, A. SOMMA, Le radici comuni del diritto europeo. Un cambiamento di prospettiva, Roma 2005.
 See: W. DAJCZAK, The Nature of the Contract in Reasoning of Civilian Jurists, Poznań 2012; IDEM, Rzymska res incorporalis a kształtowanie się pojęć rzeczy i przedmiotu praw rzeczowych w europejskiej nauce prawa prywatnego, Poznań 2007.
 See: J. SZCZERBOWSKI, Ekonomiczna analiza odpowiedzialności za szkodę czysto majątkową, Arizona Law Review 48 (2006), p. 773-812.
 These publications were collected in two positions. W. Wołodkiewicz, Czy prawo rzymskie przestało istnieć? Kraków 2003, Idem, Europa i prawo rzymskie. Szkice z historii europejskiej kultury prawnej, Warszawa 2009.
 See: W. DAJCZAK, T. GIARO. F. LONGCHAMPS DE BERIER, Prawo rzymskie. U podstaw prawa rzymskiego, ed. 2, Warszawa 2014. This solution is not new, and was also found in earlier textbooks, especially written in English, see: W.W. BUCKLAND and A.D. MCNAIR, Roman Law and Common Law, Cambridge 2008 (first publication 1936).
 It means in the area of religious law, where often the rights of free men and slaves were the same or n the civil law, where the ability to perform the civil law actions continues to increase. See: B. BIONDI, Istituzioni di diritto Romano, Milano 1972, 115-116. The prohibition of bad treatment of slaves was introduced or talking in modern terminology, inhuman treatment of slaves was forbidden. See: F. LONGCHAMPS DE BERIER, Dwie konstytucje Antonina Piusa zakazujące srożenia się nad niewolnikami, In: Crimina et mores: Prawo karne w starożytnym Rzymie, Lublin 2001, 89-99.
 The example of such textbook is: K. CZYCHLARZ, Instytucje prawa rzymskiego, Warszawa 1922, 65-66.
 This division was modeled on Greek patterns adopted in the Roman philosophy, Cic. Top. 28. See: M. TALAMANCA, Lo schema ‘genus-species’ nelle sistematiche dei giuristi romani, In: La filosofia greca e il diritto Romano, vol. II, Roma 1977, 4.
 More about the meaning of things division on res mancipi i res nec mancipi, see W. DAJCZAK, Rzymska res incorporalis a kształtowanie się pojęć rzeczy i przedmiotu praw rzeczowych w europejskiej nauce prawa prywatnego, Poznań 2007, 37-40.
 See A. TORRENT, Manual de derecho privado Romano, Zaragoza 2002, 80; F. SERRAO, Impresa e responsabilità a Roma nell’età commerciale, Pisa 1989, 49-61.
The statement about using the legal fiction to shift son to a state of slavery in order to put him in manicipio is a simplification of the development of rather complicated process of emancipation filius familias. Differentiation of legal position of filius familias and servus in the case of putting any of them in mancipio allows to show the lack of full legal capacity on the side of a slave. See J. KRZYNÓWEK, Od ius vendendi do emancipatio. Prawne i społeczne aspekty emancipatio dzieci w prawie rzymskim w okresie republiki i pryncypatu, Warszawa 2012, 146-147.
 See H. HEUMANN-E. SECKEL, Handlexikon zu den Quellen des römischen Rechts, Jena 1907 (Graz 1971), 237.
 Ulp. 1 Inst. (D. 126.96.36.199): Ius gentium est, quo gentes humanae utuntur. Quod a naturali recedere facile intellegere licet, quia illud omnibus animalibus, hoc solis hominibus inter se commune sit.
 See: E. BUND, s.v. Persona, Der Kleine Pauly. Lexikon der Antike in fünf Banden, Bd. 4, München 1979, col. 657.
 See: S. COTTA, Il diritto naturale e universalizzazione del diritto, In: S. COTTA (ed.), Diritto naturale e diritti dell’uomo all’alba del XXI secolo, Roma 1977, 25 ff.
 See: S.F. BONNER, Education in ancient Rome. From the elder Cato to the younger Pliny, London, New York 2012, 36; M. PAWLAK, Niewolnicy prywatni w rzymskiej Afryce w okresie wczesnego Cesarstwa, Wrocław 2002, 35-55; O. JUREWICZ, Niewolnicy w komediach Plauta, Warszawa 1958. Plut. Cato M. 20.
 See: L. WINNICZUK, Ludzie, op. cit., 641. R. ISIDORI FRASCA, Ludi nell’antica Roma, Bologna 1980, 161.
 See: B. SITEK, Lex Coloniae Genetivae Iuliae seu Ursonensis i lex Irnitana. Ustawy municypalne antycznego Rzymu. Tekst, tłumaczenie i komentarz, Poznań 2008, 178.
 See: B. SITEK, Tabula Heracleensis (Lex Iulia municipalis). Tekst, tłumaczenie, komentarz, Olsztyn 2006, 73.
 Ulp. 49 ad Sab. (D. 39.5.7 pr.): Filius familias donare non potest, neque si liberam peculii administrationem habeat: non enim ad hoc ei conceditur, libera peculii administratio, ut perdat.
 G. 1 ad ed. provinc. (D. 188.8.131.52): Si filius aut servus pactus sit, ne ipse peteret, inutile est pactum. Si vero in rem pacti sunt, id est ne ea pecunia peteretur, ita pactio eorum rata habenda erit adversus patrem dominumve, si liberam peculii administrationem habeant et ea res, de qua pacti sint, peculiaris sit. Quod et ipsum non est expeditum: nam cum verum est, quod Iuliano placet, etiamsi maxime quis administrationem peculii habeat concessam, donandi ius eum non habere: sequitur ut, si donandi causa de non petenda pecunia pactus sit, non debeat ratum haberi pactum conventum. Quod si pro eo ut ita pacisceretur aliquid, in quo non minus vel etiam amplius esset, consecutus fuerit, rata habenda est pactio.