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date: 04 April 2020

institores

Because of the traditional reluctance of the Roman elite to engage personally in profit-oriented economic activities other than agriculture (Cic., Off. 1.151), entrepreneurs of all kinds formed a distinctive social class and would tend to act as non-advertised agents for those who may have had the needs, the means, and the willingness to operate businesses on a larger scale than the individual, subsistence-level enterprise. However, the concept of agency was foreign to Roman law, because acting on behalf and in the name of someone else smacked of magic. Consequently, agents were, at least originally, legally dependents, as slaves or sons and daughters in power, whose lack of legal personality enabled them to better their principal’s economic condition and eventually to engage both their delictual and contractual liability, under certain circumstances. The key to such a legal arrangement was the formal appointment (praepositio) of business managers (institores).

“An institor is a person set in charge of a shop (taberna) or a place (locus) in order to buy or sell.” This short definition by the early 3rd century ce jurist Paulus (or possibly a somewhat later namesake) (Paulus, sing. de variis lectionibus D. 14.3.18; cf. The Roman Law Library) echoes the one provided in Gaius’s textbook (Institutiones, c. 160 ce) and by the classical jurist Ulpianus (d. 228). Gaius (4.71) teaches his students that some legal remedy (actio institoria) had been granted of old by the praetor to third contracting parties for transactions performed by institores on behalf of their principal, be it a master, a father, or an outsider, as long as that transaction was related to the business the institor was set in charge of as praepositus. The same author specifies that an institor, in his time at least, could be a slave or a free person, either male or female. Elsewhere, the same Gaius adds that children of either gender are commonly appointed as institores (Gai., 9 ad edictum provinciale D. 14.3.8). Ulpianus, in his massive commentary on the then fixed praetorian edict (28 ad ed. D. 14.3.3 and 5), underlines that not only shops (tabernae) but any kind of business (negotiatio) could be entrusted to institores. A long, though far from comprehensive, list of such businesses, based on the writings of Republican and Augustan jurists (Servius Sulpicius Rufus and M. Antistius Labeo), includes the management of agricultural estates, grain, bread, and oil supply, retail trade, apartment buildings, moneylending and banking, public works, various activities connected with the garment industry, and undertakers. The post-classical author of the Sententiae Pseudo-Pauli (2.8.3, c. 300 ce) considers as institores those in charge of workshops (magistri officinarum). Thus, institores lurk in all corners of Roman society, including in and from the provinces (Ulp. 28 ad ed. D. 14.3.13; Ulp. 28 ad ed., quoting Labeo, D. 5.1.19.3).

Late Republican and classical jurists showed much interest in institores because of the complexity of the application of the actio institoria, to which the compilers dedicated a whole title in Justinian’s Digest (14.3), supplemented by half a dozen rescripts in the Code (4.25; the evidence from the Theodosian Code, if it ever existed, is now lost). It is clear that the issue of the liability of principals for the legal transactions carried out by their managers/agents arose early in the history of the Roman economy. It is connected with the structure of the Roman family, in which the legal capacity of sons and daughters in power (in potestate), like that of slaves, was confused with the legal capacity of the father/master (pater familias/dominus). Consequently, dependents could acquire only for the head of the household, not for themselves, as they were not capable of ownership. On the other hand, when they engaged in business transactions, they could bind neither themselves nor their father/master, benefiting therefore from an asymmetrical position toward third contracting parties. Some Republican praetor took note of this impediment to trade and through his yearly edict devised a legal remedy aiming at restoring some balance between parties by recognizing the full liability of the father/master whenever he could be shown to have authorized his dependents to engage in business transactions with third parties. It is likely that such an authorization (iussus) was initially granted on a case-by-case basis (Gai. 4.70). With time, it must have proved unnecessarily cumbersome, and a more general authorization was attached by analogy (eadem ratione) to the appointment of dependents at the head of a specific business unit (negotium, locus, taberna, officina, fundus, mensa, etc.), the nature of which helps define the types of transactions the dependent manager would be entitled to conduct. Thus, a slave appointed to loan money was not expected to rent out storage space (Paulus 1 decretorum D. 14.5.8). Consequently, his master should be held liable for debts incurred through moneylending, not as the result of horrea management, unless it can be proved that the slave was meant to multitask. There were several ways of clarifying the scope of the appointment (praepositio), such as drafting an explicit charter of appointment (certa lex or condicio praepositionis) or relying on a custom (mos) that the parties had no reason not to agree upon. Any departure from an established usage should be specified in a written document posted in a visible place for would-be contractors to see. Ulpianus (28 ad ed. D. 14.3.11.2–6) records that the document should be written in clear letters in the language spoken in the area, and be posted at eye level, in front of the place of business. The publicity thus secured served to cancel, diminish, alter, or extend the sphere of competence of the manager.

It is difficult to trace the origin of the remedy to which institores owe their conspicuousness in the legal sources. The terminus ante quem is provided by the reference (Ulp. 28 ad ed. D. 14.3.5.1) to Servius Sulpicius Rufus, consul in 51 bce and the author of the first known commentary on the praetorian edict (Ad Brutum). As the actio institoria is one component in a cluster of six complementary remedies (the so-called actiones adiecticiae qualitatis) seemingly well attested already by the 1st century bce, dating the creation of each action through the 2nd or even late 3rd century bce sounds sensible. The juristic opinions compiled in the Digest (14.3 and passim) reflect the state of affairs a few centuries later (2nd and 3rd centuries ce). By then, it is clear that institores are no longer necessarily dependents: the late 2nd century ce jurist Cervidius Scaevola casuistically refers to a freed institor (libertus praepositus, 5 dig. D. 14.3.20). One generation later, Scaevola’s pupil Paulus considers that peddlers not attached to a specific place qualify as institores (30 ad ed. D. 14.3.4; and Pseudo-?Paulus, sing. de variis lectionibus D. 14.3.18). Ulpianus (28 ad ed. D. 14.3.13) discusses double appointment or collective management. There is no question that the system has become more flexible, while making special provisions for praepositi in charge of ships (magistri navis, cf. D. 14.1 de exercitoria actione; and 14.2 de lege Rhodia de iactu). Concurrently, the praetorian edict also took into consideration the interests of principals, for instance in limiting their liability to the amount of their dependent’s peculium (D. 15.1 de peculio; and 2) or of their own enrichment (D. 15.3 de in rem verso) when no appointment could be traced.

The social and economic importance of institores may be reflected in the quantity and sophistication of legal opinions in which they appear as contracting agents. Non-legal sources show a different picture: institores are rarely commemorated as such in inscriptions (only ten are known: CIL VI 10007 Rome; CIL IX 3027 Teate Marrucinorum; CIL XI 1621 Florentia; CIL II.7 337 Corduba; CIL VI 14206,21 Philippi; CIL VIII 432 Ammaedara; CIL VIII 26517, 26549, 26550 Thugga; ILAfr 588 Thugga; cf. Epigraphik Data-Bank Clauss-Slaby), and literary authors are clearly unsympathetic to them, as they vituperate their uncontrolled greed and sexual aggressiveness (ThLL, s.v., about sixty passages). Institor was used as a term of abuse. No wonder then that business managers and economic agents of all feathers refer to themselves, or are referred to by others, with different labels (praepositi, vilici, actores, officinatores, tabernarii, horrearii, insularii, libitinarii, etc.), if any. Consequently, it is impossible to distinguish institores from independent businesspeople, the former being unlikely to advertise their status of dependency. Many a merchant or craftsman recorded in Greek or Latin inscriptions, or in literary texts, may have been someone else’s agent.

Links to Digital Materials

Bibliography

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