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INSTITO´RIA ACTIO According to the Jus Civile, a person could not be sued on a contract which his agent had entered into on his account. But as in course of time, with the growth of commerce, the Romans came to carry on various lucrative occupations by means of slaves (cf. Poste's Gaius, 4.71, comm.), the praetor remedied the inconvenience of the civil law by allowing in the case of the actio institoria and certain other cases an additional action against a person by whose authority a contract had been made (actiones adjecticiae qualitatis). By the formula institoria a principal was made liable for business debts contracted by anyone, whether his son or his slave, or the slave of another or a free person, whom he had made his institor--i.e. manager of a trade or business, as banker, innkeeper, &c. ( “ideo autem institoria appellatur, quia qui negotiationibus praeponuntur institores vocantur,” Inst. 4.7). Probably at first an action was only given on account of contracts made by fil<*>familias or slaves of the owner of the business, but afterwards extended. (Cf. Inst. l.c.) The person who contracted with an institor would have two debtors: 1, the institor, the contracting party; and 2, his master or employer. In the formula institoria brought against the latter, the name of the institor would appear in the intentio, that of the master in the condemnatio. [ACTIO]

The principle of the actio institoria was finally extended to all contracts of agents who were not institores, and so a contract entered into with an agent could always be enforced against his principal ( “actio ad exemplum institoriae actionis,” called by commentators actio utilis or quasi institoria). Institores are coupled with nautae by Horace (Hor. Ep. 17.20) and with the magister navis (Carm. 3.6, 30). [Cf. EXERCITORIA ACTIO.] (Gaius, 4.71; Inst. 4.7; Dig. 14, 3.)

[G.L] [E.A.W]

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