one of those praetorian actions (called by the civilians actiones adjectitiae qualitatis
) by which principals were made
directly suable by third persons who contracted with their agents. This one
applied particularly to the case of contracts made by the captain of a
vessel as agent, express or implied, of its owner or charterer
4.7, 2), its name being derived from exercitor,
the person “ad quem cottidianus
navis quaestus pertinet” (Inst.
loc. cit. ; cf.
), whether he actually
owned the vessel, or had merely hired or chartered it for a time, definite
or indefinite. By this action the exercitor
could be sued upon all contracts made by the captain (magister
) in connexion with the vessel or its voyage, e. g.
repairs ( “si quid cum eo ejus rei gratia, cui praepositus erit,
loc. cit; cf. Dig. 14
), because it was as his agent that the magister
made them; but the other party to the transaction--e. g.
the shipbuilder who executed the repairs--might always sue the magister
if he preferred it, the remedy in this case
of course being the ordinary action on the contract (e.g. locati
). It was immaterial whether the magister
was a slave or filius
of the exercitor,
“extranea persona” (i. e. free agent), Gaius, 4.71,
loc. cit.: but his contracts would not bind his
principal, so that the actio exercitoria
not lie, if he exceeded his commission: if, for instance, being appointed to
use the ship for one purpose, he used it for another. If there were several
without any partition of their
duties (non divisis offciis
), a contract with one
was a contract with all: and if there were several exercitores,
who appointed a magister
either out of their own number or not, they were
severally answerable in solidum
contracts which he made under his commission: the other contracting party
might select which of them he pleased as his defendant in the actio exercitoria.