CAUPO
CAUPO The nature of the business of a
caupo is explained by Gaius (
Dig. 4,
9,
5): “Caupo ...
mercedem accipit non pro custodia, sed ut viatores manere in caupona
patiatur ... et tamen custodiae nomine tenetur.” Thus he lodged
travellers in his house, and was answer-able for the safe custody of their
property while remaining there, his liability being of two distinct kinds.
1. He was answerable as on a quasi-or implied contract to take extreme care
of such property: “nautae caupones stabularii quod cujusque salvum
fore receperint nisi restituent in eos judicium dabo” (
Dig. 4,
9,
1, pr.); he was responsible for
custodia, and not merely for
culpa,
so that loss of or damage to such property not attributable to
damnum fatale or
vis major
(Dig. ib. 3, 1) fell on his shoulders, though for unavoidable calamity--such
as robbery, lire, or the like--he could not be called to account. The
introduction of the praetorian action ( “recepti nautarum
cauponum,” &c.) was due to the desire to exact a high
responsibility where great confidence was placed (Dig. ib. 1, pr.): the
civil actions on hire (
locati conducti) or
bailment (deposit) would often lie against the
caupo, but the former was of no use unless there had been at
least
culpa levis, and the latter availed only
in cases of
dolus and
culpa
lata. But the obligation of
custodia could be excluded by express agreement between the
parties.
2. He was answerable as on a quasi-delict (as we should say, he was
vicariously liable in tort) for theft of such property by his
employés or slaves, or for all damage done to it by them while
under his charge (
Inst. 4.5, 3;
Dig.
47,
5;
44,
7,
5,
6), and he seems to have been similarly liable when the actual
delinquent was merely another person staying in the house (
Dig. 47,
5,
1,
6). The penalty in this case was double the
value of the property stolen, or double the loss occasioned by damage (
Dig. 47,
5,
1,
2); and here, too, the action was
in factum, i.e. praetorian in origin
(
Inst. loc. cit.).
[
J.B.M]
