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EXERCITO´RIA
EXERCITO´RIA, A´CTIO was 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 (Inst. 4.7, 2), its name being derived from exercitor, the person “ad quem cottidianus navis quaestus pertinet” (Inst. loc. cit. ; cf. Dig. 14, 1, 1, 15), 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, contractum fuerit,” Inst. loc. cit; cf. Dig. 14, 1, 1, 7), 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 familias of the exercitor, or an “extranea persona” (i. e. free agent), Gaius, 4.71, Inst. loc. cit.: but his contracts would not bind his principal, so that the actio exercitoria would 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 magistri, 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 for the 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.
[J.B.M]
Dictionary of Greek and Roman Antiquities
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