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DE PVPILLIS AN ALIQVID A SE ALIENARE POSSVNT. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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DE PVPILLIS AN ALIQVID A SE ALIENARE POSSVNT.
§ 80. Nunc admonendi sumus neque feminam neque pupillum sine tutoris auctoritate rem mancipi alienare posse; nec mancipi uero feminam quidem posse, pupillum non posse.
Inst 2, 8, 2.
§ 81. Ideoque si quando mulier mutuam pecuniam alicui sine tutoris auctoritate dederit, quia facit eam accipientis, cum scilicet pecunia res nec mancipi sit, contrahit obligationem.
Inst. l. c.
§ 82.At si pupillus idem fecerit, | quia non facit accipientis s—, nullam | contrahit obligationem; unde pupillus uindicare quidem nummos suos potest, sicubi extent, id | est eos petere suos ex iure Quiritium esse—|—NA repetere potest s—|NAtere. unde de pupillo quidem quaeritur, an num—|—NAquos mutuos dedit, ab eo qui accepit, —|—NA actione eos persequi possit, quoniam—|—NApotest.
Inst l. c.
§ 83.At ex contrario | omnes res tam mancipi quam nec mancipi mulieribus et pupillis sine tutoris auctoritate solui possunt, quoniam meliorem condicionem suam facere eis etiam sine tutoris auctoritate concessum est.
§ 84. Itaque si debitor pecuniam pupillo soluat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obligationem pupillus sine tutoris auctoritate dissoluere potest, quia nullius rei alienatio ei sine tutoris auctoritate concessa est; sed tamen si ex ea pecunia locupletior factus sit et adhuc petat, per exceptionem doli mali summoueri potest.
Inst. l. c.
§ 85. Mulieri uero etiam sine tutoris auctoritate recte solui potest; nam qui soluit, liberatur obligatione, quia res nec mancipi, ut proxime diximus, a se dimittere mulieres etiam sine tutoris auctoritate possunt. quamquam hoc ita est, si accipiat pecuniam; at si non accipiat, sed habere se dicat et per acceptilationem uelit debitorem sine tutoris auctoritate liberare, non potest.
Inst. l. c.
WHETHER WARDS CAN ALIENE.
§ 80. We must next observe, that neither a woman nor a ward (pupillus) can aliene a mancipable thing without their guardian’s sanction: nor can a ward even aliene a non-mancipable thing without such sanction, though a woman can.
§ 81. Thus a woman lending money without the guardian’s sanction passes the property therein to the borrower, money being a non-mancipable thing, and so imposes a contractual obligation on the borrower.
§ 82. But a ward lending money without his guardian’s sanction does not pass the property, and so does not impose a contractual obligation on the borrower, he can therefore recover back the money, if it exists, by vindication, that is, by claiming it as quiritary owner; whereas a woman can only bring a personal action of debt. Whether a ward can maintain an action against the borrower in case the money has been spent by him, is a subject of controversy, for a ward can acquire a right of action against a person without the sanction of his guardian.
§ 83. On the contrary, both mancipable and non-mancipable things can be conveyed to women and to wards without their guardian’s sanction, because they do not require his sanction to better their position.
§ 84. Accordingly, a debtor who pays money to a ward passes the property therein to the ward, but is not discharged of his obligation, because a ward cannot release a debtor from any liability without his guardian’s sanction, as without such sanction he cannot part with any right: if, however, he is profiting by the money, and yet demands further payment, he may be barred by the plea of fraud.
§ 85. A woman may be lawfully paid without her guardian’s sanction, and the payer is discharged of liability, because, as we have just mentioned, a woman does not need her guardian’s sanction for the alienation of a non-mancipable thing, provided always that she receives actual payment: for if she is not actually paid, she cannot formally release her debtor by acceptilation (3 § 169) unless with her guardian’s sanction.
§ 80, cf. 1, §§ 142-154, comm., 189-193.
§§ 81, 82. For mutuum, see 3 § 90. If the money delivered by a ward could be traced it was recoverable from any one by real action (vindicatio): if it had been consumed in bona fides a personal action, condictio certi, would probably lie against the borrower to recover an equivalent sum: if it had been consumed in mala fides a personal action, ad exhibendum, would lie to recover an equivalent sum and damages, Inst. 2, 8, 2.
§ 85. The pupilage of women after attaining the age of twelve, i. e. the age of puberty, had become obsolete before the time of Justinian, and with it their incapacities of alienation.
§ 86. Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos quos in potestate manu mancipioue habemus; item per eos seruos in quibus usumfructum habemus; item per homines liberos et seruos alienos quos bona fide possidemus. de quibus singulis diligenter despiciamus.
Inst. 2, 9 pr.
§ 87. Igitur 〈quod〉 liberi nostri quos in potestate habemus, item quod serui nostri mancipio accipiunt uel ex traditione nanciscuntur, siue quid stipulentur, uel ex aliqualibet causa adquirunt, id nobis adquiritur; ipse enim qui in potestate nostra est nihil suum habere potest. et ideo si heres institutus sit, nisi nostro iussu hereditatem adire non potest; et si iubentibus nobis adierit, hereditas nobis adquiritur proinde atque si nos ipsi heredes instituti essemus; et conuenienter scilicet legatum per eos nobis adquiritur.
Inst. 2, 9, 3.
§ 88. Dum tamen sciamus, si alterius in bonis sit seruus, alterius ex iure Quiritium, ex omnibus causis ei soli per eum adquiri cuius in bonis est.
§ 89. Non solum autem proprietas per eos quos in potestate habemus adquiritur nobis, sed etiam possessio; cuius enim rei possessionem adepti fuerint, id nos possidere uidemur; unde etiam per eos usucapio procedit.
Inst. l. c.
§ 90. Per eas uero personas quas in manu mancipioue habemus proprietas quidem adquiritur nobis ex omnibus causis, sicut per eos qui in potestate nostra sunt; an autem possessio adquiratur, quaeri solet, quia ipsas non possidemus.
§ 91. De his autem seruis in quibus tantum usumfructum habemus ita placuit, ut quidquid ex re nostra uel ex operis suis adquirant, id nobis adquiratur; quod uero extra eas causas, id ad dominum proprietatis pertineat. itaque si iste seruus heres institutus sit legatumue quod ei datum fuerit, non mihi sed domino proprietatis adquiritur.
Inst. 2, 9, 4.
§ 92. Idem placet de eo qui a nobis bona fide possidetur, siue liber sit siue alienus seruus. quod enim placuit de usufructuario, idem probatur etiam de bonae fidei possessore. itaque quod extra duas istas causas adquiritur, id uel ad ipsum pertinet, si liber est, uel ad dominum, si seruus est.
Inst. l c.
§ 93. Sed bonae fidei possessor cum usuceperit seruum, quia eo modo dominus fit, ex omni causa per eum sibi adquirere potest. usufructuarius uero usucapere non potest: primum quia non possidet, sed habet ius utendi [et] fruendi; deinde quia scit alienum seruum esse.
Inst. l. c.
§ 94. De illo quaeritur, an per eum seruum in quo usumfructum habemus possidere aliquam rem et usucapere possimus, quia ipsum non possidemus. per eum uero quem bona fide possidemus sine dubio et possidere et usucapere possumus. loquimur autem in utriusque persona secundum definitionem quam proxime exposuimus, id est si quid ex re nostra uel ex operis suis adquirant [id nobis adquiritur].
Inst. l. c.
§ 95. Ex his apparet per liberos homines quos neque iuri nostro subiectos habemus neque bona fide possidemus, item per alienos seruos, in quibus neque usumfructum habemus neque iustam possessionem, nulla ex causa nobis adquiri posse. et hoc est quod uulgo dicitur per extraneam personam nobis adquiri non posse. tantum de possessione quaeritur, an 〈per extraneam〉 personam nobis adquiratur.
Inst. 2, 9, 5.
§ 96. In summa sciendum est his qui in potestate manu mancipioue sunt nihil in iure cedi posse; cum enim istarum personarum nihil suum esse possit, conueniens est scilicet, ut nihil suum esse in iure uindicare possint.
§ 86. We may acquire property not only by our own acts but also by the acts of persons in our power, hand, or mancipium; further, by slaves in whom we have a usufruct; further, by freemen or another’s slave of whom we are bona fide possessors: let us now examine these cases in detail.
§ 87. The rights of property which children under power or slaves acquire by mancipation or tradition, or claims they acquire by stipulation, or by any other title, are acquired for their superior; for a person subject to power is incapable of holding property, accordingly if instituted heir he must have the command of his superior to be capable of accepting the inheritance, and if he has the command of the superior and accepts the inheritance, it is acquired for the superior just as if the latter had himself been instituted heir: and the rule that it is the superior who acquires applies equally in the case of a legacy.
§ 88. But it is to be noticed that when one man is bonitary owner of a slave and another quiritary owner, whatever the mode of acquisition, it enures exclusively to the bonitary owner.
§ 89. Not only ownership is acquired for the superior but also possession, for the possession of the inferior is deemed to be the possession of the superior, and thus the former is to the latter an instrument of acquiring by usucapion.
§ 90. Persons in the hand or mancipation of a superior acquire ownership for him by all modes of acquisition just as children or slaves in his power; whether they acquire possession for him is a controversy, as they are not themselves in his possession.
§ 91. Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary or by their own labour is acquired for the usufructuary; but what they acquire by any other means belongs to their proprietor. Accordingly, if such a slave is instituted heir or made legatee, the inheritance or legacy is acquired, not for the usufructuary, but for the owner.
§ 92. The possessor in good faith of a freeman or a slave belonging to another is held to have the same rights as a usufructuary; what they acquire on any other account than the two we mentioned, belonging in the one case to the freeman himself in the other to the rightful owner.
§ 93. But after a possessor in good faith has acquired the ownership of a slave by usucapion, since he has thus become owner of him, all acquisitions by the slave enure to his benefit. A usufructuary cannot acquire a slave by usucapion, for, in the first place, he has not possession, but only a right of usufruct; and in the second place, he knows that the slave belongs to some one else.
§ 94. It is a question whether a slave can be an instrument of possession and usucapion for a usufructuary, the slave not being himself in his possession. A slave, undoubtedly, can be the instrument of possession and usucapion for a bona fide possessor. Both cases are subject to the limitation made above as to things acquired by the slave by means of the usufructuary’s property or by his own labour.
§ 95. It appears that freemen not subject to my power nor in my bona fide possession, and slaves of other people of whom I am neither usufructuary nor lawful possessor, cannot under any circumstances be instruments of acquiring for me, and this is the import of the dictum that a stranger to the family cannot be an instrument in the acquisition of anything; only in respect of possession there is a controversy as to whether it cannot be acquired through a stranger.
§ 96. Finally, it is to be observed that persons under power, in hand, or in mancipium, cannot acquire by surrender before a magistrate, for, as nothing can belong to such persons, it follows that they cannot vindicate anything as their own before a magistrate.
§ 87. Manus and mancipium had ceased to exist before the time of Justinian, and patria potestas was much reduced. The gradual steps by which filiusfamilias acquired an independent proprietary position have been already described, 1 § 55, comm. The reduction of patria potestas, and the abolition of the dependent law of Agnation, may be almost regarded (so fundamental were these institutions in jus civile) as the abrogation of the jus civile, and the substitution in its stead of what the Romans called jus gentium.
§ 88. The power of acquiring by the acts of a slave and the power of manumission, so as to make a slave Latinus, accompany Bonitary, not Quiritary, ownership, where these are separated, 1 §§ 35, 54, 3 § 166.
§ 90. It is to be noticed, as Professor Muirhead points out in his note to this passage, that no reason is given for making a distinction between persons in manu mancipiove and filiifamilias and slaves in respect of the acquiring possession for their superior.
§ 94. Dig. 41, 2, 1, 8 Per eum, in quo usumfructum habemus, possidere possumus, sicut ex operis suis adquirere nobis solet, nec ad rem pertinet, quod ipsum non possidemus: nam nec filium.
§ 95. All Dispositions or modes of conferring either rights against one (jus in personam), or rights against the world (jus in rem), are divisible, as we have before mentioned, into two parcels; an essential portion, some mental or internal act, the Intention of the parties; and an evidentiary portion, the Execution of this intention, its incorporation in some overt act. Can these elements of title be contributed by different persons? Can the Intention of disposing, that is, of acquiring or aliening, reside in one, and can its Execution, its external manifestation, be delegated to a representative?
Originally, that is, under the ancient civil law, representation was only admitted when the representative was in an inferior status to the principal, was his slave, or subject to his potestas, manus, or mancipium, § 95. This limitation was found to be inconvenient, when, in the progress of Roman conquest, Roman citizens became proprietors in remote parts of the world; and Possession was allowed to be acquirable by the instrumentality of extranea persona, that is, of a person who stood in no relation of inferiority to the acquirer, which though a doubtful point in the time of Gaius, was finally settled by a constitution of the Emperor Severus. In a civil solemnity, like mancipation, a man could not be represented by an independent agent; but when the transfer of possession (traditio) became a mode and ultimately the universal mode of transferring dominion, it followed that Ownership (dominium), as well as Possession, could be acquired by the agency of libera persona, if the person making traditio of a thing to the agent was himself owner of it, Inst. 2, 5.
The acquisition of Obligations or personal rights by brokerage of an independent agent was less perfectly developed. In fact Roman law adhered throughout its history to the rule that an agent could only contract rights for himself and not for his principal, though means were taken to circumvent this restriction as far as possible. The process employed for this purpose was a duplication of the relation of agency (mandatum). A as principal (dominus) appointed B his agent (procurator). B then contracted with a third party in his own name, and, in order to transfer the benefit of his contract to A, he ceded to him his right of action, that is to say, B, as principal, in his turn made A his agent (procurator in rem suam), whereby A was able to sue in the name of B, and obtain judgement on his own account. Finally, the praetor allowed the principal to sue immediately, without an express mandate, if intention to assign was shown, by bringing a utilis actio, 3 § 163, comm.
§ 96. We might have expected that, as those subject to potestas can acquire for their superiors by Mancipatio, § 87, so they could also acquire by In jure cessio, especially as the same form of words—Hunc ego hominem ex jure Quiritium meum esse aio—was used in Mancipatio, 1 § 119, and in Vindicatio, 4 § 16. It seems, however, that in Mancipatio the formula could be changed to Hanc rem ex jure Quiritium Lucii Titii domini mei esse aio, 3 § 167; and that a similar modification was not admissible in in jure cessio. It follows that an inferior (filius, qui in mancipio est, or servus) could acquire for his superior rural servitudes, but not urban or personal servitudes, §§ 29, 30, these being only created by in jure cessio; not, that is to say, as res singulae: for as parts of a rerum universitas these and all other rights could be acquired for a superior by an inferior by making aditio of an hereditas with the sanction of the superior, § 188; and even as res singulae these rights could be acquired for a superior by an inferior by title of legatum; that is, if they are conferred by a testator on the inferior as legatarius, Vat. frag. 51.
As Hereditas includes Obligations (res incorporales), active and passive, as well as Dominium (res corporalis), the consideration of Obligation should, theoretically speaking, precede the consideration of Inheritance; in an elementary exposition like the present, however, no practical inconvenience is occasioned by postponing the consideration of Obligations, while we gain by exhausting the subject of jus in rem before proceeding to the examination of jus in personam.
We may remember that Hereditas, as well as Servitudes and Obligations, was included by the Romans under the term Res incorporales, § 14. The whole division of rights, however, into Res corporales and Res incorporales is unsatisfactory; for, as we have already noticed, it was only from confusion of thought that Dominium was held to be Res corporalis; for all Rights are, really, Res incorporales.