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COMMENTARIVS TERTIVS INTESTATORVM HEREDITATES - 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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§ 1.Intestatorum hereditates 〈ex〉 lege xii tabularum primum ad suos heredes pertinent.
Inst. 3, 1, 1. 1; Collat. 16, 2, 1.
§ 2.Sui autem heredes existimantur liberi qui in potestate morientis fuerunt, ueluti filius filiaue, nepos neptisue 〈ex filio〉, pronepos proneptisue ex nepote filio nato prognatus prognataue. nec interest 〈utrum〉 naturales 〈sint〉 liberi an adoptiui. ita demum tamen nepos neptisue et pronepos proneptisue suorum heredum numero sunt, si praecedens persona desierit 〈in potestate parentis esse, siue morte id acciderit,〉 siue alia ratione, ueluti emancipatione. nam si per id tempus quo quisque moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus.
Inst. 3, 1, 1. 2; Collat. 16, 2, 2.
§ 3.Vxor quoque quae in manu uiri est ei sua heres est, quia filiae loco est. item nurus quae in filii manu est, nam et haec neptis loco est. sed ita demum erit sua heres, 〈si〉 filius, cuius in manu fuerit, cum pater moritur, in potestate eius non sit. idemque dicemus et de ea quae in nepotis manu matrimonii causa sit, quia proneptis loco est.
Collat. 16, 2, 3.
§ 4.Postumi quoque, 〈qui〉 si uiuo parente nati essent, in potestate eius futuri forent, sui heredes sunt.
Inst. l. c.; Collat. 16, 2, 4.
§ 5.Idem iuris est de his, quorum nomine ex lege Aelia Sentia uel ex senatusconsulto post mortem patris causa probatur. nam et hi uiuo patre causa probata in potestate eius futuri essent.
Collat. 16, 2, 5; cf. Collat 3, 7.
§ 6. Quod etiam de eo filio, qui ex prima secundaue mancipatione post mortem patris manumittitur, intellegemus.
§ 7. Igitur cum filius filiaue et ex altero filio nepotes neptesue extant, pariter ad hereditatem uocantur; nec qui gradu proximior est, ulteriorem excludit. aequum enim uidebatur nepotes neptesue in patris sui locum portionemque succedere. pari ratione et si nepos neptisue sit ex filio et ex nepote pronepos proneptisue, simul omnes uocantur ad hereditatem.
Inst. 3, 1, 6.
§ 8. Et quia placebat nepotes neptesue, item pronepotes proneptesue in parentis sui locum succedere, conueniens esse uisum est non in capita, sed 〈in〉 stirpes hereditatem diuidi; ita ut filius partem dimidiam hereditatis ferat et ex altero filio duo pluresue nepotes alteram dimidiam; item si ex duobus filiis nepotes extent, ex altero filio unus forte uel duo, ex altero tres aut quattuor, ad unum aut ad duos dimidia pars pertineat et ad tres aut quattuor altera dimidia.
Inst l. c.
§ 1. Intestate inheritances by the law of the Twelve Tables devolve first on self-successors (sui heredes).
§ 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees.
§ 3. A wife in the hand of her husband is a self-successor to him, for she is in the position of a quasi daughter; also a son’s wife in the hand of the son, for she is a granddaughter: subject, however, to the proviso that she is not self-successor if her husband is in the power of his father at the time of his father’s death. A wife in the hand of a grandson is a self-successor, subject to the same proviso, because she is in the position of a great-granddaughter.
§ 4. Afterborn children, who, if born in the lifetime of the parent, would have been subject to his power, are self-successors.
§ 5. Also those in whose behalf the provisions of the lex Aelia Sentia or the senatusconsult have been satisfied by proof of excusable error subsequently to the death of the parent, for if the error had been proved in the lifetime of the parent they would have been subject to his power.
§ 6. Also, a son, who has undergone a first or second mancipation and is manumitted after the death of the father, is a self-successor.
§ 7. Accordingly, a son or daughter and grandchildren by another son are equally called to the inheritance; nor does the nearer grade exclude the more remote, for justice seemed to dictate that grandchildren should succeed to their father’s place and portion. Similarly, a grandchild by a son and a great-grandchild by a grandson by a son are called contemporaneously to the inheritance.
§ 8. And as it was deemed to be just that grandchildren and great-grandchildren should succeed to their father’s place, it seemed consistent that the number of stems (stirpes), and not the number of individuals (capita), should be the divisor of the inheritance; so that a son should take a moiety, and grandchildren by another son the other moiety; or if two sons left children, that a single grandchild or two grandchildren by one son should take one moiety, and three or four grandchildren by the other son the other moiety.
§ 1. The words ‘testate’ and ‘intestate,’ in the language of English lawyers, are only applicable, I believe, to a deceased person. The awkwardness of having no corresponding adjectives to couple with succession or inheritance must be my apology for sometimes speaking of testate or intestate succession or inheritance.
§ 2. For the meaning of suus heres see commentary on 2 §§ 157, 123.
§ 5. Cf. 1 §§ 29, 32; 2 § 142.
§ 6. Cf. 1 § 132; 2 § 141.
DE LEGITIMA AGNATORVM SVCCESSIONE.
§ 9. Si nullus sit suorum heredum, tunc hereditas pertinet ex eadem lege xii tabularum ad agnatos.
Inst. 3, 2, pr.; Gaius in Collat. 6, 2, 9.
§ 10.Vocantur autem agnati, qui legitima cognatione iuncti sunt. legitima autem cognatio est ea, quae per uirilis sexus personas coniungitur. itaque eodem patre nati fratres agnati sibi sunt, qui etiam consanguinei uocantur, nec requiritur an etiam matrem eandem habuerint. item patruus fratris filio et inuicem is illi agnatus est. eodem numero sunt fratres patrueles inter se, id est qui ex duobus fratribus progenerati sunt, quos plerique etiam consobrinos uocant. qua ratione scilicet etiam ad plures gradus agnationis peruenire poterimus.
Inst. 3, 2, 1; Gaius in Collat. 6, 2, 10.
§ 11. Non tamen omnibus simul agnatis dat lex xii tabularum hereditatem, sed his qui tum, cum certum est aliquem intestatum decessisse, proximo gradu sunt.
Inst. 3, 2, 2; Gaius in Collat. 16, 2, 11.
§ 12. Nec in eo iure successio est. ideoque si agnatus proximus hereditatem omiserit uel antequam adierit decesserit, sequentibus nihil iuris ex lege conpetit.
Gaius in Collat. 16, 2, 12.
§ 13. Ideo autem non mortis tempore quis proximus fuerit requirimus, sed eo tempore, quo certum fuerit aliquem intestatum decessisse, quia si quis testamento facto decesserit, melius esse uisum est tunc requiri proximum, cum certum esse coeperit neminem ex eo testamento fore heredem.
Inst. l. c.; Gaius in Collat. 16, 2, 13.
§ 14. Quod ad feminas tamen attinet, in hoc iure aliud in ipsarum hereditatibus capiendis placuit, aliud in ceterorum [bonis] ab his capiendis. nam feminarum hereditates proinde ad nos agnationis iure redeunt atque masculorum; nostrae uero hereditates ad feminas ultra consanguineorum gradum non pertinent. itaque soror fratri sororiue legitima heres est, amita uero et fratris filia legitima heres esse 〈non potest. sororis autem nobis loco est〉 etiam mater aut nouerca, quae per in manum conuentionem apud patrem nostrum iura filiae nacta est.
Inst. 3, 2, 3; Gaius in Collat. 16, 2, 14.
§ 15. Si ei qui defunctus erit, sit frater et alterius fratris filius, sicut ex superioribus intellegitur, frater potior est, quia gradu praecedit. sed alia facta est iuris interpretatio inter suos heredes.
Inst. 3, 2, 5; Gaius in Collat. 16, 2, 15.
§ 16. Quodsi defuncti nullus frater extet, 〈sed〉 sint liberi fratrum, ad omnes quidem hereditas pertinet; sed quaesitum est, si dispari forte numero sint nati, ut ex uno unus uel duo, ex altero tres uel quattuor, utrum in stirpes diuidenda sit hereditas, sicut inter suos heredes iuris est, an potius in capita. iam dudum tamen placuit in capita diuidendam esse hereditatem. itaque quotquot erunt ab utraque parte personae, in tot portiones hereditas diuidetur, ita ut singuli singulas portiones ferant.
Gaius in Collat. 16, 2, 16.
§ 17. Si nullus agnatus sit, eadem lexxii tabularum gentiles ad hereditatem uocat. qui sint autem gentiles, primo commentario rettulimus; et cum illic admonuerimus totum gentilicium ius in desuetudinem abiisse, superuacuum est hoc quoque loco de eadem re curiosius tractare.
DE LEGITIMA AGNATORVM SVCCESSIONE.
§ 9. If there is no self-successor, the inheritance devolves by the same law of the Twelve Tables on the agnates.
§ 10. Those are called agnates who are related by civil law. Civil relationship is kinship through males. Thus brothers by the same father are agnates, whether by different mothers or not, and are called consanguineous; and a father’s consanguineous brother is agnate to the nephew, and vice versa; and the sons of consanguineous brothers, who are generally called consobrini, are mutual agnates; so that there are various degrees of agnation.
§ 11. Agnates are not all called simultaneously to the inheritance by the law of the Twelve Tables, but only those of the nearest degree at the moment when it is certain that the deceased is intestate.
§ 12. And in title by agnation there is no succession; that is to say, if an agnate of the nearest grade abstains from taking the inheritance, or die before he has entered on it, the agnates of the next grade do not become entitled under the statute.
§ 13. The date for determining the nearest agnate is not the moment of death, but the moment when intestacy is certain, because it seemed better, when a will is left, to take the nearest agnate at the moment when it is ascertained that there will be no testamentary heir.
§ 14. As to females, the rules of civil law are not the same in respect of the inheritances which they leave and in respect of the inheritances which they take. An inheritance left by a female is acquired by the same title of agnation as an inheritance left by a male, but an inheritance left by a male does not devolve on females beyond sisters born of the same father. Thus a sister is by civil law the heir of a sister or brother by the same father, but the sister of a father and daughter of a brother have no civil title to the inheritance. The same rights as those of a sister belong to a mother or stepmother who passes into the hand of a father by marriage and acquires the position of a daughter.
§ 15. If the deceased leaves a brother and another brother’s son, as observed before (§ 11), the brother has priority, because he is nearer in degree, which differs from the rule applied to self-successors.
§ 16. If the deceased leaves no brother, but children of more than one brother, they are all entitled to the inheritance; and it was once a question, in case the brothers left an unequal number of children, as if one of them leaves only one child and another three or four, whether the number of stems (stirpes) was to be the divisor of the inheritance, as among self-successors, or the number of individuals (capita); however, it has long been settled that the divisor is the number of individuals. Accordingly, the total number of persons determines the number of parts into which the inheritance must be divided, and each individual takes an equal portion.
§ 17. In the absence of agnates the same law of the Twelve Tables calls the gentiles to the inheritance. Who are gentiles was explained in the first book (1 § 164 a), and as we then stated that the whole law relating to gentiles is obsolete, it is unnecessary to go into its details on the present occasion.
§ 9. The term agnatio has already occurred (2 § 131) in the exposition of testacy, where it denoted the birth of a suus heres, and here in the doctrine of intestacy it has an allied signification. The same persons who in relation to a common ancestor are sui heredes, in relation to one another are agnati. Agnates, accordingly, may be described as all the members of a civil family, cf. 1 § 156; but then we must add that the civil family may either be actual or ideal, meaning by ideal either a civil family once actual but disintegrated by the death of the paterfamilias, or a civil family, which was never actually subject to a common paterfamilias, but which would be so if we imagine a deceased common ancestor to be alive. While the common ancestor survives, the bonds of agnation are close, and the family is actual; after his death, when his descendants have formed separate families, all the members of those families are still agnates, because they are members of an ideal family which once was actual; and the descendants of those descendants are more remotely agnates, because, though never members of an actual family, they would have been so if the common ancestor had lived for, say, a hundred years. Similarly the wider group of gentiles, § 17, consists of persons who, it may be supposed, would be under the power of some long-forgotten common ancestor, if he were alive.
The words of the Twelve Tables creating title by agnation are as follow: Si intestato moritur, cui suus heres nec escit, adgnatus proximus familiam habeto. ‘If a man die intestate, leaving no self-successor, his nearest agnate shall have the family property.’
§ 10. Consanguinei, brothers or sisters of the same father, opposed to uterini, brothers or sisters by the same mother, are properly included among agnates, if they have not undergone any capitis deminutio, being agnates of the first degree; but as females were only entitled to inherit by the first degree of agnation, § 14, the word ‘agnates’ was sometimes limited to denote male agnates. Agnati autem sunt cognati virilis sexus per virilem descendentes, Paulus, Sent. Rec. 4, 8, 13. ‘Agnates are male cognates related through males.’ It is to be remembered that the tie of agnation embraced persons who were adopted into a family, as well as such natural relations or cognates as came within its principle.
§ 12. If the nearest degree of agnates in existence omitted to take the inheritance, or died before acceptance, the inheritance did not devolve on the next degree of agnates; thus the jus civile did not admit a successio graduum, as for instance if a man died intestate leaving a brother and a nephew, the son of a deceased brother, and the surviving brother did not enter on the inheritance, the right to do so did not pass from him to the nephew, who was next in succession but remained vacant, no repudiation of hereditas delata being it would seem possible in early law. This rule was a scrupulous interpretation of the exact words of the Twelve Tables: Si intestato moritur cui suus heres nec escit, adgnatus proximus familiam habeto. As the law of inheritance based on the Twelve Tables found no place for a successio graduum, so neither did it admit a successio ordinum. Thus if the proximus agnatus, or proximi agnati, abstained from taking the inheritance, the order of gentiles, which was next by civil law to that of the agnates, could make no claim to it. ‘In legitimis hereditatibus successio non est.’ The abeyance of the inheritance arising from these circumstances was cut short by usucapio pro herede, 2 § 52, &c. But a more suitable way of obviating this inconvenience of the ancient law was found in the bonorum possessio of the praetor, whereby in default of any one claiming by a valid civil title, the nearest blood relation, or cognate, was put in the position of heir. Under these praetorian rules of inheritance, at least when they were not simply confirmatory of the civil law, cf. § 28, both successio graduum and successio ordinum were possible. Justinian, however, abolished the rule of the civil law itself, and allowed a devolution through the degrees of agnation, on the ground that, as the burden of tutela devolved through the degrees of agnation, there ought to be a corresponding and compensating devolution of the advantages of inheritance, Inst. 3, 2, 7. This change, however, was deprived of importance by the subsequent Novella, 118, which consolidated and amended the law of inheritance, discarding the agnatic principle of the old law, and substituting for it that by cognatio.
§ 13. The moment at which it is ascertained that the deceased is intestate will be separated by an interval from the moment of his decease, especially when the intestacy is caused by an heir instituted in a will not accepting within the time of cretio or by his subsequent repudiation or incapacity, or by the failure of the condition on which he was instituted. In this interval the nearest agnate may die, and a remoter agnate become the nearest agnate. It therefore was necessary to determine whether the title of nearest agnate is acquired at the moment of decease or of ascertained intestacy; and the latter moment was selected. If the death of the testator had been selected, then, if the nearest agnate died in the interval, there would be no heir; neither the heir of the deceased, as the right to enter was strictly personal, nor the then next agnate, as proxumus, the word used in the Twelve Tables, excludes successio graduum: nor the gentiles, as the words (si adgnatus nec escit) exclude successio ordinum.
§ 14. The limitation, in respect of females, of title by agnation to females who were agnates in the first degree (consanguineae) was not contained in the Twelve Tables, but introduced by the restrictive interpretation of jurists following the analogy of the lex Voconia (b.c. 169), which imposed disabilities on women, Paulus, Sent. Rec. 4, 8, 22. Cf. Inst. 3, 2, 3 Media autem jurisprudentia, quae erat lege quidem duodecim tabularum junior, imperiali autem dispositione anterior, subtilitate quadam excogitata, praefatam differentiam inducebat. The harshness of this limitation was mitigated by the praetors, who introduced title by cognation, and allowed females of remoter degrees of agnation to succeed in the order of cognates in default of heirs by title of agnation; but Justinian totally abolished the limitation, and restored the rule of the Twelve Tables, allowing females to succeed in the order of agnates, however remote might be their degree of agnation, provided that no nearer degree was in existence.
The celebrated Novella, 118, as above stated, totally abolished title by agnation, and made succession by intestacy among collaterals dependent on the degrees of cognation or nearness of natural relationship. In this system of inheritance, from which our own law for the distribution of personalty is derived, no difference is made between males and females.
§ 18. Hactenus lege xii tabularum finitae sunt intestatorum hereditates. quod ius quemadmodum strictum fuerit, palam est intellegere.
§ 19. Statim enim emancipati liberi nullum ius in hereditatem parentis ex ea lege habent, cum desierint sui heredes esse.
§ 20.Idem iuris est, si ideo liberi non sint in potestate patris, quia sint cum eo ciuitate Romana donati nec ab imperatore in potestatem redacti fuerint.
§ 21. Item agnati capite deminuti non admittuntur ex ea lege ad hereditatem, quia nomen agnationis capitis deminutione perimitur.
§ 22. Item proximo agnato non adeunte hereditatem nihilo magis sequens iure legitimo admittitur.
§ 23. Item feminae agnatae, quaecumque consanguineorum gradum excedunt, nihil iuris ex lege habent.
§ 24. Similiter non admittuntur cognati, qui per feminini sexus personas necessitudine iunguntur; adeo quidem, ut nec inter matrem et filium filiamue ultro citroque hereditatis capiendae ius conpetat, praeterquam si per in manum conuentionem consanguinitatis iura inter eos constiterint.
§ 25. Sed hae iuris iniquitates edicto praetoris emendatae sunt.
§ 26. Nam liberos omnes, qui legitimo iure deficiuntur, uocat ad hereditatem, proinde ac si in potestate parentis mortis tempore fuissent, siue soli sint siue etiam sui heredes, id est qui in potestate patris fuerunt, concurrant.
Inst. 3, 1, 9.
§ 27. Agnatos autem capite deminutos non secundo gradu post suos heredes uocat, id est non eo gradu uocat, quo per legem uocarentur, si capite deminuti non essent, sed tertio proximitatis nomine; licet enim capitis deminutione ius legitimum perdiderint, certe cognationis iura retinent. itaque si quis alius sit qui integrum ius agnationis habebit, is potior erit, etiamsi longiore gradu fuerit.
Inst. 3, 5, 1.
§ 28. Idem iuris est, ut quidam putant, in eius agnati persona, qui proximo agnato omittente hereditatem nihilo magis iure legitimo admittitur. sed sunt qui putant hunc eodem gradu a praetore uocari, quo etiam per legem agnatis hereditas datur.
§ 29. Feminae certe agnatae, quae consanguineorum gradum excedunt, tertio gradu uocantur, id est si neque suus heres neque agnatus ullus erit.
Inst. 3, 5, 2.
§ 30. Eodem gradu uocantur etiam eae personae, quae per feminini sexus personas copulatae sunt.
Inst. l. c.
§ 31. Liberi quoque qui in adoptiua familia sunt ad naturalium parentum hereditatem hoc eodem gradu uocantur.
Inst. 3, 5, 3.
§ 32. Quos autem praetor uocat ad hereditatem, hi heredes ipso quidem iure non | fiunt; nam praetor heredes facere non potest, per legem | enim tantum uel similem iuris constitutionem heredes fi|unt, ueluti per senatusconsultum et constitutionem principalem. sed cum eis praetor 〈dat bonorum possessionem〉, loco heredum constituuntur.
§ 33. | Adhuc autem etiam alios conplures gradus praetor facit in | bonorum possessionibus dandis, dum id agit, ne quis sine successore | moriatur. de quibus in his commentariis consulto | non agimus, cum hoc ius totum propriis commentariis ex|ecuti simus.
§ 33 a.Hoc solum admonuisse sufficit —|—|NA tabulis — hereditatem —|—NA inuidiosum — per | in manum conuentionem iura consanguinitatis na|cta —|—|—|NA fratre —|—NA(5 uersus in C legi nequeunt)—|—NA.
(8 uersus in C legi nequeunt)—|—NA nam —|—|— —|—NAhereditas non pertine-|—NA (8 uersus in C legi nequeunt) —|NA
§ 33 b.Aliquando tamen neque emendandi neque inpugnandi ueteris iuris sed | magis confirmandi gratia pollicetur bonorum possessionem. nam illis quoque, | qui recte facto testamento heredes instituti sunt, | dat secundum tabulas bonorum possessionem.
§ 34.item ab intestato heredes suos et agnatos ad bonorum possessionem uocat. quibus casibus beneficium eius in eo solo uidetur aliquam utilitatem habere, ut is, qui ita bonorum possessionem petit, interdicto cuius principium est qvorvm bonorvm uti possit. cuius interdicti quae sit utilitas, suo loco proponemus. alioquin remota quoque bonorum possessione ad eos hereditas pertinet iure ciuili.
§ 35. Ceterum saepe quibusdam ita datur bonorum possessio, ut is cui data sit 〈non〉 optineat hereditatem; quae bonorum possessio dicitur sine re.
§ 36. Nam si uerbi gratia iure facto testamento heres institutus creuerit hereditatem, sed bonorum possessionem secundum tabulas testamenti petere noluerit, contentus eo quod iure ciuili heres sit, nihilo minus ii, qui nullo facto testamento ad intestati bona uocantur, possunt petere bonorum possessionem; sed sine re ad eos [hereditas] pertinet, cum testamento scriptus heres euincere hereditatem possit.
§ 37. Idem iuris est, si intestato aliquo mortuo suus heres no|luerit petere bonorum possessionem, contentus legitimo iure —|NA et agnato conpetit quidem bonorum possessio, sed sine re, quia euinci hereditas a suo herede potest. et [illud] conuenienter, si ad agnatum iure ciuili pertinet hereditas et is adierit hereditatem, sed bonorum possessionem petere noluerit, et [si quis ex proximis] cognatus petierit, sine re habebit bonorum possessionem propter eandem rationem.
§ 38. Sunt et alii quidam similes casus, quorum aliquos superiore commentario tradidimus.
§ 18. These are all the provisions in the law of the Twelve Tables for intestate devolution, and how strictly they operated is patent.
§ 19. For instance, children immediately they are emancipated have no right to the inheritance of their parent under that law, since they are thereby divested of the character of self-successors.
§ 20. In the same position also are children whose freedom from the power of their parent was only caused by the fact that on their receiving jointly with their father a grant of Roman citizenship (1 § 94), there was no express order of the emperor subjecting them to parental power.
§ 21. Again, agnates who have undergone a capitis deminutio are not admitted to the inheritance under this law, title by agnation being extinguished by capitis deminutio.
§ 22. And if the nearest agnate does not enter on an inheritance, the next degree, according to the law of the Twelve Tables, is not in any way entitled to succeed.
§ 23. Female agnates beyond the degree of sisters by the same father have no title to succeed under this statute.
§ 24. Cognates who trace their kin through females are similarly barred, so that even a mother and a son or daughter have no reciprocal right of succession, unless by subjection to the hand of the husband the mother has become a quasi sister to her children.
§ 25. But to these legal inequalities the edict of the praetor administers a corrective.
§ 26. For all children whose statutory title fails are called by the praetor to the inheritance, just as it they had been in the power of their parent at the time of his decease, whether they come in alone or in concurrence with self-successors, that is, with other children who were actually subject to the power of the parent.
§ 27. Agnates who have undergone a capitis deminutio minima are called by the praetor, not indeed in the next degree to self-successors, that is, in the order in which the law of the Twelve Tables would have called them but for their capitis deminutio, but in the third rank under the designation of cognates (next of kin); for though their capitis deminutio has blotted out their statutory title, they nevertheless are still entitled as cognates; though if another person exists with unimpaired title by agnation, he is called in preference, although he may be in a remoter degree.
§ 28. The rule is similar, according to some, in respect of the remoter agnate who has no statutory title to succeed on the nearest agnate failing to take; according to others, the praetor calls him to the succession in the order allotted by the statute to agnates.
§ 29. Female agnates, at all events, beyond the degree of sisters are called in the third degree, that is to say, after self-successors and other agnates.
§ 30. So are those persons who trace their kindred through females.
§ 31. Children in an adoptive family are called to succeed their natural parents in the same order.
§ 32. Those whom the praetor calls to an inheritance do not become heirs (heredes) at civil law, for the praetor cannot make an heres; only a statute or similar ordinance, such as a decree of the senate or an imperial constitution, being able to do so; thus the praetor’s grant of possession only puts the grantee in the position of an heir.
§ 33. Several additional grades of bonorum possessio are recognized by the praetor on account of his desire that no one may die without a successor; but I forbear to examine them on the present occasion, because I have handled the whole subject of title by descent in a separate treatise devoted to this matter.
§ 33 a. [?Sc. Tertullianum; cf. Inst. 3, 3; Ulp. 26, 8.]
§ 33 b. Sometimes, however, the object of the praetor in granting bonorum possessio is rather to confirm the old law than to amend or contradict it, for he likewise gives juxta-tabular possession to those who have been instituted heredes in a legally valid will.
§ 34. So also, when a man dies intestate, the praetor grants bonorum possessio to self-successors and agnates, the only advantage they derive from the grant being that it entitles them to the interdict beginning with the words: ‘Whatsoever portion of the goods’ (the use of which will be explained in due time and place, 4 § 144), for independently of the grant of possession, they are entitled to the inheritance by the civil law.
§ 35. Possession is often granted to a person who will not in fact obtain the inheritance, in this case the grant is said to be one which has no effect (sine re).
§ 36. For instance, if an heir instituted by a duly executed will formally accepts the inheritance, but declines to demand possession according to the will, contenting himself with his title at civil law, those who without a will would be entitled by intestacy may nevertheless obtain a grant of possession from the praetor, but the grant will be one having no effect (sine re), because the testamentary heir can enforce his civil title to the inheritance against them.
§ 37. The same happens when a man dies intestate and a self-successor declines to demand possession, contenting himself with his civil title; for an agnate may obtain a grant of possession, but it will have no effect, because the civil inheritance can be claimed by the self-successor. Similarly, if an agnate entitled by civil law accepts the civil inheritance but omits to demand possession, a cognate can obtain a grant of possession, but it has no effect, for the same reason.
§ 38. There are other similar cases, some of which were mentioned in the preceding book.
§ 25. To the divergence of the civil (agnatio) and natural (cognatio) families, to the desire, that is, to correct the non-natural devolution of successions, Sir Henry Maine attributes the introduction in Roman jurisprudence of Testamentary dispositions (Ancient Law, ch. vi).
§ 32. The praetor, by virtue of his executive power (imperium):
(1) Gave bonorum possessio to a person who had a legal title to the inheritance, that is, he enforced the rights conferred on persons by the civil law (juris civilis confirmandi causa); e. g. he gave bonorum possessio secundum tabulas to the heir instituted in a will valid by civil law, § 36, or bonorum possessio contra tabulas to certain praetermitted self-successors, 2 § 125, or bonorum possessio ab intestato to the suus heres or the agnate, § 37; cf. § 34.
(2) He also gave bonorum possessio to persons on whom the civil law had conferred no rights, that is, he supplemented the law (juris civilis adjuvandi causa); e. g. in default of sui heredes and proximi agnati he granted bonorum possessio ab intestato to cognates; he gave juxta-tabular possession to the heir under a will invalid at civil law, because the testator had been incapacitated at some period between the execution of his will and his decease: such grant of possession being ineffective (sine re) against any person entitled ab intestato by the civil law, 2 §§ 147, 149, and Ulpian, 23, 6. So again he gave bonorum possessio secundum tabulas to the heir under a will invalid at civil law, from want of mancipation or nuncupation, 2 § 149, and such will was ineffective (sine re) against an agnate claiming as heir by intestacy, until a rescript of the Emperor Antoninus (probably Marcus Aurelius) made such bonorum possessio effective (cum re) by giving the grantee a good defence against the civil heir, 2 §§ 119, 120.
(3) He sometimes, though rarely and by something like a stretch of his authority, gave possession adverse to rights which the law had conferred on other persons, that is, he contradicted or corrected the law. The principal cases in which he did this were those in which he protected the interests of emancipated children. Thus by bonorum possessio contra tabulas and by bonorum possessio intestati he put emancipati in the same position as sui, giving them effective possession (cum re) against the claim of the civil heir. He also gave juxta-tabular possession to the afterborn stranger (postumus alienus), Inst. 3, 9 pr. who, as an uncertain person, could not be instituted by the civil law, 2 § 242. The difficulty which the praetor found in making his title to the inheritance superior to that of Jus Civile is shown by the fact that it required a special act of legislation to make the praetorian will effective (cum re) against the agnatic heir ab intestato, and it is also illustrated by the controversy mentioned in § 28, where we see that it is doubtful whether he could make use of the principle of successio graduum, which he adopted in his edict, so as to put an agnate who had no title at law in the position of civil heir.
As in the two latter functions of supplementing and correcting the law, the praetor did what is elsewhere performed by courts of equity, we have sometimes translated the contrasted terms heres and bonorum possessor by the terms ‘legal successor or heir’ and ‘equitable successor or heir.’
The claim of an heir (heres) founded on a title at civil law was called hereditatis petitio; a claim founded on a praetorian title, e g. cognation, was pursued by the Interdict Quorum bonorum, or, in the latest period, by possessoria hereditatis petitio, Dig. 5, 5, 1. Such at least is Savigny’s view, who makes no essential difference between the Interdict Quorum bonorum and Possessoria hereditatis petitio. According to Vangerow, § 509, and more recent writers, however, the Interdict was confined to the purpose of obtaining Possession of the corporeal things belonging to the inheritance, separate fictitious actions being employed on account of other rights and liabilities, for the equitable or praetorian successor could not sue or be sued by direct actions. Thus it was only at a comparatively late time that Possessoria hereditatis petitio was allowed as a general means of claiming the inheritance when a claimant (e. g. cognatus or emancipatus) had a praetorian title, corresponding to Hereditatis petitio, which was the means of claiming the civil inheritance. Accordingly the Interdict could not be brought, like Hereditatis petitio, against debtors to the inheritance; but only against possessors of corporeal hereditaments. Interdicto quorum bonorum debitores hereditarii non tenentur, sed tantum corporum possessores, Dig. 43, 2, 2. Cf. Sohm, p. 552.
Huschke supposes that after sufficit Gaius explained the provisions of the S. C. Tertullianum, passed in the time of Hadrian, on which he wrote a separate treatise.
§ 33 a. The orders or grades or classes to whom the praetor successively granted bonorum possessio in intestacy were as follow:
(1) Children (liberi), including not only sui heredes, but also emancipated children, § 26, on condition that the latter brought their goods into hotchpot (collatio bonorum), Dig. 37, 6. Children given in adoption were not admitted in this order, but in the third order of cognates, § 31.
(2) Statutory or civil heirs (legitimi), i. e. all who were entitled to inherit under the Twelve Tables or any statute; e. g. agnates who were entitled under the Twelve Tables; mothers, who, though belonging to a different civil family, were entitled to succeed their children under the Sc. Tertullianum, a statutory departure from the principles of the old civil law; children, who were entitled to succeed their mothers under the Sc. Orphitianum, a further departure from the agnatic principle, probably passed soon after the Institutes of Gaius were written, on which this jurist also wrote a special commentary; and sui heredes who had repudiated or omitted to demand possession as members of the first order within the interval allowed, namely, a year.
(3) Next of kin (proximi cognati) to the sixth degree, including those who had neglected to claim in the first or second order.
(4) Husband and wife inter se (vir et uxor), when the wife is not in manu. A wife in manu would be quasi daughter and therefore sua heres and entitled to succeed with liberi in the first order.
These various grades of title are called unde liberi, unde legitimi, unde cognati, unde vir et uxor, phrases which properly denote those articles of the edict in which these classes are summoned to the succession: ea pars edicti unde liberi vocantur, &c., but are used by Roman lawyers as epithets of intestate bonorum possessio.
The degrees of cognation in a direct line are the number of generations that separate a descendant from an ascendant: to compute the degrees of collateral cognation we must add the degrees of direct cognation. Thus a man is one degree from his father, and therefore two from his brother and three from his nephew. He is two degrees from his grandfather, and therefore three from his uncle and four from his first cousin or cousin german (consobrinus). He is three degrees from his great-grandfather, and therefore four from his great-uncle and five from his great-uncle’s son (propior sobrino) and six from his second cousin (sobrinus), that is, his great-uncle’s grandson, for second cousins are the children of first cousins. He is seven degrees from his second cousin’s children, and this is the only case in which the seventh degree of cognation was recognized as giving a title to succeed in intestacy, the law only recognizing in other lines the sixth degree of cognation. In English law collateral relationship is a title to inheritance or succession without any limit.
§ 36. Originally the person entitled to the praetorian succession was required to address a formal demand to the magistrate: but under Justinian any signification of intention to accept the succession was sufficient without a demand. The interval allowed for this signification of intention (agnitio) to a parent or child of the defunct was a year, to other claimants a hundred days. If a person in a superior order or degree omitted to signify his acceptance in the interval allowed, the succession then devolved to the next degree or order. If the person who thus omitted to signify acceptance had only a praetorian title to the succession, his right was entirely forfeited by the omission; but if he had a prior title at civil law he could by hereditatis petitio evict the bonorum possessor, who accordingly would have only a nugatory or ineffective possession (sine re).
(As to bonorum possessio intestati cf. Sohm, p. 566.)
§ 39. Nunc de libertorum bonis uideamus.
Inst. 3, 7 pr.
§ 40. Olim itaque licebat liberto patronum suum inpune testamento praeterire. nam ita demum lex xii tabularum ad hereditatem liberti uocabat patronum, si intestatus mortuus esset libertus nullo suo herede relicto. itaque intestato quoque mortuo liberto, si is suum heredem reliquerat, nihil in bonis eius patrono iuris erat. et siquidem ex naturalibus liberis aliquem suum heredem reliquisset, nulla uidebatur esse querella; si uero uel adoptiuus filius filiaue uel uxor quae in manu esset sua heres esset, aperte iniquum erat nihil iuris patrono superesse.
Inst. l. c.
§ 41. Qua de causa postea praetoris edicto haec iuris iniquitas emendata est. siue enim faciat testamentum libertus, iubetur ita testari, ut patrono suo partem dimidiam bonorum suorum relinquat, et si aut nihil aut minus quam partem dimidiam reliquerit, datur patrono contra tabulas testamenti partis dimidiae bonorum possessio; si uero intestatus moriatur suo herede relicto adoptiuo filio 〈uel〉 uxore quae in manu ipsius esset, uel nuru quae in manu filii eius fuerit, datur aeque patrono aduersus hos suos heredes partis dimidiae bonorum possessio. prosunt autem liberto ad excludendum patronum naturales liberi, non solum quos in potestate mortis tempore habet, sed etiam emancipati et in adoptionem dati, si modo aliqua ex parte heredes scripti sint, aut praeteriti contra tabulas testamenti bonorum possessionem ex edicto petierint; nam exheredati nullo modo repellunt patronum.
Inst. 3, 7, 1.
§ 42. Postea lege Papia aucta sunt iura patronorum, quod ad locupletiores libertos pertinet. cautum est enim ea lege, ut ex bonis eius, qui sestertiorum centum milium plurisue patrimonium reliquerit, et pauciores quam tres liberos habebit, siue is testamento facto siue intestato mortuus erit, uirilis pars patrono debeatur. itaque cum unum filium unamuefiliam heredem reliquerit libertus, proinde pars dimidia patrono debetur, ac si sine ullo filio filiaue moreretur; cum uero duos duasue heredes reliquerit, tertia pars debetur; si tres relinquat, repellitur patronus.
Inst. 3, 7, 2.
§ 43. In bonis libertinarum nullam iniuriam antiquo iure patiebantur patroni. cum enim hae in patronorum legitima tutela essent, non aliter scilicet testamentum facere poterant quam patrono auctore. itaque siue auctor ad testamentum faciendum factus erat —|NA relict — |NActus erat, sequebatur hereditas; si uero auctor | ei factus non erat, et intestata liberta moriebatur, | ad — per|tinebat; nec enim ullus olim — possit patronum a bonis libertae — re|pellere.
§ 44. Sed postea lex Papia cum quattuor liberorum iure libertinas tutela patronorum liberaret et eo modo concederet eis etiam sine tu|toris auctoritate condere testamentum, prospexit, | ut pro numero liberorum, quos liberta mortis tempo|re habuerit, uirilis pars patrono debeatur. er|go ex bonis eius quae —|NA liberos reli —|NAa possid —|NAhereditas ad patronum pertinet.
§ 45. Quae diximus de patrono, eadem intellegemus et de filio patroni; item de nepote ex filio 〈et de〉 pronepote ex nepote filio nato prognato.
§ 46. Filia uero patroni et neptis ex filio et proneptis ex nepote filio nato prognata olim quidem eo iure, quod lege xii tabularum | patrono datum est, — sexus | patronorum liberos — testamenti liberti 〈aut〉 ab intestato contra filium adoptiuum uel uxorem nurumue quae in manu fuerit, bonorum possessionem petat, trium liberorum iure lege Papia consequitur; aliter hoc ius non habet.
§ 47. Sed ut ex bonis libertae testatae quattuor liberos habentis uirilis pars ei debeatur, ne liberorum quidem iure consequitur, ut quidam putant. sed tamen intestata liberta mortua uerba legis Papiae faciunt, ut ei uirilis pars debeatur. si uero testamento facto mortua sit liberta, tale ius ei datur, quale datum est contra tabulas testamenti liberti, id est quale et uirilis sexus patronorum liberi contra tabulas testamenti liberti habent; quamuis parum diligenter ea pars legis scripta sit.
§ 48. Ex his apparet extraneos heredes patronorum longe remotos esse ab omni eo iure, quod uel in intestatorum bonis uel contra tabulas testamenti patrono conpetit.
§ 49. Patronae olim ante legem Papiam hoc solum ius habebant in bonis libertorum, quod etiam patronis ex lege xii tabularum datum est. nec enim ut contra tabulas testamenti ingrati liberti uel ab intestato contra filium adoptiuum uel uxorem nurumue bonorum possessionem partis dimidiae peterent, praetor similiter ut de patrono liberisque eius curabat.
§ 50. Sed lex Papia duobus liberis honoratae ingenuae patronae, libertinae tribus, eadem fere iura dedit, quae ex edicto praetoris patroni habent; trium nero liberorum iure honoratae ingenuae patronae ea iura dedit, quae per eandem legem patrono data sunt; libertinae autem patronae non idem iuris praestitit.
§ 51. Quod autem ad libertinarum bona pertinet, siquidem intestatae decesserint, nihil noui patronae liberis honoratae lex Papia praestat. itaque si neque ipsa patrona neque liberta capite deminuta sit, ex lege xii tabularum ad eam hereditas pertinet et excluduntur libertae liberi; quod iuris est etiam si liberis honorata non sit patrona; numquam enim, sicut supra diximus, feminae suum heredem habere possunt. si uero uel huius uel illius capitis deminutio interueniat, rursus liberi libertae excludunt patronam, quia legitimo iure capitis deminutione perempto euenit, ut liberi libertae cognationis iure potiores habeantur.
§ 52. Cum autem testamento facto moritur liberta, ea quidem patrona quae liberis honorata non est nihil iuris habet contra libertae testamentum; ei uero quae liberis honorata est hoc ius tribuitur per legem Papiam, quod habet ex edicto patronus contra tabulas liberti.
§ 53. |Eadem lex patronae filio liberis honorato fere| patroni iura dedit; sed in huius persona etiam unius filii filiaeue ius sufficit.
§ 54. Hactenus omnia iura quasi per indicem tetigisse satis est; alioquin diligentior interpretatio propriis commentariis exposita est.
§ 39. Succession to freedmen next demands our notice.
§ 40. Freedmen were originally allowed to pass over their patron in their testamentary dispositions. For by the law of the Twelve Tables the inheritance of a freedman only devolved on his patron when he died intestate and without leaving a self-successor. So if he died intestate leaving a self-successor, the patron was excluded, which, if the self-successor was a natural child, was no grievance; but if the self-successor was an adoptive child or a wife in hand (manu), it was clearly hard that they should bar all claim of the patron.
§ 41. Accordingly, at a later period, the praetor’s edict corrected this injustice of the law. For if a freedman makes a will, he is commanded to leave a moiety of his fortune to his patron; and if he leaves him nothing, or less than a moiety, the patron can obtain contra-tabular possession of a moiety from the praetor. And if he die intestate, leaving as self-successor an adoptive son or a wife in his hand or a son’s wife in the hand of his son, the patron can obtain in the same way against these self-successors intestate possession of a moiety from the praetor. But the freedman is enabled to exclude the patron if he leaves natural children, whether in his power at the time of his death or emancipated or given in adoption, provided he leaves them any portion of the inheritance, or that, being passed over in silence, they have demanded contra-tabular possession under the edict; for, if they are disinherited, they do not at all bar the patron.
§ 42. At a still later period the lex Papia Poppaea augmented the rights of the patron against the estate of more opulent freedmen. For by the provisions of this statute whenever a freedman leaves property of the value of a hundred thousand sesterces and upwards, and not so many as three children, whether he dies testate or intestate, a portion equal to that of a single child is due to the patron. Accordingly, if a single son or daughter survives, half the estate is claimable by the patron, just as if the freedman had died childless; if two children inherit, a third of the property belongs to the patron; if three children survive, the patron is excluded.
§ 43. In respect of the property of freedwomen no wrong could possibly be done to the patron under the ancient law: for, as the patron was statutory guardian of the freedwoman, her will was not valid without his sanction, so that, if he sanctioned a will, he either would be therein instituted heir, or, if not, had only himself to blame: for if he did not sanction a will and consequently the freedwoman died intestate, he was assured of the inheritance, for she could leave no heres or bonorum possessor who could bar the claim of the patron.
§ 44. But when at a subsequent period, by the enactment of the lex Papia, four children were made a ground for releasing a freedwoman from the guardianship of her patron, so that his sanction ceased to be necessary to the validity of her will, it was provided by that law that the patron should have a claim to a portion of her estate equal to that of each single child she might have at the time of her death. So if a freedwoman left four children, a fifth part of her property went to her patron, but if she survived all her children, the patron on her decease took her whole property.
§ 45. What has been said of the patron applies to a son of the patron, a grandson by a son, a great-grandson by a grandson by a son.
§ 46. Although a daughter of a patron, a granddaughter by a son, a great-granddaughter by a grandson by a son have under the statute of the Twelve Tables identical rights with the patron, the praetorian edict only calls the male issue to the succession: but the lex Papia gives a daughter of the patron a contra - testamentary or intestate claim against an adoptive child, or a wife, or a son’s wife to a moiety of the inheritance on account of the privilege of being mother of three children; a daughter not so privileged has no claim.
§ 47. In the succession to a testate freedwoman mother of four children, a patron’s daughter, though mother of three children, is not, as some think, entitled to the portion of a child: but, if the freedwoman die intestate, the letter of the lex Papia gives her the portion of a child; if the freedwoman die testate, the patron’s daughter has the same title to contra-tabular possession as she would have against the will of a freedman, that is, as the praetorian edict confers on a patron and his sons in respect of the property of a freedman, [viz. a claim to half against all but natural children] though this portion of the law is carelessly written.
§ 48. It is thus apparent that the external heirs of a patron are entirely excluded from the rights which the law confers on the patron himself, whether a freedman die intestate or it is a question of the freedman’s will being set aside by the praetor in favour of the patron.
§ 49. Before the lex Papia was passed, patronesses had only the same rights in the property of their freedmen as patrons enjoyed under the statute of the Twelve Tables: for neither did the praetor intervene to give them a moiety of the inheritance by contratabular possession against a will of an ungrateful freedman, nor by making a grant of possession against the intestate claim of an adoptive child or a wife or a son’s wife, as he did in the case of the patron and the patron’s son.
§ 50. But subsequently by the lex Papia two children entitle a freeborn patroness, three children a patroness who is a freedwoman, to nearly the same rights as the praetor’s edict confers on a patron; and it also provided that three children entitle a freeborn patroness to the same rights which the statute itself conferred on a patron: but the statute does not grant these latter rights to a patroness who is a freedwoman.
§ 51. As to the successions of freedwomen who die intestate, no new right is conferred on a patroness through the title of children by the lex Papia; accordingly, if neither the patroness nor the freedwoman has undergone a capitis deminutio, the law of the Twelve Tables transmits the inheritance to the patroness, and excludes the freedwoman’s children, even when the patroness is childless; for a woman, as before remarked, can never have a self-successor: but if either of them has undergone a capitis deminutio, the children of the freedwoman exclude the patroness, because her statutory title having been obliterated by capitis deminutio, the children of the freedwoman are admitted by right of kinship in preference to her.
§ 52. When a freedwoman dies testate, a patroness not entitled by children has no right of contra-tabular possession: but a patroness entitled by children has conferred upon her by the lex Papia the same right to a moiety by contra-tabular possession as the praetorian edict confers on the patron to the inheritance of a freedman.
§ 53. By the same law a patroness’s son privileged by having children has almost the rights of a patron [patroness?], but in this case one son or daughter is sufficient to give him the privilege.
§ 54. This summary indication of the rules of succession to freedmen and freedwomen who are Roman citizens may suffice for the present occasion: a more detailed exposition is to be found in my separate treatise on this branch of law.
§ 54. Gaius wrote a treatise in fifteen books, Ad leges Juliam et Papiam, from which there are thirty extracts in the Digest; another in ten books, Ad edictum urbicum; and another in three books, De manumissionibus: to any of which he may allude, but more probably to the first.
§ 55. Sequitur ut de bonis Latinorum libertinorum dispiciamus.
§ 56 Quae pars iuris ut manifestior fiat, admonendi sumus, id quod alio loco diximus, eos qui nunc Latini Iuniani dicuntur olim ex iure Quiritium seruos fuisse, sed auxilio praetoris in libertatis forma seruari solitos; unde etiam res eorum peculii iure ad patronos pertinere solita est; postea uero per legem Iuniam eos omnes, quos praetor in libertate tuebatur, liberos esse coepisse et appellatos esse Latinos Iunianos: Latinos ideo, quia lex eos liberos perinde esse uoluit atque [si essent ciues Romani ingenui | qui ex urbe Roma in Latinas colonias deducti Latini coloniarii esse coeperunt; Iunianos ideo, quia per legem Iuniam liberi facti sunt[,etiamsi non essent ciues Romani]. legis itaque Iuniae lator cum intellegeret futurum, ut ea fictione res Latinorum defunctorum ad patronos pertinere desinerent, quia scilicet neque ut serui decederent, ut possent iure peculii res eorum ad patronos pertinere, neque liberti Latini hominis bona possent manumissionis iure ad patronos pertinere, necessarium existimauit, ne beneficium istis datum in iniuriam patronorum conuerteretur, cauere [uoluit], ut bona eorum proinde ad manumissores pertinerent, ac si lex lata non esset; itaque iure quodammodo peculii bona Latinorum ad manumissores ea lege pertinent.
§ 57.Vnde accidit ut longe differant ea iura, quae in bonis Latinorum ex lege Iunia constituta sunt, ab his quae in hereditate ciuium Romanorum libertorum obseruantur.
§ 58. Nam ciuis Romani liberti hereditas ad extraneos heredes patroni nullo modo pertinet; ad filium autem patroni nepotesque ex filio et pronepotes ex nepote 〈filio nato〉 prognatos omni modo pertinet, etiamsi 〈a〉 parente fuerint exheredati. Latinorum autem bona tamquam peculia seruorum etiam ad extraneos heredes pertinent, et ad liberos manumissoris exheredatos non pertinent.
§ 59. Item ciuis Romani liberti hereditas ad duos pluresue patronos aequaliter pertinet, licet dispar in eo seruo dominium habuerint; bona uero Latinorum pro ea parte pertinent, pro qua parte quisque eorum dominus fuerit.
§ 60. Item in hereditate ciuis Romani liberti patronus alterius patroni filium excludit, et filius patroni alterius patroni nepotem repellit; bona autem Latinorum [et ad ipsum patronum] et ad alterius patroni heredem simul pertinent, pro qua parte ad ipsum manumissorem pertinerent.
§ 61. Item si unius patroni tres forte liberi sunt et alterius unus, hereditas ciuis Romani liberti in capita diuiditur, id est tres fratres tres portiones ferunt et unus quartam; bona uero Latinorum pro ea parte ad successores pertinent, pro qua parte ad ipsum manumissorem pertinerent.
§ 62. Item si alter ex his patronis suam partem in hereditate ciuis Romani liberti spernat, uel ante moriatur quam cernat, tota hereditas ad alterum pertinet; bona autem Latini pro parte deficientis patroni caduca fiunt et ad populum pertinent.
§ 63. Postea Lupo et Largo consulibus senatus censuit, ut bona Latinorum primum ad eum pertinerent qui eos liberasset; deinde ad liberos eorum non nominatim exheredatos, uti quisque proximus esset; tunc antiquo iure ad heredes eorum qui liberassent pertinerent.
§ 64. Quo senatusconsulto quidam 〈id〉 actum esse putant, ut in bonis Latinorum eodem iure utamur, quo utimur in hereditate ciuium Romanorum libertinorum. idque maxime Pegaso placuit. quae sententia aperte falsa est. nam ciuis Romani liberti hereditas numquam ad extraneos patroni heredes pertinet, bona autem Latinorum [etiam] ex hoc ipso senatusconsulto non obstantibus liberis manumissoris etiam ad extraneos heredes pertinent. item in hereditate ciuis Romani liberti liberis manumissoris nulla exheredatio nocet, in bonis Latinorum nocere nominatim factam exheredationem ipso senatusconsulto significatur.
§ 64 a. Verius est ergo hoc solum eo senatusconsulto actum esse, ut manumissoris liberi. qui nominatim exheredati non sint, praeferantur extraneis heredibus.
§ 65. Itaque emancipatus filius patroni praeteritus quam uis contra tabulas testamenti parentis sui bonorum possessionem non petierit, tamen extraneis heredibus in bonis Latinorum potior habetur.
§ 66. Item filia ceterique sui heredes licet iure ciuili inter ceteros exheredati sint et ab omni hereditate patris sui summoueantur, tamen in bonis Latinorum, nisi nominatim a parente fuerint exheredati, potiores erunt extraneis heredibus.
§ 67. Item ad liberos, qui ab hereditate parentis se abstinuerunt, nihilo minus bona Latinorum pertinent; nam hi quoque exheredati nullo modo dici possunt, non magis quam qui testamento silentio praeteriti sunt.
§ 68. Ex his omnibus satis illud apparet, si is qui Latinum | fecerit, —|—| —NAsse; hunc enim solum — in bonis Latinorum —|NA (4 uersus in C legi nequeunt) —|NA quaeritur, an exheredes —|—NA (5 uersus in C legi nequeunt) —|NA et libe —| —|—NA constat —|—NA bona Latinorum —|—NA est ut —|—|—|—NA ab alteri —|NA.
§ 69 Item illud quoque constare uidetur, si solos liberos ex | disparibus partibus patronus —|—NA tant, ad eos pertinere, quia nullo interueniente extraneo herede senatusconsulto locus non est.
§ 70.Sed si cum liberis suis etiam extraneum heredem patronus reliquerit, Caelius Sabinus ait tota bona pro uirilibus partibus ad liberos defuncti pertinere, quia cum extraneus heres interuenit, non habet lex Iunia locum, sed senatusconsultum. Iauolenus autem ait tantum eam partem ex senatusconsulto liberos patroni pro uirilibus partibus habituros esse, quam extranei heredes ante senatusconsultum lege Iunia habituri essent, reliquas uero partes pro hereditariis partibus ad eos pertinere.
§ 71. Item quaeritur, an hoc senatusconsultum adeospatroni liberos pertineat, qui ex filia nepteue procreantur, id est ut nepos meus ex filia potior sit in bonis Latini mei quam extraneus heres. item 〈an〉 ad maternos Latinos hoc senatusconsultum pertineat quaeritur, id est ut in bonis Latini materni potior sit patronae filius quam heres extraneus matris. Cassio placuit utroque casu locum esse senatusconsulto. sed huius sententiam plerique inprobant, quia senatus de his liberis [patronarum] nihil sentiat, qui aliam familiam sequerentur. idque ex eo apparet, quod nominatim exheredatos summouet; nam uidetur de his sentire qui exheredari a parente solent, si heredes non instituantur; neque autem matri filium filiamue, neque auo materno nepotem neptemue, si eum eamue heredem non instituat, exheredare necesse est, siue de iure ciuili quaeramus, siue de edicto praetoris, quo praeteritis liberis contra tabulas testamenti bonorum possessio promittitur.
§ 72. Aliquando tamen ciuis Romanus libertus tamquam Latinus moritur, uelut si Latinus saluo iure patroni ab imperatore ius Quiritium consecutus fuerit. nam, ut diuus Traianus constituit, si Latinus inuito uel ignorante patrono ius Quiritium ab imperatore consecutus sit, [quibus casibus] dum uiuit iste libertus, ceteris ciuibus Romanis libertis similis est et iustos liberos procreat, moritur autem Latini iure, nec ei liberi eius heredes esse possunt; et in hoc tantum habet testamenti factionem, ut patronum heredem instituat eique, si heres esse noluerit, alium substituere possit.
§ 73. Et quia hac constitutione uidebatur effectum, ut ne umquam isti homines tamquam ciues Romani morerentur, quamuis eo iure postea usi essent, quo uel ex lege Aelia Sentia uel ex senatusconsulto ciues Romani essent, diuus Hadrianus iniquitate rei motus auctor fuit senatusconsulti faciendi, ut qui ignorante uel recusante patrono ab imperatore ius Quiritium consecuti essent, si eo iure postea usi essent, quo ex lege Aelia Sentia uel ex senatusconsulto, si Latini mansissent, ciuitatem Romanam consequerentur, proinde ipsi haberentur ac si lege Aelia Sentia uel senatusconsulto ad ciuitatem Romanam peruenissent.
§ 74. Eorum autem, quos lex Aelia Sentia dediticiorum numero facit, bona modo quasi ciuium Romanorum libertorum, modo quasi Latinorum ad patronos pertinent.
§ 75. Nam eorum bona qui, si in aliquo uitio non essent, manumissi ciues Romani futuri essent, quasi ciuium Romanorum patronis eadem lege tribuuntur. non tamen hi habent etiam testamenti factionem; nam id plerisque placuit, nec inmerito: nam incredibile uidebatur pessimae condicionis hominibus uoluisse legis latorem testamenti faciendi ius concedere.
§ 76. Eorum uero bona qui, si non in aliquo uitio essent, manumissi futuri Latini essent, proinde tribuuntur patronis, ac si Latini decessissent. nec me praeterit non satis in ea re legis latorem uoluntatem suam uerbis expressisse.
§ 55. We proceed to the successions of Latini Juniani.
§ 56. To understand this branch of law we must recollect what has been already mentioned (1 § 22), that those who are called Latini Juniani were originally slaves by law of the Quirites, though maintained by the praetor’s protection in a condition of de facto freedom, so that their possessions belonged to their patrons by the title of peculium. At a more recent period, when the lex Junia was enacted, those whom the praetor had protected in de facto freedom became legally free, and were called Latini Juniani: Latini, because the law intended to assimilate their freedom to that of freeborn citizens of Rome who, on quitting Rome for a Latin colony, became Latin colonists; Juniani, because their liberty was due to the lex Junia, although it did not make them Roman citizens: and as the author of the lex Junia foresaw that the effect of this fiction of their being on the same footing as Latini coloniarii would be that the goods of deceased Latini Juniani would cease to belong to the patron, since not being slaves at the time of their death, their goods would not belong to the patron by right of peculium, nor could the goods of a Latin colonist devolve on him by title of manumission; he deemed it necessary, to prevent the favour to these freedmen from becoming a wrong to the patron, to provide that their goods should belong to the manumitter in the same way as if the law had not been enacted. Consequently by that enactment the property of Latini Juniani belongs to their manumitters as if it were by right of peculium.
§ 57. Accordingly there are wide differences between the title to the property of Latini Juniani under the lex Junia and the title to the inheritance of freedmen who are Roman citizens.
§ 58. When a freedman, who is a Roman citizen, dies, an external heir of the patron has no claim to his inheritance, while a son of the patron, a grandson by a son, a great-grandson by a grandson by a son, have an indefeasible claim even if disinherited by their parent; whereas, when a Latinus Junianus dies, his property belongs to his patron’s external heir, like the peculium of a slave, and does not belong to the manumitter’s children who are disinherited.
§ 59. Thus the inheritance of a freedman, who is a Roman citizen, belongs to two or more patrons in equal portions, in however unequal proportions they had been his proprietors; whereas the goods of a Latinus Junianus belong to his patrons according to their shares in him when he was a slave.
§ 60. Again, in the succession to a freedman who is a Roman citizen, one patron bars another patron’s son, and a son of one patron bars another patron’s grandson; whereas the goods of a Latinus Junianus belong jointly both to a patron and another patron’s heir, the latter taking the share which would have belonged to the manumitter he represents.
§ 61. If one patron leave three children, and another patron one, the inheritance of a freedman who was a Roman citizen is divided by the number of individuals (in capita); that is to say, every one takes an equal portion; whereas the goods of a Latinus Junianus belong to those who succeed in the proportion in which they would have belonged to the manumitters they represent.
§ 62. If one patron renounce his part in the inheritance of a freedman who was a Roman citizen, or die before formal acceptance (cretio), the whole inheritance belongs to the other; but the share of the property of a Latinus Junianus which a patron fails to take is caducous and belongs to the people (aerarium).
§ 63. At a later period, when Lupus and Largus were consuls, the senate decreed that the goods of a Latinus Junianus should belong in the first place to the manumitter, in the next to such issue of the latter as are not individually disinherited, in the order of their proximity, and, in default of these, by the ancient law of devolution, to the heirs of those manumitting them.
§ 64. The effect of this senatusconsult is, according to some authorities, that the goods of a Latinus Junianus devolve in the same way as the inheritance of a freedman who was a Roman citizen, and this was the doctrine of Pegasus: but this opinion is clearly erroneous, for the inheritance of a freedman who is a Roman citizen never belongs to an external heir of his patron; whereas the goods of a Latinus Junianus, by the express terms of the senatusconsult, in default of children of the manumitter devolve on his external heir. Again, in the case of the inheritance of a freedman who was a Roman citizen, the children of the manumitter are not injuriously affected by any form of disinheritance; whereas Latini Juniani, in respect of their goods, are injured by individual disinheritance according to the very terms of the senatusconsult.
§ 64 a. The only true effect, then, of the senatusconsult is, that the manumitter’s children in the absence of individual disinheritance are preferred to external heirs.
§ 65. Accordingly, an emancipated son of the patron who is passed over in silence by his father, though he makes no demand for contra-tabular possession, is nevertheless preferred to an external heir in respect of the goods of a Latinus Junianus.
§ 66. Again, a daughter and other self-successors who can be disinherited at civil law in a mass (inter ceteros) and thereby effectively deprived of the inheritance of their parent, in respect of the goods of a Latinus Junianus, unless they are individually (nominatim) disinherited, have priority over an external heir.
§ 67. Children, too, although they have abstained from the inheritance of their parent, are entitled to the goods of his Latinus Junianus in spite of their abstention, because they cannot be said to have been disinherited any more than children who are passed over by a testator in silence.
§ 68. From all these points it is sufficiently apparent that he who makes a Latinus Junianus . . .
§ 69. This also seems to be established, that if a patron has instituted his children as his sole heirs but in unequal portions, the property of a Latin belongs to them in the same unequal proportions, because in the absence of an external heir the senatusconsult has no application.
§ 70. If the children of the patron are left joint heirs with a stranger, Caelius Sabinus holds, that the entire goods of a Latinus Junianus devolve in equal portions on the children, because when an external heir intervenes he is brought within the senatusconsult instead of the lex Junia. According to Javolenus, only that part will devolve under the senatusconsult in equal portions on the children of the patron, which, before the senatusconsult was passed, the external heir would have been entitled to under the lex Junia, and the residue will belong to them in the proportion of their shares in their father’s inheritance.
§ 71. It is a further question, whether this senatusconsult extends to descendants (liberi) of the patron born of a daughter or granddaughter of a patron, that is whether in respect of the goods of a Latinus Junianus a grandson by a daughter will be preferred to an external heir. Again, it is a question whether a Latinus Junianus belonging to a mother is within the senatusconsult, that is, whether in respect of the goods of a Latinus Junianus, manumitted by a mother, preference is given to the patroness’ son over her external heir. Cassius held that both cases are within the scope of the senatusconsult; but his opinion is generally rejected on the ground that the senate could not contemplate the benefit of patronesses’ sons; persons, that is, in another civil family to that of the manumitter; and this appears to be the true interpretation of the senatusconsult from its making individual disinheritance a bar; for herein the senate appears to contemplate those who must be disinherited by their parent if they are not instituted. Now a mother need not disinherit her child, nor a mother’s father a grandchild, in default of institution, whether we look to the civil law or to that part of the praetorian edict which promises contra-tabular possession to children passed over by a testator in silence.
§ 72. Sometimes a freedman, who is a Roman citizen, dies as a Latinus Junianus; for instance, a Latinus Junianus who has obtained an imperial grant of citizenship, reserving the rights of his patron: for by a constitution of the emperor Trajan a Latinus Junianus who obtains an imperial grant of citizenship against the will or without the knowledge of his patron resembles during his lifetime other freedmen who are Roman citizens, and procreates lawful children, but dies with the status of a Latinus, so that his children are not his heirs; and has only this amount of testamentary capacity that he may institute his patron heir, and name a substitute to him in case of his renouncing the inheritance.
§ 73. But as the effect of this constitution seemed to be, that such a person could never die as if he were a Roman citizen, even though he subsequently acquired the title to which the lex Aelia Sentia or the senatusconsult (1 § 31) annexes the right of Roman citizenship, the emperor Hadrian, to mitigate the harshness of the law, caused to be passed a senatusconsult, that a freedman, who obtained from the emperor a grant of citizenship without the knowledge or contrary to the will of his patron, on subsequently acquiring the title to which the lex Aelia Sentia or the senatusconsult, if he had remained a Latinus Junianus, would have annexed the rights of Roman citizenship, should be deemed to be in the same position as if he had acquired Roman citizenship by the title of the lex Aelia Sentia or the senatusconsult.
§ 74. The property of those who under the lex Aelia Sentia are counted as if they were surrendered enemies devolves on their patrons sometimes as if they were freedmen who had Roman citizenship, sometimes as if they were Latini Juniani.
§ 75. For the goods of those of them who, but for some offence, would have obtained on manumission Roman citizenship are given by this statute to their patrons like freedmen who became Roman citizens by the provision of the above-mentioned statute; but, according to the prevalent and better opinion, they cannot make a will; for it seems incredible that the most abject order of freedmen should have been intended by the legislator to enjoy the power of testamentary disposition.
§ 76. But the goods of those who, but for some offence, would have become on manumission Latini are assigned to their patrons as if they were the goods of Latini, though, as I am aware, the legislator has not expressed his intention in this matter in terms as unequivocal as might be desired.
§ 59. It was an arbitrary rule of Roman jurisprudence that rights of patronage were not divisible in unequal portions (placuit nullam esse libertorum divisionem, Dig. 37, 14, 24), that is, that several joint proprietors of a slave in unequal portions acquired by his manumission equal rights as joint patrons against his succession.
§ 60. The rights of patrons were modelled on those of agnates, and we know that only the nearest agnate was entitled to succeed. Therefore on the decease of one of several joint patrons his rights accrued to the remainder by survivorship. But the peculium of a slave belongs to his co-proprietors in the ratio of their property, and on the decease of one, his rights do not accrue to the co-proprietors, but are transmitted to the representatives of the deceased.
§§ 63-71. Cf. Inst. Just. 3, 7, 4. The Sc. Largianum was passed under the Emperor Claudius, a. d. 42.
The Sc. Largianum giving a right to the children of the patron, in respect of the property of Latini Juniani deceased, put them all on a footing of equality like manumitting joint proprietors, § 59, but it only took effect when a stranger was instituted heir or co-heir; if then a patron left his whole inheritance to his children, but in unequal portions, their rights to the succession of a Latinus Junianus would be governed by the older law, and would be proportionate to their shares in their father’s succession.
§§ 74-76. Cf. 1, 25. Ulpian gives as a reason why Dediticius could not make a will his want of citizenship both at Rome and in every other state: Latinus Junianus, item is qui dediticiorum numero est, testamentum facere non potest; Latinus quidem quoniam nominatim lege Junia prohibitus est; is autem qui dediticiorum numero est. quoniam nec quasi civis Romanus testari potest, cum sit peregrinus, nec quasi peregrinus, quoniam nullius certae civitatis civis est, ut secundum leges civitatis suae testetur, 20, 14. This requires some explanation; and the explanation may serve to illustrate all those passages of Gaius, e g. 1 § 92, where he alludes to the laws of civitates peregrinae.
At the close of the republic, and during the first centuries of the empire, all Italy, with the exception of Rome, was composed of a number of townships; each with its own territorial limits, and each possessed of its own constitution, magistrates, jurisdiction, and, to a certain extent, legislation. In the lex Julia municipalis, preserved on the tabula Heracleensis, these townships are called Coloniae when they had been founded as colonies from Rome, Municipia when they traced their existence to some other origin. The provinces, though originally very variously constituted, were gradually assimilated in condition to Italy and its towns: so that finally the whole empire was composed of municipalities, and almost all of its free inhabitants were either citizens of Rome or of some local and inferior community.
The generic denomination of these communities, whether Italian or Provincial, was Civitas or Respublica. The term Municipium was sometimes used in this generic sense; but was more commonly used in a specific sense as opposed to Colonia. Municipes, however, is often used in the generic sense where we might have expected Municipium; as equivalent to Respublica or Civitas. It is also often used to signify generically, not a state or juristic person (municipium), but its individual members; i. e. as equivalent to cives, in speaking of any town but Rome: as the word Civis, from its habitual opposition to Latinus and Peregrinus, had acquired a tendency to suggest civis Romanus. The area belonging to each town was called Regio or Territorium, and included under one jurisdiction all the Vici within its geographical limits.
Citizenship (civitas, patria, origo) in any municipality was producible by four causes: Municipem aut nativitas facit, aut manumissio, aut adoptio, Dig. Ad Municipalem et de Incolis, 50, 1, 1, pr. Cives quidem origo, manumissio, adlectio, adoptio; incolas vero . . . domicilium facit, Cod. 10, 40, 7.
(1) Birth (origo, nativitas) was the commonest title; and hence the word origo is used as equivalent to civitas. Children born in marriage had the civitas of their father; those not so born of their mother. Some states had the privilege that children born in lawful marriage of parents belonging to different communities should have the civitas of the mother in addition to that of the father.
(2) Adoptio gave to the adopted child, in addition to his original civitas, that of his adoptive father.
(3) Manumissio, when perfect, gave to the freedman the civitas of his patronus.
(4) Adlectio, election by the governing body of a community, admitted strangers to civitas.
It follows that a man might be a citizen of several states; of one by origo, another by adoptio, another by adlectio. This may seem to be contradicted by Cicero: Duarum civitatum civis esse noster jure civili nemo potest, Pro Balbo, 11, 28: but Cicero is here speaking of independent sovereign states; not of the dependent states composing the organism of the Roman empire.
When Roman citizenship had been granted to all Italy, and an ordinance of Caracalla, subsequent to the time of Gaius, had extended it to all the Provinces, every member of any municipality possessed at least a double citizenship: he was citizen of Rome as well as of the smaller municipality: Omnibus municipibus duas esse censeo patrias, unam naturae, alteram civitatis . . . habuit alteram loci patriam, alteram juris, Cicero, De legibus, 2, 2. Roma communis nostra patria est, Modestinus, Dig. 50, 1, 33.
The principal effects of citizenship in a municipality were three-fold:
(1) Obligation to bear certain burdensome municipal offices (munera);
(2) Subjection or obligation of submission to the municipal magistrates and tribunals, including liability as defendant to be sued before its courts (forum originis);
(3) Subjection to municipal laws, including the determination of a man’s personal capacity—infancy, minority, majority, capacity of disposition, &c.—by the laws of the community in which he had civitas (lex originis).
In all these effects a man’s Roman citizenship was of slight importance compared with his municipal citizenship. The burdens (munera) of the metropolitan city were provided for by arrangements peculiar to Rome. The liability of a defendant to be sued before a Roman forum was limited to the time when he happened to be resident in Rome, and then was subject to many exceptions, included under the general name of jus revocandi domum: and in any case of collision between the laws relating to personal capacity, the laws of Rome always yielded to those of the local patria or father town (lex originis).
In most of the above consequences Domicil (domicilium, incolatus, domus) had an operation similar to civitas. Domicil is the place which a man has voluntarily chosen for his residence, as the central station of his fortunes, and the headquarters of his dealings and dispositions: Incolas vero . . . domicilium facit. Et in eodem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus, si nihil avocet, unde cum profectus est, peregrinari videtur, quo si rediit, peregrinari jam destitit, Cod. 10, 40, 7. ‘Home is identical with Domicil; and Domicil is agreed to be the place where a man has established his household gods and the headquarters of his transactions and obligations: the place which he will not leave except for a special purpose; absence from which makes him seem to be abroad, and return to which makes him cease to be any longer away from home.’ Sed de ea re constitutum esse (respondit), eam domum unicuique nostrum debere existimari, ubi quisque sedes et tabulas haberet suarumque rerum constitutionem fecisset, Dig. 50, 16, 203. ‘It is undisputed that a man’s home is the place where he is settled and has his counting-house (account-books) and the basis of his operations (or, centre of gravitation of his fortunes).’ In exceptional cases a person’s domicil might be determined, not by choice, but by his circumstances: thus children acquired the domicil of their parents, and soldiers were domiciled in the place where they were stationed. It was possible for a person to have more than one domicil, though this was a subject of controversy.
A man was liable to munera of the city which he had chosen for a domicil as well as of that where he had the rights and duties of citizenship. Domicil, as well as Origo, constituted a man’s general forum; that is, in any action in which a man was defendant, the plaintiff had the election whether he would sue him at his forum originis or forum domicilii. A party to an action can only be governed by one Lex: and if he was citizen in any municipality, he was, generally speaking, governed by lex originis; if he was nowhere citizen, his relations may be governed by lex domicilii.
The subversion of the Roman empire in the west abolished the importance of the Municipalities; and, with the exception of Switzerland where it still prevails, the doctrine of Origo disappeared from those countries which are still influenced by Roman jurisprudence. Traces of the Roman doctrine of Domicilium still survive, at least as to Forum and Lex, in the Private international law of some states: what related to Munera shared the fate of the other political institutions of the empire. Savigny, §§ 350-359.
We may observe that the reason assigned by Ulpian for the incapacity of Dediticius to make a will, his want of patria, requires explanation: for, if he had no patria, at least he might have domicilium, though not in Rome or within a certain distance from it, and we have seen that, in the absence of patria, a man’s personal capacity was to some extent determined by his domicilium. It may be, however, that the equivalence of domicilium to patria did not necessarily extend to testamentary capacity. The modern maxim: Locus regit actum, 4 § 53, comm., the ability of even temporary residence, as opposed to domicil, to give validity to the mere form of a disposition if made in accordance with the law prevalent there, is not a recognized principle of Roman law itself.
The third class of freedmanship (dediticia libertas) had long been obsolete when it was formally abolished by Justinian, a. d. 530, Cod. 7, 5.
The second class (latinitas), under which the freedman relapsed into servitude at the moment of death, was also offensive to Roman feelings in imperial times, and was formally abolished by Justinian, the principal modes of creating latinitas being transformed into modes of acquiring quiritary status or civitas Romana, and the remainder being declared inoperative, Cod. 7, 6.
The rules of succession to intestate freedmen of the first class, the only class henceforth recognized, were immensely simplified by Justinian. While he abolished the last remnants of the lex Papia, and amongst them the rights which that law gave to the patron against the heritage of Centenarius, or the freedman who died worth 100,000 sesterces, or what Justinian treated as equivalent, 100 aurei, he confined the rights of the patron to inheritances of that amount, that is to say, he exempted from the claims of the patron, contra-tabular or ab intestato, all estates left by a freedman below the value of 100 aurei. Against such estates as remained liable, moreover, he reduced the claims, contra-tabular or ab intestato, of the patron from ½ to ⅓.
Patrons were protected against fraudulent alienations by the freedman in his lifetime in two ways. Alienations which reduced the fortune of the freedman below the specified limit (made the freedman minorem centenario) were deemed to be in fraudem legis, and were ipso jure null and void: alienations which, without making the freedman minorem centenario, diminished the amount of the ⅓ to which the patron was entitled, were valid at law, but were rescinded by the patron’s action against the alienee. If the freedman died testate, the patron employed against the alienee the formula Fabiana; if he died intestate, the formula Calvisiana. These actions were analogous to the actio Pauliana, the creditors’ remedy in the case of alienations in fraudem creditorum. Fraudulent alienations by manumission, whether in fraudem creditorum or in fraudem patroni, were made null and void by the lex Aelia Sentia, 1 § 37.
The patron’s remedy by actio Fabiana and actio Calvisiana may be compared with the remedy by Querela inofficiosae donationis; for the rights of a patron against the inheritance of the freedman were somewhat analogous to the rights of certain very near relations of the testator to his inheritance, unless a certain portion (debita, legitima portio) of the inheritance was left them in his will, and by the Querela inofficiosae donationis any gift he made which violated his duty to such relations in this respect could be set aside. While the will of the freedman could be upset by contra-tabulation (by interdictum quorum bonorum or petitio hereditatis possessoria), the testator’s near relatives were allowed the Querela inofficiosi testamenti, with a fictitious allegation of the testator’s insanity The amount held sufficient to satisfy the rights of the two classes of claimants differed: while the patron was entitled to ½, or, in later times, ⅓ of the inheritance, a will was set aside for breach of family respect (pietas) unless a ¼ of what would have been the querelant’s share in the event of intestacy was left him. In both cases the will of the testator, whether libertus or ingenuus, might be allowed to stand, so far as was consistent with the claims of the Querelant or Contra-tabulant; but while Contra-tabulation necessarily produced a violation of the rule, nemo pro parte testatus, pro parte intestatus, decedere potest, the Querela only produced it occasionally, as it often caused a complete rescission of the will, or total intestacy. Praeteriti liberi, i.e. neither instituti heredes nor exheredati, could also, if the will was not on this account entirely void, contra-tabulate like the patron: but the patron’s ground of contra-tabulation, like the near relation’s ground of querela, was a material wrong; whereas preterition of liberi was treated rather as an informality.
The rights of the patron against the freedman’s estate were not only interesting to the freeborn Roman in his possible character of a patron, but also in respect of the manumission of children: for an emancipating parent (parens manumissor) had the same claims against the estate left by the emancipated child as the manumitter of a slave had against the estate left by the freedman, i. e. a claim originally to a moiety and subsequently to a third of the succession, either contra-tabular or ab intestato. He, however, could not bring actio Fabiana or Calvisiana to defeat dolose alienations made in the lifetime of the emancipated child.
In later times the multiplication of legally protected Peculia, castrense, quasi-castrense, &c., made emancipation very much less a matter of loss to the emancipating parent, and proportionally deprived of its strength his claim to the succession of his child. Hence we find that Novella 115, which recast the rules relating to inofficiositas, and Novella 118, which reformed intestate law, abolished both the contra-tabular and the ab intestato rights of parens manumissor. Adolf Schmidt, Das Pflichttheilsrecht des Patronus und des Parens manumissor.
§ 77. Videamus autem et de ea successione quae nobis ex emptione bonorum conpetit.
§ 78. Bona autem ueneunt aut uiuorum aut mortuorum: uiuorum ueluti eorum qui fraudationis causa latitant nec absentes defenduntur; item eorum qui ex lege Iulia bonis cedunt; item iudicatorum post tempus quod eis partim lege xii tabularum partim edicto praetoris ad expediendam pecuniam tribuitur. mortuorum bona ueneunt ueluti eorum, quibus certum est neque heredes neque bonorum possessores neque ullum alium iustum successorem existere.
§ 79. Siquidem uiui bona ueneant, iubet ea praetor per dies continuos xxx possideri et proscribi; si uero mortui, per dies xv. postea iubet conuenire creditores et ex eo numero magistrum creari, id est eum per quem bona ueneant. itaque si uiui bona ueneant, in diebus 〈x bonorum〉 uenditionem fieri iubet, si mortui, in dimidio. diebus itaque uiui bona xxxx, mortui uero xx emptori addici iubet. quare autem tardius uiuentium bonorum uenditionem conpleri iubet, illa ratio est, quia de uiuis curandum erat, ne facile bonorum uenditiones paterentur.
§ 80. Neque autem bonorum possessorum neque bonorum emptorum res pleno iure fiunt, sed in bonis efficiuntur; ex iure Quiritium autem ita demum adquiruntur, si usuceperunt. interdum quidem bonorum emptoribus ne u|sus quidem capio contingit, ueluti si —|NA bonorum emptor —|—|—|NA.
§ 81. Item quae debita sunt —|NA aut ipse debuit, neque bonorum possessor neque | bonorum emptor ipso iure debet aut ipsis debentur, |—NA de omnibus rebus —|—NA in sequenti commentario pro|ponemus.
§ 77. We next proceed to succession of a vendee arising from the purchase of a debtor’s entire property.
§ 78. The entire property of a debtor may be sold either in his lifetime or after his death. It is sold in his lifetime when, for instance, he defrauds his creditors by absconding, and is absent and undefended, or when he avails himself of the lex Julia and makes a voluntary surrender of his estate, or when, after judgment recovered against him, he has suffered the term to expire that is prescribed, partly by the Twelve Tables, partly by the edict of the praetor, for the satisfaction of a judgment debt. A debtor’s estate is sold after his death when it is certain that he has left neither an heir, nor a praetorian representative, nor any other lawful successor.
§ 79. If the bankrupt whose estate is to be sold is alive, an order issues from the praetor, and his estate is possessed and advertised for sale for thirty continuous days; if the debtor is dead, it is possessed and advertised for fifteen days. After this delay a second order issues from the praetor, directing the creditors to hold a meeting and elect out of their number a manager, by whom the estate may be sold. And after the expiration of the ten days next following, if the debtor is alive, or of five if he is dead, a third order issues from the praetor, under which the sale of the property is held. Thus after the expiration of forty days if the debtor is alive, after the expiration of twenty if he is dead, his universal estate is transferred by the creditors under the praetor’s order to the purchaser. The longer delay prescribed for the sale of the estate of a living debtor is founded on the greater consideration due to the living than to the dead, and is designed to protect a living debtor from having his property sold too easily.
§ 80. Neither a praetorian successor nor a purchaser of a debtor’s entire property acquires plenary, but only bonitarian, ownership. Quiritarian ownership is only acquired by usucapion, though sometimes a purchaser of a debtor’s entire property cannot even acquire by usucapion (for instance, when a peregrinus is bonorum emptor).
§ 81. Debts owed to or by the person from whom the property is derived are not owed to or by the praetorian successor or purchaser of a debtor’s entire property, but are recoverable by fictitious forms of action, which will be explained hereafter [4 § 34].
§ 77. Missio in possessionem and the subsequent bonorum venditio bear a sort of general resemblance to the adjudication of bankruptcy and the sale of the debtor’s property by the trustee in bankruptcy of English law, though in the latter system there is this among other differences, that the sale is not in the hands of the creditors themselves, but of a trustee appointed by the court and acting under its control.
In order to form a clear conception of this branch of the law, it is necessary to distinguish an ordinary judgment execution in a personal action, that is to say, the enforcement by the power of the state of a judgment debt against a debtor who omits to satisfy the judgment by voluntary payment, from bankruptcy, which is the process when all the property and liabilities of the debtor in default are brought into adjudication. The English process in an ordinary execution is either a writ of fieri facias, commanding the sheriff to satisfy the debt by seizure and sale of the personal goods of the debtor; or a writ of levari facias, now disused, directing him to levy the debt out of the personal goods of the debtor, and the rents and profits of his land; or a writ of elegit, commanding him to deliver the debtor’s goods to the creditor at an appraisement, or to put the creditor in possession of the debtor’s land, to hold until out of the rents and profits thereof the debt is levied; or formerly, before imprisonment for debt was abolished, a writ of capias ad satisfaciendum, commanding him to imprison the body of the debtor until satisfaction was made for the debt. After a man’s body was taken in execution, no other process could be sued out against his lands or his goods, and after his lands were seized by elegit, his body could not be taken, but if part only of the debt was levied on a fieri facias, the creditor might have a capias ad satisfaciendum for the residue. So that body and goods might be taken in execution, or land and goods, but not both body and land. None of these remedies, we may observe, includes the sale of the debtor’s land. In the law of bankruptcy, on the contrary, which has grown up in comparatively modern times, the whole real as well as personal estate of the debtor is transferred to the creditors’ trustee, to be sold or otherwise disposed of, for the benefit of the creditors; but the trustee, as we have seen, fulfils a public function, and is not a mere agent of the creditors.
It is to be noticed that ordinary execution for debt and bankruptcy are not distinctly separated from one another by Gaius, all judgment debtors alike being liable to bonorum venditio, though competing creditors are associated together in the realization of the debtor’s estate.
In the early law the only general form of execution was personal (manus injectio), and when the praetor established a form of real execution it operated, whether at the instance of one, or of several creditors, as a transfer of the debtor’s entire property to the vendee. But in course of time, owing to the inconvenience of this kind of execution in the case of single creditors, the practice of granting execution by which portions only of a debtor’s property could be seized was adopted by the praetor and developed by imperial legislation. This was called pignoris capio, which is not to be confounded with the legis actio per pignoris capionem, of which Gaius subsequently gives an account, 4 § 26. A portion of the debtor’s estate was thus seized, not by the plaintiff, as in the earlier procedure, but by public officers (the officiales, viatores, apparitores, executores of the magistrate), and after being detained two months to enforce payment by way of pledge, was sold in satisfaction of the debt. Movables were to be seized and sold in the first instance, but, if these were insufficient, lands might be seized and sold, Dig. 42, 1, 15. If a purchaser could not be found, the property might be delivered to the creditor at an appraisement. In pignoris capio, however, there was only a singular succession to the debtor’s property, which was taken in execution, there was no transfer of his juris universitas.
In order to understand the proceedings in bonorum emptio, or execution against the entire property of an insolvent debtor, the principal mode of execution at the time when Gaius wrote, we must study the earlier mode of execution by manus injectio, or process against the body of the debtor, which was one of the old legis actiones regulated by the Twelve Tables, 4 §§ 21-25, and which was the model on which proceedings in missio in possessionem, or process against an insolvent’s estate, were regulated by subsequent praetorian legislation. These proceedings are known to us by the statements of Aulus Gellius, who has given us the very terms of the Twelve Tables, 20, 1. ‘The following are the expressions of the law (Table III): Admitted debts and judgment debts shall be satisfied within a lawful term of thirty days. When these are elapsed let the creditor apprehend the debtor and take him before the magistrate. If he does not satisfy the judgment, and if no one takes upon himself the cause before the magistrates, binding himself to defend an action for the debt (eo in jure vindicit), let the creditor carry him away (secum ducito), and confine him in stocks or fetters of not less than 15 pounds weight. If the prisoner wishes, he may live on his own. If he does not, the creditor shall give him pounds of corn each day, or more if he likes.’ Gellius proceeds to tell us that ‘during a subsequent interval the debtor might agree with his adversary (erat autem jus interea paciscendi), but in default of an agreement was detained in chains for sixty days. During this period, on three continuous ninth or market-days he was taken before the praetor in the comitium, where the amount of the judgment debt was proclaimed (which would give his friends an opportunity of ransoming him). On the third market-day he was put to death, or sold into slavery beyond the Tiber. . . . On the third market-day, say the Twelve Tables, the creditors may cut their portions of his body, and no creditor who cuts too little or too much shall be therefore called to account’ (cf. Gell. l. c. 48-52 dissectum esse antiquitus neminem equidem legi neque audivi. For various explanations of this curious passage cf. Roby, Private Law, 2, p. 424).
The excessive cruelty of creditors to their debtor bondsmen, one of the chief grievances of the plebeians, was restrained by the Lex Poetelia (313 b. c.). This law probably prevented them being sold as slaves beyond the Tiber. But it left untouched personal execution itself, imprisonment for debt remaining in force throughout the history of Roman law. But though personal execution was applicable to all judicati, the lex Poetelia abolished it for nexum, Bethmann-Hollweg, Rom. Civ. Proc. § 112.
The assignment (addictio) of the insolvent borrower reduced him to a state of partial servitude. But the Roman lawyers distinguished between partial slavery (servire) and complete slavery (servum esse), Quintilian, 7, 3. For instance, the addictus retained his praenomen, nomen, cognomen, tribe, could by payment of his debt recover his liberty at any time without the consent of the creditor, and on recovery of his liberty was not libertinus but ingenuus. As, then, addictio did not reduce a freeman to slavery, it did not operate a degradation of status (capitis minutio).
Insolvency, however, deeply affected another branch of status, namely, civitas, although even here, as it only partially destroyed the privileges of civitas, it was not considered to operate a capitis minutio. Civitas, as we have seen, consisted of two portions, certain political or public rights, jus suffragii and jus honorum, and certain civil or private rights, collectively denominated commercium and connubium. The political half of civitas was destroyed by insolvency, which deprived a man of his electoral powers and his capacity for office, and reduced him to the condition of aerarius; and even the civil half was seriously impaired, and principally in respect of commercium. Of the aggregate of capacities called commercium the privilege forfeited by insolvency was the capacity of appointing or being appointed procurator, Inst. 4, 13, 11. By being disabled from appointing a procurator a man might be seriously hampered in his commercial proceedings, as he would be unable to cede a right of action; by being disqualified for acting as procurator he would be unable to acquire by cession a right of action, and would be unable to sue for a penalty as an informer in a popularis actio, 4 § 82, comm., for the prosecutor in such an action was considered to be the procurator of the people. The various privileges enjoyed by a citizen of untarnished credit, and liable to be forfeited by insolvency or otherwise, were called his existimatio, and the disabilities attaching to loss of existimatio were summed up in the word ‘infamia’ or ‘ignominia.’
The early Civil law allowed, as we have seen, the body of the insolvent debtor to be pursued, but provided no direct process against his property. This want, which would be the more felt as Roman commerce extended, was at length supplied by the Praetor.
In close imitation of this execution against the body, a process of execution against the property of an insolvent was introduced by a praetor named Publius Rutilius, about a century before the Christian era, 4 § 35. It may be assumed from the parallelism of these proceedings that the interval of thirty days which was required to elapse between the first seizure and the decree authorizing the election of a magister was derived from the thirty days’ interval allowed the judgment debtor before manus injectio.
The process was begun by missio in possessionem, whereby the praetor gave persons, who had a claim to property, provisional possession of it.
Some of the details of the proceedings in a missio in possessionem which are omitted by Gaius may be supplied from Theophilus. Before the final transfer of the debtor’s estate by the creditors under the order of the magistrate (addictio) three decrees of the praetor were necessary:—
(1) A decree authorizing the seizure of the debtor’s estate and its advertisement for sale (proscriptio). Theophilus gives the form of this advertisement: ὁ δεɩ̂να χρεώστης ἡμέτερος ὑπάρχων, εὶς αἰτίαν ἐνέπεσε διαπράσεως. ήμεɩ̂ς, κρεδίτωρες ὄντες, τὴν τούτου διαπιπρ[Editor: illegible character]σκομεν περιουσίαν. ὠνητὴς ὁ βουλόμενος προσίτω, 3, 12. ‘So-and-so, our debtor, is bankrupt; we, his creditors, are about to sell his estate; whoever wishes to purchase is invited to attend.’ This advertisement was affixed to the Columna Maenia, which was in the forum on the Puteal near the Carcer. Pliny, N. H. 7, 60. In the old system of manus injectio, the judgment debtor (judicatus), after the expiration of the thirty dies justi, was no longer allowed to defend an action in person, but might, as we see by the above-quoted fragment of the Twelve Tables, be defended by a vindex. In the formulary system, the equivalent of the vindex was satisdatio judicatum solvi, security with two sureties for the payment of the judgment to be recovered, and the judgment recoverable in an actio judicati was for twice the amount of the disputed judgment debt, 4 §§ 9, 102. Supposing, however, the missio in possessionem was not founded on a previous judgment, but on the debtor’s absconding or keeping house, then the period at which he was disabled from defending an action, unless he gave security (judicatum solvi), was the expiration of thirty days after his estate had been seized and advertised for sale, Cicero, Pro Flacco. Before the thirty days have expired, the debtor is admitted to defensio without satisdatio judicatum solvi.
(2) After the possession and proscription of the estate the bankrupt is infamis, and cannot defend without satisdatio judicatum solvi; and a second decree of the praetor empowered the creditors to hold a meeting and elect a magister to manage the sale, corresponding in this respect to the creditor’s assignee, or, at the present day, the creditor’s trustee of English law.
(3) After a certain period (ten or five days), a third decree authorized the publication of the conditions of sale, which were appended to the original advertisement.
A period of forty or twenty days having thus been completed from the first missio in possessionem, the sale took place by public auction, the universitas juris of the debtor being transferred to the bidder who offered the creditors the highest dividend, that is, the greatest amount in the pound on their respective claims. As we see by the text, § 80, the purchaser became bonitary, not quiritary, owner of the insolvent’s property, and he could only sue or be sued by actiones ficticiae or utiles, not by actiones directae, 4 § 35.
The principal acts or defaults, which entitled a Roman creditor to bonorum venditio, may be compared with those which entitle an English creditor to petition for an adjudication in bankruptcy, i. e. to the so-called acts of bankruptcy of English jurisprudence.
(1) As manus injectio might be founded on a previous judgment or an admission of debt (res judicata or aes confessum), and missio in possessionem might be granted against judicatus who makes default, so in English law non-payment of an admitted or a judgment debt after service of a debtor’s summons is an act of bankruptcy, and instead of suing out a writ of execution the creditor may petition for adjudication of bankruptcy.
(2) When there is no previous judgment or admission of debt, a debtor who absconds or secretes himself, with intent to defraud his creditors, commits an act of bankruptcy in both systems of law. In English law, for instance, if a debtor makes an appointment with a creditor to meet at the debtor’s place of business, and avoids the meeting with the intention of delaying the creditor; or if he withdraws from his usual counting-house to a room upstairs, to avoid the rightful and personal solicitation of his creditors for payment, he commits an act of bankruptcy. So in Roman law: Praetor ait: In bona ejus qui judicio sistendi causâ fidejussorem dedit, si neque potestatem sui faciet neque defendetur, iri jubebo, Dig. 42, 4, 2. ‘The praetor says in the edict: If a man enter into a bond with suretyship to appear at a trial, and neither appears in person nor by procurator, I will permit the plaintiff to seize his goods.’ Again: Praetor ait: Qui fraudationis causâ latitabit, si boni viri arbitratu non defendetur, ejus bona possideri vendique jubebo, Dig. 42, 7, 1. ‘The praetor says in the edict: If a man secrete himself with intent to defraud his creditors, and is not defended by a procurator who gives security approved by an arbitrator, I will order his property to be seized and sold.’ Cf. § 78.
There is no adjudication of bankruptcy against a deceased debtor in English law, but there may be a liquidation of his property as in Roman law; there are special rules for the administration of property in such cases, creditors, in default of other administrators, being entitled to take out letters of administration against the estate of a deceased debtor. As the Roman heir was personally liable for the debts of the deceased, he might by succeeding to an insolvent inheritance become himself insolvent, which is of course not possible in succession by English law.
Cessio bonorum was introduced by a lex Julia, § 78, enacted either by Julius or Augustus Caesar, and if by the latter, in imitation of a measure of the former which he himself has recorded. In the year 48 b. c. when Caesar was consul, credit having collapsed in consequence of the civil war, debtors being generally insolvent, and money having disappeared, Caesar allowed them to discharge their obligations by the transfer of their estates, movable and immovable, to their creditors, at the value, appraised by arbitrators, which they would have borne before the commencement of the war, De Bello Civili, 3, 1. Cessio bonorum conferred three benefits on the debtor: exemption from arrest and imprisonment, exemption from infamy, exemption of his after-acquired property from liability beyond a certain amount.
After the abolition of the legis actiones and the introduction of execution against the estate, execution against the body of the debtor still remained as one of the remedies of the civil code. The insolvent debtor was incarcerated and compelled to labour for the benefit of the creditor, although he could no longer be sold as a slave. From this personal execution a debtor was exempted by cessio bonorum. In eo tantummodo hoc beneficium eis prodest ne judicati detrahantur in carcerem, Cod. 7, 71, 1. ‘The principal benefit of bonorum cessio is, that it exempts the insolvent from incarceration.’
From loss of existimatio the insolvent was exempted by bonorum cessio. Debitores qui bonis cesserint licet ex ea causa bona eorum venierint, infames non fiunt, Cod. 2, 12, 11. ‘The surrender of a debtor’s estate, though followed by a sale of all his property, does not involve infamy.’
Proceedings in bankruptcy or insolvency, in modern days, may be looked upon in two lights: either as a mode of execution, that is, as assisting the creditors to recover as much as may be of their rightful claims, or as a mode of liberation, that is, as a relief of an unfortunate debtor, releasing him of his debts without payment, and enabling him to ‘begin the world again’ without the overwhelming pressure of his past obligations. By the present English law, with the approval of the Court, a bankrupt may be discharged of his obligations by payment of a dividend of ten shillings in the pound, or, failing this, by a resolution of his creditors that his bankruptcy has arisen from circumstances for which he cannot justly be held responsible, and an expression of their desire that he should receive an order of discharge. Roman law only admitted any limitation of the debtor’s liability in very exceptional cases, e. g. in the case of a slave instituted heres necessarius, 2 § 155, in order to save the credit of an insolvent testator. After once becoming heir to the insolvent inheritance, whether he wished it or not, such a person was not liable to further molestation. (Cf. the restriction of liability allowed to an heir by the beneficium inventarii of Justinian.) But the after-acquired property of other insolvents remained liable to successive sales until plenary satisfaction of their debts had been made. Accordingly, bankruptcy is not enumerated, § 168, as one of the modes of extinguishing obligation.
To encourage the bankrupt, however, to make a bonorum cessio, in order that as much as possible might be saved from the wreck of his fortunes for the benefit of his creditors, bonorum cessio not only discharged him, as we have seen, from personal execution, but discharged from liability such portion of his after-acquired property as was necessary for his subsistence. Qui bonis cesserint nisi solidum creditor receperit non sunt liberati, Cod. 7, 71, 1. Is qui bonis cesserit, si quid postea acquisierit, in quantum facere potest convenitur, Dig. 42, 3, 4. See 4 § 43, comm.
The property of a debtor who made a voluntary assignment was sold by the creditors in the same way as when it was taken compulsorily.
Bonorum sectio differed from bonorum venditio in that it vested quiritary, and not merely bonitary, property in the purchaser. Some criminal condemnations involved confiscation, and the sale of the criminal’s estate (also of booty taken in war) in this way was conducted not by a magister but by a quaestor of the treasury, who sold under the spear, the symbol of quiritary dominion. Sectio bonorum transferred the juris universitas of the criminal. It is alluded to, § 154, 4 § 146. Bonorum cessio, as we are expressly informed, Cod. 7, 71, 4, only gave the creditors a power of sale (bonorum venditio) and did not invest them with any right of ownership.
In the last period of Roman law, such as we find in the time of Justinian, venditio bonorum was superseded by distractio bonorum, which involved no transfer of the juris universitas. A curator was appointed by the praetor, and instead of selling the active and passive universality of the insolvent’s estate to a purchaser who became liable to the insolvent’s creditors, merely sold the active residue of his estate in detail. Justinian attributes this change to the abolition of the formulary procedure and generalization of cognitio extraordinaria: Theophilus, to the abolition of the conventus, assizes, sessions, or brief law terms of the provinces, and the erection of permanent provincial tribunals. The continuance of venditio bonorum would have been incompatible with these changes, because they depended on the principle that the entire administration of civil procedure should be in the hands of imperial officials. It was indeed by the extraordinaria and not by the ordinaria cognitio of the praetor that levying execution by pignoris capio was first instituted.
Under the empire ordinary execution (Pignoris capio) was differentiated from bankruptcy proceedings (Missio in bona). In Pignoris capio the court (not the creditor) was put in possession, and the sale took place in two months, unless the debtor paid before that period. In real actions the res was delivered by the court to the plaintiff; i. e. the court had acquired a new faculty of transmuting property from the defendant to the plaintiff. Only fiscal debtors and insolvents were now subject to loss of freedom, and this was no longer incarceration, but only custodia militaris, surveillance by a soldier. Pignoris capio (special Real exception) was followed by a sale by auction (licitatio, subhastatio) conducted by apparitores Praetoris. Whereas under the early law creditors obtained Missio in bona before proof, and had subsequently to prove their claims against the universal successor (bonorum emptor); under the latest law only those creditors who had proved obtained Missio in bona, and then received their percentage not from the universal successor but at the hands of the judex, immediately from the Massa, the proceeds of the sales by a curator; privileged creditors receiving first their whole claims, unprivileged equal percentages (aequalis portio pro rata debiti quantitate). Two years were allowed to creditors in the same province, four years to creditors in different provinces to prove their claims; after which they retained their claims against the debtor, but not against the possessing creditors. Bethmann-Hollweg, §§ 158-160.
The following observations may serve to supplement the brief remarks of Gaius on the subject of Insolvency:
Bankruptcy proceedings are a form of execution, and therefore belong, not to substantive law, but to the law of Procedure. This branch of law, however, as we have already noticed, has some elements which are not purely formal, but material, and as such are rightly admitted to a treatise on substantive law. Insolvency is placed by Gaius in this part of his treatise, because in his day insolvency occasioned a transfer of a universitas, which was a succession to an entire property.
Proceedings in Insolvency may be divided into two portions, of which one is (A) preparatory, and the other (B) final.
(A) The preparatory portion includes the Proof of their debts by the several creditors; the collection of the assets or formation of the Massa; and its sale. The collection of the assets includes, on the one hand, the recovery back of property that has been aliened in fraudem creditorum; and, on the other, the elimination or separation from the mass of such things found in the possession of the insolvent as were not really his property but the property of other persons called Separatists.
Separatist claimants are those claimants
(1) Who can sue for a thing by any form of Real action, whether a rei vindicatio, or actio Publiciana (rei vindicatio utilis), or hereditatis petitio, or actio confessoria brought to recover some Personal servitude like ususfructus. An actio in rem confessoria to enforce a Real servitude is obviously not an interest of a nature to give a right of Separation. Those who had a pignus or hypotheca were also ranked by the Romans among the Separatists: in modern law they take their place among the creditors proper or concurrent, who have priority.
(2) Or Separatists are claimants who have a Personal action whereby they can have a claim against the insolvent in respect of some specific thing in his hands; such as actio commodati, depositi, locati, mandati, condictio furtiva, interdictum unde vi, actio de pauperie, or actio quod metus causa.
(B) The final stage is the distribution of the realized proceeds of the present assets among the concurrent creditors according to their classification. The execution does not effect a discharge of the insolvent, and therefore subsequent assets will be subject to a subsequent distribution.
In modern Roman law creditors have been sometimes marshalled in five classes. (For Roman law itself on this subject, cf. Roby, 2, pp. 436, 437.)
1. Creditors with an Absolute privilege, viz. creditors for the funeral expenses of the insolvent. Modern law adds Servants who are creditors for their wages, and the Fiscus which has a claim for arrears.
2. Privileged Hypothecary creditors, i. e. the Fiscus, the wife for her dower, and any creditor who lent money for the purchase or conservation of the subject of hypothecation, e. g. to buy the land or build the house, or build, or buy, or equip the ship, that is hypothecated.
3. Simple hypothecary creditors, who have priority according to the date of their mortgage.
4. Privileged chirographary (merely personal) creditors, or creditors unprotected by mortgage. Privileged are creditors who lent money for the repair of a house; for the purchase, construction, or equipment of a ship; or depositors of money, without interest, in the hands of the insolvent as banker (argentarius, mensularius).
5. Unprivileged personal creditors, Savigny, § 374; Vangerow, § 593; cf. Windscheid, Pandekten, 2 § 271; Dernburg, Pandekten, 3 § 56.
§ 82. Sunt autem etiam alterius generis successiones, quae neque lege xii tabularum neque praetoris edicto, sed eo iure 〈quod〉 consensu receptum est introductae sunt.
Inst. 3, 10.
§ 83. Etenim cum pater familias se in adoptionem dedit mulierue in manum conuenit, omnes eius res incorporales et corporales quaeque ei debitae sunt, patri adoptiuo coemptionatoriue adquiruntur, exceptis his quae per capitis deminutionem pereunt, quales sunt ususfructus, operarum obligatio libertinorum quae per iusiurandum contracta est, et lites contestatae legitimo iudicio.
Inst. l. c.
§ 84. Ex diuerso quod is debuit, qui se in adoptionem dedit quaeue in manum conuenit, non transit ad coemptionatorem aut ad patrem adoptiuum, nisi si hereditarium aes alienum fuerit. tunc enim quia ipse pater adoptiuus aut coemptionator heres fit, directo tenetur iure; is uero, qui se adoptandum dedit quaeue in manum conuenit, desinit esse heres. de eo uero quod proprio nomine eae personae debuerint, licet neque pater adoptiuus teneatur neque coemptionator, et ne ipse quidem, qui se in adoptionem dedit quaeue in manum conuenit, maneat obligatus obligataue, quia scilicet per capitis deminutionem liberetur, tamen in eum eamue utilis actio datur rescissa capitis deminutione; et si aduersus hanc actionem non defendantur, quae bona eorum futura fuissent, si se alieno iuri non subiecissent, uniuersa uendere creditoribus praetor permittit.
Inst. l. c.
§ 82. There are other kinds of universal succession not governed by the law of the Twelve Tables nor by the praetor’s edict, but by rules of consuetudinary law.
§ 83. When a paterfamilias gives himself in adoption, or a woman subjects herself to hand, all their property, incorporeal and corporeal, and all debts due to them, are acquired by the adoptive father and the fictitious purchaser, excepting such rights as are extinguished by loss of status — usufruct, for instance, bounden services of freedmen secured by oath, and claims in respect of which there has been joinder of issue in a statutory trial.
§ 84. Conversely, the debts of the person who gives himself in adoption or of the woman who becomes subjected to hand (manus), do not pass to the fictitious purchaser (coemptionator) or adoptive father, unless they are hereditary debts, for in this case as the adoptive father or coemptionator are heredes instead of the persons made subject to them, they become directly liable, while the person adopted and woman sold into subjection are released from liability by ceasing to be heredes; but if the debt was owed in their own name, their adoptive father or fictitious purchaser incurs no liability, nor do the person adopted and woman subject to hand remain even themselves liable at civil law, their liability being extinguished by their capitis deminutio: a praetorian action, however, based on a feigned rescission of their capitis deminutio (4 § 38), is granted to the creditors against them, and if the action is not defended the property which would have belonged to them but for their capitis deminutio is allowed by the praetor to be all sold by the creditors.
§ 84. See 1 §§ 97-107, comm., 1 §§ 159-164. By arrogation a man passed from the status of paterfamilias to that of filiusfamilias, from domestic independence to domestic dependence. Thus it operated, a capitis minutio minima. Capitis minutio minima had various effects on a man’s rights and obligations:—
(a) As it implied a change of family, it entailed a loss of rights founded on agnation, including the sworn services of a freedman, for the patron was treated in certain circumstances as a quasi agnate.
(b) It had further effects, which perhaps we must be contented at the present day to regard as merely positive and inexplicable. Thus it extinguished any ususfructus or usus vested in the arrogatus. This effect was abrogated by Justinian, Cod. 3, 33, 16.
(c) It extinguished debts owed by the arrogatus. As a filiusfamilias was just as capable at civil law of incurring debts as a paterfamilias (apart from the change in the law made by S. C. Macedonianum), it is hard to say why the passage from one condition to the other should operate an extinction of debt. Ihering suggests that when the lex curiata required in Adrogatio was a reality, it was not enacted until all proved debts of Adrogatus were discharged; and that the publicity of the proceeding made uninjurious to the creditors what the protection of Adrogator required—the ipso facto extinction of all debts not proved before the enactment of the law. But when the people were merely represented by thirty lictors, and Adrogatio became comparatively a private proceeding, the old rule had ceased to be just, and was practically abolished by the Praetor’s Restitutio in integrum.
Adrogatio in the legislation of Justinian only conveyed to the adrogator a usufruct in the property of the adrogatus. The ownership subject to the usufruct (proprietas) remained in the adrogatus, Inst. 3, 10, 2; but the rights of the creditors of adrogatus were not allowed to be injured by this change, Inst. 3, 10, 3.
Coemptio is not noticed by Justinian, as the in manum conventio of the wife was obsolete long before his time.
§ 85.Item si legitimam hereditatem heres, antequam cer|nat aut pro herede gerat, alii in iure cedat, pleno iure fit ille heres, cui cessa est hereditas, proinde ac si ipse per legem ad hereditatem uocaretur. quodsi posteaquam heres extiterit, cesserit, adhuc heres manet et ob id creditoribus ipse tenebitur; sed res corporales transferet proinde ac si singulas in iure cessisset, debita uero pereunt, eoque modo debitores hereditarii lucrum faciunt
§ 86. Idem iuris est, si testamento scriptus heres, posteaquam heres extiterit, in iure cesserit hereditatem; ante aditam uero hereditatem cedendo nihil agit.
§ 87. Suus autem et necessarius heres an aliquid agant in iure cedendo, quaeritur. nostri praeceptores nihil eos agere existimant; diuersae scholae auctores idem eos agere putant, quod ceteri post aditam hereditatem; nihil enim interest, utrum aliquis cernendo aut pro herede gerendo heres fiat, an iuris necessitate hereditati adstringatur.
§ 85. If a person who is entitled to succeed as agnate to an intestate, before declaring his formal acceptance or informally acting as heir, surrender the inheritance by in jure cessio, the inheritance (hereditas) passes to the surrenderee exactly as if he were called to it by the law of the Twelve Tables itself. But if the agnate first accepts and then surrenders, he nevertheless continues to be heir, and remains liable to the creditors for the debts of the deceased: in this case the corporeal objects of the inheritance pass to the surrenderee just as if they had been separately surrendered (res singulae), but the debts of the inheritance are thereby extinguished, the debtors gaining the advantage of being discharged of liability.
§ 86. The same happens when an heir instituted in a will accepts and then surrenders, but before acceptance his surrender is inoperative.
§ 87. Whether a self- and necessary successor passes the succession by such a surrender is a question. According to my school the surrender is in this case inoperative: the other school think that the effect is the same as when the voluntary heirs surrender after acceptance, and that it makes no difference whether a man is heir by legal necessity on the one hand or by formal acceptance or informal acts of heirship on the other.
§ 85. Gaius now proceeds to another mode of conveying a juris universitas, the conveyance by an agnate of a delated but not accepted inheritance. Cf. 2 §§ 34, 35. We must bear in mind the distinction between heres and vocatus ad hereditatem, the offer (delatio) of an inheritance by the law or by a testator, and its final acquisition (aditio, acquisitio) by the delatee (2 §§ 152, 153, 162). In the case of the heres necessarius, the self-successor and the testator’s manumitted slave, delatio and acquisitio coincide; but in the case of the voluntarius heres, the agnate or the extraneus scriptus, they are two distinct events. An explanation of the causes of the different effects of an in jure cessio by these different classes might have thrown some light on this branch of early Roman law, but the reasons are not given by Gaius, and perhaps we must now be content to regard these distinctions as merely positive and inexplicable rules. Perhaps, as Ihering suggests, it was held, that to permit an heir appointed by will to part with the inheritance—in other words, to convert it into money—would have been in direct opposition to the testator’s intention; who, if he approved of such a step, might have adopted the mode of testation explained in 2 § 189, comm., i. e. might have instituted not the beneficiary but his slave.
Successio per universitatem, as already mentioned, was an institution only recognized by the legislator in a limited number of cases: one individual could not make another as he chose, in pursuance of private disposition, his universal successor. In respect of the voluntary transfer, inter vivos, of an inheritance, universal succession was only admitted in two cases: transfer by an agnate of delata hereditas (of his right to acquire an intestate succession) in the interval between delatio and aditio, and transfer (restitutio) by an heir to a fideicommissaria hereditas under the Sc. Trebellianum, 2 §§ 246, 259, comm.
The sale of an inheritance after acceptance was carried out in later law not by in jure cessio, but informally by emptio venditio accompanied with tradition and stipulations or cession of actions respecting the debts to or from the inheritance, 2 § 252; cf. Roby, 2, p. 162.
§ 88.Nunc transeamus ad obligationes. quarum summa diuisio in duas species diducitur: omnis enim obligatio uel ex contractu nascitur uel ex delicto.
Inst. 3, 13; Gaius in Dig. 44, 7, 1. 1.
§ 89. Et prius uideamus de his quae ex contractu nascuntur. harum autem quattuor genera sunt: aut enim re contrahitur obligatio aut uerbis aut litteris aut consensu.
Inst. l. c.
§ 88. We proceed to treat of obligations, which fall into two principal classes, obligations created by contract and obligations created by delict.
§ 89. We first treat of those which we founded on contract, which are of four orders, for contract is concluded by delivery of a thing, by words, by writing, or by consent.
Having examined Unequal primary real rights (status) and a portion of Equal primary real rights, namely, ownership and servitudes (jura in re), and omitting the detailed examination of another portion of Equal primary real rights, namely, Primordial rights, we quit the subject of real rights, or rights to forbearances binding indifferently all the world, and proceed to Obligations, jura in personam; that is to say, rights to certain acts or forbearances binding exclusively certain individuals.
The law of contract differs from other branches of law in that its function is rather auxiliary to human freedom than restrictive or coercive. While the law of Status and the law of Ownership are imperious and peremptory and felt by the fetters they impose on human volition, the law of Contract is ministerial to manifestations of will, and fosters and protects the most diversified activity and enterprise. The law of Contract is the most plastic part of the code and the part most susceptible of adaptation to the necessities of commerce: it is the portion of Roman jurisprudence which has survived with least alteration in modern Europe; and of all departments of modern codes it is the portion whose relative importance is already the greatest and is continually increasing.
But though to contract is a matter of free choice, Obligation, to be a subject of jurisprudence, implies compulsion: Debitor intelligitur is a quo invito pecunia exigi potest, Dig. 50, 16, 108. ‘Debtor denotes a person from whom money may be extorted against his will:’ i. e. it excludes merely moral duties (officia) because the state applies no coercion to enforce their performance.
Obligation, in the narrower sense in which we proceed to use the term, also excludes those duties which the legislator imposes on all the world alike towards a person invested with a Real right, whether a Primordial right, a right of Status, or a right of Dominion. Duties correlative to jus in rem, which are invariably negative in character, have scarcely received a distinctive appellation in the Latin language: for the sake of distinction from moral duties they may be called Necessitas, and for the sake of distinction from Positive duties, Necessitas abstinendi.
Justinian defines Obligation as follows: Obligatio est juris vinculum quo necessitate astringimur alicujus solvendae rei secundum nostrae civitatis jura, Inst. 3, 13. ‘Obligation is a legal bond, by which we are compelled to some performance (solutio) in accordance with the law of the state.’
The performance (solutio) which it is the object of the law to enforce when it imposes an obligation is sometimes decomposed into three elements, expressed by three terms, dare, facere, praestare. In personam actio est quotiens cum aliquo agimus qui nobis ex contractu vel ex delicto obligatus est, id est, cum intendimus dare, facere, praestare oportere, 4 § 2. ‘A personal action pursues an obligation arising from contract or delict, and declares that the defendant is bound to convey, perform, or make some render for a wrong.’ Obligationum substantia non in eo consistit ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum, Dig. 44, 7, 3, pr. ‘An obligation has not the effect of making a person owner of a corporeal thing or of giving him a right of servitude, but its object is to compel him to convey the ownership of something, or to oblige him to render some service, or make some other restitution. Dare denotes the transfer of ownership in a certain thing or sum of money: Facere, the render of any service other than the transfer of ownership in a certain thing: and Praestare may possibly signify the discharge of any obligation engendered by maleficium.
However diversified may be the Object of an obligation, it is always transformable, in the eye of the law, into the payment of a certain sum of money. Ea enim in obligatione consistere quae pecunia lui praestarique possunt, Dig. 40, 7, 9, 2. ‘Obligation can only have for its Object something redeemable and replaceable by money.’ Hence if it is desired to bind to the performance of some act not in its nature susceptible of pecuniary appreciation, it is necessary to make the direct Object of stipulation the payment of a certain penal sum, stipulatio poenae nomine, and the non-performance of the act desired the title or condition whereupon the penal sum shall be forfeited, as by a bond in English law; for then the obligation, having a pecuniary value, is a civil obligation enforceable by the tribunals. The performance of the act desired is thus practically enforced, although nominally it is removed from the position of Object of the stipulation to that of Condition.
In speaking of the right of Dominium or Ownership, we have already noticed (2 § 1, comm.) that besides the primary object of the right (abstention from molestation), there is always a secondary object, land, house, slave, or the like, to which such molestation relates. So, in view of this transformability of all Objects of obligation into money payments, we may say that the ultimate object of every obligation is an Alienation, or transfer of property; and is always a certain amount of Pecuniary value.
The primary and most comprehensive division of Obligatio is one that has already been noticed, 1 § 1, into (A) civilis obligatio, and (B) naturalis obligatio.
(A) Civilis obligatio is obligation enforceable by action, whether it derives its origin from Jus civile, as the obligation engendered by formal contracts or the obligation enforceable by penalty in a delictal action, or from that portion of Roman law which belonged to Jus gentium; such as the obligation engendered by Formless contracts, and obligation to indemnify engendered by delict.
(B) Obligatio naturalis is obligation not immediately enforceable by action, or obligation imposed by that portion of Jus gentium which is only imperfectly recognized by law; obligation, however, which is recognized by positive law in various operations, e. g. as founding a defence called Exceptio, i. e. a contention that the right of the plaintiff, though not nullified, is counteracted by an opposing right of the defendant, 4 §§ 115-137, comm.; as giving a right of Retention (barring condictio indebiti soluti) and of being used as a good set-off against the claim of the plaintiff (compensatio), 4 § 61; and as capable of forming a basis of various Accessory institutes of Civil law, such as Novatio, Pignus, Fidejussio, Constitutum.
Naturalis obligatio, with its partial and occasional protection, may seem a singular and anomalous institute of Roman law, but it is paralleled by the recognition, though to a very minor extent, of Imperfect obligations in English jurisprudence. Imperfect obligations are so called, not because they are less binding in the forum of conscience than those which are perfect, but because they are not directly enforced by political sanctions, because various motives induce the state to exempt the debtor from positive coercion. Instances of imperfect obligation are debts barred by a statute of limitations, and debts discharged by adjudication of bankruptcy. A written promise to pay by the bankrupt or debtor discharged by limitation, perfects and revives the imperfect obligation, and makes it ground to support an action. As in English law a merely moral duty is an inadequate consideration to support and validate a promise to pay, the validity of such ratificatory promises shows conclusively that the obligation of the insolvent, and of the debtor discharged by limitation, is regarded in English jurisprudence as something more than a moral obligation, as, to a certain extent, a legal obligation; that is, is viewed by English tribunals in the light in which naturalis obligatio was viewed by Roman tribunals. Cf. Anson on Contract, p. 116, 10th ed.
Civil obligations fall under two principal classes: (1) those to which the title or investitive fact is a contract; and (2) those to which the title or investitive fact is a delict. In obligation created by contract there are two stages: there is first a primary or sanctioned Personal right antecedent to wrong, and afterwards a secondary or sanctioning Personal right consequent on a wrong. In obligation founded on delict there is the second stage, a secondary or sanctioning Personal right consequent on a wrong, but the first stage is not a Personal right (jus in personam), but a Real right (jus in rem), whether a Primordial right, right of Status, or of Property.
These two typical classes, however, fail to comprehend all the obligations enforceable by action, and two supplementary classes have to be added: (3) obligations similar to those founded on contract (obligationes quasi ex contractu); and (4) obligations similar to those founded on delict (obligationes quasi ex delicto). It will be noticed that Gaius does not give this fourfold classification of the sources of obligation, which is found in the Institutes of Justinian, but derives all obligations either from Contract or Delict. In a passage of the Digest (44, 7, 1, pr.) excerpted from a work of Gaius, those not arising in the two principal ways are put in one miscellaneous group, ‘obligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam jure ex variis causarum figuris.’
A Contract is a convention or agreement (conventio, pactio, pactum) enforceable by appeal to a court of law. Et est pactio duorum pluriumve in idem placitum et consensus, Dig. 2, 14, 1, 2. ‘A pact exists when two or more persons come to an identical resolution, and agreement on a particular subject.’
Consensus, the essence of contract, will be found on close examination to consist not, as might at first sight appear, of two precisely similar elements contributed by the two consenting parties, but of two dissimilar elements, an intention signified by a promisor, and a corresponding expectation signified by a promisee. The promisor promises that he will do or perform some given act or acts, or that he will forbear or abstain from some given act or acts; that is, he signifies to the promisee that he intends to do the acts or to observe the forbearances which form the object of his promise: and the promisee accepts the promise; that is, signifies to the promisor his belief or expectation that the latter will do or forbear agreeably to the intention which he has expressed. Every agreement, then, consists of a promise proffered and accepted or of reciprocal promises proffered and accepted by each party; that is, (1) of a signification by the promising party of his intention to do the acts or to observe the forbearances which he promises to do or observe, and (2) a signification by the promisee that he expects that the promising party will fulfil the proffered promise. Without signification of the intention there is no promise; without signification of the expectation there is no reason for enforcing the promise. The consensus of the parties is the chiming or going together of this intention with this expectation; their direction to a common object, the acts or forbearances contemplated by the convention. Pollicitation is the offer of the one party before it is accepted by the other. Pactum est duorum consensus atque conventio; pollicitatio vero offerentis solius promissum, Dig. 50, 12, 3, pr.
A leading division of contracts or agreements enforceable by action is into formal contracts and formless contracts. Formal contracts are Nexum (in early law), Verbal contract or Stipulatio, and Literal contract or Expensilatio. Formless contracts are Real (Mutuum, Commodatum, Depositum, Pignus), Innominate contract (do ut des, &c.), or Consensual (Emptio, Locatio, Societas, Mandatum). Formal contracts derive their validity from the observance of a form prescribed by positive law, and calculated to inspire by its solemnity serious reflection in the negotiators, and to distinguish definitive resolution from preparatory negotiation and debate. In Real contract the earnestness and definitiveness of the resolution is proved by one contractor parting with ownership, as in mutuum or with physical control of the thing, as in commodatum, depositum, pignus. The obligation, too, contracted by the other party is perfectly plain, being in most cases simply restitution. In Exchange (permutatio), an Innominate contract, the duty of the promisor is not quite so simple; it is not restitution, but the transfer of an equivalent; and, accordingly, the validity of the contract of Exchange was not established till a comparatively late period of Roman jurisprudence. The daily and hourly employment of the Consensual contracts of Purchase and Hiring, while it would make the requirement of any formality intolerably inconvenient, also renders the nature of these contracts perfectly familiar to all the world, so that the mere mention of their names awakens as vivid a picture of their consequences as could the observance of the most ceremonious form. In the remaining Consensual contracts, Agency and Partnership, the position of the Agent or Partner who is called to account for property that has passed into his hands or that has been lost by his negligence is so similar to that of a party to a Real contract that there could be no hesitation in extending to these contracts the protection of the public tribunals.
An agreement that was neither valid by its Form, as was the the stipulation, nor was one of the four Consensual contracts with their familiar names, nor was a Real or innominate contract, that is, an agreement where on one side the consideration (causa praeter conventionem, Dig. 2, 14, 7, 4) was executed, nor, though outside the classification of contract, was made valid by the edict or some special statute, was not directly enforceable at law, and was called a Nudum pactum. A Nude pact, though ineffectual to produce civilis obligatio, may produce naturalis obligatio. Igitur nuda pactio obligationem non parit, sed parit exceptionem, Dig. 2, 14, 7, 4. ‘A nude pact creates no (civil) obligation, but creates a defence.’ Interest on a loan could only be secured by the Formal contract of Stipulatio: but a nude pact to pay interest could be secured by pignus, Dig. 13, 7, 11, 3, and could be pleaded in bar to a suit for recovering back the interest when actually paid (condictio indebiti soluti): and we have seen that exceptio, pignus, solutum non repeti, are some of the criteria which indicate the existence of naturalis obligatio, Dig. 46, 3, 5, 2.
Another important division of contracts is into unilateral and bilateral. Wherever mutual promises are proffered and accepted there are in strictness two or more obligations; but where one of the promises is thus made to depend on the other, the several obligations are cross or implicated, and therefore are commonly deemed to arise from one agreement. Where one only of the agreeing parties gives a promise, the proffered and accepted promise is called a Unilateral agreement; where each gives a promise, and the promise of one is made to depend on the promise of the other, the several proffered and accepted promises are called a Bilateral or Synallagmatic agreement. Under a unilateral agreement only one party can sue or be sued, under a bilateral agreement each party may sue or be sued in turn. The sole Unilateral agreements or contracts mentioned by Gaius are Expensilatio, Stipulatio, Mutuum. Emptio-Venditio, Locatio-Conductio, Societas, are examples of Bilateral agreements. Depositum, Commodatum, Pignus, Mandatum, are called imperfectly Bilateral agreements, because they do not necessarily and originally produce any reciprocal obligation, but only ex postfacto, i. e. in consequence of some circumstance incidental to the agreement, as a claim of depositarius to be indemnified on account of some necessary expense he had been put to in respect of the thing deposited with him. The action founded on the original and principal obligation of a semibilateral agreement, i. e. the action of the depositor, lender for use, pawnor, or person giving the mandate, is called judicium directum or actio directa: the action founded on the incidental or ex postfacto obligation, i. e. the action of the depositary, borrower for use, pawnee, agent, is called judicium contrarium or actio contraria. The Unilateral agreements above mentioned, even though, like Mutuum, institutions of Jus gentium, give rise to condictiones or actions of strict law (stricti juris actiones); bilateral and semi-bilateral agreements give rise to equitable actions (bonae fidei actiones).
The classification of contracts by Gaius does not include the Nexum, which seems to have been a form of contracting in early law. No precise information concerning its characteristics have come down to us, and hence modern writers frequently differ in their explanation of it. (See Muirhead’s Roman Law, p. 151; Roby, Roman Private Law, Bk. V. App. B; Sohm, pp. 52, 392.) Nexum is sometimes used in a general sense to include all proceedings carried out per aes et libram, while it is elsewhere distinguished from mancipation. Nexum Manilius scribit omne quod per libram et aes geritur, in quo sint mancipia. Mucius quae per aes et libram fiant ut obligentur, praeterquam mancipio detur. Hoc verius esse ipsum verbum ostendit, de quo quaeritur; nam id est, quod obligatur per libram neque suum fit, inde nexum dictum. Varro, L. L. 7, 105.—Nexum est, ut ait Gallus Aelius, quodcumque per aes et libram geritur, id quod necti dicitur, quo in genere sunt haec, testamenti factio, nexi datio, nexi liberatio, Festus.
The nexi liberatio seems to be referred to by Gaius, § 173. Est autem alia species imaginariae solutionis per aes et libram. Quod et ipsum genus certis in causis receptum est; veluti si quid eo nomine debeat quod per aes et libram gestum sit sive quid ex judicati causa debeat. Nexum and mancipium are clearly distinguished in the following well-known citation of Festus from the Twelve Tables—cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto.
From these and other passages we may gather that Nexum in a specific sense was, according to the law of the Twelve Tables, a form of obligation entered into per aes et libram.
As a form giving rise to an obligation Nexum was apparently a contract for a money loan (certa pecunia credita); not a fictitious money loan, as has sometimes been supposed, but a real one, just as mancipium was originally not a fictitious, but a real sale. Debtors who bound themselves to their creditors in this solemn way were the nexi, whose harsh treatment in early times is dwelt on by Livy; if they made default on the day of payment, they were immediately treated as judgment debtors, being without further process liable to manus injectio; i. e. to be seized by the creditor and taken into court in order that the praetor might award personal execution; in other words, deliver him as a quasi-slave to the creditor (addicere, duci jubere).
Nexum as a solemn form of contracting a loan was abolished, or at least deprived of its sanction, by the lex Poetelia, Livy, 8, 28: as a form of extinction of obligation in certain cases, Nexum continued to exist in the time of Gaius, § 173.
In the Twelve Tables the law of contract is still in a rudimentary stage. The formal obligation of Nexum is confined to money loans. Stipulation belongs to later law. No informal contract is recognized. Such contracts, as deposit, loan for use and pledge, could only be made, if at all, by the tortuous process of mancipatio cum fiducia.
The arrangement adopted by Gaius is not without significance. He begins with a Real, that is, a Formless contract, found in jus gentium; and from these Real contracts he selects Mutuum, the contract which took the place of the old formal contract of Nexum, the source of Roman contract law. He then proceeds to Formal contracts, Verbal and Literal, which appear to have been subsequent to the Twelve Tables; and concludes with the remaining and comparatively modern class of Formless contracts, namely the Consensual.
§ 90. Re contrahitur obligatio uelut mutui datione. 〈mutui autem datio〉 proprie in his [fere] rebus contingit quae pondere numero mensura constant, qualis est pecunia numerata uinum oleum frumentum aes argentum aurum. quas res aut numerando aut metiendo aut pendendo in hoc damus, ut accipientium fiant et quandoque nobis non eaedem, sed aliae eiusdem naturae reddantur. unde etiam mutuum appellatum est, quia quod ita tibi a me datum est, ex meo tuum fit.
Inst. 3, 14, pr.; Gaius in Dig. 44, 7, 1, 2.
§ 91. Is quoque qui non debitum accepit ab eo qui per errorem soluit re obligatur. nam proinde ei condici potest si paret evm dare oportere, ac si mutuum accepisset. unde quidam putant pupillum aut mulierem, cui sine tutoris auctoritate non debitum per errorem datum est, non teneri condictione, non magis quam mutui datione. sed haec species obligationis non uidetur ex contractu consistere, quia is qui soluendi animo dat magis distrahere uult negotium quam contrahere.
Inst. 3, 14, 1.
§ 90. Of real contracts, or contracts created by delivery of a thing, we have an example in loan for consumption, or loan whereby ownership of the thing lent is transferred. This relates to things which are estimated by weight, number, or measure, such as money, wine, oil, corn, bronze, silver, gold. We transfer ownership of our property in these on condition that the receiver shall transfer back to us at a future time, not the same things, but other things of the same nature: and this contract is called Mutuum, because thereby meum becomes tuum.
§ 91. The receiver of what was not owed from a person who pays in error is also under a real obligation, for he may be sued by Condictio with the formula: ‘If it be proved that he ought to convey.’ just as if he had received the property in pursuance of a loan. And, accordingly, some have held that a ward or female, if their guardian has not authorized them to receive a payment, are not liable to be sued for money paid in error any more than they are for money received as a loan. This, however, is a mistake, as the obligation in this case seems to be of a kind not arising from contract, as a payment in order to discharge a debt is intended to extinguish an obligation, not to establish one.
§ 90. The thing to be restored by the borrower in a loan for consumption (money being consumed by spending it) was not the specific thing that was borrowed, but some other thing of the same genus. Such members of a genus as are naturally capable of mutual substitution (quae vice mutua funguntur) received from modern civilians the barbarous name of res fungibiles. A more significant barbarism, if any was necessary, would have been res vicariae, from the principal word of the definition. The classical name was neither res fungibilis, nor res vicaria, but Quantitas, Dig. 44, 2, 7, pr.
§ 91. The auctoritas of the guardian was only wanted to supply the want of capacity in the ward to take care of his own interests. As Condictio indebiti, the action brought for recovering money paid by mistake, was not founded on disposition or contract, but on the fact that a defendant had been without cause enriched at the expense of the plaintiff, there seems to be no reason why it should not be brought against a ward who receives without his guardian’s sanction money to which he is not entitled, except that the ward might in the meantime have improvidently spent the money he had received. Justinian decides that the ward is not under the circumstances liable to condictio indebiti, Inst. 3, 14, 1.
The obligation arising by a contract of mutuum is only an obligation to repay the principal of the debt. The loan is regarded as gratuitous; if any interest is intended to be paid, it requires to be secured by an accompanying verbal contract, or stipulation. The repayment of the principal was enforced by the general personal action of condictio.
Connected with the contract of mutuum was the senatusconsultum Macedonianum, named, according to Theophilus, after a parricide, according to some commentators, after a money-lender. This decree passed, according to Tacitus, under Claudius (Annales, 11, 13), according to Suetonius, under Vespasian (Suet. Vesp. 11), made a loan of money to a son under power (filiusfamilias) without the consent of the father irrecoverable by action though binding naturaliter (naturalis obligatio). Neither the age nor the rank of a filiusfamilias affected his incapacity to contract a pecuniary loan. The disability of the filiusfamilias did not extend to any contract other than a pecuniary loan.
By the English law bargains made with expectant heirs and remaindermen, during the lifetime and without the knowledge of the parent, may be set aside by a court of equity on the ground of unfairness or inadequacy. See Pollock on Contracts, p. 622, 7th ed.
Besides Mutuum there are three other Real contracts, Commodatum, Depositum, Pignus; there are also the Innominate contracts, which resemble the Real, in that they are concluded by an act being executed on one side, such act consisting in their case either in the conveyance of a thing for a promise to convey something else or to perform some service in return, or in the performance of a service for a promise to convey a thing or to render a service in return; where a thing is thus conveyed in the first instance the obligation of the transferee is not in the innominate, as in the real contract, to return the same specific thing or thing of the same kind (genus), but something different. Each of these modes of contracting requires a brief notice.
Commodatum, a loan for use, is the gratuitous lending of an article to be used by the borrower. It must be gratuitous, for, if any compensation is to be paid, the transaction ceases to be a commodatum, and becomes a letting and hiring (locatio conductio). A loan for use differs from a mutuum, or loan for consumption, in that it passes no property to the borrower. Accordingly, in a loan for use the specific thing that was lent is to be returned, whereas in a loan for consumption it is only to be returned in kind. Again, in case of destruction by an inevitable accident, as fire, shipwreck, or invasion, in a mutuum the loss falls on the borrower (genus et quantitas nunquam pereunt), in a commodatum on the lender. The commentators have expressed the owner’s risk in such cases by the formula, res perit domino, ‘the loss from accidental destruction falls on the owner’; and this proposition holds good of contracts of mutuum and commodatum and most others; but in a consensual contract of sale of a specific thing (emptio venditio), as soon as the obligation is complete, before the property has passed by delivery (traditio) to the buyer, if the thing is destroyed without the fault of the vendor, the loss falls on the buyer (res perit emptori), and he can be compelled to pay the purchase-money, although the object of sale has never been in his possession, Inst. 3, 23, 3. We must not identify the borrower’s right to use the thing lent to him (commodata), which is a contractual one, with the personal servitude (jus in re) called Usus, which is created by other methods and governed by different rules. (For the law relating to the liability of commodatarius and on account of negligence, see comm. at the end of this book.)
Depositum is the delivery of a thing for custody, to be redelivered on demand, without compensation. It is properly gratuitous, for if a compensation is to be given it is a contract of hiring and letting, and not a deposit. The ownership remains in the depositor; the depositary has sometimes interdict Possession, as in the case of the Sequester, but as a rule, merely Detention, 4 § 170, comm. The identical thing that was deposited is to be returned, not an equivalent of the same kind or quality, as in mutuum. An involuntary depositor, that is, one under stress of shipwreck, fire, civil commotion, the fall of a house, can sue in penal damages for twice the value of the deposit. Sequestration is the deposit of a subject of litigation by consent of parties or order of the court in the hands of a stakeholder (sequester) to abide the result of the trial. When a depositary is bound to restore not a specific thing (idem) but its equivalent, and by a pactum adjectum pays interest for the privilege of using it in the interim; e. g. when a banker pays interest to his depositors; the contract is called Depositum irregulare, and ownership in the thing deposited, as well as possession, contrary to the general rule passes to the depositary. Dig. 16, 3, 24. The passages in the Digest relating to this show that Banking in the modern sense of the word, i. e. the payment of a small interest to depositors and receipt of a larger interest from borrowers of the deposit, was practised by Roman Mensularii, Vangerow, § 630.
Pignus, pledge, pawn, or mortgage, is the creation of a real right (jus in re aliena) in a thing, movable or immovable, to be held as a security for a debt, and to be retransferred when the debt is satisfied. But this conception of pignus was only reached by gradual steps.
There are three forms of giving real security to a creditor, corresponding to three eras in the development of Roman law, which must be separately examined.
(1) The earliest is not in the regular form of a pledge, being effected by a mancipatio or in jure cessio of property, accompanied with a fiducia, or fiduciary agreement for reconveyance, cf. 2 § 60. As a form of security, it is analogous in principle to the English common law mortgage, the ownership in the thing pledged being conveyed to the creditor on the understanding that he is to reconvey it when the debt is paid. The security which this gives to the creditor is that he can recover the thing by vindicatio from any possessor of it, and can sell it as he pleases, though he is liable to the debtor in the actio fiduciae, if he exercises his right improperly. This personal action is the only remedy which the debtor has in respect of the property which he has made over as security for his debt, as having parted with the ownership he has no actio in rem for recovery of it from third parties. But in course of time it seems to have become a common practice for the creditor to allow the debtor to keep possession of the pledge, the latter holding it of him by leave and licence (precario) and having interdict possession of it. The unsatisfactory character of this way of securing a creditor, considered from the point of view of the debtor, is obvious. Yet in a tablet found at the mouth of the Guadalquivir, which probably belongs to the first century after Christ, we see that it was still in use not long before the time when Gaius wrote (Bruns, Fontes, ed. 6, no. 110).
(2) Pignus, in the strict sense, was effected simply by delivery of possession without in jure cessio or mancipatio. The debtor continued to be owner of the thing pledged, the creditor or pledgee only acquiring interdict-possession of it. But a condition was sometimes inserted in the agreement, by which it was agreed that the thing given in security should become the property of the creditor in case of default (lex commissoria), though by later law such a condition was made void.
The effect of Pignus was to put the debtor in a much more satisfactory position than in the previous case; but on the other hand the security of the creditor was thereby rendered thus weaker, since he was deprived of his actio in rem to recover the thing from third parties, having only a possessory interdict. Nor apart from special agreement (pactum de vendendo) had he any right of sale.
(3) The law of pledge was established on a satisfactory footing, when the praetor gave the creditor or pledgee the actio quasi-Serviana in rem or hypothecaria, by which he acquired a real right in the thing (jus in re aliena), while the debtor remained owner of it; a right of sale, in case of default, being implied in the transaction. By these changes both the interests of the debtor and creditor were fully regarded. Under this system there was the further advantage, that property of any kind might be given as security to a creditor by Hypothecation, i. e. by mere agreement without delivery of possession. In this case it was simply the creation of a jus in re, imposing no Obligation on the creditor thus secured. If, however, a pignus was created by delivery of the thing pledged, the legal position of the pledgee would be of a twofold kind: (1) he would have a jus in re aliena, which he could enforce by actio quasi-Serviana in rem; (2) there would be a contractual relation between him and the debtor, they being bound to one another by the real contract of pignus, which was enforced by the actio pigneraticia directa and contraria in personam.
The action of the creditor to recover the thing pledged, called quasi-Serviana, hypothecaria, or pigneraticia, was as we have seen a real action (in rem). It was originally, as actio Serviana, only given to a farmer (colonus), whose invecta et illata were hypothecated to his landlord for rent. It was probably an actio arbitraria with a formula in factum concepta (these terms will be explained in 4 § 47, comm.) to something like the following effect: Si paret inter Aulum Agerium et L. Titium convenisse, ut ea res, qua de agitur, Aulo Agerio pignori hypothecaeve esset propter pecuniam debitam, eamque rem tunc cum conveniebat, in bonis L. Titii fuisse eamque pecuniam neque solutam neque eo nomine satisfactum esse, neque per Aulum Agerium stare quo minus solvatur, nisi ea res arbitratu tuo restituetur, quanti ea res erit, tantam pecuniam judex Numerium Negerium Aulo Agerio condemna, &c., Lenel, § 267.
Besides this actio Hypothecaria, whereby the rights of the mortgagee were definitively decided, there was an Interdictum Salvianum, 4 § 147, to enable the landlord to recover the goods of the farmer pledged to him for his rent. It is most probable that this remedy was not like the actio Serviana, which was of later origin, maintainable against third parties in possession of the goods. Its formula was probably something like the following: ‘If such and such a slave is one of the things respecting which you agreed with the plaintiff that whatever was inducted, illated, imported into such and such land, or was thereon born or produced, should be pledged to the plaintiff to secure the payment of the rent of such land; in that case I prohibit your employment of force to hinder the plaintiff from abducting the slave.’ Thus the relation of actio Hypothecaria to interdictum Salvianum would resemble that of Vindicatio to the interdict Utrubi or Uti possidetis, 4 § 148, or that of Hereditatis petitio to the interdict Quorum bonorum, 4 § 144.
Innominate or unnamed contract is an agreement not falling under any of the classes of named contract, which becomes binding by execution on the part of one of the contractors. Such contracts, which are of a miscellaneous character, are similar to the real in the principle of their formation, but differ from them in the ways we have previously pointed out. Bilateral conventions, Real or Consensual, fall into four classes: Aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias, Dig. 19, 5, 5, pr. ‘There may be a transfer of property to you on my part in consideration of your having to transfer property to me in exchange, or transfer of property on my part in consideration of your having to make some other kind of performance to me, or some other act of performance in consideration of your having to transfer something to me, or performance of some other kind than transfer in consideration of your having to make performance of some such other kind in exchange.’ Some agreements, before execution on either side, would give rise to Named consensual contracts, sale, letting, partnership, or mandate; and these would be at once enforceable by action: while those agreements unaccompanied by execution, whose nature excluded them from these appellations, would have no legal validity. Those agreements which to consensus add execution, but fail to satisfy the definitions of the Named Real contracts, are thrown into the miscellaneous class called Innominate. We have thus the following classification. Contracts are (1) formal (verbis) and (litteris) or (2) informal, and in the latter case they are either (a) consensual, i. e. one of the four contracts established by simple agreement, or (b) real (mutuum, commodatum, depositum, pignus), or (c) nameless (innominate). Agreements known to us as pacta vestita, § 135, comm. should have been added to class (a). To whatever category innominate contracts belonged, do ut des, do ut facias, facio ut des, facio ut facias, they were enforceable by a civil, as opposed to a praetorian, action, called actio in factum praescriptis verbis. Dig. 19, 5, De Praescriptis verbis et in factum actionibus.
The actio in factum praescriptis verbis was so denominated because, in the absence of a generic name for the contract, the fact begetting the obligation was detailed at length in the beginning of the formula; Actio quae praescriptis verbis rem gestam demonstrat, Cod. 2, 4, 6. Hence it is called actio in factum praescriptis verbis. But at the time when Gaius wrote and till a much later period, this term was not in use, the expression used by the classical jurists for this remedy being not actio, but agere praescriptis verbis. There was indeed no one action in such cases, but a special one was adapted to provide for supplementary cases, which required one, as they arose, where none of the common forms of action were exactly applicable (Sohm, p. 399, n. 4). The action is said to be in factum, because, as it did not belong to any regular class of action, the facts giving rise to it had to be specifically set out, we must not, however, be misled by this to think that it is a kind of action which belongs to the class of actiones in factum, as opposed to actiones in jus conceptae; the actio in factum, we are concerned with, being in jus, not in factum, concepta. This, however, is a misleading name, the formula of the action containing the word ‘oportet’ (quidquid ob eam rem illum illi dare facere oportet), that is to say, having an intentio in jus, cf. 4 §§ 45, 46. The name of this Roman action ex contractu may be illustrated by a comparison with the name of the old English form of procedure, trespass on the case, so named from the comparative particularity with which the circumstances of the plaintiff’s case are detailed in the written allegations. It is sometimes called actio civilis incerti because it is brought to recover whatever damages (quanti interest) the plaintiff had suffered by reason of the defendant’s default. It was an action belonging to the class of actiones bonae fidei. Cf. 4 §§ 18-20, comm.
Examples of Innominate contract are Exchange (permutatio), as if I have conveyed my land to you on the understanding that you are to convey your land to me in return. Sale or hire not coming under the named contracts because the price or hire money have not been definitely fixed, as if I buy and take away a thing from a shop on credit without settling the price, or hire a servant who works for me before the exact amount of his wages has been determined.
When the executed part of an innominate contract was a transfer of property, the plaintiff had alternative remedies, he might either sue the other party for the loss of the thing, which he had conveyed, by condictio causâ datâ, causâ non secutâ, i. e. by a suit to recover property conveyed for a consideration which has failed, or he might bring an action on the contract—praescriptis verbis—claiming damages for the loss arising from its breach. Dig. 19, 5, 5, 1.
It may illustrate the Roman conception of Innominate contract if we indicate the change that has supervened in this matter from the greater force that is conceded to mere agreement (nuda voluntas) in modern jurisprudence.
With the Romans the execution by one of the parties of his part of an Innominate contract was essential to its efficacy. This execution differentiated the agreement from a nudum pactum and gave it validity, but, naturally, only against the party who had failed to make the return promised. The party who had executed was not similarly bound: he had a right of abandoning the contract and recovering back what he had delivered, not merely when the counter-execution was not made at the time appointed, or had become impossible by the culpa of the other party, or had been always impossible (condictio ob causam non secutam); but when the party who had delivered simply changed his inclination (condictio ex mera poenitentia).
This was due to the exclusive character of the Roman contract system. We find on the contrary in modern Roman law, as it was in force in parts of Germany before the new civil code was enacted, pactum treated as if it had been accompanied by Stipulation, that is, as having the validity given by Form—in other words, no pacta are nuda, all are vestita—and so agreements are enforceable irrespectively of their part-execution: enforceable irrespectively of execution against both parties alike, who herein stand on precisely the same footing: that is to say, the party who has delivered what he had to deliver has no right to recover it back either ex mera poenitentia, or ob causam non secutam, but merely the power to compel the other party to a corresponding performance. Vangerow, § 599.
§ 92. Verbis obligatio fit ex interrogatione et responsione, ueluti dari spondes? spondeo: dabis? dabo: promittis? promitto: fidepromittis? fidepromitto: fideivbes? fideivbeo: facies? faciam.
Inst. 3, 15, pr.
§ 93. Sed haec quidem uerborum obligatio dari spondes? spondeo propria ciuium Romanorum est; ceterae uero iuris gentium sunt, itaque inter omnes homines siue ciues Romanos siue peregrinos ualent. et quamuis ad Graecam uocem expressae fuerint, ueluti hoc modo 〈Δώσεις Δώσω· Ὁμολογεɩ̂ς; Ὁμολογω̂· Πίστει κελεύεις; Πίστει κελεύω· Ποιήσεις; Ποιήσω〉, [etiam haec] tamen inter ciues Romanos ualent, si modo Graeci sermonis intellectum habeant. et e contraiio quamuis Latine enuntientur, tamen etiam inter peregrinos ualent, si modo Latini sermonis intellectum habeant. at illa uerborum obligatio dari spondes? spondeo adeo propria ciuium Romanorum est, ut ne quidem in Graecum sermonem per interpretationem proprie transferri possit, quamuis dicatur a Graeca uoce figurata esse.
Inst. 3, 15, 1; Theoph. 3, 15, 1.
§ 94. Vnde dicitur uno casu hoc uerbo peregrinum quoque obligari posse, ueluti si imperator noster principem alicuius peregrini populi de pace ita interroget pacem fvtvram spondes? uel ipse eodem modo interrogetur. quod nimium subtiliter dictum est, quia si quid aduersus pactionem fiat, non ex stipulatu agitur, sed iure belli res uindicatur.
§ 95. Illud dubitari potest, si quis | —|—NA.
Dig. 45, 1, 2, and 6.
§ 95 a.Sunt et aliae obligationes —|—NA
(7 uersus in C legi nequeunt) —|—NA corporal —|—|—|—NAitem | si debitor mulieris iussu eius, dum —, |NA doti dicat quod debet; alius autem obligari hoc modo | non potest. | et ideo si quis alius — com|muni iure obliga —|—NA.
Epit. 2, 9, 3. See Appendix.
(Cf. Ulp. 6, 2.
Dotem dicere potest mulier quae nuptura est, et debitor mulieris si iussu eius dicat; item parens mulieris virilis sexus per virilem sexum cognatione iunctus, velut pater avus paternus.)
§ 96. Item uno loquente —|—NA
(3 uersus in C legi nequeunt) —|—NA haec sola causa est, ex qua iureiurando contrahitur | obligatio. sane ex alia nulla causa iureiurando homines obligantur, utique cum quaeritur de iure Romanorum. nam apud peregrinos quid iuris sit, singularum ciuitatium iura requirentes aliud intellegere poterimus —.
Epit. 2, 9, 4. See Appendix.
§ 92. A verbal contract is formed by question and answer, thus: ‘Dost thou solemnly promise that a thing shall be conveyed to me?’ ‘I do solemnly promise.’ ‘Wilt thou convey?’ ‘I will convey.’ ‘Dost thou pledge thy credit?’ ‘I pledge my credit.’ ‘Dost thou bid me trust thee as guarantor?’ ‘I bid thee trust me as guarantor.’ ‘Wilt thou perform?’ ‘I will perform.’
§ 93. The formula, ‘Wilt thou solemnly promise?’ ‘I will solemnly promise,’ is only valid between Roman citizens; the others belong to gentile law, and bind all parties, whether Romans or aliens, and, if understood, bind Romans when expressed in Greek, and aliens when expressed in Latin. The formula, ‘Wilt thou solemnly promise (dare spondes)?’ is so peculiarly Roman that it cannot be expressed in Greek, though the word ‘spondes’ is said to have a Greek origin.
§ 94. According to some, there is one case in which an alien may be bound by this word, namely, when a Roman emperor in concluding a treaty thus interrogates a foreign sovereign: ‘Art thou sponsor for peace?’ and the Roman emperor is interrogated in the same way in his turn. But this is a refinement on the law, for the violation of a treaty is not redressed by an action ex stipulatu but by the law of war.
§ 95. (It may be questioned whether if the question is in the form ‘Dost thou solemnly promise?’ and the answer to it is simply, ‘I promise,’ or ‘I will give,’ any legal obligation is created.)
§ 95 a. (There are also other obligations which can be contracted without any antecedent question, as when a woman makes a solemn declaration settling dotal property, movable or immovable, on her betrothed or her husband. And not only can the woman herself be bound in this form, but also her father and her debtor, the latter having to declare that he owes the debt to her future husband as dower. It is only by these three persons that a woman can be legally bound by such a formal promise of dower without any antecedent form of question. Other persons who promise a man dower for a woman can only be made liable in the ordinary legal way, that is, by responding to a question and promising what has been put to them in the form of a stipulation.
§ 96. There is another case in which an obligation is contracted by a declaration of one of the parties without any previous interrogation, which is when a freedman takes an oath to his patron promising some payment or performance of some function or service, the obligation being created in this case not so much by the form of words as by the sanctity attaching to the oath. This is the only instance in Roman law of an obligation being contracted by means of an oath, though if we searched the particular laws of foreign communities, other instances might be found.)
§ 92. Before we proceed to examine Formal, that is to say, Verbal and Literal contracts, it is desirable to explain the difference between a formal and informal contract.
A Formal Disposition is one for which, under pain of nullification, the necessary or exclusively valid form of expression or manifestation of intention is prescribed by the law. A Formless Disposition is one where the individual is free to choose the form of expressing, or mode of manifesting, his intention.
These accessory formalities and solemnities are ancillary to the essential purpose of the transaction, being destined partly to prevent rash and inconsiderate engagements, partly to furnish evidence and proof of the agreement or principal part of the transaction.
The peculiar characteristic of Formal, that is to say, Verbal and Literal contracts, is this: evidentiary solemnities compose in these contracts an indispensable part of the title to a jus in personam. The Formless contracts, namely, the Real contracts, of which we have already treated, and the Consensual contracts, of which we shall treat hereafter, cannot, of course, be enforced in a court of law unless they are proved to have been concluded, unless, that is, evidence be given of their existence. But the contract and the evidence of the contract are distinct and independent. In Formal contracts a preappointed evidence of the essential portion of the contract, that is, of the intention of the promisor and expectation of the promisee, is made by the law a constituent accessory element of the contract or title itself. It is not perfect or complete without this evidence. If the transaction did not include certain preappointed evidentiary formalities, the Verbal or Literal contract has never been formed and does not exist.
It was the formal contract entered into by question and corresponding answer, called stipulatio, which became the general mode of contracting obligations in Roman law. The time of its introduction into Roman law cannot be ascertained with any exactness. There is no allusion to it in the fragments of the Twelve Tables, or in the references to that law, which have come down to us from Roman times, and as a binding form of contract it was probably not in existence till a somewhat later period. The earliest definite trace of it is in the Lex Aquilia 287 b. c., which contains a special provision concerning additional parties to a stipulation, called adstipulatores, § 115. Various suggestions have been made by modern writers to explain the origin of the stipulation. (See, for these and for the literature on the subject, Muirhead’s Roman Law, § 39.) The idea that the stipulation developed in some way out of nexum is now abandoned. It seems more likely that in the form spondes? spondeo, question and answer were first used for religious purposes, and subsequently adopted by law as a means of entering into a legal obligation (cf. Sohm, p. 66, n. 14). The action for enforcing a stipulation was at first confined to cases in which certa pecunia or certa res was thus promised, though afterwards it was applicable also to uncertain claims, the action being condictio, which was stricti juris. But the characteristic of the stipulation, which made it in course of time a form for creating any kind of obligation, was that the promise contained in it, though unilateral, might be conditional. A condition was not annexable to all dispositions.
It was annexable to all Testamentary dispositions; but among formal dispositions inter vivos the only one to which it could be annexed was formation of contract by Stipulation.
We have seen that conditions were excluded from Expensilatio or Literal Contract: it was their admissibility in Stipulatio that made the latter, unlike Expensilatio, a generic or universal form of contract: a contract equally applicable whatever the object that the contractors desired to secure. Primitive jurisprudence, as we have noticed, only recognized stipulations, whose object was a dare or conveyance of property; not stipulations whose object was a facere or non-facere, some other kind of performance or forbearance. But when facere or non-facere was allowed to form the condition of an obligation, whose object was a dare, and so, when the payment of a penalty could be made contingent on the performance or non-performance of a certain act, it became possible to stipulate, virtually or indirectly at least, for facere or non-facere as well as for dare. Inst. 3, 15, 7. Non solum res in stipulatum deduci possunt, sed etiam facta: ut si stipulemur fieri aliquid vel non fieri. Et in hujusmodi stipulationibus optimum erit poenam subicere, ne quantitas stipulationis in incerto sit ac necesse sit actori probare, quid ejus intersit; itaque si quis ut fiat aliquid stipuletur, ita adici poena debet: ‘si ita factum non erit, tum poenae nomine decem aureos dare spondes?’ sed si quaedam fieri, quaedam non fieri una eademque conceptione stipuletur, clausula erit hujusmodi adicienda: ‘is adversus ea factum erit sive quid ita factum non erit, tunc poenae nomine decem aureos dare spondes?’
The form of the stipulation, not being in writing or attested by witnesses, must have been often found imperfect for evidentiary purposes. Accordingly we find that it was not uncommon in the time of the classical jurists for the parties to a stipulation to draw up a written memorandum of its contents, called cautio, and in later times, under the Byzantine Emperors, there was an increasing tendency to lay stress on the cautio of the stipulation rather than on the stipulation itself, to which the eastern part of the empire may not have been well accustomed. Hence we find the law on this subject laid down by Justinian to be, that if a written memorandum embodying the terms of a stipulation is proved by the plaintiff, the parties are presumed to have actually entered into a stipulation, unless the defendant can show that he was absent on the day from the place where the stipulation is said to have been entered into, Inst. 3, 19, 12.
The principal peculiarity that results from the nature of formal contract, and so of that of the verbal and literal contracts of Roman law, which distinguishes them from informal contracts is, that informal contracts are not legally valid unless the ground on account of which the promise is made is shown; whereas verbal and literal contracts, securing by the solemnity of their formalities due deliberation on the part of the contractors, are valid in favour of the promisee apart from their object. See Appendix to this Book.
Although, however, a mere abstract promise in a stipulation apart from its object was binding, as e. g. do you promise to pay 10 aurei? I do promise,—yet in course of time, a defendant who had been induced to enter into a stipulation by fraud, or who had not received the consideration, on account of which his promise was made, was allowed to plead the exceptio doli or plea of fraud, an equitable defence, probably introduced by Aquilius Gallus (cf. Moyle’s Inst. App. 8, Bk. 3). By this means the circumstances which gave rise to the promise would be brought into consideration in the action. The practice of giving a written acknowledgment or cautio for loans of money grew common, and, as has been mentioned, great evidentiary importance came to be attached to such written documents, especially in the eastern part of the empire.
If, instead of generally alleging fraud (Si in ea re nihil dolo malo Auli Agerii factum est neque fit), the plea of the defendant who was sued on such an acknowledgment alleged the particular fact of his never having received the alleged loan (exceptio in factum composita), it was called, in later imperial times, exceptio non numeratae pecuniae. Cod. 4, 30, 1, 3. Compare 4 § 116 Si stipulatus sim a te pecuniam, tanquam credendi causa numeratus, nec numeraverim . . . placet per exceptionem doli mali te defendi jubere with Inst. 4, 13, 2 Si quis, quasi credendi causa, pecuniam stipulatus fuerit, neque numeraverit . . . placet per exceptionem pecuniae non numeratae te defendi jubere.
An important peculiarity of the exceptio non numeratae pecuniae was that the burden of proof was not, as in other exceptions, on the defendant, but on the plaintiff, who would have to prove in the first place the payment of the money to the defendant for which he was suing. This plea might therefore have the practical effect of transforming a loan of money due on a formal contract into a real contract, but this was confined to contracts contemplating a loan of money. But by a constitution of the Emperor Diocletian (Hermogen. Cod. 1; Cod. Theod. 2, 27, 1; Cod. Just. 4, 30), if a written acknowledgment of a debt was thus sued on, the exceptio non numeratae pecuniae could only be pleaded within five years from the date of the contract, which delay was reduced to two years by Justinian, after which interval the cautio was accepted, if we are to follow the statement of the law made in the Institutes, as incontrovertible, and not merely presumptive, proof that the money had been advanced. After this interval, accordingly, Justinian regards the written document as a formal contract and not simply as evidentiary.
If no written document accompanied a promise by stipulation to repay a debt, no length of time barred the defendant from pleading the exceptio doli. If the plaintiff, instead of suing on the Stipulatio, sued simply on a loan by the informal real contract of mutuum, the defence of the defendant, though substantially the same, viz. that he had never received the money, being a mere contradiction of the intentio, would not appear in the formula in the shape of an exceptio. In this case the burden of proof that the money had been actually lent would naturally fall on the plaintiff. (For the circumstances under which a defence took the form of exceptio see 4 § 115.)
It may assist us in understanding the distinction of Formless and Formal contracts, that is Verbal and Literal, if, before we quit this subject, we cast a hasty glance at the corresponding institutions of English law.
In the eye of the English law, contracts are either Simple (parol), that is, enforceable only on proof of consideration, or Special, that is, binding by the solemnity of their form. Special contracts are either contracts under Seal or contracts of Record. A common species of Deed, or written contract under seal, is the Bond or Obligation, which, like Stipulatio, is used to secure the payment of money or performance of any other act, and, like Stipulatio, either binds the debtor alone or the debtor and sureties. It consists of an obligatory part or penal clause binding the obligor to pay a sum of money, and a condition added, that if he does some particular act the obligation shall be void, but else shall remain in full force.
Contracts of Record are either recognizances or Judgment debts.
A Recognizance is an acknowledgment before a court or magistrate that a man owes the King or a private plaintiff (as the case may be) a certain sum of money, with a condition avoiding the obligation to pay if he shall do some particular act, as, if he shall appear at the assizes, keep the peace, pay a certain debt, or the like. A Recognizance resembles Stipulation in its form, being entered into by oral interrogation and answer, but differs in that it can only be taken before a court or magistrate duly authorized, whereas stipulatio was transacted between private parties.
A Judgment debt, or debt due by the judgment of a court of record, is sometimes the result of a judgment in an adverse suit, but sometimes it is merely a form of written contract, and may be entered into in various ways. A fictitious action is brought, and the party to be bound either makes no reply, or fails to instruct his attorney, or confesses the action and suffers judgment to be at once entered up; or the party to be bound consents to a judge’s order authorizing the plaintiff to enter up judgment and issue execution against him, either at once and unconditionally, or on a future day conditionally on non-payment of whatever amount may be agreed upon; or the party to be bound gives a warrant of attorney, that is, authority to an attorney to confess an action of debt or suffer judgment to go by default, the warrant being accompanied by a defeasance declaring it to be merely a security for payment of a certain sum and interest, and providing that no execution shall issue unless default in the payment shall have been made.
The conjunction of a penal clause and a condition avoiding it is common to the judgment debt, recognisance, bond, and stipulatio poenae nomine. The Roman Nexum, as we have stated, had apparently the effect of a Judgment debt; being a transaction per aes et libram it could not itself be conditional.
§ 93. Why was Sponsio binding on Romans and not on strangers? Possibly because originally it was an oath or adjuration of the tutelary gods of Rome, who would not be an object of reverence to a stranger.
§ 94. The obligation of an independent sovereign state to another independent sovereign state does not exactly resemble the obligation of one subject to another subject of the same sovereign or political superior. If a contract between two subjects is broken, it is enforced by the power of the common sovereign. But if a treaty between two sovereigns is violated, there is, by hypothesis, no common superior by whom it may be enforced. The treaties of sovereign states give rise to moral obligations similar to those of individuals. They may be binding in the forum of conscience or of heaven, but, if these are disregarded, are not enforced by any earthly tribunal. The moral obligation is not secured by any strictly legal sanction; and the sovereign whose treaty rights are violated can obtain no redress except from the force of international opinion and his own power of inflicting evil on the violator.
Or we may compare the relation of sovereign states to the relation of individuals before the complete establishment of political society. There is then sufficient intercourse to form a public opinion and certain conceptions of rights and wrongs; but not sufficient organization to dispense with the necessity of self-vindication or self-defence. In such a state the redress of the individual for the harms he suffered was by feud or private war. That such a state once existed we know from the early history of our ancestors and their Teutonic kinsmen. So the redress of sovereigns is war or public feud. In the controversies of individuals the system of private war was abolished in this country by the proclamation of ‘the king’s peace,’ renewed at every coronation—the symbol of the consolidation of central authority. For the controversies of peoples no such abrogation of warlike process seems possible.
Jus in the expression jus belli may perhaps signify not so much right or law in the ordinary sense as sanction, or executive power, or means of compulsion. That this was one of the many meanings of the word appears from Ovid, who uses the following terms to express a want of self-control: Nam desunt vires ad me mihi jusque regendum. Amores, 2, 4.
The necessity of employing any consecrated terms in a stipulation was abrogated by a constitution of Leo, dated the calends of January, a. d. 469. Omnes stipulationes, etiamsi non sollemnibus vel directis, sed quibuscunque verbis pro consensu contrahentium compositae sint, legibus cognitae suam habeant firmitatem, Cod. 8, 37, 10. ‘Stipulations, though not in solemn formulas or direct terms, in whatever words the agreement of the parties is expressed, if otherwise legal, shall have binding force.’
Dotis dictio is not a contract, being simply a solemn binding promise of dos made by a woman, who is betrothed or married, or by some person on her behalf, who is under an obligation to provide her with dos. It is distinguished from dotis promissio, a promise by stipulation to give dos, which any one might undertake. In later law dotis dictio was obsolete, but by a constitution of the Emperor Theodosius II any third person was made capable of binding himself by a simple promise of dower without a stipulation, and this law was adopted by the Emperor Justinian. 1 Cod. 5, 11, 6.
Jurata promissio liberti was the sworn promise of a freedman, immediately after his manumission, to render certain services (operae) to his patron. It was usual to bind the conscience of the slave by a similar promise before manumission; but such a promise had no legal operation. The right of a patron to the operae of his freedman was put an end to by the capitis diminutio of either patron or freedman, § 83, patronatus being assimilated to agnatio.
§ 97. Si id quod dari stipulamur tale sit, ut dari non possit, inutilis est stipulatio, uelut si quis hominem liberum quem seruum esse credebat, aut mortuum quem uiuum esse credebat, aut locum sacrum uel religiosum quem putabat humani iuris esse, dari 〈stipuletur.
Inst. 3, 19, 1.
§ 97 a.Item si quis rem quae in rerum natura esse non potest, uelut hippocentaurum,〉 stipuletur, aeque inutilis est stipulatio.
Inst. l. c.
§ 98. Item si quis sub ea condicione stipuletur quae existere non potest, ueluti si digito caelum tetigerit, inutilis est stipulatio. sed legatum sub inpossibili condicione relictum nostri praeceptores proinde deberi putant, ac si sine condicione relictum esset; diuersae scholae auctores nihilo minus legatum inutile existimant quam stipulationem. et sane uix idonea diuersitatis ratio reddi potest.
Inst. 3, 19, 11.
§ 99. Praeterea inutilis est stipulatio, si quis ignorans rem suam esse dari sibi eam stipuletur; quippe quod alicuius est, id ei dari non potest.
§ 100. Denique inutilis est talis stipulatio, si quis ita dari stipuletur post mortem meam dari spondes; uel ita 〈post mortem tvam dari spondes?;ualet autem, si quis ita dari stipuletur cvm moriar dari spondes? uel ita〉 cvm morieris dari spondes? id est ut in nouissimum uitae tempus stipulatoris aut promissoris obligatio conferatur. nam inelegans esse uisum est ab heredis persona incipere obligationem. rursum ita stipulari non possumus pridie qvam moriar, aut pridie qvam morieris dari spondes? quia non potest aliter intellegi ‘pridie quam aliquis morietur,’ quam si mors secuta sit; rursus morte secuta in praeteritum reducitur stipulatio et quodammodo talis est heredi meo dari spondes? quae sane inutilis est.
Inst. 3, 19, 13.
§ 101. Quaecumque de morte diximus, eadem et de capitis deminutione dicta intellegemus.
§ 102. Adhuc inutilis est stipulatio, si quis ad id quod interrogatus erit, non responderit, ueluti si sestertia x a te dari stipuler et tu sestertia v promittas, aut si ego pure stipuler, tu sub condicione promittas.
Inst. 3, 19, 5.
§ 103. Praeterea inutilis est stipulatio, si ei dari stipulemur, cuius iuri subiecti non sumus. unde illud quaesitum est, si quis sibi et ei cuius iuri subiectus non est dari stipuletur, in quantum ualeat stipulatio. nostri praeceptores putant in uniuersum ualere et proinde ei soli qui stipulatus sit solidum deberi, atque si extranei nomen non adiecisset. sed diuersae scholae auctores dimidium ei deberi existimant, pro altera uero parte inutilem esse stipulationem.
Inst. 3, 19, 4.
103 a. Alia causa est |—NAdari spondes? | —NA solidum deberi et me | solum — etiam Titi|o —NA.
§ 104.Praeterea inutilis est stipulatio, si ab e|o stipuler qui iuri meo subiectus est, item si is a me stipuletur. 〈sed〉 seruus quidem et qui in mancipio est et filia familias et quae in manu est non solum ipsi, cuius iuri subiecti subiectaeue sunt, obligari non possunt, sed ne alii quidem ulli.
Inst. 3, 19, 6.
§ 105. Mutum neque stipulari neque promittere posse palam est. idem etiam in surdo receptum est; quia et is qui stipulatur uerba promittentis, et qui promittit uerba stipulantis exaudire debet.
Inst. 3, 19, 7.
§ 106. Furiosus nullum negotium gerere potest, quia non intellegit quid agat.
Inst. 3, 19, 8.
§ 107. Pupillus omne negotium recte gerit, ut tamen, sicubi tutoris auctoritas necessaria sit, adhibeatur 〈tutor〉, ueluti si ipse obligetur; nam alium sibi obligare etiam sine tutoris auctoritate potest.
Inst. 3, 19, 9.
§ 108. Idem iuris est in feminis quae in tutela sunt.
§ 109. Sed quod diximus de pupillo, utique de eo uerum est qui iam aliquem intellectum habet. nam infans et qui infanti proximus est non multum a furioso differt, quia huius aetatis pupilli nullum intellectum habent; sed in his pupillis propter utilitatem benignior iuris interpretatio facta est.
Inst. 3, 19, 10.
§ 97. If we stipulate that something is to be conveyed to us which cannot be, the stipulation is void; for instance, if a man stipulates for the conveyance of a freeman whom he supposes to be a slave, or of a dead slave whom he supposes to be alive, or of ground devoted to the celestial or infernal gods which he supposes to be subject to human law.
§ 97 a. Or again if a man stipulates for a thing incapable of existing, such as a hippocentaur, the stipulation is void.
§ 98. An impossible condition, that the promisee, for instance, should touch the sky, makes the stipulation void, although a legacy with an impossible condition, according to the authorities of my school, has the same effect as if no condition were annexed. According to the other school it is as null and void as if it were a stipulation, and in truth no satisfactory reason can be alleged for making a distinction.
§ 99. So when a person stipulates by mistake that his own property shall be conveyed to himself, the stipulation is null and void, for what already belongs to a man, cannot be conveyed to him.
§ 100. A stipulation to convey after the death of the promisee or promisor is invalid, but a stipulation to convey at the death, that is, at the last moment of the life of the promisee or promisor, is valid. For it has been held anomalous to make the heir of either of the contracting parties the first subject of the obligation. Again, a stipulation to convey on the day before the death of the promisee or promisor is invalid, for the day before the death cannot be ascertained till after death, and after death the stipulation has a retrospective effect, and amounts to a promise to convey to the promisee’s heir, which is void.
§ 101. What is said of death must also be understood of capitis deminutio.
§ 102. Another cause of nullity is the want of correspondence between the question and answer; if I stipulate, for instance, for ten sestertia and you promise five, or if you meet my absolute stipulation by a conditional promise.
§ 103. No valid stipulation can be made to convey a thing to a third person to whose power the stipulator is not subject, whence the question has been mooted to what extent a stipulation in favour of the stipulator and such a stranger to the contract is valid. My school hold that it is valid for the whole amount stipulated, and that the stipulator is entitled to the whole, just as if the stranger had not been mentioned. The other school hold that he is only entitled to one moiety, and that the stipulation is of no effect as to the other.
§ 103 a. It is a different case if you promise to convey something to me or Titius, for then the whole is due to me, and I alone can sue on the stipulation, though the debt may be discharged by payment to Titius.
§ 104. No valid stipulation can be made between a person under power and the person to whom he is subject. In fact a slave, a person in domestic bondage (mancipium), a daughter of the family and a wife subjected to the hand of a husband, can incur an obligation neither to the person in whose power or mancipium they are, nor to any other person.
§ 105. The dumb cannot stipulate or promise, nor can the deaf, for the promisee in a stipulation must hear the answer, and the promisor must hear the question.
§ 106. A lunatic cannot enter into any transaction because he does not understand what he is doing.
§ 107. A ward can enter into any transaction provided that he has his guardian’s sanction when necessary, as it is for his incurring an obligation for himself, although not for his imposing an obligation on another.
§ 108. The same rule applies to women who are wards.
§ 109. But what we have said about a pupil is of course only true of one who has some understanding: for infants and those who are bordering on infancy do not differ much from insane persons, not being capable of judging for themselves; nevertheless, when they will benefit by the transaction, a more accommodating interpretation is put on the law.
Among the objects that could not be secured by stipulation, and still less by any Formless contract, are Dispositions under the code of Family law (the laws governing domestic relations) or the code of Succession. E. g. no promise of marriage (sponsalia) was legally binding—a striking contrast to the rule of English law. Nor do we hear of any binding agreement to a future Emancipation, Adoption, or Arrogation; or for the principal acts relating to the law of Succession, to the execution of a Will or to the aditio of an inheritance. In all these solemn Dispositions the Roman legislator deemed it expedient that the disposer should have an entire freedom of choice at the moment of making the Disposition.
§ 98. This seems an appropriate place for the following remarks on the general nature of conditions. A Condition is an element of Title; it is a certain contingent occurrence or non-occurrence, performance or non-performance, by arbitrary appointment conferring on a certain person a certain right, or imposing on him a certain duty. It may be defined as the middle term (B) of a syllogism of which the minor term (C) represents a person, and the major term (A) a right or duty, and of which both the premisses are contingent. It is the last feature that we shall first proceed to consider.
The major premiss must be contingent; it must be an arbitrary determination that makes the right or duty (A) depend on the given title (B); the nexus between the middle and major terms must be solely the will of the testator or contractors, not the will of the legislator; the title must not be in its own nature the Necessary presupposition of the right. E. g. in the following cases: the institution of a person as heir, if he survive the testator, if he accept the inheritance; the bequest of a legacy, if the heir accept the inheritance; the promise of a dower, if the marriage is celebrated; the seeming condition is required by the law, and its expression is superfluous: such an event, therefore, is not a genuine condition. Again, the nexus between the minor and middle terms may be either the will of the person entitled (conditio potestativa), Cod. 6, 51, 7, or chance (conditio casualis); but one way or other the minor premiss must be contingent; the fulfilment of the condition must be neither Necessary nor Impossible: it must be a future and uncertain contingency whether the title (B) shall be realized or fulfilled in respect of a given person (C). The condition, accordingly, must not be a past or present event, e. g. if Titius was consul last year, if Titius is now consul; such a fact is now certain and Necessary, and any disposition contingent thereon is really unconditional.
The effect of an Impossible condition is different in Contracts and Testamentary dispositions; it invalidates contract; whereas in a testament it is deemed unwritten (pro non scripto habetur), and the disposition is regarded as unconditional. This was the rule that finally prevailed, Dig. 35, 1, 3. ‘It has been finally decided that impossible conditions to testamentary dispositions are mere surplusage.’ This was the doctrine of the Sabinians, and was confirmed by Justinian, Inst. 2, 14, 10. Illegal and immoral conditions followed the same rule as impossible conditions. The question why Contracts and Wills were governed by different rules, which Gaius admits to be obscure, may receive some light from the following considerations. Testamentary dispositions in their nature are acts of liberality on the part of the testator. Even when he employs them as inducements to an illegal or immoral act, it is not quite certain that the refusal to perform the act would have caused him to deprive the person to whom the bequest is given of his liberality. At all events, this person is himself innocent of unlawful intention, and the same cannot be said of the contractor who is guilty of an agreement to violate the law. Accordingly, the law aids the one but not the other; and the rule, once established for immoral conditions, was extended to impossible conditions.
On this point the French code agrees with the Roman law. In the Austrian code the Proculian doctrine is followed: i. e. testamentary dispositions as well as contracts are invalidated by immoral or impossible conditions. The Prussian code, till it was superseded by the German civil code, followed a middle course: impossible conditions invalidated a testamentary disposition; immoral conditions were deemed unwritten and the disposition construed as unconditional. The German civil code does not lay down any special rules as to the effect of impossible or immoral conditions attached to testamentary dispositions, treating testamentary dispositions in the same way in this respect as other dispositions. A disposition to which an immoral or unlawful disposition is attached is void, whether it be a condition precedent or subsequent. A disposition to which an impossible condition precedent is attached is void: a disposition to which an impossible condition subsequent is attached is looked upon as if no condition were attached to it.
A Condition was not annexable to all dispositions. It was annexable to all Testamentary dispositions: but among formal dispositions inter vivos the only ones to which it could be annexed were Stipulations. A Condition could not be annexed to an In jure cessio or surrender before the magistrate: Nulla legis actio prodita est de futuro, Frag. Vat. 49. Nor to Mancipatio, nor to Acceptilatio, nor to Expensilatio (Literal Obligation), nor to Cognitoris datio. Sub conditione cognitor non recte datur, non magis quam mancipatur, aut acceptum vel expensum fertur, Frag. Vat. 329. Nor could it be annexed to magisterial Tutoris datio: Sub conditione a praesidibus provinciarum non posse dari tutorem placet, et si datus sit nullius esse momenti dationem, Dig. 26, 1, 6, 1: nor to Tutoris auctoritas, Dig. 26, 8, 8: nor to hereditatis aditio, nor to servi optio: Actus legitimi qui non recipiunt diem vel conditionem, veluti mancipatio, acceptilatio, hereditatis aditio, servi optio, datio tutoris, in totum vitiantur per temporis vel conditionis adjectionem, Dig. 50, 17, 77.
Later jurisprudence admitted the annexation of conditions to the alienation of property by means of Tradition. Conditions are Suspensive or Resolutive. Tradition coupled with a Suspensive condition operates an immediate transfer of possession and a future transfer of ownership contingent on, and contemporaneous with, the fulfilment of the condition. Tradition, coupled with a Resolutory condition, operates two transfers of ownership: an immediate transfer of ownership and a subsequent retransfer of ownership, contingent on, and contemporaneous with, the fulfilment of the condition. The retransfer of ownership follows without any retradition or reconveyance by the interim proprietor; and the remedy of the original proprietor is not condictio, implying the necessity of reconveyance, but vindicatio, implying that he is already reinvested with ownership. The justa causa or disposition which accompanies the tradition and determines the transfer of ownership (2 § 20) also limits the duration of the ownership so transferred. Such at least is the doctrine of the majority of jurists: others hold that the fulfilment of the resolutive condition only imposes on the transferree a personal obligation of reconveyance.
Conditions annexed to contracts have the following difference from conditions annexed to testamentary dispositions and dispositions translative of dominion. Conditions annexed to contract are retroactive: the obligation determined by their fulfilment relates backward and dates from the date of the contract. Conditions annexed to legacy or to alienation are not retroactive: the obligation or ownership thereby conferred only dates from the fulfilment of the condition.
§§ 100-103. As to the rights conferred or obligations imposed by a contract on third persons not parties to the contract Paulus lays down the following principle: Quaecunque gerimus, cum ex nostro contractu originem trahunt, nisi ex nostra persona obligationis initium sumant, inanem actum nostrum efficiunt: et ideo neque stipulari neque emere vendere contrahere, ut alter suo nomine recte agat, possumus, Dig. 44, 7, 11, i. e. in every contract the right created by the contract must primarily vest, if the contract is to be valid, in the promisee himself; and the obligation in the promisor himself, for Roman law did not, it must be remembered, admit the principle of contractual agency. This rule is evidently not violated if the promisee associates to himself his heir, i. e. contracts for some right to himself and heir: Suae personae adjungere quis heredis personam potest, Dig. 45, 1, 38, 14: but it is violated if the promisee contracts for some right to vest exclusively in his heir, or, as expressed in this paragraph, for some performance post mortem suam. Such contracts accordingly were void, whether they belonged to jus civile or the jus gentium, § 158. This led to the introduction of an Adstipulator when a person wished to stipulate something exclusively for the benefit of his heir, § 117. When Justinian abrogated the rule and ordained that an act could be contracted to be performed either before or after the death of either of the contractors, Cod. 4, 11, 1, the Adstipulator became unnecessary.
The rule of Paulus would make a promise of payment to the promisee and a stranger, § 103, void as to the latter, so that the promisee would only take a moiety, the law being thus stated in the corresponding passage of the Institutes, Inst. 3, 19, 4. But in a formless contract of sale the Sabinian doctrine still prevailed. Dig. 18, 1, 64.
The same rule applied to the passive obligation a contract imposed: the debtor created by a contract could not be in the first instance the heir of the promisor, § 158. One intelligible motive for prohibiting obligations from taking effect on the death of the promisor would be to prevent evasions of the testamentary laws restricting the powers of testation. A testator who wished to leave a legacy to a person who could not take under a will from want either of Capacitas or of passive Testamentifactio, or a legacy beyond the amount permitted by the lex Falcidia or some other law, would enter into a Stipulation, binding his heir to pay a certain sum after the death of the promisor The promisee then could recover this sum not as legatee but as creditor under the stipulation. That such evasions were in fact attempted appears from Dig. 22, 3, 27. But this opening of a door to fraudulent evasions is not what Gaius, § 100, intends to express by ‘Inelegance,’ which means something not in accordance or in harmony with legal principle, the principle in this case being that a contract is confined in its operation to the parties to it, and that the heir can only be entitled to the rights and liable to the obligations of the deceased by way of succession. Justinian, however, abolished the distinctions recorded in this paragraph, and allowed the stipulation of an act to be performed either for the heir of the promisee, or by the heir of the promisor, Inst. 3, 19, 13. (§ 102. According to Dig 45, 1, 1, 4 and 83, 3 the stipulation in this case is not void, but good for the smaller amount. The Institutes of Justinian (3, 19, 5), on the other hand, adopt the view of the law taken by Gaius, perhaps inadvertently.)
A slave or filiusfamilias who stipulated a payment to himself acquired a right for the master or paterfamilias. Except in these relations, it was the rule that a man could not stipulate for a third person. Payment, however, to a third party might be stipulated for, so as to entitle the third party to receive it, Inst. 3, 19, 4, and such payment might be secured by a penal clause, stipulating, in default of performance, payment of a penal sum to the promisee, Inst. l. c. 19.
The rule of the Civil law that a Formal contract by Stipulatio could only be concluded between principals—between persons covenanting in their own names, was an impediment in the way of commerce which was met, as we have already stated, by a double use of a Consensual contract, which will presently be examined, the contract of Agency (mandatum). An Agent or mandatary stipulated in his own name with a third person, and then assigned his right of action to his principal; that is, gave his principal a mandate to sue in his name, but on his own account (in rem suam), 2 § 38: the principal then sued and recovered on the stipulation as assignee of the action, that is, as mandatary of his mandatary. In the latest period the actual mandate of the action was unnecessary if an intention to assign was shown: the praetor allowing the principal in such cases to sue in his own name by an actio Utilis, i. e. by a formula perhaps containing some kind of Fiction, Dig. 2, 14, 16 pr, Cod. 4, 10, 1, cf. Sohm, p. 443, n. 2. Nor in respect of Formless contracts, or contracts governed by Jus Gentium, was the principle of contractual Agency more completely recognized, as has sometimes been supposed. But if an Agent merely acted as emissary (nuncius) and instrument (minister) of his principal, that is, communicated the intention of an absent principal, the principal was himself a party to the obligation and acquired an immediate right against the other contractor and incurred a direct obligation to him: he could sue him or be sued by him in an actio Directa. See § 162, comm.
If it was desired to give a third person the right of suing on the contract, it was necessary that the contractor should contract as principal, and then assign his right of action to the third party, but the latter was subject to the same defences, as could have been used against the assignor, who was the contracting party. If he neglected the precaution of making such assignment it followed that the third party could not recover on such contract. Paulus, Dig. 44, 7, 11, lays down this principle which we have already, § 100, noticed: ‘Every disposition in which a person contracts as principal but attempts to entitle a third person to sue as principal (i. e. attempts to invest a third person with the rights of an immediate creditor) is invalid: and neither by formal contract of stipulation, nor by formless contract of purchase and sale, nor by any other contract in which I am principal can I invest a third person with a right to sue in his own name.’ But by binding the promisor to pay a penalty to the stipulator, if something was not rendered to the third party, the object of the parties might be secured. Cf. Inst. 3, 19, 19. Alteri stipulari, ut supra dictum est, nemo potest: inventae sunt enim hujusmodi obligationes ad hoc, ut unusquisque adquirat quod sua interest; ceterum si alii detur, nihil interest stipulatoris. Plane si quis velit hoc facere, poenam stipulari conveniet, ut, nisi ita factum sit, ut comprehensum esset, committetur poenae stipulatio etiam ei cujus nihil interest.
It is to be remembered too that the want of contractual agency was to a great extent supplied by the rule that contractual rights acquired by slaves or filiifamilias were acquired for their superior. We have already mentioned, § 100, that in Justinian’s legislation a contractor could contract for a payment to or by a third person, when that person was his own heir.
§§ 105, 106. For the same reasons as those given in the text, neither deaf nor dumb persons could make, or be witnesses to, a mancipatory will. Persons thus physically incapable, as well as lunatics, might be represented for some purposes by curators. The contract of a lunatic, it is to be noticed, is not voidable, as in English law, but void, ‘quia non intellegit quid agat.’
§ 109. The age of puberty, as we have seen, came to be fixed at 14 for males, 12 for females. Before this period the child was called impubes: but the capacity of the impubes varied with his age. Up to the age of 7 he was infans; in the interval between 7 and 14 he was described either as infantiae proximus or as pubertati proximus. According to some commentators the interval was equally divided between these appellations, so that from 7 to 10½ a boy was infantiae proximus, and from 10½ to 14 pubertati proximus. According to Savigny these names only covered the space of a year measured from each limit, so that from 7 to 8 a child was infanti proximus, from 13 to 14 puberi proximus, and from 8 to 13 without any distinctive appellation. Cf. 1, 142, comm.
§ 110. Possumus tamen ad id quod stipulamur alium adhibere, qui idem stipuletur; quem uulgo adstipulatorem uocamus.
§ 111.Et huic proinde actio conpetit proindeque ei recte soluitur ac nobis; sed quidquid consecutus erit, mandati iudicio nobis restituere cogetur.
§ 112. Ceterum potest etiam aliis uerbis uti adstipulator, quam quibus nos usi sumus. itaque si uerbi gratia ego ita stipulatus sim dari spondes?, ille sic adstipulari potest idem fide tva promittis? uel idem fideivbes? uel contra.
§ 113. Item minus adstipulari potest. plus non potest. itaque si ego sestertia x stipulatus sim, ille sestertia v stipulari potest; contra uero plus non potest. item si ego pure stipulatus sim, ille sub condicione stipulari potest; contra uero non potest. non solum autem in quantitate, sed etiam in tempore minus et plus intellegitur; plus est enim statim aliquid dare, minus est post tempus dare.
§ 114. In hoc autem iure quaedam singulari iure obseruantur. nam adstipulatoris heres non habet actionem. item seruus adstipulando nihil agit, quamuis ex ceteris omnibus causis stipulatione domino adquirat. idem de eo qui in mancipio est magis placuit; nam et is serui loco est. is autem qui in potestate patris est agit aliquid, sed parenti non adquirit, quamuis ex omnibus ceteris causis stipulando ei adquirat. ac ne ipsi quidem aliter actio conpetit, quam si sine capitis deminutione exierit de potestate parentis, ueluti morte eius aut quod ipse flamen Dialis inauguratus est. eadem de filia familias et quae in manu est dicta intellegemus.
§ 115. Pro eo quoque qui promittit solent alii obligari; quorum alios sponsores, alios fidepromissores, alios fideiussores appellamus.
Inst. 3. 20 pr.
§ 116. Sponsor ita interrogatur idem dari spondes? fidepromissor 〈ita〉 idem fidepromittis? fideiussor ita idem fide tva esse ivbes? uidebimus [de his] autem, quo nomine possint proprie appellari, qui ita interrogantur idem dabis? idem promittis? idem facies?
§ 117. Sponsores quidem et fidepromissores et fideiussores saepe solemus accipere, dum curamus, ut diligentius nobis cautum sit; adstipulatorem uero fere tunc solum adhibemus, cum ita stipulamur, ut aliquid post mortem nostram detur. 〈—〉 stipulando nihil agimus, adhibetur adstipulator, ut is post mortem nostram agat; qui si quid fuerit consecutus, de restituendo eo mandati iudicio heredi [meo] tenetur.
§ 118. Sponsoris uero et fidepromissoris similis condicio 〈est〉, fideiussoris ualde dissimilis.
§ 119. Nam illi quidem nullis obligationibus accedere possunt nisi uerborum, (quamuis interdum ipse qui promiserit non fuerit obligatus, uelut si mulier aut pupillus sine tutoris auctoritate aut quilibet post mortem suam dari promiserit. at illud quaeritur, si seruus aut peregrinus spoponderit, an pro eo sponsor aut fidepromissor obligetur).
Inst. 3, 20, 1.
§ 119 a. Fideiussor uero omnibus obligationibus, id est siue re siue uerbis siue litteris siue consensu contractae fuerint obligationes, adici potest. ac ne illud quidem interest, utrum ciuilis an naturalis obligatio sit cui adiciatur; adeo quidem, ut pro seruo quoque obligetur, siue extraneus sit qui a seruo fideiussorem accipiat, siue ipse dominus in id quod sibi debeatur.
§ 120. Praeterea sponsoris et fidepromissoris heres non tenetur, nisi si de peregrino fidepromissore quaeramus, et alio iure ciuitas eius utatur. fideiussoris autem etiam heres tenetur.
Inst. 3, 20, 2.
§ 121. Item sponsor et fidepromissor lege Furia biennio liberantur, et quotquot erunt numero eo tempore, quo pecunia peti potest, in tot partes diducitur inter eos obligatio et singuli 〈in〉 uiriles partes obligantur. fideiussores uero perpetuo tenentur, et quotquot erunt numero, singuli in solidum obligantur. itaque liberum est creditori a quo uelit solidum petere. sed nunc ex epistula diui Hadriani conpellitur creditor a singulis qui modo soluendo sint partes petere. eo igitur distat haec epistula a lege Furia, quod si quis ex sponsoribus aut fidepromissoribus soluendo non sit, hoc onus ad 〈ceteros non pertinet; sed ex fideiussoribus etsi unus tantum soluendo sit, ad hunc onus〉 ceterorum quoque pertinet.
Inst. 3, 20, 4.
§ 121 a. Sed cum lex Furia tantum in Italia locum habeat, euenit ut in ceteris prouinciis sponsores quoque et fidepromissores proinde ac fideiussores perpetuo teneantur et singuli in solidum obligentur, nisi ex epistula diui Hadriani hi quoque adiuuentur in parte.
§ 122. Praeterea inter sponsores et fidepromissores lex Appuleia quandam societatem introduxit. nam si quis horum plus sua portione soluerit, de eo quod amplius dederit aduersus ceteros actiones constituit. quae lex ante legem Furiam lata est, quo tempore in solidum obligabantur. unde quaeritur, an post legem Furiam adhuc legis Appuleiae beneficium supersit. et utique extra Italiam superest. nam lex quidem Furia tantum in Italia ualet, Appuleia uero etiam in ceteris prouinciis. sed an etiam 〈in〉 Italia beneficium legis Appuleiae supersit, ualde quaeritur. ad fideiussores autem lex Appuleia non pertinet. itaque si creditor ab uno totum consecutus fuerit, huius solius detrimentum erit, scilicet si is pro quo fideiussit soluendo non sit. sed ut ex supra dictis apparet, is a quo creditor totum petit poterit ex epistula diui Hadriani desiderare, ut pro parte in se detur actio.
Inst 3, 20, 4.
§ 123. Praeterea lege Cicereia cautum est, ut is, qui sponsores aut fidepromissores accipiat, praedicat palam et declaret, et de qua re satis accipiat et quot sponsores aut fidepromissores in eam obligationem accepturus sit; et nisi praedixerit, permittitur sponsoribus et fidepromissoribus intra diem xxx praeiudicium postulare, quo quaeratur, an ex ea lege praedictum sit; et si iudicatum fuerit praedictum non esse, liberantur. qua lege fideiussorum mentio nulla fit. sed in usu est, etiam si fideiussores accipiamus, praedicere.
§ 124. Sed beneficium legis Corneliae omnibus commune est. qua lege idem pro eodem apud eundem eodem anno uetatur in ampliorem summam obligari creditae pecuniae quam in xx milia. et quamuis sponsores uel fidepromissores in amplam pecuniam, ueluti si sestertium c milium 〈se obligauerint, tamen dumtaxat xx tenentur〉. pecuniam autem creditam dicimus non solum eam, quam credendi causa damus, sed omnem, quam tum cum contrahitur obligatio certum est debitum iri, id est 〈quae〉 sine ulla condicione deducitur in obligationem. itaque et ea pecunia, quam in diem certum dari stipulamur, eodem numero est, quia certum est eam debitum iri, licet post tempus petatur. appellatione autem pecuniae omnes res in ea lege significantur. itaque si uinum uel frumentum aut si fundum uel hominem stipulemur, haec lex obseruanda est.
§ 125. Ex quibusdam tamen causis permittit ea lex in infinitum satis accipere, ueluti si dotis nomine, uel eius quod ex testamento tibi debeatur, aut iussu iudicis satis accipiatur. et adhuc lege 〈Iulia de〉 uicesima hereditatium cauetur, ut ad eas satisdationes, quae ex ea lege proponuntur, lex Cornelia non pertineat.
§ 126. In eo quoque iure par condicio est omnium, sponsorum fidepromissorum fideiussorum, quod ita obligari non possunt, ut plus debeant, quam debet is pro quo obligantur. at ex diuerso ut minus debeant, obligari possunt, sicut in adstipulatoris persona diximus. nam ut adstipulatoris, ita et horum obligatio accessio est principalis obligationis, nec plus in accessione esse potest quam in principali re.
Inst. 3, 20, 5.
§ 127. In eo quoque par omnium causa est, quod si quid pro reo soluerint, eius reciperandi causa habent cum eo mandati iudicium. et hoc amplius sponsores ex lege Publilia propriam habent actionem in duplum, quae appellatur depensi.
Inst. 3, 20, 6.
§ 110. Although another person cannot stipulate for us, yet in our stipulations we can associate with ourselves another person who stipulates for the same performance, and is called an adstipulator.
§ 111. He can sue as well as the stipulator, and payment to him discharges the debtor as well as payment to the stipulator, but whatever he recovers, the action of mandate compels him to hand over to the stipulator.
§ 112. The adstipulator need not employ the same terms as the stipulator; if the one says, ‘Art thou sponsor for the conveyance?’ the adstipulator may say, ‘Dost thou for the same pledge thy credit?’ or, ‘Dost thou for the same bid me trust thee?’ or vice versa
§ 113. He may contract for less than the stipulator, but not for more. Thus, if I stipulate for ten sestertia he may stipulate for five, or if I stipulate absolutely he may stipulate conditionally, but not vice versa. More and less is to be understood of time as well as of quantity, immediate payment being more, and future payment being less.
§ 114. In this institution there are some exceptional rules. The heir of the adstipulator cannot sue; a slave cannot be adstipulator, though in any other circumstance his stipulation acquires a right for his master; moreover it is the prevalent opinion that a person in domestic bondage cannot be adstipulator, because he is likened to a slave; a son in the power of his father can be adstipulator, but does not acquire a right for his father, as in all other stipulations, and he himself has no right of action until, without capitis diminutio, he ceases to be subject to his father, as by his father’s death, or by being inaugurated priest of Jupiter. The same is true of a filiafamilias and a wife in the manus of her husband.
§ 115. For the promisor, similarly, other persons are bound, who are called sponsors or fidepromissors or fidejussors.
§ 116. A sponsor is thus interrogated: ‘Art thou for the same payment sponsor?’ a fidepromissor thus: ‘Dost thou for the same pledge thy credit (fidei-promittis)?’ a fidejussor thus: ‘Dost thou the same guarantee (fide tua jubes)?’ We shall have to consider the question what is the proper name for those who are thus interrogated: ‘Wilt thou convey the same? Dost thou promise the same? Wilt thou do the same?’
§ 117. Sponsors and fidepromissors and fidejussors are often employed to provide additional security for a debt; an adstipulator is generally only employed by us to secure payment after our death. Our own stipulation for this purpose is void, and therefore we associate with ourselves an adstipulator, in order that he may sue on the contract after our death, but he is compelled by an action of mandate to hand over to our heir whatever he recovers.
§ 118. The rules which govern the sponsor and fidepromissor are similar, and very unlike those which govern the fidejussor.
§ 119. For the former are accessory to none but verbal contracts, and are sometimes even liable when the principal promisor himself is not so, as, for instance, when a woman or ward contracts without her guardian’s sanction, or when a person promises a payment after his own death. But it is a moot question when a slave or alien promises by the term spondeo, whether his sponsor or fidepromissor is effectively bound.
§ 119 a. A fidejussor, on the other hand, may be accessory to any obligations, whether real, verbal, literal, or consensual, and whether civil or natural. So that he may even be bound for the obligation of a slave either to a stranger or to his own master; and this is the case whether it is a stranger who accepts a fidejussor for the slave, or whether it is the master himself who does so for a debt due from his slave to him.
§ 120. Again, the heir of the sponsor or fidepromissor is not bound by the guaranty, unless it is the heir of an alien fidepromissor in whose city (civitas) such a rule prevails; but the fidejussor’s heir is always bound.
§ 121. Again, a sponsor and fidepromissor, by the lex Furia, at the end of two years are discharged of obligation, and whatever is the number of these kinds of sureties at the time when payment of the debt is due, the total obligation is divided into as many parts; and each surety is only liable for a single part. Fidejussors, on the other hand, are liable for ever, and, however many of them there are, each is liable for the whole amount of the debt, the creditor being thus entitled to sue whichever he chooses for the whole. But now by the letter of Hadrian of sacred memory he can only recover from each of the fidejussors, who are solvent at the time an aliquot part of the debt. Thus the letter of Hadrian of sacred memory differs from the lex Furia in this respect, that the insolvency of one sponsor or fidepromissor does not increase the liability of the remainder, whereas if only one of several fidejussors is solvent, he has to bear the whole burden.
§ 121 a. But as the lex Furia only applies to Italy, it follows that in the provinces, sponsors and fidepromissors, like fidejussors, are liable for ever, and each would be liable for the whole amount, unless they are also partly relieved by the letter of Hadrian.
§ 122. Moreover, between sponsors and fidepromissors the lex Appuleia introduced a sort of partnership, for under this law any one of them who has paid more than his share is given an action to recover the excess from the others. The lex Appuleia was passed before the lex Furia, at a time when each sponsor and fidepromissor was liable for the whole amount; and hence it is questioned whether, since the lex Furia was passed, the benefit of the lex Appuleia still exists. Outside Italy it undoubtedly does; for the lex Furia is only in force in Italy, while the lex Appuleia extends also to the remaining provinces; but whether the benefit of the lex still continues in Italy is much disputed. Fidejussors are not governed by the lex Appuleia; accordingly, if one fidejussor pay the whole amount, he alone suffers by the insolvency of the principal; however, as was said above, a fidejussor sued for the whole amount may by the letter of Hadrian, if he chooses, require the claim to be reduced to his ratable portion.
§ 123. Further, the lex Cicereia provides that a creditor who obtains the guaranty of sponsors and fidepromissors shall previously announce and declare to them the amount of the debt to be guaranteed and the number of sponsors or fidepromissors by whom it is to be guaranteed; and in the absence of such declaration the sponsors or fidepromissors are permitted within thirty days to demand a preliminary trial of the issue (praejudicium), whether the requisite declaration was made; and on judgment that it was not made they are discharged of liability. The law makes no mention of fidejussors, but it is usual in a guaranty by fidejussors to make a similar declaration.
§ 124. But the benefit of the lex Cornelia is available for all sureties, which forbids the same person to be surety for the same debtor to the same creditor in the same year for more than twenty thousand sesterces of credita pecunia; and if a sponsor or fidepromissor guarantees a larger sum, for instance, one hundred thousand sesterces, he can only be condemned in twenty thousand sesterces. Pecunia credita for purposes of the statute is said to include, besides a present loan, everything which at the time of entering into the suretyship is certain to be due, that is, which depends on no contingency. Accordingly, it includes money stipulated to be paid on a future day; because it is certain that such money will be due, although an action to recover it cannot be brought till a future time. But pecunia in this law includes everything, so that, if we stipulate for the conveyance of wine, or corn, or land, or a slave, the lex Cornelia applies.
§ 125. In some circumstances, however, the law permits a surety to be bound for an indefinite amount, as security for dower, for instance, or for that which is due under a will, or by judicial order. Also the lex Julia, imposing a duty of one twentieth on testamentary successions, provides that the securities therein required shall be excepted from the scope of the lex Cornelia.
§ 126. The rights of sponsors, fidepromissors, and fidejussors are also equal in respect of the rule that they cannot be bound for more than their principal. They may, however, be bound for less, just as the adstipulator may stipulate for less. For their obligation, like that of the adstipulator, is an accessory of the principal obligation, and the accessory cannot be greater than the principal.
§ 127. They further resemble in this, that whoever pays for the principal can recover the amount from him by action of mandate. Sponsors by the lex Publilia have an additional remedy, being able, unless reimbursed in six months, to recover twice the sum advanced by the action on money paid by a sponsor.
§ 110. At the corresponding point of his Institutes (3, 16) Justinian introduces the mention of Correality (et stipulandi et promittendi duo pluresve rei fieri possunt), and it may be expedient to examine the nature of Correality before we embark on the consideration of the various forms of Guaranty.
Correality, the multiplication of creditores (plures rei credendi) or debitores (plures rei debendi) in a single obligation without a corresponding division of the Object of the right or obligation, was an institution of Roman law in favour of creditors; whereby, exceptionally and usually in virtue of a special agreement, each creditor was severally entitled to recover the whole (solidum) object of the obligation from a common debitor, or each debitor was severally liable to pay the whole object of the obligation to a common creditor. The ordinary rule, to which Correality forms an exception, is that when there are many creditores or many debitores in an obligation, the Object of the obligation is correspondingly divided; so that each creditor is only entitled to recover a proportional fraction of the advantage and each debitor is only bound to bear a proportional fraction of the burden. In Correality each creditor is severally entitled to receive, and each debtor is severally bound to discharge, the whole Object of the obligation. By the ordinary rule, the creditors would be only jointly entitled to receive the whole object; and this the debtors would be only jointly bound to discharge; each creditor would be severally entitled to receive only a ratable part of the Object of the obligation, and a ratable part of the Object is all that each debtor would be severally bound to discharge. By having a number of correal creditores, each entitled to entire performance, a debt could be more readily enforced, e. g. by adstipulatio. By having a number of correal debitores, each liable for entire performance, as if he were sole debitor, a creditor was rendered more secure.
Correality may originate in various modes:
(a) Contract, whether Formal or Formless, Dig. 45, 2, 9, in which there are several promisors or several promisees. The usual origin of Correality was Verbal contract or Stipulation.
(b) Testament: e. g. when a testator charges several co-heirs alternatively with the payment of a legacy.
(c) Noxal liability of co-owners: e. g. when the co-proprietors of a slave are liable for a noxal action for some mischief that he has committed.
(d) The relation of filiusfamilias to paterfamilias, or of free agent to principal, when the superior (father, or principal) is liable to an actio adjecticiae qualitatis (actio de peculio, de in rem verso, quod jussu, institoria, exercitoria, 4 § 69) for the obligation of the inferior (son, or agent), the inferior himself being directly liable, and the creditor can elect which he will sue.
Correality not only as denoting total or integral liability on the part of the debitor, and total or integral claim on the part of the creditor, furnishes a contrast to partial or fractional (in partem, pro rata) liability or claim; but must also be distinguished from another relation of co-debtors and co-creditors to which it is much more nearly akin, namely Solidarity. Correality and Solidarity agree in this, that in both of them every creditor is severally entitled to receive entire performance of the obligation, and every debitor is bound to discharge the entire liability: but differ in this, that whereas Correality implies the unity or identity of the obligation by which the co-creditors are entitled or the co-debtors are bound; Solidarity implies that they are entitled or bound by a plurality or diversity of obligations.
Solidarity originates in various modes:
(a) Common delict, or other unlawful act, when several codelinquents incur a liability to indemnification.
(b) Co-guardianship, when one of the co-guardians has injured the ward by his negligence.
(c) Some kinds of contract in which there are several promisors but no special agreement to create Correality; e. g. where there are joint borrowers, hirers, agents, depositaries.
(d) Guaranty by the form of mandate called Mandatum qualificatum, §§ 155-162, comm.; or arising from a simple promise to pay the debt of another, called Constitutum debiti alieni, which, though originally a mere pact, came to be enforced by the praetor.
Both Correality and Solidarity, as implying liability for entire but alternative performance, lie in the mean between two extremes: on the one side, divided or partial (pro rata) liability; and on the other side, the multiple or cumulative liability, generated by delicts that give rise to actions for penalties. E. g. if several persons combine to commit a theft they are all severally liable to the actio furti for the whole penalty, and payment by one does not discharge his fellow delinquents: or if a person is guilty of an outrage (injuria) which wounds the honour of several, they are all creditors for the penalty, and recovery by one does not extinguish the claims of the rest, 3 § 221. Where the actions on account of an illegal act are purely indemnificatory, as the actions brought on account of theft for damages—condictio furtiva—or on account of Metus, Dolus, Noxa, Vis, there, as we have already stated, the relation of Solidarity subsists between the co-delinquents, and satisfaction by one extinguishes the obligation of the rest.
The differences between Correality and Solidarity are principally two:
1. In Correality the right of action against the remaining co-debtors or by the remaining co-creditors was extinguished by joinder of issue in an action (litis contestatio) against or by one of the parties: in Solidarity the right of action was only extinguished by complete payment or satisfaction (solutio). Electo reo principali fidejussor vel heres ejus liberatur: non idem in mandatoribus observatur, Paulus 2, 17, 16.
It was possible to avoid the consumption or extinction of the right of action against the surety that was operated by suing the principal by so shaping the stipulatio of fidejussio as not to produce Correality, Dig. 45, 1, 116. But at a later period the extinction of right to sue by litis contestatio was abandoned: and Justinian expressly enacted that in Correality as well as in Solidarity only actual satisfaction of a claim should operate a consumption of the right of action. Justinian’s ordinance is introduced into the Digest by means of a bold interpolation: Cum utro velit Seius aget, ut, si cum uno actum sit et solutum, alter liberetur. Pomponius, Dig. 30, 1, 8, 1; Cod. 8, 40, 28.
2. A second difference between Correality and Solidarity consists in the fact that in Solidarity the guarantor who pays the whole has regressus against his co-guarantors, that is to say, has a power of recovering from them contribution of their share of the debt: whereas the Correal debtor who pays has no regressus or right to contribution. (I have here followed Vangerow: Savigny attempts to prove, but apparently without success, that regressus is an incident of Correality.) Where, however, the Solidarity is the effect of co-delinquency (No. a. above) the delinquent who pays has no regressus. Another important characteristic of a Correal obligation is that formal discharge (acceptilatio) by one of the Correal creditors entirely extinguishes the Correal debt so that none of the other Correi can sue for it. Cf. § 215. (On the subject of Correality and Solidarity and for an account of the literature relating to these joint and several forms of obligation, see Sohm, § 74.)
After this preliminary consideration of the nature of Correality we are in a position to examine the nature of Guaranty or Suretyship, and to fix the relation of fidejussio, one of the latest developments of Suretyship, to other cognate institutions of Roman jurisprudence.
Fidejussio is a species of Intercessio; and accordingly the abovementioned object requires us to examine the nature and subdivisions of Intercessio.
Intercession is the assumption of liability for the debt of another person by contract with his creditor. For instance, when a person is hesitating whether he shall accept an inheritance because he has doubts whether it is solvent, that is, whether the assets exceed the liabilities, to induce him to accept it by a general promise of indemnification is not Intercession, because here there is no contract with a creditor on account of a debt owed to him by a third party: but if the ground of his hesitation is a suspicion that the debtors to the inheritance are insolvent, to induce him to accept the inheritance by a promise to make good what he fails to recover from the debtors is Intercession, for here is a contract with a creditor on account of the debt of a third party.
Intercession is either (A) Privative or (B) Cumulative.
A. Privative Intercession is the substitution of one obligation for another.
(1) Substitution for an actually pre-existent debt involves Novation, i. e. the extinction of such preceding debt, and is generally called by civilians Expromissio, though the term is not merely used in our sources in this restricted sense. Cf. Roby, 2, p. 49, n. 1. Expromission, the discharge of a debtor by taking his place in relation to the creditor, may be considered as including Defensio, the defence of an absent debtor in a suit instituted by the creditor; for then the volunteer defendant becomes liable to condemnation in place of the original debtor: Suscipit enim in se alienam obligationem, quippe cum ex hac re subeat condemnationem, Dig. 16, 1, 2, 5, Ad senatusconsultum Velleianum.
(2) Substitution, not for an actually pre-existent obligation which is novated, but for an obligation which would have to be incurred by another person if the present obligation were not assumed, is called Interventio. Si, quum essem tecum contracturus, mulier intervenerit ut cum ipsa potius contraham, videtur intercessisse, Dig. 16, 1, 8, 14.
B. Cumulative Intercession, or the addition of an obligation to an obligation, is either Partial or Total, according as either part or the whole of the object of the first obligation is the object of the second or additional obligation.
(3) Of Partial intercessors we find an example within the limits of Italy, in Sponsors and Fidepromissors under the operation of the lex Furia. By this law the liability of each sponsor was in inverse ratio to their number, § 121. Whether an Italian Sponsor who had not availed himself of the limitation of his liability under the lex Furia was entitled to Regressus under the older lex Appuleia, was a matter of controversy, ibid.
Total Intercession is divided, according as several debtors are bound by one single obligation or several distinct, though similar, obligations, into two classes, Correality and Solidarity, terms which have been explained above.
Correality is subdivided into two classes, according as all the debitores are equally principals and originally interested, or some are principal and others only subsidiary or accessory. But in respect of the right of suing or liability to be sued, the accessory, e. g. the fidejussor before the beneficium excussionis or ordinis was allowed him, may be in the same position as the principal.
Correality in which all the debtors are interested as principals has no specific name As Intercession has been defined to be the assumption of an alien debt (aliena obligatio), this Correality is not a species of Intercession.
(4) Correality in which one debtor is principal and others are accessory is instanced in Fidejussio. There is not only Correality between the principal and each Fidejussor, but also between the several Fidejussors. This is denied by Savigny, Law of Obligations, § 25, who asserts that though there is Correality between the principal and each Fidejussor there is none between the several Fidejussors: but Vangerow truly observes; § 573, that if the obligation of each Fidejussor is identical with the obligation of the principal it follows, by the fundamental axiom of syllogism, that the obligations of the several Fidejussors are identical with one another: in other words, that there is Correality between the several Fidejussors. Fidejussors have Beneficium divisionis by the epistle of Hadrian, § 121, Beneficium excussionis by Novella 4 of Justinian, and Beneficium cedendarum actionum. If he neglected to avail himself of these, a Fidejussor, like other correal debtors, had no regressus against his co-fidejussors, Dig. 46, 1, 39.
Correality is again instanced in the Sponsors and Fidepromissors of the provinces external to Italy under the operation of the lex Appuleia. Unlike other correal debtors they had by this statute Regressus by means of an action analogous to that between partners, § 122; though like Fidejussors, they also had Beneficium divisionis under the constitution of Hadrian, § 121.
(5) Solidary Intercession is exemplified by the Mandator in the contract called mandatum qualificatum. Here a lender gives credit to a borrower in reliance on the representations of the mandator, § 156, who thus is a guarantor of the borrower’s solvency: when there are several such guarantors, their liability is solidary.
(6) Other Solidary Intercessors are those informally undertaking to pay the debt of another in constitutum debiti alieni. Both the Mandator and the Constituens have Beneficium divisionis, Cod. 4, 18, 3, and Beneficium excussionis, Novella 4.
§ 114. The peculiarity of the rules respecting the adstipulator arises from the fact that he was a mandatary, agent, or trustee, the repositary of a special personal confidence. Hence his rights did not pass to his heres nor to his paterfamilias. Ordinary rules, however, obtained so far, that he could not sue so long as he remained a filiusfamilias, nor after his rights had been extinguished by a capitis diminutio.
The principal function of the Adstipulator and one function of the Adpromissor (the chief function of the latter of course was suretyship) seems to have been to maintain or defend the action on behalf of the principal, i. e. the representation of the principal as plaintiff or defendant in a suit at a period when the doctrine of Agency was still undeveloped.
We must suppose a time when the Cognitor and Procurator, whose appointment as described, 4 § 83, was such a simple matter, were institutions not yet invented, which was the case in the period of Statute-process (legis actio), concerning which we are told: Nemo alieno nomine lege agere potest, Dig. 50, 17, 123; and when, nevertheless, circumstances often prevented a principal from litigating in person. In questions relating to ownership he might in early times get over the difficulty and practically employ an agent by fiduciary mancipation of the property in dispute to a third person, who would then litigate with the adversary in the rights of his auctor, or the person from whom he deduced his title. But in questions of Obligation this course was not open, for Obligation was not thus transferable. Novation might effect the purpose, 2 § 38: but Novation required the concurrence of the debtor or adversary: and Cession or Procuration, 2 § 39, we have assumed to be as yet uninvented. At this period, then, the only remaining available representative in a suit concerning contractual obligation was a person who had been concerned, though merely as an accessory, § 126, in the original obligation. Ihering, § 56. When the development of the law of mandate led to the frequent appointment of a procurator, the adstipulator ceased to be necessary except for securing performance of an act after the death of the principal promisee, § 117. He ceased to be necessary even for this purpose when a stipulation for an act after the death of the stipulant was decided to be valid, and accordingly the adstipulator has disappeared from the legislation of Justinian.
§ 115. The adpromissor at different epochs of the law appears as sponsor, fidepromissor, fidejussor. A sponsor could only intervene when both parties were Roman citizens, a fidepromissor was used when either party was a peregrinus, § 120. There is a striking parallelism between the rules relating to a sponsor or fidepromissor and those relating to an adstipulator. The obligation does not pass to the heres, and the sponsor and fidepromissor can only be adjuncts to a stipulation, the fidejussor may be employed to guarantee any obligation. The stipulation of the sponsor or fidepromissor may be valid when the stipulation of the principal, though creating naturalis obligatio, is invalid civiliter.
§ 121. The lex Furia discharging the sponsor and fidepromissor of liability in two years and limiting the liability of each to a proportionate part, is supposed to have been enacted b c. 95.
The epistle of Hadrian (a. d. 117-138) left the fidejussor liable originally (ipso jure) to the whole debt, with a counteractive right (exceptio) to call on the other solvent sureties to pay their share of the debt, enforced by a clause in the formula, of which the following passage appears to give the terms: Si contendat fidejussor caeteros solvendo esse, etiam exceptionem ei dandam: Si non et illi solvendo sint, Dig. 46, 1, 28. ‘The contention of a fidejussor that his co-fidejussors are solvent may be expressed in an exception: Unless such and such co-guarantors are solvent.’ This privilege of the fidejussor is called Beneficium divisionis.
§ 122. The lex Appuleia, which gave the sponsor or fidepromissor an action analogous to that between partners, whereby he could recover by contribution from his co-sureties whatever he had paid in excess of his proportionate share, was passed b. c. 102. It was the rule of the provinces as the lex Furia was the rule of Italy.
§ 123. The name of this law, lex Cicereia, was first discovered by Studemund. Its date is not known, but as we gather from the text it was passed at a time when fidejussors were not yet instituted.
§ 124. The lex Cornelia, the first which mentions the fidejussor as well as the sponsor and fidepromissor, limiting the amount for which the same guarantor could be bound as security for a contract either of mutuum or of stipulatio in the same year for the same principal in the same stipulation, was passed in the dictatorship of Sylla, b. c. 81, and seems to show that the stringency of the lex Furia had led to the employment of the fidejussor in preference to the sponsor and fidepromissor. The sponsor and fidepromissor have vanished from the legislation of Justinian.
§ 125. The lex Julia vicesima or vicesimaria was a law of Augustus, a. d. 6, imposing, in support of the military treasury, a succession duty of one twentieth of the value on all inheritances and legacies acquired by Roman citizens. Certain exemptions from the tax were allowed. It was with the object of increasing the revenue arising from this source that Caracalla extended Roman citizenship to all free inhabitants of the Empire (Roby, 2, p. 32, n. 2).
§ 127. The lex Publilia, which enabled a sponsor who had paid the debt of his principal, unless reimbursed within six months, to recover by actio depensi, a form of manus injectio pro judicato (4 § 22), twice the amount of the original debt, is of uncertain date.
The right of a fidejussor to require an assignment from the creditor of his rights of action is called Beneficium cedendarum actionum. If he neglected to avail himself of it and of his Beneficium divisionis, he had, when sued, no Regressus, that is no means of making his co-sureties share the liability with him, Dig. 46, 1, 39.
A surety or guarantor of a debt may require the creditor to proceed against the principal first, provided he was solvent and in a position to be sued. But this change in the law, which is called Beneficium excussionis, or ordinis, was not made till a late period, being introduced by Justinian, Novella 4.
In Correality, as has been remarked above, the right of action against remaining co-debtors was extinguished by the joinder of issue in a suit against one of them (litis contestatio). This power of litis contestatio to extinguish the creditor’s right of action when there was a relation of Correality between a number of debtors was doubtless a motive leading to the substituting for Fidejussio other forms of guaranty involving Solidarity instead of Correality, and consequently free from extinction of right of action by mere litis contestatio. Such forms were Mandatum qualificatum (§§ 155-162, comm.) and Constitutum debiti alieni. At a later period litis contestatio had not this effect, as, in respect of Fidejussio, was expressly declared by Justinian, Cod. 8, 40, 28.
The general name of a stipulation by way of security for a debt is cautio, 2 § 253. If the debtor alone was bound, it was called nuda repromissio. If sureties were also bound, it was called satisdatio or satisacceptio.
Before quitting the subject of suretyship we must observe a peculiar feature of Roman law, the incapacity of women to become surety—or intercede in any way for any one. This restriction, which had been recognized to some extent by previous law, was established by the senatusconsultum Vellaeanum passed in the reign of Claudius, a.d. 46, and by the subsequent interpretation of that enactment.
The senatusconsultum does not declare any proceeding which is contrary to it to be void, but directs the magistrate, if an action is brought, to see that the will of the senate is given effect to, which he did by allowing a woman to plead the exceptio, S. C. Vellaeani, Dig. 16, 1; 4 §§ 115-137, comm.
The most noticeable rule of English law respecting the contract of guaranty is that it must be in writing. No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized, Statute of Frauds, 29 Charles II, sect. 4.
§ 128. Litteris obligatio fit ueluti nominibus transscripticiis. fit autem nomen transscripticium duplici modo, uel a re in personam uel a persona in personam.
§ 129. 〈A re in personam trans〉scriptio fit, ueluti si id quod tu ex emptionis causa aut conductionis aut societatis mihi debeas, id expensum tibi tulero.
§ 130. A persona in personam transscriptio fit, ueluti si id quod mihi Titius debet tibi id expensum tulero, id est si Titius te delegauerit mihi.
§ 131. Alia causa est eorum nominum quae arcaria uocantur. in his enim rei, non litterarum obligatio consistit, quippe non aliter ualent quam si numerata sit pecunia; numeratio autem pecuniae re facit obligationem. qua de causa recte dicemus arcaria nomina nullam facere obligationem, sed obligationis factae testimonium praebere.
§ 132. Vnde 〈non〉 proprie dicitur arcariis nominibus etiam peregrinos obligari, quia non ipso nomine sed numeratione pecuniae obligantur; quod genus obligationis iuris gentium est.
§ 133. Transscripticiis uero nominibus an obligentur peregrini merito quaeritur, quia quodammodo iuris ciuilis est talis obligatio; quod Neruae placuit. Sabino autem et Cassio uisum est, si a re in personam fiat nomen transscripticium, etiam peregrinos obligari; si uero a persona in personam, non obligari.
§ 134. Praeterea litterarum obligatio fieri uidetur chirographis et syngraphis, id est si quis debere se aut daturum se scribat; ita scilicet si eo nomine stipulatio non fiat. quod genus obligationis proprium peregrinorum est.
§ 128. Literal contracts, or obligations created by writing, are made by transcriptive entries of debit or credit in a journal. Transcriptive entries are of two kinds, either from thing to person or from person to person.
§ 129. Transcription from thing to person is made when the sum which you owe me on a contract of sale or letting or partnership is debited to you in my journal as if you had received it as a loan.
§ 130. Of transcription from person to person we have an example when the sum which Titius owes me is entered in my journal as debited to you, assuming that you are indebted to Titius and that Titius has substituted me for himself as your creditor.
§ 131. Transcriptive entries differ from mere entries of a person as debtor to cash; here the obligation is not Literal but Real, for it is invalid unless money has been actually paid, and payment of money constitutes a Real obligation. Consequently the entry of a person as debtor to cash does not constitute an obligation, but is evidence of an obligation.
§ 132. Accordingly, it is not correct to say that debits to cash (arcaria nomina) bind aliens as well as citizens, because it is not the entry in the journal but the payment of money that constitutes the contract, a mode of obligation which belongs to jus gentium.
§ 133. Whether transcriptive debits form a contract binding on aliens has been doubted with some reason, for this contract is an institution of civil law, as Nerva held. Sabinus and Cassius, however, held that transcription from thing to person forms a contract binding on an alien, though not transcription from person to person.
§ 134. Another Literal obligation is that created by chirographa and syngraphae, or written acknowledgements of debt or promises to pay, unaccompanied by stipulation. This mode of contract is proper to aliens.
One of the account-books kept by the Romans, a nation of book-keepers, was a waste or day book, called Adversaria, into which all transactions were at once entered as they occurred. At the end of each month the contents of the Adversaria were posted into the more formal journal, the Tabulae, or Codex accepti et expensi. According to Dionysius of Halicarnassus every Roman had to take an oath once in five years before the Censors that his book-keeping was honest and accurate. (On the subject of Roman book-keeping and the literal contract, see Roby, Bk. V, Appendix A; Muirhead, Roman Law, 258; Sohm, p. 410, and the literature referred to by these writers.)
One, if not the only, species of Literal obligation, namely Expensilation, in the nature of a novation or transformation of a pre-existing debt into one of a stricter form, was effected by an entry in these domestic registers, and from Cicero, Pro Roscio Comoedo, c. 5, we may infer that the entry was binding even though it had not been transferred from the Adversaria to the Codex. The creditor, apparently, with the consent and by the order of the debtor, debited the latter with a certain sum in the books of the creditor (expensilatio). Afterwards a corresponding entry was made by the debtor in the books of the debtor (acceptilatio). The literal contract, however, appears to have been complete without the latter entry.
Apparently, the true contract was the entry in the creditor’s book. The consent (jussus) of the debtor to this entry was necessary, but not restricted to any particular form. The entry in the debtor’s book was evidence, but not the only admissible evidence, that he had assented to the entry in the creditor’s book.
Theophilus, in his Greek version of the Institutes, gives the following account of the process: ἡ δὲ literis [ἐνοχὴ] ἐστὶ τὸ παλαιὸν χρέος εἰς καινὸν δάνειον μετασχηματιζόμενον ῥήμασι καὶ γράμμασι τυπικοɩ̂ς. . . . [Editor: illegible character]ν δὲ ταν̂τα τὰ ῥήματα, ἅτινα καὶ ἐλέγετο καὶ ἐγράϕετο· τοὺς ἑκατὸν χρυσον̂ς, οὓς ἐμοὶ ἐξ αἰτίας μισθώσεως χρεωστεɩ̂ς, σὺ ἐκ συνθήκης καὶ ὁμολογίας δώσεις τω̂ν οἰκείων γραμμάτων; εἰ̂τα ἐνεγράϕετο, ὡς ἀπὸ τον̂ ἐνόχου ἤδη γενομένου ἐκ τη̂ς μισθώσεως, ταν̂τα τὰ ῥήματα· Ἐκ τη̂ς συνθήκης ὀϕείλω τω̂ν οἰκείων γραμμάτων. Καὶ ἡ μὲν προτέρα ἐνοχὴ ἀπεσβέννυτο, καινοτέρα δὲ ἐτίκτετο, Theophilus, 3, 21. ‘A literal obligation was an old debt transformed into a new loan by certain solemn words and writings. The words which were spoken and written in the register were as follows: “The hundred aurei, which you owe me on account of rent, will you pay me on the convention and acknowledgment of your own journal?” Then followed, as if written by the person indebted for rent, these words: “I owe you that sum by the admission of my own journal.” Whereby the pre-existing obligation was extinguished and a new one created.’ [From the mention of ‘solemn words’ Theophilus is supposed to have confounded Expensilatio, which was independent of spoken words, with Stipulatio accompanied by a written record or cautio.]
The account of Theophilus clearly only applies to one form of expensilation, the transscriptio a re in personam. The use of this kind of transscriptio is obvious: it was a mode of converting Formless contracts into Formal contracts—equitable obligations into civil obligations: of metamorphosing claims recoverable by actions ex bona fide, e.g. conducti locati, empti venditi, which in many points favoured the defendant, into debts recoverable by the short and sharp remedy of the civil action of Condictio, which, when brought for certa pecunia credita, was the more formidable to a dishonest litigant, as it was accompanied by sponsio poenalis, whereby the vanquished party forfeited a third of the sum in litigation, in addition, if he was the defendant, to the original claim, 4 § 171.
A narrative of Cicero shows the employment and possible misemployment of this transcriptio. He relates how a purchaser was defrauded by a vendor, and in consequence of the form of contract had no redress. Stomachari Canius. Sed quid faceret? Nondum enim Aquilius collega et familiaris meus protulerat de dolo malo formulas, De Off. 3, 14. ‘The purchaser was indignant, but he was helpless, for my colleague Aquilius had not then invented the action of Fraud.’ It may occur to us, on hearing the story, that as the actio Empti was an action ex bona fide, that is, one in which the judex was empowered to consider allegations of bad faith, the defrauded purchaser would not have been without a remedy. But, as Savigny points out, Cicero had guarded against this objection by a certain feature which he gives to the narrative. Emit homo cupidus et locuples tanti quanti Pythius voluit, et emit instructos. Nomina facit, negotium conficit. ‘The purchaser was eager and rich, he bought at the price the seller named, and he bought the gardens ready furnished. The contract is by expensilatio; the business is concluded.’ Nomen, which sometimes signifies any debt, is here used, in a specific sense, for a debt created by Literal contract; accordingly, nomina facit implies that the purchase, as soon as concluded, had been novated, § 176, i. e. extinguished by metamorphosis into a ledger debt; so that the transaction was removed from the domain of equity to that of civil law, which in its primitive simplicity had no provision for dolus malus.
Transscriptio a persona in personam was the substitution or exchange of a debt owed by C to B, in discharge of a debt owed by B to A; or, at all events, the substitution of C in lieu of B as debtor to A. Transscriptio would thus afford a ready means of transferring obligations from one person to another, especially when the parties were at a distance. It is impossible to form an exact conception of the mode in which these transcriptions were operated without a greater knowledge than we possess of the Roman method of book-keeping. Nomen facere, as we have just stated, is to contract a debt by literal obligation. Nomen signifies the name of the debtor, as in the line of Horace: Scriptos nominibus certis expendere nummos; ‘Recorded on his ledger to lend moneys to solvent borrowers.’ In the business of bankers (argentarii), whose book-keeping of course was extremely regular, the Literal contract appears to have survived when it had fallen into desuetude in other quarters.
The word Transscripticia may refer to the transfer involved in Novation: Savigny, however, prefers the following origin of the term. The Roman account-book (tabulae accepti et expensi), he supposes, was essentially a Cash-book; a record of incomings and outgoings of actual cash: i. e. the monthly or annual balance of the debits and credits ought to correspond with and explain the metallic contents of the cash-box or arca at the end of the month or year. This correspondence or agreement would be destroyed by the introduction of Fictitious loans (expensilatio) into the accounts, unless every such entry to the credit of the cashier or chest was neutralized and cancelled by a cross or opposite entry, of an equally fictitious character, to the debit of the chest or cashier. But if this device was adopted the balance of the book would coincide with the actual contents of the chest; and the fictitious entries would be called Transscripticia because they were always double: because each was always accompanied by its shadow across the page. Verm. Schriften, 1, 205, &c.
In the time of Justinian both of the modes of Expensilatio, properly confined to Roman citizens, though the Sabinians were inclined to extend it in one form to aliens, § 133, had become obsolete; as also another form of Literal contract, the Syngrapha or Chirographum, available where the parties were aliens. Syngrapha and Chirographum, apparently, are synonymous, and signify a written acknowledgment of a debt, such contract in Greece being always ground to support an action, whatever its subject or form. In the Corpus Juris the term Chirographum generally signifies a cautio or a document which is evidence of the existence or discharge of a debt, and the term Syngrapha occurs in the Greek Novellae of Justinian in the same sense; cf. Sohm, p. 414, n. 3.
The desuetude of Nomina transscripticia was probably due, not simply to the fact that the Roman system of book-keeping was strange in the east, but also to the invention of constitutum, a praetorian pact (pactum vestitum), which instead of converting, like Expensilatio, an obligation bonae fidei into an obligation stricti juris, superadded an actionable obligation to a previous obligation, whether natural or civil [Ubi quis pro alio constituit se soluturum, adhuc is pro quo constituit obligatus manet, Dig. 13, 5, 28, Inst. 4, 6, 9]; and which with its excessively penal sponsio, 4 § 171, gave the creditor even a more effective remedy than the action on Expensilatio (Condictio for pecunia certa credita).
Arcarium nomen was the record, not of a fictitious loan, like nomen transscripticium, but of the counting out of money from the cash-box (arca), that is, of a genuine loan, and was, accordingly, simply a memorandum of a Real obligation.
The coexistence of Nomina Arcaria with Nomina Transscripticia shows that entry in a Ledger did not operate a novation and convert a debt into a ledger debt, unless the transcriptive entry represented a fictitious, not an actual, loan.
A stipulatio, unlike the entry in the journal or ledger of an actual loan (nomina arcaria), was not an invariable accompaniment of an advance of money (mutui datio, annumeratio); and, when it was employed simultaneously with annumeratio, unlike nomina arcaria, it always constituted the contract: there were not two contracts, a Real contract and a Verbal contract, but only a Verbal contract, and this without the intervention of Novation, Dig. 46, 2, 6, 1, and Dig. 46, 2, 7. Nam quotiens pecuniam mutuam dantes eandem stipulamur, non duae obligationes nascuntur sed una verborum, Dig. 45, 1, 126, 2. ‘An advance accompanied by Stipulation does not produce two contracts, but one, a Verbal contract.’
§ 135. Consensu fiunt obligationes in emptionibus uenditionibus, locationibus conductionibus, societatibus, mandatis.
Inst. 3, 22, pr.
§ 136. Ideo autem istis modis consensu dicimus obligationes contrahi, quia neque uerborum neque scripturae ulla proprietas desideratur, sed sufficit eos qui negotium gerunt consensisse. unde inter absentes quoque talia negotia contrahuntur, ueluti per epistulam aut per internuntium; cum alioquin uerborum obligatio inter absentes fieri non possit.
Inst. 3, 22, 1.
§ 137. Item in his contractibus alter alteri obligatur de eo, quod alterum alteri ex bono et aequo praestare oportet; cum alioquin in uerborum obligationibus alius stipuletur, alius promittat, et in nominibus alius expensum ferendo obliget, alius obligetur.
Inst. 3, 23, 3.
§ . [Sed absenti expensum ferri potest, etsi uerborum obligatio cum absente contrahi non possit.]
§ 135. Simple consent creates a contract in purchase and sale, letting and hiring, partnership, agency.
§ 136. In these contracts consent is said to create the obligation, because no form of words or of writing is required, but the mere consent of the parties is sufficient. Absent parties, therefore, can form these contracts; as, by letter or messenger; whereas Verbal obligations cannot be contracted between absent parties.
§ 137. Further, these contracts are bilateral and bonae fidei, that is, both parties incur a reciprocal obligation to perform whatever is fair and equal; whereas Verbal and Literal contracts are unilateral, that is, one party stipulates and the other promises, or one party makes an entry of the other’s debit, and the other party is bound thereby.
§ 138. But absence is no impediment to Literal contracts, though it is to Verbal.
Besides the four Consensual contracts which are named in the text, certain praetorian and statutory agreements, though not denominated contracts, became enforceable by action. The most important praetorian pact, or pacts enforced by the praetor, is constitutum or constituta pecunia, which we mentioned when treating of stipulation, as a form of guaranty, Inst. 4, 6, 9. An instance of statutory pact, or pact made valid by statute under Justinian, is donatio inter vivos. A mere promise to give was irrevocable, and the donor could be forced by action to perform his promise, but if above 500 solidi it required public registration.
§ 139.Emptio et uenditio contrahitur, cum de pretio conuenerit, quamuis nondum pretium numeratum sit, ac ne arra quidem data fuerit; nam quod arrae nomine datur, argumentum est emptionis et uenditionis contractae.
Inst. 3, 23, pr.
§ 140. Pretium autem certum esse debet. nam alioquin si ita inter nos conuenerit, ut quanti Titius rem aestimauerit, tanti sit empta, Labeo negauit ullam uim hoc negotium habere; cuius opinionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutus est.
Inst. 3, 23, 1.
§ 141. Item pretium in numerata pecunia consistere debet. nam in ceteris rebus an pretium esse possit, ueluti homo aut toga aut fundus alterius rei 〈pretium esse possit〉, ualde quaeritur. nostri praeceptores putant etiam in alia re posse consistere pretium. unde illud est, quod uulgo putant per permutationem rerum emptionem ei uenditionem contrahi, eamque speciem emptionis uenditionisque uetustissimam esse; argumentoque utuntur Graeco poeta Homero qui aliqua parte sic ait:
〈ἔνθεν ἄρ’ οἰνίζοντο καρηκομόωντες Ἀχαιοί,
ἄλλοι μὲν χαλκῳ̑, ἄλλοι δ’ αἴθωνι σιδήρῳ,
ἄλλοι δὲ ῥινοɩ̂ς, ἄλλοι δ’ αὐτῃ̂σι βόεσσιν,
ἄλλοι δ’ ἀνδραπόδεσσι.〉
diuersae scholae auctores dissentiunt aliudque esse existimant permutationem rerum, aliud emptionem et uenditionem; alioquin non posse rem expediri permutatis rebus, quae uideatur res uenisse et quae pretii nomine data esse, sed rursus utramque rem uideri et uenisse et utramque pretii nomine datam esse absurdum uideri. sed ait Caelius Sabinus, si rem tibi uenalem habenti, ueluti fundum, [acceperim et] pretii nomine hominem forte dederim, fundum quidem uideri uenisse, hominem autem pretii nomine datum esse, ut fundus acciperetur.
Inst. 3, 23, 2.
§ 139. The contract of purchase and sale is complete so soon as the price is agreed upon and before the price or any earnest money is paid. The earnest money is merely evidence of the completion of the contract.
§ 140. The price must be certain. If there is an agreement to purchase at a price to be fixed by another person, as say by Titius, Labeo, whose opinion is approved of by Cassius, says the contract is invalid, Ofilius says it is a sale, and his opinion is followed by Proculus.
§ 141. The price should be in money, for it is much disputed whether anything but money, such as a slave, a robe, a piece of land, can be treated as price. My school hold the affirmative, and regard exchange as a species, and the oldest species, of purchase and sale; in support of which they quote the lines of Homer:
‘Here touched Achaean barks in quest of wine.
They purchased it with copper and with steel,
With hides, with horned cattle, and with slaves.’
The other school maintain the negative, and distinguish between exchange and purchase and sale, because in exchange we cannot determine which is the thing sold and which is the price, and both things cannot be regarded as both the thing sold and the price. Caelius Sabinus says that if Titius offers, say, land for sale, and I give him a slave for it, the thing sold is the land and the price is the slave [because the preceding offer determines which object is res and which is pretium].
It is necessary to distinguish clearly between the completion of a contract of sale and the subsequent transfer of ownership; between the creation of a jus in personam and the conveyance of a jus in rem; between the acquisition of an obligation and the acquisition of ownership.
The contract is complete and so binding as soon as the object of sale and the price are agreed upon, but no property passes until the price is paid and the thing is either mancipated or possession is delivered, or, in the case of a sale on credit, until possession is delivered, Dig. 18, 1, 19. ‘Sale and delivery do not pass property unless the price is paid, or security is given for the price, or credit is given without security,’ Inst. 2, 1, 41. ‘Sale and delivery do not pass property, unless the vendee pays the price, or gives the vendor security; for instance, by a guarantor discharging the vendee, or by mortgage. If, however, the sale is on credit, ownership immediately passes.’
By English law, if the contract is for the unconditional sale of specific goods, ready for delivery, and the price is ascertained, the property in the goods passes to the buyer at the moment that the contract is complete. But, unless it is a sale on credit, the buyer cannot demand delivery of the goods until he has paid or tendered the price. For if the sale is for ready money, delivery or tender of the whole of the goods and price are concurrent conditions (i. e. the seller must be ready and willing to give possession of the goods in exchange for the price, and the buyer to pay the price in exchange for possession of the goods, as was the case also according to Roman law).
If the contract is not for the purchase of specific goods, but of goods of a certain nature or class, only rights in personam arise from the agreement; for, though the contract is complete, no property passes until the particular goods are ascertained by delivery, or appropriated to the contract by the parties.
In the sale of land the equitable estate is conveyed by the contract to convey, when perfected by the payment of the purchase-money, and without notice to the party in whom the legal estate is vested: the legal estate is only passed by the subsequent deed. Formerly the deed was a Feoffment which was inoperative without livery of seisin, that is, delivery of possession; but now the deed of Grant passes property without delivery of possession. The assignment of an equitable interest in personal estate is not perfect, as against an assignee for valuable consideration, without notice to the trustee.
By the Code Napoleon delivery is requisite for the transfer of property in movables, but property in immovables, under French law, is transferred as soon as the contract is complete and the title to it is registered.
By Roman law, the goods are at the risk of the purchaser as soon as the contract is complete, and before the property is transferred. The formula, res perit domino, therefore, does not apply to the contract of purchase and sale, as it does to other contracts, e. g. to mutuum, commodatum, pignus.
In English law, the risk always belongs to the person in whom the property resides, and the maxim, res perit domino, is applicable to sales.
§ 139. Arra, as a general rule, was evidence of the completion of contract, but not always, at least in the time of Justinian. If the parties so agreed, arra was only a penal sum, whose forfeiture entitled either negotiator to recede from a negotiation or rescind a completed contract, Cod. 4, 21, 17. In the absence of such special agreement, in default of voluntary performance, performance could be enforced by action, and forfeiture of the arra was cumulative upon and additional to such performance: the vendee, if he was in default, could not reckon the arra as part of the purchase-money; and the vendor, if in default, besides delivery of possession and repayment of the arra, was compelled to pay an equal sum to the vendee. (Cf. Moyle, Contract of Sale in Roman law, pp. 42, 48.)
§ 140. Where the price is left to be fixed by an arbitrator, Justinian enacted, in conformity with the opinion of Proculus, that the contract is binding if the arbitrator makes his valuation.
§ 141. After the time of Gaius, a constitution of Diocletian and Maximian (a d. 286-305), conformably to the opinion of Proculus, declares exchange or barter to be a contract, requiring delivery of a thing to make it enforceable, Cod. 4, 64, 3. ‘An agreement to exchange without part execution cannot support an action.’ Accordingly, we have mentioned it as belonging to the miscellaneous class of contractus innominati.
The obligation of the vendor was not to transfer quiritarian ownership (ut rem emptoris faciat), but merely to secure the vendee in undisturbed enjoyment (ut praestet habere licere) of the article sold, that is, to give him vacant possession and guarantee him against eviction. Accordingly, if the vendee is judicially molested in his possession, he summons his vendor to defend his title, and, if evicted, recovers against his vendor the loss he has sustained. Venditor si ejus rei quam vendiderit dominus non sit, pretio accepto, auctoritati manebit obnoxius, Paul. Sent. rec. 2, 17, 1. ‘A vendor, not owner, on receipt of the purchase-money is liable as warrantor.’ Auctoritas est actio pro evictione, Dig. 21, 2, 76. ‘Auctoritas is an action on eviction against the vendor.’
A sale was often accompanied by stipulations binding the vendor to repay twice the purchase-money in case of eviction, or in case the article sold was returned for unsoundness (duplae stipulatio). English law implies a condition that the seller of goods has a right to sell and a warranty that the buyer shall have quiet enjoyment, but except in certain circumstances refuses to assume an implied warranty of the goods or soundness of the articles sold, applying the maxim caveat emptor. But by Roman law, in the absence of such stipulations, warranty of the title and quality of the goods was held to be inherent in the contract of sale. In the case of faults of quality the purchaser could, by the edict of the curule aediles, either recover part of the purchase-money by actio quanti minoris, or rescind the contract by actio redhibitoria.
By English law mere inadequacy of price affords no ground for setting aside a sale, unless it be so gross as to afford a necessary presumption of fraud and imposition, and then a court of equity will grant relief. By Roman law a vendor could, under a constitution of the Emperor Diocletian a. d. 285, rescind a contract for the sale of land on proof that the purchase-money was only half the value, unless the buyer is willing to make the price justum, Cod. 4, 44, 2.
Peculiar to the English law of sale is the provision of the Statute of Frauds, that contracts for the sale of lands are unenforceable unless they are in writing signed by the party to be charged or his agent: and, by the Sale of Goods Act, 1893, § 4, contracts for the sale of goods of the value of £10 and upwards are not enforceable unless in writing signed by the party to be charged or his agent, or unless the buyer accept and receive part of the goods, or unless he give something in part payment or in earnest to bind the bargain.
§ 142. Locatio autem et conductio similibus regulis constituitur; nisi enim merces certa statuta sit, non uidetur locatio et conductio contrahi.
Inst. 3, 24, pr.
§ 143. Vnde si alieno arbitrio merces permissa sit, uelut quanti Titius aestimauerit, quaeritur an locatio et conductio contrahatur. qua de causa si fulloni polienda curandaue, sarcinatori sarcienda uestimenta dederim, nulla statim mercede constituta, postea tantum daturus quanti inter nos conuenerit, quaeritur an locatio et conductio contrahatur.
Inst 3, 24, 1.
§ 144.Item si rem tibi utendam dederim et inuicem aliam rem utendam acceperim, quaeritur an locatio et conductio contrahatur.
Inst. 3, 24, 2.
§ 145. Adeo autem emptio et uenditio et locatio et conductio familiaritatem aliquam inter se habere uidentur, ut in quibusdam causis quaeri soleat, utrum emptio et uenditio contrahatur an locatio et conductio. ueluti si qua res in perpetuum locata sit, quod euenit in praediis municipum, quae ea lege locantur, ut quamdiu [id] uectigal praestetur, neque ipsi conductori neque heredi eius praedium auferatur. sed magis placuit locationem conductionemque esse.
Inst. 3, 24, 3.
§ 146. Item [quaeritur] si gladiatores ea lege tibi tradiderim, ut in singulos qui integri exierint pro sudore denarii xx mihi darentur, in eos uero singulos qui occisi aut debilitati fuerint denarii mille, quaeritur utrum emptio et uenditio an locatio et conductio contrahatur. et magis placuit eorum qui integri exierint locationem et conductionem contractam uideri, at eorum qui occisi aut debilitati sunt emptionem et uenditionem esse; idque ex accidentibus apparet, tamquam sub condicione facta cuiusque uenditione an locatione. iam enim non dubitatur, quin sub condicione res ueniri aut locari possint.
§ 147. Item quaeritur, si cum aurifice mihi conuenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret, et acciperet uerbi gratia denarios cc, utrum emptio et uenditio an locatio et conductio contrahatur. Cassius ait materiae quidem emptionem uenditionemque contrahi, operarum autem locationem et conductionem. sed plerisque placuit emptionem et uenditionem contrahi. atqui si meum aurum ei dedero mercede pro opera constituta, conuenit locationem conductionem contrahi.
Inst. 3, 24, 4.
§ 142. Letting and hiring are governed by rules like those of purchase and sale. Unless the sum to be paid as hire is fixed, the contract is not complete.
§ 143. And if the hire is to be fixed by an arbitrator, for instance, at the sum which Titius shall consider fair, it is a question whether there is a contract of letting and hiring. Accordingly, if I give clothes to a fuller to clean or finish, or to a tailor to mend, and the remuneration is not fixed at the time, but left to our subsequent agreement, it is a question whether there is a contract of letting and hiring.
§ 144. The same question arises if I lend a thing for use and receive in return the loan for use of another thing.
§ 145. Purchase and sale are so nearly akin to letting and hiring that in some cases it is a question under which category the contract falls; for instance, when land is leased in perpetuity, asoccurs with the land of municipalities, which is leased on the condition that, so long as the rent is paid, the lessee and his heirs shall continue in possession. But here the better opinion is that the contract is one of letting and hiring.
§ 146. If a band of gladiators are delivered on the following terms, that is to say, that for the performance of every one who leaves the arena safe and sound there shall be paid twenty denarii, and for every one who is killed or disabled there shall be paid one thousand denarii, it is disputed whether the contract is one of purchase and sale or of letting and hiring; but the better opinion is that the unharmed were let and hired, the killed or disabled were bought and sold, the contracts depending on contingent events, and each gladiator being the subject of a conditional hiring and a conditional sale, for it is now certain that both hiring and sale may be conditional.
§ 147. Again, if a goldsmith agrees to make me rings of a certain weight and fashion out of his own gold for, say, two hundred denarii, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour is let and hired, but most writers hold that there is only a purchase and sale. But if I provide the gold and agree to pay him for his work, the contract is settled to be a letting and hiring.
§ 143. Justinian decided that a hiring for a sum to be fixed by an arbitrator was valid, like a sale on similar terms, if the arbitrator made his award; but that if the sum was left to the future agreement of the parties, or, § 144, if the consideration was not pecuniary but a reciprocal service, the contract was not a Consensual one of letting and hiring, but a contract innominate, deriving its validity from part execution, and to be enforced by the action in factum praescriptis verbis, Inst. 3, 24, 1, 2.
§ 145. Where Gaius speaks of ager vectigalis, Justinian speaks of ager emphyteuticus or emphyteuticarius, because in his days the rules of these two kinds of tenure had been entirely assimilated. Ager vectigalis was land leased by a municipality, or a sacerdotal college, or the Vestal Virgins in perpetuity, or for long terms of years, for a rent (vectigal) either in money or in produce, usually amounting to one fifth or one seventh of the profits. This kind of lease, as we have already seen, was subsequently extended to imperial lands let out for cultivation (agri emphyteuticarii). Emphyteusis was the grant of land in perpetuity, or for a term of years, for an annual rent, subject to forfeiture, without claim for meliorations, on non-payment of rent by the emphyteuta for three years, or for two years if the land was held of the church. Land held in emphyteusis was alienable, devisable, descendible by intestacy. The proprietor, however, had a right of pre-emption.
Emphyteusis resembled locatio-conductio in that the property remained in the grantor, to whom a rent was payable and who in certain events might recover the land; it resembled emptio venditio in that the grantee acquired not only detention of the land granted, like the hirer (colonus), but also possession, properly so called, and a proprietary right (jus in re) that nearly amounted to property or dominion, and could be maintained by actio vectigalis, a real action against all the world, including the landlord himself.
Zeno (a. d. 475-491) decided that Emphyteusis was a contract sui generis, distinct from both locatio and venditio, and requiring for its validity, at least where the parties contracted themselves out of the rules generally applicable, to be reduced to writing, Cod. 4, 66, Inst. 3, 24, 3. As to the application of the principle res perit domino to this relation, see Inst. l. c.
Like pignus, emphyteusis is a combination of jus in personam and jus in rem; it was created by agreement without having to be followed by delivery. Cf. Windscheid, Pand. 1 § 221.
§ 146. Gladiators were either (1) prisoners of war, ‘butchered to make a Roman holiday,’ or slaves who had committed some offence, 1 § 13, or criminals under a capital sentence; or (2) freemen who voluntarily adopted the profession and hired themselves out (auctorati, 3 § 199) to persons who maintained troops or companies (ludi familiae) of gladiators, either to make a profit, or to win the favour of the public, by their exhibition. The first gladiatorial show at Rome was exhibited b. c. 264. The passion of the populace for these exhibitions in the palmy days of Rome amounted to a mania; and a vast revolution in public sentiment was implied in their suppression, a. d. 325, by the following constitution of Constantine, Cod. 11, 44. ‘Exhibitions of bloodshed are out of place in the reign of law and the bosom of a fatherland; and gladiatorial shows, therefore, are absolutely prohibited.’
Locator denotes the person who furnishes land or a house or other article to be used by another; conductor is the person who takes the land or house (called colonus in the first case, inquilinus in the second) or other article and pays a price in money for its use. But in the case of opus faciendum, e. g. of a building to be constructed, or an article to be manufactured, the person who pays the price, that is to say, the employer or orderer, is called locator; the person who performs the work or construction and receives the price is called conductor. It may be worth inquiring how this anomaly arose, and what led to this inversion of the meanings of these correlative terms, and we shall find it in a certain incident, common to these and other contracts, and which has induced the English law to regard them as composing a single class and to denote them by a common denomination.
Deposit, loan for use, pawn or pledge, letting and hiring of a movable thing, and mandate in respect of a movable thing to be redelivered, are grouped together in English law under the head of Bailments. Bailment, derived from the French word bailler, ‘to deliver,’ is defined to be a delivery of a chattel (movable) for a specific purpose; or, at greater length, a delivery of goods on a condition that they shall be restored by the bailee to the bailor, or according to his direction, as soon as the purpose for which they were bailed shall be answered. These contracts, then, all imply a delivery from the bailor to the bailee and a redelivery from the bailee to the bailor or his order. Now in locatio-conductio operis faciendi, as well as in locatio-conductio rei, there is usually a delivery and a redelivery: for instance, goods are delivered to an innkeeper to be kept, or to a carrier to be transported, or materials are delivered to a manufacturer to be fashioned, and these goods and materials are to be redelivered at another time, or in another place, or in an altered form. It is this delivery and redelivery to which the Latin language would seem to look in fixing on the persons to be denoted respectively by the words locator and conductor; and, accordingly, by locator it denotes the person who lets out the thing or gives the job to be done, or who, being a freeman, lets out his services (locatio-conductio operarum), and by conductor the person who receives the thing, or the job (opus), or the services (operae), without regarding the fact that while in locatio-conductio rei or operarum the locator supplies a service for which the conductor pays the price, in locatio-conductio operis faciendi it is the locator who pays the price and the conductor who performs the service.
Colonus, or the independent person who entered into a contract of locatio-conductio respecting land, must be distinguished from the colonus who mainly composed the agricultural population under the empire. Colonatus, the condition of the latter colonus, is an institution whose origin is obscure, but which probably began to be common as early as a. d. 200. Colonatus was not a mere contractual relation or jus in personam, but a real right or jus in rem, and may be regarded as a new form of dependent status, a condition of subjection to a superior, which may be classified with the status of familia or domestic relations. It was a condition midway between freedom and slavery. The colonus was liber and civis, but he was called by the lawgiver servus terrae. He was inseparably bound to the soil: a fugitive colonus, like a fugitive slave, was said to commit a theft of his own body, and he could be recovered by real action (vindicatio) from any one who gave him harbour. He had property, but it was called peculium, and, though he could not be deprived of it like the slave, yet he could not aliene it without the consent of his lord. With certain exceptions, he could not maintain an action against his lord, who was called his patronus. Neither a colonus nor his descendants could divest themselves of their hereditary serfdom. The colonus, having no Real right in the soil, paid no land tax, but only a personal or capitation tax, like artisans and slaves. As having an inherited condition, the colonus or inquilinus was called originarius; as subject to the capitation tax he was called tributarius, capite censitus, adscriptitius, censibus adscriptus. He paid to his lord a certain annual rent (canon), usually in kind, and always incapable of augmentation. This fixity of his rent was the principal right which he enjoyed. See Savigny’s Vermischte Schriften, 15. If, seeking in Roman law for types of Feudal institutions, we find the germ of freehold tenure in Emphyteusis, the antitype of copyhold tenure may similarly be discovered in Colonatus.
§ 148. Societatem coire solemus aut totorum bonorum aut unius alicuius negotii, ueluti mancipiorum emendorum aut uendendorum.
Inst. 3, 25, pr.
§ 149. Magna autem quaestio fuit, an ita coiri possit societas, ut quis maiorem partem lucretur, minorem damni praestet. quod Q. Mucius 〈contra naturam societatis esse existimauit. sed Ser. Sulpicius, cuius〉 etiam praeualuit sententia, adeo ita coiri posse societatem existimauit, ut dixerit illo quoque modo coiri posse, ut quis nihil omnino damni praestet, sed lucri partem capiat, si modo opera eius tam pretiosa uideatur, ut aequum sit eum cum hac pactione in societatem admitti nam et ita posse coiri societatem constat, ut unus pecuniam conferat, alter non conferat, et tamen lucrum inter eos commune sit; saepe enim opera alicuius pro pecunia ualet.
Inst. 3, 25, 2.
§ 150. [Et] illud certum est, si de partibus lucri et damni nihil inter eos conuenerit, [tamen] aequis ex partibus commodum et incommodum inter eos commune esse. sed si in altero partes expressae fuerint, uelut in lucro, in altero uero omissae, in eo quoque quod omissum est similes partes erunt
Inst. 3, 25, 3.
§ 151. Manet autem societas eo usque, donec in eodem consensu perseuerant. at cum aliquis renuntiauerit societati, societas soluitur. sed plane si quis in hoc renuntiauerit societati ut obueniens aliquod lucrum solus habeat, ueluti si mihi totorum bonorum socius, cum ab aliquo heres esset relictus, in hoc renuntiauerit societati ut hereditatem solus lucri faciat, cogetur hoc lucrum communicare. si quid uero aliud lucri fecerit quod non captauerit, ad ipsum solum pertinet. mihi uero, quidquid omnino post renuntiatam societatem adquiritur, soli conceditur.
Inst. 3, 25, 4.
§ 152. Soluitur adhuc societas etiam morte socii, quia qui societatem contrahit certam personam sibi eligit.
Inst. 3, 25, 5.
§ 153. Dicitur etiam capitis diminutione solui societatem, quia ciuili ratione capitis deminutio morti coaequatur; sed utique si adhuc consentiant in societatem, noua uidetur incipere societas.
§ 154. Item si cuius ex sociis bona publice aut priuatim uenierint, soluitur societas. sed haec quoque societas, de qua loquimur, id est quae consensu contrahitur nudo, iuris gentium est, itaque inter omnes homines naturali ratione consistit.
Inst. 3, 25, 7 and 8.
§ 148. A partnership either extends to all the goods of the partners or is confined to a single business, for instance, the purchase and sale of slaves.
§ 149. It has been much can-vassed whether the law would recognize a partnership formed on the terms that a partner should have a greater share in the profit than he has in the loss. Quintus Mucius thought such an arrangement contrary to the nature of partnership, but Servius Sulpicius, whose opinion has prevailed, held that such a partnership was so far from invalid that a partnership might be formed on the terms that a partner should have a share in the gains and none in the losses, if the value of his services made such an arrangement fair. It is certain that a partnership may be formed on the terms that one partner shall contribute all the capital and that the gains shall be divided equally, for a man’s services may be equivalent to capital.
§ 150. If no agreement has been made as to the division of the profit and loss, it must be in equal shares. If the shares are expressed in the event of profit but not in the event of loss, the loss must be divided in the same proportions as the profit.
§ 151. The continuance of partnership depends on the continuing consent of the members: the renunciation of one dissolves the partnership. If, however, the object of a partner in renouncing the partnership is to monopolize some accruing gain; if, for instance, a partner with others in all property (totorum bonorum) succeeds to an inheritance and renounces the partnership in order to have exclusive possession of the inheritance, he will be compelled to divide this gain with his partners; but what he gains undesignedly by the renunciation he keeps to himself; whatever acquisitions he makes his partner always has exclusive benefit of whatever accrues to him after the renunciation.
§ 152. Dissolution of partnership is also produced by the death of a partner, for he who enters into partnership elects a determinate person with whom he is willing to be partner.
§ 153. Loss of status (capitis diminutio) is also said to determine partnership, because by the doctrine of civil law loss of status is regarded as equivalent to death; but if the members still consent to be partners, a new partnership commences.
§ 154. Again, the sale of all the property of one of the partners, whether by the state or by private creditors, dissolves the partnership. But the private partnership of which we are speaking, that is formed by mere consent, belongs to jus gentium, and so prevails in accordance with natural reason among all men: [whereas societas publicanorum is not simply consensual and is not open to peregrini. Cf. Krueger and Studemund, Gaius, note, h. l.]
§ 148. In the absence of express agreement a partnership is limited to gains by commercial transactions (universorum quae ex quaestu veniunt) and excludes gains by inheritance, devise, donation. A remarkable incident of unlimited partnership (universorum bonorum) was that it operated a transfer of ownership by mere agreement without delivery, Dig. 17, 2, 1, 1 and 2. ‘In partnership of all goods, the property of all the members becomes forthwith common, a constructive delivery being implied in the absence of actual delivery.’ This rule was not applied to other forms of partnership.
§ 149. Although a partner might be exempt by the terms of the agreement from any share in the losses, yet an agreement that a partner should have no share in the gains was called a leonine partnership (societas leonina), and being contrary to the general object of the contract could not be enforced, Dig. 17, 2; 29, 2. ‘Aristo records the decision of Cassius that a partnership on the terms that one should take all the profits and another bear all the loss, which he called a leonine partnership, is not binding, and Ulpian concurs.’
§§ 153, 154. In saying that capitis minutio was a mode of dissolving partnership Gaius seems to have expressed himself too generally. Capitis minutio maxima, loss of liberty, would naturally determine such a relation. Capitis minutio media, loss of citizenship, might involve dissolution, if it were a consequence of punishment, but not simply by a person becoming a citizen of another community. Cf. Inst. 3, 25, 7 Publicatione quoque distrahi societatem manifestum est, scilicet si universa bona socii publicentur; nam cum in ejus locum alius succedit, pro mortuo habetur. Nor, according to the law as stated by Justinian, was partnership dissolved by mere change of status, capitis minutio minima, as by arrogation or emancipation. Cf. Dig. 17, 2; 65, 11. Hence in the corresponding passage of his Institutes, above cited, capitis minutio is not mentioned as a ground of dissolution.
The forced sale of a person’s whole estate might be the result of either a criminal or a civil proceeding, either condemnation for crime or insolvency, and in the latter case for the benefit either of the State or of private creditors. Damnatione bona publicantur cum aut vita adimitur aut civitas aut servilis conditio irrogatur, Dig. 48, 20, 1. ‘Condemnation forfeits all a criminal’s goods to the treasury, if it deprives of life, or involves loss of civitas (capitis minutio media), or loss of liberty (capitis minutio maxima).’
Confiscation (publicatio), under its ancient name of sectio bonorum, has already, 3 § 80, been mentioned. The quaestors of the treasury were sent into possession; the sale, which was publicly advertised (proscriptio), took place under the spear (sub hasta), the symbol of absolute dominion, and vested in the purchaser (sector) quiritarian ownership.
§ 155. Mandatum consistit siue nostra gratia mandemus siue aliena. itaque siue ut mea negotia geras, siue ut alterius, mandauerim, contrahitur mandati obligatio, et inuicem alter alteri tenebimur in id, quod uel me tibi uel te mihi bona fide praestare oportet.
Inst. 3, 26, pr.
§ 156. Nam si tua gratia tibi mandem, superuacuum est mandatum; quod enim tu tua gratia facturus sis, id de tua sententia, non ex meo mandatu facere debes. itaque si otiosam pecuniam domi te habentem hortatus fuerim, ut eam faenerares, quamuis eam ei mutuam dederis, a quo seruare non potueris, non tamen habebis mecum mandati actionem. item si hortatus sim ut rem aliquam emeres, quamuis non expedierit tibi eam emisse, non tamen tibi mandati tenebor. et adeo haec ita sunt ut quaeratur, an mandati teneatur qui mandauit tibi, ut Titio pecuniam faenerares. [sed] Seruius negauit nec magis hoc casu obligationem consistere putauit, quam si generaliter alicui mandetur, uti pecuniam suam faeneraret. 〈sed〉 sequimur Sabini opinionem contra sentientis, quia non aliter Titio credidisses, quam si tibi mandatum esset.
Inst. 3, 26, pr. and 6.
§ 157. Illud constat, si quis de ea re mandet, quae contra bonos mores est, non contrahi obligationem; ueluti si tibi mandem, ut Titio furtum aut iniuriam facias.
Inst. 3, 26, 7.
§ 158. Item si quid post mortem meam faciendum 〈mihi〉 mandetur, inutile mandatum est, quia generaliter placuit ab heredis persona obligationem incipere non posse.
§ 159. Sed recte quoque consummatum mandatum si, dum adhuc integra res sit, reuocatum fuerit, euanescit.
Inst. 3, 26, 9.
§ 160. Item si adhuc integro mandato mors alterutrius alicuius interueniat, id est uel eius qui mandauerit uel eius qui mandatum susceperit, soluitur mandatum. sed utilitatis causa receptum est, ut si mortuo eo qui mihi mandauerit ignorans eum decessisse executus fuero mandatum, posse me agere mandati actione; alioquin iusta et probabilis ignorantia damnum mihi adferret. et huic simile est quod plerisque placuit, si debitor meus manumisso dispensatori meo per ignorantiam soluerit, liberari eum, cum alioquin stricta iuris ratione non posset liberari eo, quod alii soluisset quam cui soluere deberet.
Inst. 3, 26, 10.
§ 161. Cum autem is cui recte mandauerim egressus fuerit mandatum, ego quidem eatenus cum eo habeo mandati actionem, quatenus mea interest inplesse eum mandatum, si modo inplere potuerit; at ille mecum agere non potest. itaque si mandauerim tibi, ut uerbi gratia fundum mihi sestertiis c emeres, tu sestertiiscl emeris, non habebis mecum mandati actionem, etiamsi tanti uelis mihi dare fundum, quanti emendum tibi mandassem; idque maxime Sabino et Cassio placuit. quodsi minoris emeris, habebis mecum scilicet actionem, quia qui mandat, ut c milibus emeretur, is utique mandare intellegitur, uti minoris, si posset, emeretur.
Inst. 3, 26, 8.
§ 162. In summa sciendum 〈est, quotiens〉 aliquid gratis 〈faciendum〉 dederim, quo nomine, si mercedem statuissem, locatio et conductio contraheretur, mandati esse actionem; ueluti si fulloni polienda curandaue uestimenta 〈dederim〉 aut sarcinatori sarcienda.
Inst. 3, 26, 13.
§ 155. Agency may contemplate the benefit either of the principal or of a stranger; that is to say, your undertaking at my request to transact my business or the business of a third person will create an obligation between us, and make us mutually liable to satisfy the demands of good faith.
§ 156. But if I give a mandate to you to perform anything for your own exclusive advantage, the mandate is void, for what you propose to do on your own account ought to be done on your own judgment and not by my mandate. Thus if you tell me that you have money lying in your cash-box, and, on my advice to lend it at interest, you lend it to a person from whom you cannot recover it, you will have no action of mandate against me: or if I recommend you to buy, and you lose by buying, I am not liable to be sued in action of mandate So settled is this, that it has been questioned, whether mandate can be brought on a specific recommendation to lend to Titius; Servius holds that no obligation arises in this case any more than in that of a general recommendation to lend money, but we adopt the opposite opinion of Sabinus, on the ground that the money would not have been lent to Titius, if there had been no recommendation
§ 157. It is clear that by a mandate to do an unlawful act, as to steal or commit a personal wrong, no obligation is contracted.
§ 158. A mandate to be executed after the death of the mandatary is invalid by the general rule that an obligation cannot commence with the heir.
§ 159 A valid authority is annulled by revocation before a commencement of execution.
§ 160. So the death of either the principal or the agent before a commencement of execution is a revocation of a mandate: but equity requires that, if after the death of a person giving a mandate and without having notice of his decease a mandatary execute his commission, he may recover against the heir of the principal in an action of mandate; for otherwise a justifiable and natural error would bring loss upon him Similar to this is the rule which is supported by the weight of authority, that a debtor who pays a manumitted steward without notice of his manumission is discharged of liability; though by the strict letter of the law he is not discharged, because he has not paid the person whom he was bound to pay.
§ 161. If a mandatary goes beyond his mandate, he may be sued for the amount which the person giving the mandate loses by its non-execution, if the execution was possible; and he will have no right of action against the person giving the mandate. So if I give you a mandate to purchase an estate for, say, a hundred thousand sesterces, and you purchase for a hundred and fifty thousand, you will have no action of mandate against me, although you are willing to convey to me for the price at which I authorized you to buy: so Sabinus and Cassius have decided. If you buy it for less, you will have a right of action against me, for a mandate to buy for a hundred thousand sesterces is regarded as an implied mandate to buy, if possible, for any smaller sum.
§ 162. Finally, the delivery of material to be wrought or fashioned gratuitously, where if a remuneration had been fixed there would have been a letting and hiring, is ground for an action of mandate; for instance, if I give clothes to a fuller to be cleaned or bleached, or to a tailor to be mended.
In the contract of mandate (mandatum) the principal is called dominus or mandator, the agent procurator or mandatary.
We have already mentioned, when treating of the verbal contract of stipulation, that a guaranty was often given by the consensual contract of mandate, §§ 110-127, comm. Such a mandate is called by commentators mandatum qualificatum, or Mandatum Credendi. We have the principle explained in § 156: he who recommends a third person as of good credit is bound to make good his representation and to indemnify another who sustains damage from giving credit on the faith of that representation. So by English law a person not interested in a transaction who makes a false and fraudulent misrepresentation which induces another to trust and contract with a third person is answerable for the loss occasioned by his misrepresentation.
As such a representation was in effect a guaranty, and to allow an action on a verbal misrepresentation would avoid the Statute of Frauds, which requires a guaranty to be reduced to writing, Lord Tenterden’s Act, 9 George IV, chapter 14, enacted that no action shall be brought whereby to charge any person upon any representation or assurance concerning the character, credit, or ability of any other person, to the intent that such other person may obtain money or goods upon credit, unless such representation or assurance be made in writing, signed by the party to be charged therewith.
Another case in which a guarantor and person guaranteed stand in the relation of mandant and mandatary occurs where A (the mandant), being indebted to B (the mandatary), directs or delegates B, at the risk of A, to obtain a promise by stipulation from a third party, C (a debtor of A’s), to pay to him (the mandatary) the debt which he (C) owes to the mandant. Tua et mandantis [gratia intervenit mandatum], . . . si mandet tibi, . . . ut ipsius periculo stipuleris ab eo quem tibi deleget in id quod tibi debuerat, Inst. 3, 26, 2. This is one example of what is known as ‘delegation,’ a general term embracing a variety of acts in all of which there is a direction or order, to a person to do some act by which the parties to a legal transaction are changed. Thus in every delegation there are at least three parties, the Delegans or person delegating some one else to another, the Delegatus, or person thus delegated, and the Delegatarius, or person in whose favour the delegation is made, and the intention of the parties is that the act to be performed by Delegatus in favour of Delegatarius shall have the same effect as if it had been performed in favour of Delegans.
The Delegatus may be directed to bind himself to the third party (promittere) instead of to the Delegans, as in the above instance, or to make some payment or to convey something to him (dare) or to release him from a debt (liberare). The object of the delegans in making the delegation may be to give security to a creditor, or to discharge his obligation to a creditor by giving him something in lieu of payment (Solvit et qui reum delegat, Dig. 16, 1, 8, 3), or to make a gift or grant a dos to a third party, or to make a loan to him (Si me . . . mutuam pecuniam rogaveris et ego meum debitorem tibi promittere jusserim, Dig. 12, 1, 32), or any other object. In the same way the act which Delegatus undertakes to do for the third party may have for its object the discharge of a debt which he owes to Delegans, or gift, or loan, &c. From what has been said it is clear that there is no necessary connexion between delegation and novation, and that delegatio may or may not involve novatio. It does so only if delegatus makes a promise to delegatarius by which an obligation due from him to delegans is put an end to, but where the act to be performed is dare or liberare no new obligation arises, so that there cannot, of course, be any novation. But in the above case of delegation (Inst. 3, 26, 3), the debtor delegated is discharged from his old debt to the person, who delegates him, by novation (cf. 2 § 38), while the new creditor, to whom he is delegated, has not only the action on the stipulation against him, but may also sue the Delegans by actio mandati contraria, if the actio ex stipulatu proves abortive. Hence in this way a creditor obtains security for his debt, his guaranty legally arising not from the delegatio itself, but from the contract of mandatum which accompanies it.
Civilians have drawn a distinction which we do not find in Roman law between delegatio and assignatio, the latter being an order on a person to pay a sum to the assignatarius on the demand of the latter, e. g. a cheque on a bank. Until payment assignans has a power of revoking the order, and assignatus may, apart from any contract with assignans, refuse to comply with the order; hence the maxim: assignation is not payment. But when payment has once been made, it has the same effect as if it had been made to assignans.
The Romans, no doubt, made great use of delegation in commercial and other transactions, especially when these were conducted by parties at a distance from one another. We know, e. g., that Cicero pater supplied Cicero filius when a student at Athens with money by the mediation of his friend Atticus who, as publican, had debtors in Greece. The procedure would be as follows:
Atticus (A, assignator), at the request of Cicero pater (C, assignatarius primus), orders Graeculus (B, assignatus) to pay to Cicero filius (D, assignatarius secundus) what Atticus owes to Cicero pater. The payment by Graeculus to Assignatarius secundus, D, discharges the debt of Graeculus to Atticus, the debt of Atticus to Cicero pater, and if D were an independent person, creditor of Cicero pater, the debt of Cicero pater to D.
Mandate might be employed to operate a kind of transfer of obligation, or rather perhaps the right of action arising from obligation, without, like Delegation or Novation, requiring the concurrence of the debtor, by Mandatum Agendi—the mandate by the creditor of his rights of action to a third party (mandare, cedere, praestare actiones). The creditor made the third party by mandate his processual representative (cognitor, procurator, cf. 4 §§ 83, 84), the understanding being that though the mandatary must carry on the action in the name of the mandator (cf. 4 § 86), he was in fact to recover for himself. Hence such an assignee in the form of a processual agent is called cognitor or procurator in rem suam, the benefit of the obligation, as distinct from the obligation itself, being transferred to him.
It was not without difficulty that this mode of assignment was rendered suitable for its purpose, the revocable nature of the contract of mandatum and the fact that it was put an end to by the death of either party being obstacles to its becoming so. But while a cognitor or procurator, after the stage of litis contestatio in an action had been reached, when the formula was issued, had control of the proceedings, and so could not after this be removed, it came to be established that notice to the debtor of the assignment of the debt should have the same effect in the way of preventing revocation as litis contestatio, so that from the date of notice the debtor was bound to pay the debt to the assignee; cf. Sohm, § 87. Moreover, in the event of the mandate being dissolved by death, the praetor allowed the representative of the assignee to recover by actio utilis.
In later Roman law subsequently, it appears, to the time of Gaius, actio utilis was given in all cases where an intention to assign was shown, although a mandatum agendi had not been given. By this praetorian action—which is supposed by some writers to have been based on the fiction that the assignee had been made procurator, but is more probably actio in factum—the assignee sued in his own name and not in that of his creditor. Cod. 4, 15, 5, Diocletian and Maximian, a. d. 294. In solutum nomine dato non aliter nisi mandatis actionibus ex persona sui debitoris adversus ejus debitores creditor experiri potest. Suo autem nomine utili actione recte utitur. Here we may seem to have the principle of the transferability of obligations recognized in Roman law.
But the cession or assignment was never completely detached from the person and liabilities of the assigning creditor. The cessionary or assignee was open to all the exceptions, except those of a purely personal nature, that might have been opposed to the original creditor, e. g. to compensation, or set-off of a debt, which the creditor owed the debtor; to exceptio non-numeratae pecuniae; and to an exception instituted by the lex Anastasiana, shortly before the time of Justinian, to stop the buying of claims for small sums, a statute which prevented any purchaser of a debt from recovering more than the price at which it was actually purchased. And similar objections might be raised in respect of any assignee intermediate between the original assignor and the final assignee. Thus though the actio utilis, no actio directa being possible, was brought in the name of the assignee, it may still be held that, according to the Roman view, it was only exercised in a kind of representative capacity, the bare obligation itself remaining with the original creditor. The complete transferability of obligations was unknown to jurisprudence until the law merchant gave validity to mercantile instruments, such as bills of exchange, passing freely from hand to hand; in other words, to papers payable to the Holder or Bearer, 2 § 259, comm.
In such papers the jus in personam is, as it were, incorporated in the document thus made freely assignable, the holder of an instrument of this kind being able to recover on it, although the person from whom he received it may not have been able to do so. We have instances of such papers (called negotiable) in Promissory Notes, Bills of Exchange, State obligations (documents expressing a claim against a government for a certain amount of capital debt, and having annexed to them coupons, representing claims of periodic interest), and some Debentures of industrial corporations (certificates of Shares in such industrial companies, though similar to Debentures as entitling the Holder to certain dividends or shares in the profits, are foreign to our present purpose, because they essentially and originally relate to Property or jus in rem, not to Obligation or jus in personam, the Shareholders being co-proprietors). By the use of such negotiable papers the transferability of Obligation is raised to a level with the transferability of Ownership, Savigny, Obligationenrecht, 62-70. It is to be remembered that the cession or assignment of which we have been speaking is a succession to a particular right, and is not to be confounded with the general assignment of rights and obligations in a successio per universitatem. Cession or assignment is in the strict sense the act of the creditor, but rights of action may also be transferred from one person to another by decree of a court or by the direct operation of a rule of law.
§ 161. The doctrine of Sabinus that if an agent exceed his powers in the price at which he purchases, the principal is not bound for the purchase-money even after deduction of the unauthorized excess, was not allowed to prevail, as we are informed by Justinian. See Inst. 3, 26, 8.
§ 162. It is only when the property of the mandator is entrusted to the mandatarius, such as in the cases here mentioned, that the contract of mandatum can fall under the head of Bailment.
The gratuitous character of mandatum was often in later Roman law rather nominal than real. The professor of a liberal art (operae liberales) could recover a remuneration which, however, was disguised under the name of salarium or honorarium, and could not be sued for by action of mandate before an ordinary judge, but was a matter for the extraordinary cognizance of the praetor or governor of a province. Adversus eum cujus negotia gesta sunt, de pecunia quam de propriis opibus vel ab aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris potes experiri. De salario autem quod promisit, apud praesidem provinciae cognitio praebebitur, Cod. (Emp. Severus and Antoninus) 4, 35, 1. ‘The person whose business you transacted, as to the moneys out of your own pocket or taken up at a loan which you spent for his use, may be forced by action of mandate to reimburse you the principal and interest. But as to the salary which he promised this is a matter falling within the jurisdiction of the president of the province.’ Under the liberal professions are included advocates, physicians, oculists, aurists, dentists, copyists (librarii), notaries, accountants, school-masters, nurses, rhetoricians, grammarians, geometers, land surveyors. The professors of philosophy and of civil law may receive fees voluntarily offered, but their functions are so exalted that it would be unseemly in them to ask for a pecuniary remuneration even at the tribunal of the praetor, Dig. 50, 13, 1. On the other hand, payment for services of an inferior kind (operae illiberales) could be enforced by actio locati.
The law of contractual agency was, as we have seen, only slowly developed in Roman jurisprudence. Originally the cases in which one person could bind another person by his contracts were confined to contracts made under certain circumstances by persons under power, that is to say, sons or slaves.
A right acquired by a son or slave was acquired for the father or master, 1 § 163, and when an obligation was enforceable by one of the actiones adjecticiae qualitatis, the father or master, or principal, could be sued upon it, 4 §§ 70-74. But in other cases the benefit or burden of a contract was confined to the parties contracting. The procurator or agent contracted with a third party in his own name: the third party recovered his dues from the agent by an action on the contract: and the agent would in turn recover his from the principal by an action on the mandate. There was no immediate relation between the third party and the principal, and any action in which the third party sued the principal or vice versa, could have only resulted from cessio actionum, i. e. an assignment of actions between the agent and principal, or the agent and the other party to the contract.
But in process of time, the manager of a shop (institor) and captain of a ship (magister) were enabled by praetorian law to make the employer and shipowner (exercitor) liable to third parties by means of the actions institoria and exercitoria, who could sue the principal, 4 § 71. This was gradually extended so as to allow to all persons who contracted with an agent having authority for the purpose a right of action, called quasi institoria, against his employer, as well as against the agent himself, who was the contracting party.
When the praetors, proceeding by timid and hesitating steps, had reached this point, the Roman law of agency had nearly approached the system we find established in modern Europe. Under this system it is a general rule, that when an agent is duly constituted and discloses the name of his principal, so as to enable the party with whom he deals to have recourse to the principal, and contracts in his name and on his behalf, and does not exceed his authority, the principal is responsible and not the agent. But in Roman law the free agent is never regarded simply as an instrument for bringing about an agreement between the parties interested, unless he is a mere nuntius. If he makes a contract for his principal he cannot escape being a party to it and so being liable under it; though by means of an actio adjecticiae qualitatis, the principal may also be rendered liable. See above, § 103 and 4 § 34.
After explaining obligations founded on contract, Justinian, Inst. 3, 27, treats of a miscellaneous group of obligations which are neither founded on contract nor on delict, but which, as the circumstances in which they arise and their effect resemble more or less the circumstances and effect of one or other of the legal contracts, are denominated by the name of obligations quasi ex contractu. These demand from us a brief notice.
Three of them, namely, those which ground the actions by or against a tutor, by or against a curator, by or against an unauthorized agent (negotiorum gestor), clearly resemble obligations founded on the contract of mandate. The ward and minor stand to the tutor and curator nearly in the relation of principal and agent, although they are legally incompetent to give an authority (mandatum) or confer a power of administration. A person who, in the absence and without the authority of another, voluntarily interfered to protect his interests (voluntarius procurator) incurred liability and acquired rights against the person in whose affairs he interfered. English law does not recognize a title to compensation in the case of voluntary interference, unless we find a parallel in the rights of salvors in the case of property lost or endangered on the ocean.
Three other obligations quasi ex contractu, those that are enforced by an action for division of common property between tenants in common (communi dividundo), by action for partition of an inheritance between co-heredes (familiae erciscundae), by an action for demarcation of boundaries between adjoining landowners (finium regundorum), resemble the obligations arising in partnership. These actions are distinguished from all others by the adjudicatio, a clause in the formula which empowered the judex by the mere effect of his judgment to operate a transfer of property, 4 § 42. They are called mixed actions by Ulpian, because both parties are equally plaintiff and defendant, Dig. 44, 7, 37, 1; by Justinian (Inst. 4, 6, 20), because they are both real and personal, that is, are founded on obligation, but are concerned also with questions between the parties concerning ownership or inheritance, which they have to decide, Keller, Civil Process, § 87; they were, however, regarded by the jurists as properly personal actions, as arising from a quasi-contractual relation.
The obligation of a heres to a legatee, enforceable by actio legati in personam or condictio ex testamento, is another case of obligatio quasi ex contractu. The aditio of the hereditas may be regarded as an undertaking to satisfy the bequests, if there are assets for the purpose. Aditio is called Obligatio, 2 §§ 35, 36.
Again, money paid by mistake or without consideration (indebitum solutum) created an obligation to repay, enforceable by indebiti soluti condictio, which closely resembles the obligation created by the contract of mutuum, see § 91.
§ 163. Expositis generibus obligationum quae ex contractu nascuntur admonendi sumus adquiri nobis non solum per nosmet ipsos, sed etiam per eas personas quae in nostra potestate manu mancipioue sunt.
Inst. 3, 28, pr.
§ 164. Per liberos quoque homines et alienos seruos quos bona fide possidemus adquiritur nobis, sed tantum ex duabus causis, id est si quid ex operis suis uel ex re nostra adquirant.
Inst. 3, 28, 1.
§ 165. Per eum quoque seruum in quo usumfiuctum habemus similiter ex duabus istis causis nobis adquiritur.
Inst. 3, 28, 2.
§ 166. Sed qui nudum ius Quiritium in seruo habet. licet dominus sit, minus tamen iuris in ea re habere intellegitur quam usufructuarius et bonae fidei possessor. nam placet ex nulla causa ei adquiri posse; adeo ut, etsi nominatim ei dari stipulatus fuerit seruus mancipioue nomine eius acceperit, quidam existiment nihil ei adquiri.
§ 167. Communem seruum pro dominica parte dominis adquirere certum est; excepto eo quod uni nominatim stipulando aut mancipio accipiendo illi soli adquirit, uelut cum ita stipuletur: titio domino meo dari spondes? aut cum ita mancipio accipiat: hanc rem ex ivre qviritivm l. titii domini mei esse aio eaqve ei empta esto hoc aere aeneaqve libra.
Inst. 3, 28, 3.
§ 167 a. Illud quaeritur an quod domini nomen adiectum efficit, idem faciat unius ex dominis iussum intercedens. nostri praeceptores perinde ei qui iusserit soli adquiri existimant, atque si nominatim ei soli stipulatus esset seruus mancipioue accepisset. diuersae scholae auctores proinde utrisque adquiri putant, ac si nullius iussum interuenisset.
Inst. l. c.
§ 163. Having thus explained the different kinds of obligations produced by contract, we remark that obligations may be acquired not only by our own contracts, but also by the contracts of persons in our power, in our hand, or in our mancipium.
§ 164. Free persons, also, and the slaves of another person, acquire for the person who has bona fide possession of them as his slaves; but they only do so in two cases, that is if they acquire anything by their own labour, or from the property of the person who has bona fide possession of them.
§ 165. A slave held in usufruct similarly acquires for the usufructuary in the above two cases.
§ 166. A person who has the bare quiritary property in a slave, although he is his owner, has less right in his acquisitions than the usufructuary or bona fide possessor; for under no circumstances are the acquisitions of the slave acquired for him; so that even when the slave expressly stipulates for him or accepts a thing in mancipation on his account, according to some authorities, such a bare owner acquires no right.
§ 167. A common slave acqunes for all his proprietors in the proportion of their property, unless he names one exclusively in a stipulation or mancipation, in which case he acquires for him alone. For instance, if he stipulates thus: ‘Dost thou promise to convey to Titius, my master?’ or, when he takes by mancipation, thus: ‘This thing by quiritary law I declare to be the property of Lucius Titius, my master, and for him be it purchased by this piece of bronze and bronze balance.’
§ 167 a. It is a question, whether the same effect is produced by the exclusive order of one of the masters, as by the exclusive mention of the name of one. My school maintain that the sole orderer is the sole acquirer, just as when one alone is named by the slave in a stipulation or mancipation; the other school maintain that all the owners acquire, just as if there had been no order.
§ 163. Justinian enacted, as we have seen, that while the peculium profecticium of the filiusfamilias, that is, the peculium which he derived from his father, remained the property of the father; and while in respect of peculium castrense and quasi castrense the son was in the position of paterfamilias, or absolute owner; in respect of peculium adventicium, that is, other peculium derived from any other source than the father, only the usufruct should vest in the father, subject to which the ownership remained in the son. In respect of the obligations acquired by the son, the same principle was to prevail, Inst. 3, 28, pr. ‘What is realized from obligations acquired by a son shall be divided, as his property is by our constitution, into ownership and usufruct; so that the usufruct of the proceeds of any action shall vest in the father, and in the son as owner, the whole right of action vesting in the father, according to the distinctions expressed in the statute.’
§ 167 a. Justinian decided this question in favour of the doctrine of Sabinus, Inst. 3, 28, 13.
To the persons through whom an obligation could be acquired might be added in modern systems of law the procurator or agent, when the contract of the agent is treated as if it had been made by the principal himself. But Roman law always regarded the agent who made the contract as the party to it, in other words it did not admit the principle of contractual agency. Cf. § 162, comm.
§ 168. Tollitur autem obligatio praecipue solutione eius quod debetur. unde quaeritur, si quis consentiente creditore aliud pro alio soluerit, utrum ipso iure liberetur, quod nostris praeceptoribus placuit, an ipso iure maneat obligatus, sed aduersus petentem exceptione doli mali defendi debeat, quod diuersae scholae auctoribus uisum est.
Inst. 3, 29, pr.
§ 169.Item per acceptilationem tollitur obligatio. acceptilatio autem est ueluti imaginaria solutio; quod enim ex uerborum obligatione tibi debeam, id si uelis mihi remittere, poterit sic fieri, ut patiaris haec uerba me dicere qvod ego tibi promisi, habesne acceptvm? et tu respondeas: habeo.
Inst. 3, 29, 1.
§ 170. Quo genere, ut diximus, 〈tantum eae obligationes soluuntur, quae ex uerbis consistunt,〉 non etiam ceterae; consentaneum enim uisum est uerbis factam obligationem posse aliis uerbis dissolui. sed id quod ex alia causa debeatur potest in stipulationem deduci et per 〈acceptilationem dissolui
Inst. l c.
§ 171.Quamuis autem dixerimus fieri〉 acceptilationem imaginaria solutione, tamen mulier sine tutoris auctoritate acceptum facere non potest, cuin alioquin solui ei sine tutoris auctoritate possit.
§ 172. Item quod debetur, pro parte recte soluitur; an autem in partem acceptum fieri possit, quaesitum 〈est〉.
§ 173. Est etiam alia species imaginariae solutionis per aes et libram. quod et ipsum genus certis in causis receptum est, ueluti si quid eo nomine debeatur, quod per aes et libram gestum sit, siue quid ex iudicati causa deb〈eatur.
§ 174.Eaque res ita ag〉itur: adhibentur non minus quam quinque testes et libripens. deinde is qui liberatur ita oportet loquatur: qvodego tibi tot milibvs condemnatvs svm, me eo nomine a te solvo liberoqve hoc aere aeneaqve libra. hanc tibi libram primam postremamqve expendo 〈secvndvm〉 legem pvblicam. deinde asse percutit libram eumque dat ei a quo liberatur, ueluti soluendi causa.
§ 175. Similiter legatarius heredem eodem modo liberat de legato quod per damnationem relictum est, ut tamen scilicet, sicut iudicatus condemnatum se esse significat, ita heres testamento se dare damnatum esse dicat. de eo tamen tantum potest heres eo modo liberari, quod pondere numero constet; et ita si certum sit. quidam et de eo quod mensura constat idem existimant.
§ 176. Praeterea nouatione tollitur obligatio; ueluti si quod tu mihi debeas, a Titio dari stipulatus sim. nam interuentu nouae personae noua nascitur obligatio et prima tollitur translata in posteriorem, adeo ut interdum, licet posterior stipulatio inutilis sit, tamen prima nouationis iure tollatur; ueluti si quod mihi debes, a Titio post mortem eius uel a muliere pupilloue sine tutoris auctoritate stipulatus fuero. quo casu rem amitto; nam et prior debitor liberatur et posterior obligatio nulla est. non idem iuris est, si a seruo stipulatus fuero; nam tunc 〈prior〉 proinde adhuc obligatus tenetur, ac si postea a nullo stipulatus fuissem.
Inst. 3, 29, 3.
§ 177. Sed si eadem persona sit a qua postea stipuler, ita demum nouatio fit, si quid in posteriore stipulatione noui sit, forte si condicio aut dies aut sponsor adiciatur aut detrahatur.
Inst. l. c.
§ 178. Sed quod de sponsore diximus, non constat; nam diuersae scholae auctoribus placuit nihil ad nouationem proficere sponsoris adiectionem aut detractionem.
§ 179. Quod autem diximus, si condicio adiciatur, nouationem fieri, sic intellegi oportet, ut ita dicamus factam nouationem, si condicio extiterit; alioquin si defecerit, durat prior obligatio. sed uideamus, num is qui eo nomine agat doli mali aut pacti conuenti exceptione possit summoueri, quia uidetur inter eos id actum, ut ita ea res peteretur, si posterioris stipulationis extiterit condicio. Ser. tamen Sulpicius existimauit statim et pendente condicione nouationem fieri, et si defecerit condicio, ex neutra causa agi posse 〈et〉 eo modo rem perire. qui consequenter et illud respondit, si quis id, quod sibi L. Titius deberet, a seruo fuerit stipulatus, nouationem fieri et rem perire, quia cum seruo agi non posset. 〈sed〉 in utroque casu alio iure utimur. nec magis his casibus nouatio fit, quam si id quod tu mihi debeas a peregrino, cum quo sponsus communio non est, spondes uerbo stipulatus sim.
Inst. l. c.
§ 180. Tollitur adhuc obligatio litis contestatione, si modo legitimo iudicio fuerit actum. nam tunc obligatio quidem principalis dissoluitur, incipit autem teneri reus litis contestatione; sed si condemnatus sit, sublata litis contestatione incipit ex causa iudicati teneri. et hoc 〈est〉 quod apud ueteres scriptum est, ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere.
§ 181. Vnde fit, ut si legitimo iudicio debitum petiero, postea de eo ipso iure agere non possim, quia inutiliter intendo dari mihi oportere, quia litis contestatione dari oportere desiit. aliter atque si imperio continenti iudicio egerim; tunc enim nihilo minus obligatio durat, et ideo ipso iure postea agere possum, sed debeo per exceptionem rei iudicatae uel in iudicium deductae summoueri. quae autem legitima iudicia et quae imperio continentia 〈sint〉, sequenti commentario referemus.
§ 168. Extinction of an obligation is effected chiefly by actual performance of that which is owed. Hence it is disputed, whether when a person with the consent of his creditor makes a different performance in the place of the one contracted for, he is directly discharged by law of his obligation, as my school consider him to be, or whether he nevertheless continues to be bound by direct law, but against a plaintiff trying to enforce his claim, may defend himself by the exception of fraud, as the other school maintain.
§ 169. Acceptilation is another mode of extinguishing an obligation. Acceptilation is, as it were, an imaginary performance of an obligation (imaginaria solutio). If a creditor is willing to release what a person owes him under a verbal obligation, the object may be accomplished by the latter interrogating him in these terms: ‘That which I promised thee hast thou received?’ upon which he answers: ‘I have received it.’
§ 170. This process, as I said, only discharges obligations that arise from verbal contract, not others; for it seems to be consistent that when an obligation is made by words, it should be dissoluble by other words. However, a debt due from any other cause may be transformed into a stipulation, and released by acceptilation.
§ 171. But notwithstanding our statement that acceptilation is an imaginary payment, a woman without her guardian’s sanction cannot release by acceptilation, although actual payment to her without her guardian’s sanction discharges the debtor.
§ 172. So a debt may be legally paid in part, but whether it can be released in part by acceptilation is a question.
§ 173. There is another mode of imaginary payment, namely, by bronze and balance (per aes et libram). This also is only employed in certain cases, as when a debt is due on account of a proceeding per aes et libram, or in case of a judgment debt.
§ 174. This proceeding is thus effected. There must be present five witnesses and a holder of the scales, and the person to be released must say these words: ‘Whereas I am condemned to thee in so many thousand sesterces, that debt I pay and discharge by this bronze and balance of bronze. This is the first, this the last, pound of bronze that I weigh out to thee according to the public statute (the Twelve Tables).’ Then he strikes the scales with the bronze money and gives the latter to the creditor as if in payment.
§ 175. Similarly, the legatee releases the heir from a legacy left in the form of condemnation (per damnationem), except that whereas the judgment debtor recites the fact that he is a condemned person (condemnatum), the heir recites that he is charged (damnatum) by the testament of the deceased to pay the legacy. An obligation can be thus discharged only if certain in amount and estimated by number or weight, or, according to some, by measure.
§ 176. Novation is another mode of extinguishing an obligation, as when I stipulate with Titius that he shall pay me what you owe me, for the intervention of a new person gives birth to a new obligation, and the first obligation is done away with, being transformed into the succeeding one. So much so that sometimes, even though the new stipulation is invalid, the previous one is done away with by novation; for instance, if you owe me a sum, and I stipulate from Titius payment thereof after his death, or if I stipulate payment thereof from a woman or ward (pupillus) without the guardian’s sanction, in this case my claim is extinguished, for the first debtor is discharged, and the subsequent obligation is void. The same does not hold if I stipulate from a slave, for then the former debtor continues bound, just as if there was no subsequent stipulation.
§ 177. But when the original debtor is himself the promisor, a second stipulation only operates a novation if it contains something new; if a condition, for instance, or a time for payment, or a sponsor, is added or omitted.
§ 178. Respecting the sponsor, however, this statement is not free from doubt, for the other school held that novation is not operated by a sponsor being added or omitted.
§ 179. The statement that the introduction of a condition operates a novation must be restricted to mean, that a novation is produced if the condition is accomplished; for otherwise if the condition fails the prior obligation continues in force. However, it is a question, whether the creditor who sues on such a prior obligation cannot be repelled by the exception of fraud (doli), or of informal agreement not to sue; since it seems to have been the intention of the parties that the debt should be only recoverable if the condition of the second stipulation were realized. Servius Sulpicius even held that novation occurs immediately, and while the accomplishment of the condition is still uncertain; and that, if the condition fails, neither obligation can be sued upon, and the creditor’s claim is extinguished; and, consistently herewith, he held that, if the debt due from Lucius Titius is stipulated by the creditor from his slave, novation takes place, and while the original obligation is extinguished, the second is void because the slave cannot be sued. But in both cases the contrary rule prevails, and no novation occurs in these cases any more than it occurs if an alien, who cannot be sponsor, promise payment of a debt due from you to me by the solemn term ‘spondeo.’
§ 180. The extinction of an obligation is also effected by joinder of issue (litis contestatio), at least of a statutable action (judicium legitimum, 4 § 104). Then the original obligation is dissolved, and a new obligation is imposed on the defendant, by joinder of issue. But if he is condemned, the obligation arising from joinder of issue is discharged, and a new obligation arises from the judgment. Hence the saying of the old jurists, that, before action brought, a debtor is bound to pay his debt; after joinder of issue he is bound by the condemnatio of the formula; after condemnation passed, he is bound to satisfy the judgment.
§ 181. Accordingly, after suing by statutable action, the extinction of the original obligation disables me by strict law from bringing a second action, for the declaration that the defendant is bound to convey something to me is false, as joinder of issue in the first action terminated his obligation. It is otherwise if I sued at first by an action depending on the executive power (imperium) of the praetor, 4 § 105. For then the original obligation continues, and so, according to strict law, its non-extinction permits me to bring a second action; but I may be repelled by the exception of previous judgment (res judicata) or previous joinder of issue (res in judicium deducta) What actions are statutable, and what determine with (or, derive their force from) the praetor’s executive power, will be explained in the next book of these Institutes.
§ 168. Gaius only considers at present the modes of extinguishing an obligation, i. e. the modes whereby an obligation ceases to exist. In the next book, 4 § 115, he will treat of the exceptio, that is to say, a defence to an action whereby, though the right of the plaintiff continues to exist, it is deprived of its operation by being confronted with an adverse right of the defendant; which defence required to be alleged with the permission of the praetor in a special clause of the formula called the exceptio.
Every obligation, as we have seen, 3 § 88, comm , relates to a certain dare, facere, or praestare; that is to say, the actual performance (solutio) of every obligation will consist in either dare, facere, or praestare.
The doctrine of Sabinus, that a substituted performance with the consent of the creditor (in solutum datio) operates the extinction of an obligation, was the view that ultimately prevailed. Manifesti juris est, tam alio pro debitore solvente, quam rebus pro numerata pecunia consentiente creditore datis tolli paratam obligationem, Cod. 8, 42, 17. ‘It is certain that payment by a third person, or the substitution of other things for money, with the consent of the creditor, discharges an obligation.’
§§ 169, 170. Acceptilation, the release of an obligation contracted by stipulation by means of a contrary stipulation, was probably at first not a mode of discharge by itself but had to be accompanied by an actual payment of the debt. Subsequently it operated as a release by the fiction of payment having been made—acceptilatio estveluti imaginaria solutio (cf. Sohm, § 89). It was only, however, a form of release from verbal obligations, but Aquihus Gallus, the colleague of Cicero in his praetorship, the pupil of Quintus Mucius and teacher of Servius Sulpicius, the inventor of formulas relating to dolus malus, Cic. de Off. 3, 14, made it a mode of releasing from all obligations by a general form called acceptilatio Aquiliana, which is here referred to, cf. Inst. 3, 29, 2. ‘There is a stipulation called Aquilian, whereby all obligations are transmuted into a verbal one, and forthwith discharged by acceptilation For the Aquilian stipulation operates a novation of all pre-existing debts, and is thus expressed: “Whatever thing, on whatever title, thou art or shalt be bound to convey to me or to perform for me now or hereafter, absolutely or conditionally; whatever thing I have or shall have an action, personal, real, or extraordinary, against thee to recover; whatever thing of mine thou hast, detainest, possessest, hast possessed, or hast fraudulently parted with possession of; whatever sum is the value of all these things, that sum dost thou promise to pay me?” so asks Aulus Agerius, and Numerius Negidius answers: “I promise.” Then Numerius Negidius asks of Aulus Agerius: “Whatever I have promised thee to-day by the Aquilian stipulation, hast thou received it all in full?” and Aulus Agerius answers: “I have, and have given thee my release.” ’
The narrative form (stipulatus est, spopondit, interrogavit) in which the transaction is expressed by Justinian, properly belongs, not to the stipulation and acceptilation, but to the written memorandum (cautio) in which they are recorded.
§ 172. It was subsequently an established doctrine that a partial release by acceptilation was valid, Dig. 46, 4, 13, 1.
§§ 173-175. It might perhaps have been expected that the release of a legacy would be operated per aes et libram, because the will containing the bequest was a transaction per aes et libram, on the principle that all obligations may be released by the process whereby they were contracted. Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est: ideo verborum obligatio verbis tollitur: nudi consensus obligatio contrario consensu dissolvitur, Dig 50, 17, 35. Omnia quae jure contrahuntur contrario jure pereunt, Dig 50, 17, 100. Fere quibuscunque modis obligamur, iisdem in contrarium actis liberamur, Dig 50, 17, 153. ‘To every mode of obligation there is an obverse mode of liberation.’
But nexi liberatio is only applicable to legatum per damnationem, nor is it easy to explain why a judgment debt and legacy in this form could only be released by the proceeding with the bronze and scales It was evidently the appropriate way of discharging nexal debtors, and, when it came to be accompanied by only an imaginary payment, was apparently used as a general form for releasing all debtors who were in the position of nexi, including not only judgment debtors, but also an heir solemnly charged with the payment of a legacy by the form of condemnation (per damnationem). Cf. Sohm, § 89.
It is to be noticed that Gaius says nothing of exoneration from an obligation contracted literis, but it is clear that as a debt could be constituted by expensilatio, so it could be cancelled by a corresponding accepti relatio.
A consensual contract, not yet followed by partial execution (re nondum secuta, Inst. 3, 29, 4), could be dissolved by a contrary agreement (or in the cases of mandate and partnership by mere dissent). Hae obligationes quae consensu contrahuntur contraria voluntate dissolvuntur, ibid ‘Obligations which consent creates, a contrary accord dissolves.’ But after a part performance, that is performance by one of the parties, the contract must not be thus abandoned by the other unless he made restitution, Cod. 4, 45, 1.
Not only could the obligation created by consensual contract be extinguished by consent, but obligation created by delict could by certain statutes or otherwise be obliterated by agreement or compromise, or at least made unenforceable. Legitima conventio est quae lege aliqua confirmatur, et ideo interdum ex pacto actio nascitur vel tollitur quotiens lege vel senatusconsulto adjuvatur, Dig. 47, 10, 6. Thus the obligations and actions arising out of outrage (injuriarum) and theft could be extinguished by the parties coming together, in the latter case, by enactment of the Twelve Tables.
§ 176. It seems irrational that an invalid contract should be held to operate a novation, but an agreement might be valid as obligatio naturalis though unenforceable at Civil law; and in respect of Novation naturalis obligatio was placed on a level with civilis obligatio. Novatio est prioris debiti in aliam obligationem, vel civilem vel naturalem, transfusio atque translatio, hoc est cum ex praecedenti causa ita nova constituatur ut prior perematur. . . . Qualiscunque igitur obligatio sit quae praecessit, novari verbis potest, dummodo sequens obligatio aut civiliter teneat aut naturaliter, ut puta si pupillus sine tutoris auctoritate promiserit, Dig. 46, 2, 1. ‘Novation is the merger and transfer of a prior debt into a subsequent obligation, civil or natural; or the destruction of a prior obligation by the constitution of a new one. Every kind of obligation can undergo novation by verbal contract, provided that the subsequent obligation binds either as civilly enforceable or as merely a natural one, as the promise of a ward without his guardian’s sanction.’
§ 177. We have already seen an instance of novation when treating of delegatio, §§ 155-162, comm., the satisfaction of a debt by substitution of a debtor. The substituted debtor who discharges by stipulation the first is called an expromissor, §§ 110-127, comm.
§ 178. We see by Justinian, Inst. 3, 29, 3, that the addition or omission of a fidejussor was finally held to operate a novation.
§ 179. Servius Sulpicius was wrong because novation implies a subsequent obligation, but a conditional obligation is really no obligation until the condition is realized. So if the prior obligation is conditional and the second obligation absolute, the novation is not absolute but conditional, because there is really no prior obligation until the condition is realized, at which moment novation takes place, and the prior obligation is extinguished.
Justinian, on account of the frequency of disputes as to whether the parties had the intention of novation, enacted that no contract should operate a novation, unless the stipulating parties expressly declared their intention that such novation should be produced, Inst. 3, 29, 3 a; Cod. 8, 41, 8.
§ 180.Litis contestatio, Joinder in issue, or the settlement of the issue to be tried by the judex, denoted, under the system of statute-process, when pleadings were oral, the close of the proceedings in jure, when, the praetor having allowed an action, each party called those who were present to attest the nature of the issue allotted to be tried. Festus. ‘Contestation is when both parties exclaim, “Give your attestation.” It marks the definitive settlement of the issue to be tried.’ Under the formulary system the term was still employed, but marked the moment when the praetor delivered the written formula containing the commission of the judex. Under the third period of the law, when the praetor or highest judicial functionary was himself the judex, that is, no longer delegated the cause to a judex privatus, but either heard and determined it himself or delegated his authority to an official (judex pedaneus), Litis Contestatio denoted the commencement of the trial before the judex. Lis enim tunc contestata videtur, quum judex per narrationem negotii causam audire coeperit, Cod. 3, 9, 1. ‘Litis contestatio is the moment when the judge begins to hear the recital of the cause of action.’ By legitima judicia, 4 § 103, Gaius denotes those actions in the formulary procedure which by provision of the lex Aebutia, whereby statute-process was abolished, were put on the same footing as the legis actiones and so had the same effect, in respect of novation and otherwise, as this statute-process, which they superseded, cf. Sohm, pp. 260, 267. Actions terminable with the praetorship were such actions as did not derive their validity from the lex Aebutia, but simply from the executive power of the praetor (quae imperio continentia, § 101, cf. 4 § 105).
The transformations of Litis contestatio which are described above were not the last that it was destined to undergo. In the first stage of procedure under the Canon law, after the libellus of the plaintiff had been read aloud, the judge asked the plaintiff whether he abided by his suit; and, on his answer in the affirmative, his libellus was contradicted by the defendant in general terms (nego narrata prout narrantur et dico petita fieri non debere). The detailed contention of the parties over the particular averments of the plaintiff did not follow till a subsequent stage.
In Germany in a. d. 1654 an ordinance of the empire required the defendant to answer all the allegations of the plaintiff and adduce all his own exceptions at the first stage: and, as in practice the reading of the plaintiff’s libellus was omitted, the Litis contestatio, or first term or stage of the suit, consisted in this detailed answer of the defendant. Subsequently, when written documents superseded oral procedure, the Litis contestatio was identified with the defendant’s delivery of what was called his book of exceptions.
The Novation produced by Litis contestatio is called by modern writers Novatio necessaria. It has not all the incidents of Novatio voluntaria, or Novation induced by agreement: for instance, as Litis contestatio must not deteriorate the position of the creditor, the object of its incidents being to remove the disadvantages which he suffers from the duration of the suit, it does not extinguish the accessories of the principal obligation, e. g. interest, fidejussio, hypotheca, Dig. 46, 2, 29. It originally, as we have seen, in consequence of the Correality of the Fidejussor, i. e. the unity of his obligation with that of the principal, extinguished the liability of the Fidejussor: but this rule, as we have mentioned, was abrogated by Justinian, who enacted that the liability of the Fidejussor could not be extinguished by Litis contestatio, but only by Solutio.
Nor, secondly, did Novatio necessaria, though it extinguished Civilis obligatio, prevent, like Novatio voluntaria, the continuance of Naturalis obligatio, Dig. 12, 6, 60.
Under Justinian Litis contestatio lost half of its effect: it still retained the positive function of generating a new obligation; but it ceased to have the negative function of extinguishing the old obligation. From this time, accordingly, we cease to hear of process-consumption of this kind whether extinctive (litis consumptio ipso jure) as relating to statutory actions, or counteractive (exceptio rei in judicium deductae) as relating to actions dependent on the authority of the praetor. Indeed the former of these (litis consumptio ipso jure) had disappeared long before, contemporaneously with the disappearance of legitima judicia; that is to say, with the abolition under Diocletian of the ordo judiciorum (formulary system), and the transformation of all procedure into cognitio extraordinaria.
Gaius attributes a Novative power not only to Litis contestatio, but also to Judgment (res judicata). Judgment, like litis contestatio, has two functions, one Negative, the other Positive. By its Negative operation it extinguishes the previous right of action: by its Positive it entitles, in the event of Condemnatio, to Execution. The Positive function is in the interest of the plaintiff: the Negative principally in the interest of the defendant. Under Justinian the novative effect of Judgment, as well as that of Litis contestatio, was considerably altered. It was partly narrowed: e. g. an absolution on the ground of Plus petitio, 4 § 53, or of a dilatory exception, 4 § 120, no longer grounded an exceptio rei judicatae: and it was partly extended: for instance it founded exceptio rei judicatae not only in respect of the principal question, but also in respect of incidental questions, whose decision was preliminary to that of the principal question, and in respect of any exceptions or replications. In view of these changes it is said that Res judicata, like Litis contestatio, while it retained its positive functions, lost its negative functions. But while it still generated an exceptio rei judicatae it seems difficult to say that it ceased to have a negative or consumptive operation: though this was attenuated, and made more rigorously subsidiary to the positive operation; and was henceforth left entirely to the discretion of the praetor.
The present seems to be the most convenient occasion that we shall find for gathering together in one conspectus the various operations and effects of Litis contestatio: fuller explanations of each will be found scattered over this treatise in connexion with the various matters to which such operations relate.
1. The principal operation was originally the processual consumption of a right of action (litis consumptio) which has just been described: the barring of any subsequent suit in virtue of the maxim: De eadem re ne bis sit actio, Quintilian, 7, 6, 1, either by extinction (ipso jure) or by counteraction (ope exceptionis) of the plaintiff’s right to sue. This occurred, as we shall see, 4 § 103, even when in consequence of process-prescription there was no judgment, or when, by reason of Plus petitio or some dilatory plea, there was a judgment against the plaintiff but not upon its merits. The operation was gradually abrogated before the time of Justinian, only leaving traces of itself in the Novatio necessaria, which extinguished indeed civilis obligatio but left a naturalis obligatio, sufficient to support the pignora or hypothecae by which the plaintiff was protected. Processual consumption had only considered the Intentio of the action that was brought: the exceptio rei judicatae, by which in later times the same or similar objects were accomplished, regarded the exact import of the Sententia. The most signal departure from the principle of processual consumption was perhaps Justinian’s constitution, Cod. 8, 40, 28, concerning Correality and Fidejussio, §§ 110-127, comm. As Correality is a single obligation imposed on several debtors, a suit against one extinguished the obligation of the remainder: e. g. a suit brought against a principal extinguished the right of suing the surety, and vice versa. Justinian enacted that the obligation of the remaining correal debtors should not be extinguished even by judgment against one, but only by complete satisfaction of the plaintiff’s claim.
2. (a) Litis contestatio, in the classical period, by interrupting Prescription, 4 §§ 110-113, comm., saved the plaintiff’s title from being barred by lapse of time. At a later period, Prescription was interrupted by a still earlier event, Insinuatio or registration in court. As soon as Prescription of the right of action was thus interrupted, Prescription of pendency began to run, 4 §§ 104, 105.
Moreover, respecting the plaintiff’s Title or ground of action it is a general rule that no causa superveniens, or entitling event, subsequent to Litis contestatio can avail to save the plaintiff from losing the action already brought, though it may give him the right to bring another. Further, as a general rule, the ground of action must not only exist before Litis contestatio but must continue up to condemnatio. Otherwise in virtue of the maxim: Omnia judicia esse absolutoria, though there was a difference of opinion between the Sabinians and Proculians on this point, 4 § 114, the defendant will be absolved. E. g. if the defendant in a condictio furtiva was a conditional legatee of the thing which he has stolen from the heir who sues him for damages, and the condition is fulfilled after Litis contestatio, the defendant is acquitted, Dig. 13, 1, 14, pr.
(b) Litis contestatio made an exception to the latter rule in respect of the ancient institution of Usucapio; which though not interrupted by litis contestatio, did not entitle the defendant to absolution, as litis contestatio made it revocable, Dig. 6, 1, 18. Longi temporis praescriptio, like other forms of Prescription, was interrupted by litis contestatio, or, in later times, by Insinuatio: and from Cod. 7, 33, 10 and Cod. 7, 40, 2, this seems to have been the result when Justinian transformed longi temporis possessio into Usucapion. Savigny, however, § 261, and Vangerow, § 160, hold that then the rule of Prescription was in this respect superseded by the rule of Usucapion: that litis contestatio or insinuatio produced, that is to say, not interruption but liability to revocation. (As to this difference between Usucapio and longi temporis possessio, see Grueber’s Lex Aquilia, p. 240, and Windscheid’s Pandekten, § 180, note 7.)
(c) Litis contestatio produced another exception to the rule in the event of the destruction of the subject of litigation by casualty (casus). In Real actions if the defendant is a Mala fide possessor: in Personal actions if he is a debtor chargeable with mora, destruction of the subject, although ascribable to Casus, and notwithstanding the maxim: Impossibilium non est obligatio: does not save the defendant from condemnation. In the absence of Mala fides and Mora, casual destruction of the subject entitles the defendant, in virtue of the above maxim, to absolution.
(d) Litis contestatio makes transmissible a right of action which before was untransmissible, 4 § 112, comm. Vindictive actions (actiones vindictam spirantes), so long as there has been no litis contestatio, are incapable of active transmission; i. e. transmission to the heir of the plaintiff: and penal actions are incapable of passive transmission; i. e. transmission to the heir of the defendant. But when once litis contestatio has taken place, these actions, in the event of the subsequent death of the plaintiff or defendant, become capable respectively of active and passive transmission.
(e) In an action arising from delict when a man is only suable to the extent of his enrichment thereby, the question whether he is enriched or not is decided entirely by his circumstances at the moment of litis contestatio.
It was stated that as a general rule the plaintiff’s title to judgment was required to be in existence before litis contestatio. This is subject to exception in respect of some of the subordinate elements of title, certain minor conditions of judgment in his favour which agree in the common character that, in the formulary period, they were not expressed, as conditions of the judgment, in the intentio of the formula. E. g. in vindicatio the possession of the subject by the defendant, although it commences after litis contestatio, suffices to render him liable to be condemned. So in the actio de peculio, the existence of a peculium; in the actio mandati, the existence of moneys belonging to the principal in the hands of the agent; in the actio pigneraticia, the satisfaction of the debt by the mortgagor; all respectively conditions of a judgment in favour of the plaintiff, render the defendant liable to condemnatio even when they are events subsequent to the institution of the suit.
The same applies to certain exceptions: in the exceptio divisionis the question respecting the solvency of co-guarantors, § 121, and in the beneficium competentiae, 4 §§ 39-44, comm., the question respecting the means of the defendant is decided according to the circumstances in existence at the moment of condemnation.
3. Litis contestatio has hitherto been considered in respect of its influence on the Conservation or Destruction of a ground of action. We proceed to its effect on the Amount of the condemnation or of the damages to be awarded.
(a) To save the plaintiff from being injured by the unavoidable duration of the suit, without, however, deterring the defendant from the defence of what he honestly believes to be his rights, a judgment against the defendant requires him to restore Omnis Causa, i. e. omne quod habiturus esset actor, si statim judicii accepti tempore res ei reddita fuisset, Dig. 6, 1, 20, all that the plaintiff would have had if restitution had been made to him at the moment of litis contestatio. This implies the restitution of Fructus, all the gain of whatever nature that the defendant has derived from the fact of possession. If the object claimed is a sum of money, the defendant, notwithstanding the absence of mora, must pay Interest from the date of litis contestatio, cf. 2 § 280, comm.
(b) After litis contestatio the defendant, the bona fide possessor as well as the mala fide possessor, the debtor free from mora as well as the debtor chargeable with mora, is liable for Culpa of every kind and degree, and responsible for the destruction and deterioration thereby occasioned. E. g. he is liable for neglected fruits (fructus percipiendi) as well as for fructus consumpti and fructus extantes, for the omission to collect the fruits is a piece of culpable supineness.
(c) Litis contestatio in actiones stricti juris fixes the moment to be regarded in the valuation of the plaintiff’s interest in the subject of dispute (litis aestimatio). In bona fide actions this date is given by the moment of Condemnatio. See 4 §§ 45-52, comm.
4. Litis contestatio affects the character of the object of litigation, which it converts into res Litigiosa, thereby rendering unlawful its alienation by the plaintiff or defendant. See 4 § 117 a.
§ 182. Transeamus nunc ad obligationes quae ex delicto nascuntur, ueluti si quis furtum fecerit, bona rapuerit, damnum dederit, iniuriam commiserit; quarum omnium rerum uno genere consistit obligatio, cum ex contractu obligationes iniiii genera diducantur, sicut supra exposuimus.
§ 182. We proceed to obligations which originate in delict; theft, for instance, rapine, damage to property, or outrage; which are all of one kind, whereas contractual obligations are divided into four classes, as we have explained above.
All actions suppose the violation of some right, but they are not necessarily founded on a wrong or delict. Thus a possessor of another man’s property, though no wrong be imputable to him, is subject to vindicatio. Actions on contract, however, suppose a wrong, namely, a wrongful act or omission constituting a breach of contract, but the plaintiff recovers damages with the object merely of putting him in the same position as if the contract had been fulfilled. Delict (delictum, maleficium), on the other hand, is generally used in a limited sense, to signify any wrong or unlawful act in itself, such as theft or assault, regarded as specially injurious apart from the loss which it causes. In early law indeed the default of a debtor is treated as if it were a delict, but in later times the acts which the law designates as delicts involve a violation not of a jus in personam or right available against a determinate person, but of a jus in rem or right available against all the world, such acts as are considered especially injurious to the individual or to the community.
Delicts or wrongs came to be divided into public and private. Public wrongs are those delicts called crimes, private wrongs are those delicts which in early times were left to private vengeance, for which an action brought by the injured party against the wrongdoer was afterwards substituted. Injuries, which in modern law are punished exclusively as crimes, could throughout the history of Roman law be vindicated by the injured party as private wrongs. Crimes have been defined to be such unlawful acts as are injurious in the first instance to the State; civil injuries, such as are harmful, principally or exclusively, to private individuals. But this definition is not satisfactory, because all or most crimes are injurious to private individuals, and all or most civil injuries are harmful to the community. A better definition is the following: Crimes are those unlawful acts which the state itself visits with punishment, considering them to be specially injurious to its interests; private delicts are unlawful acts or offences which the injured party may himself vindicate by action. The same unlawful act which in one stage of society is pursued as a private delict may, at a subsequent stage, be punished as a crime. So, again, in later Roman law the same delictal act, e. g. furtum, might be pursued either as a crime or as a civil injury.
The following may be taken as a kind of rough classification of actions. Every right of action arises out of a violation of some positive or negative duty.
(1) A violation of a positive duty to perform or negative duty of forbearance may be a violation of a jus in personam, and found an action for breach of contract, called an action ex contractu, or may be the violation of some right which is regarded as if it were the breach of a contract, giving rise to an actio quasi ex contractu.
(2) A violation of a negative duty, that is, duty to abstain, may be a violation of a jus in rem, which, if it is an offence called delict, gives rise to an action enforceable by the individual aggrieved, or similarly, if the violation is one which, though not strictly a delict, is treated as if it were so, it gives rise to an actio quasi ex delicto.
(3) Or violations of duties giving rise to actions and other remedies which are founded simply on the fact of ownership or possession, such as vindicatio, actio Publiciana, the possessory interdicts.
But there are many miscellaneous actions which cannot be easily brought under any of the above heads.
Actions ex contractu seek to enforce both the rights immediately founded on a contract and those created by a party’s subsequent unlawful intention (dolus) or carelessness (culpa) in relation to the contract.
Real actions and actions ex contractu are simply restitutory in their object; they imply that a defendant has something which he ought not to have: withholds from the plaintiff some thing or service of pecuniary value to which the plaintiff is entitled. Actions ex delicto do not necessarily imply that the defendant has what he ought not to have; they necessarily impute unlawful conduct (dolus or culpa) to the defendant, § 211, and imply imputability, or responsibility for such conduct.
In respect of contracts Culpa is distinguished as of different degrees; and sometimes a higher, sometimes a lower degree is capable of generating obligation. In respect of delicts, that is, the delict of damage to property, Culpa is not distinguished by gradations; any neglect of ordinary care suffices to generate obligation.
The object of an action ex delicto may be either simply to recover a penalty (e. g. actio furti), or partly to recover a penalty and partly to obtain damages (e. g. actio vi bonorum raptorum), or it may be to obtain personal satisfaction for the injury caused by the offence (e. g. actio injuriarum); but we shall find that in every case a delictal action has characteristics, which do not belong to a merely restorative action. (Cf. Inst. 4, 6, 17 and 18.) Real actions and actions ex contractu are not Delictal but Civil, Conservative, or Restorative; they maintain the fortunes of both parties at their original level; at the level destroyed or lowered by the defendant’s act or omission. We have before used the term Civil to distinguish the Private code from the Political code and the Criminal code. We here take it in a narrower sense to distinguish that part of the Private code which deals with Domestic relations and the Law of Property, including Obligation ex contractu, from that part which deals with Obligation ex delicto, which latter part has more resemblance to the Criminal code. The jurisprudence of delicta privata forms a sort of intermediate between Civil jurisprudence, in this narrower sense, and Criminal jurisprudence which relates to delicta publica.
§ 183. Furtorum autem genera Ser. Sulpicius et Masurius Sabinus iiii esse dixerunt, manifestum et nec manifestum, conceptum et oblatum; Labeo duo, manifestum 〈et〉 nec manifestum; nam conceptum et oblatum species potius actionis esse furto cohaerentes quam genera furtorum; quod sane uerius uidetur, sicut inferius apparebit.
Inst. 4, 1, 3.
§ 184. Manifestum furtum quidam id esse dixerunt, quod dum fit deprehenditur. alii uero ulterius, quod eo loco deprehenditur, ubi fit, ueluti si in oliueto oliuarum, in uineto uuarum furtum factum est, quamdiu in eo oliueto aut uineto fur sit; aut si in domo furtum factum sit, quamdiu in ea domo fur sit alii adhuc ulterius eo usque manifestum furtum esse dixerunt, donec perferret eo, quo perferre fur destinasset. alii adhuc ulterius, quandoque eam rem fur tenens uisus fuerit; quae sententia non optinuit. sed et illorum sententia, qui existimauerunt, donec perferret eo quo fur destinasset, deprehensum furtum manifestum esse, ideo non uidetur probari, quia magnam recipit dubitationem, utrum unius diei an etiam plurium dierum spatio id terminandum sit quod eo pertinet, quia saepe in aliis ciuitatibus subreptas res in alias ciuitates uel in alias prouincias destinant fures perferre. ex duabus itaque superioribus opinionibus alterutra adprobatur; magis tamen plerique posteriorem probant.
Inst. l. c.
§ 185. Nec manifestum furtum quid sit, ex iis quae diximus intellegitur. nam quod manifestum non est, id nec manifestum est.
Inst. l. c.
§ 186. Conceptum furtum dicitur, cum apud aliquem testibus praesentibus furtiua res quaesita et inuenta sit. nam in eum propria actio constituta est, quamuis fur non sit, quae appellatur concepti.
Inst. 4, 1, 4.
§ 187. Oblatum furtum dicitur, cum res furtiua tibi ab aliquo oblata sit eaque apud te concepta sit; utique si ea mente data tibi fuerit, ut apud te potius quamapud eum qui dederit conciperetur. nam tibi, apud quem concepta est, propria adueisus eum qui optulit, quamuis fur non sit, constituta est actio, 〈quae〉 appellatur oblati.
Inst. l. c.
§ 188. Est etiam prohibiti furti 〈actio〉 aduersus eum qui furtum quaerere uolentem prohibuerit.
Inst. l. c.
§ 189. Poena manifesti furti ex legexii tabularum capitalis erat. nam liber uerberatus addicebatur ei cui furtum fecerat; utrum autem seruus efficeretur ex addictione, an adiudicati loco constitueretur, ueteres quaerebant. in seruum aeque uerberatum animaduertebatur. sed postea inprobata est asperitas poenae et tam ex serui persona quam ex liberi quadrupli actio praetoris edicto constituta est.
Inst. 4, 1, 5.
§ 190. Nec manifesti furti poena per legem 〈xii〉 tabularum dupli inrogatur, eamque etiam praetor conseruat.
Inst. l. c.
§ 191. Concepti et oblati poena ex lege xii tabularum tripli est, eaque similiter a praetore seruatur.
§ 192. Prohibiti actio quadrupli est ex edicto praetoris introducta; lex autem eo nomine nullam poenam constituit. hoc solum praecipit, ut qui quaerere uelit, nudus quaerat, licio cinctus, lancem habens; qui si quid inuenerit, iubet id lex furtum manifestum esse.
§ 193. Quid sit autem licium, quaesitum est. sed uerius est consuti genus esse, quo necessariae partes tegerentur. quae res [lex tota] ridicula est. nam qui uestitum quaerere prohibet, is et nudum quaerere prohibiturus est, eo magis quod ita quaesita re 〈et〉 inuenta maiori poenae subiciatur. deinde quod lancem siue ideo haberi iubeat, ut manibus occupatis nihil subiciat, siue ideo, ut quod inuenerit ibi inponat, neutrum eorum procedit, si id quod quaeratur, eius magnitudinis aut naturae sit, ut neque subici neque ibi inponi possit. certe non dubitatur, cuiuscumque materiae sit ea lanx, satis legi fieri.
§ 194 Propter hoc tamen, quod lex ex ea causa manifestum furtum esse iubet, sunt qui scribunt furtum manifestum aut lege 〈intellegi〉 aut natura: lege id ipsum de quo loquimur, natura illud de quo superius exposuimus sed uerius est natura tantum manifestum furtum intellegi. neque enim lex facere potest, ut qui manifestus fur non sit, manifestus sit, non magis quam qui omnino fur non sit, fur sit, et qui adulter aut homicida non sit, adulter uel homicida sit. at illud sane lex facere potest, ut proinde aliquis poena teneatur atque si furtum uel adulterium uel homicidium admisisset, quamuis nihil eorum admiserit.
§ 195. Furtum autem fit non solum cum quis intercipiendi causa rem alienam amouet, sed generaliter cum quis rem alienam inuito domino contrectat.
Inst. 4, 1, 6.
§ 196. Itaque si quis re quae apud eum deposita sit utatur, furtum committit. et si quis utendam rem acceperit eamque in alium usum transtulerit, furti obligatur, ueluti si quis argentum utendum acceperit, quasi amicos ad cenam inuitaturus, et id peregre secum tulerit, aut si quis equum gestandi gratia commodatum longius aliquo duxerit, quod ueteres scripserunt de eo qui in aciem perduxisset.
Inst. l. c.
§ 197. Placuit tamen eos, qui rebus commodatis aliter uterentur, quam utendas accepissent, ita furtum committere, si intellegant id se inuito domino facere, eumque, si intellexisset, non permissurum; at si permissurum credant, extra furti crimen uideri; optima sane distinctione, quod furtum sine dolo malo non committitur.
Inst. 4, 1, 7.
§ 198. Sed et si credat aliquis inuito domino se rem contrectare, domino autem uolente id fiat, dicitur furtum non fieri. unde illud quaesitum [et probatum] est, cum Titius seruum meum sollicitauerit, ut quasdam res mihi subriperet et ad eum perferret, 〈et seruus〉 id ad me pertulerit, ego, dum uolo Titium in ipso delicto deprehendere permiserim seruo quasdam res ad eum perferre, utrum furti an serui corrupti iudicio teneatur Titius mihi, an neutro. responsum neutro eum teneri, furti ideo quod non inuito me res contrectauerit, serui corrupti ideo quod deterior seruus factus non est.
Inst. 4, 1, 8.
§ 199. Interdum autem etiam liberorum hominum furtum fit, ueluti si quis liberorum nostrorum qui in potestate nostra sint, siue etiam uxor quae in manu nostra sit, siue etiam iudicatus uel auctoratus meus subreptus fuerit.
Inst. 4, 1. 9.
§ 200 Aliquando etiam suae rei quisque furtum committit, ueluti si debitor rem quam creditori pignori dedit subtraxerit, uel si bonae fidei possessori rem meam possidenti subripuerim. unde placuit eum, qui seruum suum quem alius bona fide possidebat ad se reuersum celauerit, furtum committere.
Inst. 4, 1, 10.
§ 201. Rursus ex diuerso interdum alienas res occupare et usucapere concessum est, nec creditur furtum fieri, ueluti res hereditarias, quarum heres non est nactus possessionem, nisi necessarius heres extet; nam necessario herede extante placuit nihil pro herede usucapi posse. item debitor rem, quam fiduciae causa creditori mancipauerit aut in iure cesserit, secundum ea quae in superiore commentario rettulimus, sine furto possidere et usucapere potest.
§ 202. Interdum furti tenetur qui ipse furtum non fecerit, qualis est cuius ope consilio furtum factum est. in quo numero est qui nummos tibi excussit, ut eos alius subriperet, uel obstitit tibi, ut alius subriperet, aut oues aut boues tuas fugauit, ut alius eas exciperet. et hoc ueteres scripserunt de eo qui panno rubro fugauit armentum. sed si quid per lasciuiam et non data opera, ut furtum committeretur, factum sit, uidebimus an utilis actio dari debeat, cum per legem Aquiliam quae de damno lata 〈est〉 etiam culpa puniatur.
Inst. 4, 1, 11.
§ 203. Furti autem actio ei conpetit cuius interest rem saluam esse, licet dominus non sit. itaque nec domino aliter conpetit, quam si eius intersit rem non perire.
Inst. 4, 1, 13.
§ 204. Vnde constat creditorem de pignore subrepto furti agere posse; adeo quidem, ut quamuis ipse dominus, id est ipse debitor, eam rem subripuerit nihilo minus creditori conpetat actio furti.
Inst. 4, 1, 14.
§ 205. Item si fullo polienda curandaue aut sarcinator sarcienda uestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest ea non periisse, cum iudicio locati a fullone aut sarcinatore suum consequi possit, si modo is fullo aut sarcinator rei praestandae sufficiat; nam si soluendo non est, tunc quia ab eo dominus suum consequi non potest, ipsi furti actio conpetit, quia hoc casu ipsius interest rem saluam esse.
Inst. 4, 1, 15.
§ 206.Quae de fullone aut sarcinatore diximus, eadem transferemus et ad eum cui rem commodauimus. nam ut illi mercedem capiendo custodiam praestant, ita hic quoque utendi commodum percipiendo similiter necesse habet custodiam praestare.
Inst. 4, 1, 16.
§ 207. Sed is apud quem res deposita est custodiam non praestat tantumque in eo obnoxius est, si quid ipse dolo 〈malo〉 fecerit. qua de causa 〈si〉 res ei subrepta fuerit, quia restituendae eius nomine depositi non tenetur nec ob id eius interest rem saluam esse, furti [itaque] agere non potest, sed ea actio domino conpetit
Inst. 4, 1, 17.
§ 208. In summa sciendum est quaesitum esse. an inpubes rem alienam amouendo furtum faciat. plerisque placet, quia furtum ex adfectu consistit, ita demum obligari eo crimine inpuberem, si proximus pubertati sit et ob id intellegat se delinquere.
Inst. 4, 1, 19.
§ 183. Thefts are divided by Servius Sulpicius and Masurius Sabinus into four kinds, theft manifest and not manifest, the possession of stolen goods discovered upon search, and the introduction into a house of stolen goods. Labeo makes only two kinds, theft manifest and not manifest, because the possession and introduction of stolen goods are not kinds of theft, but rather circumstances giving rise to special actions connected with theft; and this seems the better opinion, as will presently appear.
§ 184. Manifest theft is limited by some to detection in the act of taking; by others extended to detection while the thief is in the place where the theft is committed; for instance, if olives are stolen from an oliveyard, or grapes from a vineyard, while the thief is in the oliveyard, or vineyard; or if a theft is committed in a house, while the thief is in the house. Others extend it to detection before the thief has carried the goods away to the place where he intends to deposit them; others to detection while the thief has the goods in his hands. The fourth opinion has not been adopted, and the third opinion that, until the thief has carried the stolen goods to their place of destination, his theft may be a manifest one, is also impugned on the ground of the uncertainty whether one day or several is the limit of the time within which he must be detected; for a thief often intends to carry the goods he has stolen in one city into another city or province. The first and second opinions are commonly adopted, and more generally the second.
§ 185. What is not manifest theft will be understood from what we have said about manifest theft, for what is not the one is the other.
§ 186. The discovery of stolen goods, when a person’s premises are searched in the presence of witnesses, makes him liable, even though innocent of theft, to a special action for receiving stolen goods called actio concepti.
§ 187. To introduce stolen goods is to pass them off to a man, on whose premises they are discovered, with the intent that they should be discovered on his premises rather than on those of the introducer. The man on whose premises they are found may sue the passer off, though innocent of theft, in an action for the introduction of stolen goods called actio oblati.
§ 188. An action for prevention of search may be brought against the man who prevents a person from searching on his premises for stolen goods.
§ 189. The punishment provided by the law of the Twelve Tables for manifest theft was capital; a freeman was first scourged and then assigned, by judgment of the magistrate, to the person from whom he had stolen (whether made his slave by the assignment, or reduced to the condition of an insolvent judgment debtor, was a subject of controversy among the republican lawyers); a slave was also punished by scourging. But later ages disapproved of the severity of this punishment, and theft, whether by a slave or by a freeman, was punished by the praetorian edict with fourfold damages.
§ 190. Not manifest theft is punished by the law of the Twelve Tables with double damages, which penalty the praetor has retained.
§ 191. The penalty for the discovery or the introduction of stolen goods is by the law of the Twelve Tables triple damages, a penalty which the praetor has also retained.
§ 192. Prevention of search renders liable to fourfold damages, a penalty which the edict of the praetor first ordained. The Twelve Tables inflicted no penalty for such an offence, but directed that the person wishing to search must be naked, only wearing a girdle, and carrying a platter in his hands; and if anything was thus discovered the law of the Twelve Tables declares it to be manifest theft.
§ 193. What the girdle was is doubted, but it seems to have been a covering for the loins. The whole of this enactment of the Twelve Tables is nugatory, for he who prevents a man from searching in his clothes would prevent him from searching naked, especially as in such a search the finding of stolen goods would subject him to a heavier penalty. Besides, whether the platter is to be held by the searcher in order that his hands being engaged in holding it he may not bring anything into the house, or in order that what is found may be placed thereupon, neither of these reasons can be alleged when the thing searched for is of such a size or nature that it could not be brought into the house by hand, nor placed on the platter. It is not disputed that a platter of any material satisfies the requirement of the Tables.
§ 194. On account of the enactment that a discovery in such a search is manifest theft, some writers say that manifest theft is of two kinds, statutory or actual: statutory being that of which we have just been speaking, actual being that kind of manifest theft which has been previously explained. But in truth, the only mode of manifest theft is the actual one, for law cannot turn a not manifest thief into a manifest thief, any more than it can turn a man who is not a thief into a thief; or make an adulterer or homicide out of a man who has not killed or committed adultery. What a statute can accomplish is this, that a person shall be subject to a penalty just as if he had committed theft, adultery, or homicide, although he have not committed any of those offences.
§ 195. Theft is not simply confined to the carrying away the property of another with intent of appropriation, but embraces any kind of physical handling of a thing belonging to another against the will of the owner.
§ 196. Thus, to use a thing committed to one’s keeping as a deposit, or to put a thing that is lent to one for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country; or to borrow a horse for a mere ride, and then to take it far away out of the neighbourhood; or, as in the case described by the old lawyers, to take it into battle.
§ 197. It is held, however, that putting a thing lent for use to a different use than the lender contemplated is only theft if the borrower knows it to be contrary to the will of the owner, and that, if he had notice, he would refuse permission; but if he believes that the owner would give permission, it is not theft; and the distinction is just, for there is no theft without unlawful intention.
§ 198. But even to deal with a thing in the belief that you are acting against the will of the owner, if the owner is in fact consenting to your doing so, is said not to amount to theft; whence a question arises, if Titius solicits my slave to steal my property, and convey it to him, and my slave informs me of it, and I, wishing to detect Titius in the act, permit my slave to carry my goods to him; it has been questioned whether either an action of theft or one for corrupting a slave can be maintained against Titius. The answer (responsum) is that neither action is maintainable; not the action of theft, because his dealing with my property was not an act done against my will; not the action for corrupting a slave, because the slave was not in fact corrupted.
§ 199. Sometimes there may be a theft even of free persons; as, for instance, of a child in my power, of a wife in my hand, or even of my judgment debtor, or of my hired gladiator, should they be secretly removed from my control.
§ 200. A man may sometimes even steal his own property; as, for instance, a debtor who purloins the goods which he has pledged to a creditor, or an owner who surreptitiously takes away his own property from a bona fide possessor of it; and accordingly it has been held, that concealment by the owner of the fact of his slave having returned to him, from one who had possessed him in good faith, amounted to theft.
§ 201. Conversely, property belonging to another may sometimes be seized and acquired by usucapion without committing theft; hereditaments, for instance, before an heir has obtained possession, except in the case of a necessary heir; for where there is a necessary heir it is settled law that no usucapion as quasi-heir is possible (2 § 58). Also a debtor, having conveyed property on trust to his creditor by mancipation or surrender before the magistrate, as I mentioned in the preceding book, may, without committing theft, repossess it and acquire new ownership thereof by usucapion (2 § 59).
§ 202. In some cases theft may be chargeable on a person who is not the actual perpetrator, as on one, by whose aid and abetment a theft has been committed; to which class belongs the man who knocks out of your hand money for another to pick up, or stands in your way that another may snatch it, or scatters your sheep or oxen that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. But if the same thing were done as a frolic, without the intention of committing a theft, we will consider whether a praetorian form of action (in extension of the lex Aquilia) may not be maintainable, since the Aquilian statute relating to damage makes even negligence penal.
§ 203. The action of theft is maintainable by the person interested in the preservation of the property, although he is not the owner; and so even the owner cannot maintain it unless he has an interest in the safety of the thing.
§ 204. Hence when a thing pledged is stolen, the creditor can bring it, so much so that he can even maintain it against the owner or debtor who surreptitiously takes away from him the thing he has pledged.
§ 205. So if clothes are delivered to be cleaned or finished or mended for a certain remuneration, and then are stolen, the fuller or tailor has the action, and not the owner; for the owner is not interested in the loss, since he has his action on the contract of letting against the fuller or tailor to recover the value; supposing always, that the fuller or tailor has sufficient means to make the loss good. For if the latter is insolvent, then as the owner cannot recover what he has a right to claim from him, he can himself maintain the action of theft against the thief; because, in this hypothesis, he is interested in the loss of the property.
§ 206. What has been said of the fuller and tailor applies to the borrower of a thing (commodatarius); for as on account of the payment the former receive they are made responsible for safe custody of the thing, so on account of the advantage the borrower derives from the use of the thing he is likewise made responsible for its safe custody.
§ 207. But as a depositary is not answerable for the safe custody of the thing deposited, being only liable for his own fraud, so, if the thing is stolen from him, being not compellable to make restitution by action of deposit, he is not interested in the thing being safe; and therefore cannot maintain the action of theft which is only maintainable by the owner of the thing.
§ 208. Finally, it is a question whether if any one below the age of puberty takes the property of another, he commits a theft; and most jurists agree that as theft depends on intention, one below the age of puberty is not able to be charged with it unless, being near to that age, he understands that he is committing a delict.
Theft in modern systems of jurisprudence is a crime, that is, belongs to the penal or criminal code. In Roman law, as in other early systems, it is a private injury, and treated as a subject of the civil code. This was recognized by the law of the Twelve Tables, which established the penalty for furtum nec manifestum, § 190, and allowed a compromise or composition for theft, that is, allowed the penalty thereby engendered to be extinguished by private agreement between the party wronged and the wrongdoer.
§ 184. Aulus Gellius gives a fragment of Sabinus which combines the first and third definition of furtum manifestum. Manifestum autem furtum est, ut ait Masurius, quod deprehenditur dum fit. Faciendi finis est, cum perlatum est quo ferri coeperat, 9, 18, 1. ‘Manifest theft is that which is detected in the act. The act is finished when the removal of the goods to the place intended is completed.’ Justinian confirms the third definition, Inst. 4, 1, 3.
§ 189. The reason why furtum manifestum was subjected to a heavier penalty than furtum nec manifestum was not because the barbarous legislator supposed that detection in the act was an aggravation of the offence, but because he wished, by the amplitude of the legal remedy offered, to induce the aggrieved party not to take the law into his own hands and inflict summary vengeance on the offender, particularly as it was lawful to kill a nocturnal thief, or one who during the day defended himself with a weapon, Gell. 11, 18, 6, 7. In the infancy of society it is an important object to the legislator to induce an injured person to have recourse to the public tribunals instead of righting himself, that is to say, constituting himself both lawgiver and judge.
That such was really the motive of the legislator we have historic evidence in the declaration of Rotharis, ruler of the Langobards, a. d. 643. He gives the relatives of the slain their election between the primitive vengeance for blood (feud or vendetta) and a composition or pecuniary fine (wergeld or poena) to be recovered by action before the public tribunals. He says that he fixes a high fine in order to induce plaintiffs to forgo their right of feud; and implies that he would gladly have abolished the right of feud or private war, but felt that it was too deeply rooted in the habits of his tribe to be extirpated by legislation. Bethmann-Hollweg, Der Germ. Civ. Process, § 60.
This writer supposes, Der Rom. C. P., § 96, that the praetorian action Furti manifesti had a Fictitious formula, 4 § 32, and suggests the following:
Demonstratio. Quod Numerius Negidius Aulo Agerio furtum manifestum fecit paterae aureae,
Fictio. Si ob eam rem Numerium Negidium ex lege verberari itemque Aulo Agerio addici oporteret,
Condemnatio: Quanti ea res fuit, tantae pecuniae, judex, Numerium Negidium Aulo Agerio quadruplum condemnato: Si non paret, absolvito.
According to Gellius a slave after having been scourged was thrown from the Tarpeian rock, and some writers think that Gaius stated this fact in the above passage.
§ 193. We must distinguish between furtum conceptum with its threefold penalty, § 191, and furtum lance et licio conceptum. Ea quoque furta quae per lancem liciumque concepta essent, proinde ac si manifesta forent, vindicaverunt, Gellius, 11, 18, 9. ‘Possession of stolen goods discovered on search with the platter and girdle was punished as theft detected in the act.’ Cf. Inst. 4, 1, 4.
Traces of the word ‘conceptum’ occur in a fragment of the Twelve Tables, vi, 7: Tignum junctum aedibus vineave et concapit ne solvito, ‘Timber built into a house or vineyard of another man and discovered there by the owner must not be severed:’ where et concapit represents either et conceptum or qui concipiet. (On the grammatical form—conceptum—see Roby 2, p. 215, n. 1.)
The search with a platter and girdle was probably a custom derived from Greece, for a similar formality is described by Plato. Leges, 12, 7.
In the later period of Roman law, as in modern Europe, the search for stolen goods was not conducted by the private party, but by public officers. In England the object is effected by a search warrant. Upon the information on oath that a party has probable cause to suspect that his goods have been stolen, and are concealed in a certain dwelling-house, and on his showing the cause of his suspicion, a justice of the peace may grant a warrant authorizing to enter and search for the said goods, and to attach the goods and the party in whose custody they are found, and bring them before him, that he may give an account how he came by them, and be dealt with according to law. The warrant is directed to a constable or other public officer and not to any private person, though it is proper that the party complaining should be present as assistant because he knows his goods As touching the party that had custody of the goods, if they were stolen, but not by him but by another that sold and delivered them to him (furtum oblatum), if it appear that he was ignorant that they were stolen, he may be discharged as an offender and bound over to give evidence as a witness against him that sold them.
§ 195. The same definition of theft is given by Paulus. Fur est qui dolo malo rem alienam contrectat, Sent. R. 2, 31, 1. ‘A thief is he who with evil intention handles (lifts, moves, touches) the property of another.’ Justinian gives a different definition. Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessionisve, Inst. 4, 1, 1. ‘Theft is the fraudulent handling of a thing with the object of acquiring gain either from the thing itself or from its use, or from possession of it.’
It may be observed that Justinian does not say with Paulus, rei alienae, because a man may steal his own property, as when a pledgor steals from a pledgee or an owner from a usufructuary. So, by English law, to take a man’s own goods out of the hands of a bailee, if the taking have the effect of charging the bailee, is larceny. The usus of a thing is stolen when the owner deprives the usufructuary of it, or when a pledgee unlawfully uses a pledge. Si creditor pignore utatur, furtum committit, Inst. 4, 1, 6.
Cases of Possessio being appropriated are when a thing pledged is taken out of the pledgee’s possession by the owner, or when an owner of a thing surreptitiously deprives the bona fide possessor of his possession, § 200, for though such possessor has no title to the thing, his possession is recognized, till he is evicted, and he may have claims against the owner on account of impensae and on other grounds.
In English law larceny is defined to be the unlawful taking and carrying away of things personal (asportatio) with intent to deprive the right owner of the same and to make them the property of the taker. To constitute larceny the original taking of possession must be unlawful: therefore, if the owner deliver his property to a person to hold for him, the subsequent appropriation of it by the latter, though an offence and a breach of faith, is not larceny, because the original taking was lawful. But it is larceny if the delivery was obtained by fraud, i. e. with an original design and pre-arranged plan to deprive the owner of his property and convert it to the use of the taker. The possession is then unlawful in its inception. Again, if delivery does not divest the owner of the legal possession, appropriation by the taker constitutes possession unlawful in its inception and so is larceny. In this respect a servant (e. g. a shepherd, carter, porter, butler, clerk) is to be distinguished from a bailee, for the servant is regarded as not possessing, but merely as the instrument of the owner’s possession, and so he may be guilty of larceny of the thing. (See Pollock and Wright, Possession in the Common Law, Pt. III.)
Roman law, however, did not require an unlawful inception of possession for constituting furtum, as is shown by the fact that the pledgee, who has lawful possession, is guilty of theft, if he make use of the pledge. Had it done so, however, the appropriation of the owner’s property by commodatarius, depositarius, or conductor rei would have constituted an unlawful inception of possession and so have been furtum, since Roman law, differing in this respect from English, does not as a rule transfer possession to such bailees but only detention. But as a matter of fact in Roman law the question whether a person guilty of ‘contrectatio rei fraudulosa’ had or had not been in previous possession of the thing was never entertained (cf. Stephen, Hist. of Criminal Law in England, 1, p. 30, &c.).
§ 198. Justinian decided that the attempt to corrupt a slave was as criminal as his actual corruption, and made the offender liable to be sued for theft and for corrupting a slave, Inst. 4, 1, 8.
§ 201. Usucapion of the property of a voluntary heir, and usureceptio, or usucapion of the property of a mortgagee, have been mentioned in the preceding book. See 2 §§ 52-60.
§ 202. A person who is present aiding and abetting when an offence is committed but is not the actual perpetrator is called, in English law, a principal in the second degree. He who procures or abets another to commit an offence but is absent at the time of the commission is called an accessory before the fact. Their punishment is usually the same as that of the principal in the first degree. An accessory after the fact is one who, knowing an offence to have been committed by another, receives, harbours, or assists the offender. For an explanation of the distinction between actio legis aquiliae directa and utilis see § 219, comm.
§ 203. When a sale is complete, property does not, by Roman law, pass to the vendee before delivery, although the thing sold is forthwith at the risk of the vendee. If it is stolen before delivery, in spite of the rule that the action of theft is maintainable by the person interested, the vendee cannot sue in his own name, but the vendor is compellable to cede his actions and the vendee sues in the name of the vendor, Dig. 47, 2, 14, 1. But a person who is neither owner, nor has any real right in the thing may, as we have seen, have sufficient interest to enable him to maintain actio furti, though a person could not under these circumstances make use of the condictio furtiva.
The quadruple and double damages for furtum manifestum and nec manifestum were purely penal. The owner could further recover the thing stolen by a real action (vindicatio), maintainable against any one in possession of the stolen property, or damages in a personal action (condictio furtiva), Inst. 4, 1, 20. The granting of a personal action in this case, with an intentio declaring that the thief was bound to convey the property (dare oportere), was anomalous, because the property of the thing stolen was not in the thief but in the owner, and so could not be conveyed to the latter, 4 § 4.
If the thing stolen had been destroyed, or if, being money, it had been spent or mixed with money of the thief, the property of the plaintiff would have been in fact extinguished and condictio would be a suitable action. If the property existed in the hands of the thief or could be traced, vindicatio would be maintainable. The object of the law in allowing the plaintiff in any case to sue by condictio was to relieve him from the necessity of ascertaining whether his property was safe or had been consumed. If we ask why, instead of using the intentio, Si paret dare oportere, 4 § 4, which might be inconsistent with the truth, the plaintiff did not use the formula, Quidquid paret dare facere oportere, which, as including compensation or simple restitution of possession, would always be consistent with truth; the answer is probably what Savigny has suggested, namely, the intention of the legislator to subject the defendant to the sponsio poenalis, the additional forfeiture of a third of the sum in litigation. It is true that this is only mentioned as incidental to a condictio for pecunia certa credita, 4 § 171, but the penalty may have also been recoverable in a claim for certain money stolen (condictio furtiva).
According to Lenel, p. 263, the following would be the kind of formula for the actio furti nec manifesti:
Si paret Aulo Agerio a Numerio Negidio, opeve consilio Numerii Negidii, furtum factum esse paterae aureae;
Quam ob rem Numerium Negidium pro fure damnum decidere oportet,
Quanti ea res fuit, cum furtum est, tantae pecuniae duplum judex Numerium Negidium Aulo Agerio condemna: si non paret absolve.
The plaintiff in theft had in the later period of Roman law the option of proceeding by civil action or by criminal prosecution, and Ulpian informs us that the latter was the usual course, Dig. 47, 2, 93.
§ 209. Qui res alienas rapit, tenetur etiam furti. quis enim magis alienam rem inuito domino contrectat quam qui 〈ui〉 rapit? itaque recte dictum est eum inprobum furem esse sed propriam actionem eius delicti nomine praetor introduxit, quae appellatur ui bonorum raptorum, et est intra annum quadrupli [actio], post annum simpli. quae actio utilis est, etsi quis unam rem, licet minimam, rapuerit.
Inst. 4, 2, pr.
§ 209. Rapine or robbery is chargeable as theft, for who more handles the property of another against the will of the owner than the robber? who has been well denominated a shameless thief. However, as a special remedy for this offence the praetor has introduced the action for rapine with violence; which may be brought within a year for four times the value, after a year for simple damages; and which lies when only a single thing of the slightest value has been taken with violence.
Keller, der Rom. Civil Process, § 33, cf. Lenel, p. 314, gives the following formula: Recuperatores sunto: Quantae pecuniae paret dolo malo Numerii Negidii vi hominibus armatis coactisve damnum datum esse Aulo Agerio bonave rapta, dumtaxat sestertium tot millium, tantae pecuniae quadruplum, Recuperatores, Numerium Negidium Aulo Agerio condemnate: si non paret, absolvite. The party aggrieved might either proceed by civil action or by criminal prosecution under the lex Julia de vi publica et privata. This law, enacted either by Augustus or by Julius Caesar, made the criminal guilty of public or armed violence, liable to deportation; the criminal guilty of private or unarmed violence, to confiscation of a third of his goods, Inst. 4, 18, 8.
The quadruple damages in the action of rapine were not purely penal as in the action of furtum manifestum, but included the restitution of the property or its value, a rule which was definitely settled subsequently to the time of Gaius, see 4, 8, and cf. Inst. Just. 4, 2, pr. The penal damages for rapine were therefore only three times the value of the goods plundered, that is, less than the damages in furtum manifestum. If, however, the robber was taken in the act, he was chargeable, as Gaius explains, with furtum manifestum.
The lex Cornelia repetundarum passed by the dictator Sylla, b.c. 82, instituting a criminal action against governors of provinces guilty of extortion: the formula Octaviana or actio quod Metus causa, introduced by the praetor Octavius, father of Augustus, b. c. 79: and the actio Vi bonorum raptorum, introduced by the praetor Lucullus, b. c. 77, all fall within the space of four years and indicate the lawlessness generated by the civil wars in the time of Sylla.
Robbery, like theft, requires dolus malus, that is, criminal intention. If then a man, believing himself to be rightful owner, violently seized movable goods, he was not guilty of robbery, Inst. 4, 2, 1; but, by a constitution of the emperors Valentinian, Theodosius, and Arcadius, enacted a. d. 389, in order to repress violence, and deter people from taking the law into their own hands, a person who violently seized either movable or immovable property, if rightful owner, forfeited the property to the person dispossessed; if not rightful owner, was condemned, besides restitution of possession, to forfeit the value of the property, Cod. 8, 4, 7. This constitution increased the civil penalty recoverable for violent dispossession of land by the interdict unde vi, 4 §§ 154, 155. The interdict unde vi could not originally be maintained for violent, but unarmed, dispossession if the person evicted had himself acquired possession from the evictor by an origin, violent, clandestine, or permissive, unless the evictor had come armed with weapons of offence: and for either armed or unarmed dispossession the liability, as far as the property in question was concerned, was only restitution of possession. By the constitution of the three emperors the civil penalty of all violent disseisin was loss not only of possession but of ownership; and subsequently to this constitution, the interdict unde vi ceased to make a distinction between armed and unarmed dispossession.
This constitution may be regarded as the final blow struck by the Roman legislator at the archaic form of remedial procedure—private violence or self-redress. In archaic society, if society it could be called, before the establishment of central authority, public tribunals, and police or executive functionaries, such was the only possible means of redress; and such redress was recognized and permitted by primeval law, if the sentiments of the tribe at such a period can be called by the name of law.
Among the German races the disorder implied by the toleration of Feud or private war was gradually mitigated by the introduction of certain Truces, or temporary or local Peaces: the Truce of the King, prohibiting private war within the precincts of the royal residence: the Truce of the Church, giving to the fugitive wrongdoer an asylum in the sanctuary: the Truce of the Assembly, excluding the prosecution of feuds from the place where the Hundred was assembled: and the Truce of the Town, Village, or House, protecting the offender from homicidal attack within these limits.
At some period, too, society interposed and offered to act as arbitrator, and to procure for the aggrieved party satisfaction of the wrong he had endured. Accordingly all injuries were rated at a certain tariff, and a person who had suffered aggression had the option whether he should avenge himself or, in commutation of his right of Feud, accept the fine fixed by this tariff, and awarded by a tribunal of his countrymen. This mediation of the community, which the plaintiff could accept or decline at his discretion, was the origin of actiones poenales, the poena being the inducement offered to the plaintiff to make him adopt the more peaceful course. In Saxon law the alternative offered to the aggressor was expressed by the maxim Biege spere of side other bere: ‘Buy the spear off the side or bear it’: i. e. make atonement or be liable to Feud. (Kemble.)
Finally the Peace of the King, proclaimed at each coronation, became universal: the state undertook the decision and composition of all quarrels; and private war at all times and in all places was interdicted and superseded by recourse to the public judicature.
§ 210. Damni iniuriae actio constituitur per legem Aquiliam, cuius primo capite cautum est, 〈ut〉 si quis hominem alienum alienamue quadrupedem quae pecudum numero sit iniuria occiderit, quanti ea res in eo anno plurimi fuerit, tantum domino dare damnetur.
Inst. 4, 3, pr.
§ 211.Iniuria autem occidere intellegitur, cuius dolo aut culpa id acciderit; nec ulla alia lege damnum, quod sine iniuria datur, reprehenditur; itaque inpunitus est, qui sine culpa et dolo malo casu quodam damnum committit.
Inst. 4, 3, 3.
§ 212. Nec solum corpus in actione huius legis aestimatur; sed sane si seruo occiso plus dominus capiat damni quam pretium serui sit, id quoque aestimatur, ueluti si seruus meus ab aliquo heres institutus, antequam iussu meo hereditatem cerneret, occisus fuerit; non enim tantum ipsius pretium aestimatur, sed et hereditatis amissae quantitas. item si ex gemellis uel ex comoedis uel ex symphoniacis unus occisus fuerit, non solum occisi fit aestimatio, sed eo amplius 〈id〉 quoque conputatur, quod ceteri qui supersunt depretiati sunt. idem iuris est etiam si ex pari mularum unam uel etiam ex quadrigis equorum unum occiderit.
Inst. 4, 3, 10.
§ 213. Cuius autem seruus occisus est, is liberum arbitrium habet uel capitali crimine reum facere eum qui occiderit, uel hac lege damnum persequi.
Inst. 4, 3, 11.
§ 214. Quod autem adiectum est in hac lege qvanti in eo anno plvrimi ea res fverit, illud efficit, si clodum puta aut luscum seruum occiderit, qui in eo anno integer 〈fuerit, ut non quanti fuerit, cum occideretur, sed quanti in eo anno plurimi〉 fuerit, aestimatio fiat; quo fit, ut quis plus interdum consequatur quam ei damnum datum est.
Inst. 4, 3, 9.
§ 215. Capite secundo 〈aduersus〉 adstipulatorem, qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur.
Inst. 4, 3, 12.
§ 216. Qua et ipsa parte legis damni nomine actionem introduci manifestum est. sed id caueri non fuit necessarium, cum actio mandati ad eam rem sufficeret; nisi quod ea lege aduersus infitiantem in duplum agitur.
§ 217. Capite tertio de omni cetero damno cauetur. itaque si quis seruum uel eam quadrupedem quae pecudum 〈numero est uulnerauerit, siue eam quadrupedem quae pecudum〉 numero non est, ueluti canem, aut feram bestiam, ueluti ursum leonem, uulnerauerit uel occiderit, hoc capite actio constituitur. in ceteris quoque animalibus, item in omnibus rebus quae anima carent damnum iniuria datum hac parte uindicatur. si quid enim ustum aut ruptum aut fractum 〈fuerit〉, actio hoc capite constituitur, quamquam potuerit sola rupti appellatio in omnes istas causas sufficere; ruptum 〈enim intellegitur quod quoquo modo corruptum〉 est. unde non solum usta [aut rupta] aut fracta, sed etiam scissa et conlisa et effusa et quoquo modo uitiata aut perempta atque deteriora facta hoc uerbo continentur.
Inst. 4, 3, 13.
§ 218. Hoc tamen capite non quanti in eo anno, sed quanti in diebus xxx proximis ea res fuerit, damnatur is qui damnum dederit. ac ne plvrimi quidem uerbum adicitur. et ideo quidam putauerunt liberum esse iudici uel ad id tempus ex diebus xxx aestimationem redigere, quo plurimi res fuerit, uel ad id quo minoris fuerit. sed Sabino placuit proinde habendum, ac si etiam hac parte plvrimi uerbum adiectum esset; nam legis latorem contentum fuisse, 〈quod prima parte eo uerbo usus esset.
Inst. 4, 3, 14.
§ 219.Ceterum〉 placuit ita demum ex ista lege actionem esse, si quis corpore suo damnum dederit; ideoque alio modo damno dato utiles actiones dantur, ueluti si quis alienum hominem aut pecudem incluserit et fame necauerit, aut iumentum tam uehementer egerit, ut rumperetur; item si quis alieno seruo persuaserit, ut in arborem ascenderet uel in puteum descenderet, et is ascendendo aut descendendo ceciderit 〈et〉 aut mortuus fuerit aut aliqua parte corporis laesus sit; sed si quis alienum seruum de ponte aut ripa in flumen proiecerit et is suffocatus fuerit, corpore suo damnum dedisse eo quod proiecerit non difficiliter intellegi potest.
Inst. 4, 3, 16.
§ 210. Damage unlawfully caused is actionable under the lex Aquilia, whose first chapter provides, that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year was the highest value thereof, that amount the offender shall pay to the owner.
§ 211. Unlawful slaying means slaying by intention or negligence; loss occasioned by no fault of the person committing it being punished by no law; hence a person who damages another accidentally and not wilfully or negligently does so with impunity.
§ 212. It is not only the body of the slave or animal slain that is appraised in the action under this statute, but if the killing of a slave occasion to the owner the loss of anything in addition to his price, this loss is also appraised; for instance, if my slave has been instituted somebody’s heir, and before by my order he has signified his acceptance, he is slain, valuation is made not only of his body but also of the inheritance I have missed; or if one of two twins, or one of a company of players, or one of a band of musicians is slain, an estimate is made not only of his value but also of the extent to which the remainder are depreciated. The same holds if one of a pair of mules, or one of a team of four chariot horses is killed.
§ 213. The owner whose slave is killed has the option of prosecuting the homicide for a capital crime or of suing him under this statute for damages.
§ 214. From the words of this statute, ‘Whatever within a year was the highest value thereof,’ it follows that if the slave killed was lame or blind of one eye, but had been sound within a year, the owner will recover not simply his value at the time of his death but his highest value within a year, the result being that a plaintiff will in some cases recover more than the amount of the loss he has sustained.
§ 215. By the second chapter an adstipulator who defrauds a principal stipulator by releasing the promissor can be sued for the amount of the loss occasioned.
§ 216. It is evident that in this part of the statute also an action was instituted on account of damage to property, though here the provision was not absolutely necessary, because the action of Mandate would give a sufficient remedy, except for this that the lex Aquilia, when the action is defended, gives double damages.
§ 217. The third chapter makes provision for all other damage. Therefore if a slave, or a quadruped included under the name of cattle, is wounded, or if a quadruped not included under the name of cattle, as a dog, or a wild beast, for instance, or a bear or lion, is wounded or is killed, in this chapter an action is provided: so too if other animals or any things inanimate are unlawfully damaged, this part of the statute supplies a remedy, since in this chapter an action is expressly established in case of anything burnt, broken in pieces, fractured: although the single word ‘broken’ (ruptum) will suffice to cover all these offences, for the word ‘broken’ (ruptum) is interpreted to mean injured in any way (corruptum quoquo modo); hence not only burning, breaking, crushing, but any cutting, bruising, spilling, vitiating in any way, destroying, or deteriorating, is hereby comprehended.
§ 218. We should notice that in this chapter it is not the value which the thing had within a year, but which it had within the last thirty days, that is chargeable on the person causing the damage, though the statute itself does not expressly mention the term highest value (plurimi). Hence some of the other school have held that it was left to the discretion of the judex whether the damages should be measured by the highest value or by any lower value which the thing may have had within the last thirty days: but Sabinus held that the law must be interpreted as if it contained the word ‘highest’ (plurimi), the legislator having thought it sufficient to use this word in the first chapter.
§ 219. It has been held that an action under this statute only lies when the body of the offender is the instrument of mischief; and therefore for any other mode of occasioning loss praetorian actions (actiones utiles) must be brought: for instance, if a slave or quadruped is shut up and starved to death, or a horse is foundered by hard driving, or a slave is persuaded to climb a tree or descend a well, and in climbing or descending falls and is killed or hurt. But if a slave is pushed off a bridge or bank into a river and there drowned, the body of the person by pushing him may fairly be held to have caused his death.
§ 210. The lex Aquilia was a plebiscite carried by a tribune called Aquilius, according to Theophilus, at one of the secessions of the plebs, probably at the secession to the Janiculum, b. c. 287, on which same occasion the lex Hortensia was carried, making the plebiscites binding on the patricians. (See Grueber, Lex Aquilia, p. 183.)
The words of the first clause are preserved in the Digest: Qui servum servamve alienum alienamve quadrupedem vel pecudem injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto, Gaius in Dig. 9, 2, 2, pr. ‘If a slave, male or female, of another person, or a quadruped of his cattle is unlawfully slain, whatever was the highest value it bore in the previous year, such sum the slayer shall be condemned to pay to the owner.’ Cattle are animals that feed in flocks or herds, and include horses, mules, asses, oxen, sheep, goats, and swine, Dig. l. c. 2.
§ 212. The words Quanti ea res est, erit, or fuit occur in the condemnatio or last part of a formula when a defendant is bound to indemnify a plaintiff, that is, to pay him a certain value. These words have two meanings: they mean either (1) the value of a thing to the world in general, i. e. its selling value or market value, called verum rei pretium, or vera rei aestimatio; or (2) its value to this particular plaintiff, id quod interest actoris, or utilitas actoris; a value which might be either less or greater than the market value. Early law does not include more than the market value of the thing, but in course of time a wider view is taken of the plaintiff’s interest (Grueber. Lex Aquilia, p. 265).
Where a claim is founded on some kinds of contract, say a contract of insurance against some kind of loss, the market value of the thing lost is generally intended, though this of course depends on the nature and terms of such contract; in this case the loss of the plaintiff does not include the damages he has indirectly experienced (damnum indirectum) nor the gain he has failed to realize (lucrum cessans). When a claim of indemnification is founded on delict or on breach of a contract, if this is not contrary to the intention of the parties, the plaintiff’s interest is the measure of the indemnity to be paid, and includes not only the immediate damage that he has suffered, but also the mediate, when it was certain and capable of being foreseen; and not only the positive loss which he has suffered but also the gain which he has been hindered from realizing. If a creditor has been kept out of a sum of money, he will at least be entitled to the current rate of interest: but this is not the limit of his claim, if he can prove that the current rate of interest is insufficient to cover the specific disadvantage he has suffered from the Mora of his debtor.
The plaintiff’s interest is the measure of the damages he recovers by the Interdicts Uti possidetis, Utrubi, and Unde vi; as it is in all actions founded on delinquency. The actio vi bonorum raptorum, however, is one of the exceptions to the rule. Here, in consequence, probably, of the peculiar wording of the edict, the measure of damages, the simplum or unit to be quadrupled, is not the plaintiff’s interest but the market value, Dig. 47, 8, 2, 13, Savigny, System, Appendix 12.
Instances of indirect damages due to the act or omission of a defendant, are: the depreciation of the remaining horses of a team when one has been killed: the penal sum which a plaintiff is liable to pay from inability to fulfil another engagement in consequence of the default of the defendant: the sale of goods mortgaged by the plaintiff as security for another engagement which he cannot fulfil in consequence of the default of the defendant: the downfall of a house in consequence of the rottenness of the timber supplied by the defendant: the infection and extermination of a whole herd of cattle in consequence of a diseased beast being sold by the defendant.
Although in respect of computation of damages claims of indemnity founded on breach of contract, whether in consequence of dolus or culpa, may stand on the same footing as claims founded on delict; yet an important distinction was introduced by Justinian, who enacted that in the former case the damages recoverable by this computation of lucrum cessans and damnum indirectum should not exceed the double of the immediate value, hoc quod interest dupli quantitatem minime excedere, Cod. 7, 47; but left claims founded on delict without any similar limitation. In claims founded on breach of contract we may distinguish two obligations: the primary obligation as defined by the promise of the contractor, the secondary or sanctioning obligation produced by the non-fulfilment of the promise. According to the nature of the contract, this non-fulfilment will be either the non-performance of some service; or the non-delivery of some goods, movable or immovable; or non-delivery at the convenanted time or covenanted place; or negligent custody and consequent deterioration or destruction of some article deposited by the plaintiff; or eviction of the plaintiff from some property transferred to him by the defendant; or any other omission or non-feasance The secondary obligation of a defendant may be divided into two portions, one corresponding to the immediate value to the plaintiff of the fulfilment of the primary obligation, the other corresponding to his mediate or indirect losses occasioned by its non-fulfilment. The first portion may be regarded as principal, the second as accessory. Similarly the active obligation or claim of the plaintiff may be divided into two parts, principal and accessory. By the enactment of Justinian, in an action founded on contract, the accessory claim can never exceed the principal, or, in other words, the total claim of the plaintiff can never exceed in amount twice the value of his principal claim. In obligations arising from delict there is no primary obligation or principal claim capable of furnishing a corresponding unit of measurement. The primary obligation of the defendant is here a necessity of abstention which is not called by the Romans obligatio: and the primary right of the plaintiff is a real right, a right against all the world to freedom from molestation; which real right is not so definite or capable of exact valuation or appreciation as a personal claim. Accordingly the sanctioning right of the plaintiff in this case is left by Justinian without limitation or maximum; and the judex is directed to assess the amount of whatever damage the plaintiff has actually incurred.
The enactment of Justinian was probably suggested by the stipulatio duplae annexed to contracts of sale, whereby in case of eviction the purchaser was entitled to recover from the vendor twice the purchase-money. Vangerow, § 571.
§ 213. The owner of a murdered slave both had a civil remedy by the lex Aquilia, and could prosecute criminally under the lex Cornelia de sicariis, passed in the dictatorship of Sylla, b. c. 82.
§ 215. The lex Aquilia, like many other Roman laws, combined heterogeneous dispositions. The first and third chapters contain remedies for destruction of property, or jus in rem, that is, the injury of what is called in English law a chose in possession; the second chapter contains a remedy for the destruction of an obligation, or jus in personam, that is, the injury of what is called in English law a chose in action. The power of one promisee, the adstipulator, to extinguish by acceptilation the right of the other promisee, the principal stipulator, was a consequence of their Correality, § 110, comm. The remedy of the stipulator against the adstipulator, mentioned in the text, by actio mandati would not have been in existence at the time when the lex Aquilia was enacted.
§ 217. The terms of the third chapter are preserved in the Digest: Ceterarum rerum, praeter hominem et pecudem occisos, si quis alteri damnum faxit, quod usserit, fregerit, ruperit injuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto, Ulpian in Dig. 9, 2, 27 § 5. ‘For property, other than slave or cattle slain, damaged by burning, breaking, crushing, unlawfully, the value it bore in the thirty days preceding the offender shall be condemned to pay to the owner.’ The general meaning which the jurists gave to the word ‘ruptum’ is an early example of extensive interpretation.
§ 219. An action founded on the text of a law was called actio directa, an action not founded on the very text of the law, but granted by the praetor in the exercise of his judicial authority in circumstances which, though different, are similar to those which founded the direct action, was called actio utilis. The direct Aquilian action could only be brought by the owner (dominus) and when damage was immediately caused by a body to a body. If the damage was not caused by a body, or not by immediate contact, only the actio utilis could be brought. An actio utilis was brought in the following cases:
(1) When the Aquilian remedy was given to a person who was not owner but who had a jus in re aliena or was bonae fidei possessor.
(2) If the damage was not caused by a body, that is, not by immediate physical contact (damnum not corpore but only corpori datum).
(3) In a case of damage where neither the agent nor the patient was a body, i. e. physically affected (damnum neither corpore nor corpori datum).
(4) In a case of injury to a freeman.
There were three varieties of actio utilis:
(1) actio ficticia, 4 §§ 34-38;
(2) actions in which there was a variation in the persons named in the condemnatio from those previously named in the intentio, as in formula Rutiliana, 4 § 35;
(3) actio in factum concepta, 4 §§ 45-47.
It is probable that the utilis actio legis Aquiliae was generally in the form of actio in factum concepta, though the actio ficticia in jus concepta was sometimes used. Cf. 4 § 37.
The statement in the corresponding passage of the Institutes (4, 3, 16) that the actio in factum is to be distinguished from the actio utilis legis Aquiliae is probably erroneous. There is no trace of such a distinction in Gaius, and in the Digest the term actio in factum is used in all cases of extension of the statute. It is to be remembered that at the time of the compilation of the Institutes the formulary procedure, to which the terms actio utilis and actio in factum refer, had long ceased to be the practice. (Grueber, Lex Aquilia, pp. 199-208.)
The mode of growth of Roman law and the relation between directa Aquilia and utilis Aquilia may be illustrated by similar phenomena in English law, and the relation between the two forms of action called Trespass and Trespass on the Case. Trespass, which lies for injury to real or personal property or to the person, accompanied with violence, has a more extensive application than directa Aquilia, but viewed only as redressing injuries to personal property, is nearly coextensive in its range. The original scheme of actions, devised in comparatively barbarous times, contained no remedy for injuries where there is no act done but only a culpable omission, or where the act is not immediately injurious, but only by consequence or collaterally, or where the idea of force is inapplicable because the subject-matter is not corporeal or tangible, although the injury may be by act direct and immediate in its operation. To supply such deficiencies the statute of Westminster, 13 Edward I, had directed the clerks in chancery to frame new writs whenever the old scheme of writs contained no remedy for a wrong resembling in its features other wrongs for which a remedy was provided. Accordingly, a new writ of Trespass on the Case was framed upon the analogy of the old form of Trespass (confer, ad exemplum institoriae, § 162, comm.), applying to cases where the injury is not immediate, or the subject affected is not corporeal, or the agency is not bodily force. What Edward I directed to be done by the clerks in chancery, and what was done by the introduction of the action of Trespass on the Case, was exactly analogous to what the praetors did when, in virtue of their magisterial authority, they supplemented the civil law by the introduction of actiones ficticiae and actiones in factum. In respect of torts to personal property, the latter have nearly the same sphere as Trespass on the Case. The innovations of the praetor, however, were not confined to the region of torts to personal property, but pervaded every sphere and constituted a mass of supplementary law (jus praetorium), having to the remainder of the law (jus civile) somewhat similar relations and proportions to those which equity has to common law in English jurisprudence.
All attempts to reconstruct the formula in an action for damages under the lex Aquilia are to be regarded as highly conjectural. Lenel, Das Edictum Perpetuum, p. 158, suggests the following as a possible formula, when the action was brought adversus infitiantem in duplum, see § 216, 4 § 9. Si paret Numerium Negidium illum servum injuria occidisse, quam ob rem, quanti is servus in eo anno plurimi fuit, tantam pecuniam Numerium Negidium Aulo Agerio dare oportet, tantae pecuniae duplum, judex, Numerium Negidium Aulo Agerio condemna: si non paret, absolve. The actio confessoria may, according to Lenel, have contained the following demonstratio—quod ille servus occisus est, quem Numerius Negidius injuria se occidisse fassus est.
§ 220. Iniuria autem committitur non solum cum quis pugno puta aut fuste percussus uel etiam uerberatus erit, sed etiam si cui conuicium factum fuerit, siue quis bona alicuius quasi debitoris sciens eum nihil sibi debere proscripserit, siue quis ad infamiam alicuius libellum aut carmen scripserit, siue quis matrem familias aut praetextatum adsectatus fuerit, et denique aliis pluribus modis.
Inst. 4, 4, 1.
§ 221.Pati autem iniuriam uidemur non solum per nosmet ipsos, sed etiam per liberos nostros quos in potestate habemus; item per uxores nostras, quamuis in manu nostra 〈non〉 sint. itaque si filiae meae quae Titio nupta est iniuriam feceris, non solum filiae nomine tecum agi iniuriarum potest, uerum etiam meo quoque et Titii nomine.
Inst. 4, 4, 2.
§ 222. Seruo autem ipsi quidem nulla iniuria intellegitur fieri, sed domino per eum fieri uidetur; non tamen isdem modis, quibus etiam per liberos nostros uel uxores iniuriam pati uidemur, sed ita cum quid atrocius commissum fuerit, quod aperte in contumeliam domini fieri uidetur, ueluti si quis alienum seruum uerberauerit; et in hunc casum formula proponitur. at si quis seruo conuicium fecerit uel pugno eum percusserit, non proponitur ulla formula nec temere petenti datur.
Inst. 4, 4, 3.
§ 223. Poena autem iniuriarum ex legexii tabularum propter membrum quidem ruptum talio erat; propter os uero fractum aut conlisum trecentorum assium poena erat, si libero os fractum erat; at si seruo, cl; propter ceteras uero iniurias xxv assium poena erat constituta. et uidebantur illis temporibus in magna paupertate satis idoneae istae pecuniariae poenae.
Inst. 4, 4, 7.
§ 224. Sed nunc alio iure utimur. permittitur enim nobis a praetore ipsis iniuriam aestimare, et iudex uel tanti condemnat quanti nos aestimauerimus, uel minoris, prout ei uisum fuerit. sed cum atrocem iniuriam praetor aestimare soleat, si simul constituerit, quantae pecuniae eo nomine fieri debeat uadimonium, hac ipsa quantitate taxamus formulam, et iudex quamuis possit uel minoris damnare, plerumque tamen propter ipsius praetoris auctoritatem non audet minuere condemnationem.
Inst. l. c.
§ 225. Atrox autem iniuria aestimatur uel ex facto, ueluti si quis ab aliquo uulneratus aut uerberatus fustibusue caesus fuerit; uel ex loco, ueluti si cui in theatro aut in foro iniuria facta sit; uel ex persona, ueluti si magistratus iniuriam passus fuerit, uel senatori ab humili persona facta sit iniuria.
Inst. 4, 4, 9.
§ 220. Outrage is committed not only by striking with the fist or a stick or a whip, but by scandalous vociferation, or, though knowing that nothing is due to him, seizing and advertising for sale under an order of the praetor the goods of a person as if he were an insolvent or an absconding debtor, or by writing defamatory prose or verse, or by constantly following a matron or youth wearing the praetexta, and by many other modes.
§ 221. Outrage may be suffered not only in one’s own person, but also in the person of a child in our power, or of a wife though not in our hand. So that if you insult my daughter who is married to Titius, but has not passed out of my power into his hand, you are suable for outrage, not only in her name, but also in my name, and in the name of her husband.
§ 222. A slave cannot be outraged himself, but his master may be outraged in his person, not however by all the acts whereby he might be outraged in the person of a child or wife, but only by atrocious assaults, clearly intended to dishonour the master, for instance, by flogging the slave; and for this affront a formula is provided in the praetor’s album: but for verbal abuse of a slave, or striking him with the fist, no formula is provided, nor would an action be readily granted.
§ 223. The penalty of outrage in the Twelve Tables for a limb broken was retaliation (talio): for a bone broken or bruised three hundred asses, if the person injured was a freeman; one hundred and fifty, if he was a slave; for other injuries twenty-five asses: and in those days of excessive poverty such sums seemed an adequate reparation.
§ 224. The rule now in use is different: the plaintiff is permitted by the praetor to assess his own damages for the outrage, and the judex may either condemn the defendant in the whole of this sum, or in a lesser sum at his discretion Atrocious outrage, however, is generally for the praetor to estimate; and when he has once fixed the sum in which the defendant must give security to appear at the trial, the limit is fixed at this sum in the taxatio clause of the formula; and the judex, though he has the power of condemning the plaintiff in less, generally, out of deference to the praetor, will not venture to reduce the condemnation.
§ 225. Outrages are atrocious either by the act, as when a man is wounded, horse-whipped, or beaten with a stick; or from the place, as when an affront is offered in the theatre or the forum; or from the persons, as when a magistrate or a senator is insulted by one of inferior rank.
§ 220. Injuria in this chapter denotes not any wrongful or unlawful act, but contumelious wrong, wrong tending to degradation, a violation of the right to respect, honour, reputation; such as libel, malicious prosecution, assault and battery, and the like.
§ 221. If the husband were a filiusfamilias, the offender would be liable to a fourth action, on the part of the father of the husband. In each of these actions the damages might be different, being measured by the varying dignity of the party dishonoured by the outrage, § 225.
Outrage, like theft and robbery, and unlike damage under the lex Aquilia, requires dolus malus, or unlawful intent. In outrage, as in other delicts, the plaintiff had his option of proceeding civilly or criminally, Inst. 4, 4, 10.
Lenel, § 190, suggests the following as the formula of the actio injuriarum. Quod dolo malo Numerii Negidii Aulo Agerio pugno malo percussa est, qua de re agitur, quantam pecuniam vobis bonum aequum videbitur ob eam rem Numerium Negidium Aulo Agerio condemnari, dumtaxat HS . . . . , tantam pecuniam, si non plus quam annus est, cum de ea re experiundi potestas fuit, recuperatores, Numerium Negidium Aulo Agerio condemnato: si non paret, absolvito.
In the Roman law which was in force as the Common Law of German jurisprudence, till recently superseded by the German Civil Code, simply penal suits appear to have been obsolete, with the exception of Injuriarum (see on this subject Bürgerliches Gesetzbuch, or German Civil Code, § 823, &c.); and here the modern plaintiff has his election between pecuniary damages and an apology or revocation of the injurious utterance. An inquiry into the reason why the actio injuriarum alone has survived will illustrate the nature of simply penal suits. Their principal object, as already suggested, was to induce the aggrieved party to abstain from the remedy offered him in archaic society, self-redress or private revenge. In the case of other wrongs such inducement is no longer necessary. But in the case of Affront or Dishonour the effect of the modern code of honour has led the moderns even more than the ancients to prefer the archaic institution of Feud or private war, as embodied in the Duel, to an unromantic appeal to the public tribunals. Here, then, the inducement to abstain from self-help, which elsewhere is not needed, is still required.
Theft and Rapine are removed in the present day from the Penal branch of the Private code to the Criminal code; that is, are not punished at the discretion of a private plaintiff, but by the action of a public prosecutor. Savigny, Law of Obligation, § 84.
Gaius seems to have been misled by a double meaning of Injuria when he connects the actio Injuriarum with the redress given by the Twelve Tables for grievous bodily harm, § 223. There seems to be no necessary connexion between bodily harm and dishonour, although both may have been denoted in Latin by the word Injuria.
In actions on Delict more especially, Real actions differing in this respect from the liability of a defendant necessarily implies that he is convicted either of Dolus or of Culpa, unlawful intention or unlawful negligence, § 211.
The opposite of Negligence is Diligence, vigilance, attention, which, like Negligence, admits of an infinite variety of gradations.
Actions under the lex Aquilia, instituted to recover for unlawful damage, are subject to this rule that, when Culpa, that is absence of ordinary care, is once established, the amount of the defendant’s liability does not depend on its degree.
In actions founded on Dispositions, that is on Contract and quasicontract, the liability of the defendant may depend on the degree of his negligence. In most relations a man is bound to make good losses occasioned by slight negligence (culpa levis in abstracto), that is, is liable for lack of ordinary care or care taken by an average paterfamilias; in others he is judged by a somewhat lower standard, being only bound to take the same care of the property of another as he is accustomed to take of his own (culpa levis in concreto): in others again he is only made answerable for the consequences of gross negligence, culpa lata.
The terms, Gross and Slight, like other quantitative terms, have no positive signification until we fix upon some unit of measurement or standard of comparison to which any given instance may be referred and by which it may be measured. Two standards are frequently employed by the Roman jurists: the vigilant care (exacta diligentia) of a good man of business (diligens paterfamilias, homo frugi) and the care which a given individual habitually bestows on his own interests (suus modus, diligentia quam suis rebus adhibere solet). Slight negligence is the absence of the diligence of the careful man of business; gross negligence falls considerably below this standard. Diligence and negligence, when referred to the standard of the careful man of business, are sometimes called abstract or absolute; when referred to the habitual conduct of the individual in the management of his own affairs, concrete or relative.
The degree of diligence required of a man in any relation and the standard by which it is judged depends generally on the question whether he is benefited or not benefited by the relation. He who derives no benefit from it, e. g. the depositary and lender (commodator, e. g. where the borrower is thrown from a horse lent to him), is only answerable for dolus and culpa lata. On the other hand, the depositor (e. g. if the depositary is injured by an explosive deposited with him, without notice of its character) and the commodatarius are bound to show exacta diligentia. It would seem that Mandate (mandatum) forms an exception to this rule, for businesslike care (exacta diligentia) is required of the Mandatary (mandatarius), and the same rule applies to the negotiorum gestor; yet such agents, like the depositary, are strictly speaking unremunerated, though in later Roman law, as we have seen, the mandatary could often enforce payment of his honorarium by recourse to the cognitio extraordinaria of the praetor. But the real ground for imposing this liability no doubt is to be found in the confidential relation in which the mandatary stood to the mandator. Similarly, according to English law, strict diligence is required of Trustees, although they are unremunerated. The Roman Tutor and Curator, who were called on to fulfil a public function, were only bound to take the same care of their ward’s property as of their own.
He then who derives advantage from a contract or disposition is required to show businesslike care, and is responsible for abstract or absolute negligence (culpa levis in abstracto); nor does it matter whether he is exclusively advantaged by the relation, like the depositor and the gratuitous borrower for use (commodatarius); or whether both parties to the disposition derive a benefit from it, e. g. venditor, emptor, locator, conductor, mortgagor, mortgagee.
Exceptions to this rule, however, are to found in the cases of the partner (socius), the tenant in common (communio), the husband in respect of dotal property, the co-heir, the co-legatee. In these relations both parties have an advantage, and yet their diligence is only estimated by the relative standard: they have to show as much care as they show in their own affairs; not more, apparently, than the tutor or curator; not the absolute care of diligens paterfamilias.
The old trichotomist division of culpa into lata, levis, and levissima, is now generally abandoned, levissima disappearing, the opposition being between culpa levis, whether in abstracto or in concreto, and gross negligence, culpa lata, which is hardly distinguishable from dolus, or intentional wrong.
Under the head of Obligatio ex delicto should be placed, according to Savigny, the doctrine of possession (Interdict-possession), or, rather, of Dispossession, with its remedies, the Interdicts Utrubi, Uti possidetis, and Unde vi. This would agree with the Roman arrangement: at least the Roman jurists, instead of treating possession by the side of ownership, possession being the actual control of a thing as owner, while ownership is the legal right to such control, were content with regarding Dispossession as a ground of liability, imposing a secondary positive obligation on the individual dispossessor, 4 § 140, comm.
But the true place of Possession seems indicated by Vangerow, who distinguishes between the Interdicta Retinendae and Recuperandae possessionis. The Interdictum Recuperandae possessionis, i. e. Interdict Unde vi, is really based on something analogous to a delict, and might perhaps have been ascribed to delictal law: whereas Possession, as contemplated by the Interdicta Retinendae possessionis, i. e. the Interdicts Uti possidetis and Utrubi, is protected as if it were a primary right demanding universal recognition (jus in rem) that has its place in connexion with the law regulating Dominium: and the interdicts allotted for its protection, though perhaps nominally based on acts of a delictal character, are really co-ordinate not with delictal actions, but with Real actions or Vindicatio. Gaius only deals with Possession and possessory Interdicts as belonging to the code of Procedure, without indicating their position in the code of Substantive law.
The following observations borrowed from Thering are supplementary to the statements on the nature of formal contracts.
The contracts which in this treatise have been designated as formal are sometimes from a different point of view called abstract, and an examination of the meaning of this term may throw light on the function for which Formal contracts were invented by jurisprudence and which this term expresses. The explanation of the term turns on two conceptions: the Cause of an obligation (causa obligationis) and the Form of a Disposition: the cause alone needs elucidation.
A unilateral contract, consisting merely of a promise by one party and an acceptance by another, is the result of a decomposition of an actual transaction of commerce and life: actual transactions are always (to set aside for the present the case of Donation) bilateral. The unilateral agreement, conferring a benefit on A and imposing a burden on B, is always accompanied by another unilateral disposition burdensome to A and beneficial to B. The two unilateral dispositions are reciprocally cause and effect: when one is regarded as the causal factor, the other must be regarded (if we may coin a term) as the sequent or dependent factor of the composite or bilateral transaction.
Thus Mutuum, if we take one factor, is the promise to pay a sum which the promisor has received from the promisee: if we take the other factor, it is the alienation of property to a person who promises to reconvey its equivalent to the alienor. Depositum and Commodatum, if we take one factor, are promises to restore Detention which has been received from the promisee: if we take the other factor, they are a delivery by a depositor or lender of Detention which the depositary or borrower promises to redeliver. In Pignus there is a similar delivery and promise to redeliver Possession. Societas is a promise by a partner to contribute towards the attainment of a common end towards which the other partner promises a like contribution. In Mandate, there is, on the one side, a promise to perform something at the charge and expense of a principal: on the other, a grant of authority to deal with the property of the grantor to a person who promises obedience to the instructions and devotion tothe interests of his principal. Here the italicized words show the causal factors which the various unilateral dispositions require for their support: and similarly all other unilateral pacts might be shown to be dependent factors of compound bilateral transactions.
Each correlated unilateral disposition is both cause and effect. Each is a lever by which the will of one of the contractors is moved. Each is the efficient or motor cause of the other: and (as wills are only moved by motives or ends) each is the final cause of the other.
Although they are thus reciprocally dependent, yet generally in practice one habitually precedes, and thus appears to be the causal factor; while the one which habitually follows appears to be the sequent or dependent factor. This is always the case in Real and Innominate contracts, where one disposition has always passed beyond the limits of mere agreement into an alienation of property (mutuum, the innominate contracts do ut des, do ut facias): alienation of possession (pignus): alienation of detention (depositum, commodatum): or performance of service (the innominate contracts facio ut des, facio ut facias).
The Form of a disposition is what we have elsewhere called its Declaration. All dispositions have two elements or aspects, one external or corporal, the other internal or mental. Internally they are the Intention of a disposer or disposers; externally they are the expression or manifestation of this intention.
Formal contract separates the sequent from the causal factor of a bilateral agreement, clothes the intention in a strongly marked, sometimes strangely charactered, external expression, manifestation, or form, in exact conformity to the prescription of archaic law or primeval custom, and thus constitutes a unilateral contract valid by form, Formless contract is bound by no requirement of Form and has no validity in isolation from its cause. Formal contracts from the separation or abstraction of the sequent from the causal factor, are appropriately called abstract; while for the opposite reason formless contracts may be denominated concrete.
Abstract contracts sometimes contained in their formalities a shadowy recognition of their departure from the concrete realities of life—a confession of the necessity of a supporting Cause in actual commerce; but sometimes contained no such avowal. Thus Expensilatio contained the phantom of a money loan, the analogon of the ‘Value received’ clause in a modern bill of exchange. But this recognition was not universal; for Stipulatio, whatever may have been its original form (if derived from Stips, the word suggests prepayment by the promisee: if connected with Stipes, it merely signifies a binding formula), in the shape with which we are acquainted, does not suggest, as a motive or cause of the advantage conferred on the promisee, any compensating burden that he has previously borne.
The function of abstract contracts, the purpose for which they were invented, is obviously the facilitation of the Proof of rights and duties by means of the simplification of their Title. The more comprehensive the conditions of the Title to which a right is annexed, the more complicated and troublesome will be its Proof. The causal factor of Formless contracts yields to a fraudulent debtor at least as many positions where he can intrench himself as the sequent factor. The necessity imposed on the plaintiff in an action on a Formless contract of proving the existence of an adequate cause doubles his burden of proof: Abstract contracts reduce this burden to a fraction.
From the statement, 3 § 92, comm., that a certain evidence of the contract is an integral part of Formal but not of Formless contracts, that Formal contracts, in other words, take up into their essence a certain preappointed evidence, while Formless contracts are complete independently of this, it might be inferred that the elements of the Formal contracts were more complex than those of the Formless: but this would be an erroneous conclusion. The admission of evidentiary matter into the essence of the Formal or Abstract contract is more than counterbalanced by the exclusion of the causal factor. The evidentiary matter is something visible and audible and easy of proof and adjudication; prescribed, indeed, for the very reason that it is so easy of proof and adjudication: whereas the causal factor, involving a question of ulterior as well as of immediate intention, may furnish scope for endless subterfuge and controversy.
The validity of Formal contracts irrespective of the causal factor was to a certain extent infringed in later jurisprudence by the admission of the Exceptio doli, more particularly in its form of Exceptio non numeratae pecuniae. Thus for the space of two years after a cautio for a loan by stipulation or otherwise had been given, the creditor who sought to enforce the contract was under the necessity of proving the existence of the causa (numeratio pecuniae): to this extent, then, Stipulatio was reduced to the disadvantageous position of a Formless contract, 3 §§ 97-109, comm.
Formal dispositions were not confined to the sphere of contract: in the sphere of alienations Traditio is Formless, while Mancipatio and In jure cessio are Formal. Formal alienations present the same contrast that we noticed between Formal contracts. Mancipatio by its simulation of a purchase and the payment of purchase money makes the same recognition of a causal factor that Nexum and Expensilatio made by the payment, or fiction of payment of, a loan; while in Jure cessio (if we can speak with confidence of a process about which we know so little) resembled Stipulatio in containing no such recognition.
Ihering, who has handled this topic, § 55, applies the term abstract to Formal alienations. When, however, we compare Formal and Formless alienations we find the terms Abstract and Concrete not so applicable to alienations as they were to contracts, and for this reason: in Formless alienation there is as complete an abstraction or severance of the sequent from the causal factor as there is in Formal; and Tradition is as unilateral a transaction as Mancipation or Surrender before a magistrate.
This assertion may seem inconsistent with the doctrine (2 § 65, comm.) that, to constitute a valid alienation, Tradition must be preceded by some justa causa, Donatio, Contractus, or Solutio. The preceding disposition, however, is not required in order to form the causal factor of a bilateral disposition, but in order to furnish evidence of the Intention required for a unilateral disposition: to prove the existence of animus transferendi dominii, without which Tradition would be a Form without a substance, would want the internal element it requires in order to amount to a Disposition. Once let the sequent factor, the intention requisite for a unilateral disposition, be proved, and the justa causa, the donandi, credendi, solvendi animus is immaterial. Thus a misunderstanding between alienor and alienee respecting the nature of the transaction, the one intending a loan the other a donation, or the one intending the discharge of a debt imposed by testament the other the discharge of a debt imposed by stipulation, is immaterial: because the intention of donation and of loan, of paying a legacy and of paying a stipulated debt, alike involve the animus transferendi dominii. Cum in corpus quidem quod traditur consentiamus in causis vero dissentiamus, non animadverto cur inefficax sit traditio, veluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus, Julian, Dig. 41, 1, 36. An error in respect of the causa may be sufficient to entitle an alienor to condictio indebiti or condictio sine causa; i. e. to a suit for restitution for want of consideration: but it does not prevent the transfer of ownership in the first instance: and if the property passes onward to a third person the alienor cannot reach it in his hands, but has only a personal action against the original alienee.
In one particular instance, by special statutory enactment, the causa traditionis is material to the efficacy of Tradition. Tradition solvendi animo, when the solutio intended is the performance of a contract of sale, operates no transfer of ownership except in sales expressly on credit until the purchase money is paid or security is given for its payment. This, as we have seen, 2 § 65, comm., was a provision of the Twelve Tables in respect of Mancipation, and in later times extended to Tradition. Surrender before the magistrate was not thus restricted in its operation, but transferred ownership irrespectively of the payment of purchase money. Ihering also holds that in Mancipation the requirement of the Twelve Tables was deemed to be satisfied by the simulation of payment (isque mihi emptus est hoc aere aeneaque libra); and he suggests that the existence of the requirement was the very reason why the simulation of payment was introduced into this solemnity.
In this single point, then, Mancipation (if Ihering’s view on the subject is accepted) and Surrender before the magistrate were more completely isolated from their causa than Tradition: but with this exception, Formal and Formless alienations were equally abstract. Both operated a transfer of ownership in spite of any flaw in the causa. If such a flaw existed in either a Formal or a Formless alienation, it only gave the alienor a personal action (condictio) against the alienee for restitution. He could not recover the property if it had passed out of the hands of the first alienee into those of a second.
If we inquire why Formless alienation was allowed to have validity irrespectively of the causal factor, we shall find the reason to be, that Tradition or parting with possession, though a Formless proceeding, is an act of so serious a character as effectually to preclude all idea of indecision—to prove that the parties had reached the stage of definitive resolution. Accordingly the intention of transferring ownership when manifested by Tradition seems to deserve all the efficacy that could be imparted by the observance of the most solemn Forms.
As in the later jurisprudence Stipulatio was robbed of part of its efficacy by the Exceptio pecuniae non numeratae, so, though at an earlier period, and in a different way, Alienations and other transactions, whether Formal or Formless, could be prevented from operating by the in integrum Restitutio, and by the actio quod metus causa, impersonal remedies (in rem) which reached the person benefited by property to whatever hands it might have arrived by the effect of subsequent alienations.
If, then, Formal alienations were not simplifications of title in virtue of any greater abstractness than was possessed by Formless alienation, for what other advantage were they introduced into commerce? by what other attribute were they a facilitation of Proof? They facilitated proof (1) of the specific intention of a disposer against an allegation of a different intention, and (2) of the existence of intention against the denial of all intention.
(1) Delivery of a thing might be made with the design of merely transferring Detention. Such was its effect in Depositum, Commodatum, Mandatum, Locatio. Or, secondly, it might be made with the purpose of transferring something more than Detention, namely Possession. Such was its effect in Pignus and Precarium. Or, thirdly, it might be made with the intent of transferring Ownership, as in Donatio, Mutuum, Solutio. Which of these intentions prompted a given Delivery might be extremely difficult to prove. The difficulty vanishes in Mancipation and Surrender before a Magistrate. Their forms comprehend a most emphatic and trenchant expression of intention. ‘I assert that this slave is my own’ (hunc ego hominem meum esse aio) is the exclamation of the alienee, confirmed by the assent of the alienor, in both modes of Formal alienation.
(2) Formless dispositions, whether alienations or contracts, may leave a doubt not only which of several intentions governed a procedure, but whether any intention at all had been matured in the minds of the negotiators. Had the parties passed the stage of mere contemplation, inclination, preliminary discussion, were they still vacillating, now yielding to an attractive prospect, now receding from half-made concessions? Or had cupidity and timidity, desire and hesitation, given place to final decision and deliberate resolve? It is obvious that the formalities of the solemn modes of contract were invented for the purpose of excluding all doubt from the answers to these questions.
Beginning these remarks we adjourned the consideration of Donation, which may now be noticed. Unilateral dispositions, we have seen, do not exist in the actual world unaccompanied. Each implies another on which it leans. Intention to incur a loss has its final and efficient cause in intention to procure a gain. If this was universally true we might say that all dispositions were in respect of motive bilateral: i. e. that in all a pecuniary loss incurred at one stage of the transaction is balanced by a pecuniary gain accomplished at another. This holds of all mercantile transactions which are the bulk of those that occupy the attention of jurisprudence. The market, however, is not the whole of the world, nor are mercenary acts the whole of life; and there is such a thing as a disinterested disposition, a disposition wherein a man incurs a loss to which the causa or motor factor is the intention not of counterbalancing gain in another part of the transaction, but of pure and simple and unrequited liberality.
Donation may be found in the sphere either of Ownership or of Obligation; it may be accomplished either by alienation or by promise: the intention of liberality may be consummated either by Tradition or by Stipulation. Donation, that is to say, is one of the causae obligationis as well as a justa causa traditionis: and it was in contemplation of a contract animated by such a cause that we abstained, when beginning this note, from saying unreservedly that all actual agreements were in respect of the motives giving rise to them bilateral.
I will seize the present opportunity of supplying an omission in the commentary and noticing another feature common to many Formal dispositions.
The formal dispositions of Roman jurisprudence were frequently simulative. When a new juristic purpose was to be accomplished, the method of jurisprudence was, instead of creating for it by an effort of imagination a new corporeal form, to lay hold of some existing disposition, and wrenching it more or less completely from its original basis and original uses, to employ its more or less twisted and distorted form as a vehicle or incorporation of the new intention. The new intention is the reality: the original intention is divorced from the form once its own, and now is merely simulated. Thus the festuca wielded in Sacramentum perhaps represents the weapon intended to be used in a duel, the older mode of ascertaining rights. Surrender before the magistrate (in jure cessio) is intended to effect a transfer of ownership from person to person: in form it is a judgment respecting an already existing ownership. Transcripticia nomina were intended to operate novations, to transform equitable into legal obligation: in form they were loans of money. Mancipation, a solemn form of conveying dominion, simulated a sale and the accompaniment of primeval sales, the weighing of the uncoined masses of bronze that served as purchase money. The form then, instead of being the natural execution and expression of an intention, has but a remote correspondence to the end which it embodies, and sometimes may be called symbolic: e. g. the production of the scales and bars of bronze and pantomime of weighing in Mancipation was the natural mode of executing an archaic sale, but is merely a symbolic or hieroglyphic expression of the transfer of ownership. Sometimes a mimetic disposition became itself the object of subsequent mimicry, as is seen in the mode of discharging obligations, called acceptilatio Aquiliana.
The Simulative character was not a universal feature even of the older Formal dispositions: for instance, Stipulation seems to have had nothing mimetic in its form: while later jurisprudence, when it had to invent a form, never adopted the symbolic style. Rigorous forms were prescribed as a condition of the validity of various dispositions: e. g. the presence of a certain number of witnesses for the execution of a Will: memorandum in the judicial records (actis, gestis insinuare) for donations of more than 500 solidi or for effecting emancipation by entry in such records (emancipatio Justinianea): none of which were simulations of any more primitive procedure.
The degree of integrity or mutilation in which the primeval disposition persisted in the modern institution varied in different instances. Sometimes the old proceeding imposed all its rules on the new institution: more commonly many of its aspects were effaced and only isolated incidents continued in force. The procedure which involved Coemptio, 1 § 113, was applied by the ingenuity of later jurists to accomplish three purposes never dreamed of by those who presided over its introduction: the extinction of the sacred rites by which the estate of an heiress was burdened; the change of guardian by a woman at the period when all women were under wardship; and the acquisition of testamentary capacity by a woman at a time when widowhood was the only title by which it could be acquired. It was a complicated process and consisted of three factors, each of which was an archaic institution: (1) a Hand-marriage (in manum conventio) accompanied with a fiducia for remancipation; (2) a remancipation accompanied with a fiducia for manumission; (3) a manumission and consequent wardship. Of these factors the Hand-marriage was a pure unreality: it was divested of reality by the accompanying fiducia; yet one of its incidents continued in force, the transfer of the obligation to the sacred rites from the heiress to the coemptionator. The second act was so far an unreality that it was no longer the sale of a wife by her savage lord in exchange for some more coveted commodity: but it was real so far as it subjected the remancipated woman to capitis minutio. The manumission was unreal so far as it implied a vindication into freedom or a liberalis causa and an escape from the hardships of bondage: but it was real so far as it had the effect of making the manumitted ex-bondwoman the ward of her manumitter.
Emancipation, 1 § 132, was a process which usually consisted of four mancipations and three manumissions. The first three mancipations were each accompanied by a fiducia of the alienee: the first two by a fiducia binding the alienee to manumit the son, the third by a fiducia binding the alienee to remancipate the son to the father. By the final manumission the parens manumissor became the patron of his son. Here we have another ceremony which employed a primitive disposition divested of its natural motive. The independence of the son whose father had three times sold or leased his patria potestas over him to a stranger was originally enacted by the Twelve Tables as a punishment for an odious and unnatural exercise of parental rights. In later times the mancipation of the son for the sake of its legal consequences was an act of self-abnegation on the part of the father; a means of promoting the son to an independent position, the status of head of a household.
The positive and arbitrary character of simulative dispositions displays itself in the fact that the laws of the original dispositions which they welded into their substance were neither consistently regarded nor consistently disregarded. (A) Sometimes they were regarded in spite of the inconvenience they occasioned: (B) sometimes convenience prevailed: the new institute acquired an independent position; and logic and archaeology were set at defiance.
(A) The form of surrender before the magistrate could not be employed for the acquisition of property by the agency of an inferior (son or slave), because such a person could not be a plaintiff in a genuine vindicatio. Hence the inferior could be an instrument for acquiring a rustic servitude, because he could be a party to a mancipation, but not for acquiring an urban servitude, because this could only be conveyed by surrender before the magistrate, 2 § 29.
In Mancipatio the payment by bars of bronze became as fictitious as the adprehensio or taking possession; and yet, according to Ihering, it sufficed to satisfy the requirement of the Twelve Tables whereby in Sale and delivery the passing of property was suspended until payment of the purchase money. (See 2 §§ 15-27, comm., and cf. Sohm, p. 60, &c., Muirhead, p. 134, &c.)
Manumission of the son by the emancipating father from the shadowy state of mancipium invested the latter, if he survived his son, with the serious pecuniary rights of patronus against his testate or intestate succession.
Women were incapable of Adrogation, because this solemnity involved a formal assembly of the Comitia Curiata; and in such an assembly women were not allowed to be present.
In the mancipatory will the Familiae emptor was originally in the place of the heir; and therefore, to exclude partial testimony (domesticum testimonium), persons united to Familiae emptor by the bond of patria potestas were disqualified for the rôle of witness. The disqualification was continued, in spite of the inconvenience it would occasion, when the familiae emptor was a mere form; and, what is more extraordinary, legatees and persons united to the real heir were admissible as witnesses, although the policy of the law was thereby entirely put into confusion (totum jus tale conturbatum fuerat, Inst. 2, 10, 10). The requirement of testamenti factio passiva at the time of the making of a will, as well as at the time of the testator’s death and the time of acquisition by the heir, was, according to Savigny, § 393, only an irrational consequence of the simulation of Mancipium in a will.
(B) In the following instances, on the contrary, the laws of the simulated institution were disregarded or transformed. Hereditatis petitio being a form of Vindicatio we might have expected that any kind of inheritance when once vested would be transferable by surrender before the magistrate or fictitious vindication, just as any inheritance could be claimed by genuine hereditatis petitio. But we find that only the intestate succession of a collateral (legitima hereditas) could be thus conveyed, if, made after aditio, it transferred only the corporeal property of the inheritance, not the inheritance itself, 2 § 35. Cf. Sohm, p. 533, n. 3.
In Mancipatio, although the fictitious payment sufficed for the transfer of dominion, yet actual payment or credit was required for the purpose of making the alienor subject to auctoritas, that is, to liability to repay twice the purchase money in the event of eviction, Paulus, 2, 17, 13. Cf. Muirhead, Roman Law, § 30.
Again, the Census, like a year of jubilee, appears to have liberated from genuine bondage; but not to have broken the fictitious bondage of a son who was in the course of emancipation, 1 § 140.
Coemption, we are told, transferred to the husband the universal estate of the wife, 2 § 98. We may suppose that it had not a similar effect on the property of a woman who merely made a coemption for the purpose of changing her guardian or acquiring testamentary capacity, though it may perhaps have been that the transfer took place but that the coemptionator was under a fiducia to retransfer it.
The genuine sale of a wife was probably forbidden at an early period under the severest religious sanctions: this did not prevent the simulated sale (remancipatio) of a woman by her coemptionator, i. e. the simulating disposition when once established was free from the supervening rules of the simulated disposition.
A Testament was originally a Mancipation; but the familia or juris universitas, the object of testament, is not found in the catalogue of mancipable things (res mancipi): a testament was revocable, a mancipation irrevocable: the mancipation itself could not have its operation suspended or made contingent on a condition, though it could be made subject to nuncupatory and fiduciary claims; a testament became by means of the nuncupatory part of the mancipation a disposition de futuro and might be conditional: a mancipation only conveyed real rights; nexum, which imposed obligation, though cognate, was a distinct institution: testament invested the heir with the entire property of the deceased, including his obligations: mancipation only affected the alienor and alienee; testament conferred rights on heirs and legatees, i. e. strangers who had in no way cooperated in the execution of the testament. The sacrifice of reality to fiction by the slavish adherence to the rules of domesticum testimonium makes it the more remarkable that the testament should have burst asunder so many other restrictions of mancipation. Ihering, Geist des Roemischen Rechts, § 58.