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DE LEGITIMA AGNATORVM SVCCESSIONE. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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DE 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.’