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CONSENSV OBLIGATIONES. - 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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§ 135. Consensu fiunt obligationes in emptionibus uenditionibus, locationibus conductionibus, societatibus, mandatis.
Inst. 3, 22, pr.
§ 136. Ideo autem istis modis consensu dicimus obligationes contrahi, quia neque uerborum neque scripturae ulla proprietas desideratur, sed sufficit eos qui negotium gerunt consensisse. unde inter absentes quoque talia negotia contrahuntur, ueluti per epistulam aut per internuntium; cum alioquin uerborum obligatio inter absentes fieri non possit.
Inst. 3, 22, 1.
§ 137. Item in his contractibus alter alteri obligatur de eo, quod alterum alteri ex bono et aequo praestare oportet; cum alioquin in uerborum obligationibus alius stipuletur, alius promittat, et in nominibus alius expensum ferendo obliget, alius obligetur.
Inst. 3, 23, 3.
§ . [Sed absenti expensum ferri potest, etsi uerborum obligatio cum absente contrahi non possit.]
§ 135. Simple consent creates a contract in purchase and sale, letting and hiring, partnership, agency.
§ 136. In these contracts consent is said to create the obligation, because no form of words or of writing is required, but the mere consent of the parties is sufficient. Absent parties, therefore, can form these contracts; as, by letter or messenger; whereas Verbal obligations cannot be contracted between absent parties.
§ 137. Further, these contracts are bilateral and bonae fidei, that is, both parties incur a reciprocal obligation to perform whatever is fair and equal; whereas Verbal and Literal contracts are unilateral, that is, one party stipulates and the other promises, or one party makes an entry of the other’s debit, and the other party is bound thereby.
§ 138. But absence is no impediment to Literal contracts, though it is to Verbal.
Besides the four Consensual contracts which are named in the text, certain praetorian and statutory agreements, though not denominated contracts, became enforceable by action. The most important praetorian pact, or pacts enforced by the praetor, is constitutum or constituta pecunia, which we mentioned when treating of stipulation, as a form of guaranty, Inst. 4, 6, 9. An instance of statutory pact, or pact made valid by statute under Justinian, is donatio inter vivos. A mere promise to give was irrevocable, and the donor could be forced by action to perform his promise, but if above 500 solidi it required public registration.
§ 139.Emptio et uenditio contrahitur, cum de pretio conuenerit, quamuis nondum pretium numeratum sit, ac ne arra quidem data fuerit; nam quod arrae nomine datur, argumentum est emptionis et uenditionis contractae.
Inst. 3, 23, pr.
§ 140. Pretium autem certum esse debet. nam alioquin si ita inter nos conuenerit, ut quanti Titius rem aestimauerit, tanti sit empta, Labeo negauit ullam uim hoc negotium habere; cuius opinionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutus est.
Inst. 3, 23, 1.
§ 141. Item pretium in numerata pecunia consistere debet. nam in ceteris rebus an pretium esse possit, ueluti homo aut toga aut fundus alterius rei 〈pretium esse possit〉, ualde quaeritur. nostri praeceptores putant etiam in alia re posse consistere pretium. unde illud est, quod uulgo putant per permutationem rerum emptionem ei uenditionem contrahi, eamque speciem emptionis uenditionisque uetustissimam esse; argumentoque utuntur Graeco poeta Homero qui aliqua parte sic ait:
〈ἔνθεν ἄρ’ οἰνίζοντο καρηκομόωντες Ἀχαιοί,
ἄλλοι μὲν χαλκῳ̑, ἄλλοι δ’ αἴθωνι σιδήρῳ,
ἄλλοι δὲ ῥινοɩ̂ς, ἄλλοι δ’ αὐτῃ̂σι βόεσσιν,
ἄλλοι δ’ ἀνδραπόδεσσι.〉
diuersae scholae auctores dissentiunt aliudque esse existimant permutationem rerum, aliud emptionem et uenditionem; alioquin non posse rem expediri permutatis rebus, quae uideatur res uenisse et quae pretii nomine data esse, sed rursus utramque rem uideri et uenisse et utramque pretii nomine datam esse absurdum uideri. sed ait Caelius Sabinus, si rem tibi uenalem habenti, ueluti fundum, [acceperim et] pretii nomine hominem forte dederim, fundum quidem uideri uenisse, hominem autem pretii nomine datum esse, ut fundus acciperetur.
Inst. 3, 23, 2.
§ 139. The contract of purchase and sale is complete so soon as the price is agreed upon and before the price or any earnest money is paid. The earnest money is merely evidence of the completion of the contract.
§ 140. The price must be certain. If there is an agreement to purchase at a price to be fixed by another person, as say by Titius, Labeo, whose opinion is approved of by Cassius, says the contract is invalid, Ofilius says it is a sale, and his opinion is followed by Proculus.
§ 141. The price should be in money, for it is much disputed whether anything but money, such as a slave, a robe, a piece of land, can be treated as price. My school hold the affirmative, and regard exchange as a species, and the oldest species, of purchase and sale; in support of which they quote the lines of Homer:
‘Here touched Achaean barks in quest of wine.
They purchased it with copper and with steel,
With hides, with horned cattle, and with slaves.’
The other school maintain the negative, and distinguish between exchange and purchase and sale, because in exchange we cannot determine which is the thing sold and which is the price, and both things cannot be regarded as both the thing sold and the price. Caelius Sabinus says that if Titius offers, say, land for sale, and I give him a slave for it, the thing sold is the land and the price is the slave [because the preceding offer determines which object is res and which is pretium].
It is necessary to distinguish clearly between the completion of a contract of sale and the subsequent transfer of ownership; between the creation of a jus in personam and the conveyance of a jus in rem; between the acquisition of an obligation and the acquisition of ownership.
The contract is complete and so binding as soon as the object of sale and the price are agreed upon, but no property passes until the price is paid and the thing is either mancipated or possession is delivered, or, in the case of a sale on credit, until possession is delivered, Dig. 18, 1, 19. ‘Sale and delivery do not pass property unless the price is paid, or security is given for the price, or credit is given without security,’ Inst. 2, 1, 41. ‘Sale and delivery do not pass property, unless the vendee pays the price, or gives the vendor security; for instance, by a guarantor discharging the vendee, or by mortgage. If, however, the sale is on credit, ownership immediately passes.’
By English law, if the contract is for the unconditional sale of specific goods, ready for delivery, and the price is ascertained, the property in the goods passes to the buyer at the moment that the contract is complete. But, unless it is a sale on credit, the buyer cannot demand delivery of the goods until he has paid or tendered the price. For if the sale is for ready money, delivery or tender of the whole of the goods and price are concurrent conditions (i. e. the seller must be ready and willing to give possession of the goods in exchange for the price, and the buyer to pay the price in exchange for possession of the goods, as was the case also according to Roman law).
If the contract is not for the purchase of specific goods, but of goods of a certain nature or class, only rights in personam arise from the agreement; for, though the contract is complete, no property passes until the particular goods are ascertained by delivery, or appropriated to the contract by the parties.
In the sale of land the equitable estate is conveyed by the contract to convey, when perfected by the payment of the purchase-money, and without notice to the party in whom the legal estate is vested: the legal estate is only passed by the subsequent deed. Formerly the deed was a Feoffment which was inoperative without livery of seisin, that is, delivery of possession; but now the deed of Grant passes property without delivery of possession. The assignment of an equitable interest in personal estate is not perfect, as against an assignee for valuable consideration, without notice to the trustee.
By the Code Napoleon delivery is requisite for the transfer of property in movables, but property in immovables, under French law, is transferred as soon as the contract is complete and the title to it is registered.
By Roman law, the goods are at the risk of the purchaser as soon as the contract is complete, and before the property is transferred. The formula, res perit domino, therefore, does not apply to the contract of purchase and sale, as it does to other contracts, e. g. to mutuum, commodatum, pignus.
In English law, the risk always belongs to the person in whom the property resides, and the maxim, res perit domino, is applicable to sales.
§ 139. Arra, as a general rule, was evidence of the completion of contract, but not always, at least in the time of Justinian. If the parties so agreed, arra was only a penal sum, whose forfeiture entitled either negotiator to recede from a negotiation or rescind a completed contract, Cod. 4, 21, 17. In the absence of such special agreement, in default of voluntary performance, performance could be enforced by action, and forfeiture of the arra was cumulative upon and additional to such performance: the vendee, if he was in default, could not reckon the arra as part of the purchase-money; and the vendor, if in default, besides delivery of possession and repayment of the arra, was compelled to pay an equal sum to the vendee. (Cf. Moyle, Contract of Sale in Roman law, pp. 42, 48.)
§ 140. Where the price is left to be fixed by an arbitrator, Justinian enacted, in conformity with the opinion of Proculus, that the contract is binding if the arbitrator makes his valuation.
§ 141. After the time of Gaius, a constitution of Diocletian and Maximian (a d. 286-305), conformably to the opinion of Proculus, declares exchange or barter to be a contract, requiring delivery of a thing to make it enforceable, Cod. 4, 64, 3. ‘An agreement to exchange without part execution cannot support an action.’ Accordingly, we have mentioned it as belonging to the miscellaneous class of contractus innominati.
The obligation of the vendor was not to transfer quiritarian ownership (ut rem emptoris faciat), but merely to secure the vendee in undisturbed enjoyment (ut praestet habere licere) of the article sold, that is, to give him vacant possession and guarantee him against eviction. Accordingly, if the vendee is judicially molested in his possession, he summons his vendor to defend his title, and, if evicted, recovers against his vendor the loss he has sustained. Venditor si ejus rei quam vendiderit dominus non sit, pretio accepto, auctoritati manebit obnoxius, Paul. Sent. rec. 2, 17, 1. ‘A vendor, not owner, on receipt of the purchase-money is liable as warrantor.’ Auctoritas est actio pro evictione, Dig. 21, 2, 76. ‘Auctoritas is an action on eviction against the vendor.’
A sale was often accompanied by stipulations binding the vendor to repay twice the purchase-money in case of eviction, or in case the article sold was returned for unsoundness (duplae stipulatio). English law implies a condition that the seller of goods has a right to sell and a warranty that the buyer shall have quiet enjoyment, but except in certain circumstances refuses to assume an implied warranty of the goods or soundness of the articles sold, applying the maxim caveat emptor. But by Roman law, in the absence of such stipulations, warranty of the title and quality of the goods was held to be inherent in the contract of sale. In the case of faults of quality the purchaser could, by the edict of the curule aediles, either recover part of the purchase-money by actio quanti minoris, or rescind the contract by actio redhibitoria.
By English law mere inadequacy of price affords no ground for setting aside a sale, unless it be so gross as to afford a necessary presumption of fraud and imposition, and then a court of equity will grant relief. By Roman law a vendor could, under a constitution of the Emperor Diocletian a. d. 285, rescind a contract for the sale of land on proof that the purchase-money was only half the value, unless the buyer is willing to make the price justum, Cod. 4, 44, 2.
Peculiar to the English law of sale is the provision of the Statute of Frauds, that contracts for the sale of lands are unenforceable unless they are in writing signed by the party to be charged or his agent: and, by the Sale of Goods Act, 1893, § 4, contracts for the sale of goods of the value of £10 and upwards are not enforceable unless in writing signed by the party to be charged or his agent, or unless the buyer accept and receive part of the goods, or unless he give something in part payment or in earnest to bind the bargain.
§ 142. Locatio autem et conductio similibus regulis constituitur; nisi enim merces certa statuta sit, non uidetur locatio et conductio contrahi.
Inst. 3, 24, pr.
§ 143. Vnde si alieno arbitrio merces permissa sit, uelut quanti Titius aestimauerit, quaeritur an locatio et conductio contrahatur. qua de causa si fulloni polienda curandaue, sarcinatori sarcienda uestimenta dederim, nulla statim mercede constituta, postea tantum daturus quanti inter nos conuenerit, quaeritur an locatio et conductio contrahatur.
Inst 3, 24, 1.
§ 144.Item si rem tibi utendam dederim et inuicem aliam rem utendam acceperim, quaeritur an locatio et conductio contrahatur.
Inst. 3, 24, 2.
§ 145. Adeo autem emptio et uenditio et locatio et conductio familiaritatem aliquam inter se habere uidentur, ut in quibusdam causis quaeri soleat, utrum emptio et uenditio contrahatur an locatio et conductio. ueluti si qua res in perpetuum locata sit, quod euenit in praediis municipum, quae ea lege locantur, ut quamdiu [id] uectigal praestetur, neque ipsi conductori neque heredi eius praedium auferatur. sed magis placuit locationem conductionemque esse.
Inst. 3, 24, 3.
§ 146. Item [quaeritur] si gladiatores ea lege tibi tradiderim, ut in singulos qui integri exierint pro sudore denarii xx mihi darentur, in eos uero singulos qui occisi aut debilitati fuerint denarii mille, quaeritur utrum emptio et uenditio an locatio et conductio contrahatur. et magis placuit eorum qui integri exierint locationem et conductionem contractam uideri, at eorum qui occisi aut debilitati sunt emptionem et uenditionem esse; idque ex accidentibus apparet, tamquam sub condicione facta cuiusque uenditione an locatione. iam enim non dubitatur, quin sub condicione res ueniri aut locari possint.
§ 147. Item quaeritur, si cum aurifice mihi conuenerit, ut is ex auro suo certi ponderis certaeque formae anulos mihi faceret, et acciperet uerbi gratia denarios cc, utrum emptio et uenditio an locatio et conductio contrahatur. Cassius ait materiae quidem emptionem uenditionemque contrahi, operarum autem locationem et conductionem. sed plerisque placuit emptionem et uenditionem contrahi. atqui si meum aurum ei dedero mercede pro opera constituta, conuenit locationem conductionem contrahi.
Inst. 3, 24, 4.
§ 142. Letting and hiring are governed by rules like those of purchase and sale. Unless the sum to be paid as hire is fixed, the contract is not complete.
§ 143. And if the hire is to be fixed by an arbitrator, for instance, at the sum which Titius shall consider fair, it is a question whether there is a contract of letting and hiring. Accordingly, if I give clothes to a fuller to clean or finish, or to a tailor to mend, and the remuneration is not fixed at the time, but left to our subsequent agreement, it is a question whether there is a contract of letting and hiring.
§ 144. The same question arises if I lend a thing for use and receive in return the loan for use of another thing.
§ 145. Purchase and sale are so nearly akin to letting and hiring that in some cases it is a question under which category the contract falls; for instance, when land is leased in perpetuity, asoccurs with the land of municipalities, which is leased on the condition that, so long as the rent is paid, the lessee and his heirs shall continue in possession. But here the better opinion is that the contract is one of letting and hiring.
§ 146. If a band of gladiators are delivered on the following terms, that is to say, that for the performance of every one who leaves the arena safe and sound there shall be paid twenty denarii, and for every one who is killed or disabled there shall be paid one thousand denarii, it is disputed whether the contract is one of purchase and sale or of letting and hiring; but the better opinion is that the unharmed were let and hired, the killed or disabled were bought and sold, the contracts depending on contingent events, and each gladiator being the subject of a conditional hiring and a conditional sale, for it is now certain that both hiring and sale may be conditional.
§ 147. Again, if a goldsmith agrees to make me rings of a certain weight and fashion out of his own gold for, say, two hundred denarii, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour is let and hired, but most writers hold that there is only a purchase and sale. But if I provide the gold and agree to pay him for his work, the contract is settled to be a letting and hiring.
§ 143. Justinian decided that a hiring for a sum to be fixed by an arbitrator was valid, like a sale on similar terms, if the arbitrator made his award; but that if the sum was left to the future agreement of the parties, or, § 144, if the consideration was not pecuniary but a reciprocal service, the contract was not a Consensual one of letting and hiring, but a contract innominate, deriving its validity from part execution, and to be enforced by the action in factum praescriptis verbis, Inst. 3, 24, 1, 2.
§ 145. Where Gaius speaks of ager vectigalis, Justinian speaks of ager emphyteuticus or emphyteuticarius, because in his days the rules of these two kinds of tenure had been entirely assimilated. Ager vectigalis was land leased by a municipality, or a sacerdotal college, or the Vestal Virgins in perpetuity, or for long terms of years, for a rent (vectigal) either in money or in produce, usually amounting to one fifth or one seventh of the profits. This kind of lease, as we have already seen, was subsequently extended to imperial lands let out for cultivation (agri emphyteuticarii). Emphyteusis was the grant of land in perpetuity, or for a term of years, for an annual rent, subject to forfeiture, without claim for meliorations, on non-payment of rent by the emphyteuta for three years, or for two years if the land was held of the church. Land held in emphyteusis was alienable, devisable, descendible by intestacy. The proprietor, however, had a right of pre-emption.
Emphyteusis resembled locatio-conductio in that the property remained in the grantor, to whom a rent was payable and who in certain events might recover the land; it resembled emptio venditio in that the grantee acquired not only detention of the land granted, like the hirer (colonus), but also possession, properly so called, and a proprietary right (jus in re) that nearly amounted to property or dominion, and could be maintained by actio vectigalis, a real action against all the world, including the landlord himself.
Zeno (a. d. 475-491) decided that Emphyteusis was a contract sui generis, distinct from both locatio and venditio, and requiring for its validity, at least where the parties contracted themselves out of the rules generally applicable, to be reduced to writing, Cod. 4, 66, Inst. 3, 24, 3. As to the application of the principle res perit domino to this relation, see Inst. l. c.
Like pignus, emphyteusis is a combination of jus in personam and jus in rem; it was created by agreement without having to be followed by delivery. Cf. Windscheid, Pand. 1 § 221.
§ 146. Gladiators were either (1) prisoners of war, ‘butchered to make a Roman holiday,’ or slaves who had committed some offence, 1 § 13, or criminals under a capital sentence; or (2) freemen who voluntarily adopted the profession and hired themselves out (auctorati, 3 § 199) to persons who maintained troops or companies (ludi familiae) of gladiators, either to make a profit, or to win the favour of the public, by their exhibition. The first gladiatorial show at Rome was exhibited b. c. 264. The passion of the populace for these exhibitions in the palmy days of Rome amounted to a mania; and a vast revolution in public sentiment was implied in their suppression, a. d. 325, by the following constitution of Constantine, Cod. 11, 44. ‘Exhibitions of bloodshed are out of place in the reign of law and the bosom of a fatherland; and gladiatorial shows, therefore, are absolutely prohibited.’
Locator denotes the person who furnishes land or a house or other article to be used by another; conductor is the person who takes the land or house (called colonus in the first case, inquilinus in the second) or other article and pays a price in money for its use. But in the case of opus faciendum, e. g. of a building to be constructed, or an article to be manufactured, the person who pays the price, that is to say, the employer or orderer, is called locator; the person who performs the work or construction and receives the price is called conductor. It may be worth inquiring how this anomaly arose, and what led to this inversion of the meanings of these correlative terms, and we shall find it in a certain incident, common to these and other contracts, and which has induced the English law to regard them as composing a single class and to denote them by a common denomination.
Deposit, loan for use, pawn or pledge, letting and hiring of a movable thing, and mandate in respect of a movable thing to be redelivered, are grouped together in English law under the head of Bailments. Bailment, derived from the French word bailler, ‘to deliver,’ is defined to be a delivery of a chattel (movable) for a specific purpose; or, at greater length, a delivery of goods on a condition that they shall be restored by the bailee to the bailor, or according to his direction, as soon as the purpose for which they were bailed shall be answered. These contracts, then, all imply a delivery from the bailor to the bailee and a redelivery from the bailee to the bailor or his order. Now in locatio-conductio operis faciendi, as well as in locatio-conductio rei, there is usually a delivery and a redelivery: for instance, goods are delivered to an innkeeper to be kept, or to a carrier to be transported, or materials are delivered to a manufacturer to be fashioned, and these goods and materials are to be redelivered at another time, or in another place, or in an altered form. It is this delivery and redelivery to which the Latin language would seem to look in fixing on the persons to be denoted respectively by the words locator and conductor; and, accordingly, by locator it denotes the person who lets out the thing or gives the job to be done, or who, being a freeman, lets out his services (locatio-conductio operarum), and by conductor the person who receives the thing, or the job (opus), or the services (operae), without regarding the fact that while in locatio-conductio rei or operarum the locator supplies a service for which the conductor pays the price, in locatio-conductio operis faciendi it is the locator who pays the price and the conductor who performs the service.
Colonus, or the independent person who entered into a contract of locatio-conductio respecting land, must be distinguished from the colonus who mainly composed the agricultural population under the empire. Colonatus, the condition of the latter colonus, is an institution whose origin is obscure, but which probably began to be common as early as a. d. 200. Colonatus was not a mere contractual relation or jus in personam, but a real right or jus in rem, and may be regarded as a new form of dependent status, a condition of subjection to a superior, which may be classified with the status of familia or domestic relations. It was a condition midway between freedom and slavery. The colonus was liber and civis, but he was called by the lawgiver servus terrae. He was inseparably bound to the soil: a fugitive colonus, like a fugitive slave, was said to commit a theft of his own body, and he could be recovered by real action (vindicatio) from any one who gave him harbour. He had property, but it was called peculium, and, though he could not be deprived of it like the slave, yet he could not aliene it without the consent of his lord. With certain exceptions, he could not maintain an action against his lord, who was called his patronus. Neither a colonus nor his descendants could divest themselves of their hereditary serfdom. The colonus, having no Real right in the soil, paid no land tax, but only a personal or capitation tax, like artisans and slaves. As having an inherited condition, the colonus or inquilinus was called originarius; as subject to the capitation tax he was called tributarius, capite censitus, adscriptitius, censibus adscriptus. He paid to his lord a certain annual rent (canon), usually in kind, and always incapable of augmentation. This fixity of his rent was the principal right which he enjoyed. See Savigny’s Vermischte Schriften, 15. If, seeking in Roman law for types of Feudal institutions, we find the germ of freehold tenure in Emphyteusis, the antitype of copyhold tenure may similarly be discovered in Colonatus.
§ 148. Societatem coire solemus aut totorum bonorum aut unius alicuius negotii, ueluti mancipiorum emendorum aut uendendorum.
Inst. 3, 25, pr.
§ 149. Magna autem quaestio fuit, an ita coiri possit societas, ut quis maiorem partem lucretur, minorem damni praestet. quod Q. Mucius 〈contra naturam societatis esse existimauit. sed Ser. Sulpicius, cuius〉 etiam praeualuit sententia, adeo ita coiri posse societatem existimauit, ut dixerit illo quoque modo coiri posse, ut quis nihil omnino damni praestet, sed lucri partem capiat, si modo opera eius tam pretiosa uideatur, ut aequum sit eum cum hac pactione in societatem admitti nam et ita posse coiri societatem constat, ut unus pecuniam conferat, alter non conferat, et tamen lucrum inter eos commune sit; saepe enim opera alicuius pro pecunia ualet.
Inst. 3, 25, 2.
§ 150. [Et] illud certum est, si de partibus lucri et damni nihil inter eos conuenerit, [tamen] aequis ex partibus commodum et incommodum inter eos commune esse. sed si in altero partes expressae fuerint, uelut in lucro, in altero uero omissae, in eo quoque quod omissum est similes partes erunt
Inst. 3, 25, 3.
§ 151. Manet autem societas eo usque, donec in eodem consensu perseuerant. at cum aliquis renuntiauerit societati, societas soluitur. sed plane si quis in hoc renuntiauerit societati ut obueniens aliquod lucrum solus habeat, ueluti si mihi totorum bonorum socius, cum ab aliquo heres esset relictus, in hoc renuntiauerit societati ut hereditatem solus lucri faciat, cogetur hoc lucrum communicare. si quid uero aliud lucri fecerit quod non captauerit, ad ipsum solum pertinet. mihi uero, quidquid omnino post renuntiatam societatem adquiritur, soli conceditur.
Inst. 3, 25, 4.
§ 152. Soluitur adhuc societas etiam morte socii, quia qui societatem contrahit certam personam sibi eligit.
Inst. 3, 25, 5.
§ 153. Dicitur etiam capitis diminutione solui societatem, quia ciuili ratione capitis deminutio morti coaequatur; sed utique si adhuc consentiant in societatem, noua uidetur incipere societas.
§ 154. Item si cuius ex sociis bona publice aut priuatim uenierint, soluitur societas. sed haec quoque societas, de qua loquimur, id est quae consensu contrahitur nudo, iuris gentium est, itaque inter omnes homines naturali ratione consistit.
Inst. 3, 25, 7 and 8.
§ 148. A partnership either extends to all the goods of the partners or is confined to a single business, for instance, the purchase and sale of slaves.
§ 149. It has been much can-vassed whether the law would recognize a partnership formed on the terms that a partner should have a greater share in the profit than he has in the loss. Quintus Mucius thought such an arrangement contrary to the nature of partnership, but Servius Sulpicius, whose opinion has prevailed, held that such a partnership was so far from invalid that a partnership might be formed on the terms that a partner should have a share in the gains and none in the losses, if the value of his services made such an arrangement fair. It is certain that a partnership may be formed on the terms that one partner shall contribute all the capital and that the gains shall be divided equally, for a man’s services may be equivalent to capital.
§ 150. If no agreement has been made as to the division of the profit and loss, it must be in equal shares. If the shares are expressed in the event of profit but not in the event of loss, the loss must be divided in the same proportions as the profit.
§ 151. The continuance of partnership depends on the continuing consent of the members: the renunciation of one dissolves the partnership. If, however, the object of a partner in renouncing the partnership is to monopolize some accruing gain; if, for instance, a partner with others in all property (totorum bonorum) succeeds to an inheritance and renounces the partnership in order to have exclusive possession of the inheritance, he will be compelled to divide this gain with his partners; but what he gains undesignedly by the renunciation he keeps to himself; whatever acquisitions he makes his partner always has exclusive benefit of whatever accrues to him after the renunciation.
§ 152. Dissolution of partnership is also produced by the death of a partner, for he who enters into partnership elects a determinate person with whom he is willing to be partner.
§ 153. Loss of status (capitis diminutio) is also said to determine partnership, because by the doctrine of civil law loss of status is regarded as equivalent to death; but if the members still consent to be partners, a new partnership commences.
§ 154. Again, the sale of all the property of one of the partners, whether by the state or by private creditors, dissolves the partnership. But the private partnership of which we are speaking, that is formed by mere consent, belongs to jus gentium, and so prevails in accordance with natural reason among all men: [whereas societas publicanorum is not simply consensual and is not open to peregrini. Cf. Krueger and Studemund, Gaius, note, h. l.]
§ 148. In the absence of express agreement a partnership is limited to gains by commercial transactions (universorum quae ex quaestu veniunt) and excludes gains by inheritance, devise, donation. A remarkable incident of unlimited partnership (universorum bonorum) was that it operated a transfer of ownership by mere agreement without delivery, Dig. 17, 2, 1, 1 and 2. ‘In partnership of all goods, the property of all the members becomes forthwith common, a constructive delivery being implied in the absence of actual delivery.’ This rule was not applied to other forms of partnership.
§ 149. Although a partner might be exempt by the terms of the agreement from any share in the losses, yet an agreement that a partner should have no share in the gains was called a leonine partnership (societas leonina), and being contrary to the general object of the contract could not be enforced, Dig. 17, 2; 29, 2. ‘Aristo records the decision of Cassius that a partnership on the terms that one should take all the profits and another bear all the loss, which he called a leonine partnership, is not binding, and Ulpian concurs.’
§§ 153, 154. In saying that capitis minutio was a mode of dissolving partnership Gaius seems to have expressed himself too generally. Capitis minutio maxima, loss of liberty, would naturally determine such a relation. Capitis minutio media, loss of citizenship, might involve dissolution, if it were a consequence of punishment, but not simply by a person becoming a citizen of another community. Cf. Inst. 3, 25, 7 Publicatione quoque distrahi societatem manifestum est, scilicet si universa bona socii publicentur; nam cum in ejus locum alius succedit, pro mortuo habetur. Nor, according to the law as stated by Justinian, was partnership dissolved by mere change of status, capitis minutio minima, as by arrogation or emancipation. Cf. Dig. 17, 2; 65, 11. Hence in the corresponding passage of his Institutes, above cited, capitis minutio is not mentioned as a ground of dissolution.
The forced sale of a person’s whole estate might be the result of either a criminal or a civil proceeding, either condemnation for crime or insolvency, and in the latter case for the benefit either of the State or of private creditors. Damnatione bona publicantur cum aut vita adimitur aut civitas aut servilis conditio irrogatur, Dig. 48, 20, 1. ‘Condemnation forfeits all a criminal’s goods to the treasury, if it deprives of life, or involves loss of civitas (capitis minutio media), or loss of liberty (capitis minutio maxima).’
Confiscation (publicatio), under its ancient name of sectio bonorum, has already, 3 § 80, been mentioned. The quaestors of the treasury were sent into possession; the sale, which was publicly advertised (proscriptio), took place under the spear (sub hasta), the symbol of absolute dominion, and vested in the purchaser (sector) quiritarian ownership.
§ 155. Mandatum consistit siue nostra gratia mandemus siue aliena. itaque siue ut mea negotia geras, siue ut alterius, mandauerim, contrahitur mandati obligatio, et inuicem alter alteri tenebimur in id, quod uel me tibi uel te mihi bona fide praestare oportet.
Inst. 3, 26, pr.
§ 156. Nam si tua gratia tibi mandem, superuacuum est mandatum; quod enim tu tua gratia facturus sis, id de tua sententia, non ex meo mandatu facere debes. itaque si otiosam pecuniam domi te habentem hortatus fuerim, ut eam faenerares, quamuis eam ei mutuam dederis, a quo seruare non potueris, non tamen habebis mecum mandati actionem. item si hortatus sim ut rem aliquam emeres, quamuis non expedierit tibi eam emisse, non tamen tibi mandati tenebor. et adeo haec ita sunt ut quaeratur, an mandati teneatur qui mandauit tibi, ut Titio pecuniam faenerares. [sed] Seruius negauit nec magis hoc casu obligationem consistere putauit, quam si generaliter alicui mandetur, uti pecuniam suam faeneraret. 〈sed〉 sequimur Sabini opinionem contra sentientis, quia non aliter Titio credidisses, quam si tibi mandatum esset.
Inst. 3, 26, pr. and 6.
§ 157. Illud constat, si quis de ea re mandet, quae contra bonos mores est, non contrahi obligationem; ueluti si tibi mandem, ut Titio furtum aut iniuriam facias.
Inst. 3, 26, 7.
§ 158. Item si quid post mortem meam faciendum 〈mihi〉 mandetur, inutile mandatum est, quia generaliter placuit ab heredis persona obligationem incipere non posse.
§ 159. Sed recte quoque consummatum mandatum si, dum adhuc integra res sit, reuocatum fuerit, euanescit.
Inst. 3, 26, 9.
§ 160. Item si adhuc integro mandato mors alterutrius alicuius interueniat, id est uel eius qui mandauerit uel eius qui mandatum susceperit, soluitur mandatum. sed utilitatis causa receptum est, ut si mortuo eo qui mihi mandauerit ignorans eum decessisse executus fuero mandatum, posse me agere mandati actione; alioquin iusta et probabilis ignorantia damnum mihi adferret. et huic simile est quod plerisque placuit, si debitor meus manumisso dispensatori meo per ignorantiam soluerit, liberari eum, cum alioquin stricta iuris ratione non posset liberari eo, quod alii soluisset quam cui soluere deberet.
Inst. 3, 26, 10.
§ 161. Cum autem is cui recte mandauerim egressus fuerit mandatum, ego quidem eatenus cum eo habeo mandati actionem, quatenus mea interest inplesse eum mandatum, si modo inplere potuerit; at ille mecum agere non potest. itaque si mandauerim tibi, ut uerbi gratia fundum mihi sestertiis c emeres, tu sestertiiscl emeris, non habebis mecum mandati actionem, etiamsi tanti uelis mihi dare fundum, quanti emendum tibi mandassem; idque maxime Sabino et Cassio placuit. quodsi minoris emeris, habebis mecum scilicet actionem, quia qui mandat, ut c milibus emeretur, is utique mandare intellegitur, uti minoris, si posset, emeretur.
Inst. 3, 26, 8.
§ 162. In summa sciendum 〈est, quotiens〉 aliquid gratis 〈faciendum〉 dederim, quo nomine, si mercedem statuissem, locatio et conductio contraheretur, mandati esse actionem; ueluti si fulloni polienda curandaue uestimenta 〈dederim〉 aut sarcinatori sarcienda.
Inst. 3, 26, 13.
§ 155. Agency may contemplate the benefit either of the principal or of a stranger; that is to say, your undertaking at my request to transact my business or the business of a third person will create an obligation between us, and make us mutually liable to satisfy the demands of good faith.
§ 156. But if I give a mandate to you to perform anything for your own exclusive advantage, the mandate is void, for what you propose to do on your own account ought to be done on your own judgment and not by my mandate. Thus if you tell me that you have money lying in your cash-box, and, on my advice to lend it at interest, you lend it to a person from whom you cannot recover it, you will have no action of mandate against me: or if I recommend you to buy, and you lose by buying, I am not liable to be sued in action of mandate So settled is this, that it has been questioned, whether mandate can be brought on a specific recommendation to lend to Titius; Servius holds that no obligation arises in this case any more than in that of a general recommendation to lend money, but we adopt the opposite opinion of Sabinus, on the ground that the money would not have been lent to Titius, if there had been no recommendation
§ 157. It is clear that by a mandate to do an unlawful act, as to steal or commit a personal wrong, no obligation is contracted.
§ 158. A mandate to be executed after the death of the mandatary is invalid by the general rule that an obligation cannot commence with the heir.
§ 159 A valid authority is annulled by revocation before a commencement of execution.
§ 160. So the death of either the principal or the agent before a commencement of execution is a revocation of a mandate: but equity requires that, if after the death of a person giving a mandate and without having notice of his decease a mandatary execute his commission, he may recover against the heir of the principal in an action of mandate; for otherwise a justifiable and natural error would bring loss upon him Similar to this is the rule which is supported by the weight of authority, that a debtor who pays a manumitted steward without notice of his manumission is discharged of liability; though by the strict letter of the law he is not discharged, because he has not paid the person whom he was bound to pay.
§ 161. If a mandatary goes beyond his mandate, he may be sued for the amount which the person giving the mandate loses by its non-execution, if the execution was possible; and he will have no right of action against the person giving the mandate. So if I give you a mandate to purchase an estate for, say, a hundred thousand sesterces, and you purchase for a hundred and fifty thousand, you will have no action of mandate against me, although you are willing to convey to me for the price at which I authorized you to buy: so Sabinus and Cassius have decided. If you buy it for less, you will have a right of action against me, for a mandate to buy for a hundred thousand sesterces is regarded as an implied mandate to buy, if possible, for any smaller sum.
§ 162. Finally, the delivery of material to be wrought or fashioned gratuitously, where if a remuneration had been fixed there would have been a letting and hiring, is ground for an action of mandate; for instance, if I give clothes to a fuller to be cleaned or bleached, or to a tailor to be mended.
In the contract of mandate (mandatum) the principal is called dominus or mandator, the agent procurator or mandatary.
We have already mentioned, when treating of the verbal contract of stipulation, that a guaranty was often given by the consensual contract of mandate, §§ 110-127, comm. Such a mandate is called by commentators mandatum qualificatum, or Mandatum Credendi. We have the principle explained in § 156: he who recommends a third person as of good credit is bound to make good his representation and to indemnify another who sustains damage from giving credit on the faith of that representation. So by English law a person not interested in a transaction who makes a false and fraudulent misrepresentation which induces another to trust and contract with a third person is answerable for the loss occasioned by his misrepresentation.
As such a representation was in effect a guaranty, and to allow an action on a verbal misrepresentation would avoid the Statute of Frauds, which requires a guaranty to be reduced to writing, Lord Tenterden’s Act, 9 George IV, chapter 14, enacted that no action shall be brought whereby to charge any person upon any representation or assurance concerning the character, credit, or ability of any other person, to the intent that such other person may obtain money or goods upon credit, unless such representation or assurance be made in writing, signed by the party to be charged therewith.
Another case in which a guarantor and person guaranteed stand in the relation of mandant and mandatary occurs where A (the mandant), being indebted to B (the mandatary), directs or delegates B, at the risk of A, to obtain a promise by stipulation from a third party, C (a debtor of A’s), to pay to him (the mandatary) the debt which he (C) owes to the mandant. Tua et mandantis [gratia intervenit mandatum], . . . si mandet tibi, . . . ut ipsius periculo stipuleris ab eo quem tibi deleget in id quod tibi debuerat, Inst. 3, 26, 2. This is one example of what is known as ‘delegation,’ a general term embracing a variety of acts in all of which there is a direction or order, to a person to do some act by which the parties to a legal transaction are changed. Thus in every delegation there are at least three parties, the Delegans or person delegating some one else to another, the Delegatus, or person thus delegated, and the Delegatarius, or person in whose favour the delegation is made, and the intention of the parties is that the act to be performed by Delegatus in favour of Delegatarius shall have the same effect as if it had been performed in favour of Delegans.
The Delegatus may be directed to bind himself to the third party (promittere) instead of to the Delegans, as in the above instance, or to make some payment or to convey something to him (dare) or to release him from a debt (liberare). The object of the delegans in making the delegation may be to give security to a creditor, or to discharge his obligation to a creditor by giving him something in lieu of payment (Solvit et qui reum delegat, Dig. 16, 1, 8, 3), or to make a gift or grant a dos to a third party, or to make a loan to him (Si me . . . mutuam pecuniam rogaveris et ego meum debitorem tibi promittere jusserim, Dig. 12, 1, 32), or any other object. In the same way the act which Delegatus undertakes to do for the third party may have for its object the discharge of a debt which he owes to Delegans, or gift, or loan, &c. From what has been said it is clear that there is no necessary connexion between delegation and novation, and that delegatio may or may not involve novatio. It does so only if delegatus makes a promise to delegatarius by which an obligation due from him to delegans is put an end to, but where the act to be performed is dare or liberare no new obligation arises, so that there cannot, of course, be any novation. But in the above case of delegation (Inst. 3, 26, 3), the debtor delegated is discharged from his old debt to the person, who delegates him, by novation (cf. 2 § 38), while the new creditor, to whom he is delegated, has not only the action on the stipulation against him, but may also sue the Delegans by actio mandati contraria, if the actio ex stipulatu proves abortive. Hence in this way a creditor obtains security for his debt, his guaranty legally arising not from the delegatio itself, but from the contract of mandatum which accompanies it.
Civilians have drawn a distinction which we do not find in Roman law between delegatio and assignatio, the latter being an order on a person to pay a sum to the assignatarius on the demand of the latter, e. g. a cheque on a bank. Until payment assignans has a power of revoking the order, and assignatus may, apart from any contract with assignans, refuse to comply with the order; hence the maxim: assignation is not payment. But when payment has once been made, it has the same effect as if it had been made to assignans.
The Romans, no doubt, made great use of delegation in commercial and other transactions, especially when these were conducted by parties at a distance from one another. We know, e. g., that Cicero pater supplied Cicero filius when a student at Athens with money by the mediation of his friend Atticus who, as publican, had debtors in Greece. The procedure would be as follows:
Atticus (A, assignator), at the request of Cicero pater (C, assignatarius primus), orders Graeculus (B, assignatus) to pay to Cicero filius (D, assignatarius secundus) what Atticus owes to Cicero pater. The payment by Graeculus to Assignatarius secundus, D, discharges the debt of Graeculus to Atticus, the debt of Atticus to Cicero pater, and if D were an independent person, creditor of Cicero pater, the debt of Cicero pater to D.
Mandate might be employed to operate a kind of transfer of obligation, or rather perhaps the right of action arising from obligation, without, like Delegation or Novation, requiring the concurrence of the debtor, by Mandatum Agendi—the mandate by the creditor of his rights of action to a third party (mandare, cedere, praestare actiones). The creditor made the third party by mandate his processual representative (cognitor, procurator, cf. 4 §§ 83, 84), the understanding being that though the mandatary must carry on the action in the name of the mandator (cf. 4 § 86), he was in fact to recover for himself. Hence such an assignee in the form of a processual agent is called cognitor or procurator in rem suam, the benefit of the obligation, as distinct from the obligation itself, being transferred to him.
It was not without difficulty that this mode of assignment was rendered suitable for its purpose, the revocable nature of the contract of mandatum and the fact that it was put an end to by the death of either party being obstacles to its becoming so. But while a cognitor or procurator, after the stage of litis contestatio in an action had been reached, when the formula was issued, had control of the proceedings, and so could not after this be removed, it came to be established that notice to the debtor of the assignment of the debt should have the same effect in the way of preventing revocation as litis contestatio, so that from the date of notice the debtor was bound to pay the debt to the assignee; cf. Sohm, § 87. Moreover, in the event of the mandate being dissolved by death, the praetor allowed the representative of the assignee to recover by actio utilis.
In later Roman law subsequently, it appears, to the time of Gaius, actio utilis was given in all cases where an intention to assign was shown, although a mandatum agendi had not been given. By this praetorian action—which is supposed by some writers to have been based on the fiction that the assignee had been made procurator, but is more probably actio in factum—the assignee sued in his own name and not in that of his creditor. Cod. 4, 15, 5, Diocletian and Maximian, a. d. 294. In solutum nomine dato non aliter nisi mandatis actionibus ex persona sui debitoris adversus ejus debitores creditor experiri potest. Suo autem nomine utili actione recte utitur. Here we may seem to have the principle of the transferability of obligations recognized in Roman law.
But the cession or assignment was never completely detached from the person and liabilities of the assigning creditor. The cessionary or assignee was open to all the exceptions, except those of a purely personal nature, that might have been opposed to the original creditor, e. g. to compensation, or set-off of a debt, which the creditor owed the debtor; to exceptio non-numeratae pecuniae; and to an exception instituted by the lex Anastasiana, shortly before the time of Justinian, to stop the buying of claims for small sums, a statute which prevented any purchaser of a debt from recovering more than the price at which it was actually purchased. And similar objections might be raised in respect of any assignee intermediate between the original assignor and the final assignee. Thus though the actio utilis, no actio directa being possible, was brought in the name of the assignee, it may still be held that, according to the Roman view, it was only exercised in a kind of representative capacity, the bare obligation itself remaining with the original creditor. The complete transferability of obligations was unknown to jurisprudence until the law merchant gave validity to mercantile instruments, such as bills of exchange, passing freely from hand to hand; in other words, to papers payable to the Holder or Bearer, 2 § 259, comm.
In such papers the jus in personam is, as it were, incorporated in the document thus made freely assignable, the holder of an instrument of this kind being able to recover on it, although the person from whom he received it may not have been able to do so. We have instances of such papers (called negotiable) in Promissory Notes, Bills of Exchange, State obligations (documents expressing a claim against a government for a certain amount of capital debt, and having annexed to them coupons, representing claims of periodic interest), and some Debentures of industrial corporations (certificates of Shares in such industrial companies, though similar to Debentures as entitling the Holder to certain dividends or shares in the profits, are foreign to our present purpose, because they essentially and originally relate to Property or jus in rem, not to Obligation or jus in personam, the Shareholders being co-proprietors). By the use of such negotiable papers the transferability of Obligation is raised to a level with the transferability of Ownership, Savigny, Obligationenrecht, 62-70. It is to be remembered that the cession or assignment of which we have been speaking is a succession to a particular right, and is not to be confounded with the general assignment of rights and obligations in a successio per universitatem. Cession or assignment is in the strict sense the act of the creditor, but rights of action may also be transferred from one person to another by decree of a court or by the direct operation of a rule of law.
§ 161. The doctrine of Sabinus that if an agent exceed his powers in the price at which he purchases, the principal is not bound for the purchase-money even after deduction of the unauthorized excess, was not allowed to prevail, as we are informed by Justinian. See Inst. 3, 26, 8.
§ 162. It is only when the property of the mandator is entrusted to the mandatarius, such as in the cases here mentioned, that the contract of mandatum can fall under the head of Bailment.
The gratuitous character of mandatum was often in later Roman law rather nominal than real. The professor of a liberal art (operae liberales) could recover a remuneration which, however, was disguised under the name of salarium or honorarium, and could not be sued for by action of mandate before an ordinary judge, but was a matter for the extraordinary cognizance of the praetor or governor of a province. Adversus eum cujus negotia gesta sunt, de pecunia quam de propriis opibus vel ab aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris potes experiri. De salario autem quod promisit, apud praesidem provinciae cognitio praebebitur, Cod. (Emp. Severus and Antoninus) 4, 35, 1. ‘The person whose business you transacted, as to the moneys out of your own pocket or taken up at a loan which you spent for his use, may be forced by action of mandate to reimburse you the principal and interest. But as to the salary which he promised this is a matter falling within the jurisdiction of the president of the province.’ Under the liberal professions are included advocates, physicians, oculists, aurists, dentists, copyists (librarii), notaries, accountants, school-masters, nurses, rhetoricians, grammarians, geometers, land surveyors. The professors of philosophy and of civil law may receive fees voluntarily offered, but their functions are so exalted that it would be unseemly in them to ask for a pecuniary remuneration even at the tribunal of the praetor, Dig. 50, 13, 1. On the other hand, payment for services of an inferior kind (operae illiberales) could be enforced by actio locati.
The law of contractual agency was, as we have seen, only slowly developed in Roman jurisprudence. Originally the cases in which one person could bind another person by his contracts were confined to contracts made under certain circumstances by persons under power, that is to say, sons or slaves.
A right acquired by a son or slave was acquired for the father or master, 1 § 163, and when an obligation was enforceable by one of the actiones adjecticiae qualitatis, the father or master, or principal, could be sued upon it, 4 §§ 70-74. But in other cases the benefit or burden of a contract was confined to the parties contracting. The procurator or agent contracted with a third party in his own name: the third party recovered his dues from the agent by an action on the contract: and the agent would in turn recover his from the principal by an action on the mandate. There was no immediate relation between the third party and the principal, and any action in which the third party sued the principal or vice versa, could have only resulted from cessio actionum, i. e. an assignment of actions between the agent and principal, or the agent and the other party to the contract.
But in process of time, the manager of a shop (institor) and captain of a ship (magister) were enabled by praetorian law to make the employer and shipowner (exercitor) liable to third parties by means of the actions institoria and exercitoria, who could sue the principal, 4 § 71. This was gradually extended so as to allow to all persons who contracted with an agent having authority for the purpose a right of action, called quasi institoria, against his employer, as well as against the agent himself, who was the contracting party.
When the praetors, proceeding by timid and hesitating steps, had reached this point, the Roman law of agency had nearly approached the system we find established in modern Europe. Under this system it is a general rule, that when an agent is duly constituted and discloses the name of his principal, so as to enable the party with whom he deals to have recourse to the principal, and contracts in his name and on his behalf, and does not exceed his authority, the principal is responsible and not the agent. But in Roman law the free agent is never regarded simply as an instrument for bringing about an agreement between the parties interested, unless he is a mere nuntius. If he makes a contract for his principal he cannot escape being a party to it and so being liable under it; though by means of an actio adjecticiae qualitatis, the principal may also be rendered liable. See above, § 103 and 4 § 34.
After explaining obligations founded on contract, Justinian, Inst. 3, 27, treats of a miscellaneous group of obligations which are neither founded on contract nor on delict, but which, as the circumstances in which they arise and their effect resemble more or less the circumstances and effect of one or other of the legal contracts, are denominated by the name of obligations quasi ex contractu. These demand from us a brief notice.
Three of them, namely, those which ground the actions by or against a tutor, by or against a curator, by or against an unauthorized agent (negotiorum gestor), clearly resemble obligations founded on the contract of mandate. The ward and minor stand to the tutor and curator nearly in the relation of principal and agent, although they are legally incompetent to give an authority (mandatum) or confer a power of administration. A person who, in the absence and without the authority of another, voluntarily interfered to protect his interests (voluntarius procurator) incurred liability and acquired rights against the person in whose affairs he interfered. English law does not recognize a title to compensation in the case of voluntary interference, unless we find a parallel in the rights of salvors in the case of property lost or endangered on the ocean.
Three other obligations quasi ex contractu, those that are enforced by an action for division of common property between tenants in common (communi dividundo), by action for partition of an inheritance between co-heredes (familiae erciscundae), by an action for demarcation of boundaries between adjoining landowners (finium regundorum), resemble the obligations arising in partnership. These actions are distinguished from all others by the adjudicatio, a clause in the formula which empowered the judex by the mere effect of his judgment to operate a transfer of property, 4 § 42. They are called mixed actions by Ulpian, because both parties are equally plaintiff and defendant, Dig. 44, 7, 37, 1; by Justinian (Inst. 4, 6, 20), because they are both real and personal, that is, are founded on obligation, but are concerned also with questions between the parties concerning ownership or inheritance, which they have to decide, Keller, Civil Process, § 87; they were, however, regarded by the jurists as properly personal actions, as arising from a quasi-contractual relation.
The obligation of a heres to a legatee, enforceable by actio legati in personam or condictio ex testamento, is another case of obligatio quasi ex contractu. The aditio of the hereditas may be regarded as an undertaking to satisfy the bequests, if there are assets for the purpose. Aditio is called Obligatio, 2 §§ 35, 36.
Again, money paid by mistake or without consideration (indebitum solutum) created an obligation to repay, enforceable by indebiti soluti condictio, which closely resembles the obligation created by the contract of mutuum, see § 91.
§ 163. Expositis generibus obligationum quae ex contractu nascuntur admonendi sumus adquiri nobis non solum per nosmet ipsos, sed etiam per eas personas quae in nostra potestate manu mancipioue sunt.
Inst. 3, 28, pr.
§ 164. Per liberos quoque homines et alienos seruos quos bona fide possidemus adquiritur nobis, sed tantum ex duabus causis, id est si quid ex operis suis uel ex re nostra adquirant.
Inst. 3, 28, 1.
§ 165. Per eum quoque seruum in quo usumfiuctum habemus similiter ex duabus istis causis nobis adquiritur.
Inst. 3, 28, 2.
§ 166. Sed qui nudum ius Quiritium in seruo habet. licet dominus sit, minus tamen iuris in ea re habere intellegitur quam usufructuarius et bonae fidei possessor. nam placet ex nulla causa ei adquiri posse; adeo ut, etsi nominatim ei dari stipulatus fuerit seruus mancipioue nomine eius acceperit, quidam existiment nihil ei adquiri.
§ 167. Communem seruum pro dominica parte dominis adquirere certum est; excepto eo quod uni nominatim stipulando aut mancipio accipiendo illi soli adquirit, uelut cum ita stipuletur: titio domino meo dari spondes? aut cum ita mancipio accipiat: hanc rem ex ivre qviritivm l. titii domini mei esse aio eaqve ei empta esto hoc aere aeneaqve libra.
Inst. 3, 28, 3.
§ 167 a. Illud quaeritur an quod domini nomen adiectum efficit, idem faciat unius ex dominis iussum intercedens. nostri praeceptores perinde ei qui iusserit soli adquiri existimant, atque si nominatim ei soli stipulatus esset seruus mancipioue accepisset. diuersae scholae auctores proinde utrisque adquiri putant, ac si nullius iussum interuenisset.
Inst. l. c.
§ 163. Having thus explained the different kinds of obligations produced by contract, we remark that obligations may be acquired not only by our own contracts, but also by the contracts of persons in our power, in our hand, or in our mancipium.
§ 164. Free persons, also, and the slaves of another person, acquire for the person who has bona fide possession of them as his slaves; but they only do so in two cases, that is if they acquire anything by their own labour, or from the property of the person who has bona fide possession of them.
§ 165. A slave held in usufruct similarly acquires for the usufructuary in the above two cases.
§ 166. A person who has the bare quiritary property in a slave, although he is his owner, has less right in his acquisitions than the usufructuary or bona fide possessor; for under no circumstances are the acquisitions of the slave acquired for him; so that even when the slave expressly stipulates for him or accepts a thing in mancipation on his account, according to some authorities, such a bare owner acquires no right.
§ 167. A common slave acqunes for all his proprietors in the proportion of their property, unless he names one exclusively in a stipulation or mancipation, in which case he acquires for him alone. For instance, if he stipulates thus: ‘Dost thou promise to convey to Titius, my master?’ or, when he takes by mancipation, thus: ‘This thing by quiritary law I declare to be the property of Lucius Titius, my master, and for him be it purchased by this piece of bronze and bronze balance.’
§ 167 a. It is a question, whether the same effect is produced by the exclusive order of one of the masters, as by the exclusive mention of the name of one. My school maintain that the sole orderer is the sole acquirer, just as when one alone is named by the slave in a stipulation or mancipation; the other school maintain that all the owners acquire, just as if there had been no order.
§ 163. Justinian enacted, as we have seen, that while the peculium profecticium of the filiusfamilias, that is, the peculium which he derived from his father, remained the property of the father; and while in respect of peculium castrense and quasi castrense the son was in the position of paterfamilias, or absolute owner; in respect of peculium adventicium, that is, other peculium derived from any other source than the father, only the usufruct should vest in the father, subject to which the ownership remained in the son. In respect of the obligations acquired by the son, the same principle was to prevail, Inst. 3, 28, pr. ‘What is realized from obligations acquired by a son shall be divided, as his property is by our constitution, into ownership and usufruct; so that the usufruct of the proceeds of any action shall vest in the father, and in the son as owner, the whole right of action vesting in the father, according to the distinctions expressed in the statute.’
§ 167 a. Justinian decided this question in favour of the doctrine of Sabinus, Inst. 3, 28, 13.
To the persons through whom an obligation could be acquired might be added in modern systems of law the procurator or agent, when the contract of the agent is treated as if it had been made by the principal himself. But Roman law always regarded the agent who made the contract as the party to it, in other words it did not admit the principle of contractual agency. Cf. § 162, comm.
§ 168. Tollitur autem obligatio praecipue solutione eius quod debetur. unde quaeritur, si quis consentiente creditore aliud pro alio soluerit, utrum ipso iure liberetur, quod nostris praeceptoribus placuit, an ipso iure maneat obligatus, sed aduersus petentem exceptione doli mali defendi debeat, quod diuersae scholae auctoribus uisum est.
Inst. 3, 29, pr.
§ 169.Item per acceptilationem tollitur obligatio. acceptilatio autem est ueluti imaginaria solutio; quod enim ex uerborum obligatione tibi debeam, id si uelis mihi remittere, poterit sic fieri, ut patiaris haec uerba me dicere qvod ego tibi promisi, habesne acceptvm? et tu respondeas: habeo.
Inst. 3, 29, 1.
§ 170. Quo genere, ut diximus, 〈tantum eae obligationes soluuntur, quae ex uerbis consistunt,〉 non etiam ceterae; consentaneum enim uisum est uerbis factam obligationem posse aliis uerbis dissolui. sed id quod ex alia causa debeatur potest in stipulationem deduci et per 〈acceptilationem dissolui
Inst. l c.
§ 171.Quamuis autem dixerimus fieri〉 acceptilationem imaginaria solutione, tamen mulier sine tutoris auctoritate acceptum facere non potest, cuin alioquin solui ei sine tutoris auctoritate possit.
§ 172. Item quod debetur, pro parte recte soluitur; an autem in partem acceptum fieri possit, quaesitum 〈est〉.
§ 173. Est etiam alia species imaginariae solutionis per aes et libram. quod et ipsum genus certis in causis receptum est, ueluti si quid eo nomine debeatur, quod per aes et libram gestum sit, siue quid ex iudicati causa deb〈eatur.
§ 174.Eaque res ita ag〉itur: adhibentur non minus quam quinque testes et libripens. deinde is qui liberatur ita oportet loquatur: qvodego tibi tot milibvs condemnatvs svm, me eo nomine a te solvo liberoqve hoc aere aeneaqve libra. hanc tibi libram primam postremamqve expendo 〈secvndvm〉 legem pvblicam. deinde asse percutit libram eumque dat ei a quo liberatur, ueluti soluendi causa.
§ 175. Similiter legatarius heredem eodem modo liberat de legato quod per damnationem relictum est, ut tamen scilicet, sicut iudicatus condemnatum se esse significat, ita heres testamento se dare damnatum esse dicat. de eo tamen tantum potest heres eo modo liberari, quod pondere numero constet; et ita si certum sit. quidam et de eo quod mensura constat idem existimant.
§ 176. Praeterea nouatione tollitur obligatio; ueluti si quod tu mihi debeas, a Titio dari stipulatus sim. nam interuentu nouae personae noua nascitur obligatio et prima tollitur translata in posteriorem, adeo ut interdum, licet posterior stipulatio inutilis sit, tamen prima nouationis iure tollatur; ueluti si quod mihi debes, a Titio post mortem eius uel a muliere pupilloue sine tutoris auctoritate stipulatus fuero. quo casu rem amitto; nam et prior debitor liberatur et posterior obligatio nulla est. non idem iuris est, si a seruo stipulatus fuero; nam tunc 〈prior〉 proinde adhuc obligatus tenetur, ac si postea a nullo stipulatus fuissem.
Inst. 3, 29, 3.
§ 177. Sed si eadem persona sit a qua postea stipuler, ita demum nouatio fit, si quid in posteriore stipulatione noui sit, forte si condicio aut dies aut sponsor adiciatur aut detrahatur.
Inst. l. c.
§ 178. Sed quod de sponsore diximus, non constat; nam diuersae scholae auctoribus placuit nihil ad nouationem proficere sponsoris adiectionem aut detractionem.
§ 179. Quod autem diximus, si condicio adiciatur, nouationem fieri, sic intellegi oportet, ut ita dicamus factam nouationem, si condicio extiterit; alioquin si defecerit, durat prior obligatio. sed uideamus, num is qui eo nomine agat doli mali aut pacti conuenti exceptione possit summoueri, quia uidetur inter eos id actum, ut ita ea res peteretur, si posterioris stipulationis extiterit condicio. Ser. tamen Sulpicius existimauit statim et pendente condicione nouationem fieri, et si defecerit condicio, ex neutra causa agi posse 〈et〉 eo modo rem perire. qui consequenter et illud respondit, si quis id, quod sibi L. Titius deberet, a seruo fuerit stipulatus, nouationem fieri et rem perire, quia cum seruo agi non posset. 〈sed〉 in utroque casu alio iure utimur. nec magis his casibus nouatio fit, quam si id quod tu mihi debeas a peregrino, cum quo sponsus communio non est, spondes uerbo stipulatus sim.
Inst. l. c.
§ 180. Tollitur adhuc obligatio litis contestatione, si modo legitimo iudicio fuerit actum. nam tunc obligatio quidem principalis dissoluitur, incipit autem teneri reus litis contestatione; sed si condemnatus sit, sublata litis contestatione incipit ex causa iudicati teneri. et hoc 〈est〉 quod apud ueteres scriptum est, ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post condemnationem iudicatum facere oportere.
§ 181. Vnde fit, ut si legitimo iudicio debitum petiero, postea de eo ipso iure agere non possim, quia inutiliter intendo dari mihi oportere, quia litis contestatione dari oportere desiit. aliter atque si imperio continenti iudicio egerim; tunc enim nihilo minus obligatio durat, et ideo ipso iure postea agere possum, sed debeo per exceptionem rei iudicatae uel in iudicium deductae summoueri. quae autem legitima iudicia et quae imperio continentia 〈sint〉, sequenti commentario referemus.
§ 168. Extinction of an obligation is effected chiefly by actual performance of that which is owed. Hence it is disputed, whether when a person with the consent of his creditor makes a different performance in the place of the one contracted for, he is directly discharged by law of his obligation, as my school consider him to be, or whether he nevertheless continues to be bound by direct law, but against a plaintiff trying to enforce his claim, may defend himself by the exception of fraud, as the other school maintain.
§ 169. Acceptilation is another mode of extinguishing an obligation. Acceptilation is, as it were, an imaginary performance of an obligation (imaginaria solutio). If a creditor is willing to release what a person owes him under a verbal obligation, the object may be accomplished by the latter interrogating him in these terms: ‘That which I promised thee hast thou received?’ upon which he answers: ‘I have received it.’
§ 170. This process, as I said, only discharges obligations that arise from verbal contract, not others; for it seems to be consistent that when an obligation is made by words, it should be dissoluble by other words. However, a debt due from any other cause may be transformed into a stipulation, and released by acceptilation.
§ 171. But notwithstanding our statement that acceptilation is an imaginary payment, a woman without her guardian’s sanction cannot release by acceptilation, although actual payment to her without her guardian’s sanction discharges the debtor.
§ 172. So a debt may be legally paid in part, but whether it can be released in part by acceptilation is a question.
§ 173. There is another mode of imaginary payment, namely, by bronze and balance (per aes et libram). This also is only employed in certain cases, as when a debt is due on account of a proceeding per aes et libram, or in case of a judgment debt.
§ 174. This proceeding is thus effected. There must be present five witnesses and a holder of the scales, and the person to be released must say these words: ‘Whereas I am condemned to thee in so many thousand sesterces, that debt I pay and discharge by this bronze and balance of bronze. This is the first, this the last, pound of bronze that I weigh out to thee according to the public statute (the Twelve Tables).’ Then he strikes the scales with the bronze money and gives the latter to the creditor as if in payment.
§ 175. Similarly, the legatee releases the heir from a legacy left in the form of condemnation (per damnationem), except that whereas the judgment debtor recites the fact that he is a condemned person (condemnatum), the heir recites that he is charged (damnatum) by the testament of the deceased to pay the legacy. An obligation can be thus discharged only if certain in amount and estimated by number or weight, or, according to some, by measure.
§ 176. Novation is another mode of extinguishing an obligation, as when I stipulate with Titius that he shall pay me what you owe me, for the intervention of a new person gives birth to a new obligation, and the first obligation is done away with, being transformed into the succeeding one. So much so that sometimes, even though the new stipulation is invalid, the previous one is done away with by novation; for instance, if you owe me a sum, and I stipulate from Titius payment thereof after his death, or if I stipulate payment thereof from a woman or ward (pupillus) without the guardian’s sanction, in this case my claim is extinguished, for the first debtor is discharged, and the subsequent obligation is void. The same does not hold if I stipulate from a slave, for then the former debtor continues bound, just as if there was no subsequent stipulation.
§ 177. But when the original debtor is himself the promisor, a second stipulation only operates a novation if it contains something new; if a condition, for instance, or a time for payment, or a sponsor, is added or omitted.
§ 178. Respecting the sponsor, however, this statement is not free from doubt, for the other school held that novation is not operated by a sponsor being added or omitted.
§ 179. The statement that the introduction of a condition operates a novation must be restricted to mean, that a novation is produced if the condition is accomplished; for otherwise if the condition fails the prior obligation continues in force. However, it is a question, whether the creditor who sues on such a prior obligation cannot be repelled by the exception of fraud (doli), or of informal agreement not to sue; since it seems to have been the intention of the parties that the debt should be only recoverable if the condition of the second stipulation were realized. Servius Sulpicius even held that novation occurs immediately, and while the accomplishment of the condition is still uncertain; and that, if the condition fails, neither obligation can be sued upon, and the creditor’s claim is extinguished; and, consistently herewith, he held that, if the debt due from Lucius Titius is stipulated by the creditor from his slave, novation takes place, and while the original obligation is extinguished, the second is void because the slave cannot be sued. But in both cases the contrary rule prevails, and no novation occurs in these cases any more than it occurs if an alien, who cannot be sponsor, promise payment of a debt due from you to me by the solemn term ‘spondeo.’
§ 180. The extinction of an obligation is also effected by joinder of issue (litis contestatio), at least of a statutable action (judicium legitimum, 4 § 104). Then the original obligation is dissolved, and a new obligation is imposed on the defendant, by joinder of issue. But if he is condemned, the obligation arising from joinder of issue is discharged, and a new obligation arises from the judgment. Hence the saying of the old jurists, that, before action brought, a debtor is bound to pay his debt; after joinder of issue he is bound by the condemnatio of the formula; after condemnation passed, he is bound to satisfy the judgment.
§ 181. Accordingly, after suing by statutable action, the extinction of the original obligation disables me by strict law from bringing a second action, for the declaration that the defendant is bound to convey something to me is false, as joinder of issue in the first action terminated his obligation. It is otherwise if I sued at first by an action depending on the executive power (imperium) of the praetor, 4 § 105. For then the original obligation continues, and so, according to strict law, its non-extinction permits me to bring a second action; but I may be repelled by the exception of previous judgment (res judicata) or previous joinder of issue (res in judicium deducta) What actions are statutable, and what determine with (or, derive their force from) the praetor’s executive power, will be explained in the next book of these Institutes.
§ 168. Gaius only considers at present the modes of extinguishing an obligation, i. e. the modes whereby an obligation ceases to exist. In the next book, 4 § 115, he will treat of the exceptio, that is to say, a defence to an action whereby, though the right of the plaintiff continues to exist, it is deprived of its operation by being confronted with an adverse right of the defendant; which defence required to be alleged with the permission of the praetor in a special clause of the formula called the exceptio.
Every obligation, as we have seen, 3 § 88, comm , relates to a certain dare, facere, or praestare; that is to say, the actual performance (solutio) of every obligation will consist in either dare, facere, or praestare.
The doctrine of Sabinus, that a substituted performance with the consent of the creditor (in solutum datio) operates the extinction of an obligation, was the view that ultimately prevailed. Manifesti juris est, tam alio pro debitore solvente, quam rebus pro numerata pecunia consentiente creditore datis tolli paratam obligationem, Cod. 8, 42, 17. ‘It is certain that payment by a third person, or the substitution of other things for money, with the consent of the creditor, discharges an obligation.’
§§ 169, 170. Acceptilation, the release of an obligation contracted by stipulation by means of a contrary stipulation, was probably at first not a mode of discharge by itself but had to be accompanied by an actual payment of the debt. Subsequently it operated as a release by the fiction of payment having been made—acceptilatio estveluti imaginaria solutio (cf. Sohm, § 89). It was only, however, a form of release from verbal obligations, but Aquihus Gallus, the colleague of Cicero in his praetorship, the pupil of Quintus Mucius and teacher of Servius Sulpicius, the inventor of formulas relating to dolus malus, Cic. de Off. 3, 14, made it a mode of releasing from all obligations by a general form called acceptilatio Aquiliana, which is here referred to, cf. Inst. 3, 29, 2. ‘There is a stipulation called Aquilian, whereby all obligations are transmuted into a verbal one, and forthwith discharged by acceptilation For the Aquilian stipulation operates a novation of all pre-existing debts, and is thus expressed: “Whatever thing, on whatever title, thou art or shalt be bound to convey to me or to perform for me now or hereafter, absolutely or conditionally; whatever thing I have or shall have an action, personal, real, or extraordinary, against thee to recover; whatever thing of mine thou hast, detainest, possessest, hast possessed, or hast fraudulently parted with possession of; whatever sum is the value of all these things, that sum dost thou promise to pay me?” so asks Aulus Agerius, and Numerius Negidius answers: “I promise.” Then Numerius Negidius asks of Aulus Agerius: “Whatever I have promised thee to-day by the Aquilian stipulation, hast thou received it all in full?” and Aulus Agerius answers: “I have, and have given thee my release.” ’
The narrative form (stipulatus est, spopondit, interrogavit) in which the transaction is expressed by Justinian, properly belongs, not to the stipulation and acceptilation, but to the written memorandum (cautio) in which they are recorded.
§ 172. It was subsequently an established doctrine that a partial release by acceptilation was valid, Dig. 46, 4, 13, 1.
§§ 173-175. It might perhaps have been expected that the release of a legacy would be operated per aes et libram, because the will containing the bequest was a transaction per aes et libram, on the principle that all obligations may be released by the process whereby they were contracted. Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est: ideo verborum obligatio verbis tollitur: nudi consensus obligatio contrario consensu dissolvitur, Dig 50, 17, 35. Omnia quae jure contrahuntur contrario jure pereunt, Dig 50, 17, 100. Fere quibuscunque modis obligamur, iisdem in contrarium actis liberamur, Dig 50, 17, 153. ‘To every mode of obligation there is an obverse mode of liberation.’
But nexi liberatio is only applicable to legatum per damnationem, nor is it easy to explain why a judgment debt and legacy in this form could only be released by the proceeding with the bronze and scales It was evidently the appropriate way of discharging nexal debtors, and, when it came to be accompanied by only an imaginary payment, was apparently used as a general form for releasing all debtors who were in the position of nexi, including not only judgment debtors, but also an heir solemnly charged with the payment of a legacy by the form of condemnation (per damnationem). Cf. Sohm, § 89.
It is to be noticed that Gaius says nothing of exoneration from an obligation contracted literis, but it is clear that as a debt could be constituted by expensilatio, so it could be cancelled by a corresponding accepti relatio.
A consensual contract, not yet followed by partial execution (re nondum secuta, Inst. 3, 29, 4), could be dissolved by a contrary agreement (or in the cases of mandate and partnership by mere dissent). Hae obligationes quae consensu contrahuntur contraria voluntate dissolvuntur, ibid ‘Obligations which consent creates, a contrary accord dissolves.’ But after a part performance, that is performance by one of the parties, the contract must not be thus abandoned by the other unless he made restitution, Cod. 4, 45, 1.
Not only could the obligation created by consensual contract be extinguished by consent, but obligation created by delict could by certain statutes or otherwise be obliterated by agreement or compromise, or at least made unenforceable. Legitima conventio est quae lege aliqua confirmatur, et ideo interdum ex pacto actio nascitur vel tollitur quotiens lege vel senatusconsulto adjuvatur, Dig. 47, 10, 6. Thus the obligations and actions arising out of outrage (injuriarum) and theft could be extinguished by the parties coming together, in the latter case, by enactment of the Twelve Tables.
§ 176. It seems irrational that an invalid contract should be held to operate a novation, but an agreement might be valid as obligatio naturalis though unenforceable at Civil law; and in respect of Novation naturalis obligatio was placed on a level with civilis obligatio. Novatio est prioris debiti in aliam obligationem, vel civilem vel naturalem, transfusio atque translatio, hoc est cum ex praecedenti causa ita nova constituatur ut prior perematur. . . . Qualiscunque igitur obligatio sit quae praecessit, novari verbis potest, dummodo sequens obligatio aut civiliter teneat aut naturaliter, ut puta si pupillus sine tutoris auctoritate promiserit, Dig. 46, 2, 1. ‘Novation is the merger and transfer of a prior debt into a subsequent obligation, civil or natural; or the destruction of a prior obligation by the constitution of a new one. Every kind of obligation can undergo novation by verbal contract, provided that the subsequent obligation binds either as civilly enforceable or as merely a natural one, as the promise of a ward without his guardian’s sanction.’
§ 177. We have already seen an instance of novation when treating of delegatio, §§ 155-162, comm., the satisfaction of a debt by substitution of a debtor. The substituted debtor who discharges by stipulation the first is called an expromissor, §§ 110-127, comm.
§ 178. We see by Justinian, Inst. 3, 29, 3, that the addition or omission of a fidejussor was finally held to operate a novation.
§ 179. Servius Sulpicius was wrong because novation implies a subsequent obligation, but a conditional obligation is really no obligation until the condition is realized. So if the prior obligation is conditional and the second obligation absolute, the novation is not absolute but conditional, because there is really no prior obligation until the condition is realized, at which moment novation takes place, and the prior obligation is extinguished.
Justinian, on account of the frequency of disputes as to whether the parties had the intention of novation, enacted that no contract should operate a novation, unless the stipulating parties expressly declared their intention that such novation should be produced, Inst. 3, 29, 3 a; Cod. 8, 41, 8.
§ 180.Litis contestatio, Joinder in issue, or the settlement of the issue to be tried by the judex, denoted, under the system of statute-process, when pleadings were oral, the close of the proceedings in jure, when, the praetor having allowed an action, each party called those who were present to attest the nature of the issue allotted to be tried. Festus. ‘Contestation is when both parties exclaim, “Give your attestation.” It marks the definitive settlement of the issue to be tried.’ Under the formulary system the term was still employed, but marked the moment when the praetor delivered the written formula containing the commission of the judex. Under the third period of the law, when the praetor or highest judicial functionary was himself the judex, that is, no longer delegated the cause to a judex privatus, but either heard and determined it himself or delegated his authority to an official (judex pedaneus), Litis Contestatio denoted the commencement of the trial before the judex. Lis enim tunc contestata videtur, quum judex per narrationem negotii causam audire coeperit, Cod. 3, 9, 1. ‘Litis contestatio is the moment when the judge begins to hear the recital of the cause of action.’ By legitima judicia, 4 § 103, Gaius denotes those actions in the formulary procedure which by provision of the lex Aebutia, whereby statute-process was abolished, were put on the same footing as the legis actiones and so had the same effect, in respect of novation and otherwise, as this statute-process, which they superseded, cf. Sohm, pp. 260, 267. Actions terminable with the praetorship were such actions as did not derive their validity from the lex Aebutia, but simply from the executive power of the praetor (quae imperio continentia, § 101, cf. 4 § 105).
The transformations of Litis contestatio which are described above were not the last that it was destined to undergo. In the first stage of procedure under the Canon law, after the libellus of the plaintiff had been read aloud, the judge asked the plaintiff whether he abided by his suit; and, on his answer in the affirmative, his libellus was contradicted by the defendant in general terms (nego narrata prout narrantur et dico petita fieri non debere). The detailed contention of the parties over the particular averments of the plaintiff did not follow till a subsequent stage.
In Germany in a. d. 1654 an ordinance of the empire required the defendant to answer all the allegations of the plaintiff and adduce all his own exceptions at the first stage: and, as in practice the reading of the plaintiff’s libellus was omitted, the Litis contestatio, or first term or stage of the suit, consisted in this detailed answer of the defendant. Subsequently, when written documents superseded oral procedure, the Litis contestatio was identified with the defendant’s delivery of what was called his book of exceptions.
The Novation produced by Litis contestatio is called by modern writers Novatio necessaria. It has not all the incidents of Novatio voluntaria, or Novation induced by agreement: for instance, as Litis contestatio must not deteriorate the position of the creditor, the object of its incidents being to remove the disadvantages which he suffers from the duration of the suit, it does not extinguish the accessories of the principal obligation, e. g. interest, fidejussio, hypotheca, Dig. 46, 2, 29. It originally, as we have seen, in consequence of the Correality of the Fidejussor, i. e. the unity of his obligation with that of the principal, extinguished the liability of the Fidejussor: but this rule, as we have mentioned, was abrogated by Justinian, who enacted that the liability of the Fidejussor could not be extinguished by Litis contestatio, but only by Solutio.
Nor, secondly, did Novatio necessaria, though it extinguished Civilis obligatio, prevent, like Novatio voluntaria, the continuance of Naturalis obligatio, Dig. 12, 6, 60.
Under Justinian Litis contestatio lost half of its effect: it still retained the positive function of generating a new obligation; but it ceased to have the negative function of extinguishing the old obligation. From this time, accordingly, we cease to hear of process-consumption of this kind whether extinctive (litis consumptio ipso jure) as relating to statutory actions, or counteractive (exceptio rei in judicium deductae) as relating to actions dependent on the authority of the praetor. Indeed the former of these (litis consumptio ipso jure) had disappeared long before, contemporaneously with the disappearance of legitima judicia; that is to say, with the abolition under Diocletian of the ordo judiciorum (formulary system), and the transformation of all procedure into cognitio extraordinaria.
Gaius attributes a Novative power not only to Litis contestatio, but also to Judgment (res judicata). Judgment, like litis contestatio, has two functions, one Negative, the other Positive. By its Negative operation it extinguishes the previous right of action: by its Positive it entitles, in the event of Condemnatio, to Execution. The Positive function is in the interest of the plaintiff: the Negative principally in the interest of the defendant. Under Justinian the novative effect of Judgment, as well as that of Litis contestatio, was considerably altered. It was partly narrowed: e. g. an absolution on the ground of Plus petitio, 4 § 53, or of a dilatory exception, 4 § 120, no longer grounded an exceptio rei judicatae: and it was partly extended: for instance it founded exceptio rei judicatae not only in respect of the principal question, but also in respect of incidental questions, whose decision was preliminary to that of the principal question, and in respect of any exceptions or replications. In view of these changes it is said that Res judicata, like Litis contestatio, while it retained its positive functions, lost its negative functions. But while it still generated an exceptio rei judicatae it seems difficult to say that it ceased to have a negative or consumptive operation: though this was attenuated, and made more rigorously subsidiary to the positive operation; and was henceforth left entirely to the discretion of the praetor.
The present seems to be the most convenient occasion that we shall find for gathering together in one conspectus the various operations and effects of Litis contestatio: fuller explanations of each will be found scattered over this treatise in connexion with the various matters to which such operations relate.
1. The principal operation was originally the processual consumption of a right of action (litis consumptio) which has just been described: the barring of any subsequent suit in virtue of the maxim: De eadem re ne bis sit actio, Quintilian, 7, 6, 1, either by extinction (ipso jure) or by counteraction (ope exceptionis) of the plaintiff’s right to sue. This occurred, as we shall see, 4 § 103, even when in consequence of process-prescription there was no judgment, or when, by reason of Plus petitio or some dilatory plea, there was a judgment against the plaintiff but not upon its merits. The operation was gradually abrogated before the time of Justinian, only leaving traces of itself in the Novatio necessaria, which extinguished indeed civilis obligatio but left a naturalis obligatio, sufficient to support the pignora or hypothecae by which the plaintiff was protected. Processual consumption had only considered the Intentio of the action that was brought: the exceptio rei judicatae, by which in later times the same or similar objects were accomplished, regarded the exact import of the Sententia. The most signal departure from the principle of processual consumption was perhaps Justinian’s constitution, Cod. 8, 40, 28, concerning Correality and Fidejussio, §§ 110-127, comm. As Correality is a single obligation imposed on several debtors, a suit against one extinguished the obligation of the remainder: e. g. a suit brought against a principal extinguished the right of suing the surety, and vice versa. Justinian enacted that the obligation of the remaining correal debtors should not be extinguished even by judgment against one, but only by complete satisfaction of the plaintiff’s claim.
2. (a) Litis contestatio, in the classical period, by interrupting Prescription, 4 §§ 110-113, comm., saved the plaintiff’s title from being barred by lapse of time. At a later period, Prescription was interrupted by a still earlier event, Insinuatio or registration in court. As soon as Prescription of the right of action was thus interrupted, Prescription of pendency began to run, 4 §§ 104, 105.
Moreover, respecting the plaintiff’s Title or ground of action it is a general rule that no causa superveniens, or entitling event, subsequent to Litis contestatio can avail to save the plaintiff from losing the action already brought, though it may give him the right to bring another. Further, as a general rule, the ground of action must not only exist before Litis contestatio but must continue up to condemnatio. Otherwise in virtue of the maxim: Omnia judicia esse absolutoria, though there was a difference of opinion between the Sabinians and Proculians on this point, 4 § 114, the defendant will be absolved. E. g. if the defendant in a condictio furtiva was a conditional legatee of the thing which he has stolen from the heir who sues him for damages, and the condition is fulfilled after Litis contestatio, the defendant is acquitted, Dig. 13, 1, 14, pr.
(b) Litis contestatio made an exception to the latter rule in respect of the ancient institution of Usucapio; which though not interrupted by litis contestatio, did not entitle the defendant to absolution, as litis contestatio made it revocable, Dig. 6, 1, 18. Longi temporis praescriptio, like other forms of Prescription, was interrupted by litis contestatio, or, in later times, by Insinuatio: and from Cod. 7, 33, 10 and Cod. 7, 40, 2, this seems to have been the result when Justinian transformed longi temporis possessio into Usucapion. Savigny, however, § 261, and Vangerow, § 160, hold that then the rule of Prescription was in this respect superseded by the rule of Usucapion: that litis contestatio or insinuatio produced, that is to say, not interruption but liability to revocation. (As to this difference between Usucapio and longi temporis possessio, see Grueber’s Lex Aquilia, p. 240, and Windscheid’s Pandekten, § 180, note 7.)
(c) Litis contestatio produced another exception to the rule in the event of the destruction of the subject of litigation by casualty (casus). In Real actions if the defendant is a Mala fide possessor: in Personal actions if he is a debtor chargeable with mora, destruction of the subject, although ascribable to Casus, and notwithstanding the maxim: Impossibilium non est obligatio: does not save the defendant from condemnation. In the absence of Mala fides and Mora, casual destruction of the subject entitles the defendant, in virtue of the above maxim, to absolution.
(d) Litis contestatio makes transmissible a right of action which before was untransmissible, 4 § 112, comm. Vindictive actions (actiones vindictam spirantes), so long as there has been no litis contestatio, are incapable of active transmission; i. e. transmission to the heir of the plaintiff: and penal actions are incapable of passive transmission; i. e. transmission to the heir of the defendant. But when once litis contestatio has taken place, these actions, in the event of the subsequent death of the plaintiff or defendant, become capable respectively of active and passive transmission.
(e) In an action arising from delict when a man is only suable to the extent of his enrichment thereby, the question whether he is enriched or not is decided entirely by his circumstances at the moment of litis contestatio.
It was stated that as a general rule the plaintiff’s title to judgment was required to be in existence before litis contestatio. This is subject to exception in respect of some of the subordinate elements of title, certain minor conditions of judgment in his favour which agree in the common character that, in the formulary period, they were not expressed, as conditions of the judgment, in the intentio of the formula. E. g. in vindicatio the possession of the subject by the defendant, although it commences after litis contestatio, suffices to render him liable to be condemned. So in the actio de peculio, the existence of a peculium; in the actio mandati, the existence of moneys belonging to the principal in the hands of the agent; in the actio pigneraticia, the satisfaction of the debt by the mortgagor; all respectively conditions of a judgment in favour of the plaintiff, render the defendant liable to condemnatio even when they are events subsequent to the institution of the suit.
The same applies to certain exceptions: in the exceptio divisionis the question respecting the solvency of co-guarantors, § 121, and in the beneficium competentiae, 4 §§ 39-44, comm., the question respecting the means of the defendant is decided according to the circumstances in existence at the moment of condemnation.
3. Litis contestatio has hitherto been considered in respect of its influence on the Conservation or Destruction of a ground of action. We proceed to its effect on the Amount of the condemnation or of the damages to be awarded.
(a) To save the plaintiff from being injured by the unavoidable duration of the suit, without, however, deterring the defendant from the defence of what he honestly believes to be his rights, a judgment against the defendant requires him to restore Omnis Causa, i. e. omne quod habiturus esset actor, si statim judicii accepti tempore res ei reddita fuisset, Dig. 6, 1, 20, all that the plaintiff would have had if restitution had been made to him at the moment of litis contestatio. This implies the restitution of Fructus, all the gain of whatever nature that the defendant has derived from the fact of possession. If the object claimed is a sum of money, the defendant, notwithstanding the absence of mora, must pay Interest from the date of litis contestatio, cf. 2 § 280, comm.
(b) After litis contestatio the defendant, the bona fide possessor as well as the mala fide possessor, the debtor free from mora as well as the debtor chargeable with mora, is liable for Culpa of every kind and degree, and responsible for the destruction and deterioration thereby occasioned. E. g. he is liable for neglected fruits (fructus percipiendi) as well as for fructus consumpti and fructus extantes, for the omission to collect the fruits is a piece of culpable supineness.
(c) Litis contestatio in actiones stricti juris fixes the moment to be regarded in the valuation of the plaintiff’s interest in the subject of dispute (litis aestimatio). In bona fide actions this date is given by the moment of Condemnatio. See 4 §§ 45-52, comm.
4. Litis contestatio affects the character of the object of litigation, which it converts into res Litigiosa, thereby rendering unlawful its alienation by the plaintiff or defendant. See 4 § 117 a.
§ 182. Transeamus nunc ad obligationes quae ex delicto nascuntur, ueluti si quis furtum fecerit, bona rapuerit, damnum dederit, iniuriam commiserit; quarum omnium rerum uno genere consistit obligatio, cum ex contractu obligationes iniiii genera diducantur, sicut supra exposuimus.
§ 182. We proceed to obligations which originate in delict; theft, for instance, rapine, damage to property, or outrage; which are all of one kind, whereas contractual obligations are divided into four classes, as we have explained above.
All actions suppose the violation of some right, but they are not necessarily founded on a wrong or delict. Thus a possessor of another man’s property, though no wrong be imputable to him, is subject to vindicatio. Actions on contract, however, suppose a wrong, namely, a wrongful act or omission constituting a breach of contract, but the plaintiff recovers damages with the object merely of putting him in the same position as if the contract had been fulfilled. Delict (delictum, maleficium), on the other hand, is generally used in a limited sense, to signify any wrong or unlawful act in itself, such as theft or assault, regarded as specially injurious apart from the loss which it causes. In early law indeed the default of a debtor is treated as if it were a delict, but in later times the acts which the law designates as delicts involve a violation not of a jus in personam or right available against a determinate person, but of a jus in rem or right available against all the world, such acts as are considered especially injurious to the individual or to the community.
Delicts or wrongs came to be divided into public and private. Public wrongs are those delicts called crimes, private wrongs are those delicts which in early times were left to private vengeance, for which an action brought by the injured party against the wrongdoer was afterwards substituted. Injuries, which in modern law are punished exclusively as crimes, could throughout the history of Roman law be vindicated by the injured party as private wrongs. Crimes have been defined to be such unlawful acts as are injurious in the first instance to the State; civil injuries, such as are harmful, principally or exclusively, to private individuals. But this definition is not satisfactory, because all or most crimes are injurious to private individuals, and all or most civil injuries are harmful to the community. A better definition is the following: Crimes are those unlawful acts which the state itself visits with punishment, considering them to be specially injurious to its interests; private delicts are unlawful acts or offences which the injured party may himself vindicate by action. The same unlawful act which in one stage of society is pursued as a private delict may, at a subsequent stage, be punished as a crime. So, again, in later Roman law the same delictal act, e. g. furtum, might be pursued either as a crime or as a civil injury.
The following may be taken as a kind of rough classification of actions. Every right of action arises out of a violation of some positive or negative duty.
(1) A violation of a positive duty to perform or negative duty of forbearance may be a violation of a jus in personam, and found an action for breach of contract, called an action ex contractu, or may be the violation of some right which is regarded as if it were the breach of a contract, giving rise to an actio quasi ex contractu.
(2) A violation of a negative duty, that is, duty to abstain, may be a violation of a jus in rem, which, if it is an offence called delict, gives rise to an action enforceable by the individual aggrieved, or similarly, if the violation is one which, though not strictly a delict, is treated as if it were so, it gives rise to an actio quasi ex delicto.
(3) Or violations of duties giving rise to actions and other remedies which are founded simply on the fact of ownership or possession, such as vindicatio, actio Publiciana, the possessory interdicts.
But there are many miscellaneous actions which cannot be easily brought under any of the above heads.
Actions ex contractu seek to enforce both the rights immediately founded on a contract and those created by a party’s subsequent unlawful intention (dolus) or carelessness (culpa) in relation to the contract.
Real actions and actions ex contractu are simply restitutory in their object; they imply that a defendant has something which he ought not to have: withholds from the plaintiff some thing or service of pecuniary value to which the plaintiff is entitled. Actions ex delicto do not necessarily imply that the defendant has what he ought not to have; they necessarily impute unlawful conduct (dolus or culpa) to the defendant, § 211, and imply imputability, or responsibility for such conduct.
In respect of contracts Culpa is distinguished as of different degrees; and sometimes a higher, sometimes a lower degree is capable of generating obligation. In respect of delicts, that is, the delict of damage to property, Culpa is not distinguished by gradations; any neglect of ordinary care suffices to generate obligation.
The object of an action ex delicto may be either simply to recover a penalty (e. g. actio furti), or partly to recover a penalty and partly to obtain damages (e. g. actio vi bonorum raptorum), or it may be to obtain personal satisfaction for the injury caused by the offence (e. g. actio injuriarum); but we shall find that in every case a delictal action has characteristics, which do not belong to a merely restorative action. (Cf. Inst. 4, 6, 17 and 18.) Real actions and actions ex contractu are not Delictal but Civil, Conservative, or Restorative; they maintain the fortunes of both parties at their original level; at the level destroyed or lowered by the defendant’s act or omission. We have before used the term Civil to distinguish the Private code from the Political code and the Criminal code. We here take it in a narrower sense to distinguish that part of the Private code which deals with Domestic relations and the Law of Property, including Obligation ex contractu, from that part which deals with Obligation ex delicto, which latter part has more resemblance to the Criminal code. The jurisprudence of delicta privata forms a sort of intermediate between Civil jurisprudence, in this narrower sense, and Criminal jurisprudence which relates to delicta publica.
§ 183. Furtorum autem genera Ser. Sulpicius et Masurius Sabinus iiii esse dixerunt, manifestum et nec manifestum, conceptum et oblatum; Labeo duo, manifestum 〈et〉 nec manifestum; nam conceptum et oblatum species potius actionis esse furto cohaerentes quam genera furtorum; quod sane uerius uidetur, sicut inferius apparebit.
Inst. 4, 1, 3.
§ 184. Manifestum furtum quidam id esse dixerunt, quod dum fit deprehenditur. alii uero ulterius, quod eo loco deprehenditur, ubi fit, ueluti si in oliueto oliuarum, in uineto uuarum furtum factum est, quamdiu in eo oliueto aut uineto fur sit; aut si in domo furtum factum sit, quamdiu in ea domo fur sit alii adhuc ulterius eo usque manifestum furtum esse dixerunt, donec perferret eo, quo perferre fur destinasset. alii adhuc ulterius, quandoque eam rem fur tenens uisus fuerit; quae sententia non optinuit. sed et illorum sententia, qui existimauerunt, donec perferret eo quo fur destinasset, deprehensum furtum manifestum esse, ideo non uidetur probari, quia magnam recipit dubitationem, utrum unius diei an etiam plurium dierum spatio id terminandum sit quod eo pertinet, quia saepe in aliis ciuitatibus subreptas res in alias ciuitates uel in alias prouincias destinant fures perferre. ex duabus itaque superioribus opinionibus alterutra adprobatur; magis tamen plerique posteriorem probant.
Inst. l. c.
§ 185. Nec manifestum furtum quid sit, ex iis quae diximus intellegitur. nam quod manifestum non est, id nec manifestum est.
Inst. l. c.
§ 186. Conceptum furtum dicitur, cum apud aliquem testibus praesentibus furtiua res quaesita et inuenta sit. nam in eum propria actio constituta est, quamuis fur non sit, quae appellatur concepti.
Inst. 4, 1, 4.
§ 187. Oblatum furtum dicitur, cum res furtiua tibi ab aliquo oblata sit eaque apud te concepta sit; utique si ea mente data tibi fuerit, ut apud te potius quamapud eum qui dederit conciperetur. nam tibi, apud quem concepta est, propria adueisus eum qui optulit, quamuis fur non sit, constituta est actio, 〈quae〉 appellatur oblati.
Inst. l. c.
§ 188. Est etiam prohibiti furti 〈actio〉 aduersus eum qui furtum quaerere uolentem prohibuerit.
Inst. l. c.
§ 189. Poena manifesti furti ex legexii tabularum capitalis erat. nam liber uerberatus addicebatur ei cui furtum fecerat; utrum autem seruus efficeretur ex addictione, an adiudicati loco constitueretur, ueteres quaerebant. in seruum aeque uerberatum animaduertebatur. sed postea inprobata est asperitas poenae et tam ex serui persona quam ex liberi quadrupli actio praetoris edicto constituta est.
Inst. 4, 1, 5.
§ 190. Nec manifesti furti poena per legem 〈xii〉 tabularum dupli inrogatur, eamque etiam praetor conseruat.
Inst. l. c.
§ 191. Concepti et oblati poena ex lege xii tabularum tripli est, eaque similiter a praetore seruatur.
§ 192. Prohibiti actio quadrupli est ex edicto praetoris introducta; lex autem eo nomine nullam poenam constituit. hoc solum praecipit, ut qui quaerere uelit, nudus quaerat, licio cinctus, lancem habens; qui si quid inuenerit, iubet id lex furtum manifestum esse.
§ 193. Quid sit autem licium, quaesitum est. sed uerius est consuti genus esse, quo necessariae partes tegerentur. quae res [lex tota] ridicula est. nam qui uestitum quaerere prohibet, is et nudum quaerere prohibiturus est, eo magis quod ita quaesita re 〈et〉 inuenta maiori poenae subiciatur. deinde quod lancem siue ideo haberi iubeat, ut manibus occupatis nihil subiciat, siue ideo, ut quod inuenerit ibi inponat, neutrum eorum procedit, si id quod quaeratur, eius magnitudinis aut naturae sit, ut neque subici neque ibi inponi possit. certe non dubitatur, cuiuscumque materiae sit ea lanx, satis legi fieri.
§ 194 Propter hoc tamen, quod lex ex ea causa manifestum furtum esse iubet, sunt qui scribunt furtum manifestum aut lege 〈intellegi〉 aut natura: lege id ipsum de quo loquimur, natura illud de quo superius exposuimus sed uerius est natura tantum manifestum furtum intellegi. neque enim lex facere potest, ut qui manifestus fur non sit, manifestus sit, non magis quam qui omnino fur non sit, fur sit, et qui adulter aut homicida non sit, adulter uel homicida sit. at illud sane lex facere potest, ut proinde aliquis poena teneatur atque si furtum uel adulterium uel homicidium admisisset, quamuis nihil eorum admiserit.
§ 195. Furtum autem fit non solum cum quis intercipiendi causa rem alienam amouet, sed generaliter cum quis rem alienam inuito domino contrectat.
Inst. 4, 1, 6.
§ 196. Itaque si quis re quae apud eum deposita sit utatur, furtum committit. et si quis utendam rem acceperit eamque in alium usum transtulerit, furti obligatur, ueluti si quis argentum utendum acceperit, quasi amicos ad cenam inuitaturus, et id peregre secum tulerit, aut si quis equum gestandi gratia commodatum longius aliquo duxerit, quod ueteres scripserunt de eo qui in aciem perduxisset.
Inst. l. c.
§ 197. Placuit tamen eos, qui rebus commodatis aliter uterentur, quam utendas accepissent, ita furtum committere, si intellegant id se inuito domino facere, eumque, si intellexisset, non permissurum; at si permissurum credant, extra furti crimen uideri; optima sane distinctione, quod furtum sine dolo malo non committitur.
Inst. 4, 1, 7.
§ 198. Sed et si credat aliquis inuito domino se rem contrectare, domino autem uolente id fiat, dicitur furtum non fieri. unde illud quaesitum [et probatum] est, cum Titius seruum meum sollicitauerit, ut quasdam res mihi subriperet et ad eum perferret, 〈et seruus〉 id ad me pertulerit, ego, dum uolo Titium in ipso delicto deprehendere permiserim seruo quasdam res ad eum perferre, utrum furti an serui corrupti iudicio teneatur Titius mihi, an neutro. responsum neutro eum teneri, furti ideo quod non inuito me res contrectauerit, serui corrupti ideo quod deterior seruus factus non est.
Inst. 4, 1, 8.
§ 199. Interdum autem etiam liberorum hominum furtum fit, ueluti si quis liberorum nostrorum qui in potestate nostra sint, siue etiam uxor quae in manu nostra sit, siue etiam iudicatus uel auctoratus meus subreptus fuerit.
Inst. 4, 1. 9.
§ 200 Aliquando etiam suae rei quisque furtum committit, ueluti si debitor rem quam creditori pignori dedit subtraxerit, uel si bonae fidei possessori rem meam possidenti subripuerim. unde placuit eum, qui seruum suum quem alius bona fide possidebat ad se reuersum celauerit, furtum committere.
Inst. 4, 1, 10.
§ 201. Rursus ex diuerso interdum alienas res occupare et usucapere concessum est, nec creditur furtum fieri, ueluti res hereditarias, quarum heres non est nactus possessionem, nisi necessarius heres extet; nam necessario herede extante placuit nihil pro herede usucapi posse. item debitor rem, quam fiduciae causa creditori mancipauerit aut in iure cesserit, secundum ea quae in superiore commentario rettulimus, sine furto possidere et usucapere potest.
§ 202. Interdum furti tenetur qui ipse furtum non fecerit, qualis est cuius ope consilio furtum factum est. in quo numero est qui nummos tibi excussit, ut eos alius subriperet, uel obstitit tibi, ut alius subriperet, aut oues aut boues tuas fugauit, ut alius eas exciperet. et hoc ueteres scripserunt de eo qui panno rubro fugauit armentum. sed si quid per lasciuiam et non data opera, ut furtum committeretur, factum sit, uidebimus an utilis actio dari debeat, cum per legem Aquiliam quae de damno lata 〈est〉 etiam culpa puniatur.
Inst. 4, 1, 11.
§ 203. Furti autem actio ei conpetit cuius interest rem saluam esse, licet dominus non sit. itaque nec domino aliter conpetit, quam si eius intersit rem non perire.
Inst. 4, 1, 13.
§ 204. Vnde constat creditorem de pignore subrepto furti agere posse; adeo quidem, ut quamuis ipse dominus, id est ipse debitor, eam rem subripuerit nihilo minus creditori conpetat actio furti.
Inst. 4, 1, 14.
§ 205. Item si fullo polienda curandaue aut sarcinator sarcienda uestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest ea non periisse, cum iudicio locati a fullone aut sarcinatore suum consequi possit, si modo is fullo aut sarcinator rei praestandae sufficiat; nam si soluendo non est, tunc quia ab eo dominus suum consequi non potest, ipsi furti actio conpetit, quia hoc casu ipsius interest rem saluam esse.
Inst. 4, 1, 15.
§ 206.Quae de fullone aut sarcinatore diximus, eadem transferemus et ad eum cui rem commodauimus. nam ut illi mercedem capiendo custodiam praestant, ita hic quoque utendi commodum percipiendo similiter necesse habet custodiam praestare.
Inst. 4, 1, 16.
§ 207. Sed is apud quem res deposita est custodiam non praestat tantumque in eo obnoxius est, si quid ipse dolo 〈malo〉 fecerit. qua de causa 〈si〉 res ei subrepta fuerit, quia restituendae eius nomine depositi non tenetur nec ob id eius interest rem saluam esse, furti [itaque] agere non potest, sed ea actio domino conpetit
Inst. 4, 1, 17.
§ 208. In summa sciendum est quaesitum esse. an inpubes rem alienam amouendo furtum faciat. plerisque placet, quia furtum ex adfectu consistit, ita demum obligari eo crimine inpuberem, si proximus pubertati sit et ob id intellegat se delinquere.
Inst. 4, 1, 19.
§ 183. Thefts are divided by Servius Sulpicius and Masurius Sabinus into four kinds, theft manifest and not manifest, the possession of stolen goods discovered upon search, and the introduction into a house of stolen goods. Labeo makes only two kinds, theft manifest and not manifest, because the possession and introduction of stolen goods are not kinds of theft, but rather circumstances giving rise to special actions connected with theft; and this seems the better opinion, as will presently appear.
§ 184. Manifest theft is limited by some to detection in the act of taking; by others extended to detection while the thief is in the place where the theft is committed; for instance, if olives are stolen from an oliveyard, or grapes from a vineyard, while the thief is in the oliveyard, or vineyard; or if a theft is committed in a house, while the thief is in the house. Others extend it to detection before the thief has carried the goods away to the place where he intends to deposit them; others to detection while the thief has the goods in his hands. The fourth opinion has not been adopted, and the third opinion that, until the thief has carried the stolen goods to their place of destination, his theft may be a manifest one, is also impugned on the ground of the uncertainty whether one day or several is the limit of the time within which he must be detected; for a thief often intends to carry the goods he has stolen in one city into another city or province. The first and second opinions are commonly adopted, and more generally the second.
§ 185. What is not manifest theft will be understood from what we have said about manifest theft, for what is not the one is the other.
§ 186. The discovery of stolen goods, when a person’s premises are searched in the presence of witnesses, makes him liable, even though innocent of theft, to a special action for receiving stolen goods called actio concepti.
§ 187. To introduce stolen goods is to pass them off to a man, on whose premises they are discovered, with the intent that they should be discovered on his premises rather than on those of the introducer. The man on whose premises they are found may sue the passer off, though innocent of theft, in an action for the introduction of stolen goods called actio oblati.
§ 188. An action for prevention of search may be brought against the man who prevents a person from searching on his premises for stolen goods.
§ 189. The punishment provided by the law of the Twelve Tables for manifest theft was capital; a freeman was first scourged and then assigned, by judgment of the magistrate, to the person from whom he had stolen (whether made his slave by the assignment, or reduced to the condition of an insolvent judgment debtor, was a subject of controversy among the republican lawyers); a slave was also punished by scourging. But later ages disapproved of the severity of this punishment, and theft, whether by a slave or by a freeman, was punished by the praetorian edict with fourfold damages.
§ 190. Not manifest theft is punished by the law of the Twelve Tables with double damages, which penalty the praetor has retained.
§ 191. The penalty for the discovery or the introduction of stolen goods is by the law of the Twelve Tables triple damages, a penalty which the praetor has also retained.
§ 192. Prevention of search renders liable to fourfold damages, a penalty which the edict of the praetor first ordained. The Twelve Tables inflicted no penalty for such an offence, but directed that the person wishing to search must be naked, only wearing a girdle, and carrying a platter in his hands; and if anything was thus discovered the law of the Twelve Tables declares it to be manifest theft.
§ 193. What the girdle was is doubted, but it seems to have been a covering for the loins. The whole of this enactment of the Twelve Tables is nugatory, for he who prevents a man from searching in his clothes would prevent him from searching naked, especially as in such a search the finding of stolen goods would subject him to a heavier penalty. Besides, whether the platter is to be held by the searcher in order that his hands being engaged in holding it he may not bring anything into the house, or in order that what is found may be placed thereupon, neither of these reasons can be alleged when the thing searched for is of such a size or nature that it could not be brought into the house by hand, nor placed on the platter. It is not disputed that a platter of any material satisfies the requirement of the Tables.
§ 194. On account of the enactment that a discovery in such a search is manifest theft, some writers say that manifest theft is of two kinds, statutory or actual: statutory being that of which we have just been speaking, actual being that kind of manifest theft which has been previously explained. But in truth, the only mode of manifest theft is the actual one, for law cannot turn a not manifest thief into a manifest thief, any more than it can turn a man who is not a thief into a thief; or make an adulterer or homicide out of a man who has not killed or committed adultery. What a statute can accomplish is this, that a person shall be subject to a penalty just as if he had committed theft, adultery, or homicide, although he have not committed any of those offences.
§ 195. Theft is not simply confined to the carrying away the property of another with intent of appropriation, but embraces any kind of physical handling of a thing belonging to another against the will of the owner.
§ 196. Thus, to use a thing committed to one’s keeping as a deposit, or to put a thing that is lent to one for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country; or to borrow a horse for a mere ride, and then to take it far away out of the neighbourhood; or, as in the case described by the old lawyers, to take it into battle.
§ 197. It is held, however, that putting a thing lent for use to a different use than the lender contemplated is only theft if the borrower knows it to be contrary to the will of the owner, and that, if he had notice, he would refuse permission; but if he believes that the owner would give permission, it is not theft; and the distinction is just, for there is no theft without unlawful intention.
§ 198. But even to deal with a thing in the belief that you are acting against the will of the owner, if the owner is in fact consenting to your doing so, is said not to amount to theft; whence a question arises, if Titius solicits my slave to steal my property, and convey it to him, and my slave informs me of it, and I, wishing to detect Titius in the act, permit my slave to carry my goods to him; it has been questioned whether either an action of theft or one for corrupting a slave can be maintained against Titius. The answer (responsum) is that neither action is maintainable; not the action of theft, because his dealing with my property was not an act done against my will; not the action for corrupting a slave, because the slave was not in fact corrupted.
§ 199. Sometimes there may be a theft even of free persons; as, for instance, of a child in my power, of a wife in my hand, or even of my judgment debtor, or of my hired gladiator, should they be secretly removed from my control.
§ 200. A man may sometimes even steal his own property; as, for instance, a debtor who purloins the goods which he has pledged to a creditor, or an owner who surreptitiously takes away his own property from a bona fide possessor of it; and accordingly it has been held, that concealment by the owner of the fact of his slave having returned to him, from one who had possessed him in good faith, amounted to theft.
§ 201. Conversely, property belonging to another may sometimes be seized and acquired by usucapion without committing theft; hereditaments, for instance, before an heir has obtained possession, except in the case of a necessary heir; for where there is a necessary heir it is settled law that no usucapion as quasi-heir is possible (2 § 58). Also a debtor, having conveyed property on trust to his creditor by mancipation or surrender before the magistrate, as I mentioned in the preceding book, may, without committing theft, repossess it and acquire new ownership thereof by usucapion (2 § 59).
§ 202. In some cases theft may be chargeable on a person who is not the actual perpetrator, as on one, by whose aid and abetment a theft has been committed; to which class belongs the man who knocks out of your hand money for another to pick up, or stands in your way that another may snatch it, or scatters your sheep or oxen that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. But if the same thing were done as a frolic, without the intention of committing a theft, we will consider whether a praetorian form of action (in extension of the lex Aquilia) may not be maintainable, since the Aquilian statute relating to damage makes even negligence penal.
§ 203. The action of theft is maintainable by the person interested in the preservation of the property, although he is not the owner; and so even the owner cannot maintain it unless he has an interest in the safety of the thing.
§ 204. Hence when a thing pledged is stolen, the creditor can bring it, so much so that he can even maintain it against the owner or debtor who surreptitiously takes away from him the thing he has pledged.
§ 205. So if clothes are delivered to be cleaned or finished or mended for a certain remuneration, and then are stolen, the fuller or tailor has the action, and not the owner; for the owner is not interested in the loss, since he has his action on the contract of letting against the fuller or tailor to recover the value; supposing always, that the fuller or tailor has sufficient means to make the loss good. For if the latter is insolvent, then as the owner cannot recover what he has a right to claim from him, he can himself maintain the action of theft against the thief; because, in this hypothesis, he is interested in the loss of the property.
§ 206. What has been said of the fuller and tailor applies to the borrower of a thing (commodatarius); for as on account of the payment the former receive they are made responsible for safe custody of the thing, so on account of the advantage the borrower derives from the use of the thing he is likewise made responsible for its safe custody.
§ 207. But as a depositary is not answerable for the safe custody of the thing deposited, being only liable for his own fraud, so, if the thing is stolen from him, being not compellable to make restitution by action of deposit, he is not interested in the thing being safe; and therefore cannot maintain the action of theft which is only maintainable by the owner of the thing.
§ 208. Finally, it is a question whether if any one below the age of puberty takes the property of another, he commits a theft; and most jurists agree that as theft depends on intention, one below the age of puberty is not able to be charged with it unless, being near to that age, he understands that he is committing a delict.
Theft in modern systems of jurisprudence is a crime, that is, belongs to the penal or criminal code. In Roman law, as in other early systems, it is a private injury, and treated as a subject of the civil code. This was recognized by the law of the Twelve Tables, which established the penalty for furtum nec manifestum, § 190, and allowed a compromise or composition for theft, that is, allowed the penalty thereby engendered to be extinguished by private agreement between the party wronged and the wrongdoer.
§ 184. Aulus Gellius gives a fragment of Sabinus which combines the first and third definition of furtum manifestum. Manifestum autem furtum est, ut ait Masurius, quod deprehenditur dum fit. Faciendi finis est, cum perlatum est quo ferri coeperat, 9, 18, 1. ‘Manifest theft is that which is detected in the act. The act is finished when the removal of the goods to the place intended is completed.’ Justinian confirms the third definition, Inst. 4, 1, 3.
§ 189. The reason why furtum manifestum was subjected to a heavier penalty than furtum nec manifestum was not because the barbarous legislator supposed that detection in the act was an aggravation of the offence, but because he wished, by the amplitude of the legal remedy offered, to induce the aggrieved party not to take the law into his own hands and inflict summary vengeance on the offender, particularly as it was lawful to kill a nocturnal thief, or one who during the day defended himself with a weapon, Gell. 11, 18, 6, 7. In the infancy of society it is an important object to the legislator to induce an injured person to have recourse to the public tribunals instead of righting himself, that is to say, constituting himself both lawgiver and judge.
That such was really the motive of the legislator we have historic evidence in the declaration of Rotharis, ruler of the Langobards, a. d. 643. He gives the relatives of the slain their election between the primitive vengeance for blood (feud or vendetta) and a composition or pecuniary fine (wergeld or poena) to be recovered by action before the public tribunals. He says that he fixes a high fine in order to induce plaintiffs to forgo their right of feud; and implies that he would gladly have abolished the right of feud or private war, but felt that it was too deeply rooted in the habits of his tribe to be extirpated by legislation. Bethmann-Hollweg, Der Germ. Civ. Process, § 60.
This writer supposes, Der Rom. C. P., § 96, that the praetorian action Furti manifesti had a Fictitious formula, 4 § 32, and suggests the following:
Demonstratio. Quod Numerius Negidius Aulo Agerio furtum manifestum fecit paterae aureae,
Fictio. Si ob eam rem Numerium Negidium ex lege verberari itemque Aulo Agerio addici oporteret,
Condemnatio: Quanti ea res fuit, tantae pecuniae, judex, Numerium Negidium Aulo Agerio quadruplum condemnato: Si non paret, absolvito.
According to Gellius a slave after having been scourged was thrown from the Tarpeian rock, and some writers think that Gaius stated this fact in the above passage.
§ 193. We must distinguish between furtum conceptum with its threefold penalty, § 191, and furtum lance et licio conceptum. Ea quoque furta quae per lancem liciumque concepta essent, proinde ac si manifesta forent, vindicaverunt, Gellius, 11, 18, 9. ‘Possession of stolen goods discovered on search with the platter and girdle was punished as theft detected in the act.’ Cf. Inst. 4, 1, 4.
Traces of the word ‘conceptum’ occur in a fragment of the Twelve Tables, vi, 7: Tignum junctum aedibus vineave et concapit ne solvito, ‘Timber built into a house or vineyard of another man and discovered there by the owner must not be severed:’ where et concapit represents either et conceptum or qui concipiet. (On the grammatical form—conceptum—see Roby 2, p. 215, n. 1.)
The search with a platter and girdle was probably a custom derived from Greece, for a similar formality is described by Plato. Leges, 12, 7.
In the later period of Roman law, as in modern Europe, the search for stolen goods was not conducted by the private party, but by public officers. In England the object is effected by a search warrant. Upon the information on oath that a party has probable cause to suspect that his goods have been stolen, and are concealed in a certain dwelling-house, and on his showing the cause of his suspicion, a justice of the peace may grant a warrant authorizing to enter and search for the said goods, and to attach the goods and the party in whose custody they are found, and bring them before him, that he may give an account how he came by them, and be dealt with according to law. The warrant is directed to a constable or other public officer and not to any private person, though it is proper that the party complaining should be present as assistant because he knows his goods As touching the party that had custody of the goods, if they were stolen, but not by him but by another that sold and delivered them to him (furtum oblatum), if it appear that he was ignorant that they were stolen, he may be discharged as an offender and bound over to give evidence as a witness against him that sold them.
§ 195. The same definition of theft is given by Paulus. Fur est qui dolo malo rem alienam contrectat, Sent. R. 2, 31, 1. ‘A thief is he who with evil intention handles (lifts, moves, touches) the property of another.’ Justinian gives a different definition. Furtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessionisve, Inst. 4, 1, 1. ‘Theft is the fraudulent handling of a thing with the object of acquiring gain either from the thing itself or from its use, or from possession of it.’
It may be observed that Justinian does not say with Paulus, rei alienae, because a man may steal his own property, as when a pledgor steals from a pledgee or an owner from a usufructuary. So, by English law, to take a man’s own goods out of the hands of a bailee, if the taking have the effect of charging the bailee, is larceny. The usus of a thing is stolen when the owner deprives the usufructuary of it, or when a pledgee unlawfully uses a pledge. Si creditor pignore utatur, furtum committit, Inst. 4, 1, 6.
Cases of Possessio being appropriated are when a thing pledged is taken out of the pledgee’s possession by the owner, or when an owner of a thing surreptitiously deprives the bona fide possessor of his possession, § 200, for though such possessor has no title to the thing, his possession is recognized, till he is evicted, and he may have claims against the owner on account of impensae and on other grounds.
In English law larceny is defined to be the unlawful taking and carrying away of things personal (asportatio) with intent to deprive the right owner of the same and to make them the property of the taker. To constitute larceny the original taking of possession must be unlawful: therefore, if the owner deliver his property to a person to hold for him, the subsequent appropriation of it by the latter, though an offence and a breach of faith, is not larceny, because the original taking was lawful. But it is larceny if the delivery was obtained by fraud, i. e. with an original design and pre-arranged plan to deprive the owner of his property and convert it to the use of the taker. The possession is then unlawful in its inception. Again, if delivery does not divest the owner of the legal possession, appropriation by the taker constitutes possession unlawful in its inception and so is larceny. In this respect a servant (e. g. a shepherd, carter, porter, butler, clerk) is to be distinguished from a bailee, for the servant is regarded as not possessing, but merely as the instrument of the owner’s possession, and so he may be guilty of larceny of the thing. (See Pollock and Wright, Possession in the Common Law, Pt. III.)
Roman law, however, did not require an unlawful inception of possession for constituting furtum, as is shown by the fact that the pledgee, who has lawful possession, is guilty of theft, if he make use of the pledge. Had it done so, however, the appropriation of the owner’s property by commodatarius, depositarius, or conductor rei would have constituted an unlawful inception of possession and so have been furtum, since Roman law, differing in this respect from English, does not as a rule transfer possession to such bailees but only detention. But as a matter of fact in Roman law the question whether a person guilty of ‘contrectatio rei fraudulosa’ had or had not been in previous possession of the thing was never entertained (cf. Stephen, Hist. of Criminal Law in England, 1, p. 30, &c.).
§ 198. Justinian decided that the attempt to corrupt a slave was as criminal as his actual corruption, and made the offender liable to be sued for theft and for corrupting a slave, Inst. 4, 1, 8.
§ 201. Usucapion of the property of a voluntary heir, and usureceptio, or usucapion of the property of a mortgagee, have been mentioned in the preceding book. See 2 §§ 52-60.
§ 202. A person who is present aiding and abetting when an offence is committed but is not the actual perpetrator is called, in English law, a principal in the second degree. He who procures or abets another to commit an offence but is absent at the time of the commission is called an accessory before the fact. Their punishment is usually the same as that of the principal in the first degree. An accessory after the fact is one who, knowing an offence to have been committed by another, receives, harbours, or assists the offender. For an explanation of the distinction between actio legis aquiliae directa and utilis see § 219, comm.
§ 203. When a sale is complete, property does not, by Roman law, pass to the vendee before delivery, although the thing sold is forthwith at the risk of the vendee. If it is stolen before delivery, in spite of the rule that the action of theft is maintainable by the person interested, the vendee cannot sue in his own name, but the vendor is compellable to cede his actions and the vendee sues in the name of the vendor, Dig. 47, 2, 14, 1. But a person who is neither owner, nor has any real right in the thing may, as we have seen, have sufficient interest to enable him to maintain actio furti, though a person could not under these circumstances make use of the condictio furtiva.
The quadruple and double damages for furtum manifestum and nec manifestum were purely penal. The owner could further recover the thing stolen by a real action (vindicatio), maintainable against any one in possession of the stolen property, or damages in a personal action (condictio furtiva), Inst. 4, 1, 20. The granting of a personal action in this case, with an intentio declaring that the thief was bound to convey the property (dare oportere), was anomalous, because the property of the thing stolen was not in the thief but in the owner, and so could not be conveyed to the latter, 4 § 4.
If the thing stolen had been destroyed, or if, being money, it had been spent or mixed with money of the thief, the property of the plaintiff would have been in fact extinguished and condictio would be a suitable action. If the property existed in the hands of the thief or could be traced, vindicatio would be maintainable. The object of the law in allowing the plaintiff in any case to sue by condictio was to relieve him from the necessity of ascertaining whether his property was safe or had been consumed. If we ask why, instead of using the intentio, Si paret dare oportere, 4 § 4, which might be inconsistent with the truth, the plaintiff did not use the formula, Quidquid paret dare facere oportere, which, as including compensation or simple restitution of possession, would always be consistent with truth; the answer is probably what Savigny has suggested, namely, the intention of the legislator to subject the defendant to the sponsio poenalis, the additional forfeiture of a third of the sum in litigation. It is true that this is only mentioned as incidental to a condictio for pecunia certa credita, 4 § 171, but the penalty may have also been recoverable in a claim for certain money stolen (condictio furtiva).
According to Lenel, p. 263, the following would be the kind of formula for the actio furti nec manifesti:
Si paret Aulo Agerio a Numerio Negidio, opeve consilio Numerii Negidii, furtum factum esse paterae aureae;
Quam ob rem Numerium Negidium pro fure damnum decidere oportet,
Quanti ea res fuit, cum furtum est, tantae pecuniae duplum judex Numerium Negidium Aulo Agerio condemna: si non paret absolve.
The plaintiff in theft had in the later period of Roman law the option of proceeding by civil action or by criminal prosecution, and Ulpian informs us that the latter was the usual course, Dig. 47, 2, 93.
§ 209. Qui res alienas rapit, tenetur etiam furti. quis enim magis alienam rem inuito domino contrectat quam qui 〈ui〉 rapit? itaque recte dictum est eum inprobum furem esse sed propriam actionem eius delicti nomine praetor introduxit, quae appellatur ui bonorum raptorum, et est intra annum quadrupli [actio], post annum simpli. quae actio utilis est, etsi quis unam rem, licet minimam, rapuerit.
Inst. 4, 2, pr.
§ 209. Rapine or robbery is chargeable as theft, for who more handles the property of another against the will of the owner than the robber? who has been well denominated a shameless thief. However, as a special remedy for this offence the praetor has introduced the action for rapine with violence; which may be brought within a year for four times the value, after a year for simple damages; and which lies when only a single thing of the slightest value has been taken with violence.
Keller, der Rom. Civil Process, § 33, cf. Lenel, p. 314, gives the following formula: Recuperatores sunto: Quantae pecuniae paret dolo malo Numerii Negidii vi hominibus armatis coactisve damnum datum esse Aulo Agerio bonave rapta, dumtaxat sestertium tot millium, tantae pecuniae quadruplum, Recuperatores, Numerium Negidium Aulo Agerio condemnate: si non paret, absolvite. The party aggrieved might either proceed by civil action or by criminal prosecution under the lex Julia de vi publica et privata. This law, enacted either by Augustus or by Julius Caesar, made the criminal guilty of public or armed violence, liable to deportation; the criminal guilty of private or unarmed violence, to confiscation of a third of his goods, Inst. 4, 18, 8.
The quadruple damages in the action of rapine were not purely penal as in the action of furtum manifestum, but included the restitution of the property or its value, a rule which was definitely settled subsequently to the time of Gaius, see 4, 8, and cf. Inst. Just. 4, 2, pr. The penal damages for rapine were therefore only three times the value of the goods plundered, that is, less than the damages in furtum manifestum. If, however, the robber was taken in the act, he was chargeable, as Gaius explains, with furtum manifestum.
The lex Cornelia repetundarum passed by the dictator Sylla, b.c. 82, instituting a criminal action against governors of provinces guilty of extortion: the formula Octaviana or actio quod Metus causa, introduced by the praetor Octavius, father of Augustus, b. c. 79: and the actio Vi bonorum raptorum, introduced by the praetor Lucullus, b. c. 77, all fall within the space of four years and indicate the lawlessness generated by the civil wars in the time of Sylla.
Robbery, like theft, requires dolus malus, that is, criminal intention. If then a man, believing himself to be rightful owner, violently seized movable goods, he was not guilty of robbery, Inst. 4, 2, 1; but, by a constitution of the emperors Valentinian, Theodosius, and Arcadius, enacted a. d. 389, in order to repress violence, and deter people from taking the law into their own hands, a person who violently seized either movable or immovable property, if rightful owner, forfeited the property to the person dispossessed; if not rightful owner, was condemned, besides restitution of possession, to forfeit the value of the property, Cod. 8, 4, 7. This constitution increased the civil penalty recoverable for violent dispossession of land by the interdict unde vi, 4 §§ 154, 155. The interdict unde vi could not originally be maintained for violent, but unarmed, dispossession if the person evicted had himself acquired possession from the evictor by an origin, violent, clandestine, or permissive, unless the evictor had come armed with weapons of offence: and for either armed or unarmed dispossession the liability, as far as the property in question was concerned, was only restitution of possession. By the constitution of the three emperors the civil penalty of all violent disseisin was loss not only of possession but of ownership; and subsequently to this constitution, the interdict unde vi ceased to make a distinction between armed and unarmed dispossession.
This constitution may be regarded as the final blow struck by the Roman legislator at the archaic form of remedial procedure—private violence or self-redress. In archaic society, if society it could be called, before the establishment of central authority, public tribunals, and police or executive functionaries, such was the only possible means of redress; and such redress was recognized and permitted by primeval law, if the sentiments of the tribe at such a period can be called by the name of law.
Among the German races the disorder implied by the toleration of Feud or private war was gradually mitigated by the introduction of certain Truces, or temporary or local Peaces: the Truce of the King, prohibiting private war within the precincts of the royal residence: the Truce of the Church, giving to the fugitive wrongdoer an asylum in the sanctuary: the Truce of the Assembly, excluding the prosecution of feuds from the place where the Hundred was assembled: and the Truce of the Town, Village, or House, protecting the offender from homicidal attack within these limits.
At some period, too, society interposed and offered to act as arbitrator, and to procure for the aggrieved party satisfaction of the wrong he had endured. Accordingly all injuries were rated at a certain tariff, and a person who had suffered aggression had the option whether he should avenge himself or, in commutation of his right of Feud, accept the fine fixed by this tariff, and awarded by a tribunal of his countrymen. This mediation of the community, which the plaintiff could accept or decline at his discretion, was the origin of actiones poenales, the poena being the inducement offered to the plaintiff to make him adopt the more peaceful course. In Saxon law the alternative offered to the aggressor was expressed by the maxim Biege spere of side other bere: ‘Buy the spear off the side or bear it’: i. e. make atonement or be liable to Feud. (Kemble.)
Finally the Peace of the King, proclaimed at each coronation, became universal: the state undertook the decision and composition of all quarrels; and private war at all times and in all places was interdicted and superseded by recourse to the public judicature.
§ 210. Damni iniuriae actio constituitur per legem Aquiliam, cuius primo capite cautum est, 〈ut〉 si quis hominem alienum alienamue quadrupedem quae pecudum numero sit iniuria occiderit, quanti ea res in eo anno plurimi fuerit, tantum domino dare damnetur.
Inst. 4, 3, pr.
§ 211.Iniuria autem occidere intellegitur, cuius dolo aut culpa id acciderit; nec ulla alia lege damnum, quod sine iniuria datur, reprehenditur; itaque inpunitus est, qui sine culpa et dolo malo casu quodam damnum committit.
Inst. 4, 3, 3.
§ 212. Nec solum corpus in actione huius legis aestimatur; sed sane si seruo occiso plus dominus capiat damni quam pretium serui sit, id quoque aestimatur, ueluti si seruus meus ab aliquo heres institutus, antequam iussu meo hereditatem cerneret, occisus fuerit; non enim tantum ipsius pretium aestimatur, sed et hereditatis amissae quantitas. item si ex gemellis uel ex comoedis uel ex symphoniacis unus occisus fuerit, non solum occisi fit aestimatio, sed eo amplius 〈id〉 quoque conputatur, quod ceteri qui supersunt depretiati sunt. idem iuris est etiam si ex pari mularum unam uel etiam ex quadrigis equorum unum occiderit.
Inst. 4, 3, 10.
§ 213. Cuius autem seruus occisus est, is liberum arbitrium habet uel capitali crimine reum facere eum qui occiderit, uel hac lege damnum persequi.
Inst. 4, 3, 11.
§ 214. Quod autem adiectum est in hac lege qvanti in eo anno plvrimi ea res fverit, illud efficit, si clodum puta aut luscum seruum occiderit, qui in eo anno integer 〈fuerit, ut non quanti fuerit, cum occideretur, sed quanti in eo anno plurimi〉 fuerit, aestimatio fiat; quo fit, ut quis plus interdum consequatur quam ei damnum datum est.
Inst. 4, 3, 9.
§ 215. Capite secundo 〈aduersus〉 adstipulatorem, qui pecuniam in fraudem stipulatoris acceptam fecerit, quanti ea res est, tanti actio constituitur.
Inst. 4, 3, 12.
§ 216. Qua et ipsa parte legis damni nomine actionem introduci manifestum est. sed id caueri non fuit necessarium, cum actio mandati ad eam rem sufficeret; nisi quod ea lege aduersus infitiantem in duplum agitur.
§ 217. Capite tertio de omni cetero damno cauetur. itaque si quis seruum uel eam quadrupedem quae pecudum 〈numero est uulnerauerit, siue eam quadrupedem quae pecudum〉 numero non est, ueluti canem, aut feram bestiam, ueluti ursum leonem, uulnerauerit uel occiderit, hoc capite actio constituitur. in ceteris quoque animalibus, item in omnibus rebus quae anima carent damnum iniuria datum hac parte uindicatur. si quid enim ustum aut ruptum aut fractum 〈fuerit〉, actio hoc capite constituitur, quamquam potuerit sola rupti appellatio in omnes istas causas sufficere; ruptum 〈enim intellegitur quod quoquo modo corruptum〉 est. unde non solum usta [aut rupta] aut fracta, sed etiam scissa et conlisa et effusa et quoquo modo uitiata aut perempta atque deteriora facta hoc uerbo continentur.
Inst. 4, 3, 13.
§ 218. Hoc tamen capite non quanti in eo anno, sed quanti in diebus xxx proximis ea res fuerit, damnatur is qui damnum dederit. ac ne plvrimi quidem uerbum adicitur. et ideo quidam putauerunt liberum esse iudici uel ad id tempus ex diebus xxx aestimationem redigere, quo plurimi res fuerit, uel ad id quo minoris fuerit. sed Sabino placuit proinde habendum, ac si etiam hac parte plvrimi uerbum adiectum esset; nam legis latorem contentum fuisse, 〈quod prima parte eo uerbo usus esset.
Inst. 4, 3, 14.
§ 219.Ceterum〉 placuit ita demum ex ista lege actionem esse, si quis corpore suo damnum dederit; ideoque alio modo damno dato utiles actiones dantur, ueluti si quis alienum hominem aut pecudem incluserit et fame necauerit, aut iumentum tam uehementer egerit, ut rumperetur; item si quis alieno seruo persuaserit, ut in arborem ascenderet uel in puteum descenderet, et is ascendendo aut descendendo ceciderit 〈et〉 aut mortuus fuerit aut aliqua parte corporis laesus sit; sed si quis alienum seruum de ponte aut ripa in flumen proiecerit et is suffocatus fuerit, corpore suo damnum dedisse eo quod proiecerit non difficiliter intellegi potest.
Inst. 4, 3, 16.
§ 210. Damage unlawfully caused is actionable under the lex Aquilia, whose first chapter provides, that if a slave of another man, or a quadruped of his cattle, be unlawfully slain, whatever within a year was the highest value thereof, that amount the offender shall pay to the owner.
§ 211. Unlawful slaying means slaying by intention or negligence; loss occasioned by no fault of the person committing it being punished by no law; hence a person who damages another accidentally and not wilfully or negligently does so with impunity.
§ 212. It is not only the body of the slave or animal slain that is appraised in the action under this statute, but if the killing of a slave occasion to the owner the loss of anything in addition to his price, this loss is also appraised; for instance, if my slave has been instituted somebody’s heir, and before by my order he has signified his acceptance, he is slain, valuation is made not only of his body but also of the inheritance I have missed; or if one of two twins, or one of a company of players, or one of a band of musicians is slain, an estimate is made not only of his value but also of the extent to which the remainder are depreciated. The same holds if one of a pair of mules, or one of a team of four chariot horses is killed.
§ 213. The owner whose slave is killed has the option of prosecuting the homicide for a capital crime or of suing him under this statute for damages.
§ 214. From the words of this statute, ‘Whatever within a year was the highest value thereof,’ it follows that if the slave killed was lame or blind of one eye, but had been sound within a year, the owner will recover not simply his value at the time of his death but his highest value within a year, the result being that a plaintiff will in some cases recover more than the amount of the loss he has sustained.
§ 215. By the second chapter an adstipulator who defrauds a principal stipulator by releasing the promissor can be sued for the amount of the loss occasioned.
§ 216. It is evident that in this part of the statute also an action was instituted on account of damage to property, though here the provision was not absolutely necessary, because the action of Mandate would give a sufficient remedy, except for this that the lex Aquilia, when the action is defended, gives double damages.
§ 217. The third chapter makes provision for all other damage. Therefore if a slave, or a quadruped included under the name of cattle, is wounded, or if a quadruped not included under the name of cattle, as a dog, or a wild beast, for instance, or a bear or lion, is wounded or is killed, in this chapter an action is provided: so too if other animals or any things inanimate are unlawfully damaged, this part of the statute supplies a remedy, since in this chapter an action is expressly established in case of anything burnt, broken in pieces, fractured: although the single word ‘broken’ (ruptum) will suffice to cover all these offences, for the word ‘broken’ (ruptum) is interpreted to mean injured in any way (corruptum quoquo modo); hence not only burning, breaking, crushing, but any cutting, bruising, spilling, vitiating in any way, destroying, or deteriorating, is hereby comprehended.
§ 218. We should notice that in this chapter it is not the value which the thing had within a year, but which it had within the last thirty days, that is chargeable on the person causing the damage, though the statute itself does not expressly mention the term highest value (plurimi). Hence some of the other school have held that it was left to the discretion of the judex whether the damages should be measured by the highest value or by any lower value which the thing may have had within the last thirty days: but Sabinus held that the law must be interpreted as if it contained the word ‘highest’ (plurimi), the legislator having thought it sufficient to use this word in the first chapter.
§ 219. It has been held that an action under this statute only lies when the body of the offender is the instrument of mischief; and therefore for any other mode of occasioning loss praetorian actions (actiones utiles) must be brought: for instance, if a slave or quadruped is shut up and starved to death, or a horse is foundered by hard driving, or a slave is persuaded to climb a tree or descend a well, and in climbing or descending falls and is killed or hurt. But if a slave is pushed off a bridge or bank into a river and there drowned, the body of the person by pushing him may fairly be held to have caused his death.
§ 210. The lex Aquilia was a plebiscite carried by a tribune called Aquilius, according to Theophilus, at one of the secessions of the plebs, probably at the secession to the Janiculum, b. c. 287, on which same occasion the lex Hortensia was carried, making the plebiscites binding on the patricians. (See Grueber, Lex Aquilia, p. 183.)
The words of the first clause are preserved in the Digest: Qui servum servamve alienum alienamve quadrupedem vel pecudem injuria occiderit, quanti id in eo anno plurimi fuit, tantum aes dare domino damnas esto, Gaius in Dig. 9, 2, 2, pr. ‘If a slave, male or female, of another person, or a quadruped of his cattle is unlawfully slain, whatever was the highest value it bore in the previous year, such sum the slayer shall be condemned to pay to the owner.’ Cattle are animals that feed in flocks or herds, and include horses, mules, asses, oxen, sheep, goats, and swine, Dig. l. c. 2.
§ 212. The words Quanti ea res est, erit, or fuit occur in the condemnatio or last part of a formula when a defendant is bound to indemnify a plaintiff, that is, to pay him a certain value. These words have two meanings: they mean either (1) the value of a thing to the world in general, i. e. its selling value or market value, called verum rei pretium, or vera rei aestimatio; or (2) its value to this particular plaintiff, id quod interest actoris, or utilitas actoris; a value which might be either less or greater than the market value. Early law does not include more than the market value of the thing, but in course of time a wider view is taken of the plaintiff’s interest (Grueber. Lex Aquilia, p. 265).
Where a claim is founded on some kinds of contract, say a contract of insurance against some kind of loss, the market value of the thing lost is generally intended, though this of course depends on the nature and terms of such contract; in this case the loss of the plaintiff does not include the damages he has indirectly experienced (damnum indirectum) nor the gain he has failed to realize (lucrum cessans). When a claim of indemnification is founded on delict or on breach of a contract, if this is not contrary to the intention of the parties, the plaintiff’s interest is the measure of the indemnity to be paid, and includes not only the immediate damage that he has suffered, but also the mediate, when it was certain and capable of being foreseen; and not only the positive loss which he has suffered but also the gain which he has been hindered from realizing. If a creditor has been kept out of a sum of money, he will at least be entitled to the current rate of interest: but this is not the limit of his claim, if he can prove that the current rate of interest is insufficient to cover the specific disadvantage he has suffered from the Mora of his debtor.
The plaintiff’s interest is the measure of the damages he recovers by the Interdicts Uti possidetis, Utrubi, and Unde vi; as it is in all actions founded on delinquency. The actio vi bonorum raptorum, however, is one of the exceptions to the rule. Here, in consequence, probably, of the peculiar wording of the edict, the measure of damages, the simplum or unit to be quadrupled, is not the plaintiff’s interest but the market value, Dig. 47, 8, 2, 13, Savigny, System, Appendix 12.
Instances of indirect damages due to the act or omission of a defendant, are: the depreciation of the remaining horses of a team when one has been killed: the penal sum which a plaintiff is liable to pay from inability to fulfil another engagement in consequence of the default of the defendant: the sale of goods mortgaged by the plaintiff as security for another engagement which he cannot fulfil in consequence of the default of the defendant: the downfall of a house in consequence of the rottenness of the timber supplied by the defendant: the infection and extermination of a whole herd of cattle in consequence of a diseased beast being sold by the defendant.
Although in respect of computation of damages claims of indemnity founded on breach of contract, whether in consequence of dolus or culpa, may stand on the same footing as claims founded on delict; yet an important distinction was introduced by Justinian, who enacted that in the former case the damages recoverable by this computation of lucrum cessans and damnum indirectum should not exceed the double of the immediate value, hoc quod interest dupli quantitatem minime excedere, Cod. 7, 47; but left claims founded on delict without any similar limitation. In claims founded on breach of contract we may distinguish two obligations: the primary obligation as defined by the promise of the contractor, the secondary or sanctioning obligation produced by the non-fulfilment of the promise. According to the nature of the contract, this non-fulfilment will be either the non-performance of some service; or the non-delivery of some goods, movable or immovable; or non-delivery at the convenanted time or covenanted place; or negligent custody and consequent deterioration or destruction of some article deposited by the plaintiff; or eviction of the plaintiff from some property transferred to him by the defendant; or any other omission or non-feasance The secondary obligation of a defendant may be divided into two portions, one corresponding to the immediate value to the plaintiff of the fulfilment of the primary obligation, the other corresponding to his mediate or indirect losses occasioned by its non-fulfilment. The first portion may be regarded as principal, the second as accessory. Similarly the active obligation or claim of the plaintiff may be divided into two parts, principal and accessory. By the enactment of Justinian, in an action founded on contract, the accessory claim can never exceed the principal, or, in other words, the total claim of the plaintiff can never exceed in amount twice the value of his principal claim. In obligations arising from delict there is no primary obligation or principal claim capable of furnishing a corresponding unit of measurement. The primary obligation of the defendant is here a necessity of abstention which is not called by the Romans obligatio: and the primary right of the plaintiff is a real right, a right against all the world to freedom from molestation; which real right is not so definite or capable of exact valuation or appreciation as a personal claim. Accordingly the sanctioning right of the plaintiff in this case is left by Justinian without limitation or maximum; and the judex is directed to assess the amount of whatever damage the plaintiff has actually incurred.
The enactment of Justinian was probably suggested by the stipulatio duplae annexed to contracts of sale, whereby in case of eviction the purchaser was entitled to recover from the vendor twice the purchase-money. Vangerow, § 571.
§ 213. The owner of a murdered slave both had a civil remedy by the lex Aquilia, and could prosecute criminally under the lex Cornelia de sicariis, passed in the dictatorship of Sylla, b. c. 82.
§ 215. The lex Aquilia, like many other Roman laws, combined heterogeneous dispositions. The first and third chapters contain remedies for destruction of property, or jus in rem, that is, the injury of what is called in English law a chose in possession; the second chapter contains a remedy for the destruction of an obligation, or jus in personam, that is, the injury of what is called in English law a chose in action. The power of one promisee, the adstipulator, to extinguish by acceptilation the right of the other promisee, the principal stipulator, was a consequence of their Correality, § 110, comm. The remedy of the stipulator against the adstipulator, mentioned in the text, by actio mandati would not have been in existence at the time when the lex Aquilia was enacted.
§ 217. The terms of the third chapter are preserved in the Digest: Ceterarum rerum, praeter hominem et pecudem occisos, si quis alteri damnum faxit, quod usserit, fregerit, ruperit injuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto, Ulpian in Dig. 9, 2, 27 § 5. ‘For property, other than slave or cattle slain, damaged by burning, breaking, crushing, unlawfully, the value it bore in the thirty days preceding the offender shall be condemned to pay to the owner.’ The general meaning which the jurists gave to the word ‘ruptum’ is an early example of extensive interpretation.
§ 219. An action founded on the text of a law was called actio directa, an action not founded on the very text of the law, but granted by the praetor in the exercise of his judicial authority in circumstances which, though different, are similar to those which founded the direct action, was called actio utilis. The direct Aquilian action could only be brought by the owner (dominus) and when damage was immediately caused by a body to a body. If the damage was not caused by a body, or not by immediate contact, only the actio utilis could be brought. An actio utilis was brought in the following cases:
(1) When the Aquilian remedy was given to a person who was not owner but who had a jus in re aliena or was bonae fidei possessor.
(2) If the damage was not caused by a body, that is, not by immediate physical contact (damnum not corpore but only corpori datum).
(3) In a case of damage where neither the agent nor the patient was a body, i. e. physically affected (damnum neither corpore nor corpori datum).
(4) In a case of injury to a freeman.
There were three varieties of actio utilis:
(1) actio ficticia, 4 §§ 34-38;
(2) actions in which there was a variation in the persons named in the condemnatio from those previously named in the intentio, as in formula Rutiliana, 4 § 35;
(3) actio in factum concepta, 4 §§ 45-47.
It is probable that the utilis actio legis Aquiliae was generally in the form of actio in factum concepta, though the actio ficticia in jus concepta was sometimes used. Cf. 4 § 37.
The statement in the corresponding passage of the Institutes (4, 3, 16) that the actio in factum is to be distinguished from the actio utilis legis Aquiliae is probably erroneous. There is no trace of such a distinction in Gaius, and in the Digest the term actio in factum is used in all cases of extension of the statute. It is to be remembered that at the time of the compilation of the Institutes the formulary procedure, to which the terms actio utilis and actio in factum refer, had long ceased to be the practice. (Grueber, Lex Aquilia, pp. 199-208.)
The mode of growth of Roman law and the relation between directa Aquilia and utilis Aquilia may be illustrated by similar phenomena in English law, and the relation between the two forms of action called Trespass and Trespass on the Case. Trespass, which lies for injury to real or personal property or to the person, accompanied with violence, has a more extensive application than directa Aquilia, but viewed only as redressing injuries to personal property, is nearly coextensive in its range. The original scheme of actions, devised in comparatively barbarous times, contained no remedy for injuries where there is no act done but only a culpable omission, or where the act is not immediately injurious, but only by consequence or collaterally, or where the idea of force is inapplicable because the subject-matter is not corporeal or tangible, although the injury may be by act direct and immediate in its operation. To supply such deficiencies the statute of Westminster, 13 Edward I, had directed the clerks in chancery to frame new writs whenever the old scheme of writs contained no remedy for a wrong resembling in its features other wrongs for which a remedy was provided. Accordingly, a new writ of Trespass on the Case was framed upon the analogy of the old form of Trespass (confer, ad exemplum institoriae, § 162, comm.), applying to cases where the injury is not immediate, or the subject affected is not corporeal, or the agency is not bodily force. What Edward I directed to be done by the clerks in chancery, and what was done by the introduction of the action of Trespass on the Case, was exactly analogous to what the praetors did when, in virtue of their magisterial authority, they supplemented the civil law by the introduction of actiones ficticiae and actiones in factum. In respect of torts to personal property, the latter have nearly the same sphere as Trespass on the Case. The innovations of the praetor, however, were not confined to the region of torts to personal property, but pervaded every sphere and constituted a mass of supplementary law (jus praetorium), having to the remainder of the law (jus civile) somewhat similar relations and proportions to those which equity has to common law in English jurisprudence.
All attempts to reconstruct the formula in an action for damages under the lex Aquilia are to be regarded as highly conjectural. Lenel, Das Edictum Perpetuum, p. 158, suggests the following as a possible formula, when the action was brought adversus infitiantem in duplum, see § 216, 4 § 9. Si paret Numerium Negidium illum servum injuria occidisse, quam ob rem, quanti is servus in eo anno plurimi fuit, tantam pecuniam Numerium Negidium Aulo Agerio dare oportet, tantae pecuniae duplum, judex, Numerium Negidium Aulo Agerio condemna: si non paret, absolve. The actio confessoria may, according to Lenel, have contained the following demonstratio—quod ille servus occisus est, quem Numerius Negidius injuria se occidisse fassus est.
§ 220. Iniuria autem committitur non solum cum quis pugno puta aut fuste percussus uel etiam uerberatus erit, sed etiam si cui conuicium factum fuerit, siue quis bona alicuius quasi debitoris sciens eum nihil sibi debere proscripserit, siue quis ad infamiam alicuius libellum aut carmen scripserit, siue quis matrem familias aut praetextatum adsectatus fuerit, et denique aliis pluribus modis.
Inst. 4, 4, 1.
§ 221.Pati autem iniuriam uidemur non solum per nosmet ipsos, sed etiam per liberos nostros quos in potestate habemus; item per uxores nostras, quamuis in manu nostra 〈non〉 sint. itaque si filiae meae quae Titio nupta est iniuriam feceris, non solum filiae nomine tecum agi iniuriarum potest, uerum etiam meo quoque et Titii nomine.
Inst. 4, 4, 2.
§ 222. Seruo autem ipsi quidem nulla iniuria intellegitur fieri, sed domino per eum fieri uidetur; non tamen isdem modis, quibus etiam per liberos nostros uel uxores iniuriam pati uidemur, sed ita cum quid atrocius commissum fuerit, quod aperte in contumeliam domini fieri uidetur, ueluti si quis alienum seruum uerberauerit; et in hunc casum formula proponitur. at si quis seruo conuicium fecerit uel pugno eum percusserit, non proponitur ulla formula nec temere petenti datur.
Inst. 4, 4, 3.
§ 223. Poena autem iniuriarum ex legexii tabularum propter membrum quidem ruptum talio erat; propter os uero fractum aut conlisum trecentorum assium poena erat, si libero os fractum erat; at si seruo, cl; propter ceteras uero iniurias xxv assium poena erat constituta. et uidebantur illis temporibus in magna paupertate satis idoneae istae pecuniariae poenae.
Inst. 4, 4, 7.
§ 224. Sed nunc alio iure utimur. permittitur enim nobis a praetore ipsis iniuriam aestimare, et iudex uel tanti condemnat quanti nos aestimauerimus, uel minoris, prout ei uisum fuerit. sed cum atrocem iniuriam praetor aestimare soleat, si simul constituerit, quantae pecuniae eo nomine fieri debeat uadimonium, hac ipsa quantitate taxamus formulam, et iudex quamuis possit uel minoris damnare, plerumque tamen propter ipsius praetoris auctoritatem non audet minuere condemnationem.
Inst. l. c.
§ 225. Atrox autem iniuria aestimatur uel ex facto, ueluti si quis ab aliquo uulneratus aut uerberatus fustibusue caesus fuerit; uel ex loco, ueluti si cui in theatro aut in foro iniuria facta sit; uel ex persona, ueluti si magistratus iniuriam passus fuerit, uel senatori ab humili persona facta sit iniuria.
Inst. 4, 4, 9.
§ 220. Outrage is committed not only by striking with the fist or a stick or a whip, but by scandalous vociferation, or, though knowing that nothing is due to him, seizing and advertising for sale under an order of the praetor the goods of a person as if he were an insolvent or an absconding debtor, or by writing defamatory prose or verse, or by constantly following a matron or youth wearing the praetexta, and by many other modes.
§ 221. Outrage may be suffered not only in one’s own person, but also in the person of a child in our power, or of a wife though not in our hand. So that if you insult my daughter who is married to Titius, but has not passed out of my power into his hand, you are suable for outrage, not only in her name, but also in my name, and in the name of her husband.
§ 222. A slave cannot be outraged himself, but his master may be outraged in his person, not however by all the acts whereby he might be outraged in the person of a child or wife, but only by atrocious assaults, clearly intended to dishonour the master, for instance, by flogging the slave; and for this affront a formula is provided in the praetor’s album: but for verbal abuse of a slave, or striking him with the fist, no formula is provided, nor would an action be readily granted.
§ 223. The penalty of outrage in the Twelve Tables for a limb broken was retaliation (talio): for a bone broken or bruised three hundred asses, if the person injured was a freeman; one hundred and fifty, if he was a slave; for other injuries twenty-five asses: and in those days of excessive poverty such sums seemed an adequate reparation.
§ 224. The rule now in use is different: the plaintiff is permitted by the praetor to assess his own damages for the outrage, and the judex may either condemn the defendant in the whole of this sum, or in a lesser sum at his discretion Atrocious outrage, however, is generally for the praetor to estimate; and when he has once fixed the sum in which the defendant must give security to appear at the trial, the limit is fixed at this sum in the taxatio clause of the formula; and the judex, though he has the power of condemning the plaintiff in less, generally, out of deference to the praetor, will not venture to reduce the condemnation.
§ 225. Outrages are atrocious either by the act, as when a man is wounded, horse-whipped, or beaten with a stick; or from the place, as when an affront is offered in the theatre or the forum; or from the persons, as when a magistrate or a senator is insulted by one of inferior rank.
§ 220. Injuria in this chapter denotes not any wrongful or unlawful act, but contumelious wrong, wrong tending to degradation, a violation of the right to respect, honour, reputation; such as libel, malicious prosecution, assault and battery, and the like.
§ 221. If the husband were a filiusfamilias, the offender would be liable to a fourth action, on the part of the father of the husband. In each of these actions the damages might be different, being measured by the varying dignity of the party dishonoured by the outrage, § 225.
Outrage, like theft and robbery, and unlike damage under the lex Aquilia, requires dolus malus, or unlawful intent. In outrage, as in other delicts, the plaintiff had his option of proceeding civilly or criminally, Inst. 4, 4, 10.
Lenel, § 190, suggests the following as the formula of the actio injuriarum. Quod dolo malo Numerii Negidii Aulo Agerio pugno malo percussa est, qua de re agitur, quantam pecuniam vobis bonum aequum videbitur ob eam rem Numerium Negidium Aulo Agerio condemnari, dumtaxat HS . . . . , tantam pecuniam, si non plus quam annus est, cum de ea re experiundi potestas fuit, recuperatores, Numerium Negidium Aulo Agerio condemnato: si non paret, absolvito.
In the Roman law which was in force as the Common Law of German jurisprudence, till recently superseded by the German Civil Code, simply penal suits appear to have been obsolete, with the exception of Injuriarum (see on this subject Bürgerliches Gesetzbuch, or German Civil Code, § 823, &c.); and here the modern plaintiff has his election between pecuniary damages and an apology or revocation of the injurious utterance. An inquiry into the reason why the actio injuriarum alone has survived will illustrate the nature of simply penal suits. Their principal object, as already suggested, was to induce the aggrieved party to abstain from the remedy offered him in archaic society, self-redress or private revenge. In the case of other wrongs such inducement is no longer necessary. But in the case of Affront or Dishonour the effect of the modern code of honour has led the moderns even more than the ancients to prefer the archaic institution of Feud or private war, as embodied in the Duel, to an unromantic appeal to the public tribunals. Here, then, the inducement to abstain from self-help, which elsewhere is not needed, is still required.
Theft and Rapine are removed in the present day from the Penal branch of the Private code to the Criminal code; that is, are not punished at the discretion of a private plaintiff, but by the action of a public prosecutor. Savigny, Law of Obligation, § 84.
Gaius seems to have been misled by a double meaning of Injuria when he connects the actio Injuriarum with the redress given by the Twelve Tables for grievous bodily harm, § 223. There seems to be no necessary connexion between bodily harm and dishonour, although both may have been denoted in Latin by the word Injuria.
In actions on Delict more especially, Real actions differing in this respect from the liability of a defendant necessarily implies that he is convicted either of Dolus or of Culpa, unlawful intention or unlawful negligence, § 211.
The opposite of Negligence is Diligence, vigilance, attention, which, like Negligence, admits of an infinite variety of gradations.
Actions under the lex Aquilia, instituted to recover for unlawful damage, are subject to this rule that, when Culpa, that is absence of ordinary care, is once established, the amount of the defendant’s liability does not depend on its degree.
In actions founded on Dispositions, that is on Contract and quasicontract, the liability of the defendant may depend on the degree of his negligence. In most relations a man is bound to make good losses occasioned by slight negligence (culpa levis in abstracto), that is, is liable for lack of ordinary care or care taken by an average paterfamilias; in others he is judged by a somewhat lower standard, being only bound to take the same care of the property of another as he is accustomed to take of his own (culpa levis in concreto): in others again he is only made answerable for the consequences of gross negligence, culpa lata.
The terms, Gross and Slight, like other quantitative terms, have no positive signification until we fix upon some unit of measurement or standard of comparison to which any given instance may be referred and by which it may be measured. Two standards are frequently employed by the Roman jurists: the vigilant care (exacta diligentia) of a good man of business (diligens paterfamilias, homo frugi) and the care which a given individual habitually bestows on his own interests (suus modus, diligentia quam suis rebus adhibere solet). Slight negligence is the absence of the diligence of the careful man of business; gross negligence falls considerably below this standard. Diligence and negligence, when referred to the standard of the careful man of business, are sometimes called abstract or absolute; when referred to the habitual conduct of the individual in the management of his own affairs, concrete or relative.
The degree of diligence required of a man in any relation and the standard by which it is judged depends generally on the question whether he is benefited or not benefited by the relation. He who derives no benefit from it, e. g. the depositary and lender (commodator, e. g. where the borrower is thrown from a horse lent to him), is only answerable for dolus and culpa lata. On the other hand, the depositor (e. g. if the depositary is injured by an explosive deposited with him, without notice of its character) and the commodatarius are bound to show exacta diligentia. It would seem that Mandate (mandatum) forms an exception to this rule, for businesslike care (exacta diligentia) is required of the Mandatary (mandatarius), and the same rule applies to the negotiorum gestor; yet such agents, like the depositary, are strictly speaking unremunerated, though in later Roman law, as we have seen, the mandatary could often enforce payment of his honorarium by recourse to the cognitio extraordinaria of the praetor. But the real ground for imposing this liability no doubt is to be found in the confidential relation in which the mandatary stood to the mandator. Similarly, according to English law, strict diligence is required of Trustees, although they are unremunerated. The Roman Tutor and Curator, who were called on to fulfil a public function, were only bound to take the same care of their ward’s property as of their own.
He then who derives advantage from a contract or disposition is required to show businesslike care, and is responsible for abstract or absolute negligence (culpa levis in abstracto); nor does it matter whether he is exclusively advantaged by the relation, like the depositor and the gratuitous borrower for use (commodatarius); or whether both parties to the disposition derive a benefit from it, e. g. venditor, emptor, locator, conductor, mortgagor, mortgagee.
Exceptions to this rule, however, are to found in the cases of the partner (socius), the tenant in common (communio), the husband in respect of dotal property, the co-heir, the co-legatee. In these relations both parties have an advantage, and yet their diligence is only estimated by the relative standard: they have to show as much care as they show in their own affairs; not more, apparently, than the tutor or curator; not the absolute care of diligens paterfamilias.
The old trichotomist division of culpa into lata, levis, and levissima, is now generally abandoned, levissima disappearing, the opposition being between culpa levis, whether in abstracto or in concreto, and gross negligence, culpa lata, which is hardly distinguishable from dolus, or intentional wrong.
Under the head of Obligatio ex delicto should be placed, according to Savigny, the doctrine of possession (Interdict-possession), or, rather, of Dispossession, with its remedies, the Interdicts Utrubi, Uti possidetis, and Unde vi. This would agree with the Roman arrangement: at least the Roman jurists, instead of treating possession by the side of ownership, possession being the actual control of a thing as owner, while ownership is the legal right to such control, were content with regarding Dispossession as a ground of liability, imposing a secondary positive obligation on the individual dispossessor, 4 § 140, comm.
But the true place of Possession seems indicated by Vangerow, who distinguishes between the Interdicta Retinendae and Recuperandae possessionis. The Interdictum Recuperandae possessionis, i. e. Interdict Unde vi, is really based on something analogous to a delict, and might perhaps have been ascribed to delictal law: whereas Possession, as contemplated by the Interdicta Retinendae possessionis, i. e. the Interdicts Uti possidetis and Utrubi, is protected as if it were a primary right demanding universal recognition (jus in rem) that has its place in connexion with the law regulating Dominium: and the interdicts allotted for its protection, though perhaps nominally based on acts of a delictal character, are really co-ordinate not with delictal actions, but with Real actions or Vindicatio. Gaius only deals with Possession and possessory Interdicts as belonging to the code of Procedure, without indicating their position in the code of Substantive law.