OJorneU ICam i»rl|nal Htbratg Cornell University Library KJA 147.M53 1921 A manual of the principles of Roman law 3 1924 021 206 689 DATE DUE ^T*^ ImM. ^^^ «.?*»" i\'j MUkiaioi fT'™7™ -7-0—7— ( L ! CAYLORO PniMTEDlNU.* A. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021206689 THE PRINCIPLES OF ROMAN LAW A MANUAL OF THE PRINCIPLES OF ROMAN LAW RELATING TO PERSONS, PROPERTY, AND OBLIGATIONS WITH A HISTOEICAL INTRODUCTION" FOR THE USE OF STUDENTS R D. MELVILLE, K.C., M.A., LL.B. ADVOCATE OF THE SCOTTISH BAR ; PBOfBSSOK OF ROMAN LAW IN THE SULTANIC SCHOOL OF LAW, CAIRO ; JOINT- AUTHOR OP " A TREATISE UPON THE LAW OF ARBITRATION IN SCOTLAND," AND OF "BURGH GOVERNMENT IN SCOTLAND" THIRD EDITION EDINBURGH W. GREEN & SON LIMITED LAW PUBLISHERS 1921 /^ /r£^^ Printed in Great Britain at Tim DARIEN PEKSS, EDraBOEGH FOR W. Green & Son, Ltd. October 1921 PREFACE There are already in existence so many works upon Eoman Law of the highest erudition and authority that it seems necessary to offer some explanation of the appearance of the present volume. The purpose of this work is somewhat special. Far from seeking either to place itself alongside of, or to enter into rivalry with, the already recognised authorities upon the subject, it seeks rather to present the results of their critical erudition in a-^ieSi^^S Hi tprms free from techni- calities, and to expound the main principles of the matured Eoman Law relating specially to Persons, Property, and Obligations, but excluding the Law of Succession and Actions, in so far as these are the foundation of modern legal science, in a manner that does not involve as a pre-requisite a knowledge of the Latin language. In this respect the present work seeks to be an introduction to the study of law that will be available to the interested layman no less than to the would-be lawyer. By means of a succinct Historical Introduc- tion, and throughout the text, it has been sought to indicate the course of the development of the Roman legal institutions and principles, a knowledge of which is essential to the true appreciation of any legal system. This work has been prompted as the result of the experience obtained by the author during a number of years in lecturing to Egyptian students. The Egyptian Native Codes being based, in very large measure, upon the French Codes, a knowledge of the principles of Eoman Law is essential to the student of law in Egypt, who, however, suffers from the disadvantage that he has no knowledge of the Latin language. While it is, therefore, impossible to expound the subject to him either directly from, or by way of commentary upon the Latin texts, it is, at the same time, necessary to present to the student, in language that will be readily understood, a statement of the main principles of the Eoman Law in such a manner as will both compensate for his lack of a classical education and do fair justice to the subject. With this object in view, the subject is here expounded by a method of divisions and subdivisions, each of which is^ as far as possible, self- contained ; on which account, indeed, there may appear to be, at times, somewhat of. redundancy. For the sake of greater simplicity and vi PREFACE clearness, moreover, particular terms and expressions have been emphasised,.for the most part, by being put within inverted commas, and are frequently explained by exegetical synonyms; and as it has been impossible, of course, to avoid the use of a considerable number of Latin terms and expressions throughout the text, these are invariably either given in parentheses or explained by English equivalents — all which may appear somewhat superfluous to the ordinary British student. Although this work is primarily designed to meet the requirements of the Egyptian student of law (hence the frequent references to the French Civil Code and to French authorities) and of persons having little or no classical knowledge, it is by no means exclusively so in- tended ; and the author ventures to hope that it will be found useful to all students of Eoman Law, whosoever or wheresoever they may be. With this object there is throughout a full citation of the Latin texts, and other authorities, and under each particular matter dealt with reference is given to the literature upon the topic that is most generally available to the student and suitable for his purposes. In this way, and also by means of explanatory interpolations in the text, by footnotes, and by frequent cross-references, it has been sought to make the path of the student both more easy and more interesting : with this end in view, moreover, there is appended a list of works likely to be of use to him — many of which are cited in the text, while others, although not actually referred to, yet cast valuable sidelights upon the study of the principles of the Eoman Law, and are therefore recommended to the consideration of the more inquiring student. E. D. M. PREFACE TO THE THIRD EDITION The present edition has been carefully revised, but its general arrangement remains the same as in the two preceding editions ; such changes as have been made consist in such an amplification, modification, or rearrangement of the text and the notes as experience has appeared to the author to dictate, with a view to obtaining greater clearness, comprehensiveness, and accuracy. In order to facilitate study the cross-references throughout the notes to various parts of the book have been much increased, while there has been a consider- able addition to the notes generally, to the bibliography, and to the references to the French Civil Code. Part I. — the Historical Introduction — remains entirely self-con- tained and separate from the three other parts of the work, and each of its two chapters has the sections separately numbered. Throughout Parts II., III. and IV., however, the sections are numbered consecutively from 1 onwards, so that while the last section of Part II. is No. 65, the first one of Part III. is No. 66, and, similarly. No. 98 is the first section of Part IV. It is hoped that such changes as have been made in this edition will have the effect of increasing the usefulness of the work to the student of Koman Law, of the general principles of which the author has endeavoured to give, within the limits prescribed, a simple exposition, as free from Latin words and technicalities as seemed to him to be consistent with a due treatment of the subject. E. D. M. Cairo, Egypt, JvXy 1921. CONTENTS PART I CHAPTER I Historical Introduction Importance of the Roman Law as a Subject of both Legal and General Education — Various Divisions of the History of Roman Law — Distinc- tive Characteristics of each Period — The "Twelve Tables'' — Consolida- tion of the Roman Law by the Emperor Justinian — The " Gregorian '' Code— The " Hermogenian " Code— The "Theodosian" Code— The Corpus Juris Civilis of Justinian — Jits Vetios and Jus Novum — Original Sources of the Roman Law — Leges — Plehisdta — Senatus-Consulta — Prin- cipv/m Pladta — Edicta Magistratuum — Besponsa Prudentiv/m — The Roman Comitia or Assemblies — -Oomitia Curiata — Comitia Ce^ituriata — Gomitia Tributa — Consilium Plebis — Lex Valeria-Horatia — Lex Puhlilia Philonis — Lex Hortensia — The Jus Edicendi — The Praetorian Edict — The Lex Cm-nelia — Jits Honorarium — Jus Praetorium — Consolidation of the Praetorian Edict — The "Perpetual" Edict — The Praetorship — Lex Licinia — The "Urban" Praetor — The "Peregrin" Praetor — The "Provincial" Edict — The Lex Aebutia— The Curule Aediles— The "Aedilician Actions" — Rules of Law introduced by the Aedilician Edict — Interpretation as a Means of Development of the Roman Law — Jurisprudential Interpretation — Magisterial Interpretation — Pontifical Interpretation — " Jurisconsults " — Jics Respondendi — The " Veteres " — The "Classical Jurists" — The Jus Flavianum — The Jus Aelianum — Equity as a Means of Development of the Roman Law — Legis- lation as a Means of Development of the Roman Law — The Valen- tinianian "Law of Citations" — General Organisation of the Roman State — Its Social Organisation — Its Political Organisation — The Patricians — The Plebeians — The "Clients" — Effect of the Division of the Roman Empire upon the Subsequent Course and Development of the Roman Law — "Romano-Barbarian" Law — "Theodoric's Edict" — The " Romano-Burgundian " Law — The Roman Law of the Visigoths or "Alaric's Breviary" — " Graeco-Roman " and "Byzantine" Law — The Basilica — The "Hexabiblos" or Promptuarium — Effects of the Fall of the Eastern Empire — Revival of theKnowledgeandStudy of the Justinianian Law and Texts — Foundation of the School of Law at Bologna — The " Glossators " — Agencies by which a Knowledge of the pure Roman Law was Preserved in Italy — Corpus Juris Civilis of Justinian in Rivalry with Alaric's Breviary — The Justinianian Law becomes the Foundation of the Modern Scientific Study of the Roman Law. CONTENTS CHAPTER II Meanings of the Term Jus — General Definitions of the Roman Law — Justitia — Jurisprudentia — The "Maxima of the Law" — General Division of Law — Jus Publicum — Jus Privatum — Jus Gentium — Jus Naturale — Jus Civile — Jus Hcriptum — Jus non Hcriptum 57 PART II THE LAW EELATING TO PEESONS CHAPTER I Section 1. — Persons Generally CHAPTER II Caput and Status Sbct:on 2. — Caput and Status - 73 3. — Capitis Deminutio 74 4. — Capitis Deminutio Maxima 74 5. — Capitis Deminutio Media or Minor 76 6. — Capitis Deminutio Minimn 78 7. — Effects of Capitis Deminutio 79 8. — Existimatimiis Minutio — Infa'ni k< 80 CHAPTER III Legal Capacity Section 9. — Legal Capacity of Persons 83 10. — Limitation of Capacity by Sex 83 11. — Limitation of Capacity by Birth - 87 12. — Lawful and Unlawful Birth 87 13. — Capacity of Persons born of Parents of Unequal Status 88 14. — Limitation of Capacity by Age 89 (a) Capacity of Pupils 89 (6) Capacity of Minors 91 15. — Limitation of Capacity due to Mental Condition 93 (a) Incapacity due to Insanity and to Infancy 93 (6) Incapacity due to Impuberty and to Minority 94 (c) Incapacity due to Prodigality - -94 CONTENTS xi Section 16.- •Limitation of Capacity due to Special Circumstances PAGE 95 (a) Office ' 95 (6) Alienage 96 (c) Physical Defect 96 (d) Subjection to Potestas 98 (e) CelilDacy and Childlessness 99 (/) Infamy or Religion 100 CHAPTER IV Divisions of Persons Section 17. — General 102 (a) Gives and Peregrini 102 (6) Legal Disabilities of Peregrins 103 „ 18. — Roman Citizenship {Civitas) 106 (a) Acquisition by Birth 106 (6) Acquisition by Manumission 106 (c) Acquisition by Grant 107 „ 19. — How Roman Citizenship was Lost 108 CHAPTER V Slavery Section 20. — General 109 „ 21. — Constitution of Slavery - 109 {a) Slavery by Capture 109 (6) Slavery by Birth 109 (c) Slavery by Judicial Sentence 110 „ 22. — General Position of a Roman Slave 111 „ 23. — Manumission 116 (a) Voluntary, Formal, and Informal Manumission 117 (6) Involuntary Manumission 120 „ 24. — Effects of Manumission - 121 „ 25. — Restraints on Manumission 121 „ 26. — Relation of Patron and Preedman 125 „ ^1.—Colmi 127 CHAPTER VI The Roman Family Organisation Section 28. — Familia — Agnates — Cognates 129 „ 29. — Patria Potestas 132 „ 30. — How Patria Potestas was Created 132 „ 31. — Peculiitm of Filiusfamilias 135 {a) Profectitium 136 (6) Castrense 136 (c) Quasi-Castrense 137 {d) Adventitium 137 xii CONTENTS Section 32. — How Patria Potestas Terminated 138 33.— Adoption, Generally 140 (a) Arrogation 1^1 (6) Adoption, Specially 143 34.— Who could Adopt 145 35.— Effects of Adoption 146 „ 36. — Legitimation ■ 148 „ 37. — Marriage • 1^1 „ 38.— Requisites for Valid Marriage 157 {a) Physical Capacity - - 158 {h) Consent 158 „ 39. — Impediments to Marriage 161 „ 40.— Effects of Marriage 167 41.— Dowry {Dos) 169 42.— Varieties of Dos - 170 „ 43. — Modes of Constituting Dos 171 44.— Husband's Eights in the Dos ■ - 172 „ 45. — Devolution of the Dos 173 „ 46. — Donatio ante Nuptias 175 „ 47. — Gifts between Husband and Wife {Donationes inter virwm et uxoreni) 1 " „ 48. — Dissolution of Marriage . 180 (a) Death - 181 (6) Divorce 181 „ 49. — Restrictions upon and Effects of Divorce - 183 „ 50. — Concubinage {Conrvhinrjtvs) 184 CHAPTER VII Guardianship Section 51. — Guardianship Generally 187 „ 52.— Tutory {Tutela) 189 53.— Tutory of Pupils 190 „ 54. — Varieties of Tutors 191 (a) Testamentary Tutor {Tutor testamentarixis) 191 (6) Tutor-at-Law {Tutor legitimus) 192 (c) Tutor-Dative {Tutor dativv^) 193 „ 55.— Duties of a Tutor 194 „ 56.— Co-Tutors {Contutores) 197 „ 57. — Termination of Tutory 197 „ 58. — Tutory of Women {Tutela mvlierum) 198 59.— Curatory {Cura) - 200 60.— Who could be Curators - 201 „ 61. — Curatory of Minors 201 „ 62. — Termination of Curatory of Minors 205 „ 63. — Culpatory of the Insane and of Prodigals 205 „ 64. — Curator ad Litem - 207 „ 65. — How Guardians were Compelled to Perform their Functions Properly 208 CONTENTS xiii PART III THE LAW EELATING TO THINGS OE PEOPEETY CHAPTER I Classification of Things PAGB Section 66.— Things Generally 211 „ 67.— Divisions of Things 211 (a) Corporeal and Incorporeal Things 213 (b) Movable and Immovable Things - 214 (c) Consumable and Inconsumable Things 214 (d) Fungible and Non-Fungible Things 214 (e) Divisible and Indivisible Things - 215 (/) "Singular" Things {Res singulares) and "Universalities" of Things ( Universitates rentm) 216 ig) Res Mancipi and Res nee Mancipi 216 (A.) Things in Commercio and Things Extra Gommercium 217 „ 68. — Justinian's Classification of Things Extra Gommercium 217 (a) Common Things {Res Gomm.unes) - 218 (6) Public Things {Res PvMicae) 218 (c) Res Univ&i'sitatis 220 {d) Res A^ullius 220 CHAPTEE II Ownership and Possession Section 69.— Real Rights and Personal Eights 226 CHAPTER III Acquisition op Things Section 70.— Maneipatio 229 „ 71. — In Jure Gessio 230 „ 72. — Original and Derivative Acquisition Generally 231 „ 73. — Original Acquisition 232 (1) Occupation {Occupatio) 232 (2) Accession {Accessio) - 235 {a) Alluvion {Alluvio) 236 (6) Insula Nata 236 (c) Alvens Derelictus • 237 {d) Avulsion {Avulsio) 237 (e) Adjunction {Adjunotio) 237 (/) Confusion {GonfvMo) and Commixture {Commixtio) 240 {g) Specification {Specificatio) 241 „ 74. — Fructv/wm Peroeptio 243 „ 75^ — Derivative Acquisition 244 „ 76. — Singular and Universal Succession 245 PAGB xiv CONTENTS CHAPTER IV Tradition (Traditio) or Delivery op Propbrtt Section 77. — Constructive Delivery - - 247 CHAPTER V Prescription (Peabscriptio) Section 78. — Requisites for a Valid Prescriptive Title 252 79. — Effect of Interruption of Prescription 254 80. — When Prescription was Complete 254 81. — Accession of Time {Accessio Temporis) 255 82. — Prescription Lmi^issimi Temporis 255 83. — Prescription of Obligations and Actionable Rights 256 CHAPTER VI Donation (Donatio) Section 84. — Donation Inter Vivos 260 „ 85. — Donation Mortis Causa 262 CHAPTER VII Termination op Ownership 266 CHAPTER VIII " Real '' Riohts Less than Ownership ; Rights in the Property OP Another Person Section 86. — Servitudes Generally 267 „ 87.— Praedial Servitudes 269 {a) Rural Servitudes {Servitutes praediontm rusticoruni) 271 (6) Urban Servitudes {Servitiites praediorum urbanontm) 273 (e) Essential Characteristics of Praedial Servitudes - 276 „ 88. — Constitution of Servitudes 276 „ 89. — Extinction of Servitudes 277 (a) Renunciation 277 (6) Consolidation 278 (c) Circumstances Emerging and Extinctive of Servitudes 278 „ 90. — Personal Servitudes 278 „ 91. — Vsaiiuct (Usufr^lct^ls) 279 (a) How Usufruct was Constituted 280 (6) Rights of a Usufructuary 281 (c) Duties of a Usufructuary 282 (d) Termination of Usufruct - 283 CONTENTS XV PAnE Section 92. — Use ( Urns) 286 (a) Constitution and Termination of Usus 287 „ 93. — Habitation {HaUtatio) 287 „ 94. — Services of Slaves {Operae servorum) or of Animals {Operae animalium) 288 „ 95.^Juristic Persons and Personal Servitudes 288 CHAPTER IX Eights other than Servitudes over the Property of Another Person which fell short of Ownership Section 96. — Emphyteusis - 289 {a) Eights and Duties of the Emphyteuta 290 (6) Creation and Termination of Emphyteusis 291 „ 97. — S^iperflcies 292 PART IV THE LAW EELATING TO OBLIGATIONS CHAPTER I Obligations Generally Section 98. — General Nature of an Obligation 295 „ 99. — General Division of Obligations - 298 „ 100. — Civil and Praetorian Obligations - 299 „ 101.— Natural Obligations 300 • CHAPTER II Obligations arising out or Express Agreement (Ex contractu) IN General Section 102. — Pacta Vestita 306 (a) Pacta Adjecta - 307 (6) Pacta Praetoria 307 (c) Pacta Legitima 308 ,, 103. — Innominate " Real " Contracts 313 xvi CONTENTS CHAPTER III PAGE Obligations arising out of Implied Agreement (Quasi ex contractu) IN General - 316 CHAPTER IV Obligations arising out op Actual Wrongdoing (Ex delicto), and out of Circumstances Inferring or Resembling Wrongdoing (Quasi ex delicto) in General 318 CHAPTER V Essentials of a Valid Contractual Obligation Section 104. — Error or Mistake and its Effect upon Contractual Obligations 323 „ 105. — Voluntary and Involuntary Consent 326 CHAPTER VI The Promise in a Contract Section 106. — Qualification or Limitation of the Promise in a Contract 333 (a) Qualification of the Promise as to Time of Performance 333 (6) Qualification of Promise as to Place of Performance 335 (c) Qualification of Promise by a Condition 336 , 107. — The Time of Performance {Dies) 337 „ 108. — Fulfilment of a Condition in a Contract 338 „ 109. — Varieties of Conditions 339 (a) Resolutive Condition 339 (6) Suspensive Condition 340 „ 110. — Impossible and Illegal Conditions 340 „ 111. — Special Forms of Conditional Clauses in Contracts 341 {a) In Diem Addictio 34I (6) Lex Gommissoria - 343 (c) Emptio ad Oustum 344 {d) Pactum Displicentiae 345 (e) Prae-emptio 345 (/) Pactum de Retro-vendendo 345 {g) Pactivm, de Retro-emjindo - * . . 345 CHAPTER VII The Theory of Responsibility for Fault Section 112.— Fault {Cidpa) and Diligence {Diligentia) - 347 „ 113. — Constructive Fault , . 351 CONTENTS xvii CHAPTER VIII The "Ebal'' Contracts PAOE Section 114. — The Contract of Mutuum - - 353 (1) The Borrower's Liability under the Contract of Mutuum - 353 (2) The Borrower's Rights under the Contract of Mutuum - 354 (3) Special Restriction upon the Contract of Mutuum 355 (4) Special Form of Loan of Money {Pecimia trajectitia, Nauticum foenus) 356 „ 115. — The Contract of Commodate ((.-WmocfaJiMft) 357 (1) Duties of the Borrower {Commodatariii^) 358 (2) Duties of the Lender {Commodator or Commodans) 360 (3) Remedies of Borrower in Commodate 361 (4) Remedy of Lender in Commodate 362 „ 116. — The Contract of Deposit (i>«posttem) 362 (1) Risk {periculum) in Deposit 363 (2) Duties of the Depositary 363 (3) Special Forms of Deposit 364 (a) " Necessary " Deposit 365 (b) " Irregular " Deposit 365 (e) Sequestration 365 (d) Deposit under the Edict ^Vatttoe Caupones 366 „ 117.— The Contract of Pledge (Pigmis) 368 Disadvantages of Pignus 369 „ 118. — Hypothec (Hypothecd) 371 (1) Origin of Hypothec 371 (2) Advantages of "Hypothec" {Hypotheca) over Pledge {Pignus) 372 (3) Over what Kinds of Property Hypothec could be Granted 373 (4) Who Might Grant a Hjrpothec - 373 „ 119. — Mutual Rights and Duties in Pi^TOMS and ^Tj/joofAeca 374 (1) Creditor's Right of Sale - 376 (2) Creditor's Right of Retention 378 (3) Rights of Creditors amongst Themselves {Inter se) — Priority - 378 „ 120. — Tacit or Implied Hypothecs {Tacita Hypotheca) 379 (1) Tacit "General" Hypothecs 379 (2) Tacit " Special " Hypothecs 380 „ 121. — Termination of Rights under Pignus and Hypotheca 381 (a) Solution 381 (6) Sale 382 (c) Remission 382 {d) Confusion 383 (e) Destruction 3R3 (/) Prescription 383 xviii CONTENTS CHAPTER IX The "Consensual" Contracts PAGE Section 122. — The Contract of Sale {Emptio-venditio) 385 „ 123. — Essentials of the Contract of Sale 385 (1) Agreement of Parties 385 (2) The Price or " Consideration " {Pretium) 386 (a) Fixed in Money 386 (h) Definite 386 (c) Real - 386 {d) Sufficient ■ 387 (3) The Subject of the Contract oif Sale 388 (a) What could not be the Subject of Sale 388 „ 124. — Sale of Future Things (iJes /?sft Cf. Sohm, Inst. 29. ^ See upon the Praetorian Edict generally, and also upon the consolidated Edict, Muirhead, Roman Law, 238 et seq., 289-291 ; Moyle, Inst. 29 et seq. ; Sohm, Inst. 48 et seq. (3rd ed., 73-80) ; Ortolan, History of Roman Law, 194-198, and 253- 255. Various attempts have been made to reconstruct the Perpetual Edict from the quotations from the Julian edict embodied in the fragments of the writings of HISTORICAL INTRODUCTION 31 Section VI.^The Peaetorship The office of " Praetor " or supreme judge in the Eoman State was created during the period of the Republic, when, by the operation of the "Licinian" law {lex Licinia), in 367 B.C., the Consulship was thrown open to plebeians as well as to patricians. The functions of the Praetor were to exercise the supreme judicial duties previously performed by the Consuls, and by the Kings of Rome before them, in virtue of the imperium or supreme secular authority conferred upon them at the time of their election.^ The Praetor was practically a third consul, whose powers, however, were generally limited to the supreme administration of justice; he had the same imperium as the Consuls, except in military matters, and in the absence of both Consuls the Praetor administered the affairs of the State.^ The primary reason for the creation of the Praetorship, and at the same time the office of Curule Aedile,^ is generally considered to have been in order to retain in the hands of the patricians exclusively certain consular functions, when the lex Licinia oi 367 B.C. compulsorily admitted plebeians to the Consulship by enacting that one of the two Consuls must be a plebeian.* The lex Licinia was re-enacted in 342 B.C., and provided then, still further, that not only must one of the Consuls be a plebeian, but also that both Consuls might belong to that order. This re-enactment was brought about by the practical disregard of the terms of the statute of 367 B.C., and the continued election thereafter of patricians to both of the consular offices. The Praetorship did not long continue exclusively patrician, for in 336 B.C. plebeians became eligible for the office.^ The office of Praetor was an annual one, and the election to it was 7^ made by the Comitia GenturiataS' the commentators preserved by Justinian. In the views of Muirhead and of Moyle the most successful as well as most scientific eiforts are those of Lenal in 1883, and of RudoriT in 1869 (Muirhead, Roman Law, 291 ; Moyle, Inst. 50. See also Mackenzie, Roman Law, 16, note 2). ^ See the lex Gv/riata at p. 21, ante. 2 Muirhead, Roman Law, 228 ; Sohm, Inst. 48, note 1 (3rd ed., 74) ; Hunter, Roman Law, 34. ^ See Section VII., p. 'impost. * See Muirhead, tU supra, 228, and Hunter, Roman Law, 35, and ff. Moyle, Inst. 22. Moyle is of opinion that the office of Praetor was really in existence for sc(me time previous to the lex Licinia. ^ Within thirty years after the admission of plebeians to the Consulship they had been admitted to most of the supreme offices in the State — the Dictatorship in 356 B.C., the Censorship in 351 B.C., the Praetorship in 336 b.c. Previous to the passing of the Licinian laws the plebeians had already been admitted to the office of Military Tribune in 445 b.c, and to the Quaestorship in 421 B.C. The office of Pontifex Maximus was finally opened to them in 254 b.c. ^ See ante, p. 21. 32 HISTORICAL INTRODUCTION For about 120 years after the institution of the Praetorship there was only one Praetor who sat at Rome and administered justice amongst all persons there, whether Roman citizen or foreigner {peregrinus). Between 247 B.C. and 241 B.C./ however, a second Praetor was appointed, who became known as the Praetor Peregrinus in contradistinction to the Praetor ZJrianus. The creation of this new office was rendered necessary by the great increase in Rome's population, both citizen and non-citizen, and the great development of commercial relations between citizens and foreigners, which necessitated the legal recognition of the latter. The second Praetor was specially appointed to administer justice at Rome as between foreigners or "peregrins" (peregrini) amongst them- selves (inter se), and between foreigners and Roman citizens. This second Praetor was therefore styled, by reason of his special functions, the Praetor Peregriims or "Foreign" Praetor, whilst the original Praetor was distinguished as the Praetor Urbanus or " City " Praetor, whose functions were, thereafter, confined to the administration of justice at Rome, and the application of the strict jits civile in matters arising between Roman citizens only. Both Praetors were elected annually by the Comitia Centuriata, just as had been the procedure when there was only a single Praetor. The number of Praetors was increased as the Roman territories extended beyond Italy, and provincial praetors were appointed to administer different regions ; thus in 227 B.C. two praetors were appointed to administer the government of Sicily and Sardinia, and two more were appointed in 197 B.C. for the administration of the newly created Spanish provinces. Under the rule of Sulla, the Dictator, the number of praetors was increased to ten, and Julius Caesar raised their number to twelve.^ The " Urban " and the " Peregrin " Praetor both sat at Rome, ranking next to the Consuls, and of the two the " City" Praetor had precedence.^ The " Foreign " or " Peregrin " Praetor {Praetor Peregrinus), in the course of administering justice at Rome between foreigners inter se, and between foreigners and Roman citizens, was unable to apply the rules of the strict jus civile, because these rules were only applicable and 1 The exact date is uncertain. Muirhead, JRornan Law, 228. Hunter (Roman Law, 34) and Moyle {Iiut. 32) fix 247 b.c, but Muirhead does not commit himself to a precise date. 2 According to Muirhead the increased numbers of the Praetors were eight and sixteen respectively {Roman Law, 229). 3 Hunter, Roman Law, 34 ; Ortolan, History of Roman Law, 158. About 144 B.C., shortly after the establishment of the qiuiestiones perpetvae all the Praetors were detained in Rome, two of them as presidents of the civil courts the rest as presidents in the criminal courts (Hunter, v.t supra). HISTORICAL INTRODUCTION 33 competent to Roman citizens, or to those to whom the privilege of Roman citizenship had heen extended ; ^ and a foreigner or " peregrin " in the course of his commercial relations, whether with citizens or with other foreigners, was not entitled to use the forms of the, jus civile.^ The Praetor Peregrinus was thus, in the ordinary exercise of his functions, faced with the necessity of either devising or discovering general principles and rules of law that would be capable of applying equally to, and would be equally understood by, peoples of different countries doing business with each other, and which would do fair justice between them. ■ The " Peregrin '' Praetor, like the " City " Praetor, was in the habit of issuing a " general " Edict (edictum jperpetvAlm) ^ which, as promul- gated by him, constituted "a collection of legal rules which were found to be observed in common by all the peoples with whom Rome was acquainted."* These_ rules .came to bs_. known .as- the ^Ma^u:M«©/,an.cL the application of them in practice had, a profoundinfljienfteuupon .thfi 4§X^9PEQe,nt.,oi[^ the ,.Rx)man jurispqi.4gncei. !!jfei?. °??'gis.tra|e^buijt up, on the basis of mercantile usage, equity\^and. common sense, a body of^ rules fit to beapplied between persons _whose^ native., law was not t^^ same^^and ,t^^nrgthad& he,.. followed would naturally form -§,. precedent for the c ourts, ol-the proxiBsiai governors," ^ The Provincial Praetors also issued edicts, known collectively as the edictum provinciale and framed upon the lines of the Edict of the City Praetor,^ which are generally considered to have considerably influenced the development of the principles of the jus gentium in the edict of the " Peregrin " Praetor. The edict of the " Peregrin " Praetor, with its developed principles of the jus gentium, was gradually adopted by, and incorporated in that of, the "Urban" Praetor, and in that way its contents came to be binding as law upon Roman citizens amongst themselves {inter se). By the end of the Republican period the edicts of the " Urban " and of the " Peregrin " Praetor were practically identical.^ ' See an acquisition of Eoman Citizenship by Grant, joost, Part II., Section 18 (o), p. 107. ^ E.g., legis actio, mandpatio, sponeio, testamentwm, expensilatio. 3 See ante, p. 26. 4 Moyle, Imt. 34. ^ See post. Chapter II., Section IV., pp. 60-63. ' Bryce, Studies in History and Jurisprv,dence, vol. i., pp. 93-94. ' See upon this special point, Moyle's reference at p. 33 {Inst.) to Smith's Dictionary of Oreeh and Roman Antiquities, and Sohm, Inst. 56, note 12. 8 Cf. Sohm, Imt. 56, note 12. See, upon the Office of Praetor, Bryce, nt supra, vol. ii., p. 274 (Essay XIV.). 34 HISTORICAL INTRODUCTION / Both the Praetor Urbanus and the Praetor Peregrinus were enabled to legislate indirectly, and to influence directly the development of the Roman legal system by means of the provisions of the statute known as the lex Aehutia, from the date of the passing of which their activity may be considered to have commenced to become effective. Neither the pre- cise date 1 nor the specific provisions of the lex Aehutia are known, but its purpose seems to have been to authorise the Praetors to simplify the existing forms of process, or to substitute new ones in actions based on the jus civile, and to empower them to adapt existing remedies to altered circumstances, and to fashion new actions on the jus civile for the use of peregrins to whom the procedure of the legls actiones — few in number, formal in character, and based upon the narrow and exclusive early ^m* civile — was incompetent, and to protect claims well founded in equity but incompetent according to the strict law.^ The practical effect of the lex Aehutia, whatever were its specific provisions, was to supersede the old " actions of the law " ^ (legis actiones) by what is known as the " formulary " system of procedure, by means of which the Praetor, in the exercise of his judicial discretion, and in virtue of his imperium, formulated in writing the issue between the parties to an action before sending it to a judge (judex) for trial,* and directed the judge to condemn or acquit according as he should determine the facts. ^ Judged by its effects, the lex Aehutia must be regarded as one of the most important pieces of comitial legislation in the latter half of the Roman Republic.^ It was through the medium of the edict of the Peregrin Praetor, in the first instance, that the equitable principles of what was known as the jus gentium^ were introduced into the Roman legal system, profoundly modifying its character and extending its application. Section VII. — The Cueule Aediles The office of " Curule Aedile " is supposed to have been created about the same time as the establishment of the Praetorship.'' The office v?as originally open only to patricians, but ere long plebeians became equally eligible.* ' It is generally supposed to have been enacted about the time of the institu- tion of the Peregrin Praetorship. See, on that point, Muirhead, RoTtian Law, 230, note 3. 2 Of. Muirhead, Roman Law, 230, 231. 3 See upon the lex Aehutia and its effects, Sohm, IiM. 168-174 (c/. 3rd ed., 247 et seq.). * See ante, p. 28, note 4, and also post, p. 230 (Part III., Section 71), note 4, with reference to the distinction, in Eonian Procedure, between proceedings in jure and injudicio respectively. 6 Muirhead, ut supra, 230. s See post, p. 60 et seq. 7 367 B.C. * See ante, p. 31. HISTORICAL INTRODUCTION 35 At the time of the creation of the office of Curule Aedile there had already existed in Rome, since 494 B.C., plebeian magistrates, known as " Aediles " (aediles), exercising police jurisdiction under the authority of the Tribunes of the plebeians. They were originally entrusted with the special duty of preserving the tablets on which were inscribed the laws passed by the popular assemblies — the Comitia Centuriata and Comitia Tributa — and, after 446 B.C., the decrees of the Senate. After- wards their functions were extended, and they came to be regarded as independent magistrates. The two new patrician Aediles exercised functions analogous but superior to those performed by the plebeian Aediles, and they were styled " curule " Aediles {aediles curiles) or " superior " Aediles (aediles majores), whilst the original Aediles were, in contradistinction, styled " plebeian " Aediles (aediles plebeii)} The functions attached to the office of Curule Aedile were originally connected with the celebration of the great public games known as the ludi Bomani, in commemoration of the union of the two orders in the State ; but they came to be extended to the preservation of temples and amphitheatres, and to the regulation of matters connected with public order and public health, and with the maintenance and safety of public streets, spaces, bridges, and buildings, and the supervision of the public markets and the regulation of the public supplies of grain. In short, the functions of the Curule Aediles came to be extended to " all matters, whether connected with the public health, religion, morality, streets, buildings, or security of person and property, so far as they could be placed under the control of police." ^ The Aediles had a separate jurisdiction of their own, and a tribunal for the administration of matters peculiar to their office. In the exercise of their functions they were entitled to inflict fines by way of punish- ment for such offences as the hoarding of grain in time of scarcity, nuisances, improper weights, and unwholesome foods.^ The direction of the public games was, however, as Ortolan puts it,* the privilege which conferred the greatest distinction upon the office of Curule Aedile, and which came to be an essential part of it. " Rome already possessed its circus, where pugilistic encounters, com- bats, horse and chariot races, borrowed from the Olympic games of Greece, were celebrated. In their amphitheatres were to be seen the ^ See Ortolan, History of Roman Law, 123 ; Hunter, Roman Law, 43. 2 Moyle, Imt. 22. 3 Hunter, Roman Law, 42-44. Cf. Moyle, Imt. 22 and 408. See also on the functions of the Curule Aediles, Greenidge, Roman Public Life, 209 et seq. ■• Ortolan, History of Roman Law, 124. 36 HISTORICAL INTRODUCTION contests of gladiators and wild beasts, a bloody spectacle, but suited to the national taste. Theatres for dramatic representations were erected at a later period. These games served as the mea,ns of cele- brating public and private fetes, especially the funerals of 'the great. Every citizen was at liberty to offer a spectacle to the people, but in every case it must be under the supervision of the Aediles, who them- selves were compelled, at least once during the year, to present, at their own private expense, a public exhibition, and they took care never to fail in this, for nothing was lost by it, the presentation of an acceptable spectacle to the crowd being at all times a sure means of securing its suffrage." ^ The Curule Aediles, in common with the other higher Roman magis- trates, possessed the right of issuing authoritative edicts (jus edicendi\ The judicial functions of the Aediles were exercised chiefly in connec- tion with the regulation of the public markets ; and the most important provisions of the Edict of the Curule Aedile— known as the Jus AediliciiMn— dealt with sales in open market of slaves, horses, and cattle, and the legal duties of sellers exposing such forms of property for sale, and their liability for undisclosed defects.^ The commercial law of Rome, and especially the law relating to the contract of sale, was largely developed through the Edict of the Curule Aedile, and certain important rules of law owed their origin to the- Aedilician Edict. The Aediles in their Edict held that a warranty acainst undisclosed defects was implied in all contracts for the sale of slaves, horses, and cattle in the open market subject to their juris- diction, and they introduced through their Edict two new forms of action, known respectively as the actio redhibitoria and the actio quanti minoris or aestimatoria, for the enforcement of this warranty. These two new remedies are known generally as the "Aedilician Actions." ^ The actio redhibitoria had as its object the rescission of the contract because of the defect in the object of the sale, and the recovery of the purchase price, with interest ; this action was only competent, however, if brought within six months from the date of the contract. Thfr actio aestimatoria, or, as it was otherwise called, the actio quanti minoris, did not have as its object the rescission of the contract, but only sought to recover compensation for the undisclosed defect, the compensation being represented by a portion of the purchase price proportionate to- the defects disclosed. This action could competently be brought at any time within a year of the contract.* 1 Ortolan, History of Roman Law, 124. 2 Cf. Muirhead, Roman Law, 242. 3 Dig. xxi. 1,.21 pr. ; xix. 1, 13. See Moyle, Inst. 434; Sohru, Inst., 2iid ed.,. 310 (3rd ed., 400) ; Hunter, Roman Lavj, 505. See also " Contract of Sale " in The Law of Obligations, post, Part IV., Sections 122-130, p. 385 et seq., and specially Section 127 (2), p. 398, re Seller's warranty against undisclosed defects. 4 See also, besides authorities cited supra, Mackenzie, Roman Law, 237 ; Girard„ Manuel de Droit Romain, 551-554 (5th ed., 563-567). HISTORICAL INTRODUCTION 37 The implied warranty enforceable by the Aedilician actions was extended during the classical period, after Labeo,i to every kind of sale, and was no longer confined to sales of slaves, horses, and cattle. Besides the Aedilician actions, there were other rules of law introduced into the Roman system by the Aedilician Edict, such as an implied warranty against eviction in contracts of sale ^ and hire,* and a liability to a penal action for damage done through bringing dangerous animals on to a public road.* Section VIII. — Interpretation, Equity, and Legislation as Means of Development oe the Roman Law The crude, limited, and formal rules of the early Roman Law, as contained in the Twelve Tables, for the most part, developed gradually into the form they finally assumed in the Corpus Juris Civilis of Justinian by the three great general means of Interpretation, Equity, and Legislation. Interpretation, as a means of development of the Roman Law, assumed two forms: it was either "jurisprudential" or "magisterial." The magisterial interpretation was effected through the medium of the Praetorian Edict.^ The "jurisprudential" interpretation passed through several clearly marked stages,^ but it was originally entirely in the hands of the College of Pontiffs, a patrician body that possessed the exclusive right of giving an " interpretation " (inferpretatio) of the existing law. Up to the time of the publication of the Twelve Tables,' in 449 B.C., the law consisted almost entirely of unwritten customs, largely partaking of a religious character. The knowledge of these customs was the exclusive possession of the College of Pontiffs, to the members of which ' Moyle, ut supra, 435. Marcus Antistius Labeo was the supposed founder of the " Proculian " school of law, which for about two centuries was in its views the rival of that known as the " Sabinian " school. Labeo lived in the Early Empire during the reigns of Augustus and Tiberius, and was a jurist of great eminence and authority, whose writings were largely quoted in the Digest. His actual dates are supposed to have been from circa 54 B.C. to 17 a.d. (Clark, History of Roman Private Law, pt. i., Sources, p. 107). See upon the " Proculian " and " Sabinian " schools of law, Muirhead, Roman Law, 296-298 ; also Moyle, Inst. 52 ; Sohm, Inst. 64, 65 (3rd ed., 94-98) ; Eoby, Introduction to Justinian's Digest, ch. iv. ; Eoby, Roman Private Law, i. 15. 2 ^e&post, p. 396, Part IV., Section 127 (1), "Seller's duties." ^ See p. 408, Section 134, re the Letter's warranty against eviction in the contract of Hire. * Justinian, Inst. iv. 9, 1. Cf. Moyle, Lut. 577, 578. See also Part IV., Section 156, Damnum, p. 451, and specially pp. 457-458. ^ See ante, p. 26 et seq. " See^o«it, p. 39. ' See ante, p. 7 et seq. 38 HISTORICAL INTRODUCTION it was transmitted orally and with the strictest secrecy, as was also the knowledge of the forms of action and procedure based upon these customs, and of the days upon which it was competent or incompetent to transact judicial business. The effect of the promul- gation of the Twelve Tables was undoubtedly to give a certain definiteness and publicity to the law, which until that time had been uncertain in its terms by reason of the jealous privacy in which its knowledge was preserved; but, nevertheless, the exclusive knowledge and right of interpretation of the law continued to be possessed by the College of Pontiffs for more than a hundred and fifty years after the publication of the Twelve Tables, as well as the custody . of the Tables themselves, until circumstances led to the secularisation of the interpretation of the law ^ by the growth of a class of professional lay jurists, who publicly professed a special knowledge of the law and of its forms, and held themselves out as prepared to give information and advice upon legal matters to any of the public who might choose to consult them.2 Such persons were known as "jurisprudents" (Jurisprudentes) or "jurisconsults" (jurisconstdti), but their opinions originally possessed no authoritative or binding legal effect, and were of value only in proportion to the eminence of the particular jurists who gave them. In the Early Empire, however, the Emperor Augustus instituted an important change which very greatly altered the position of the "jurisprudents," by conferring upon a limited number of specially eminent jurists what was known as jus respondendi ex avMoritate princijns, or the right of giving " responses " {responsa) or opinions that should be regarded by both judges and private persons as bind- ing, and as effectual as if emanating from the Emperor himself.^ Besponsa 'prudentium, as a source of the Roman Law,* thus signified the replies or opinions of those eminent jurists specially authorised during the Early Empire to publicly interpret the law and to give authoritative opinions upon legal points of doubt or difficulty.^ ' See post, p. 42, for the nature of the special circumstances which brought about the secularisation of the interpretation of the law. 2 Cf. Muirhead, Roman Law, 246. ' Dig. i. 2, 2, 48-50. Upon the circumstances leading to the institution of the special grant of the jus responderidi see Muirhead, Roman Law, 292 ; Moyle, Institutes of Justinian, 57 ; Sohm, Institutes of Roman Law, 63 (3rd ed., 93) ; Poste, Institutes of Gaius, 4th ed., Introduction, s. 18. The account given by Pomponius, as quoted in the Digest (i. 2, 2, 48-50), has given rise to some doubt as to whether Augustus or Tiberius is entitled to the credit of the introduction of the jus respondendi ; see Muirhead, tit supra. * See ante, p. 19, Section IV., " Original Sources of Eoman Law." 5 Justinian, Inst. i. 2, 8 ; Gaius, Inst. i. 7. The official " responses " {responsa) of the patented counsel required, in order to be authoritative and as a safeguard HISTORICAL INTRODUCTION 39 The grant of this special patent, however, and the creation of a class of "patented counsel," did not in any way affect the right of other jurists to give advice upon the law, but such unauthorised opinions possessed no binding character. The development of the Roman legal system by means of Inter- pretation at the hands of jurists passed through three clear stages which have been styled (1) the esoteric phase; (2) the phase of secularisation; and (3) the phase of systematisation.^ During the first of these phases the knowledge of the law was the secret monopoly of a small caste represented by the College of Pontiffs, and the pontifical interpretation and Jurisprudence partook, for the most part, of a religious and mysterious character ; and it was, moreover, not infrequently applied in the interests of the class to which the inter- preters belonged.^ The second phase of interpretation — that of secularisation — is characterised by the diffusion of a knowledge of the law through the growth of a body of secular jurists who superseded the priestly caste in the function of interpretation of the law. The third phase — that of systematisation — is marked by the attempt to express the whole body of law and legal rules in a systematic form and classification by means of treatises and commentaries written by distinguished jurists. The phase of systematisation may be regarded as commencing with Q. Mucius Scaevola, Pontifex Maximus, who was Consul in 95 B.C., and the most distinguished of • all the Veteres or earlier jurists who pre- ceded the period of what is known as the "classical jurisprudence.'' About 100 B.C. Scaevola wrote a treatise upon the Jus Civile in eighteen books, which was the first attempt to set forth the law in a systematic order. There had already been published, about a hundred years pre- viously, the Tripertita of Aelius Paetus, but this work was in no sense systematic.^ Scaevola was the first juristic writer who attempted to systemati- cally define the various legal institutions and their various forms and relations.* Corresponding to the three phases of the development of the Roman Law by Interpretation as just explained, the Jurists who interpreted against forgery, to be in the writing and under the seal of the jurist, and to have direct reference to the particular case actually under litigation. Muirhead, Roman Law, 293. Cf. also Moyle, Inst. 58 ; Paste, Institutes of Oaius, 4th ed.. Introduc- tion, s. 18. ^ Moyle, Inst. 42. ^ Cf. Sohm, Inst. 59 (3rd ed., 88 et seq.) ; Poste, Institutes of Oaius., 4th ed., Introduction, a. 14. 5 See post, p. 42. " See Sohm, Inst. 61 (3rd ed., 91) ; Moyle, Inst. 45. 40 HISTORICAL INTRODUCTION the law may be ranked in three great divisions, namely (1) the Pontiffs and the earliest lay jurists ; (2) the " Veteres " ; and (3) the " Classical Jurists." (1) The Pontiffs and the earliest lay jurists professed to interpret the strict jMs civile as expressed in the Twelve Tables and in subsequent legislation. (2) The " Veteees " were those lay jurists who succeeded the period ■of the pontifical interpretatio of the Twelve Tables, but preceded the period known as that of the " classical jurisprudence." The "Veteres," like the Pontiffs, professed to interpret merely the Twelve Tables and subsequent legislation, but in so doing both they and the Pontifices undoubtedly read into the rules of the early strict jus civile much that was not originally there, in order to adapt the existing law, by their interpretation, to the conditions and requirements of an advancing state of society, and to circumstances and cases not originally contemplated by the law. At the same time they sought to avoid an apparent violation or departure from the strict letter of the law, and this was mainly effected by the employment of what are known as "legal fictions," which have been defined as being, in the widest sense, " any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified." ^ ' Maine, Ancient Law, 26. The principalform assumed by the "legal fiction" in the Roman Law was the application and adaptation of old and familiar procedure, with a new significance in order to meet new requirements of the law. Examples of such an employment of fictions were the use of "the forms of the old process of mancipatio to effect both the emancipation and the adoption of a filiusfatrdlias ; also the fictitious coeTOpiioyJrfitctae catisd, and the various juristic acts introduced into the Roman legal system through the medium of the fictitious process of in jure cessio (see Part III., Section 71) for such purposes as manumission, emancipation, adoption, transfer of ownership, creation of servitudes, assignation of an inheritance, or assignation of the legal tutory of women {tutela legitima mulierum). Another form frequently assumed by the legal fiction in the Roman Law was that of aii assumption of something as true which in fact was known not to be true, as in the case of such fictitious actions (aetimies Jictitiae) as the " Publician " (actio Fubliciana), the " Pauliah " (actio Fauliana), the " Servian " (actio Serviana), and the " Rutilian " (actio Rutiliana), and those fictitious actions available against aliens that were introduced by the Praetor in his Edict on the fiction that the aliens were really Roman citizens, and the actions available against persons who had undergone capitis deminutio that were based on the fictitious assumption that no capitis deminutio had taken place (see Gaius, iv. ,34-37 ; Muirhead, Roman Law 339 and 252 ; Poste, Institutes of Oaius, 471-474 ; Muirhead, Iiutitutes of Gaius, 285 et seq.). Still a third form assumed by the legal fiction in the Roman Law was that of the doctrine of the identity of the persona of the deceased in that of his heir, and the doctrine of universal succession. See also upon the employment of fictions in the process of interpretation and extension of the law, Sohm, Inst. 27-38. HISTORICAL INTRODUCTION 41 The necessity for such an " interpretation " of the law at the hands of the pontifices and jurisprudents, and for the employment of legal fictions in so doing, arose from the fact, due to the inherent conservatism of the Romans, that the Twelve Tables were always regarded as the statutory source and foundation of all Roman Law, and, as such, unalter- able in its terms. 1 This belief in the fundamental and permanent authority of the Twelve Tables subsisted until the final development of the law in the form of the Corpus Juris Civilis, although by that time the original structure was completely altered in character and quite unrecognisable. The influence of the "Veteres" upon the development of the Roman Law was mainly indirect, through the medium of the Praetorian Edict and magisterial interpretation. The period of " interpretation " in the strict sense, as signifying the extension of the application of the strict jus civile as contained in the Twelve Tables, embraces the later centuries of the Roman Republic. (3) The Classical Jurists, so-called, were certain eminent jurists who lived between the reign of the Emperor Hadrian and the middle of the third century of the Christian era from whose writings the Digest and the Institutes of Justinian are mainly compiled. The Classical Jurists represent the matured " scientific " Roman jurisprudence, and they are "generally consi(^ered to have comprised the jurists Salvias Julianus, Pomponius, Gaius, Papinian, Ulpian, Paul, and Modestinus.^ Modestinus died about 244 a.d., and with his death the development of the Roman Law by direct juristic interpretation ceased abruptly, and a general decline of Roman jurisprudence immediately set in. There- after the development of the law proceeded mainly by legislation in the form of Imperial "constitutions." The practice of granting the jus respondendi was discontinued about the reign of the Emperor Diocletian, and from that time the place of the responsa of patented counsel was taken by Imperial " rescripts." ^ The Classical Jurists interpreted the newer law of the consolidated Praetorian Edict, just as the Pontifices and the " Veteres " or earlier jurists had interpreted the old law of the jus civile as contained in the Twelve Tables, and by their scientific "new interpretation"* and 1 Gf. Sohm, Imt. 28, 29 (3rd ed., 54). " In the Twelve Tables Roman Law had to a considerable extent received the form of a lex." 2 Some writers include amongst the Classical Jurists P. Juventius Celsus, who lived in the reign of Domitian, was Praetor in 106 a.d.. Consul for the second time in 129 a.d., and wrote a Digesta in thirty-nine books, and is frequently cited directly in Justinian's "Digest. (See Clark, Roman Private Law, pt. i. 115 ; Sohm, Inst. 66 (3rd ed., 97).) 3 Sohm, iTist. 71, s. 15 ; 79, s. 16 ; 83, s. 17. 4 Sohm, Inst. 72, s. 15 (3rd ed., 101). 42 HISTORICAL INTRODUCTION application of the developed principles of the jus gentium ^ and of the jus naturale^ and in virtue of the quasi-legislative power involved in the possession of the jus respondendi they largely and directly influenced the development of the Roman legal system.^ " The great bulk of the Roman Law, and all that is most valuable in it, is due to the activity, of the jurisconsults, down to the end of the second century of the Christian era." * It is in the sphere of the law of obligations that the interpretation of the classical jurists bore its finest fruit ; within that region alone they reared up a system so comprehensive and so equitable as to constitute in substance and in form a permanent memorial to their labours, and which has given to the Roman Law its universal character and its lasting influence.^ The secularisation of the interpretation of the law and the super- session of the pontifical interpretatio by the " responses " (responsa), or opinions of lay jurists (jprudentes), began in 304 B.C. with the publication of what is known as the Jus Flavianum, This was a collection of the various forms of legal process — the proper formulae of the " actions of the law " (legis actiones *) in the shape which they had assumed in the course of the secret and sacred pontifical interpretation — and an enumeration of the dies fasti and nefasti, or a calendar of those Court days upon which legal business could or could not competently be transacted. This collection derived its name from Gneius Flavins, the son of a freedman who was secretary to Appius Claudius Caecus. He obtained — it is generally believed to have been by questionable means '' — the record of the actions of the law and their special forms which his master Claudius Caecus had already prepared about 300 B.C., and made it public.^ About a century later {circa 200 B.C.) Sextus Aelius Paetus, who was .then Curule Aedile, and who two years later (198 B.C.) became Consul, published a collection of the law in three parts, for which reason it was styled Commentaria Tripertita, which contained the 1 See post, Chapter II., Section IV. (1), p. 60. 2 See post, Chapter II., Section IV. (2), p. 63. ' Cf. Muirhead, Roman Lavj, 292 ; Sohm, Inst. 75, s. 15. * Hunter, Roman Law, 55. ^ On Interpretation generally, see Muirhead, Roman Law, 243-248 ; Sohm, Inst. 30-38, 59-66 (3rd ed., 55-64, 88-104) ; Ppste, Institutes of Gains, 4th ed.. Introduction, xixvii. a. 14. " On legis actiones see Muirhead, 172 et seq. ; Gains, Inst. iv. ss. 10-29 ; Poste, Institutes of Gains, 454 et seq. ' Pomponius, Dig. i. 2, 2, 7 ; Livy, ix. 46. But cf. Muirhead, 246, where this view is not held. 8 Dig. i. 2, 2, 7 ; Livy, ix. 46. HISTORICAL INTRODUCTION 43 Twelve Tables, their pontifical interpretation, and the formulae of the " actions of the law " {legis actiones). This collection is known as the Jus Aelianum} Between the publication of the J%s Flctvianum and the Jus Aelianum Tiberius Coruncanius, the first plebeian Pontifex Maximus, who became Consul in 280 B.C., had about 254 B.C. professed himself willing to give information and advice upon the law to any of the public, and he was the first public professor of the jus civile.^ These circumstances — the publication of the J^ls Flavianum and of the Jus Aeliamcm and the public profession of the law instituted by Tiberius Coruncanius — led to the termination of the exclusive monopoly of knowledge and interpretation of the law previously enjoyed by the College of Pontiffs, and " we have the first beginnings of a system of public legal instruction, and, as its necessary consequence, a juristic literature." ^ Thereafter the technical knowledge of the law gradually passed from the pontifices to the class of professional lay jurists known as "jurisprudents" (jwnsprudentes) or "jurisconsults" {jurisconsulti), and the interpretation of the law then definitely passed from the esoteric stage to that of secularisation. Functions of a Jurisconsult. — The functions of a jurisconsult were summarised by Cicero * as respondere, cavere, agere, and scribere. The preponderance of opinion as to the signification of these terms is that respondere signified the giving of opinions upon particular matters of actual litigation involving doubt or difficulty ; cavere signified the ' Muirhead, Roman Lav), 247, note 12 ; Hunter, Roman Law, 54 ; Justinian, Dig. i. 2, 2, 38. Sohm seems to consider that the Jus Aelianum strictly so called was a mere collection of the formulae of the actions of the law in the shape given to them by pontifical interpretation, whilst the Commentaria Tripertita was a more ambitious work, in respect that it professed to offer a commentary or explanation of the Twelve Tables, and of the pontifical interpretation of them. According to Sohm the Tripertita represents the first attempt to set forth the pontifical ju^ civile in a literary form — " in the form, it is true, of mere explanatory or exegetic notes, but, nevertheless, a book — the first book dealing with law,'' and hence styled by Pom- ponius "the cradle of juristic literature" (Sohm, Inst. 60, s. 15 (3rd ed., 90)). 2 Dig. i. 2, 2, 38 ; Muirhead, Roman Law, 247. ^ Sohm, Inst. 60, s. 15 (3rd ed., 90). The earliest collection of the Roman Law is considered to be the Ju^ Civile Papirianum. This was, according to Pomponius {Dig. i. 2, 2, 2), a collection of leges regiae, or enactments of the regal period pf Rome's history, made by one Sextus Papirius in the reign of Tarquinius Superbus (see Moyle, Inst. 2 ; Hunter, Roman Law, 1). Sohm and some other authorities, however, think that the Jus Papirianum was probably a private collection of rules of a more or less religious character dating back to the regal period but compiled about the close of the period of the Republic (Sohm, Inst. 28, s. 11, and note 2 (3rded., 54)). * De Orat. i. 48 ; Pro Murena, ix. 19. 44 HISTORICAL INTRODUCTION protection of the client's rights by advising as to preliminary procedure and the preparation of an appropriate formula for an action ; agere signified the conduct of a case in court before the judge or magistrate ; scribere is supposed to have signified, in a strict sense, the preparation of legal documents, and to have been extended, in a general sense, to comprise the composition of legal works and treatises.^ The functions of a Roman furisconsult, however, were not entirely confined to the sphere of litigation, but extended to all matters of a business nature involving skilled legal knowledge and assistance, such as, for example, as instanced by Cicero,^ on the occasion of the marriage of a daughter, or the purchase of an estate, or the cultivation of a field. Equity as a means of development of the Roman legal system V7as subsequent to the period of pontifical interpretation and that of the " Veteres " or earlier jurists. The principles of Equity were chiefly applied and developed in the form of magisterial interpretation by the Praetor in his Edict under the influence of the jus gentium^ and the conception of the jus naturale ; * but they were also developed, although in a much lesser degree, by those other higher Roman magis- trates who possessed, in virtue of their offices, the right of issuing authoritative edicts {jus edicendi). The influence of the Praetor upon the development of the Roman Law, although indirect, was yet more direct than that of the jurists by reason of the quasi-legislative power involved in his imperium? Legislation as the principal means of development of the Roman Law succeeded both Interpretation and Equity, which in the Imperial period were themselves superseded by direct law-making on the part of the Emperor, there being by that time no longer any necessity to conceal the changes made upon the law by the employment of a specious interpretation or of elaborate fictions. The Valentinianian Law of Citations (426 a.d.) This was the last and the most important of several attempts made at different times to reconcile, by legislative means, the conflicting ' See Hunter, Roman Law, 54, 55 ; Sohm, Inst. 62, s. 15 ; and cf. Moyle, Inst. 45, and note 3. Moyle attributes to cavere the strict signification generally ascribed to scribere, namely, the preparation of technical legal documents ; and, following Kruger {Geschichte des Horn. Rechts, 50), supposes that scribere signified the giving of written advice to clients and judges ; whilst to agere he gives the signification of the taking of the formal steps required for the bringing or defending an action, which is the meaning usually ascribed to cavere. 2 Cicero, De Orat. 3, 33. 3 See Chapter II., Section IV. (1), p. 60. * Chapter II., Section IV. (2), p. 63. 5 'See ante, p. 31. HISTORICAL INTRODUCTION 45 opinions of authorised jurists. The Emperor Hadrian had attempted to solve the difficulty by enacting that the opinions {responsa) of the authorised jurists, when unanimous, should be binding as law, but where the jurists differed the judge might exercise his discretion in the selection of an opinion. In the course of time the difficulty of reconciling conflicting opinions increased, notwithstanding the enactment of Hadrian, owing to the practice, which had become established, of regarding the general legal writings of jurists possessing the jus respondendi as themselves consti- tuting authoritative law — i.e. jus — in place of the original law in the form of leges, senatus-consadta, or edicta. It was accordingly sought to remedy this difficulty by limiting, by legislative means, those legal writings which should be regarded as authoritative. The Emperor Constantino, in 321 a.d., enacted that the " Notes " of Ulpian and of Paul upon the writings of. Papinian, whose pupils they had been, should possess no authority. In 327 a.d., however, owing to the discredit thus cast in the popular mind upon the general works of Paul and of Ulpian, the Emperor Constantino expressly granted authority to the independent writings of Paul, and, in particular, to his " Sentences " (Sententiae). The legal authority of the jurists continued in that position for about a century thereafter, until, in 426 a.d., a more detailed and decided attempt to determine the authority of the jurists and to finally solve the difficulties of their citation was made in the form of a law enacted by Theodosius II. and Valentinian III., which is generally known as the " Valentinianian Law of Citations." ^ This statute con- firmed and made permanent the authority of the writings of Papinian, Paul, Gaius, Ulpian, and Modestinus, and also the opinions of other jurists quoted with approval by them, provided the quotation was verified by the original text; when the opinions differed the judge was to be bound to follow the opinion of the majority; if opinions were equally divided the opinion of Papinian was to prevail if there was one by him upon the point, but otherwise the judge (Judex) was to be entitled to exercise his discretion in the selec- tion of an opinion. The invalidity attached to the " Notes " of Paul and Ulpian by Constantino in 321 a.d. was, at the same time, re-enacted. This "Law of Citations" of Valentinian III. is noteworthy as marking, in the words of Sohm,'^ "the completion for the time being of that development which had commenced with the responsa of the 1 See, for the text, Theodosian Code (Cod. Th.), i. 4, 3. 2 Sohm, Institutes of Roman Law, 85, s. 17 (3rd ed., 119). 46 HISTORICAL INTRODUCTION old pontifices and the jus respondendi of Augustus." It ofiBcially fixed the limits of classic legal literature. The Digest of Justinian was, rather more than a century later (533 A.D.), compiled from the writings of the jurists who had been authorised by the Valentinianian Law of Citations, but the compilers were not bound to defer to the opinion of any particular jurist, or to give preference to the opinion of a majority ; on the contrary, they were directed to make selections from the writings of the authorised jurists entirely upon grounds of what they considered intrinsic merit; the pre-eminent authority of Papinian was not insisted upon ; and the " Notes " of Ulpian and Paul, and also of Marcian upon Papinian, which had been invalidated by Constantine, were expressly included within the sources from which the compilers were to be entitled to draw their materials.^ « Section IX. — General Organisation of the Roman State The Roman State {Civitas Roraana) was, in its social organisation, what is known as " patriarchal," in which the family or the household, and not the individual person, is the unit of the State. The head and representative of the family was the paterfamilias, or " family father." He originally possessed an absolute legal authority over both the persons and the property of all who were subject to his paternal power, which was known as patria potestas, but which became, in course of time, much restricted.^ The paterfamilias alone within the limits of the family possessed any legal rights, and he was the sole judge of the conduct of its members and the high priest of the family in the celebration of its peculiar sacred rites. Originally only patricians could be members of a Roman Family (familia) and of a Roman gens, which latter was an aggregation of several families or households the members of which were more or less closely related, and who claimed descent from a common male ancestor bore a common family name, and had common peculiar family rites and religious observances. An aggregation of gentes or clans formed a curia or ward or parish. The members of a gens were known as gentiles and those of a curia were styled curicdes. The Comitia Curiata was an assembly of the curiales as a legislative body, and was the earliest of the Roman popular assemblies.^ 1 See upon the " Law of Citations," Muirhead, Roman Law, 362 et seq. ; Hunter, Roman Law, 69 and 78, 79 ; Walton, Historical Introduction to the Roman Law, 148 et seq. (2nd ed., 293) ; Moyle, Institutes of Justinian, 66 et seq. ; Sohm, Institutes of Roman Law, 84 (3rd ed., 118) ; Poste, Institutes of Gaius, 4th ed. 10. 2 See post. Part II., under " Law of Persons," Patria Potestas, Section 29, p. 132. ' See on the various Cmnitia, ante, p. 20. HISTORICAL INTRODUCTION 47 The Roman State was a federation of gentes or clans, just as a gens was an aggregation of several familiae or households. The family or household proper that was subject to the potestas of the paterfamilias included (1) all the latter's legitimate descendants who had not been released from his authority by such circuinstances as emancipation,^ adoption into another family or, in the case of females, marriage; (2) all persons brought into the family by adoption,^ and (3) the wives and children of unforisfamiliated male members of the family.^ For long plebeians were rigidly excluded from becoming members of patrician families or clans, but the families of the plebeians themselves were constituted and regulated upon the same principles and rules as those of the patricians.* In time, however, as old patrician gentes died out and " families " became extinct, new ones were created, and in this way a plebeian element was gradually and increasingly introduced into the old organisation.^ In its political organisation the Eoman State consisted of a domi- nant aristocracy called the " patricians '' (patricii) and a subordinate democracy or commonalty known as the "plebeians" (plebs). The patri- cians originally possessed an exclusive monopoly of political rights, and the earlier history of Rome is largely occupied with the struggles between the patricians and the plebeians for social and political recogni- tion and power ; until the time of the " Servian Reforms," * indeed, the patricians alone constituted the " Roman people " {populvs Bomanus).'' The struggles between the two orders only terminated with the passing of the lex Horterisia in 287 B.C., which marked their final reconciliation and fusion, and may be said to mark also the real commencement of Rome's ultimate greatness, for she was thereafter a united State no longer torn and weakened by internal dissension and strife. The first step towards the final fusion of the two orders was the passing of the " Canuleian " law (lex Ganuleia) in 445 B.C., which gave to plebeians thejws connuMi or the right of lawful marriage according to the forms oi the strict jus civile,^ a.nd legalised marriages between patricians and 1 See ^o««, Part II., Section 32, p. 138. 2 See post, Part II., Section 3.3, pp. 140-144. ^ Upon the meaning of the Koman term familia, see post. Part II., under " Law of Persons," Section 28, p. 129 ; also Muirhead, Roman Law, p. 24, note 2, and Ortolan, History of Roman Law, 471. * Cf. Hunter, Roman Law, 6; Muirhead, Roman Law, 12, 13. ° See upon the Eoman family organisation, post. Part II., Chapter VI., Section 28, p. 129 ; see also Muirhead, Roman Law, ch. iii. s. 9. ' See on the " Servian Reforms," Muirhead, Roinan Law, 55-75 ; Hunter, Roman Law, 9 et seq. ; Moyle, Lnst. 6, Introduction ; Walton, Roman Law, 2nd ed., ch. ix. ^ Cf. Hunter, Roman Law, 4, 9. 8 Bee post. Part II., Chapter IV., Section 17 (a), p. 102. 48 HISTORICAL INTRODUCTION plebeians ; between that date and the passing of the " Hortensian " law all the highest offices and magistracies in the State were opened to the plebeians, and they were finally made eligible for the office of Pontifex Maximus in 254 B.c} The subordinate Roman democracy was originally composed of two great classes, the " clients " (dientes) and the plebeians or pleis proper. Very little is known with certainty of the class of "clients"; they are supposed to have consisted of freemen who, for purposes of protection, had attached themselves to particular patrician Families of which they were dependants, and the heads of which were their " patrons " (patroni). Certain mutual rights and obligations of protection and of service came in time to be attached by custom, though not by law,^ to the relationship of patron and client; the patron owed a general protection of the interests of the client, while the latter was bound generally to uphold and further the interests of the patron.^ The relationship of patron and client began to lose its importance towards the end of the Eegal period, largely through the operation of the Servian Reforms and the subjection of clients to military service under that scheme of reorganisation.* The " clients " stand midway between the patricians and the plebeians, and, indeed, were classed politically as plebeians, if they were not so in fact. The plebeians (plehs) proper, however, were independent freemen, who were not dependent upon any particular patrician family, but who, although free originally, possessed no political rights in the State, or recognition and protection from the law. The Roman plebs are supposed to have been composed of such elements as free voluntary immigrants into and settlers in Eoman territory, inhabitants of conquered territories,^ and manumitted slaves ; and, until the passing of the " Canuleian " law in 445 B.C., the children of patricians and plebeians, or patricians and clients, would naturally belong to that order. The true origin of the plebs, however, is still a matter of " con- jecture," ^ and it is further uncertain whether the distinction between '■ See ante, at p. 31, note 5. 2 Cf. Sohm, Institutes of Justinian, a. 21 (4). See also Sohm, 3rd ed., 38, 39. 3 E.g., by contributing towards the expenses of litigation, or of a public office, or a ransom, or a dowry. * See Moyle, Institutes of Justinian, pp. 5-7. ^ Cf. Moyle, ut supra. ^ Some authorities, including Mommsen, are Of opinion that the plehs proper originated in the decay of clientage, before which time all non -patricians were "clients" of patrician families (see Muirhead, Ronian Law, p. 13, note 4). Cf. also Moyle, Institutes of Justinian, 5. HISTORICAL INTRODUCTION 49 the patricians and the plebeians was not one based upon fundamental racial as well as upon social differences.^ Section X. — ^Division of the Roman Empire and its Effect upon THE Subsequent Couese and Development of the Roman Law In 330 ajd. the Emperor Constantine established Byzantium as the capital city of the Roman Empire, instead of Rome, and at the same time, re-named it Constantinople. This was the first real step towards the division and ultimate disruption of the Roman Empire. In 395 A.D. the Emperor Theodosius I. divided the Empire, before his death, into two separate sovereignties, the one of the East with Con- stantinople as its capital, and the other of the West with Rome as its capital, and he gave the two sovereignties respectively to his two sons Arcadius and Honorius. From that time the Roman Empires of the "West and of the East were separate, and their history ran separate courses : they were only twice again united under one ruler, and then only for a short period ; the first occasion was when the conquests of Belisarius in Italy in 539 a.d. made Justinian for a short time actually ruler of the Western as well as of the Eastern Empire, and the second occasion was in 553 a.d. after the destruction of the Ostrogothic kingdom in Italy by Narses, the other great general of Justinian's reign and the rival and successor of Belisarius. This temporary conquest of Italy, however, had the important result of establishing Justinian's law in the West in rivalry with the Romano-Barbarian system known as the Lex Bomana Visigotlwrum, or " Alarie's Breviary " {Breviarium Alarici), over which it ultimately prevailed upon the revival of the study of the Roman Law in Italy in the twelfth century.^ The Western Roman Empire fell finally in 476 A.D. when Romulus Augustulus, the last of the Emperors at Rome, was deposed. The dis- ruption of the Western Empire, however, had been in progress since 410 A.D., when the Goths had actually battered down the walls of Rome itself, and for six days sacked the city.^ 1 Upon the patricians, clients, and plebeians generally, see Muirhead, Roman Law, pt. i. ss. 2, 3, and 4 ; Poste, Institutes of Gains, 4th ed., Introduction, s. 7; Walton, Historical Introduction to Roman Law, ch. iv. ss. 3, 5 (2nd ed., 60) ; Moyle, In»t., ut supra ; Sohm, Inst., 3rd ed., 38, 39. 2 See on the " Eomano-Barbarian " Codes, Section XI., pp. 50-53 ; also cf. Hunter, Boman Law, 98 ; Sohm, Inst. 95 (3rd ed., 129). ' See upon the barbarian conquest, Italy and her Invaders (376 a.d. to 814 a.d.), by Hodgkin (2nd ed.); Roman Society in the Last Century of the Western Empire, by Samuel Dill (2nd ed.), 1910. 50 HISTORICAL INTRODUCTION Notwithstanding the barbarian conquests of the territories of the Western Empire in Italy, Spain, and Gaul, the language, laws, and administrative system continued essentially Roman in character and spirit, and some of the barbarian Gothic kings, such as Theodoric, King of the Ostrogoths (475 a.d. to 526 a.d.), who had conquered Italy in 493 A.D., even recognised the supreme authority of the Emperor of the East at Constantinople, and ruled under his nominal suzerainty. Section XL — Romano-Bakbaeian Codes of Law^ Certain of the Gothic conquerors of the Western Roman Empire promulgated, along with their own peculiar tribal laws, codes of Roman Law applicable to their Roman subjects.^ These collections are known as the "Romano-Barbarian Codes" {Leges Homanae Barbarorum) as distinguished from the Leges Barbarorum or collections of their own peculiar tribal laws possessed by the Gothic invaders, and applicable solely to themselves.^ Three collections of Romano-Barbarian law are notable under the respective names of (1) " Theodoric's Edict " (Bdictum Theodorici) ; (2) the " Romano-Burgundian Law " (Lex Bomana Burgun- dionum) ; * and (3) the " Roman Law of the Visigoths " (Lex Bomana Visigothorum), or "Alaric's Breviary" (Breviarium^ Alaricianum or Alarici). The last-named of these collections was much the most important, and was largely used throughout Western Europe from the sixth to the twelfth century ; it has been styled the Corpus Juris Givilis of the West, just as Justinian's compilation was the Corpus Juris Civilis of the East, and from it was derived, until the twelfth century, such know- ledge of the Roman Law a.s then prevailed in Europe. "Alaric's Breviary'' was only superseded in Western Europe by the discovery and subsequent revival of the study and knowledge of the text of Justinian's Corpus Juris Civilis in the twelfth century. Theodoeig's Edict {Edictum Theodorici) was an attempt to set out, in a succinct form, the principal practical provisions of the Roman Law so far as they were capable of being applied equally to both Gothic and Roman subjects. 1 See upon the "Romano-Barbarian" Codes the authorities referred to, post, at p. 53, note 1. 2 This was owing to the then prevalent conception of laws as purely personal and not territorial. There might be many people within a certain territorial region each governed by different personal systems of law 3 Cf. Sohm, iTist. 93 (3rd ed., 126). * This has sometimes been erroneously styled Papianus or '' Papian," as a pontraction for Papinianus (see p. 51, note 6). ' ^ The term Breviarium signifies an abridgment. HISTORICAL INTRODUCTION 51 This compilation was made at the instance of Theodoric, King of the Ostrogoths (475 a.d. to 526 a.d.), about 500 a.d. The materials of this collection were drawn from the Hermogenian, Gregorian, and Theodosian Codes/ and from the later Novels, and the " Sentences " of Paul. "Theodoric's Edict" is, however, unsystematic in its arrange- ment, and has the further disadvantage of having been compiled from summaries or explanatory resumes of the law, such as had sprung up in the literature of the fifth century in connection with the teaching of law,2 rather than from the original sources themselves. It touches upon all branches of law, both public and private, but deals principally with public law and procedure, and "Theodoric's Edict" was intended to apply to both the Roman and the Gothic subjects of the Ostrogothic kingdom.^ With the destruction of the Ostrogothic kingdom and the reconquest of Italy by Narses in 553 a.d. the Edict of Theodoric was replaced throughout Italy by the Justinianian Law. The RoMANO-BuRGDNDiAN Law (Lex Romana Burgundionum) was a collection of Roman law compiled for the benefit of the Roman subjects of the kingdom of the Burgundians, which is generally considered to have been published by King Sigismund about 517 a.d., in pursuance of a promise made by his father, King Gundobald, to that effect when in 501 A.D. he promulgated a code of native law known as Lex Burgundionum, or, otherwise, as Gundohada.^ The lex Romana Burgundionum was superior to the Edict of Theo- doric in respect that it attempted to follow to a greater extent the lines of the Roman originals. It treated of private and of criminal law and of judicial procedure in forty-seven titles. Its materials were drawn from the Theodosian Code and the post-Theodosian Novels, and from the "Sentences" (Sententiae) of Paul and a work of Gains other than his Institutes ; it was not a mere collection of extracts of statutory and of jurisprudential law, but was consecutive and homogeneous in its character, so far as it went, being " something between a text-book and a code." ' This collection was long erroneously known as Papianus or " Papian." ^ ' See on these Codes, ante, p. 14. 2 Sohm, Imt. 93 (3rd ed., 127). ' This was probably rendered possible by the fact that, containing, as Theodoric's Edict did, so little private law, its provisions did not in any way interfere with the personal law prevailing amongst the Goths in pursuance of their own peculiar customs. Cf. Muirhead, Roman Law, 371. * Some authorities consider that the lex Romana Burgundionwm may have been published by Gundobald himself, the date 517 a.d. being merely speculative. Cf. Muirhead, Roman Lam, 373. 5 Muirhead, ut supra, 373. ^ This name is said to have originated in the fact that, in the combined and consecutive MSS. of the Breviarium Aland and lex Romana Burgundionum used by Cujas (otherwise Cujacius), the great scholastic jurist of the sixteenth century who became professor at Bourges in 1550, the last words of the Breviarium, viz., "Pap. Lib. 1," were placed in such a position as to be mistaken for the title of the Lex Romana Burgundionum. Of. Mackenzie, Roman Law, 36, note 5 ; and Sohm, Inst. s. 18, p. 94, note 5 (3rd ed., s. 22, p. 128). 52 HISTORICAL INTRODUCTION Although the Lex Romana Burgundionum was, in a certain respect, superior to "Theodoric's Edict," yet both of these collections were, in the words of Sohm,i " lame attempts " setting forth only the coarsest parts of the materials that they sought to preserve, and entirely lacking the form, the ideas, and the spirit of the true Roman jurisprudence. The Lex Romana Burgundionum was short-lived, and ceased to be effective when the Burgundian kingdom was overthrown by the Franks in 534 A.D. The Lex Romana Visigothoeum, otherwise known as Breviarium Alariciammi (or Alarici) or " Alaric's Breviary," was the most important of all the Romano-Barbarian Codes. It purported to be a digest of the law applicable to the Roman subjects of Alaric II., King of the Visigoths, or West Goths (484 a.d. to 507 A.D.), and was published at Aire, in Gascony, in 506 a.d. It contained both statute "law" {leges) and jurisprudential law (Jus) ; the former is represented by some four hundred of the enactments of the Theodosian Code and some thirty of the post-Theodosian "Novels," whilst the latter is represented by an abridgment, in two books, of the Institutes of Gaius,^ the " Sentences '^ of Paul, portions of the Gregorian and Hermogenian Codes, and the first book of Papinian's " Responses," all of which, with the exception of the abridgment of Gains, were accompanied by an "interpretation'" qualificative of the application of the text. Owing to the fact that Spain, and that part of Gaul lying south of the Loire which belonged to the Visigoths, had enjoyed a practical immunity from Germanic invasion and conquest, the true spirit of the Roman jurisprudence still survived there after the fall of the Western Empire to a greater extent than anywhere else in Europe except in Italy, and the Lex Romana Visigoihorum, having been prepared by a special Commission which comprised Roman jurists, embodied that spirit to a considerable degree. From the sixth to the twelfth century " Alaric's Breviary " exercised an important influence throughout Europe, and was, indeed, the Corpus Juris Civilis of the West. It was from the Lex Romana Visigoihorum that such knowledge as Europe then possessed of the Roman Law had been derived when the " glossators " ^ revived the study of the Justinianian Law in Italy in the twelfth century. The supersession of Alaric's Corpus Juris by that of Justinian upon the revival, in the twelfth century, of the study of the pure Roman Law in Italy, where Justinian's system was already in force and in rivalry with the law of the Breviaritim, Alarici, was undoubtedly due to the intrinsic merits of the Corpus Juris Civilis of Justinian ; for the Lex Romana Visigothortim, did not contain those masterpieces of the Roman jurisprudence which constitute at once the strength and the permanent value of the Justinianian system. The compilers of "Alaric's Breviary"' had rejected as too difficult and too unintelligible the works of the- Classical Jurists, and even such of the work of Gaius as they utilised 1 Sohm, Inst. s. 18, pp. 92, 93 (3rd ed., s. 22, pp. 126, 127). 2 Known as the " Gothic Epitome " of Gaius. ' See post, p. 55, note 2. HISTORICAL INTRODUCTION 53 was not only of an elementary character, but also in a much abridged form. " Alaric's Breviary " was unsuited to the requirements of expanding European civilisation with its increasingly complex social and com- mercial conditions, whereas, the Corpus Juris Civilis of Justinian commended itself as a foundation for the law of the modern world, containing as it did the matured principles of the pure Roman juris- prudence, and, especially, the developed principles of the law of contract and obligations generally, which alone would have invested it with the highest permanent value. ^ Section XII. — " Graeco-Eoman " oe " Byzantine '' Law ^ The Eastern Roman Empire continued to exist for nearly nine centuries after the death of the Emperor Justinian in 565 a.d. until it was finally overthrown through the capture of Constantinople, the capital city, by the Turks in 1453 a.d. Throughout only about half of that period, however, did the law in force remain even nominally that of Justinian, or as modified by the "Constitutions" of subsequent Emperors. By the close of the eleventh century the Justinianian Law had fallen into disuse, and had been practically superseded by a system of what is known as " Graeco-Eoman " or " Byzantine " Law. This result was chiefly brought about by the fact that the language of the Eastern Empire had gradually changed from Latin to Greek, and the Roman Law had come to be studied from Greek translations, and from Greek commentaries by Greek jurists. About the close of the ninth century a.d. the Emperor Leo, known as " the Philosopher,'' who reigned from 886 a.d. to 911 A.D., promulgated, in the Greek language, about 890 a.d., what purported to be a revised and re-arranged version of the Justinianian Law, which latter was still, at that period, the nominal ultimate source of the Law of the Empire. The Code or Collection of Law published by the Emperor Leo was the most important part of the whole system of Graeco-Roman Law, and is known as the Basilica or Basilicae? Constantius Porphyrogenitus ' Upon the Eomano-Barbarian Codes, see Muirhead, Roman Law, 371 et seq.; Mackenzie, Roman Law, 35 et seq.; Ortolan, History of Roman J^aw, 343 (s. civ.); Sohm, Institutes of Justinian, s. 18, p. 92 et seq. (3rd ed., s. 22, p. 126 et seq.); Moyle, Institutes of Justinian, 4tli ed., 71; Walton, Historical Introduction to Roman Law, eh. xxiii. (2nd ed., ch. xxix.). ^ See for reference to authorities a " Graeco-Eoman " or " Byzantine " Law, post, p. 55, note 1. ^ The Basilica was the completed collection of law originally begun about 878 A.D. by the Emperor Basil or Basilius " the Macedonian." The name Basilica is a contraction for either rd /SatriXoco vdiiiiia or al paaiXiKoX Smraleis, signifying " the Imperial laws" or "Constitutions" {Constitutiones imperatoriae). Some writers have been of opinion, though now generally regarded as erroneously, that the name 54 HISTORICAL INTRODUCTION r (906 A.D. to 911 A.D.), the son of the Emperor Leo, extended the Basilica by means of an official commentary, compiled from the writings of the sixth-century jurists, which is now known as the "Scholia to the Basilica," and which takes the form of annotations, explanations, and interpreta- tions of the text, and, in some instances, of conflicting decisions upon it.^ Both the Basilica and the Scholia, as well as the Hetmhihlos or Pronvptu- arium of Harmenopulos,^ have afforded considerable exegetical assistance in the modern study and interpretation of the Justinianian Law, and were largely utilised by Cujas, or Cujacius, the |ounder of the historical school of Roman jurisprudence in France in the sixteenth century .^ The Basilica contains extracts from the Digest, Institutes, Code, and Novels, and also post-Justinianian "Constitutions." The collection con- sisted of sixty books, subdivided into titles, and followed the general lines of Justinian's Code, except that the whole law upon any particular subject was arranged consecutively as drawn from the various statutory or juristic sources, and amended, adapted, or extended, where it was considered necessary, by the terms of the Basilica itself. The extracts from the Justinianian books in the Basilica are, however, for the most part, drawn from Greek translations, abridgments, and commentaries, and not from the original texts, all knowledge and study of which had by that time practically ceased. The Basilica, when first published, practically superseded the Justinianian Law, being written in Greek and published with Imperial authority, but it was not until near the close of the eleventh century that the supersession was formally recognised. The Basilica continued to be nominally the authoritative law for the Eastern Empire until its final overthrow in 1453 A.D., when the Koran superseded the Byzantine Law, for the most part, in those regions that had formed the Empire of the East. Long before that time, however, the place of the Basilica had come to be taken, in practice, by various Greek epitomes, the last of which was the Hexahihlos or Promptuarium of Constantine Harmenopulos,* which was published BasUieae was adopted in honour of the Emperor Basil of Macedonia by reason of his having been the originator of the work. ' The term scholia signifies " annotations." In Graeco-Eoman legal literature a distinction has been drawn between the scholia of the jurists of the sixth century and those of jurists of later date. The former have been particularly styled antiqua, and the latter scholia proper; and similarly the sixth-century jurists have been styled antiqid as distinguished from the scholiasts simply so called, or jurists of later date. 2 See infra. ^ See ante, p. 51, note 6. * Harmenopulos was a judge at Thessalonica, and he died at Constantinople in 1382 A.D. HISTORICAL INTRODUCTION 55 in 1345 A.D. This work was a comprehensive collection of post- Justinianian Graeco-Eoman Law adapted to the legal requirements of the age, and it was widely known and esteemed as a classic legal manual throughout the Eastern Empire during the last century of its existence, and even in the West to some extent, whatever may have been its actual merits as a legal work.^ The fall of the Eastern Empire in the middle of the fifteenth century caused a great migration westwards from Constantinople into Italy and France of Graeco-Eoman or " Byzantine " literature, law, and art, which ultimately led to that general revival and development of intellectual activity in Europe known as the Eenaissance, and which has so materially affected and determined the course of modern histbry. The study of the Roman Law and of the original Roman texts shared in the general impetus given to learning after the fall of the Eastern Empire ; but long before that time the study of the Justinianian Law had recommenced in Italy. As early as 1120 a.d. the famous School of Law was founded at Bologna by Irnerius, the first of the glossators,^ and by its fame not only attracted large numbers of students from all parts of Europe, but also disseminated widely an interest in and a knowledge of the pure Eoman Law. It was, indeed, from Bologna that the revived knowledge and study of the original and pure Eoman texts emanated and spread over modern Europe. The knowledge of the pure Roman Law was never entirely lost in Italy, notwithstanding the barbarian overthrow of the Western Empire. 1 Ortolan styles the Hexahiblos a " lucid exposition " and a " methodical com- position," whereas Bruns refers to it as " a miserable epitome of the epitomes of epitomes " I The codes of statutory Graeco-Eoman Law prepared and published at diiferent times with Imperial authority were the Ecloga (740 a.d.), Proehiron (870 A.D.), Epanoge {pirca 879 a.d.), and Basilica ((Area 890 a.d.), which are generally ascribed respectively to the Emperors Leo " the Isaurian," Basil " the Macedonian," and Leo " the Philosopher." Upon these collections a great mass of literature was subsequently produced by Greek jurists by way of commentary, interpretation, or adaptation, ending with the Hexahiblos of Harmenopulos. See upon the Graeco-Eoman or Byzantine Law, Ortolan, History of Roman Law, ss. cxv.-cxviii. ; Hunter, Roman Law, ch. v. ; Muirhead, Roman Law, 402 ; Orsier, Histoire de Droit Civil Oraco-Romain ; Zachariae, Jus Oraeco-RomMnwm ; Mortrueil, Histoire du Droit Byzantin. ^ The " Glossators " were so styled from the fact that these jurists were in the habit of inscribing interlinear and marginal notes, known as " glosses,'' upon the Justinianian manuscripts, by way of explanation of, or commentary upon, the text. In some cases the " gloss " was so extensive and so elaborate as to be accorded even a greater authority than the text itself. The School of the Glossators flourished for about a century and a half, termin- ating with the death of Accursius in 1260 a.d., and was succeeded until the end of the fifteenth century by that of the " post glossators " or "scholastic" jurists, " whose pedantry, prolixity, and verbal subtlety," however, " have added little to the sum of human knowledge and enlightenment." Cf. Mackenzie, .ffioOTam Law, 39. 56 HISTORICAL INTRODUCTION Both in Italy and in Gaul the knowledge of the Eoman Law, whether ante-Justinianian or Justinianian, was preserved through three distinct agencies, namely, the principle of the personality of the laws,^ the authority of the Church,^ and the intrinsic merits of the system itself.3 After the conquests of Belisarius and of Narses in Italy in the sixth century the Justinianian Law obtained a permanent footing there, and from that time onwards, despite all the various subsequent terri- torial changes, it existed in the West along and in rivalry with the Eomano-Barbarian Law of Alaric's " Breviary." * Upon the revival of the study of the Eoman Law in Italy in the twelfth century, and the establishment of the Bologna School of Law, the Glossarists deliberately adopted the Corpus Juris Civilis of Justinian as the basis of their studies in preference to the Gothic Code, and upon that foundation the whole great superstructure of the modern scientific study of the Roman Law has been built up.^ From the twelfth to the end of the fifteenth century the science of law was, for the most part, confined to the schools of Italy, but there- after its study passed, successively, to the schools of France, the Netherlands, Spain, and Germany, with which are associated the names of such great civilians as Cujacius, GrotiusJ' Vinnius, Godefroy, Heineccius, Pothier, Hugo, Thibaut, Niebuhr, and Savigny. ' See " Eomano-Barbarian Codes," ante, p. 51, note 3. ^ Cf. Hunter, Roman Law, 98. 3 Cf. Sohm, Ijistitutes of Roman, Law, 95 (3rd ed,, 129). ■* Sohm, ibid. * Upon tlie revived study of the Justinianian texts, and the rise of the Bologna School, etc., see Ortolan, History of Roman Law, s. cxxiv. ; Muirhead, Roman Law, 405 et seq. ; Mackenzie, Roman Law, 38 et seq. ; Hunter, Roman Law, ch. vi. p. 98 et seq.; Sohm, Inst., ut supra. CHAPTER II Section I. — Meanings of the Teem Jus The word jus possessed a variety of meanings in the Eoman Law. The original and, at the same time, the widest signification of the term was that of " Law generally," as the rule of action (norma agendiy but it also signified, in a narrower sense, a special right or faculty {facultas agendi) sanctioned by the general rule of action, such as, i.g., jus itineris, or a right of way. Moreover, the term jus was sometimes employed to connote " strict law" as opposed to "equity," or to signify "right" as opposed to " wrong." It might also be used to mean either " Justice " itself, as in the expression jus reddere, "to dispense justice," ^ or "the place where justice* is dispensed," ^ as in the expression in jus vocatio, signifying the bringing of a defendant into Court; or it might be employed with reference to proceedings in jure, before the Praetor, as distinguished from proceedings injudicio, before a. judex or judge.* The term jus was, moreover, sometimes used to mean " authority " or " control," as in the expressions sui juris and alieni juris, or simply a special bond or relationship, as in the expressions jus sanguinis or Jus cognationis, signifying the tie of blood, and jus affinitatis, connoting relationship by marriage : ^ it was also employed in a general sense in contradistinction to fas; in which last sense jus signified law that was declared by human agency as opposed to that which is divinely inspired.^ In its strictly legal sense, however, the term jus has two principal meanings — a general and a special one; it signified either (1) law generally, as the whole mass of rights and duties recognised and pro- tected by legal remedies; or (2) any particular faculty or privilege accorded by law to a particular person with a corresponding duty ' Of. Big. i. 1, 11, "that which is, under all circumstances, fair and right." 2 Ibid. ' Of. Dig., ut supra. * See aiUe, Chapter I., Section V., at p. 28, note 4, and post, p. 230, note 4 {Part III., Section 71), on the distinction, in Eoman procedure, between proceedings injv/re and injudicio, respectively. 5 Cf. Dig. i. 1, 12. ° See ante, p. 7. 67 58 GENERAL DEFINITIONS OF THE ROMAN LAW imposed by law upon another particular person — in other words, a legal "right." A legal "right," in the narrower and strictly legal sense of the word jus, and a legal duty, are, in the sphere of private law, correlative terms, the one necessarily connoting and involving the existence of the other.^ Section II. — General Definitions of the Roman Law The Institutes of Justinian commence with various general defini- tions, which are also contained in the Diffest. Thus "Justice" (justitia) is defined as " the constant and perpetual wish to give every one his due." ^ " Jurisprudence " (jurisprudentia) is " the knowledge of things divine and human, of the just and the unjust." ^ This definition of jurisprudence has no scientific value, but, taken as it was from the Hules of Ulpian, it merely repeated a rhetorical commonplace of the Stoic philosophers;* it may be more freely taken as stating that Jurisprudentia is " the science of right and wrong " ; in other words, " Jurisprudence '' (jurisprudentia) is the science or knowledge of jus, or law generally. Moreover, e/ws, or law generally, is based upon certain general precepts or maxims, which " precepts of the law " (prascepta juris) are stated as " to live honestly, to injure no one, and to render every one his due." ^ Section III. — General Divisions of Law Justinian, following the distinction originated by the Roman jurists, divided the study of Law generally (jus) — i.e. positive law — into two great parts, namely " Public " Law (jus publicum) and " Private " Law (jus privatum). " Public " Law was that part of the law which related to the con- stitution, government, and general administration of the Roman State, and to the regulation of the relations between the State as a whole and individual persons in the State. 1 See upon the termjus and its various meanings, Clark, Practioal JurUpnidence, 14-20 ; Muirhead, Roman Law, 18 ; Hunter, Roman Law, 116 ; Sandars, Institutes of Juitinian, 5. Modern Philology derives the word jus from the Sanscrit ju, to join or bind, and deduces, as the true meaning of the word, " that which binds," or " the bond of society," or " that which is orderly or fitting " (Muirhead, vi supra). 2 Justinian, Inst. i. 1 pr.; Dig. i. 1, 10; Monro, Dig. 5; Sandars, Institutes of Juitinian, 5. ? Justinian, Inst. i. 1, 1; Dig. i. 1, 10, 9; Monro, 5; Sandars, 5. * Hunter, Roman Law, 116. 6 Inst. i. 1, 3 ; Dig. i. 1, 10, 1. GENERAL DIVISIONS OF LAW 59 " Private " Law was that part of the law which was concerned with the relations of individual persons, in their private capacities amongst themselves (inter se)} This general division of law into " Public " and " Private " has been almost universally adopted by continental jurists, but not by institutional writers on English Law.^ "Public" Law (Jus publicum) as conceived by the Eoman jurists was concerned with " sacred rites (sacra), priests, and public officers," ^ which, expressed more freely and from a modern point of view, wOuld signify that it comprised ecclesiastical, constitutional, and administrative law, and also criminal law. The Institutes of both Gains and Justinian deal only with " Private " Law (jus privatum), or the law that is concerned with the regulation of the relations of individuals amongst themselves (inter se), with the exception of a short title at the end of the fourth book upon certain matters of criminal law.* Justinian in his Institutes professes to treat " Private " Law (jus privatum) in the order of a threefold subdivision according as it deals with either Persons, Things, or Actions, in pursuance of a statement to the effect that all the law in use amongst the Romans had that three- fold aspect.^ In effect, " Persons " are, by this arrangement, regarded and treated as the subject of legal rights, "Things" as the object of legal rights, and "Actions" as the means of rendering legal rights effectual. This threefold division of law has been the subject of much dispute,* and it is open to serious criticism upon scientific grounds. Both Gaius and Justinian, in their Institutes, include Obligations within the category of " Things," while treating Actions as forming a distinct legal category, whereas Actions are just as much " things " as are Obligations in the sense that they are both modes of obtaining things. Some jurists consider that Private Law ought to be divided into only the two categories of " Persons " and of " Things," and Obligations and Actions would naturally fall within the latter division and be dealt with according to the different matters to which they relate. ' Inst. i. 1, 4; Biff. i. 1, 1, 2. 2 Cf. Mackenzie, Studies in Roman Law, 59. 5 Digest, i. 1, 1, 2. * Institutes, iv. 18. ' Justinian, Institutes, i. 2, 12 ; Gaius, Institutes, i. sec. 8 ; Digest, i. 5, 1. ^ Upon this threefold division of law see Moyle, Institutes of Justiniam, 4th ed., 91. 60 JUS GENTIUM, JUS NATURALE, AND JUS CIVILE The threefold division of "Private" Law— to which, it may be mentioned incidentally, Justinian does not strictly adhere — was prob- ably a traditional arrangement derived from the early pontifical juris- prudence 1 but confined to the institutional treatises of an elementary character ; ^ nevertheless, whatever its scientific deficiencies, and how- ever little actual value may have been attached to it by the Roman lawyers, this threefold arrangement has become fundamentally familiar to modern lawyers.^ The Institutes of Justinian deal almost entirely with " Private " Law 0« privatum), which, it is stated, may be regarded as being derived from three main sources, namely, " the precepts of natural law, of the law of nations, and of the civil law." * The three sources of private law to which reference is thus made were known ro Roman jurists as Jus Gentium, Jus Naturale, and Jus Civile. Section IV. — Jus Gentium, Jus Naturale, and Jus Civile (1) Jus Gentium. — This was the term applied to that portion of the Roman Law which was applicable to citizens and non-citizens alike, in contradistinction to that portion of the Roman Law, known in a special and narrower sense as the jus civile, which was peculiarly Roman and applicable only to the mutual dealings of Roman citizens and binding only upon such persons. The rules of the jus gentium originated in the necessities of Rome's increasing commercial relations with foreigners (peregrini), and origin- ally consisted of specific mercantile usages more or less common. Such special usages were, it is supposed, given effect to from time to time by judges known as recuperatores^ in the determination of particular disputes between citizens and foreigners prior to the creation of the office of Peregrin Praetor.^ It was in the Edict of the Peregrin Praetor,' however, that the jus gentium first assumed a definite and permanent character, and came to signify in practice, and apart from philosophic speculation, those rules ' This is the view of Karlowa {Rom. Rechtsgeschiohte, i. 725). ^ Maiiie, Early Law and Custom, 367. 2 Cf. Mackenzie, Studies in Roman Law, 60. See also Trichotomy in Roman Law, by Professor Henry Goudy, 1910. '' Justinian, InstitiUes, i. 1, 4 ; Digest, i. 1, 1, 2. * See with regard to recuperatores, Hunter, Roman Law, 44, 51; Muirhead, Roman Law, 2nd ed., 210-212. Cf. Moyle, Inst. 35. ^ See on the institution of the Praetor Peregrimcs, ante, p. 32 (Part I., Section VI.). JUS GENTIUM, JUS NATURALE, AND JUS CIVILE 61 embodied in the Edict of the Peregrin Praetor for the regulation of commercial relations between peregrins amongst themselves (inter se), and those between peregrins and persons possessing the privilege of Eoman citizenship, whether as citizens of the Eoman State, or as allies to whom the right of comnurcium had been extended.^ In the later development of the Eoman Law, when it was largely influenced by philosophic speculation, the jus gentium came to be extended to include all those legal rules and principles based upon natural equity, and, as such, applicable generally to all peoples. In its philosophical aspect the jus gentium was regarded as a universal law of all mankind, common to all nations because of being based upon the general nature of things and the general sense of equity which prevails among all mankind and regulates their dealings with each other, and possessing a sanction in virtue of its inherent reasonable- ness.2 Gains and Justinian speak of the^ws gentium as " the law which natural reason has settled among all men," or as " the common law of mankind," or as " the law in use among all nations." ^ These vague philosophical generalisations must not, however, be taken too literally, for mere philosophic or scientific theory did not enter to any great extent into the development of the Roman Law, which was essentially empirical and practical. The jus gentium was, in fact, in no sense a collection or system of the law in general use amongst all peoples, but was essentially Roman law for foreigners, devised by Roman jurists, and developed by them to meet the practical exigencies of international commercial intercourse ; it was " that part of the private law of Rome which was essentially in accordance with the private law of other nations."* The rules of the jus gentium, embodied in the Edict of the Peregrin Praetor ^ {praetor peregrinus), gradually commended themselves to the Urban Praetor** (jpraetor urbanus) as equally applicable to regulate, upon lines broader and more equitable than those provided by the formalism of the strict jus civile, the commercial relations of Eoman citizens amongst themselves; and, having been gradually incorporated by the Urban Praetor in his Edict, these rules -became ultimately part of the general law of Rome, binding upon citizens and non-citizens alike. By the close of the period of the Eepublic, as has been already observed,' ' See Moyle, Irist. 36. See also on acquisition of Eoman Citizenship by Grant, p. 107, post (Part II., Section 18). 2 Cf. Sohm, Inst. 44, 46. ^ See Gaius, Inst. i. 1; Justinian, Inst. i. 2, 1; Sandars, Institutes of Justinian, 8 ; Hunter, Eoman Law, 117; Muirhead, Roman Law, 226. * Sohm, Inst. 45 (3rd ed., 71). ^ See ante, p. 33. ^ See ante, p. 32. ' See ante, p. 33. 62 JUS GENTIUM, JUS NATURALE, AND JUS CIVILE the Edicts of both the Praetor Urhanus and the Praetor Peregrinus had become practically identical in all essential particulars, and constituted together the Jus Praetorium, which was nearly, and to all effects, co- extensive and synonymous with the Jus Honorarium} During the Imperial Period the principles of the jus gentium, originally embodied in the Edict of the Peregrin Praetor upon purely empirical grounds, were largely developed and extended through the medium of the later scientific Eoman jurisprudence and Imperial legislation.^ The principal changes introduced into the Roman Law by the Praetor, and which bo largely modified it and, at the same time, furthered its equitable development, were due to the influence of the jus gentium. This it was which led to the substitution for the formalism of the strict jus civile of rules and principles having as their object the ascertainment of and the giving effect to the real intentions of parties, and the application of the spirit rather than the fetter of the law. It was also the influence of the jus gentium which brought about the trans- formation of the Roman Law of intestate succession by the recognition of " cognatic " or blood relationship as the basis of the family and of inheritance in place of " agnatic " relationship or that purely artiflcial relationship created by the fact of subjection to the family authority (jpatria potestas) of a common family head or paterfamilias.^ To the influ- ence of the jus gentium, there must also be ascribed the recognition and protection of possession* (possessio), and equitable or "bonitarian'' owner- ship as distinct fromand opposed to "quiritarian" ownership or dom,inium,^ which latter alone, in the estimation of the strict jus civile, constituted true legal ownership ; the simplification of the means of making a testament in place of the old formal and clumsy procedure "by the brass and scales " {per aes et lihram) peculiar to the strict law ; and the recognition of informal contracts and informal modes of acquisition and transfer of property. It was in the sphere of contract that the influence of the jus gentium was most marked, and the so-called " real " and " consensual " contracts, by which an enforceable obligation was created apart from any formalities of word or deed, owed their recognition entirely to the jus gentium.^ ''In working out thej'ws gentium, i.e. those rules of natural equity ' See ante, p. 29. 2 Cf. Sohm, Inst. 47 (3rd ed., 73). 3 See on "Agnatic" relationship, "The Eoman Family Organisation,'' post, p. 129 (Part II., Chapter VI., Section 28). * See "Law of Things" (Part III., Chapter II., pp. 223-227). 5 Ibid. « "From this law of nations {jus gentiwm) almost all contracts were at first introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loan, and very many others" (Justinian, Inst. i. 2, 2). See on the "Real" and the " Consensual " Contracts, post. Part IV., Chapter VIII., p. 352 et seq., and Chapter IX., p. 384 et seq. JUS GENTIUM, JUS NATURALE, AND JUS CIVILE 63 •which regulate the dealings between man and man, and in reducing these rules to a system of marvellous transparency and lucidity, which carries irresistible conviction by its form as well as its matter to the mind of every observer, in doing this, Roman Law has performed its mission in the world's history. And it was this achievement, successfully performed for all time to come, that not only fitted Roman Law for becoming the general law of the Roman Empire, but also endowed it with the power, when once it had emerged from the oblivion of centuries, to conquer the modern world." ^ (2) Jus Naturale. — The Jus Naturale, or "Law of Nature," as a term employed in the Eoman Law, may . be said to have signified, generally, that portion of the Roman legal system which was of universal application to all peoples by reason of being based upon and being an expression of an inherent reasonableness and sense of justice {naturalis ratio) implanted by Nature itself, and common to all mankind.^ The Jus Naturale, or "Law of Nature," was a conception derived by the Eoman jurists from the "Stoic"' philosophy of Greece, and it pertains to the period of the Later Republic and the Early Empire. The Stoic philosophers sought, and professed to find, certain universal rules of both moral and physical application based upon both the common intellectual nature or reason of mankind, and also upon certain natural and physical instincts shared by man in common with the lower animals, such as, for example, the procreation of the species and the protection of offspring. The Eoman jurists, from the time of the classical jurists,^ identified the conception of a law of Nature on the part of the Greek philosophers with the jus gentium which, in their own system, they found so sharply distinguished from the jus civile in that the principles of the jus gentium were of more or less general application to all peoples, whereas the jus civile was peculiar, and applicable only to a particular and limited community consisting of those special persons who possessed the privilege of Eoman citizenship. As employed in the Roman system, the term^Ms naturale is extremely vague, and in the Corpus Juris Civilis the distinction between jus gentium and jus naturale is not clearly drawn. The terms are most frequently employed as synonymous, but at ^ Sohm, Inst. 47 (3rd ed., 72, 73). Upon the 'Roman jus gentium, see Muirhead, Roman Law, 225-276, and authorities cited ibid. See also "Walton, Historical Introduction to Roman Law, 2nd ed., ch. xxxvi., p. 361 et seq. 2 "Natural" law has been well defined by a modern jurist as "the dictates of reason with reference to human relations " (Lorimer, Institutes of Law). 3 Moyle, Institutes of Roman Law, 38. 64 JUS GENTIUM, JUS NATURALE, AND JUS CIVILE times they are differentiated. Thus it is stated in the Digest^ that "law which natural reason has laid down for mankind in general is maintained equally by all men, and is called jus gentium, as being the law which all nations use"; and, again, it is observed in the Institutes^ that "natural law (jus naturale) is termed the law of nations " {jus gentium). On the other hand, the Digest, in another place,^ states that "jus gentium is the law used by the various tribes of mankind, and there is no difficulty in seeing that it falls short of natural law, as the latter is common to all animated beings, whereas the former is only common to human beings in respect of their mutual relations " ; and, again, the Institutes declare* that "the law of nature [jus naturale] is that law which Nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the air, the earth, or the sea. Hence comes that yoking together of male and female which we term matrimony ; hence the procreation and bringing up of children." A distinction is still further drawn in another passage of the Institutes,^ where it is observed: "The law of nations [jus gentium'] is common to all mankind, for nations have established certain laws as occasion and the necessities of human life required. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of Nature [jus naturale], for by that law all men are originally bom free." It may be said, speaking generally, that in the Roman system the terms jus gent ivm and jus naiurale were, in fact, treated as synonymous, being only specially differentiated with regard to the institution of slavery, which was declared to be contrary to the natural law ; ^ whereas the Romans, in their extending intercourse with other races, found that amongst all nations the institution of slavery was generally recognised. The jus nahm-ale, or " Law of Nature,'' as conceived by the Roman jurists, may be regarded as an ideal of justice to which actual, positive law ought, as far as possible, to approximate ; and this ideal conception found expression in the principles of the jus gentium. The jus naturale may thus be considered as corresponding, in its general character, to the modern conception of equity.'^ 1 Dig. i. 1, 9. See Monro's translation, 5. ^ Inst. ii. 1, 11. See Sandars' Institutes of Justinian, 94. 2 Dig. i. 1, 1, 4. See Monro's translation, 3. < Inst. i. 2, pr. (Sandars' Inst. 7). Cf. to same effect, Dig. i. 1, 1, 3 ; Monro's translation, 3. s Inst. i. 2, 2. See Sandars' translation, 8. Cf. to same effect. Dig. i. 1 5 • Monro's translation, 4. ^ Inst. i. 2, 2. " Of Paul, in Dig. i. 1, 11 : "Natural law is that which is, in all circum- stances, fair and right " {Id quod semper aeqmcm ac bonwm est, jus dicitur ut est JUS naturale). JUS GENTIUM, JUS NATURALE, AND JUS CIVILE 65 The terms jus gentium and jus naturale are not, however, exactly co-extensive, although generally identified with each other in the Eoman system. Just as the jus gentium was of wider application than the jus civile, so the jus naturale was more comprehensive than the jus gentium. The jus civile studied the interests of Eoman citizens only ; the jus gentium contemplated all freemen irrespective of nationality ; but the jus naturale applied to all mankind.^ In this view the jus civile, jus gentium, and jus naturale have been distinguished as the systems apply- ing respectively to the citizen, to the freeman, and to the man.^ The distinction, such as it is, between the jus gentium and the jus naturale is purely speculative arid of little, if any, practical value. They are distinguished from each other in that the one is based upon an abstract philosophical conception, whereas the other had its origin in the practical necessity that arose for the regulation of commercial inter- course between Eoman citizens and foreigners, and between foreigners themselves.^ (3) Jus Civile. — This term, as opposed to jus gentium, or to jus naturale, signified, in its strictest sense, that portion of the Eoman Law which was based upon ancient customary usage and early statutory enactment — for the most part consisting of the Twelve Tables — and which was, in its application, confined to those persons who possessed the privilege of Eoman citizenship whether by virtue of birth, manumission, or express grant.* In its widest sense, however, the expression jus civile signified the law of any particular State ; ^ but in a special sense, when employed without reference to any particular State, it signified, in a more limited sense, the law of Eome as distinct from that of any other State.^ The term jus civile was also used by the Eoman jurists to connote 1 Gf. Muirhead, Roman Law, 281. ^ Voigt, Jus Naturale, ii. 661. ^ The most comprehensive examination of the speculative ^w naturale as under- stood by the Eomans is that by Voigt, Das Jus Naturale. He summarises its characteristics to the following effect : (1) It applies to all mankind ; (2) among all peoples ; (3) in all ages ; and (4) it corresponds with man's innate sense of right. Voigt also formulates the propositions of the jus natxixale thus : (1) recognition of the claims of blood ; (2) duty of faithfulness to engagements ; (3) apportionment of advantage and disadvantage, gain and loss, according to the standard of equity; (4) supremacy of the intention over the words or form in which the intention is manifested (Muirhead, Roman Law, 281, 282). For examples of how these propositions were applied in practice and modified in Eoman Law, see Miiirhead, ut supra, 282. * See jBO«i!, "Eoman Citizenship," p. 106 (Part II., Section 18). ^ Justinian, Inst. i. 2, 1; Gaius, Inst. i. 1. " Inst. i. 2, 2. 66 JUS GENTIUM, JUS NATURALE, AND JUS CIVILE so much of the Koman Law as was applicable and available only to Roman citizens, or to those persons who had been accorded the privileges of Roman citizenship, as distinguished from that portion of the Roman Law which was applicable to all persons, citizen and peregrin alike. In a still wider sense, moreover, jus civile signified the whole body of the Roman Law, including not only that portion which was the jus civile in the strictest sense of the term as being based upon early usage and legislation, but also that portion based upon the later principles of the jus gentium and ihe^jus naturale. The principal characteristics of the jus civile in its narrowest and strictest sense as the early law of Rome were its rigid and elaborate formalism, and its rules and principles based upon a peculiar tribal, clan, and family organisation. It was a system founded upon and adapted to the usages of an agricultural community in an early stage of development, but it was essentially unsuited to the requirements of a rapidly extending commercial community of a cosmopolitan character. For this reason the formalism of the strict jus civile gradually gave way to, and was succeeded by the equitable principles of the jus gentium through the medium of the Praetorian Edict,^ and of juristic interpretation.^ The jus civile, in the special sense of the law peculiar to Rome, was subdivided into "written" law (jus scriptum) and "unwritten" law (jus non-scriptum);^ the former was law embodied in writing at its origin, while the latter was customary law not embodied in written form. Upon this simple principle the Praetor's Edict was one of the sources of jtos scriptum, even when it was based upon and merely gave effect to immemorial usage.* The jus scripttim or " written law '' was derived at different times and in varying degrees from those sources, which have been already considered,^ in the form of leges plebiscita, senatus-consulta, edicta magistratuum, responsa prudentium, and prinxiipum ■placita.^ 1 Q.v. ante, p. 26. 2 Ante, p. 37 ^ Justinian, Inst. i. 2, 3. See ante, p. 18. * Cf. Moyle, Institutes of Justinian, 101, 102, s. 3. ^ Chapter I., p. 18 ei seq. " Justinian, List. i. 2, 3. PART II THE LAW EELATING TO PEESONS Chapter I. — Persons Generally II. — Caput and Status III. — Legal Capacitt op Persons IV. — Divisions op Persons V. — Slavery VI. — The Roman Family Organisation VII. — Guardianship PART II THE LAW EELATING TO PERSONS i CHAPTER I Section 1.— Persons Generally A ' person " {persona), in the sense of the Roman Law, was some being having a recognised standing (status) in the view of the law, and capable of acquiring, possessing, and exercising civil rights and of performing civil duties.^ The word persona possessed, and was employed in two distinct senses: it was used either to connote all beings that are capable of becoming the active or the passive subject of legal rights, or to signify the quality or character in which legal capacity is exercised.^ Thus the same persona in a wider sense might also possess, at the same time, several personae or legal characters in the narrower sense, such as that of a husband (persona mariti), or of a father (persona patris), or of a son (persona filii), or of a guardian (persona tiitoris or cur.atoris), in each of which personae or characters he is separately regarded by the law.* The term persona was not confined to individual human beings, but signifying, as it did, all beings capable of being the subject of legal rights, it is also applied both to aggregates of individual human beings, such as the State, or a corporation, and to aggregates of property existing collectively for the furtherance of particular objects, such as charitable foundations. The Roman Law also gave the character and proprietary rights of a persona to even such objects as an inheritance in abeyance, and the public treasury or " Fisc " (fiscus). Legal persons are thus either " natural " or " juristic." '^ A "natural" or "physical" person is an individual human being ' Justinian, Inst. i. 3-36. ^ Cf. Cuq, InstitutwM JiiridiqueB des Roonains, ii. 68 ; Girard, Manuel de Droit Bomain, 87 (5th ed., 91) ; May, .Elements de Droit Romain, 59. ^ Cf. Ortolan, Roman Law, 453. '' This use of the word persona is derived from its original signification of an actor's mask, and it thus came to be applied to the various characters or rdles played by an individual on the metaphorical stage of life. ^ French, personnes physiques or reelles, and personnes juridiqiies or morales. Cf. Ouq, Institutions Juridiques des Romains, ii. 68 ; Girard, Manuel de Droit Romain, 228 (5th ed., 235-238) ; May, Mem^nts de Droit Romain, 59 ; Didier-Pailh^, Droit Romain, i. 6, 7. 70 PERSONS GENERALLY [part ii. born in the ordinary course of nature, and invested thereby, from the moment of birth to the instant of death, with personality and pro- prietary capacity. A "juristic" person has no physical existence, but is entirely an artificial creation and an abstract conception of the law, and signifies an aggregate of either individuals or property regarded by the law as a single entity or person, and, as such, invested with a capacity for rights and duties. The Roman Law did not, indeed, employ any special terminology to indicate the distinction between "natural" and "juristic" persons, which, nevertheless, was well understood, but in a passage in the Digest,^ taken from TJlpian, the expression singularis persona is used to signify a "natural" person, in contrast with such collective terms as populus, curia, and collegium. "Juristic" or "juridical" persons consist of either aggregates of persons or aggregates of things, distinguished by later civilians, though not by the Roman jurists, by the expressions itniversitas personarum an^ universitas rerum. The conception of a universitas personarum amongst the Romans was an aggregate of individual human beings forming a single collective person, and possessing rights and duties quite distinct from those of the single individuals (singuli) composing it. A universitas personarum, was frequently regarded as forming, and was consequently styled, a legal corpus or body ; in these expressions we find the derivation of the modern terms, " University " and " Corporation." ^ A universitas rerum was an aggregation of money or of property directed towards the furtherance of particular purposes, such as charity, religion, or education. The essential element in the Roman conception of a "person," whether "natural" or "juristic," was the capacity for the possession and exercise of legal rights and for the undertaking of legal duties ; this capacity was signified by the term ca2mt ; ^ thus, slaves in respect that they were, for the most part, regarded by the law as "things"* (res), possessed no caput,^ although both Justinian 1 Dig. iv. 2, 9, 1. ^ Amongst universitates personarum constituting corporate bodies, and, as such, accorded collective private rights, may be mentioned the State (Respublica), the populus, munidpa, collegia teniplonmi, tenuiorum sodalitia, societates pvhlicanorum or vectigalium puhlicorum, awrifodinarum, argentifodinarum, salinarum, and industrial guilds or corporations, such as those of shipowners, ironworkers, bakers, and potters ; also the corporations or guilds of subordinate officials, such as the scnbae, decuriae librariorum, and ceiisualium. ^ See post, Section 2, p. 73. * See joosi, p. Ill, Section 22, "General Position of a Eoman Slave." ^ Justinian, Inst. i. 16, 4 ; Dig. iv. 5, 3, 1. SECT. I] PERSONS GENERALLY 71 and Gaius, in certain passages, seem to include slaves amongst " persons." ^ The true ground of this apparent inconsistency was the recognition by the jurists of the fact that slaves, though possessing no caput and therefore failing to satisfy the essential requisite for legal personality, were yet potential persons capable of becoming full persons in certain circumstances.^ The Roman Law further recognised that the possession of reason, added to the slaves' other human characteristics, of necessity rendered it impossible to apply rigidly the principles of law applicable to unreason- ing animals and to inanimate things. Thus the law so far regarded slaves as "persons" as to make them responsible for criminal acts done by them,^ and they could, moreover, perform certain acts binding upon their masters.* In later Imperial times slaves, although not accorded rights or personality, received, indirectly, a certain amount of protection from the law, in the public interest, by the limitation of the masters' absolute rights of ownership over them.^ The conception of a "juristic" person was developed, to apply to those cases where there existed collective individual interests, and where it would be for the general and permanent interests of society that these collective rights and interests should be continued for an indefinite period rather than cease with the death of the particular individuals composing the corporate body at any given time, as did the rights of individual natural persons.^ The conception of a "juristic" person as the subject of private rights, quite apart from and irrespective of the personality and of the rights and duties of the individuals composing it, was unknown to the earlier Roman Law, and it was only developed during the late Republic with the growth of the system of municipal government, when the municipia or town communities were recognised as collective private persons, capable of private rights and duties as a 1 Justinian, Inst. i. 8 pr.; Dig. i. 5, 3 ; i. 6, 1 pr., 1 ; 50, 17, 22 ; Iiwt. i. 3 pr. In this last passage, however, it has been contended, Justinian draws a distinction between "persons" and "men," and while saying that "all 'men' are either free or slaves," it is not necessarily implied that all " men " are " persons " in a legal sense (c/. Moyle, Inst. 85). 2 See post, " Slavery," Chapter V., p. 109, and specially on this point, Section 22, at p. 114. 3 See Chapter V., Section 22, pp. 111-116, "General Position of a Roman Slave." 4 Ibid. 6 See "Slavery," joo«<. Chapter V., Section 22, pp. 113-114. s Cf. Mackenzie, Studies in Roman Law, 70 ; May, Mements de Droit Eomain, 59 ; Girard, Manuel de Droit Romain, 228, note 3 (5th ed., 235). 12 PERSONS GENERALLY [part li. single person ; ^ and the conception was, in time, extended to embrace other aggregates of beings formed for various lawful purposes, whether religious, intellectual, commercial, social, or even convivial, as the case might be. " Juristic " persons were thus not only accorded a collective legal personality and existence entirely distinct and separate from that of the individual ''■ natural " or " physical " persons composing them, but they were also entirely unaffected in their legal character, or as regards their collective rights and duties, by any changes in the identity of the individual natural persons composing them. But although, in all proprietary respects "juristic" persons are thus put upon an equality with natural persons, yet, as being, in reality, mere abstract creations of the law, they were incapable of the possession! of family rights in the true and proper sense ; they might possess, however, a sort of family right in the form of the patronage of their enfranchised slaves.^ The Eoman conception of "juristic " or artificial personality is widely understood and developed in modern legal systems, and is exemplified in municipal corporations, charitable foundations, trusts, universities, companies, clubs, partnerships, and a great variety of both religious and secular organisations and societies.^ ' Sohm, Institutes of Roman Law, s. 20, 102. Of. also May, Droit Romain, 60, note 6. See also Raid, The Municipalities of the Roman Empire (Cambridge University Press, 1913). 2 Cf Girard, 230 (5th ed., 237) ; May, 59. 3 Amongst "juristic" persons civilians distuiguisli between "corporations" and " foundations," in respect that the former have their personality and rights vested in an abstract total entity and not in the aggregate of individual persons composing that abstraction ; whereas " foundations," strictly so called, are juristic persons not visibly embodied in individual natural persons — such as hospitals, charitable trusts, churches, and such institutions having a beneficent purpose thus personified. CHAPTER II Section 2. — Caput and Status The two terms caput and stahis were employed by the Romans with reference to the "jural" or legal capacity of a person. Caput signified the sum of a person's legal capacities.^ Status signified, generally, the position or estimation which a person occupied in the eye of the law.^ The statiis of a person was determined by the degree of caput which he possessed, his status being the aggregate of his rights.* These two terms are thus correlative. The status of a slave, for example, was the non-possession of caputs The Eoman Law considered the jural capacity of an individual person under three heads {capita), having reference, respectively, to the fact of being free, of being a Eoman citizen, and of being a member of a Eoman family, and these considerations represented the measure of the individual's legal capacity. In other words, the possession of freedom (libertas), of Eoman citizenship (civitas), and of family rights (familia), were the essential elements in the consideration and deter- mination of a person's status and caput.^ It was with reference only to these three elements that the Eoman Law invested an individual within the Eoman State with private rights; to a freeman, as such, it accorded only such rights as were based upon the jus gentium. " The civis [i.e. Eoman citizen] possessed far more rights, even in the field of private law, than the free peregrinus [i.e. non-citizen or foreigner], and many of these he enjoyed, not through being a civis, but because he was a member of a definite Eoman family." ^ This view of jural capacity was peculiar to the Eoman Law, and entirely differs from that of modern times, which considers that any ' Cf. Muirhead, Roman Law, 121 ; Mackenzie, Roman Law, 69. 2 See Moyle, Inst. 156. 3 Cf. Moyle, Inat. 86. * See ante, p. 70, and "Slavery," post. Chapter V., Section 22, pp. 111-116; Big. iv. 5, 3, 1 ; Inst. i. 16, 4. ^ Cf. Muirhead, Roman Law, 2nd ed., 121; Girard, Mantiel de Droit Romain, 87 (5th ed., 91); May, ilemants de Droit Romain, 61; Didier-Pailh§, Cours de Droit Romain, i. 7; Cuq, Institutions Juridiques des Romains, ii. 68. " Moyle, Instiiutes of Jimtinian, 4th ed., 86. 73 74 CAPITIS DEMINUTIO [part ii. person may acquire full private rights in any territory within which he may be domiciled without the necessity of any arbitrary qualifica- tions such as the Eoman Law regarded as essential elements in the acquisition and determination of legal status and capacity.^ Section 3. — Capitis Deminutio^ A person might undergo a loss or a change of status or jural capacity ; such a loss of status was styled capitis deminutio (literally, " a lessening of caput" or legal capacity), and it was of three degrees, known respectively as " the greatest " {capitis deminutio maxima), " the less " or " the intermediate " {cap. dem. minor or media), and " the least " {cap. dem. minima)? Section 4. — Capitis Deminutio Maxima The " greatest " change of status {capitis deminutio maxima) was suffered when a free Eoman citizen lost his liberty and became thereby in the position of a slave, in any of the circumstances in which slavery might be created.* The loss of liberty {liheHas) involved the loss of the lesser elements- of citizenship and ot family. The loss of liberty through capture in war did not, however, destroy, but only suspended the civil rights of a Eoman citizen, which revived by the operation of a legal fiction known as the jus postliminii, if the captive recovered, by any means,^ his liberty, and returned either to Eoman territory or to that of a friendly State.*' The fiction of postliminium was introduced by the jurists upon grounds of both equity'' and convenience,* and by it a person was placed, as far as possible, in the position as if he had never lost his liberty, to the efiect of entitling him to the enjoyment of all rights that ' Cf. Moyle, ut supra. ''^ See on cap. deminutio, Muirhead, Roman Law, 2nd ed., 121 it seq., and Appendix, note (6), 422 et seq.; Moyle, Inst. 155-158, aunA' Excursus, i. 181; Hunter, Roman Law, 214 et seq.; Roby, Roman Private Law, i. 41, 45; ii. 266; Sohm, Institutes of Roman Law, 3rd ed., 178 ; Girard, Manuel de Droit Romain, 186 et seq. (5th ed., 192); May, Elem^its de Droit Romain, 149 et seq.; Didier-Pailhfe, Droit Romain, i. 123-127 ; Cuq, Institutions Juridiques des Romain, i. 200-204. 2 Justinian, Inst. i. 16 ; Gaiua, Iiut. i. 159. « See " Slavery ,'>os<. Chapter V., Section 21, p. 109. 6 Dig. xlix. 15, 26. Justinian, Inst. i. 12, 5 ; Gains, Inst. i. 129 ; Dig. xlix. 15, 19 3. 7 Cf. Dig. xlix. 15, 19 pr. 8 Cf. Dig. 1. 16, 3, 1. SECT. 4] CAPITIS DEMINUTIO MAXIMA 75 might have accrued to him during his captivity.^ Loss of liberty by capture thus merely created a period of " civil," as distinguished from " natural " death so long as the captivity continued. The fiction of postliminium, however, did not apply originally to the case of a free-born Koman citizen dying in captivity, in ■which circum- stances be would die as a slave. The inconvenient effects of such a theory upon the law of the family and of succession ^ necessitated a modification of this rule, and in B.C. 81 the Lex Cornelia extended the fiction of postliminium, by providing that a free-born citizen dying in captivity should be held to have died at the moment of capture, and not at the instant of death, thus putting him in the position of having died free : thus the return of a captive ascendant revived, ipso facto, his potestas ; ^ or his death in captivity rendered sui juris those persons who were formerly under his potestas, as from the moment of capture ; * and a will made prior to captivity was effective either on his return, by the jus postlim,inii, or on the death of the testator in captivity in terms of the Lex Cornelia. In order that the fiction of postliminium might apply, the capture required to have been on the part of another State, though not neces- sarily during a state of war ; ^ it required, moreover, to have been an actual capture, and not one due to either surrender "^ or desertion.'' Further, the person recovering his liberty must have recovered it with no intention of either remaining with^ or of returning to the enemy,* as the ease might be. The fact that, in order that the fiction of postliminium should apply, the capture required to be on the part of some other State excluded from the application of the fiction the case of capture by brigands, or by pirates, or by parties during a civil war, which circumstances did not in any way affect a person's statics,^" and he continued to be ^ Justinian, Inst. i. 12, 5 ; Dig. xlix. 15, 21, 6. ^ Cf. Big. 1. 16, 3, 1. The children of slaves could not inherit. ^ Justinian, Inst. i. 12, 5. * Justinian, Inst. i. 12, 5. 5 Big. xlix. 15, 12 pr. " Big. xlix. 15, 17. ^ Big. xhx. 15, 19, 4. 8 Big. xlix. 15, 20. ^ Big. xlix. 15, 26. In this connection there may be cited the well-known historical instance of M. Eegulua, who was captured by the Carthaginians in B.C. 255, and was in b.c. 250 sent by them to Rome to endeavour to obtain favourable terms of peace, upon an express promise given by him to return to Carthage if he should be unsuccessful. His intention to return was considered to exclude him from the application of the jus postliminii, and his status as a captive was consequently not affected by his return to Rome {Big. xlix. 15, 5, 3). The same principle was applied in the case of the captives sent to Eome by Hannibal, after the battle of Cannae, in order to negotiate (Gell. vi. 1 8). 10 Big. xlix. 15, 24 ; xlix. 15, 19, 2. Y6 CAPITIS DEMINUTIO MEDIA OR MINOR [PART ii. regarded by the law as free, and retained his rights as a free citizen.^ Postliminium applied to both persons and property, and it signified, generally, the recovery of civil rights by a person returned from captivity, or the recovery of rights over either a person or a thing recovered from possession of a hostile State.^ The former is an active and the latter a passive signification, connoted by modern civilians by the expressions postliminium activum and passivum respectively. The necessity for the fiction of postliminium arose from the fact that Roman Law, in common with ancient law generally, regarded capture in war as a good title to both the person and the property of the captive.^ The benefit of the jus postliminii did not extend to persons sold into slavery by their fathers, or by the Roman people. Justinian, following Scaevola, derives the term postliminium from post and limen,'^ and, as such, signifying the crossing of a " threshold " or boundary. Poste, however, considers the word postliminium, as derived from "pot," the root oi potesfas or possessio, and limen or stlimen, equi- valent to ligamen, and denoting, consequently, " the bridging over of the interval of captivity by a fiction of continued capacity or possession, as a doorway is bridged over by a lintel (limen)." ^ Section 5. — Capitis Deminutio Media or Minor The "lesser" loss of status, or that one "intermediate" {media) between "the greatest'' {maxima) and "the least" {minima) was suffered when a Roman citizen, while retaining his freedom, lost his rights of citizenship.® The loss of citizenship involved the loss of family rights, since these could only be enjoyed by citizens. Capitis deminutio media involved the loss of both the public and the private rights of citizenship, the former consisting of the jus suffragii or the right of voting for public offices, and of the jms honorum or the right of holding public offices, while the latter comprised the jtcs commercii, or the right of acquiring and owning property and of making contracts in the forms of the jiis civile, competent only to Roman citizens, and the/ws connuhii, or the right to contract regular marriage, according to the forms peculiar to the jus civile!' 1 Dig. xlix. 15, 21, 1. 2 Poste, Institutes of Gains, 4th ed., 80. ^ Hunter, Roman Law, 216. * Justinian, Irist. i. 12, 5. * Poste, Institutes of Oaius, 4th ed., 80. ^ Justinian, I-nsi. i. 16, 2 ; Gaius, Inst. i. 161. ' See joos<, Chapter IV., Section 17 (a), p. 102. SECT. 5] CAPITIS DEMINUTIO MEDIA OR MINOR 77 Capitis deminutio media (or minor) took place when a citizen became a Latin colonist/ or was outlawed,^ or was deported as a punishment for erime,^ or deserted to the enemy.* Outlawry was effected by a citizen being denied the necessaries of life through the " interdiction of fire and water " (aquae et ignis inter- dictio). This procedure was necessitated by reason of the maxim of the Roman Law that no one could cease to be a citizen against his will, and he was therefore placed in such a position as to be compelled to withdraw from Rome in order to live. Interdiction of fire and water was a form of perpetual banishment which, however, did not, in the time of Justinian (although it had done so previously), in common with simple banishment^ (relegatio), involve loss of liberty. It was super- seded, in the time of Augustus, by " deportation to an island " (deportatio insulae), by which a person, while retaining his personal liberty, was confined within strictly defined limits under penalty of death if he transgressed them ; it was in effect banishment for life.^ The effect of "deportation," as had been that of "interdiction of fire and water," was to create a state of civil death,^ which terminated all family and private rights under the Roman Law, and placed the deported person in the position of a peregrin (peregrinus).^ A "deported" person, however, might be pardoned in certain circumstances, and per- mitted to return ; in such a case his rights as a citizen revived, and he was, as far as possible, restored to the position in which he had formerly stood, as if he had never been deported : he Vas then said to have been restitutus in integrum.^ " Deportation " must not be confounded with that form of simple banishment or exile (exilium) known as "relegation" (relegatio), which did not involve either any loss of status or forfeiture of property.'* A person who was "relegated" (relegatus) or exiled was prohibited, either during life or for a limited period, from entering any particular district, or was restricted in his movements to the limits of either an island or of some particular region,ii but he retained his potestas over his children, or remained under the power (potestas) of his paterfamilias as the case might be.^^ ' Gaius, Inst. i. 131, see Section 25, at p. 121. ^ Justinian, Inst. i. 16, 2 ; Gaius, Inst. i. 161. ^ Justinian, Inst. i. 12, 1 ; Gaius, Inst. i. 128. * Big. iv. 5, 5, 1. 5 Big. 1. 13, 5, 3. " Big. xlviii. 29, 2 ; xlviii. 22, 18, 1 ; xlviii. 22, 15 pr. ' Big. xxxvii. 4, 10, 8. ^ Ulpian, Reg. 10, 3. ^ Code, ix. 51, 1 ; Justinian, Inst. i. 12, 1 ; Gaius, Inst. i. 128. w Big. xlviii. 22, 4 ; xlviii. 22, 18 ; List. i. 12, 2. " Big. xlviii. 22, 7 ; xlviii. 22, 5. 12 Justinian, Inst. i. 12, 2 ; Big. xlviii. 22, 4. V8 CAPITIS DEMINUTIO MINIMA [part li. Section 6. — Capitis Deminutio Minima The " least " change of status (capitis deminutio minima) was suffered when a Eoman citizen ceased to be a member of a particular " agnatic " family,! but retained both his citizenship and his liberty.^ Capitis deminutio minima might arise in any of three sets of circumstances, namely — (1) when a person sui juris or legally independent of the authority of the family head (paterfamilias) became alieni juris, or subject to such family authority, as when a paterfamilias gave himself in arrogation,^ and thereby passed under the potestas or authority of his adopted parent; or when a person was legitimated,* or when a woman who was sui juris came under the manus, or marital authority of her husband by " confarreation " or by " coemption : " ^ (2) when a person alieni juris ^became sui juris, as when a child was emancipated from the patria potestas, or when a wife in manu ^ of her husband was re-mancipated and thus freed from his authority. Although in both of these cases the change there operated was one from a state of dependence to a state of independence, such persons were considered to have under- gone capitis deminutio ; but no capitis deminutio was considered to have been suffered when children became sui juris on the death of the paterfamilias, or when a filiusfamilias was consecrated as a priest (Jlamen), or when a filiafamilias was consecrated as a vestal virgin. The ground of this distinction was that in the first case the change consisted in the disappearance of the family head but not in the loss of the family, and in the two last cases the persons passed from a human to a divine family by the fact of consecration.' Capitis deminutio minima might also arise (3) when a person already alieni juris passed from the family authority of one person into that of another, as by adoption ; ^ or passed from the authority of a family head or paterfamilias and became thereby sui juris or independent, as by emancipation.^ 1 See on the "agnatic'' family, "The Roman Family Organisation," post, Chapter VI., Section 28, p. 129. 2 Justinian, Inst. i. 16, 3 ; Gaius, Inst. i. 162. Cf. Moyle, Inst. 156, s. 3. "The essence of capitis deminutio minima is the leaving, by the minutus, of his previous agnatic family." 3 See " Arrogation," ^o««, Chapter VI., Section 33 (a), p. 141. * See " Legitimation," post, Chapter VI., Section 36, p. 148. <> See "Marriage," post, Chapter VI., Section 37, pp. 151-157. ^ He Mamis, see reference in note 5, supra. ' Cf. Muirhead, RomxMi Law, 123 ; Moyle, In^t. 157. 8 See on " Adoption," Chapter VI., Sections 33-35, pp. 140-148. " See on " Emancipation," post. Section 32, at p. 138. SECT. ;] EFFECTS OF CAPITIS DEMINUTIO 79 There has been much discussion as to whether capitis deminutio minima necessarily involved a descent in status, or merely signified a change in the family scale. It is possible to reconcile the conflicting views by assuming that the material and determining factor was not whether any change of family position or status had taken place, but whether there had been an actual change of family ; and this is con- sistent with the alternative description of capitis deminutio minima as mutatio familiae or "a change of family." In this view a person becoming sui juris from being alieiti jtiris underwent capitis deminutio in so far as his former personality or character was thereby extinguished; and it would be the same in the case of a person already alieni juris passing into the authority (Jus) of another person, as in adoption, or in the case of children of a personv arrogated. It would thus be immaterial, and a capitis deminutio would be operated, whether the Change was actually to the benefit or to the detriment of the person's family position.! Section 7. — Effects of Capitis Deminutio The general effects of cajntis demimdio miniina were to extinguish potestas, and to sever the agnatic tie between the person capite minutus and all those persons previously related to him as agnates,^ and to deprive the person undergoing it of all rights previously possessed by him as a member of the family left. Thus a person sui juris on becoming alieni juris lost all rights of property and of testation, and acquired instead only such rights as were competent to a filiusfamilias or a son subject to the family authority of a 2Mterfamilias or Family Head, and a person alieni juris on passing under the authority (jus) of another person as by adoption lost all rights previously possessed by him as a suus haeres in his former family, and could not, therefore, succeed on intestacy or demand to be instituted heir, or to be disinherited by name. Capitis deminutio in any form extinguished civil debts,^ on the ground that a person capite mimdus was civilly dead as regards his iovraev persoTia or character, and, moreover, without leaving any heir against whom an action under the jus civile could be directed. Such persons, however, notwithstanding their capitis deminutio, continued to be "naturally" bound,* and an equitable praetorian action was 1 See upon the controversy regarding cap. dem. minima, Poste, Institutes of Gains, 4th ed., 98 ; Moyle, Institutes of Justinian, 181-184 ; Muirhead, Roman Law, 123, 124 ; Hunter, Roman Law, 219, 220. ^ Cognation, or blood or " natural " relationship, however, was only destroyed by cap. dem. maxima and media. Of. Justinian, Inst. i. 16, 6. 3 Gaius, iii. 84 ; iv. 38. * See "Natural Obligations," post. Part IV., Chapter I., Section 101, pp. 300-302. 80 EXISTIMATIONIS MINUTIO— INFAMIA [part ii. provided for the enforcement of the rights of creditors in such cases.^ Liability for delictual acts, however, was not extinguished by capitis deminuiio. Under the older law any form of capitis deminutio extinguished the personal servitudes of " usufruct " and of " use " (usus),^ but according to the Justinianian law only capitis deminutio maxima and media had that effect. Capitis deminutio invalidated a will by reason of the rule of law that the testamentary capacity of a person must continue from the time of making the will to the moment of death ; ^ and it was also regarded as terminating an existing partnership,* on the ground that the person minutus was civilly dead : * a person who was minutus became by the fact of minutio an entirely new persona. Section 8. — Existimationis Minutio — Infamia^ A Eoman citizen was regarded as possessing, in virtue of his citizen- ship (civitas), a certain degree of dignity, or public esteem, which was known as " existimation " {existimatio). A citizen's " existimation " was his personal honour or good reputation (jbona fama), and it was liable to be either entirely or only partially lostJ Existimatio was entirely lost or " consumed " if citizenship (civitas), upon the fact and possession of which it was based, was lost by either capitis deviinutio maxima or media ; ^ while it might be " diminished," to a greater or less degree, without being actually destroyed or con- sumed, if a citizen was guilty of dishonourable personal conduct suii&cient, in the view of the law, to justify a limitation of civil rights. In the latter case a person incurred in/amia, or "infamy,"' which involved a lessening of his existimatio, or a loss of public esteem as a citizen. 1 Cf. " Airog&tion," post, Section 33, at pp. 141-143. 2 See on "Usufruct," post. Part III., Chapter VIII., Section 91, pp. 279-285, and on "XJsus," ibid., pp. 286-287. But the lesser personal servitudes of "habita- tion" (habitatio) (see p. 287), and "services of slaves or of animals" (operas semorum vel animalium) (see p. 288) were not extinguished by cap. dem. minima, even prior to the time of Justinian (see " Personal Servitudes," post, Part III., Section 90, p. 278). ^ Cf. Muirhead, Roman Law, 125. * See " Partnership," ^osi!. Part IV., Chapter IX., Sections 138-141, pp. 417-424. 5 Gains, Inst. iii. 153. " See Greenidge, Infamia in Roman Law ; Moyle, Inst. 157, 158, 613, 614 ; Muirhead, Roman Law, 424 ; Poate, Institutes of Oaim, 4th ed., i. 161 ; Hunter, Roman Law, 1038-1040, 1043 ; Sohm, Institutes of Roman Law, 3rd ed., 182. 7 Dig. 1. 13, 5, 1, 2. 8 Big. 1. 13, 5, 3. SECT. 8] EXISTIMATIONIS MINUTIO— INFAMIA 81 Infamia, however, though involving disgrace and moral censure, which carried with them legal punishment in the form of loss of civil rights, did not necessarily involve capitis deminutio, although it was analogous to it; nor, conversely, did capitis deminutio necessarily involve infamia.^ The generic term for loss of public esteem, or good reputation {tninutio existimationis), was ignominia, or " ignominy " ; and this was incurred when a citizen, by his personal conduct, put himself into a position defined in the Praetorian Edict as involving " infamy." ^ The oldest form of minutio existimationis is traceable to an enact- ment, supposed to have been included in the Twelve Tables, by which citizens guilty of certain crimes were declared improbi and intestahiles ; and a citizen's civic reputation was also affected, in earlier Roman times, by suhscriptio or nota censoria, which was the setting of a mark against the name of a citizen by the Censor, when making out his official lists of classes and divisions, on account of dishonesty or profligacy ; and such " suhscriptio " had the effect of excluding persons from the public service and from the exercise of certain public rights. The most frequent cause of minutio existimationis, however, was infamia, which, though known to the earlier law, was developed, and assumed a definite form, in the Praetorian Edict as an instrument of morality and justice, and the Edict defined the circumstances in which "infamy" would be incurred and the disabilities and penalties that would attach to it.^ Infamia resulted from condemnation in a judicixim publicum or public trial,* and it was also involved by condemnation in various civil actions based upon allegations or implications of fraud or dishonourable conduct, such as actions on account of fraud, theft, robbery, or injuria ; and in the actions tutelae,^ mandati^ depositi^ and pro socio.^ Persons thus branded with "infamy" included fraudulent tutors, curators, partners, depositaries, mandataries, sellers, and bankrupts; also persons discharged from the army with ignominy, persons guilty of 1 Justinian, Inst. i. 16, 5 ; Dig. i. 9, 3. See also Greenidge, Infamia, 5 et seq.; Poste, Institutes of Gains, 4th ed., 96. 2 Dig. iii. 2, 1. Cf. Moyle, Inst. 614 ; also on term ignominia, cf. Boby, Roman Private Law, ii. 327, note 1. 3 Moyle, Inst. 158; Poste, Gains, nt supra. * A " public trial " was one under a particular statute, such as the Lex Cornelia on assassins and poisoners ; Lex Pompeia on parricides ; the Leges Juliae on treason, adultery, peculation, private or public violence, canvassing, extortion; and the Lex Fahia on kidnapping. See Eoby, Roman Private Law, ii. 328, note 4. 5 See Chapter VII., Section 65, p. 208. 8 See Part IV., Chapter IX., Section 145, p. 433. 7 See Part IV., Chapter VIII., Section 116 (2), p. 363. 8 See Part IV., Chapter IX., Section 141, p. 424. 6 82 • EXISTIMATIONIS MINUTIO— INFAMIA [part il. fraud or of usury, persons condemned for taking advantage of minors,^ guardians marrying their female wards when under age,^ persons false to their oath, and persons exercising what were regarded as dishonour- able callings, such as those of a player or of a procurer.^ Minutio existimationis in the form of infaniia invol-ved serious legal disabilities, both political and civil, and consequent loss of legal capacity. Prior to the time of Justinian an " infamous " person {infamis) lost both the jus suffragii and jiis honorum ; * his jus connuhii or matri- monial rights were restricted by the operation of the Lex Julia de maritandis ordinibus (4 A.D.) ; he lost the right to apply to the Court for legal protection {jus postulandi) ; and he could neither litigate on behalf of others nor appoint a procurator on his own behalf. The Zex Julia of 4 A.D. was afterwards supplemented by the Zex Papia Poppaea (9 A.D.), and the combined statutes were known as the Lex Julia et Papia Po'ppaea. The disabilities attaching to an " infamous " person under this statute were removed by Justinian, and in the time of ■ that Emperor the special disqualifications attaching to infainia either no longer existed or were expressly abolished, and the legal result of infamia by that time was merely that a judge might, in his dis- cretion, attach disabilities to the infamous person ; thus he might refuse to admit him as a witness, or to appoint him as a^guardian, or to permit him to take as heir (haeres) under a will.' 1 See Chapter VII., Section 61, at p. 201. 2 See Chapter VI., Section 39, at pp. 161-162. 3 Cf. Diff. iii. 2, 1. The list of infames here given in the Digest is not exhaustive. Eoby gives a very complete list, taken from that given in the Lex Julia inunicipalis, 110-123, of those disqualified for the municipal council. See Eoby, Roman Private Law, ii. 327-329, and 327, note 2. * See ante, p. 76, and. post, p. 102. ^ By granting to the relatives of the testator the querela inqficiosi testamenti. See on "inofficious testaments," Justinian, Inst. ii. 18 ; Dig. v. 2. CHAPTER III Section 9. — Legal Capacity of Persons The terms statics and caput were used by the Eomans, as we have already seen, to signify the capacity of a legal person (persona) to enjoy and exercise legal rights, and to incur legal obligations, both public and private.^ The legal capacity of different persons differed in degree, and might be qualified or limited, either wholly or partially, by such general circumstances as those of sex,^ birth,* age,* or mental condition,^ and also by reason of certain special circumstances, which will be men- tioned further on,® and which limited, for the most part, temporarily and partially, the legal capacity of persons otherwise possessing full legal status. Stated in another way, legal incapacity was based upon three general grounds : (1) It might be due to actual mental weakness or its equivalent, as in the case of insane persons and infants, in which case it was total or absolute ; (2) it might exist by reason of defective status created by the circumstances of sex, birth, or age, in which case it was only partial; or (3) it might be occasioned by certain special circumstances, such as, e.g., the holding of some particular office, which gave rise to certain disabilities, usually of a partial and temporary nature. Section 10. — Limitation of Legal Capacity by Sex The legal capacity of women was restricted by the Eoman Law on account of their sex and its presumed weakness of disposition.'' Women could not fill public offices {puhlica munera) or act as magistrates, judges, advocates, or procurators ; * nor could women in general act as tutors 1 See ante. Chapter II., Section 2, p. 73. 2 See infra. Section 10. 3 See post, p. 87, Sections 11-13. * Bee post, p. 89, Section 14. ■5 See post, p. 93, Section 15. i- Seepost,Tpp. 95-101, Section 16. 7 Of. Gains, Inst. i. 190. 8 Dig. 1. 17, 2 pr. ; Code, ii. 13, 18 ; ii. 13, 4 ; Paul, Sent. i. 2, 1. 83 84 LIMITATION OF LEGAL CAPACITY BY SEX [part ii. to their pupil children who were sui juris. The Emperor Justinian, however, modified this rule to the extent of permitting the mother or the grandmother of a pupil sui juris to act as his tutor : ^ but this concession did not extend to curatory, so that as soon as a pupil attained minority the tutory of the mother or of the grandmother, as the case might be, ipso facto ceased.^ Under the earlier law, women could not adopt because adoption involved the passing of the person adopted under the patria potestas of the adopter, and women could not possess potestas:^ but the Emperors Diocletjan and Maximian, by a " Constitution " in 291 A.D., granted them the right to adopt children as a consolation for the loss of their- own children ; * such adoption, however, did not give women any potestas over the children, but only placed these in the same legal position towards her as her own children would have held.^ Women, however, might always com- petently plead their own causes, although they could not act on behalf of others,^ and in certain circumstances daughters might act for their parents if these were aged or ill and no one could be got to act for themj Women were, for long, under a form of perpetual tutelage, and so long as the agnatic tutelage of women existed as a recognised Eoman institution they were incapable of performing certain legal acts with- out the sanction (auctoritas) of their agnatic guardians. Thus, without such authority, they could not be parties to any legal transaction governed by the strict jus civile, nor could they bind themselves by contract, nor alienate res maticipi * belonging to them, but they might, competently dispose of res nee mancipi in any way they pleased,^ and, bind themselves by transactions jure gentium without the authority of their agnatic tutors. The agnatic tutelage of women had as its- object the protection of the interests of their heirs who were their agnates, and not the protection of the interests of the women themselves. The rules of agnatic tutelage of women of full age ^° {legitima tutelcu agnatorum) were originally, and for long, very strictly applied and 1 Nov. 118, 5. Gf. Hunter, Roman Law, 4th ed., 718. s See p. 85, and also "Tutory of Pupils," post, p. 190, and "Curatory of! MSmova,'' post, p. 201. ^ Gaius, Inst. i. 104. * Justinian, Inst. i. 11, 10 ; Code, viii. 48, 5. 5 See " Who Could Adopt," post, Section 34, p. 145. ^ Cf. Mackenzie, Roman laiu, 448 and 462, Appendix. 7 Dig. iii. 3, 41. 8 Seeposi, Part III., Section 67 (g), p. 216. " See ibid. '" But vestal virgins were always exempted (Gaius, i. 145). SECT. 10] LIMITATION OF LEGAL CAPACITY BY SEX 85 construed, but they came in time to be gradually relaxed, and by the time of Gaius the institution had ceased to be of importance. By that time, indeed, in those cases where the tutor's sanction was still requisite, it was purely formal, and could be demanded, except in certain exceptional circumstances, as where the tutelage (tutela) was that of a patron or of a parens manumissor, and the woman desired to' alienate her res mancipi, or to incur an obligation, or to make a will. The Lex Julia et Papia Poppaea (9 a.d.) freed from perpetual tutelage (perpetua tutela) those women who had acquired the special privilege known as the jus liberorum or " the right of children," in respect of which a woman of free birth (ingenua) having three lawful children and a freed woman (lihertina) having four lawful children was entitled to exemption.! Agnatic tutelage of women, except as regards ascendants and patrons, was abolished by the Zex Clattdia^ in 47 a.d., but it yet continued to exist to some effect until the time of Diocletian.^ It had, however, entirely disappeared by the time of Justinian,*, and there is no trace or mention of it in either the Theodosian Code or the Justinianian books.^ Amongst other disabilities women were for long incapable of acting as tutors to their children, but the Justinianian law permitted a mother or grandmother to act as tutor to her pupil children or grandchildren, so long as she did not re-marry, if no testamentary tutor had been nominated.^ But this right did not extend to curatory, and the guardianship of the mother or grandmother consequently ended, ipso facto, upon the pupil attaining minority. Until the time of Diocletian and Maximian (291 a.d.) women, although they could always be adopted, could not lawfully adopt,^ because they could not possess patria potestas; the right to adopt, however, was conceded to women as a special favour — ex indulgentia principis — and as a solace for the loss of their own children.^ But the right to adopt, so conceded, was only a qualified one, for it did not carry with it the acquisition of potestas,^ or the authority of the ' Gaius, Inst. i. 145 ; i. 194. 2 Gaius, Inst. i. 157 ; i. 171. ^ Cf. Girard, Manuel de Droit liomain, 216 (5th ed., 223). * Poste's Gaitis, iii. 170. 6 On tutelage of women see Gaius, Inst. i. 145, 150-154, 157, 168-175, 190, 194, 195 ; ii. 47, 80-85, 122 ; iii. 91, 108, 171. Also see Girard, Droit Remain, 214 et seq. (5th ed., 221-223) ; May, Droit Romain, 140 et seq. ; Didier-Pailhfe, Droit Romain, i. 109 et seq. ; Poste's Oaiits, 110 et seq. « Code, V. 35, 2 ; iVov. 118, ch. 5. See also Mv. 22, ch. 40; 89, ch. 14; 94, 155. ^ See " Adoption," joo»<. Chapter VI., Sections 33-35, pp. 140-148. * Justinian, Inst. i. 11, 10. Cf. Gaius, Inst. i. 104. ' See on Potestas, post, Chapter VI., Section 29, p. 132. 86 LIMITATION OF LEGAL CAPACITY BY SEX [part ii. head of the family, but only such rights as the woman would have had if the person adopted had been her legitimate child.i and the adopted child, although acquiring certain legal rights of succession to the adoptive mother, was not placed in the position of a "legitimate" (legitimus) child, but only in that of a " natural " one.^ Women were, further, unable to give themselves in arrogation^ until the reign of Diocletian, when that was rendered legally possible by the substitution of an Imperial rescript for the resolution of the Gomitia Curiata, in presence of which all proceedings in adoption had previously taken place, and to which assembly women had not the right of access.* By the Lex Voconia women could not competently be instituted heirs to a testator registered in the census roll as possessing upwards of 100,000 asses, and they could not take as legatees more than half the testator's estate.^ Female agnates were also, until the time of Justinian, under certain disabilities in regard to intestate succession.* The Senatus-GmisuHum VeUeianum, passed in the reign of the Emperor -Claudius, about 46 a.d., prohibited women from becoming sureties, or, in any form, undertaking liabilities on behalf of other persons. As if to counterbalance all these sex disabilities, women enjoyed certain privileges in respect of which the ordinary rules of the law were relaxed in their favour : thus women, in common with minors and soldiers who, owing to their sex, or age, or circumstances, and lack of opportunity — as, for example, by being absent on military service — were presumably unable to obtain an exact knowledge of the law, and peasants (rustici) by reason of their presumed lack of education, might competently plead an error of law as well as an error of fact in order to escape the legal consequences of their acts or omissions ; '^ but this privilege was partially abrogated, in 472 a.d., by a Constitution of the Emperor Leo.^ The punishments inflicted upon women were, ' Code, viii. 48, 5. See post, Section 34, p. 146. 2 The term " natural " is here used in the sense peculiar to the Roman Law of a child born in the recognised relationship of concubinage, and did not signify a bastard, for which the special term spurius was employed. ^ See " Arrogation," post. Section 33 (a), p. 141. * Dig. i. 7, 21; Ulpian, Frag. viii. 5. B&e post, Section 33, at p. 142. ^ The supposed date of the Lex Voconia is 169 b.c. According to Theophilus, it was a plebiscitum carried by Q. Voconius Saxa, Tribune of the Plebs, at the instance of the elder Cato. ° See Hunter, Rmnan Law, 858, 859. ■^ Cf. Dig. xxii. 6, 9 pr. See on the distinction between "error of fact" and an " error in law," post, p. 439 (Part IV., Chapter X., Section 150). ^ Code, i. 18, 13 ; Poste, Gains, 111. SECT. 12] LAWFUL AND UNLAWFUL BIRTH 87 moreover, sometimes less severe than those to which men were subjected.^ Section 11. — Limitation of Legal Capacity by Bikth. What Constitutes Birth In order that a child should be invested with personality and acquire the position of a legal " person," the Eoman Law required that a child should have been born alive; in other words, live birth was a pre-requisite for the acquisition of legal personality. This requisite involved, on the part of the child, complete separation from the body of the mother, followed by breathing. Any indication of life was sufficient to satisfy this requirement, and by the Justinianian law, giving effect to the view of the Sal3inian school of jurists,^ no special sign of life, such as that of the child having been heard to cry, was requisite in order to invest the child with legal personality ; ^ for which purpose, moreover, even a moment of life sufficed.* Until the live birth of a child had been fully established no one could derive any benefit through the child, but an unborn child in utero had its patrimonial interests protected by the law as if it were already born ; ^ so the share of an unborn child in the succession of its deceased father was reserved pending its birth. Section 12. — Lawful and Unlawful Birth A child might be born either lawfully or unlawfully, and its legal capacity varied accordingly. A lawful or " legitimate " child was one born as the offspring of a man and a woman united in marriage according to the forms required by the law, whereas an unlawful or " illegitimate " child was one born of a man and a woman not lawfully married. According to the Eoman Law illegitimate children fell within either of two categories, according as they were the issue of concubinage •> or of promiscuous intercourse. Concubinage was the more or less permanent union of a man and a woman, although not united in marriage ; it was a recognised Eoman legal institution, and the children of such a union ' JS'ov. 134, ch. 9; Mackenzie, Roman Law, 72. 2 See ante, p. 37, note 1. s Code, vi. 29, 3. * See and cf. upon the question of " live " birth, Taylor, Medical Jur. 4th ed., vol. ii., pp. 212-220 ; 6th ed. (1910), vol. ii., pp. 190-228. 5 Big. i. 5, 7. <> See post, " Concubinage," Chapter VI., Section 50, p. 184. 88 LEGAL CAPACITY OF PERSONS [part ii. were regarded more favourably by the law than were the offspring of parents between whom there was no relation either of lawful marriage or of concubinage. The offspring of concubinage were known in Eoman Law as " natural " children, whereas the children of parents who were not related to each other by either lawful marriage or concubinage were known as " spurious " children,^ or bastards. In modern legal systems that do not recognise concubinage there is no such distinction between "natural" and "spurious" children, both falling within the category of bastard or illegitimate children. Lawful or legitimate children born in civil wedlock took their status, according to the Eoman Law, from that of their father at the time of conception^ whereas the status of illegitimate children, whether "natural" or "spurious," was determined by that of the mother at the time of hirth? The Eoman Law did not recognise any legal relationship as existing between illegitimate children and their father, or any reciprocal rights and duties as arising between them." The illegitimate child was sui juris or independent of paternal family authority (patria potestas), because such authority as a part of Eoman family law, only resulted from lawful marriage.* Illegitimate children, however, were recognised as relations of the mother, between whom subsisted certain reciprocal rights and duties. In the time of Gains the rule fixing the status of an illegitimate child by that of the mother at the time of birth was modified to the effect that the child of a slave woman who had been free at any time between the time of conception and the time of birth was to be regarded as born free.^ Section 13. — Legal Capacity of Persons Born of Parents of Unequal Status The rules for determining the legal status of the offspring of parents of unequal status were, stated generally, that children born in lawful marriage took the status of the father at the time of conception, while a child born out of lawful marriage followed the status of the mother at the time of birth.^ ^ Spurii, vulgo quaesiti (cf. Dig. i. 5, 23). Sometimes the term "natural" is applied in the Roman Law in a special sense to children bom of a lawful marriage, in contradistinction to those that have been adopted. 2 Cf. Gains, i. 88, 89, 94 ; Dig. i. 5, 24 ; i. 5, 19. 3 On this question of " Status," see further, Section 13, infra. * See " Marriage," joosJ, Section 37, p. 151. 5 Justinian, Imt. i. 4 pr. ; Gaius, Inst. i. 89, 90 ; Paul, ii. 24, 2 ; Dig. i. 5 5 " Cf. Gaius, Inst. i. 76-92. See Poste's Gaii(^, 59. ' SECT. 14] LIMITATION OF LEGAL CAPACITY BY AGE 89 Lawful marriage, in the view of the Eomail La"w, might be either (a) civil or " regular," according to the forms peculiar to the jus civile, or (5) according to the forms of the jus gentium. , In the case of " civil " marriage the children followed the status of the father, but in "gentile" or jus gentium marriage the legal condition of the children was fixed, according, to the terms of the Lex Minicia,^ by that of the parent of lower status : ^ thus the children of a " peregrin " or " non-citizen " father (peregrinus) and a Eoman mother {civis Bomana) were regarded as peregrins ; so a,lEO were the children of a Eoman citizen (civis Bomanus) and a peregrin mother (peregrina).- If, however, a peregrin possessed the special privilege of the right of marriage according to the forms of the jus civile — i.e. jus connuhii — the ordinary rule of the jus civile to the effect that children follow the status of their father would, in such a ease, apply ; and thus the offspring of a citizen father and a privileged peregrin mother, and the children of a female Eoman citizen and a privileged peregrin father would be citizens.^ Section 14. — Limitation of Legal Capacity by Age The Eoman Law fixed the limit of legal incapacity by reason of age alone at twenty-five years complete ; above that age the person was a " major " and below that age a " minor." The age of " majority " was known as perfecta aetas, and when a person attained that age he was regarded by the law as fully capable of acting in all matters on his own behalf without the necessity for the intervention of _ the authority of a curator or guardian. The period of " minority " was subdivided according as persons had or had not attained " puberty," which was, in the case of males, fourteen, and, in the case of females, twelve years. Males and females below these respective ages, but above the age of seven years, were called "pupils." All children, male and female, below seven years of age were called " infants." * (a) Capacity of Pupils^ The legal capacity of a pupil was, generally speaking, partial, and the approval (auctoritas) of a " tutor " or guardian was essential to the ' Date uncertain, but before 90 B.C. 2 Of. Biff. i. 5, 24; Poste, Gains, 56, 67, 59. ' See on " Eoman Citizenship," and the public and private rights included in it, Chapter IV., Section 17 (a), p. 102 ; and see on" Special Grant of Citizenship to Aliens" (peregrini). Section 17 (b), p. 103. See Gaius, Inst. i. 56, 76, 77. * Code, vi. 30, 18 pr. = See also "Tutory of Pupils," posit, Chapter VII., Sections 52-57, pp. 189-198. 90 LIMITATION OF LEGAL CAPACITY BY AGE [part ii. validity of his acts". A pupil was iucapable of contracting obligations, or of alienating property, or of entering into any transaction without the consent of his tutor, unless such transaction was one which was wholly beneficial to the pupil — in other words, unless it was one which did not involve, or impose upon the pupil any obligation or burden correspond- ing or reciprocal to the benefit received by him from the undertaking. This provision of the law proceeded upon the principle or rule that a pupil could make his position better, but not worse, without the authorisation of his tutor :^ stated otherwise, a pupil could acquire rights, and bind other persons to himself, but could not incur liabilities without the sanction of his tutor.^ There were certain acts, moreover, which a pupil was absolutely incapable of doing, even with the consent of his tutor ; he could not contract marriage, or make a testament. Thus a pupil could not, by himself, grant a valid -discharge of a debt, and he could not, without tutorial sanction, pay a debt to the effect of making his creditor owner of the money, nor could money lent to a pupil under a mutuum^ without the approval of his tutor, be legally recovered. But although payment of a debt to a pupil without the intervention of his tutor did not discharge the obligation, and the tutor might thereafter competently sue for the debt, he might yet be met on the part of the debtor by the plea of fraud ; the debt, moreover, would be extinguished so far as the money paid was still in the pupil's possession. In all cases of reciprocal obligation, as in the contracts of buying, selling, letting, hiring, mandate, or deposit, the person contracting with the pupil was bound by the contract, but the pupil himself was not bound unless his tutor had sanctioned the transaction.* In equity, however, the Praetor did not permit a pupil at once to enjoy the benefit of a contract and at the same time be himself free from obligation.* A pupil child under potestas could not bind himself even with his father's consent.^ Obligations contracted by a pupil without the sanction of his tutor, although not legally valid and enforceable, were, 1 Justinian, Inst. i. 21 pr. ; ii. 8, 2 ; Dig. xix. 1, 13, 29. See also at p. 194 (Section 55, Chapter VII.), and compare the incapacity of an interdicted prodigal, at p. 206 (Section 63, Chapter VII.). 2 Justinian, Imt. iii. 19, 9 ; Gaiua, Inst. iii. 107-109 ; Dig. xxvi. 8, 9 pr. ; Code, viii. 39, 1. 2 See Contract of J/utuum, Part IV., Section 114, p. 353. * Justinian, Inst. i. 21 pr. '' Dig. xliv. 1, 4. ^ Justinian, Inst. iii. 19, 10. SECT. 14] LIMITATION OF LEGAL CAPACITY BY AGE 91 nevertheless, " natural " obligations, and, as such, could be pleaded by way of exception or defence.'- The legal incapacity of Infants, below seven years of age, to perform any acts, with or without the consent of a tutor, was absolute, because, in respect of their lack of understanding (infdledvs), and of judgment (judicium), they were regarded as in much the same position as insane persons.^ (b) Crqmcity of Minors^ A MiNOE, or person above the age of puberty but under that of majority,* who had not a curator or guardian, possessed full legal capacity, and might dispose of his property and make binding contracts, even to the extent of becoming a surety for another person ; ^ but a special remedy of rescission was extended to a minor by the Praetor, not as a right but as a privilege," if he could prove that the transaction was seriously prejudicial to him,'^ and that it had been entered into by him by reason either of undue advantage having been taken of his youth by the creditor, or merely through youthful inexperience and consequent imprudence alone, in consequence of which ho either (a) had lost something which he possessed, or (6) had missed the oppor- tunity of making some gain which he might have made, or (c) had placed himself under an obligation which he might have declined to undertake.^ This right of rescission was known as restitutio in integrum, and in respect of it a minor, on application to the Praetor, and on proof of " lesion " (laesio) or injury to his material interests, might be " restored " against the injurious transaction, or, otherwise, be put back into such a position as if he had never incurred the obligation.^ But this right of restitution competent to a minor was not absolute ; the transaction sought to be rescinded required to be one that could be shown, to the satisfaction of the judge,, to have caused serious injury 1 Diff. xlvi. 3, 95, 4 ; xlvi. 2, 1,1; xxxv. 2, 21, pr. ; iii. 5, .3, 4, See also Hunter, Roman Law, 607. See on "Natural Obligations," post, Part IV., Section 101, p. 300. 2 Justinian, Inst. iii. 19, 10 ; Gains, Inst. iii. 109 ; Big. xlv. 1, 141, 2. See post, p. 93. 3 See also "Curatory of Minora," post, Chapter VII., Section 61, p. 201. * See ante, p. 89. ij Dig. iv. 4, 7, 3. e Cf. Girard, 2Iamiel, 224 (5th ed., 231). ' Big. iv. 4, 6 ; iv. 4, 7, 1 ; iv. 4, 49. 8 Big. iv. 4, 44 (Monro's Big. 250). ^ Cf. "Curatory of Minors," po.st. Chapter VII., Sections 61-65, pp. 201-208, at p. 203. 92 LIMITATION OF LEGAL CAPACITY BY AGE [part ii. (laesio), and not merely trifling loss or inconvenience.^ The injury, moreover, was estimated as at the date of the transaction and not that when it was impugned or called in question ; and the loss occasioned to the minor required to be one arising from the inherent character of the transaction and not from accident.^ Further, a minor was not entitled to plead " lesion " or injury and to claim " restitution " {restitutio in integrum) if he had himself been fraudulent in the course of the transaction, but he was, in such circum- stances, held bound by what he had done, amd was thus punished for his fraud.^ The transaction also required to be challenged within .a certain period after attaining majority, or the right to call it in question was lost. A person had a period of four years available to him after attaining majority within which to claim "restitution" against injurious transactions incurred by him during minority; this period was known as the quadriennium utile* A person might at any time within that period of four years, if he were sui juris or independent, and not subject to the potestas or family authority of another person, either challenge or homologate an injurious transaction; but if he ratified such a transaction, whether directly, or indirectly — as by pay- ment of interest — after attaining majority he was thereafter barred from impugning it within the remainder of the quadriennium utile? A minor with a curator could not validly bind himself without the curator's consent, and any obligation so undertaken by him might be afterwards challenged, even although there was no allegation of fraud, but only of prejudice ; but if the curator's consent had been obtained the transaction could not, in general, thereafter be challenged.^ The remedy of restitutio in integrum was not confined to minors, but might also be granted by the Praetor, in the exercise of his imjperium and of his equitable discretion, to persons over majority ; and a trans- 1 Cf. Big. iv. 4, 49. ^ Dig. iv. 4, 11, ss. 4, 5. s Dig. iv. 4, 9, 2. ' The period within which application required to be made to the Praetor was originally one year, and was known as the annus utilis, but it was extended by Justinian to four years under the name of qiKtdriennium continuum or utile. Code, ii. 52. ^ Dig. iv. 4, 3, ss. 1 and 2. ' Code, ii. 22, 3. See further as to Minors and Curators, post, Chapter VII., Sections 61-65, pp. 201-208. See on legal capacity of minors generally. Dig. iv. 4. See also, on the restitution of minors, Eoby, Roman Private Law, ii. 259 ; Hunter, Ronmn Law, 608 ; Mackenzie, Roman Law, 155 ; Girard, Manuel de Droit Romain, 223 et seq. (5th ed., 231) ; May, Elements de Droit Romain, 144, 145 ; Didier-Pailh§, Droit Romain, i. 113. SECT. IS] LIMITATION OF LEGAL CAPACITY 93 action that was otherwise legally valid might be rescinded if the person claiming restitution could prove serious injury (laesio) by reason of it, and could, at the same time, satisfy the Praetor that he had, in the circumstances, a good ground (justa causa) for the application, such as, besides minority, fraud (dolus'^), intimidation (metus"^), error,^ or absence in circumstances regarded by the law as sufficient to justify such a claim, as State service, confinement, slavery, or captivity.* In the. case of persons over majority a claim for restitution required to be made within a year from the earliest opportunity available to apply for relief.^ Section 15. — Limitation of Legal Capacity by Mental Condition A person's capacity to perform legal acts, and to exercise legal rights, and incur legal duties, might be limited or qualified, either wholly or partially, by the mental condition of the individual. The mental condition giving rise to the limitation of a person's legal capacity might be due to either (a) mere tenderness of age and consequent inexperience and imprudence, or {b) actiial mental unsound- ness due to disease. When the limitation of capacity was solely due to youthfulness and inexperience the incapacity was, apart from the period of " infancy," " only partial and temporary, but if it was due either to actual mental disease or to infancy^ the limitation was absolute, and continued so long as the mental affection lasted, or until the completion of the period of infancy, as the case might be. By the Eoman Law legal incapacity by reason of mental weakness might arise under four sets of circumstances, namely, insanity, im- puberty, minority, and prodigality, and the degree of incapacity varied in each of these cases. (a) Incapacity due to Insanity and to Infancy The legal incapacity of the Insane was absolute. Such persons were regarded as having no will of their own and so incapable of incurring any obligations involving consent, whether in the character of creditor 1 See post, Part IV., Section 105, at p. 326. ^ See post, ibid. 3 See post. Part IV., Section 104, pp. 323-326. * See on restitution in integrum to persons over majority. Dig. iv. 6; also Eoby, Roman Private Law, ii. 262 ; Muirhead, Roman Law, 350. 5 Dig. iv. 6, 1. ^ See ante, p. 89, also infra. 94 LIMITATION OF LEGAL CAPACITY [part ii. or of debtor, because they entirely lack understanding (intellectus) and judgment (judicium), or the capacity to comprehend the effects of their actions.^ Insanity might assume the form of either acute madness, known as furor, or imbecility, which was styled dementia ; but the form of the insanity was immaterial so far as regarded its effects, which were the same in each case.^ A person suffering from insanity may have periods of clear and normal mental conditions known in modern phraseology as "lucid intervals " ; and the Eoman Law recognised that valid legal acts might be performed, and obligations be incurred, and consent be given during such periods as would legally and effectually bind both the insane person and others.^ Thus a will executed by an insane person during a lucid interval was valid, as was also one made before the person became insane;* but, on the other hand, a testament executed by a perSon legally incapable of doing so was not validated by his subsequent acquisition of capacity.^ The legal incapacity of infants was also, by the Eoman Law, as absolute as that of the insane, because in the case of the latter the mental disease, and in the case of the former the limited degree of mental development natural to extreme tenderness of years, renders them equally and wholly incapable of understanding and judgment.^ (b) Incapacit-i/ due to Iminiherty and to Minority The legal incapacity occasioned by reason of the mental weakness due to impuberty and to minority on account of youth and inexperience and consequent lack of judgment and prudence, was not absolute, but was only partial, and varied in degree ; the law naturally attributed greater inexperience and therefore conceded less legal capacity to a "pupil {imputes) than to a minorJ (c) Incapacity due to Prodigality The Eoman Law regarded 'the inability of spendthrifts or unduly 1 Justinian, Inst. iii. 19, 18, 8 ; Gaius, Imt. iii. 106 ; Dig. xliv. 7, 1, 12 ; Dig. 1. 17, 40. 2 Code, V. 4, 25. 3 Code, iv. 38, 2. * Justinian, Inst. ii. 12, 1. ^ See as to " lucid intervals,'' Taylor, Medical Jurisprudence, 4th ed., vol. ii. ; 482-483 ; and 6tli ed., vol. i. " Justinian, Inst. iii. 19, 10 ; Gaius, Inst. iii. 109. See ante, p. 91. ' See ante. Section 14, p. 89, " Incapacity due to Age." See also " Tutory and Curatory,'' /)o.si;, Chapter VII., Sections 51-65. SECT. i6] LIMITATION OF LEGAL CAPACITY 95 extravagant persons to prudently control and manage their affairs as a form of mental weakness, and therefore limited their legal capacity in various ways. In order to protect " prodigal " or unduly extravagant persons (prodigi) of either sex ^ from the injurious consequences of their own recklessness, and to preserve their property from being dissipated, they might be prohibited or interdicted by the Praetor from managing their own property, the care of which was then given to a curator, without whose approval the spendthrift or prodigal (prodigiis) was thereafter incapable of incurring any obligations, or of disposing of, or of burdening his property .2 This restriction of the legal capacity of prodigals was part of the customary law of Eome even before the " Twelve Tables," ^ in which it was embodied, and upon which it was subsequently based.* Section 16. — Limitation of Legal Capacity by Special Circumstances The legal capacity of a person might not only be limited, according to the Eoman Law, by reason of the facts of birth, sex, age, or mental condition, but also on account of certain special circumstances, such as ofHee, alienage, physical defect, subjection to potestas, celibacy, child- lessness, infamia, or religion. (a) Incapacity due to Office In certain cases the Eoman Law limited the legal capacity of certain persons, not on account of any mental weakness, or because of any defect in their legal statics, but by reason of the fact that they happened to hold a particular office, and that, consequently, their own interests might be brought into conflict with the 'interests of those very persons whose interests, in virtue of their office, it was their special duty to protect. Amongst those persons whose capacity was thus specially limited were tutors, curators, and public officials. Thus tutors and curators were not entitled to buy for themselves property belonging to their pupils or wards respectively;^ and public officials were forbidden, on ' See Paul, Sent. iii. 4, 6. 2 Dig. 1. 17, 40 ; Paul, Sent. iii. 4, 7 ; Ulpian, Reg. xii. 3 ; cf. French Civil Code, Arts. 489, 499, 513. ^ Dig. xxvii. 10, 1 pr. * Cf. Justinian, Inst. i. 23, 3. See Moyle, Inst. 169, 170. ^ See Dig. xxvi. 8, 1 pr. on the rule of law that a tutor could not be auctor in rem suam. See also post, Section 55, at p. 194, on this point. 96 LIMITATION OF LEGAL CAPACITY [part ii. the same principle, to buy property which it might be their duty to sell in the ordinary exercise of their public functions. This rule was no-t^ invariable, however, and in certain exceptional circumstances might be relaxed ; a tutor, for example, might competently purchase property belonging to his pupil ward if the property purchased was sold by a creditor ]} or if the administration of the estate was divided up amongst co-tutors and the property' purchased did not form part of the property of the pupil administered by the purchasing tutor, provided that the co-tutor who actually administered the portion, of the property of which that purchased formed part gave his consent,^ The holding of a particular office might also limit, in certain circumstances, a person's capacity to marry .^ • (b) Incapacity due to Alienage Aliens or " peregrins " {peregrini) could not competently be parties to any transaction that was governed by the strict jus civile unless they possessed the privilege of commercium. (c) Incapacity due to Physical Defect A person's legal capacity might be limited by reason of the posses- sion of certain merely physical defects. The Justinianian law placed the deaf, the dumb, and the incurably diseased under curatory,* but exempted blind persons upon the ground that being able to speak they could appoint procurators.^ Thus neither deaf nor dumb persons could enter into a stipulation, for it was essential to a contract in that form that -parties should both speak and hear each other speak ;^ on the same ground such persons could not make a will per aes et libram, because a dumb person could not speak the words of the nwncvpatio^- while the deaf person could not'hear the words of the familiae emptor ; * but this special incapacity ceased when wills were executed in writing. * 1 Dig. xxvi. 8, 5, 5. See also Section 55, at p. 194. 2 See Dig. xxvi. 8, 4 ; xxvi. 8, 6 ; Code, v. 59, 5 ; cf. Dig. xxix. 2, 49. See a-lao Section 55, ibid. 3 Cf . Dig. xxiii, 2, 38 pr. ; xxiii. 2, 63 ; xxiii. 2, 36. See " Impediments to Marriage," post, Chapter VI., Section 39, at pp. 161-162. * Justinian, Inst. i. 23, 4 ; Dig. xxvii. 10, 2i 5 Paul, Sent. iv. 12, 9. " Justinian, Inst. iii. 19, 7 ; Gaius, Inst. iii. 105 ; Dig. xliv. 7, 1, 15. ^ See Gaius, Inst. ii. 104 ; Muirliead, lioman law, 2nd ed., 132 ; Sandars, Institutes of Justinian , 165. 8 See p. 98, note 2. " Ulpian, Frag. xx. 13. See on written wills in time of Justinian, Hunter, Roman Law, 4tli ed., pp. 769-770. SECT. i6] LIMITATION OF LEGAL CAPACITY 97 Similarly deaf and dumb persons could not be tutors, for they could not give the verbal consent involved in the auctoritas} Deaf persons were those who could not hear at all, and dumb persons were those who could not speak at all, and there were not, therefore, included within these categories either those who heard or those who spoke merely with difficulty.^ The will of a person who, subsequent to its execution, became either deaf or dumb, remained, nevertheless, valid ; ^ and a person who was neither deaf nor dumb from birth might competently make a will, in terms of an Imperial Constitution.* Deaf and dumb persons could not competently act as witnesses to the making of a will per aes et libram ; ^ but they possessed, notwith- standing, what was known as ~ testamenti factio,^ which term had a threefold signification in the Roman Law, and meant the capacity either (1) to make a will, or (2) to take or acquire under a will, or (3) to be a witness to a will. Deaf and dumb persons, although they could neither make a will, nor be a witness to a will, since they could neither speak the necessary words nor hear the formal words spoken, could yet competently acquire by will either for themselves or others.'' Soldiers who became either deaf or dumb were specially exempted from the application of the ordinary rule of law, and they might com- petently make a will which would enjoy the privileges attaching to a military testament.* A person blind, whether from birth or through illness, could not competently make a will unless he conformed to certain special require- ments of the law to the effect that, in addition to the seven witnesses ordinarily necessary, there should be present a notary (tabularius), or, failing him, an eighth witness, who was able to write, who, in presence of all the other witnesses, should either write the testament to the blind person's dictation, or read aloud to him the testament previously prepared;* thereafter the testament was to be signed and sealed by them all, including the notary or the eighth witness as the ease might 1 Dig. xxvi. 1, 1 7. ^ Justinian, Inst. ii. 12, 3. ^ Justinian, Inst., ut sup. * Code, vi. 22, 10. ^ Justinian, Inst. ii. 10, 6. " Justinian, Inst. ii. 19, 4 ; Dig. xxviii. 5, 49, 1 ; xxviii. 1, 16, 1. ^ Justinian, Inst. ii. 19, 4. 8 Justinian, Inst. ii. 11, 2 ; Dig. xxix. 1, 4. See as to "military testaments," Hunter, Roman Law, 4th ed., pp. 771-772. B Code, vi. 22, 8. 7 98 LIMITATION OF LEGAL CAPACITY [part ii. be, in the usual manner. These special requirements regarding the blind were prescribed in a Constitution of the Emperor Justin, which, however, merely regulated thereby the execution of such wills, but did not originate them, for they seem to have been always competent. (d) Incapacity due to Subjection to Potestas The general rule of the Eoman Law was, for long, that a filius- familias in his private capacity as a member of a particular family ifamilia) could not acquire property for himself, and any right he might acquire vested in the person under whose family authority {patria potestas) he happened to be. Thus, although a filiusfamilias, or son subject to the family authority (potestas) of a paterfamilias, had commercium, in respect of which he could acquire by tnaywipatio} yet property so acquired vested in his paterfamilias ; he could make a valid contract, but the contractual rights and benefit vested in the pater- familias; he had testamenti f actio in respect of which he might be witness to a will, or balance-holder (lihripens), or familiae emptor ; ^ but he could not make a will, as he could not, under the general rule, have any property of his own to bequeath ; he might acquire under a will, as heir or as legatee, but the right so acquired vested in his paterfamilias.^ A filiusfamilias possessed citizenship (civitas) in his public capacity,* and so could contract a valid civil marriage, but the patria potestas or the manus,^ or both, resulting from such marriage vested in his pater- familias. A filiusfamilias could not be either creditor or debtor to his paterfamilias, but in his relations to third parties the general rule of law was that, although he could not be a creditor, he might competently be a debtor and be sued upon his obligations, while any benefit arising from such obligations accrued to the paterfamilias.^ The general rule regarding the incapacity of a filiusfamilicts was qualified in certain special respects. Thus it only applied to him in 1 See on " Mancipatio '' as a mode of acquisition of property, ^os<, Part III., Chapter III., Section 70, p. 229. 2 See on Familiae Emptor, Justinian, Inst. ii. 10, 1 ; Gaius, Inst. ii. 101-104; Muirhead, RorrMii Law, 64 ; Poste, Oaius, 179. See as to the threefold significa- tion of testamenti f actio, ante, p. 97. 3 Gaius, Inst. ii. 87, 89 ; Justinian, Inst. ii. 9, 3. * See on the elements composing Eoman citizenship, post, Chapter IV., Section 17 (a), p. 102. ^ See as to Manns, post, Chapter VI., Section 37, p. 153 et seq. Justinian, Inst. iii. 19, 6 ; Gaius, Inst. iii. 104 ; I>ig. xliv. 7, 39 ; xlv. 1, 141, 2 ; xlvi. 4, 8, 4. See Poste, Gaim, 40-41, 385. SECT. i6] LIMITATION OF LEGAL CAPACITY 99 his private capacity and functions, and had no application to him in his public character,! in respect of which all public offices were open to him, and, if he was of full age,^ he might even competently act as a tutor, that office being regarded as a public one (munus publicum).^ Moreover, a filiusfamilias might competently sue on his own behalf, and even contrary to the wishes of his paterfamilias, the actio injuriarum for injuries done to him,* the actio quod vi aut clam for violent or clandestine disturbance, the actio depositi upon a contract of deposit, ^ and the actio commodati upon a contract of loan for use,^ and, generally, the innominate equitable contracts^ It is to be observed that the incapacities of a son under potestas were purely temporary, and were terminated by the death of the pater- familias, if not earlier hy forisf ampliation, or emancipation from paternal authority.® Under Imperial legislation and the later Koman Law the proprietary rights of a filiusfamilias became largely extended, and he became entitled to acquire for himself and to dispose as he pleased of pro- perty known as peculium, in the various forms of peculium castrense, peculiv/m quasi-castrense, and peculium, adveiititium.^ (e) Incapacity due to Celibacy and to Childlessness Certain laws were enacted by the Emperor Augustus with a view to encourage lawful marriage and the birth of legitimate children, and, at the same time, to check the decrease in the free population arising from the degeneration of public morals and the corrupt state of Eoman society at that time. The Lex Julia (4 a.d.) i" and its amending Act the Lex Julia et Papia Poppaea^^ (9 a.d.) imposed, with certain special exceptions, restrictions upon the capacity of unmarried persons (coelihes), and of married persons, of both sexes, who had no living legitimate children. 1 Dig. xxxvi. 1, 14 pr. 2 Cf. Justinian, Imt. i. 25, 13 ; Code, v. 30, 5. 3 Dig. i. 6, 9 ; Justinian, Inst. i. 14 pr. ■' Dig. xliv. 7, 9. Cf., however, Hunter, Roman Law, 195, 196, as to the circumstances in which a son uadier potestas could sue an action for injury. * See on the contract of "deposit," post. Part IV., Chapter VIII., Section 116, p. 362. ^ Dig. xliv. 7, 9 ; xvi. 3, 19. See the contract of " Commodate," post, Part IV., Chapter VIII., Section 115, p. 357 et seq. '' Dig. xliv. 7, 13. See Poste's Oaius, 42, 43, for a statement of the principles upon which these modifications of the general rule were based ; on the " Innomi- nate Contracts," see Part IV., Chapter II., Section 103, pp. 313-315. 8 See on Emancipation of a Filiusfamilias, post. Section 32, p. 138 et seq. 3 See ^' Pecidiwm," post, Chapter VI., Section 31, p. 135 et seq. 1" De maritandii ordimbus. This statute is sometimes ascribed to 18 b.c. and • 13 B.C. '^ Otherwise known as the Lex Julia, Le.v Jitlia Caducaria, Le.v Papia, Lex Papia Poppaea. 100 LIMITATION OF LEGAL CAPACITY [part II. An unmarried person of either sex was signified by the term coelebs, which comprised both a person who had never been married, and one who was a widower or a widow. Under the Lex Julia of 4 a.d. a man who remained unmarried {coelebs) between the ages of twenty and sixty, and a woman who continued unmarried till fifty,i were not entitled to take under a will, whether as legatee or as heir, of a person to whom they were not related (cognati) within the sixth degree, unless they married within a certain time after becoming aware of their rights.^ The Lex Pa/pia Poppaea (9 a.d.) restricted the capacity of childless persons (orbi), and prohibited a married man over twenty-five or a married woman over twenty from taking more than one-half of what was bequeathed to them by a person outside the sixth degree of relationship, if they had no legitimate children living at the time when the right accrued to them under the testament.' Such a person of either sex was designated by the term orbus. A man was exempted from the operation of the Lex Pa/pia Poppaea if he had one living legitimate child ; a free-born woman was exempted if she had three, and a freed woman if she had four lawful children. Under the Lex Papia Poppaea, also, a husband and wife whose marriage was childless could only take under each other's wills one- tenth part of what was bequeathed to them thereunder,* and were entitled to the usufruct only of one-third of the residue from which they were thus excluded.^ The restrictions based upon celibacy (coelibatus) and childlessness (orbitas) were abolished by legislation of the Emperors Constantiua and Constans, and Honorius and Theodosius,^ and did not exist under Justinian.'' (f) Iiwapacity due to Infamy or to Religion It has been already stated that " infamy " (infamia), or loss of public esteem as a citizen, involved certain legal disabilities.^ 1 Ulpian, Reg. 16, i. 2 Ulpian, Reg. 14, and 17, 1, 22, 3. Men had usually accorded to them one hundred days from the death of the testator, while women were allowed two years from the death of a husband and eighteen months from the date of divorce,, within which to marry. 3 Ulpian, Reg. 16, 1. * This portion was known as lex decimwia. ' The portion of the property which thus lapsed under the operation of this Act was styled caduca ; hence the name Lex Caducaria sometimes applied to the Lex Papia Poppaea. See further on " Lex Jvlia," post. Section 39, at p. 164, and Section 49,. p. 183, and Muirhead, Roman Law, 285, 286. " Code, viii. 58, 1; ibid., 2. '' See upon this ground of incapacity, Moyle, Inst. 265 ; Hunter, Roman Lava, 789 ; Sandars' Institutes of Justinian, 8th ed., 228 ; Sohm, histitutes of Roman Law,, 3rd ed., 478. ' See Existimationis minvtio — infamia, ante. Section 8, p. 80. SECT. i6] LIMITATION OF LEGAL CAPACITY ^"^ 101 Eeligion also, in certain circumstances, imposed special' restrictions upon a person's capacity. "Heretics," and "apostates," and such like, as they were understood and described in the language of the time of Justinian, were subject to various disabilities ; they could not be witnesses to the making of a will,i or give evidence in Court ; ^ they could not be instituted heirs, ^ their testamentary capacity was restricted,* and they were excluded from the benefits of the operation of the constitution of Justinian which reformed the law of intestate succession and based it upon cognatic in place of agnatic relationship.' 1 Code, i. 3, 21 ; Code Th., xvi. 7, 4. 2 Code, i. 5, 2,1. 3 Code, i. 5, 4 ; i. 7, 3. * Code, i. 5, 4 ; i. 5, 13, 1. ° Nov. 118, 6. See 'Chapter VI., Section 28, at p. 129. See also ante. Part I., Chapter II., at p. 62. CHAPTEE IV Section 1*7.— Divisions of Persons In treating of " persons " the Eoman Law and the Eonian jurists made .two. ^fiat general jdivisions oi all. mankind : -they -distinguished -between (1) persons who are free and persons who are not free ; ^ and (2) persons sui juris or who are not subject to family authority, and persons alieni juris who are subject to family authority ^ (patria potestas). Free persons were then particularly considered in different aspects according as they were (1) citizens (cives), or non-citizens (peregrini) ; (2) citizens either (a) independent of, or (&) subject to, the authority of another person — in other words, according as they were sui juris or alieni juris respectively ; or (3) subject to guardianship, whether in the form of tutory (tutela) or curatory {euro)? It was requisite, according to the Eoman Law, in order to invest a man with a complete legal persorm or character, free from legal disabilities, that he should be (1) free, (2) a Eoman citizen (civis), (3) independent of authority {sui juris), and (4) not subject to guardianship whether in the form of either tutory {tutela) or curatory {euro).* (a) Bmnan Citizens {Gives) and Foreigners {Peregrini) Eoman citizenship, in its fullest sense, comprised both political and civil rights. The political or public rights which citizenship involved were those of voting in the various Comitia or public assemblies, and filling public offices ; these rights were signified by the expression jus suffragii et Jwnm'um. The full civil or private rights of Eoman citizenship under the jus civile were signified by the terms connuhiuvi^ and commereium,^ ^ Justinian, Inst. i. 3. ^ Justinian, Insi. i. 8. ' Cf. Cuq, Institutions Juridiques des Romains, ii. 68, 69. * See on Guardianship, posi, Chapter VII., Sections 51-65, pp. 187- ^ Ulpian, Frag. v. 3. " Ulpian, Frag. xix. 5. SECT. 17] DIVISIONS OF PERSONS 103 which were what essentially distinguished the Eoman citizen from all other persons.^ Connuhium or the jus connuhii was " the right of, marriage," and signified a special right, peculiar to Eoman citizens, to contract a valid marriage according to the forms of the jus civile, and to acquire thereby certain peculiar legal rights, particularly the paternal power, known as patria potestas^ and the relationship of " agnation." ^ Gommercimn or the jus commercii was " tlie right of business," and it entitled the person who possessed it to make " civil " contracts,* and to acquire, own, and dispose of property of all kinds according to the special forms peculiar to the strict jus civile,^ and to enjoy any privileges attaching thereto. In short, connuhium and commercium were the terms which signified the private civil rights of Eoman citizenship, and included family law, the law of succession and inheritance, and the law relating to property and contract." (b) Legal Disabilities of Foreigners (Peregrini) A free-born person was styled ingenuus, which term signified a person born free, whether (a) of free-born parents, or (h) of parents who had been freed {lihertini), or (c) of parents one of whom was free- born and the other freed, or (d) of parents one of whom was not free if the mother was either free-born or freed ; ^ in short, a person was ingenuus who was born of a free mother.^ A person who was not born free, but had acquired freedom by manumission,^ was styled liheHinus^" or, otherwise, a freed-man. Free persons thus comprised free-born persons (ingenui), and those who had been made free {lihertini)}^ Free-born persons were divided, by the Eoman Law, into two great classes, namely, citizens (cives) and 1 The right of actio may also be added. This term, in its special sense, signified capacity to be a party to a legis actio or an action in the form peculiar to the strict ^tts civile, and "employed for the vindication, protection, or enforcement of a right either included in or flowing from connubitim or commercium, or directly conferred by a statute that embraced only citizens in its purview " (Muirhead, 105). 2 See post, Chapter VI., Section 29, p. 132. 3 See post. Chapter VI., Section 28, p. 129. * JH-ff; Tiexum, sponsio. 5 As by mancipation, cession in Court (in jure cessio), or usucapion. See post. Part III., Sections 70 and 71, and p. 255. ° Bryce, Studies in History and Jurisprudence, vol. i., p. 90, note. ^ Justinian, In^t. i. 4 pr. 8 Dig. i. 5, 5, 2. " See post, Section 23, p. 116. 1° Justinian, Inst. i. 5 pr. ; Gains, Inst. i. 11 ; Dig. i. 1, 4; i. 5, 6. 11 Gaius, i. 10. See Justinian, Inst. i. 4 {de ingenuis) ; hist. i. 5 {de libertims). 104 DIVISIONS OF PERSONS [part li. "peregrins" or foreigners (jperegrmi), according as they possessed or did not possess those rights of Eoman citizenship, public and private, which have been already mentioned.^ For long, foreigners, or "peregrins," within the Eoman State enjoyed neither political nor civil rights; they could not acquire, or hold, or transfei' property by the forms of the jus civile, and at the same time their own private rights were neither recognised nor protected by the Eoman Law to the extent of allowing them to assert their rights by means of its forms and procedure. The marriages of peregrins came, indeed, to be regarded in course of time as lawful unions and not as mere promiscuity, but these did not constitute legal or " regular " marriage (Justae nuptiae ^) as understood by the jns civile, and therefore none of the ordinary legal effects of a Eoman marriage resulted from them ; such unions did not give rise, under the strict jits civile, to patria potestas such as accrued to a Eoman citizen in virtue of justae nuptiae, and did not create the special legal relationship or tie of agnation,^ or give any legal rights of succession. But the unions of peregrins were regarded by the .Eoman Law as creating a natural relationship by blood known as cognation,* and the children of such unions were considered to be legitimate. In course of time, as has been already stated,* the ofifice of " Peregrin Praetor" (praetor peregrinus) was created in Eome, about 242 B.C., and a special tribunal was established for the administration of justice to foreigners in cases of dispute between foreigners amongst themselves, or between foreigners and Eoman citizens. The law applied in that tribunal was not the jus civile, but consisted of those natural principles of equity and justice, common to the legal systems of all nations and applicable to the legal relations of all free persons, and known in the Eoman legal system as the jus gentium.'^ The jus gentium- was free from the rigid technicalities of the jus civile ; it recognised the validity and binding character of contracts made in modes other than those of the strict jus civile, and recognised rights arising from such informal methods as mere "occupation"'' and mere "tradition"^ or delivery 1 Ante, pp. 102-103. 2 See " Marriage," post, Chapter VI., Section 37, p. 151. 3 See post. Chapter VI., Section 28, pp. 129-131. * See ibid. ^ Part I., Chapter I., Section VI., ante, p. 31. • " See Part I., Chapter II., Section IV., ante, p. 60. ' SeejDo^i!, Part III., "Law of Things," Section 73 (1), p, 232 et seq. * See on " Tradition," post. Part III., Chapter IV., p. 246 et seq. SECT. 17] DIVISIONS OF PERSONS 105 of property, and also those rights arising from " accession " ^ or natural increase. Three main causes contributed to the gradual removal of the legal disabilities from peregrins ; those were (1) the development of the principles of the jus gentium] (2) the creation of the status known as Latinity (latinitas) ; and (3) the extension of Eoman citizenship. "Latinity" (latinitas) was a modified or limited form of Roman citizen- ship, created towards the close of the Republic, in respect of which non-citizens might enjoy the right of commercium without at the same time possessing the right of connubium. "Latins" (latini), or persons possessing the rights pertaining to " Latinity," thus came to form an artificial class intermediate between Roman citizens and peregrins in respect of the possession of what the jurists styled the jus Latii ^ or the right of Latin colonists (latini coloniarii) ; these coloniarii were distinguished from peregrini by the possession of commercium, and from cives in that they did not possess connubium. " Peregrins " (peregrini) were thus foreigners who were not invested with either citizenship (cimtas) or " latinity " {latinitas). The right of commercium, or of connubium, or both, was occasionally granted directly to peregrins, but only in exceptional cases and as a special privilege. Legal means were provided, in course of time, by which the limited status of- " Latinity " could be converted into full Roman citizenship j^ the rights of Roman citizenship were themselves gradually extended by successive Emperors so as to include an increasing number of the inhabitants of the Empire, until finally the Emperor Caracalla in 212 a.d. bestowed them upon all the free subjects of the Roman State.* From that time the distinction between citizens, "peregrins," and "Latins" ceased to exist, and by the time of Justinian it was of merely historical interest.^ 1 See post. Part III., Section 73 (2), p. 235. 2 Tlie term jus Latii came to be thus used because the limited rights thus accorded to non-citizens were similar to those that had been originally granted to the inhabitants of Latium, and subsequently to those of Italy generally, by the Lex Julia et Plautia de Civitate in B.C. 89. "Junian Latins" were informally manumitted slaves who by the Lex Junia, the date of which is uncertain, but passed probably early in the reign of Augustus — ;Some authorities think even before the Lex Aelia Sentia (a.d. 4) — had accorded to them the same rights as the old Latini. See Muirhead, p. 317, and note 6, ibid. ; also see " Slavery," post. Chapter V., p. 109 ; and see on the Lex Junia and the Lex Aelia Sentia, post. Section 25, p. 121. ^ See Hunter, Roman La\u, 673, 674. * Big. i. 5, 17. See also post, p. 107. 5 See upon "Latinity" and Jus Latii, Muirhead, Roman Law, 249, 250, also 317,^318 ; Mackenzie, Roman Law, 78, 79 ; Epby, Roman Private Law, i. 22 et seq.. Hunter, Roman Law, 198 ; Poste, Gains, i. 131, and i. 22, Commentary ; Girard, Manuel de Droit Romain, 104-107 (5th ed., 108-111); May, Elements de Droit Romain, 81. See upon the position of peregrins and non-citizens generally, Muirhead, 103-108, and 249, 250 ; Girard, 107-112 (5th ed., 111-118) ; May, 81-83. 106 ROMAN CITIZENSHIP [part ii. Section 18.— Eoman Citizenship (Civitas) The status of Eoman citizenship was both acquired and lost in three different ways. How GiHze7is7iip was Acquired. — Citizenship was acquired by (1) birth ; (2) manumission ; (3) grant. (a) Acquisition hy Birth.— The status of a child born in lawful marriage was determined by that of the father at the time of the child's conception, so that if the father was at that point of time a Eoman citizen the child became one on birth. A child that was not the issue of lawful marriage — that was, in other words, illegitimate, in the view of the law — had its status determined according to that of the mother at the time of its hirth} (b) Acquisition hy Manumission? — The manumission or conferring of freedom upon the slave of a Eoman citizen in one or other of the modes, formal or informal, prescribed or recognised by the Justinianian law rendered the slave thereby a Eoman citizen. This rule was for some time modified by the terms of the Lex Aelia Sentia * (4 A.D.) and the Lex Junia Norlana^ (19 A.D.), according to which informally manumitted slaves acquired thereby only the limited citizenship of Latin colonists (latini coloniarii) in respect of which they were known as "Junian Latins"^ (latini Juniani). Justinian enacted, however, that manumission should once more imply the acquisition of full Eoman citizenship, and he at the same time abolished all distinctions between freedmen.^ Before the abolition of these distinctions by Justinian freedmen (libertini) had been divided into three classes or grades — Liberti, Latini Juniani, and Dediticii.'' Liberti were those freedmen who had obtained full rights of citizenship on manumission ; Latini Juniani were those freedmen who on manumission received, in terms of the Lex Junia,^ only the limited rights of citizenship accorded to Latin colonists^ (latini coloniarii), in respect of which they possessed commercium but not connubium. They could acquire, hold, and transfer property upon a 1 See ante, Chapter III., Sections 12-13, pp. 87-89 ; also Roby, Roman Private Law, i. 20. 2 See " Manumission,'' ^osi, Chapter V., Sections 23-25, pp. 116-124. 3 See joosi, Section 25, p. 121, "Restraints on Manumission." « Ibid. ^ See ante, p. 105, note 2; also " Manumission," ^osi, p. 116 et seq. ^ See "Restraints on Manumission," joos<, Section 25, p. 121. ' Gains, Inst. i. 12. s So styled by Gaius and Ulpian. Justinian refers to it as the Lex Junia Norhana (Inst. i. 5, 3). See further, " Slavery," joo«<. Chapter V., p. 109. " Gaius, Inst. i. 22 ; see Section 17 (b), at p. 105. SECT. i8] ROMAN CITIZENSHIP 107 " quiritarian " title, which expression signified that they had the legal capacity to employ the modes recognised by the strict jus civile as com- petent only to Roman citizens in virtue of that element in their citizen- ship (civitas) styled commercium, for the creation, protection, vindication, or enforcement of their rights.^ Junian Latins could not make or take under a testament, for the Lex Junia denied them testamenti f actio to that extent, although they might be witnesses to a will, or act as libripens, or as/amiliae emptor, and they could not competently be named as guardians in a testament.^ Although Junian Latins could not take directly as heirs or as legatees under a testament, they might yet competently take indirectly as beneficiaries under a, fidei commissum or trust.^ Junian Latins did not possess ^la^j-ia potestas, because that was an incident flowing from connubium which they did not acquire by the fact of manumission.* Dediticii were enemies who had surrendered at discretion under arms.^ The Lex Aelia Sentia (a.d. 4) placed slaves who had been guilty of serious crime or misconduct in the position of dediticii or surrendered aliens, if they were subsequently manumitted.^ In respect of this provision of the law such persons possessed no political rights, and the barest civil ones ; they could not convert their position into full citizenship, and were, moreover, forbidden to live within one hundred miles of Rome under pain of servitude.'' (c) Acquisition hy G-rant. — During the Eepublican period of Eome's history citizenship was frequently conferred, as a special favour, by either the Comitia or the Senate, upon not only particular individuals but also upon entire communities ; and during Imperial times the Emperors were in the habit of doing the same thing.* Such a grant of citizenship corresponded with what, in modern times, is known as " naturalisation." The extension of Eoman citizenship reached its climax when the Emperor Caracalla, by a Constitution about 212 a.d., conferred citizenship upon all the free inhabitants of the Eoman world." 1 See, on " quiritary " ownership, Gaius, ii. 40, 41 ; Poste, Gains, Commentary, 151 et seq.; also po««. Part III., "The Law of Things," Chapter II., "Ownership and Possession," pp. 223-227. 2 Gaius, Imt. i. 23; Ulpian, Frag. xx. 14. 2 Gaius, Inst. i. 24. * See further, on the legal capacity of "Junian Latins," post, Section 25, at p. 123, and cf. on the capacities of "Junian" Latins, and of Latins generally, Muirhead, Roman Law, 317 ; Poste, Oaius, i. 22 ; Commentary, p. 27. 5 Gaius, Inst. i. 14. " See also post. Section 25, at p. 122. ' Gaius, Inst. i. 25, 27. See on acquisition of citizenship by manumission Eoby, i. 24-28. 8 See Eoby, Roman Private Law, i. 22, 24 ; Mackenzie, Roman Law, 78, 79. 8 Dig. i. 5, 17. See also ante, p. 105. Justinian erroneously attributes this Act to the Emperor Antoninus Pius {Nov. 78, 5). 108 HOW ROMAN CITIZENSHIP WAS LOST [part ll. Section 19. — How Roman Citizenship was Lost Roman citizenship was lost, in the first place, by loss of liberty, as by capture in war. If, however, a citizen who had been taken captive recovered his liberty, his citizen rights revived as soon as he re-crossed the Roman boundaries, or those of a friendly State, in virtue of the jus postliminii ; if, on the other hand, he never returned, or died in captivity, he was presumed by the law to have died at the moment of capture.^ Roman citizenship was lost, in the second place, by renunciation, as when a Roman citizen voluntarily became a member of another State; and it was lost in virtue of a sentence of deportation or exile as a punishment for crime.^ Roman citizens might also, without actually losing either their liberty or their citizenship, have both their public and private rights seriously curtailed if they were guilty of dishonourable conduct implied in such crimes or offences as robbery, theft, fraud, or perjury, all of which involved " infamy " {infamia), as did also expulsion from the army, and disreputable modes of living, and, generally, acts involving a gross degree of wickedness or turpitude.^ ^ See on t\i6 jits postlimiaii, ante. Chapter II., Section 4, pp. 74-76. 2 See on Deportation, ante, Chapter II., Section 5, p. 77. ^ See Infamia and Minutio Existimationis, ante. Section 8, pp. 80-82.- CHAPTER V Section 20. — Slavery ^ Slavery as ad institution was closely identified with and involved in both the public and private life of the Komans. The Roman jurists professed that, in principle, all men, according to natural law {jus naturale^), are free, and that slavery was a creation of the law and general customs of all peoples. They accordingly defined slavery as " a creation of the jus gentium ^ by which a man is subjected, contrary to nature, to ownership on the part of another." * Section 21. — Constitution of Slavery According to the Eoman Law, slavery might arise in any of three ways — namely, by (1) capture in war ; (2) birth ; (3) judicial sentence. The first two modes were ascribed to the Law of Nations, and the third to the jus civile.^ (a) Slavery hy Capture Prisoners of war were regarded by the Komans as the absolute property of their captors; instead of being slain their lives were often spared, and they were either set to work for the benefit of the State or sold to private purchasers. The law required, however, that the capture should have taken place in regular warfare; so that the capture of citizens by brigands, or by pirates, or in civil war, did not give their captors any legal right to them as slaves, and they remained legally free, and retained their rights as free citizens." » (b) Slavery hy Birth The issue of a slave woman was born a slave, for the children of female slaves had their status determined by the same principle as was ^ See Buckland, The Roman Law of Slavery (Cambridge University Press, 1908). 2 See Part I., Chapter II., Section 4 (2), pp. 63-65. 3 Ibid., pp. b'0-63. * Dig. i. .5, 4, 1 ; Justinian, Inst. i. 3, 2. See also Gaius, Inst. i. 52 ; Dig. i. 6, 1. ^ Justinian, Inst. i. 3, 4 ; Dig. i. 5, 5, 1. On Jv^ Civile, see ante, pp. 65-66. " Dig. xlix. 15, 24 ; xlix. 15, 19, 2 ; xlix. 15, 21, 1. See ante. Section 4, pp. 74- 76, Capitis deminutio. 110 CONSTITUTION OF SLAVERY [part li. applied to illegitimate children, and they followed the social condition of their mother at the time of their birth.^ If, however, a slave mother had been free for any period, however short, between the time of the conception and that of the birth of the child, the law regarded the child as born free, and that even although the mother might have again become a slave before the child was born, it being considered that in such a case an unborn child ought not to be prejudiced by the misfortune of the mother.^ The offspring of a slave woman and a free man was born a slave, but that of a free woman and a male slave was considered to have been born free, upon the general principle.^ (c) Slavery hy Judicial Sentence A free Eoman citizen might be condemned to slavery for what were regarded as specially heinous offences.^ Condemnation for a capital crime rendered the convicted person a " slave of punishment '' (sertms poenae). Persons who were condemned to death, or to work in the mines, or to fight with wild beasts or with gladiators became " slaves of punish- ment " (servi poenae), or " slaves without a master " {servi sine domino), or slaves of the State.'* The Emperor Constantine abolished fighting with wild beasts as a punishment ; ^ and Justinian not only abolished the class of servi poenae, but also forbade the infliction of slavery as a punishment for crime.® Evasion of military service by failing to be put upon the census roll rendered a citizen liable to slavery ; '' also a collusive sale whereby a free citizen over twenty years of age fraudulently allowed himself to be sold as a slave in order to share in the price,* it being a principle of the law that one Eoman could not be the slave of another Eoman, and that the sale of a free man was consequently void; but, in order to incur this penalty, it was requisite that there should be both a fraudulent intention to share the price and an actual taking of it,' and the person ' See ante, p. 88. 2 Justinian, Inst. i. 4 pr.; Gains, Inst. i. 82, 89 ; Big. i. 5, 5, 2. * Justinian, Inst. i. 3, 4 ; i. 16, 1 ; D>g. i. 5, 5, 1 ; cf. Gaius, Inst. i. 160. * Big. xlviii. 19, 17 pr.; Big. xlviii. 19, 8, 11. ^ Code, xi. 43, 1. " JVov. 22, 8 ; Inst. iii. 12, 1. ' Big. xlix. 16, 4, 10 ; Cicero, Pro Caecina, 34, 11 ; Ulpian, Reg. 11, 11. 8 Justinian, Imt. i. 3, 4 ; i. 16, 1 ; Bi^. i. 5, 5, 1 ; xl. 12, 7, 1. This law is thought to have been introduced by Hadrian as a protection to purchasers (J)ig. xl. 14, 2 pr.), but it is also supposed to have been part of the provisions of the H.-C. Claudiantim {Big. xl. 3, 5). " Code, vii. 8, 1 ; Big. xl. 13, 1 pr. SECT. 22] GENERAL POSITION OF A ROMAN SLAVE 111 sold must have known that he was free/ while the buyer must have been ignorant of the fact.^ "Ingratitude"^ on the part of a freedman towards his patron rendered him liable to be once more reduced to slavery.* Under the Senatus Consultum Claudianum — ascribed to the Emperor Claudius^ — a free woman who persisted in cohabiting with a male slave, without the consent of the slave's master, was herself liable to be reduced to slavery and adjudged a slave of the master ; but this law was repealed by Justinian." Under the earlier law of the Twelve Tables a thief taken in the act {fur manifestus) was, if a slave, punished capitally by being thrown from the Tarpeian Rock; if a free man, he was adjudged as a slave to the person from whom he had stolen, after having been previously scourged : but the Praetorian Edict abolished this ground of slavery, and substituted a penalty of four times the value of the property stolen.^ Under the early law of Nexuni, by which a man gave his own person in security of a debt, a creditor who had obtained judgment against his debtor might thereupon seize his debtor and keep him as his slave so long as he was unable to pay the debt.^ This formal awarding or delivery of the person of a debtor to his creditor was known in the older law as addicfio and was part of the Law of the Twelve Tables. The Lex Poetilia Papiria — 325 B.C. — relieved judgment debtors {nexi) from liability to slavery, while the extension of the principles of pignoris ewpio to private debts gave to creditors rights against the property of their debtors.^ Addictio as a ground of slavery was, of course, obsolete long before the time of Justinian. Section 22. — General Position of a Roman Slave According to the Roman Law, slaves had neither captd nor status, and possessed neither public nor private rights; they were, for the 1 Theodosian Code, iv. 8, 2. 2 Diff. xl. 12, 7, 2 ; xl. 12, 33. ^ See, further, as to "Ingratitude," "Jus Patronatus," post. Section 26, p. 125. * Cf. Justinian, Inst. i. 16, 1; Gaius, i. 160. See Hunter, p. 170, for a statement of the course of legislation upon this point. 6 Tac., Ann. xii. 53. « Code, vii. 24, 1 ; Justinian, Inst. iii. 12, 1. Cy. Gaius, Inst. i. 84, 91, 160. ^ Gaius, Inst. iii. 189, 190 ; Justinian, hist. iv. 1, 5. See Poste, Oaucs, 411, Commentary. 8 Aul. Gell. XX. 1. " See upon addictio and execution against the person of the debtor for debt under the early law, Mackenzie, Roman Law, 361, 387, 388; Muirhead, Roman Law, 2nd ed., ss.31, 36, and 37; Hunter, Roman Law, 4th ed., pp. 1034-1036. 112 GENERAL POSITION OF A ROMAN SLAVE [part li. most part, regarded as things rather than as person s.^ The unions of slaves were not recognised by law ; they were known as contubemiwn, and were regarded as mere cohabitation but not as marriage, for slaves, as "things" in the view of the law, were incapable of contracting marriage, and their unions did not give rise to any legal relationship or rights ordinarily flowing from marriage. But the unions of slaves were yet recognised to the extent of being regarded as creating ties of blood relationship (cognatio) between the offspring, to the effect of preventing them from marrying if they should subsequently become free.^ The natural relationship created by contuiernium was recognised by a " Constitution " of the Emperor Constantine in 334 a.d., which enacted that in sales or divisions of property by the Fisc, or public Treasury, slaves who were nearly related by blood, such as father, mother, 'and child, should not be separated.^ This rule was also followed in the divisioii of inheritances ; and natural relationship and ties of blood were further recognised by provisions of the law against a buyer breaking up a family in cases where a- family of slaves was sold as one lot : the fact of one or more of the members being diseased entitled the buyer to repudiate the sale, but in such circumstances he was only entitled either to reject all or to retain all the family, and could not make a selection.* These provisions of the law were the outcome of a progressive humanity in the treatment of slaves and in the legislation having that object, which is noticeable in the history of the Empire from the time of the Emperor Claudius to that of Constantine. * The authority that a Roman master exercised over the persons and the property of his slaves was known as the dominica potestas. A Roman master, during the period of the Republic, had an absolute power of life and death over his slaves,^ and "the condition of the slave was at its worst in the golden period of Roman history."* During the Empire this absolute power possessed by the Roman master was restricted in various ways, and the position of the slave was ameliorated from time to time by various legal enactments, which, however, were based mainly on grounds of public policy,'' and which. 1 See ante, Section 1, at p. 70. 2 Dig. xxiii. 2, 14, 2. See post, " Impediments to Marriage," Section 39, at p. 161. 3 Biff. xxi. 1, 35 ; Code, iii. 38, U. * Big. xxi. 1, 35 ; xxi. 1, 39 ; xxxii. 1, 41, 2. ^ Gaius, Inst. i. 52 ; Dig. i. 6, 1, 1 ; Justinian, Inst. i. 8, 1. * Poste, Institutes of Gaius, 37. ' Cf. Gaius, Inst. i. 53. SECT. 22] GENERAL POSITION OF A ROMAN SLAVE 113 while limiting the rights of masters over their slaves, did not, at the same time, confer any correlative legal rights upon the slave, who always remained, in the eye of the Roman Law, rightless, without persona, caput, or status} The object of the remedial legislation with regard to slaves was to protect them from wanton cruelty, of which there were many glaring instances during the degeneracy and licence of the last years of the Republic and during the Early Empire ; but, notwithstanding the legislation to check the abuse of dominical power {dominica potestas), a master still retained, in the time of both the Emperors Constantine and Justinian, a very wide power of punishment and of chastisement for domestic offences. Thus Constantine declared that a master was not liable for the killing of a slave in the course of lond fide punishment, as by flogging ; but he was guilty of homicide if the death was occasioned by a wantonly cruel mode of punishment, or if he intended to kill.^ The condition of the slave may be gathered from an indication of the course of the legislation designed to limit the abuse of the dominical power and to afford protection to the slave. The slaying of another man's slave was, by the interpretation of later times, regarded as homicide within the meaning of the Lex Cornelia de Sicariis of 81 e.g., although such an act did not originally fall within the terms of that statute. A Lex Petronia, and several supplementary senatus-consulta relating to it, of uncertain date, but which must certainly have been passed before the destruction of Pompeii in 79 a.d., as it is mentioned in an inscrip- tion found in that city, forbade masters to expose their slaves to contend with wild beasts without the previous sanction of a magistrate, and then only for an offence considered by the magistrate to warrant the punishment.* The Emperor Claudius (41 a.d.) forbade the killing of a sick slave, and provided that if a master, in order to avoid the expense and trouble of cure, exposed a slave to perish, the exposure should operate as an in- voluntary manumission* conferring freedom and "Latinity" I^Latinitas)} The Emperor Hadrian inflicted punishment for wanton maltreatment of slaves, and forbade the killing of slaves by their masters without the sanction of a magistrate. The same Emperor also forbade the' torture of slaves in order to obtain evidence until there was established a 1 Cf. Justinian, Inst. i. 16, 4 ; Dig. iv. 5, 3, 1 ; iv. 5, 4 ; Nov. Theod. 17. 2 Code, ix. 14, 1; C. Theod. ix. 12, 1. The use of a deadly weapon was con- sidered condusive evidence of murderous intention. ' Dig. xviii. i. 42 ; xlviii. 8, 11, 1-2. This law is identified by Karlowa {Rom. Rechtsg. i. 624) with a Lex Junia Petronia of a.d. 19, and Roby {Roman Prioale Law, i. 54) tentatively fixes that date. Some authorities ascribe this statute to 61 B.C. {e.g., Hunter, p. 158). * See " Involuntary Manumission," Section 23 (b), p. 120. 5 Dig. xl. 8, 2 ; Code, vii. 6, 1, 3. See as to " Latinity," ante, Section 17, at p. 105. 8 114 GENERAL POSITION OF A ROMAN SLAVE [part il. primd facie case against the accused person ; and, further, limited torture under the S.-C. Silanianum to such slaves as were near enough to have heard what was doing ; ^ he endeavoured, moreover, to make more effective the legislation of the Emperor Domitian against the emascula- tion of slaves by bringing that offence within the terms of the Lex Cornelia de Sicariis (81 B.C.), and the castration of a slave, whether with or without his consent, was punishable by death.^ The Emperor Antoninus Pius (138-161 a.d.) declared the wilful killing of his own slave by a master to be homicide, subjecting the owner to the same liability under the Lex Cornelia de Sicariis as if he had killed the slave of another owner ; but death that ensued from punishment for domestic offences which- was not inflicted dolo malo and with an intention to kill did not fall within this provision of the law. Antoninus Pius also declared, by a rescript, that when masters were proved to have been guilty of extreme cruelty to their slaves these should be sold, under such conditions, however, as would prevent them ever again belonging to the same master.^ In the estimation of the Eoman Law a slave was a " thing " {res), and as an object of property, was subject to the same rules as were applied to the ownership, possession, or transfer of domestic animals, and could be alienated or transferred, as by sale, gift, bequest, or pledge, or in any mode competent to transfer the ownership or the possession of any other kind of movable property. But although the Eoman Law never recognised that a slave as such was other than a thing, and never accorded to the slave any legal rights as such not being a persona in the sense in which that term was understood, and consequently not possessing caput, it yet recognised that the slave was a potential person in respect of the possession of reason, by which he was capable both of increasing his master's property by means of his intellectual powers and, in certain circumstances, as by manumission, of becoming a " person " and thereby acquiring caputs Purttier, as a human being, a slave differed from both domestic animals and inanimate things in respect that he might acquire or be subject to natural obliga- tions,^ and was liable to punishment for crimes committed by himself." As a slave was legally incapable, in the character of a thing {res), of possessing any rights of property, anything acquired by a slave, whether as the profits of labour, or in other ways, belonged to the master. But although slaves could not acquire legal rights for themselves. 1 Buckland, The Itoman Law of Slavery, 37. 2 Dig. xlviii. 8, 4, 2. 3 Big. i. 6, 1, 2 ; Justinian, Inst. i. 8, 2 ; Gaius^ Inst. i. 53. ^ See ante, Section 1, at p. 71, and post, "Manumission," Section 23, p. 116. 6 On "natural" obligations, see Part lY., post. Section 101. " See post, J). 116. SECT. 22] GENERAL POSITION OF A ROMAN SLAVE 115 they yet often filled posts of trust and responsibility in both public and private life, and ordinarily acted on behalf of the masters in commercial transactions ; bo that it was not uncommon, so early even as the time of Plautus (2.00 B.C.), and it subsequently became customary, ior a master to allow his slave to retain and accumulate gifts, or profits of his labour, and such an accumulation was known as the slave's pecuHum, with regard to which he was permitted to act as if it was his own, and he might enter into all kinds of business trans- actions as if on his own account. But the ^eCT^/mm remained, neverthe-- less, the legal property of the master, who, legally, was the contracting party. The slave sued and was sued in the name of his master, who was entitled to repudiate any transaction not authorised by him or by which he did not benefit ; but the master was always liable to third parties to the extent of the peculium, and he was liable in. full if the transaction had been entered into by his direction, or if he had benefited by it.^ Under the Praetorian law a slave could contract, in respect of his peculmm, so as to give third parties rights over it against his master, and there was developed under that law a series of actions which were available against a master in respect of transactions entered into by his slave, whether expressly by direction of his master, or on behalf of his master, or even without his master's consent.^ The peculium of a slave might consist of any kind of property, whether movable or immovable, corporeal or incorporeal, such as land, money, slaves', credits and investments, rights of action, inheritances, or legacies and such like.^ The dress of the slave was included in the j)eculium, except such as was intended for special occasions, which was regarded as only lent to him,* An alienation by a slave of anything belonging to his peculium was invalid unless his master had granted him the unrestricted management, in which case he might competently make a loan of money, sell and pledge, pay debts, accept payments, take and tender on oath, novate obligations, etc., but he was yet not entitled, even in such circumstances, to make a present or undertake 1 See Justinian, Irist. iv. 7, 3, as to what constitutes a "benefit" to the master. 2 Such actions at law were known as the actions adjecticiae qualitatis, and were based upon the equitable principle that "where the benefit is there ought the burden to lie" (c/. Paul, Sent. viii. 1). See upon the actions adjecticiae qualitatis, .Justinian, Inst. iv. 7. 3 Roby, Roman Private Law, i. 54 et seq. A slave might have as part of his jieculiwm, another slave owned by his master. Such latter slave was known as vicarius ; and if a slave owed a debt to his vicarius it was considered as part, and was not deducted in estimating the amount of his peculium (Justinian, Inst. iv. 7, -4 ■ Gaius Inst. iv. 7, .3. Cf. Cuq, InstittUions Juridiques des Rvinains, ii. 135). * Roby, ut supra. 116 .... MANUMISSION [earth, a gratuitous obligation for some one else* the principle of this rule ;being that a slave might make his master's position better, but not worse.^ A master was liable to third parties for, civil damages or delicts (delicta)^ done by his slave, just as if it had been done by an animal belonging to him and for which he was responsible, and he was liable to compensate a third person for an injury committed by his slave, a wrong done by a slave being regarded as one done by his master, and, similarly, one done to a slave being considered as done to his master.* A master might, however, escape liability when sued in a "noxal" action {noxalis actio) for damage (damnum) caused by his slave by giving up the slave to the injured person. Such "noxal surrender" was known as noxae deditio, and while freeing the master from liability it at the same time operated a transfer of all his rights to the person suing the noxal action. But if the slave could compensate the new master for the damage (damnum) done by him he was, under the Praetorian law, entitled to be manumitted, even against the will of the new master.* No action could be brought by a master against a slave for a wrongful act done by the slave against him, because no enforceabl& obligation could arise between a master and anyone in his power (in potestate) ; and no right of action subsequently arose if either the slave- passed into the power of another master, or was manumitted.^ A master, although liable for civil damage (damnum) done by his. slave, was not liable for crimes committed by him without his know- ledge or connivance; in such cases the slave alone was liable to punishment.^ Section 23. — Manumission '' Manumission (manumissio) signified the granting of liberty to a. slave.* It might be either voluntary or involuntary. " Voluntary "' 1 IXff. 1. 17, 133. 2 See post, Part IV., Chapter XI., p. 444, "Obligations arising ex delicto— Delicts." ' Justinian, Inst. iv. 8, 5 ; Gains, Inst. iv. 77. * Justinian, Irist. iv. 8, 3. 5 Justinian, List. iv. 8, 6 ; Gaius, Inst. iv. 78. " See upon the general position of a Eoman slave and upon the course of the- legislation limiting the dominical authority, Buckland, The Roman Law of Slavery,. 36 et seq.; Poste's Gaius, 4th ed., 73 et seq.; Moyle, Institutes of Justinian, 4th ed.^ 109, Commentary, s. 2; Roby, Roman Private Law, i. 53 et seq.; Eoby, Introduction to Justinian's Digest, 128; Mackenzie, Studies in Roman Law, 88, 89; Cuq Insti- tutions Juridiques des Romains, i. 166-168, ii, 129-135 ; Girard, ManvA de Droit Romain, 89 et seq. (5th ed., 92 et seq.); May, Mementa de Droit Civil, 65 et seq.; Didier-Pailhe, Ih-oit Romain, i. 12-15„ ' See for reference to authorities upon "Manumission" generally, joosi p. 124. note 11. ^ Justinian, Inst. i. 5 pr. SECT. 23] MANUMISSION 117 manumission was the deliberate freeing of a slave by the master ; " involuntary " manumission was the grant of liberty to a slave by law, without the voluntary act of the master, by way either of punishment of the master or of reward to the slave. (a) Voluntary Mammiission This form of manumission was either formal or informal. There were three modes of formal or " regular " manumission {legitima manu- missio), which had their foundation in the Twelve Tables and the ancient jvs civile ; they pertain to the period of the Kepublic and are marked by the formalism and rigidity characteristic of the Eoman Law in its earlier phases. Fo7inial Manumission. — The formal or "regular" modes of manu- mission were those known as that {!) per vindictam, or "by the rod"; (2) censu, or "by the census roll"; and (3) testamento, or "by testament." Manumission per vindictam was a formal ceremony in the form of a fictitious suit or action at law ^ brought before one of the higher magis- trates, such as a Consul, Praetor, Pro-Consul, or the Governor of a Province,^ but most usually before the Praetor, in which one person styled the " asserter of freedom " (adsertor libertatis), who acted as the plaintiff in the fictitious action for freedom, claimed the slave from his master as being a free man, at the same time touching him on the head with a rod (vindicta) or wand (festuca) ; the master thereupon, having first turned the slave round, allowed him to go,^ this step in the process being known as raissio manu or " the sending away by the hand," and the magistrate then declared the slave to be free.* The ceremony of manumission per vindictam was only competent to individuals, and not to corporations, as it was requisite that the master should appear in person to use the formal words and perform the formal acts ; but the ceremony did not necessarily require to take place in Court.* By the time of Hermogenian (287 a.d.) a rigid adherence to the solemnities and formal words of the ceremony was no longer necessary; and by the time of Ulpian, who was slain in 228 A.D. during the reign and in the sight of the Emperor Alexander Severus, even the presence of the lictor was no longer essential.^ ^ Called causa liberalis {Dig. xl. 12). ^ Code, vii. 1, 4. 5 Livy, xxxiv. 16. * The part of adsertor libertatis was taken by the lictor, and the ceremony is supposed to have derived its name from the use made of the lictor's vindicta or rod. 5 Justinian, Jnst. i. 5, 2 ; Gains, Inst. i. 20. Dig. xl. 2, 23; xl. 2, 8. 118 MANUMISSION [part ii. Manumission censu was effected by the master entering the name of his slave on the list (census) of Eoman citizens that was prepared every five years. This mode of manumission became obsolete during the Empire.^ Manumission testamento was operated by a master bequeathing the gift of liberty to his slave in his testament or last will. A bequest of liberty migfft be either conditional or unconditional. An unconditional bequest of liberty only took_ effect when the heir had entered upon the inheritance,^ and was revocable so long as the testator lived. A con- ditional bequest of liberty took effect only upon the fulfilment of the condition, until which time the slave was called a statuliher ;^ a slave was also called statuliher who was to obtain his freedom on the expiry of a certain period after the death of the testator.* A bequest of liberty- to a slave might" be also either direct or indirect. A bequest was direct when the testator declared that the slave was to be free upon his death, and the slave then became free as soon as the heir entered upon the inheritance ; a bequest was indirect when the gift of liberty was given through the medium of a trust {fidei commissum) and the testator directedja trustee (Jldei commissarius) . — usually the heir or a legatee — to manumit the slave.^ In the case of an indirect bequest of freedom the slave did not acquire his freedom until the trustee had performed the trust imposed and had manumitted him." A slave who had been manumitted directly " by testament " became thereby the freedman ^ of the testator, and, as such, was styled orcinus;^ but a slave manumitted indirectly through the medium of a trust (fidei commissum) became the freedman of the person who actually manu- mitted him.^ The three "regular" modes of manumission (legitima manumissio) being founded upon the ancient jus civile and the Twelve Tables, were ' Ulpian, Frag. i. 7. After the reign of Vespasian (69-79 a.d.) no census was prepared throughout a period of 180 years ; and the last census was made up by Decius in 249 a.d. 2 Ulpian, Frag. i. 22 ; Dig. xl. 4, 43. " Ulpian, Frag. ii. 2 ; Dig. xl. 7, 1. * Dig. xl. 7, 1 pr. * Justinian, Imt. ii. 24, 2 ; Gains, Inst. ii. 249, 263-267. " Justinian, Inst. ii. 24, 2 ; Gaius, Inst. ii. 263-267 ; Code, vii. 4, 6, 7. ^ See " Relation of Freedman and Patron," post. Section 26, p. 125. * This word is derived from orcxis, meaning a "shade," and was applied to signify that he was the freedman of a person who was dead, and was amongst the " shades," or spirits. ' Justinian, Inst. ii. 24', 2 ; Gaius, Inst. ii. 263-267 ; Code, vii. 4, 6, 7. SECT. 23]. MANUMISSION 119 essentially formal and solemn in their character, and they had, more- over, the effect of at once freeing the slave and of investing him with the full rights of Eoman citizenship.^ These modes pertain to the period of the Republic, and possessed a public character, the State being represented by the Praetor and the Censor, and by the Lictor in the case of manumission per vindictam and censu ; manumission testamento was also regarded as a public act, for the Roman testament originally possessed, in theory, a public character, and took the form of a law (lex) passed publicly in the Comitia Curiata. It was on account of the State being so represented in the proceedings as a consenting party that such manumissions were styled legitima or justa manumissio, and are frequently referred to as "public" manumission. Infm-mal Manumission. — In the course of the Imperial Period a number of less formal and public modes of manumission came to be recognised by usage, or by the Praetor, or expressly by Imperial enact- ment, which, however, while conferring freedom upon the slave did not necessarily invest him at the same time with full rights of citizenship, until the time of Justinian, when, as the result of his legislation, the distinction between formal and informal manumission disappeared.^ Informal modes of manumission were such as those effected (a) inter amicos or " amongst friends," (b) per epistolam or " by a letter," (c) in ecclesiis or " in church," (d) by a bequest of " the cap of liberty " {^lileus), (e) by adoption, (f) by delivery of title, or (g) by giving a dowry to a feinale slave.^ In the time of Justinian any clearly expressed intention, however informal, was considered sufficient to constitute a grant of liberty.* Manumission inter amicos was a private and informal form of manu- mission that was in use even during the period of the Republic, and took the form of a verbal declaration by the master in the company of his friends {inter amicos) of his intention that the slave should be free. Justinian required that the declaration should be in the presence of not leas than five witnesses, and that it should be subsequently put into writing and attested.^ Manumission per epistolam was effected by a letter from the master 1 Gaius, Inst. i. 17. Cf. Poste, Oaitis, 26. 2 Dig. xl. 3 Justinian, But. i. 5, 1 ; Dig. xl. ; Code, i. 13 ; vii. 6. 4,Cf. Coc^e, vii. 7, 3, 2. 5 Code, vii. 6, 2. 12(3 MANUMISSION [part ii. to the slave expressing his intention to free him ; it required, in the time of Justinian, to be witnessed by five persons.^ Manumission in ecclesiis or " in church " took the form of a declara^ tion by the master in the presence of the bishop, and usuaUy at one or other of the principal religious festivals ; and the master's declaration was subsequently reduced to writing.^ This form of manumission was in use before the reign of Constantine." Manumission by a bequest of the "cap of liberty" (pileus) was operated when a slave was permitted to wear the " cap of liberty " at the funeral of his master by the authority of either the deceased master or Ms heir. This form of implied manumission was introduced by express enactment in order to check the practice of slaves who had not been manumitted testamento appearing at the funeral wearing the pileus in order to give a false impression of the humanity and generosity of the deceased. Manumission was also efiected by the public adoption of his slave by a master ; but such adoption, although it gave the name, did not confer the rights of a son upon the slave.* By such adoption the slave did not acquire the status of an ingenuiis, and, as such, a free-born member of the adopter's family, but only that of a freedman.^ Manumission, further, took place if the master, intending to give him his liberty, either handed over to the slave the title-deeds in respect of which he owned him, or destroyed them in the presence of five witnesses.* Manumission was impliedly effected, without the necessity of a formal declaration, when a female slave was given by her master in marriage to a free man, and at the same time received from him a dowry conveyed by a written deed.'' (b) Involuntary Manumission There were circumstances in respect of which a slave might become free by mere operation of law, without the necessity of manumission by his master, either by way of a forfeiture on the part of the master, or as a reward to the slave for acts specially so recognised by the law. Thus the Emperor Claudius declared that a sick slave who had been abandoned by his master and subsequently recovered should be free ; ^ and Justinian extended this to the case of the exposure of an infant slave ; ^ the Emperor Constantine rewarded with liberty slaves whose ' Code, vii. 6, 1. See also Code, vi. 36, 8, 3. 2 Code,\. 13, 1-2. 3 Code, i. 13. * Justinian, Inst. i. 11, 12. 5 Cf. Dig. i. 7, 46. ^ Code, vii. 6, 11. ' Code, vii. 6, 9. 8 Dig. xl. 8, 2 ; Code, vii. 6, 1, 3. See ante. Section 22, at p. 113. " Code, i. 4, 23 ; Nov. 153. SECT. 25] RESTRAINTS ON MANUMISSION 121 evidence procured the conviction of counterfeit coiners ; ^ so also a slave who disclosed the murderer of his master obtained freedom;^ Constantine also gave freedom to slaves who disclosed a rape that had been con- cealed or :compromised ; ^ the former master of a female slave who had .sold her on condition that she should not be made a prostitute could demand her freedom if this condition: was broken,* and this provision of the law was afterwards extended to every case in which a female slave was made a prostitute against her will;^ a master forfeited his rights in a female slave, who thereby became free, if he wilfully and maliciously allowed a freedman to marry her in error.* Section 24. — EFFEfcTS of Manumission " Regular " or formal manumission {legitima manumissio) had the effect of at once investing the slave with both liberty and the full rights of Roman citizenship, but, for long, " irregular " or informal manumission, although recognised and protected by the Praetor, was not legally valid, so that even if a master had, in his lifetime, treated the slave as if he were a freedman, yet, on his death, the master's heir was entitled to claim the freedman as his slave. The Praetor protected the informally manumitted slave by allowing him to retain his personal freedom, but he did not confer upon him any proprietary rights, so that the master continued entitled to claim the slave's property on his death.^ Section 25. — Resteaints on Manumission During the Empire certain restrictions were placed upon the right of manumission by masters, with a view to check or limit the numbers of freed slaves with which the State was being overrun, and who were constituting a serious social and political danger. The chief statutes restricting the freedom of manumission were the Lex Aelia Sentia (A.D. 4) and the Lex Junia Norhana,^ by both of which informally manumitted slaves acquired, on manumission, only limited rights, and 1 Code, vii. 13, 2. 2 Dig. xl. 8, 5 ; Code, vii. 13, 1. A slave who obtained his freedom in this way was regarded as the freedman of his dead master. 3 Code, vii. 13, 3. 4 Dig. xl. 8, 7. 5 Code, i. 4, 12 ; i. 4, 14. « Nov. 22, 11. ' A slave in such circumstances was said to be praetoris tuitions liber. 8 See post, pp. 12.3, 124. 122 RESTRAINTS ON MANUMISSION [part n. not the full rights of Roman citizenship, and the Lex Fufia Caninia^ (a.d. 8), which limited the number of slaves who might be manu- mitted by will (testamento). The Emperor Justinian repealed all such legislative restrictions upon the right of manumission, except one contained, in the Lex Aelia Sentia with reference to manumission in fraud of creditors ; and in the time of Justinian it was immaterial whether a slave had been " regularly " or " irregularly " manumitted so far as regarded the legal effects of manumission, which latter immediately conferred full rights of citizenship ; and Justinian further abolished all distinctions between different classes of freedmen.^ The Lex Aelia Smiia (a.d. 4) had Miaeted that, in order that a manu- mission should be complete to the eflfect -of conferring full Roman citizenship, the master should have attained twenty and the slave thirty years of age ; but a master under twenty years might yet manumit, and a slave under thirty be yet manumitted^ if there was obtained the approval of a special Board or Council {Consilium) which was constituted for that purpose,* after adducing reasons considered by the Board to- be good and sufficient : ® even then, however, such manumission, to be valid, required to he per vindtctam.^ Good grounds for such manumission were such as that the person to be manumitted was the father or mother of the manumittor, or his son or his daughter, or his brother or sister, his preceptor (paedagogus), foster-father, or foster-child of either sex, or his foster-brother ; or that the slave was about to be made the agent (procurator) of the manumittor, or that being a female he was about to marry her.'' The Lex Aelia Sentia further ranked as dediticii or enemies who had surrendered at discretion, and as such possessing no rights except such as might be conceded to them ex gratia, slaves who had been guilty before manumission of serious crimes (Jlagitia), or who had been degradingly punished for misconduct, and it imposed upon them perpetual disabilities.* This statute^ moreover, forbade manumission in fraud of creditors,^ these being such persons as had a right of action against the manumittor,!" but in order to constitute a fraud it 1 Justinian, List. i. 7; Gaius, List. i. 42-46. This statute was usually styled the Lex Fwria Caninia before the re-examination of the MSS. of Gaius by.Studemund. ^ See ante, Section 18 (b), p. 106, as to the different classes of freedmen prior to Justinian. ^ .._ . ' Gaius, Inst. i. 18. * Gaius, Lut. i. 20. This Board consisted, in Eome, of five senators and five knights (equites), and in the provinces^ of twenty recuperatcn-es who were Roman citizens (see Poste's Gaius, p. 25 ; Commentary, s. 20). " Gaius, Inst. i. 18, 19 ; i. 39 ; Justinian, List. i. 6, 6. : ^ Justinian, Inst. i. 6, 4. ' Justinian, List. i. 6, 5 ; Gaius, List. i. 19 ; i. 39. * Gaius, Inst. i. 13, 14. See also ante, p. 107. " Justinian, Inst., i. 6 pr. ; Gaius, Inst. i. 37. i» Dig. xl. 9, 16, 2. • SECT. 25] RESTRAINTS ON MANUMISSION 123 was requisite that tlie manumittor should be either insolvent at the time of the manumission, or become insolvent as the result, and have, at the same time, a fraudulent intention ^ {consilium). Justinian repealed the provisions of the Lex Aelia Sentia with the exception of those relating to manumission in fraud of creditors, and he reduced the age at which a minor was entitled to manumit to seven- teen,2 in the first instance, and subsequently to fourteen years. ^ The Lex Junia Norhana — the exact date of which may be regarded as uncertain,* but probably attributable to the reign of Augustus before the Lex Aelia Sentia^ — gave to slaves who had been informally or defectively manumitted the status of "Junian Latins "^ {Latini Juniani), in respect of which they were put on the same footing as Latin colonists {Latini coloniarii) or citizens of a Roman colony in Latium ; they possessed commercium in respect of which they might hold property on a quiritary title, could acquire and alienate property in the modes of the Jus civile by usucapion, mancipation, and in jure cessio, could enter into valid obligations, and could enforce their rights by action like any Roman citizen; but they had not the right of connubium, and consequently could not contract a " civil " or regular marriage, or acquire joo. 5 Gaius, In^t. i. 67-71. » Gaius, Inst. i. 326. Th4 Visellian law is supposed to have been passed in A.D. 24, during the consulship of Lucius Visellius Varro and S. Cornelius Cethegus. ' Gaius, Inst. i. 32c. * Gaius, Inst. i. 33. " Gaius, Iiut. i. 34. See upon the modes by which Latinity might be converted into full citizenship, Eoby, Roman Private Law, i. 38-41; Hunter, Roman Law, 673, 674 ; Poste, Institutes of Oaiiis, Commentary, pp. 31, 32 ; Girard, Manuel de Droit Romaiti, pp. 120-122. M Ante, p. 122, and p. 106. 1' Justinian, Inst. iii. 7, 4. See on manumission genei'ally, Buckland, Roman Laiv of Slavery, Appendices iv. and v.; Poste, Institutes of Oaiios, 4th ed., pp. 23-35 ; Hunter, Roman Law, 171-183; Roby, Roman Private Law, i. 25 et seq.; i. 36 et seq.; Muirhead, Roman Law, 2nd ed., pp. 315-319, 391; Sohm, Institutes of Roman Law, 3rd ed., 167 et seq.; Cuq, Institutions Jundiques des Romains, ii. 136-141; Girard, Manuel de Droit Romain, voce " Affranchisement." SECT. 26] RELATION OF THE FREEDMAN 125 Section 26,— Relation of the Feeedman (Libeetus oe Libeetinus) TO HIS Pateon— Jus Pateonatus "Freedmen" were defined by Justinian as those who had been manumitted from legal servitude.^ After manumission a master continued to retain certain rights over his former slave, who was thereafter known as his lihertinus or " freedman." The freedman required to show a certain amount of gratitude and respect towards his patron ; he became practically a member of his patron's family, and usually assumed his patron's family name. The freedman and the patron owed each other reciprocal duties of assistance and protection. Although Justinian abolished, as has been already mentioned,^ all distinctions between different classes of freedmen such as ''Junian Latins '' created by the Lex Junia Morbana, and dediticii created by the Zex Aelia Sentia, and placed all freedmen, on manumission, in the posi- tion of freeborn citizens {iiigenui), he, nevertheless, retained the rights of the patron over his freedman, which were signified by the term jus patronatus ; it was, indeed, the duties which a freedmaii legally owed to his former master which, in fact, distinguished him from a freeborn citizen. The obligations owed by a freedman towards his patron, and which were involved in the term jus patronatus, extended to the children of the freedman, and descended on the patron's death to the latter's. children. In respect of these obligations the freedman required to show reasonable gratitude and respect^ {phsequium, reverentia) towards- his patron, and he must neither say nor do anything likely to injure his patron in person, property, or reputation. If the patron, on the other hand, failed in hia reciprocal duty of support and protection towards his freedman he lost his rights of patronage {jus patronatus),. in respect of which he would forfeit his right to the freedman's services. (operae) and to his property (bona). The duties of the freedman towards his patron were summed up in the three terms obsequium, operae, and bona. In respect of obsequium the freedman was bound to treat his- patron with due respect, as a child his parent, and he was not permitted to sue his patron without the previous consent of the Praetor,* which ' Justinian, Inst. i. 5 pr. 2 xinte, pp. 106, 122, 124. ^ Dig. xxxvii. 15. * Dig. ii. 4, 4, 1. 126 RELATION :0F THE FREEDMAN [pabt n. would not be accorded if the result of the action would he to brand the patron with infamy .^ The freedman was also bound to assist or support his patron, so far as he was able, if the patron or his family became indigent,^ and a corresponding obligation was upon the patron. If a freedman brought an action against his patron without previously- obtaining the .leave of the Praetor, or in any other way failed to show that degree of respect and gratitude involved in the term ohsequium, he would be guilty of what was technically-known as "ingratitude," which might even involve his being reduced once more to slavery, if the ingratitude was considered to be sufficiently gross.^ In respect of operas or services the freedman was morally bound to perform certain services {operae officiales) for his patron. This obligation was usually made effectually binding by the freedman, immediately after manumission, promising on oath.* The freedman usually worked for his patron for a certain portion of each day,^ at either the same kind of work that he had been accustomed to perform when a slave, or any trade or art that he might have subsequently learned;? and the amount of work performed, if not specially agreed upon, was determined by circumstances such as the age, health, or position of the parties respectively .'' If the patron did not provide maintenance for his freedman when performing the services he owed, he was bound to allow him sufficient time in which to earn enough for his own maintenance.* Moreover, the work to be done by the freedman was personal to the patron, and "could not be let by the patron to any third person.^ Further, this obligation of services {operae) could only be created when the manumission had been voluntary and gratuitous on the part of the master.^" In respect of lona, or " goods " or- property, the patron had certain rights of succession to the property {jura in bonis) of his freedman on the latter's death. If the freedman died intestate and childless, the patron was entitled to the whole succession ; and if he died testate but 1 Big. xxxvii. 15, 5, 1 ; 15, 2 pr. ; 15, 7, 2. On "Infamia," see anie, Chapter II., Section 8, p. 80. 2 Dig. XXV. 3, 9 ; xxv. 3, 5, 19. 3 Big. xxxvii. 14, 5 pr. ; xxv, 3, 6, 1 ; xxxvii. 14, 1 ; iv. 2, 21 pr. ; Code, vi. 7, 2 ; vii. 16, 30. * .lurata promissio hberti. ^ Big. xxxviii. 1, 1. '* Big. xxxviii. 1, 38 pr. ' Big. xxxviii. 1, 30 pr. ; i. 16, 1. ' Big. xxxviii. i. 19 ; i. 22, 2. ° Big. xii. 6, 26, 12 ; 38, 1, 25, 1. ^^ Big. xxxviii. 1, 13 pr. ; Code, vi. 3, 7. SECT. 27] COLONI 127 childless the patron was entitled to one-third of the inheritance if it exceeded one hundred aurei or one hundred thousand sestertii} This right of the patron to the succession of his freedman was the most important element in the jus patronatus. Section 27. — CoLoiJi Before passing from the subject of slavery, it is necessary to mention a class of agriculturists known generally as Coloni^ who existed during the later Eoman Empire, and who occupied a position midway between that of freedmen and slaves. They were settled upon and cultivated the land where they were born, nominally as tenants of the landowners, paying a rent, usually fixed by custom,* and in kind.* The colonus was classed by the law as ingenuits or freeborn, and in this respect he was distinguished from a slave ; but he was in fact a slave or a serf, for he was glebae ascriptus, or " attached to the soil," and was regarded as so much a part of the land as to be unable to leave it, or to be ejected from it, or sold apart from it ; ^ and if he left the land on which he was settled he could be recovered by a " real " action. There were two classes of Coloni, namely, Coloni liberi and adscriptitii. The first class, Coloni liberi or "free colonists," were also known as inquilini or trihutarii; apart from being bound to the land, they enjoyed personal freedom and could acquire rights of property as against the owner of the land, and were not subject to burdens beyond the payment of the fixed rent.® The second class of coloni was known as adscriptitii or censiti ; they were incapable of proprietary rights; anything acquired by them was regarded merely as peculium, and as being de jure the property of the owner of the land ; the only respect, in fact, in which the position of culscriptitii differed from that of slaves was with regard to the fixity of their tenure. The colonus'' was, during the first three centuries of the Empire, a free tenant, but during the third century of the Empire the relation 1 Justinian, Inst. iii. 7, 3. ^ They were also sometimes called rustici or agrieolae. 3 Code, xi. 49, 1. * Code, xi. 47, 5. 6 C. Theod. xiii. 10, .3. « Code, xi. 48, 1. ' The terms colonus and inquiliniis were also used, in an altogether different sense from that employed here, to signify a free person who was the lessee of land— e.^., a farm— and of a house respectively (c/. Eoby, Roinan Private Law, ii. 171). 128 COLONI [PART II. between the landowner and the tenant became a hereditary one owing to the economic necessity for the labour of the colonus ; the attachment of the colonus to the soil was during the third century only de facto, but it became also de jure during the fourth century, of the Empire. The coloni were the " villeins " of the later Empire, and bear a close resemblance to the serfs of later times.^ The system of the Colonate was still in full force under Justinian, although no mention is made of it in the Institutes, and.it continued to exist in the West during several centuries after the overthrow of the Eoman rule.^ ^ Sohm, Institutes of Roman law, 3rd ed., 172. ^ See on "Coloni," Muirhead, History of Roman Law, 2nd ed., 358-360 ; Hunter, Roman Law, 162 ; Sohm, wt supra ; Girard, Manuel de Droit RomaAn, 127, 128 ; May, Elements de Droit Romain, 76 ; Poste, Institutes of Oaius, 4th ed., pp. 374-375. CHAPTER VI The Eoman Family Organisation Section 28. — Familia — Agnates — Cognates - The third element in the legal status or caput of a Eoman citizen, in addition to liberty (libertas) and citizenship (civitas), was family (familia), or membership of a Eoman family/ which implied the possession and enjoyment of peculiar family rights having their foundation in the ancient law of the Eomans — the early jus civile. The term familia had a number of meanings ; ^ in its most limited sense it was used to signify merely a household consisting of its head (paterfamilias) and all those persons in it, wife and children, who were directly and actually subject to his potestas or family authority. In a wider sense the term familia was employed to signify the whole " agnatic " connection, or all those persons who were in law regarded as related to each other, either because they were under the potestas of a common living male ancestor, or because they would have been under the same potestas if the common male ancestor had been still alive.^ Such persons were said to be "agnates" (agnati), related to each other by the legal tie of " agnation " (agnatio). Agnation was thus a purely legal relationship based not upon Nature but upon the fact of subjection to the authority of the pater- familias or head of the family,* and traceable only through males, because they alone were capable of possessing and exercising the paternal authority known as patria potestas. Agnation was, moreover, a purely artificial relationship ; for persons might be agnates to each other, by such artificial means as adoption,^ between whom there was no natural relationship by blood ; and they might also cease to be agnates and members of the same " agnatic " family by such artificial means as emancipation,^ although naturally related to each other by blood or " cognation." 1 See ante, " Caput and Status," Chapter II., Section 2, p. 73. ^ Cf. Ortolan, History of Roman Law, 471. ' Cf. Maine, Ancient Laiv, 1906, 154. * Of. Maine, ut supra. 5 See " Adoption," post, Sections 33 to 35, pp. 140-148. ^ See " How Patria Potestas Terminated," post, Section 32, pp. 138-140. r, 129 130 FAMILIA— AGNATES— COGNATES [part ii. The " cognatic," in contradistinction to the " agnatic " family- signified all those persons who were naturally related to each other by blood ; and " cognation," as contrasted with " agnation," was relation- ship by blood, or natural relationship ; while " cognates " (cognati), as opposed to "agnates" {agtiati), were all those persons who traced their descent from a common ancestor of either sex. Justinian defines " agnates " as those cognates who are related through males, that is, who are cognates through the father ; i but this definition is defective, because it is not sufficiently inclusive, taking no account, as it does, of those persons who, not being cognates or natural relations by blood, had been brought into the family by such artificial means as adoption. " Agnates " were, in fact, of two kinds ; the term comprised (1) persons who were "cognates," or natural blood relations, tracing their relationship, however, only through males,^ and excluding any such blood relations as had left the family by reason of emancipation, or marriage, or otherwise, and (2) persons who, not being natural blood relations, had become members of the agnatic family by artificial means, such as adoption.^ Under the ancient civil law of Eome it was the artificial legal tie of agnation that alone conferred family rights and rights of succession. In later Roman times, under Praetorian influence, cognation or blood relationship came to be legally recognised, and the law of intestate succession was entirely transformed by Justinian * by the recognition of cognation as the basis of family relationship and of inheritance, in place of the purely a,rtificial tie of agnation created by the fact of subjection to a common authority (potestas), and subsisting only so long as that authority continued ; and the law of guardianship was, moreover, modified to the effect that only cognatic relationship was thereafter to constitute a title to tutela legitima? But until cognation was thus legally recognised, a man's legal relations were his agnates, who might or miglit not happen to be, at the same time, his own natural or blood relatives. 1 Justinian, Inst. iii. 2, 1; cf. Gains, hist. i. 156 ; iii. 10. See also for a definition of agnates as " persons related to one another . . through their male ascendants," Justinian, Jnst. i. 15, 1. 2 Hence the legal maxim, Midier familiae suae et caput, et finis est {Dig. 1. 16, 195, 5). 3 See on Agnation and Cognation, Moyle, Institutes of Roman Law, 4th ed., 154 ; Poste, Institutes of Gains, 4th ed., 92, 273 ; Mackenzie, Roman Law, 141 ; Hunter, Roman Law, 8.36 ; Sohm, Institutes of Roman Law, 449, 450 ; Cuq, Institutio'ns -Turidiques des Romains, i. 197. ^ Mv. 118, 4, 5. 5 See post. Section 54 (b), p. 192. SECT. 28] FAMILIA— AGNATES— COGNATES 131 The term /amilia was also sometimes used in a sense more general than that of either merely the household, or of the whole agnatic con- nection, to include every one in mancipio of the paterfamilias, but not related to him ; and it was sometimes employed in a special general sense to include all the family property,^ as well as all the persons in the family who were subject to the authority of its head, and within the term " property " (bona) slaves were comprised. The Eomaii family was, from earliest times and for very long, a complete and independent entity, and was the unit of the Eoman social organisation. The private law of Eome was based upon the idea that each family had a head. The head of the family was the eldest living male ancestor, and he, in the capacity of paterfamilias, exercised paternal authority (patri'a potestas) over all his descendants, whether natural or legal (i.e. artificial), through males.^ The paterfamilias was not only the head of the family, but he was actually its ruler, and he exercised supreme authority and judicial powers over all its members. Within the family circle the authority (patria potestas) of the Roman paterfamilias over his dependants was originally absolute, even to the extent of life and death; he had the right to determine who should be members of the family; he could refuse to recognise or admit to the family a child, even though lawfully borne to him by his wife ; he might, in his absolute discretion, expel members from the family ; and he could even sell his son into slavery ; no members of the family could own any property without his consent, or marry without his permission. As a member of the household the wife's position was legally assimilated to that of a daughter of her husband, and she was, in other words, in loco filiae. The paterfamilias was also the high priest of the family, and he regulated and conducted the sacra or religious rites which were special and peculiar to each Eoman family.^ During the Eepublican Period, and subsequently by Imperial legislation, the extreme authority of the head of the Eoman family became greatly curtailed.* 1 Of. Ortolan, History of Roman Law, 471. ^ See further on Patria Potestas and the course of its restriction, Sections 29 and 30. ^ See on the Eoman family organisation generally, Muirhead, Roman Law, 2nd ed., pp. 24-36; Sohm, Lnstitutes of Roman Law, 3rd ed., p. 448 et seq.; Eoby, Romun Private Law, i. 52 et seq. (bk. ii.); Girard, Manuel de Droit Romaia, bk. ii., ch. iii. ; Cuq, Institutions Juridiques des Romaiiu, i. 152-204 (bk. ii., ch. iv.). * See Section 30, at pp. 133-135. 132 HOW PATRIA POTESTAS WAS CREATED [part ii. Section 29. — Pateia Potestasi This term signified the legal rights and authority which the head of a Roman family possessed over the persons and the property of his legitimate children and other descendants,^ who were then said to be in potestate or under his power (potestas). The power of the head of a Roman family over his children and other descendants was peculiar to Roman citizens alone,^ and was an extension to an extreme and unnatural degree of the natural duty of a parent to rear, protect, and guide his children until they are of an age and capacity to look after themselves and to manage their own affairs. The patria potestas exercised by a Roman paterfamilias over his descendants originally differed little, within the sphere of private law, from the dominica potestas or the authority possessed by a Roman master over his slave ; there was, however, this distinction, that the filiusfamilias was always recognised as a " person " {persona). Within the region of public law, and as regards public rights and duties, the distinction between pater- familias and filiusfamilias was unimportant, for the patria potestas was confined to private family relations, and had no relation to public matters, in respect of all which the filiusfamilias of full age was as free and independent as his paterfamilias.^ Section 30. — How Pateia Potestas was Oeeated Patria potestas was the direct legal result of justae nuptiae, or regular marriage, and the birth of children following thereon ; ^ but it might also arise by adoption," or by legitimation, or by a process analogous to legitimation and equivalent to it in effect.'^ In order that a Roman father should acquire patria potestas or "paternal power" it was essential that he should be both a Roman citizen and himself sui juris, or independent of any paternal authority. All those persons who were subject to potestas were said to be alieni juris. The paterfamilias was thus the only person in the family who, in respect of matters falling within the sphere and cognisance 1 See, for reference to authorities upon Patria Potestas, Section 32, at p. 140, note 6. 2 Justinian, Inst. i. 9 pr. ; cf. Dig. 1. 16, 215. ' Justinian, Inst. i. 9, 2 ; Gaius, Inst. i. 55. * Cf. Dig. i. 6, 9 ; xxxvi. 1, 14 ; v. 1, 77, 78 ; i. 7, 3. ■5 Justinian, Inst. i. 9 pr. ^ Justinian, Inst. i. 11; see " Adoption," ^os<, Section 33, p. 140 et seg. ' Justinian, Inst. i. 10, 13 ; see " Legitimation,'' ^os<, Section 36, pp. 148-151. SECT. 30] HOW PATRIA POTESTAS WAS CREATED 133 of private family law, was sui juris or legally independent of family authority. The family, in the general sense, as has been already indicated,i comprised all those persons who were under the potestas or " power " of the paterfamilias, whether by birth, adoption, or legitimation ; and the patria potestas extended over not only the wife in her character as member of the household, and sons who had not been emancipated or freed from the potestas, or been adopted into other famiUes, or ceased to be Roman citizens by capitis deminutio or otherwise, and daughters who had not become members of other families by either marriage or adoption, or become "vestal virgins," but also the wives and children of sons who were themselves married. The daughter of a paterfamilias came under the power of her husband on her marriage, if he himself was sui juris or legally indepen- dent, and was placed by law in the position of his daughter {in locofiliae); but if her husband was himself alieni juris or subject to the potestas of some other person she passed, by virtue of her marriage, under the potestas of her husband's father or other ascendant to whose family authority (patria potestas) he himself was subject. The patria potestas possessed a twofold character, for it extended over (1) the person, and (2) the property of those who were subject to it. As regards the person, the paterfamilias originally possessed, by the law of the Twelve Tables, the jus vitae necisque, or an absolute power of life and death over those who were subject to his potestas ; ^ but this extreme power was greatly curtailed and restrained by law, during the Republican Period by the Censors, and subsequently by Imperial legislation, so that under the later Empire the power of the pater- familias represented no more than a right to appeal to the magistrate for a remedy in cases of serious domestic offences.^ The Emperor Alexander Severus limited the right of the father to ordinary simple chastisement, and for more severe punishment it was necessary to have magisterial sanction.* The Emperor Trajan insisted on the emancipa- tion of a son on the ground of gross cruelty towards him on the part of his father,^ and the Emperor Hadrian deported a father for slaying his son, even when discovered in adultery with his stepmother.^ The Emperor Constantine finally declared, in 318 a.d., that the paterfamilias 1 Ante, pp. 129-130. 2 Code, viii. 47, 10. 3 Code, viii. 47, 3. * Code, ut supra ; Dig. xlviii. 8, 2. * Dig. xxxvii. 12, 5. ^ Dig. xlviii. 9, 5. 134 HOW PATRIA POTESTAS WAS CREATED [part ii. who slew his son was guilty of murder and should suffer death as a parricide.^ The Twelve Tables permitted the sale, or the pledge of children in the exercise of the potestas, but provided that a son should become free from the paternal power after a third sale by his father.^ The Emperors Diocletian and Maximian in a.d. 294 declared the sale, gift, or pledge of a child to be unlawful ; ^ the Emperor Constantine modified this enactment by making an exception permitting the sale of newly- born infants when the parents were in extreme poverty, but reserved to the parents, or anyone else, a right of redemption.* Justinian approved of the exception permitted by Constantine as regards the sale of new-born infants, but repeated the prohibition against the pledging of children, and enforced the law on the matter by making more severe the penalties to which creditors were liable who had taken children in security.* A paterfamilias had originally the right to give in marriage, to divorce, or to give in adoption any of his children who were subject to his authority, at his own absolute discretion ; but this power came to be restricted in Imperial times, so that by the time of Justinian a father could neither give a son or daughter in marriage, or in adoption, nor divorce them without their consent ;« indeed, divorce without the consent of the child was specially forbidden by a " Constitution " of the Emperor Marcus Aurelius in cases where the marriage was a well- assorted one; and it was only permitted in other cases where there existed serious and good reason for it.'' Finally, Justinian abolished " noxal surrender " (noxae deditio), or the ancient right of the pater- familias to give up a child who had committed a delict or civil injury to the injured person, in the same manner as a master (dominus) could , 1 Code, ix. 17, 1. The special penalty attached to the crime of parricide was that of being tied up in a sack, along with a cock, a viper, and an ape, and then thrown into the sea or a river to be drowned. In the list of persons who could be guilty of parricide, or the murder of a blood relation, which is enumerated in the Lex Pompeia de parricidiis — B.C. 52 — the father is not included {JDig. xlviii. 9). 2 Such a sale did not make the son a slave ; the transaction could only be with another Eoman citizen, with regard to whom the son, bv the ceremony of eman- dpatio, was said to be bound in mancipio ; but apart from him he continued to be regarded as both free and a citizen. 3 Code, iv. 43, 1. 4 Code, iv. 43, 2. ^ Nov. 134, 7. The creditor was to forfeit his debt, pay to the child or to the parent a sum equal to the debt, and, in addition, suffer corporal punishment. " Cf. Maine, Anci^Tit Law, p. 138. '' Code, 5, 17, 5. See also "Dissolution of Marriage," ^osi, Chapter VI., Section 48, at p. 180. SECT. 31] PECULIUM OF FILIUSFAMILIAS 135 deliver up a slave, and free himself by that means from liability for the wrong done. The abolition of noxal surrender by Justinian was, however, purely formal, for the practice was practically obsolete by his time.^ There had prevailed under the Empire a practice of exposing newly- born children to perish of hunger or cold when the parents believed themselves too poor to rear them ; but this was characterised as a crime and forbidden in a.d. 374 by an enactment of the Emperors Valentinian, Valens, and Gratian. Section 31. — Peculium of Filiusfamilias It has been mentioned already ^ that the patria potestas possessed a twofold character, extending as it did over both the persons and the property of those who were subject to it. In respect of property the potestas of the Eoman father was originally as absolute as that over their persons, and as a master's authority over his slaves. The filiusfamilias under the strict civil law had no proprietary capacity ; he had, indeed, both commercium and connuhium, in respect of which he could make both a valid civil contract and enter into a valid civil marriage, but the rights so acquired vested by mere operation of law {ipso jure) in his paterfamilias, who alone took any benefit under the contract, and possessed potestas over the children of the marriage. The general rule of the strict jus civile was, that whatever the son {filiusfamilias) acquired, whether by contract, inheritance, gift, or otherwise, was acquired for the father {paterfamilias), who alone had any right to it.^ The son was, indeed, capable of contracting an obliga- tion in respect of which he could be sued as a debtor,* but any rights as a creditor under such an obligation vested in the father, who alone was entitled to sue as such. This proceeded upon the same principle as that which was applied to a slave, to the effect that while a slave might make better he could not make worse the condition of his master ; ^ for, in respect of proprietary rights, the position of a filiusfamilias was originally assimilated to that of a slave.^ ' Justinian, Inst. iv. 8, 7. 2 Ante, p. 133. ^ Justinian, Inst. ii. 9, 1. 4 Dig. xliv. 7, 39. ^ Dig. 1. 17, 133 : "'• Melior conditio nostra per servos fieri potest deterior fieri non potest.'" " See also on the incapacity of a filiusfamilias, ante. Section 16 (d), p. 98. 136 PECULIUM OF FILIUSFAMILIAS [part ii. Notwithstanding the fact that a filiusfamilicis was legally incapable, under the strict law, of owning any property independently of his pcderfamilias, it became customary for a father to allow his son to retain a certain amount of property under his exclusive control, whether for administration or for the purpose of carrying on some trade or business. Such property was known as the son's peculium, and he held it on terms similar to those by which a master allowed his slave to hold and administer property.^ So long as the father per- mitted the son to retain the property in his possession, it was, as regards third parties, as if it were the son's own, and he might be sued to the amount of the peculium ; but, nevertheless, it continued to be, legally, the property of the father. Early in the Imperial Period, in the reign of Augustus, the hitherto passive proprietary capacity of the filiusfamilias became active, and it came to be recognised for the first time that, in certain circum- stances, a son, even when under paternal power {in potestate), might acquire and possess property as his own, independently of the pater- familias. In this way there came to be recognised by the Eoman Law several different kinds of peculium, namely : (1) Peculium profec- titiuiii; (2) Peculium castretise ; (3) Peculium quasi-castrcnse ; and (4) Peculiiim adxentitium. (a) Peculiurii Profectitium This was the name applied, in contradistinction to the other forms of peculium, to that property which the son was permitted by the father to retain and manage ; it was, in fact, the peculium in its original sense. The peculium profectitium remained legally (de jure) the property of the father, but it was in fact (de facto) the property of the son ; and, consequently, the paterfamilias was not liable for the son's debt beyond the amount of the peculium unless he had derived benefit from it, or had, either expressly or by implication, authorised the son to contract as his agent.^ (b) Peculium Castretise This was property acquired in any way by a fUiusfamilias when serving as a soldier. The Emperor Augustus gave to a filiusfamilias who was a soldier an absolute right to any property he might acquire in that capacity ; and the enactment by which this right was granted was subsequently adopted by later Emperors. Such property was 1 See as to a slave's joeeaZmm, Section 22, at p. 115. 2 Muirhead, Roman Law, 325. SECT. 31] PECULIUM OF FILIUSFAMILIAS 137 distinguished by the name of peculium castrense ; it included such things as pay, booty, gifts or legacies from comrades in arms, and also anything given to him by parents or relatives towards his outfit and military equipment ; the filiusfaviilias was at the same time given an absolute power of disposition inter vivos over property included within the peculium castrense} (c) Peculium Quasi-Castrense This was a form of peculitwi instituted by the Emperor Constan- tino;^ it was an extension of the privileges attaching to peculium castrense to persons in potesfate who were not soldiers, but were filling the higher civil offices in the State, or exercising various public civil functions, or filling Court offices ; and the term peculium quasi-castrense came gradually to include all official, public, and ecclesiastical salaries, fees earned by advocates, and gifts from the Emperor.^ The privilege ol peculium quasi-castrense was originally conferred only upon those persons under power who were at the same time officials attached to the Imperial Palace,* but it came to be extended gradually to all persons performing public civil functions, such as officials of the Praetorian Prefect, clerks in the Chancery Court, keepers of public records; still later, in a.d. 440, it was extended to advocates of the Praetorian Court, or of the Court of the City Prefect, and in a.d. 469 to bishops, presbyters, and deacons, and Justinian ultimately extended the privilege to clergy of every grade. The filiusfamilias was the absolute owner of the peculium castrense and quasi-castrense, and he might dispose of it during his lifetime, and, in the time of Justinian, in his testament, in any way he pleased, quite independently of the paterfamilias; but if he died without having disposed of it, either inter vivos or by will, the father was legally entitled to it.^ (d) Peculium Adventitium This was the name applied, by the time of Justinian, to all pro- perty that neither was derived through the father (paterfamilias), nor was included within either of the terms peculium castrense or quasi- castrense. ^ Cf. Biff. xlix. 17, 11; xiv. 6, 2 ; Justinian, Inst. ii. 12 pr. 2 Code, xii. .31. 3 Cf. Code, xii. 29, 31, .37. * Code, xii. 31. ^ Justinian, Inst. ii. 11, 6 ; Code, vi. 22, 12 ; Big. xiv. 6, 2. The father was entitled to the son's property in such circumstances in the character of owner of the peculium, and not as heir on intestacy (ab ititestato). Cf. Inst. ii. 12 pr. 138 HOW PATRIA POTESTAS TERMINATED [part il. Peculium adventitium originated in an enactment of the Emperor Con- stantine giving to a child in potestate the ownership of property inherited in any way from the mother {bona materna), but the administration and usufruct of the property were reserved to the father during his lifetime. ^ The Emperors Gratian and Honorius extended the term peculium adven- titium to include all property acquired by a child under power through the maternal line (bona materni generis) upon any title ;^ and the Emperor Theodosius II. also included within the term property received by one of two married persons from the other {lucra nuptialia) in the form of dowry (dos) ^ and donatio propter nuptias.^ Under the legislation of Constantine a father had not only the usu- fruct of the whole of the peculium adventitium during his lifetime, the right of the child being restricted to merely a bare ownership {nuda proprietas), but he had also a right to the ownership of one-third of the property if the son became emancipated. Justinian amended the law to the effect of giving the father a usufruct of only one-half of the peculium adventitium upon the son's emancipBjtion instead of the ownership of one-third.* Section 32. — How Patkia Potestas Terminated The " power " or family authority of the Eoman paterfamilias might be terminated either {a) directly or (6) indirectly. Direct termination of potestas was effected by either emancipation or adoption.* Emancipation was the voluntary and deliberate act on the part of a father of freeing his son from his potestas. It had the effect of rendering the filiusfamilias independent of paternal authority {sui juris), and of severing the legal tie of agnation between him and the other members of the agnatic family ; but a son's agnatic rights might be expressly reserved to him by Imperial grant or rescript. In early Roman times the ceremony of emancipation took the form of a thrice-repeated fictitious sale or " mancipation " * of the son by his father to a third person. The provision of the old law of the Twelve Tables, to the effect that if a father sold his son three times the latter should be free,'' was utilised for the purpose of freeing a Jiliugfamilias from patria potestas. The father, in such a case, specially arranged 1 Code, vi. 60, 1. 2 Code, vi. 60, 2. 2 Code, vi. 61, 1. See "Dowry" {dos), post, Sections 41-45, pp. 169-175, and donatio propter nuptias, Section 46, pp. 175-177. * Justinian, Inst. ii. 9, 2 ; Code, vi. 61, 6, 3. ^ See "Adoption," post. Section 33, p. 140 et seq. In the time of Justinian adoption only terminated potestas if it was " full " adoption {adoptio plena), as contrasted with adoptio minus plena, or less than full (see Section 35, p. 146). " See " Mancipatio," post. Part III., Chapter III., Section 70, p. 229. '' See ante. Section 30, at p. 134. SECT. 32] HOW PATRIA POTESTAS TERMINATED 139 beforehand with the buyer that, having manumitted the son, vindicta, after each of the first and second sales, he would re-sell the son to him after the third sale, and would not manumit him himself, in order that the father might himself manumit his child and thereby free him from the bond of mancipium or quasi-slavery in which he stood towards him as his purchaser. In this way the parent would acquire the rights of a patron to the succession of his child, which would otherwise have belonged to the purchaser in the capacity of extraneus manumissor. Under the later Praetorian law an agreement to re-sell the son to his father was implied on the part of the fiduciary purchaser. In later Roman times the process of emancipation of a. Jiliusfamilias was much simplified ; it might be effected either by an Imperial rescript, or more usually, in the time of Justinian, by a declaration before a magistrate with the mutual consent of both father and son, the declara- tion being thereafter entered and preserved in the records of the Court.i By emancipation in the later simplified forms the father or other ascend- ant acquired the same rights as a patron in the property of the child as if he were his freedman, as had been accorded to him under the older law ; and if the child so emancipated was still under puberty the father became its legal tutor.^ In the time of Justinian a son could not be emancipated against his will ; ^ but he could competently be emancipated in absence under the Anastasian legislation, which, of course, was im- possible under the old law, the forms of which required the presence of the parties. Indirect termination of the patria potestas was operated inde- pendently of the deliberate voluntary act of either the father or the child by such circumstances as death, capitis deminutio, attainment by the child of high public office or dignity, by loss of liberty, or of citizenship, or by gross misconduct, or cruelty, on the part of the father,* as by the exposure of his child,^ or by his contracting an incestuous marriage,"^ or forcing a daughter to prostitute herself.'' In the case of death patria potestas was only extinguished if by the fact of the death of the ascendant the child became sui juris and legally independent, and did not merely pass into the power of another ascend- ant. Thus a grandchild would fall under the potestas of his own father 1 Emancipation by Imperial rescript was known as Emancipatio Anastasiana, because it was first permitted in 503 a.d. by the Emperor Anastaaius (a.d. 491-518), and emancipation by declaration before a magistrate was correspondingly styled Emaneipatio Justinianea. ^ Cf. Justinian, Inst. i. 12, 6. • 3 Big. i. 7, 31. » Cf. ante. Section 30, at p. 133. 5 Code, viii. 52, 2 ; i. 4, 24 ; Nm. 153, 1 ; cf. Big. xxxvii. 12, 5. « Nov. 12, 2, 2. '' Code, i. 4, 12 ; xi. 40, 6. 140 ADOPTION, GENERALLY [part ii. if the father was still alive and unforisfamiliated at the death of the grandfather.! In the time of Gaius a son became freed from potestas by becoming a priest of Jupiter Dialis (Jlamen dialis), and a daughter by becoming a vestal virgin. 2 Justinian also freed from^ofes^as, by reason of the attain- ment of special dignity, those persons who had had conferred upon them the honour of the Patriciate,^ which was a high rank created by the Emperor Constantine, and conferred only on persons who enjoyed the special confidence of the Emperor, and who had filled the offices of Consul, Praetorian Prefect, or " Master of Offices " {Magister officiorum).*^ Still later, Justinian extended the privilege of release from paternal power to all those persons who attained the dignity of Bishop, Consul, Praetorian Prefect, Quaestor of the Palace, Master of Soldiers {Magister Militum), and generally to all those persons who were exempted, by reason of the dignity of their office, from serving in the Curia, or local senate, in provincial municipal towns.^ A child who was released from paternal power by the attainment of a post of honour and dignity did not thereby cease to be a member of the family of the pater/amilias, but, on the other hand, continued to retain his rights as a member of that family.* Section 33. — Adoption, Generally'' The Eomans attached great importance to the continuance of a family, and the Eoman Law provided artificial means whereby a family that was in danger of becoming extinct, along with the sacra or sacred rites peculiar to it, through the death of its head without natural descendants, might be preserved from such a fate. From early times it was competent and usual for a paterfamilias who was himself childless and unlikely to become the father of a child of his own to adopt the child of some one else in order to perpetuate his family and to carry on and perform its peculiar sacra. By the fiction of adoption a paterfamilias acquired the same paternal power (patria potestas) over the adopted child as a Eoman citizen ordin- ^ Cf. Justinian, I'list. i. 12 pr. ; Gaius, Iiist. i. 125-127. ^ Gaius, Inst. i. 130. ^ Justinian, I'/ut. i. 12, 4. * Code, xii. 3, 3. 5 Nov. 81. " Nov. 81, 2. See upon the Patria Potestas, generally, Poste, Institutes of Gaizis, 4th ed., 39 et seq. ; Hunter, Roman Law, 188 et seq. ; Moyle, Institutes of Justinian, 4th ed., 124, 239-241 ; Sohm, Institutes df Roman Law, 177 et seq., 479-488 ; Eoby, Roman Private Law, i. 64 et seq. ; Mackenzie, Ro^nan Law, 137 et seq. ; Cuq, Institu- tions Juridiques des Remains, ii. 113 et seq.; Girard, Manuel de Droit Romain, 130-137 ; May, Elements de Droit Romain, 83 et seq. ' Justinian, Inst. i. 11 ; Gaius, Inst. i. 97-107 ; cf. also Cuq, Institutions Juri- diques des Romains, i. 234-244. SECT. 33] ADOPTION, GENERALLY 141 arily obtained over his own children as the legal result of regular marriage, It is thus apparent that the relation of father and child might be created either (a) natuially or (b) artificially, according as it arose from the birth of children following upon marriage, or from the fiction of adoption ; but the legal effects were the same in both cases. " Adoption," in a general sense, may be defined as the admission of a member of one family into another family, whereby he lost his membership of and rights in his natural family, and acquired at the same time all legal rights as a member of his adoptive family, and came nnder the potestas of the head of his adoptive family to the same effect as if he had been born a member of that family. Adoption assumed two special forms, known respectively, and dis- tinguished from each other as (a) " Arrogation," and (6) "Adoption" in a strict and narrow sense ; ^ but both Gaius and Justinian use the term Adoptio in a general sense to signify either of these special forms. (a) Arrogation " Arrogation," or " Adrogation," was the adoption of a person who was already, at the time of the adoption, sui juris or legally independent of the paternal family authority (potestas) of anyone. The person who adopted — i.e. the adopter — was styled the adrogator, and the person who was adopted was called the aclrogatus. Arrogation was the oldest form of adoption amongst the Eomans, and its effects were to transform a person from being one legally independent of (sui juris) to the position of one subject to the family authority of another person (alieni juris). If, moreover, at the time of the arrogation the person so adopted was already married and had children under his potestas,' these also, like and along with their father, came under the paternal authority (patria potestas) of the adopter (adrogator).^ The person arrogated (adrogatus) suffered capitis deminutio minima,^ or the least loss of legal status. Adoption, whether in the form of "arrogation" or of "adoption" in a strict and narrow sense,* possessed a public character, for it involved an alteration in the number or the character of families. The arrogation of a person who was himself the head of a family was only permitted ' <7/» Justinian, hist. i. 11, 1 ; Gaius, Iiixt. i. 98, 2 Justinian, Imt. i. 11, 11 ; Gaius, Inst. i. 107. ' See ante, Part II., Section 6, pp. 78, 79. * See post, p. 143. 142 ADOPTION, GENERALLY [part li. when it had been publicly ascertained that the effect of the entry of such a person into a new family would not be to extinguish the family which he left and its sacred family rites along with it. Hence arrogation was a public act, which took place in the Comitia Curiata and was sanctioned by a Lex Curiata or pubUc legislative act of the "Assembly of the Curies " (Comitia Curiata) only after the public consent of the parties to the arrogation — the people (populus) as represented by the Comitia, and the College of Pontiffs or Priests as the guardian of the sacred family rites (sacra privata) — had been asked and given.^ By the time of TJlpian and Gaius the Curiae were represented merely by thirty lictors, and arrogation as a popular' legislative act was a mere fiction. During the Empire, but at a date that is not exactly known, the old mode of arrogation in the form of a Lex Curiata was superseded by direct Imperial rescript (principcde rescriptum), and this was the mode which alone prevailed in the time of Justinian.^ So long as it was neces- sary for the parties to an arrogation to appear in the Comitia and give their consents it was incompetent to arrogate women, for they were incapable of appearing in the Comitia Curiata and there giving the necessary consent,^ but the supersession of the enactment of the Comitia by an Imperial rescript removed this incapacity.* In the time of Justinian arrogation of a person of either sex was effected by an Imperial rescript (pri-ncipali rescripto) after proof that the adopter was married ^ and over sixty years of age — unless, owing to some cause other than age, it was unlikely that he should become the father of a child* — that he was at least eighteen years older than the adrogatus^ and that he had no other legitimate or adopted children.** It was incompetent for either a tutor or curator to arrogate a person sui juris who had been under their guardianship lest they should thereby take advantage of the fiduciary relation in which they had stood to the ward's prejudice.^ Until the reign of the Emperor Antoninus Pius (a.d. 138-161) ' For the form of the assents to arrogation see Cicero, De Domo, 29 ; see also Hunter, Roman Laiv, 205. Gaius accounts for the name " arrogation " by explain- ing that it was so styled because the person adopting was "asked" (rogatur) whether he consented, the person adopted was similarly interrogated, and so also the people present in the Assembly (iii Comitia). Cf. Gaius, Inst. i. 99. See also ante, Part I., Chapter I., p. 21. 2 Justinian, Inst. i. 11, 1. 3 Cf. Gaius, Inst. i. 101. ■* Justinian, Inst. i. 11, 1 ; Dig. i. 7, 21. ^ Cic, Fro Domo, xiii. 15. « Dig. i. 7, 15, 2. ^ Justinian, Inst. i. 11, 4. 8 Dig. i. 7, 17, 3. » Dig. i. 7, ] 7 pr. SECT. 33] ADOPTION, GENERALLY 143 it was incompetent to arrogate a " pupil " or person under puberty who was sui juris, although the " adoption " as distinct from the " arrogation " of a pupil (impuhes) was always competent. The arrogation of a person sui juris under the age of minority was only permitted after inquiry into the circumstances, and as to the motive for the arrogation, in order to determine whether the pro- ceeding would be to the advantage of the pupil ; and, further, if the arrogation was permitted it was subject to certain conditions — the adrogator had to give public security that, in the event of the person who was arrogated (adrogatus) dying before attaining minority, he would restore his property to the pupil's natural heirs who woiild have succeeded him if no arrogation had taken place; if the pupil, after arrogation, was emancipated or disinherited before puberty the adrogator was bound to give back to him the property he bad acquired through him by the arrogation; and, moreover, if the pupil was emancipated or disinherited without good reason (sine justa causa) the arrogator was bound, in addition to restoring the pupil's property, to give him a fourth part of his own property : ^ the portion of the arrogator's property to which a pupil was thus entitled, in such circumstances, was known as the Quarta Antonina, as having been first sanctioned by the Emperor Antoninus Pius.' Justinian assimilated the property of a person adrogatus to peculium adventitium,^ and gave to the adopter (adrogator) only a usufruct of such property, the ownership of the property remaining with the adrogatus.* The rights of creditors of a person arrogated were not prejudiced by the arrogation, for although by the strict jus civile the debts of an adrogatus were extinguished by reason of the capitis deminutio involved in the change of status, the Praetor held the property of the adrogated person liable for the debts, and by an action based upon the fiction that capitis deminutio had not taken place would put the creditors in possession of such property, with a power of sale, unless the arrogator consented to guarantee their claims.^ (b) Adoption of a Person Alieni Juris " Adoption " (adoptio) in a strict and narrow sense, as distinguished from " arrogation " (arrogatio), was the transference of a person who. ^ Justinian, Inst. i. 11, 3. 2 It was, for the same reason, also styled quarta D. Pii. 2 See ante, Section 31 (d), p. 137. ^ Justinian, Inst. iii. 10, 2. 5 Gaius, Inst. iii. 84 ; iv. 38 ; Justinian, Inst. iii. 10, 3. Such an action was an actio rescissoria Jicticia, to which class also belonged what were known as the 144 ADOPTION, GENERALLY [part ii. at the time of adoption, was already alieni juris, or under the power (potestas) of another person. In the time of Justinian the adoption of a person of either sex was effected in a simple manner by the execution of a deed, in the presence, and with the sanction of a magistrate ^ possessing jurisdiction for the purpose, such as the Praetor at Eome or the Governor in a Eoman province,^ in which the fact of the adoption was embodied and declared ; and there required to be present in order to give consent only the parties immediately involved in the adoption, namely, the person giving in adoption, the person being given in adoption, and the person receiv- ing in adoption.^ In the case of the person adopted, tacit consent sufficed.* The adoption of a person already in the power (potestas) of a pater- familias is styled by both Gains and Justinian adoptio imperio magistratus, whereas " arrogation,'' or the adoption of a person already sui juris, is called by Gains adoptio populi auctoritate, or " by the people's sanction," and by Justinian adoptio principali rescripto, or by "Imperial rescript"; the difference in the terms employed connotes the change that had taken place in the mode of arrogation between the time of Gaius and that of Justinian. Prior to the time of Justinian, and under the earlier law, "adoption," as distinguished from " arrogation," was effected by a double process of " emancipation " (emancipatio ^) peraes et libram, or " by the brass and scales," and cessio injure, or " surrender in Court." " The natural father first of all destroyed his potestas over his son by three fictitious sales in the form of a " mancipation," according to the terms of the Twelve Tables ; the son was then in mancipio to the purchaser, who thereupon, in a fictitious form of action known as in jure cessio,'' claimed the child as his, and this being either acknowledged, or not resisted by the natural father, the magistrate admitted the claim and gave the child into the potestas of the adoptive father. ^ "Paulian," "Eutilian," "Publician," and "Servian" Actions (Gaius, Iiist. iv. 35-38). See on fictitious actions, Poste's Gaius, 476 ei seq. Cf. also ante, Section 7, p. 79, re extinction of civil debts by capitis demiivatio. ^ Imperio magistratus. 2 Gf. Gaius, Inst. i. 101, 102. ^ Justinian, Inst. i. 11, 1 ; Gaius, Inst. i. 99. Cf. French Civil Code, Art. 353 et seq. * Justinian, Inst. i. 12, 8 ; Code, viii. 48, 1 1. ^ See on Emancipation of a Filiusfamilias, Section 32, at p. 1 38. " See on " Mancipatio " and " Cessio in Jure," and the various purposes to which these processes were adapted, joosi. Sections 70 and 71, pp. 229-230. ' See on In Jure Cessio, post. Part III., Section 71, pp. 230-231. Upon the distinction between the expressions in jure and in judicio, see ante, p. 28, note 4, and post, p. 230, note 4. ' Gf. Gaius, Inst. i. 134 ; Justinian, Inst. i. 12, 8. SECT. 34] WHO COULD ADOPT 145 Section 34. — "Who Could Adopt Every man, whether married or unmarried/ had the right to adopt, provided he was legally capable of contracting marriage : persons incap- able of procreation through natural impotence (spadones) could both arrogate and adopt, but those who had been made eunuchs (castrati) could not do so.^ Under the esirlier law women could not adopt, because adoption involved the passing of the adoptee under the patria potestas of the adopter, and women could not possess potestas ; ^ the Emperors Diocletian and Maximian, however, by a "Constitution" in a.d. 291 granted them the right to adopt children in either form,* as a consolation for the loss of their own children:^ but such adoption did not give women any potestas over the children ; it only placed them in the same, legal position towards her as her own children would have held. The person adopting required to be of full age — twenty-five com- plete years — and legally independent (sui juris). It was, moreover, a maxim of the Eoman Law that " adoption imitates nature," ^ so that a person could neither arrogate nor adopt another who was older than himself. There required to be such a difference of age between the adopter and the person adopted as would render it naturally possible that the former could have been the father of the child, and the law fixed this discrepancy of age at eighteen years.^ This rule, however, was not invariably followed.* A man without any children could adopt another person, not only as a child but also as a grandchild ; or the grandchild of another person as his child ; ^ but if he adopted a grand- son specially as the son of a particular son already in his power, whether naturally or by adoption, the consent of the latter was requisite, other- wise the adopted grandchild would not come under the potestas of the adopter's son on the death of the adopter ; i" but, on the other hand, the consent of a son was not necessary in order to give a grandchild in 1 Biff. i. Y, 30. ^ Justinian, Inst. i. 11, 9 ; Gaius, Inst. i. 103. 2 Gaius, Inst. i. 104. * Cf. Poste, Institutes of Gaius, p. 65. ^ Justinian, Inst. i. 11, 10 ; Code, viii. 48, 5. " Adoptio enim naturam imitatur. ^ Justinian, Inst. i. 11, 4 ; Dig. i. 7, 15, 3 ; Dig. i. 7, 16 ; Dig. i. 7, 40, 1. Of. Gaius, Inst. i. 106. Cf. also French Civil Code, section 343, where the difference of age is fixed at fifteen years (see post, p. 147). * See, for an instance, Mackenzie, Roman Law, 133. ^ Justinian, Inst. i. 11,6. i» Justinian, Inst. i. 11, 7 ; Dig. i. 7, 6 ; i. 7, 10 ; i. 7, 11. 146 EFFECTS OF ADOPTION [part ii. adoption/ the reason for this rule being that while a grandfather could, in his discretion, diminish the number of a son's family he could not increase it, for otherwise the son would have had forced upon him, without his consent, an heir [sims heres) to share in his succession,^ and so reduce proportionately the amount of the shares divisible among his other heirs. Section 35. — Effects of Adoption There was a considerable difference in the effects of adoption according as it took place under the older law, or was effected under the later reformed law of Justinian. Under the older law an adopted person lost all the rights that he had formerly possessed as a member of his natural family and acquired rights as a member of his adoptive family as fully as if he -had been the son of his adoptive father in lawful marriage, and at the same time he passed from the paternal power of his own father into that of his adoptive father, losing all further legal connection with, or rights of succession as a member of, his own family, and substituting for these similar ties and rights in his new family.* The Emperor Justinian made radical changes in the law of adoption which completely altered its character and effects.* In the time of Justinian the legal results of adoption differed according as the person was adopted by a stranger or by an ascendant of his own family, such as a grandfather. If the adopter was a stranger, the adopted person, contrary to the rule of the older law, remained under the potestcts of his own father, and retained all his rights as a member of his natural family, whilst he acquired in addition merely a right of succession to his adoptive father only if the latter should die intestate ; ^ for an adoptive father, if he were a stranger, was not bound, as was the natural father, to leave any portion of his property to an adopted child in his will. An adoptive father who was not an ascendant of the adoptee did not acquire patria potestas over him by the fact of adoption. Adoption by a stranger was thus known as adoptio mimes plena or ' Justinian, Inst. i. 11,7. ^ Justinian, Inst., ut supra. A s%iui heres was a person in the power of a deceased person who became sui juris by the latter's death. Such persons {sui heredes, plural) had, by law, the first claim to the succession of a deceased intestate paterfamilias. ^ See general definition of Adoption, ante. Section 33, at p. 141. * Code, viii. 48, 10. 5 Justinian, Inst. i. 11, 2 ; Code, viii. 48, 10. Cf. French Civil Code, Art. 348. SECT. 35] EFFECTS OF ADOPTION 147 "adoption less than full," in contradistinction to adoptio plena or "full" or " complete " adoption, which was the giving of a child in adoption by its father, who had himself been emancipated from paternal power, to a direct male ascendant. In the case of adoptio plena the rules governing the older law of adoption prevailed and the child passed under the power of the adopter, and acquired rights as fully as if he were his own son, whilst at the same time he lost all rights as the son of his own father.^ Under the later Eoman Law a child could not be given in adoption to another without his consent: but that might be tacit.^ The reason for the change made in the law of adoption was that if an adopted child was subsequently emancipated by his adopter — which under the older law, in virtue of the extent of the patria potestas, the adopter might do without the child's consent ^ — he would lose all right of succession as an agnate in both his natural and his adoptive family. The rule of the older law, however, was preserved in the case of adoption by an ascendant, because it was considered that in such a case "the rights of nature and adoption concur in the same person," * and consequently the natural affection arising from ties of blood-relationship would presumably restrain the adopter from emancipating an adopted child to its prejudice.' " Arrogation " and adoptio plena are sometimes called " regular " adoption because they created patria potestas in the adopter, as con- trasted with those forms of adoption which, under the later law, did not create patria potestas, such as adoptio minus plena and adoption by a woman, which are sometimes correspondingly styled " irregular." ^ The French Civil Code recognises adoption, and permits it in the case of persons over fifty years of age having no children or legitimate descendants, and it requires, further, a difference of fifteen years, at least, between the age of the adopter and that of the person adopted.^ The adoption by one person of the offspring, of another giving it the status of a lawful child of the adoptive parent, prevails generally amongst Eastern nations ; * but, as recognised by the Roman Law, it does not find a place, so far, as a legal institution involving definite legal effects, in the law of either England or Scotland. It was introduced, however, long ago, from the law of France or of Spain, into parts of North 1 Justinian, Inst. i. 11, 2 ; Code, viii. 48, 10. 2 Justinian, Inst. i. 12, 8. 3 See ante, Section 30, at p. 134, and Section 32, p. 139. ^ In unam perso9iam concurrunt et naturalia et adoptionisjura. ^ Justinian, Inst. i. 11, 2. 8 Of. Didier-Pailhfe, Droit Romain, 64, 72. 7 See French Civil Code on Adoption, Arts. 343-360. * Mackenzie, Roman Law, p. 136. 148 LEGITIMATION [part il. -Ajnerica, such as Louisiana and Texas ; and, more recently, and at various times, and by different legislative acts, throughout New England, and in New York, New Jersey, Pennsylvania, and a large proportion of the other States of the American Union. Section 36. — Legitimation ^ Children that had been born illegitimate in respect of not being the offspring of lawful marriage might be "legitimated," or put into the position as if they were children of a lawful marriage, in certain ways recognised by the law, and might acquire in such ways all the status. and rights of lawful children. Legitimation created patria potestas to the same effect and extent as both marriage and adoption, but between these three modes in which patria potestas arose there was this distinc- tion, that through marriage paternal power was naturally acquired by the subsequent birth of lawful children, whereas in the cSse of both adoption and legitimation the paternal power was created only civilly and artificially by process of law and not of Nature. In the time of Justinian legitimation of " natural " or illegitimate children was effected in three different ways, namely, by (1) the subsequent marriage of the parents {per suhsequens matrimonium ) ; (2) Imperial rescript {per rescriptum princifis) ; (3) oblation to the Curia {ablatio Curiae). (1) Legitimation " by subsequent marriage" was introduced into the Eoman Law in the reign of the Emperor Constantine ; ^ Justinian extended the requirements of the law upon this matter, and necessi- tated the fulfilment of three conditions in order to render a legitimation by this means complete : (1) at the time of the couception of the child there must not have existed any legal impediment to the marriage of the parents ; (2) the marriage must be evidenced by a legal instrument or document properly executed ; and (3) the child must consent, or at least not object, to the legitimation.^ The legislation of Constantine had required for a valid legitimation that the woman should be freeborn and that there must be no children living by a lawful wife ; but Justinian dispensed with these requirements. The object and effect of the requirement by the parents of legal capacity to contract marriage at the time of the conception, rather than that of the birth of the child, was to exclude children born in adultery, or as the issue of an incestuous union, or of a union between a citizen ' Justinian, hist. L 10, 13. 2 Coosf, Section 160 (d). 172 HUSBAND'S RIGHTS IN THE. DOS [part ii. by a stipulation, was itself enforceable by an action at law as a pactum legitimu'iii} A dos was thus constituted, according to the law of Justinian, either by actual immediate delivery of the property to the husband {dotis datio), or by a promise, either formal or informal, to give the property at a future time {dotis pro missio, or dotis dictio). The dos was most usually, although not necessarily, constituted before the marriage took place; under the law of Justinian a dos might not only be increased, but might even be first given during the subsistence of the marriage.^ A dos given before marriage, how- ever, was conditional vipon the marriage in respect of which it was given taking place.^ Section 44. — Husband's Eights in the Dos Under the Justinianian law the husband was entitled to the control and management of the dos and its fruits during the subsistence of the marriage ; * and, in so far as it consisted of " fungibles," or things ordinarily reckoned by number, weight, or measure, and replaceable by things of the same kind,^ he could exercise full rights of ownership, subject, however, to an obligation upon himself, or his heir, to restore the same kind of things, of the same quantity, quality, and value,^ within a year after the dissolution of the marriage.^ If, however, and in so far as the dos consisted of immovables, or was invested in land or houses, the husband could neither dispose of nor burden the property even with his wife's consent,** and he had to restore it immediately upon the dissolution of the marriage.^ Justinian allowed the husband to deduct from the amount of the dos expenses necessarily incurred in the preservation of the property composing the dos (inqjensae necessariae); but he was liable to pay compensation for any injury to the dotal property through lack of sufficient care on his part, or if he had alienated any of the movables. 1 See " Obligations," post, Part IV., Section 102, at p. 308. 2 Justinian, Inst. ii. 7, 3 ; Code, v. 3, 19, 20 ; Vat. Frag. 110. ' Paul, Sent. ii. 22, 1. Cf. Donatio propter nuptias, post. Section 46, at p. 176. * Cf. French Civil Code, Art. 1549. ■' See Part III., Section 67 (d), pp. 214, 215. « Dig. xxiii. 3, 42. ' Ulpian, lieg. vi. 8. The period was three years until altered to one year by Justinian {Code, v. 13, 1, 7). Cf. French Civil Code, Arts. 1564, 1565, and 1.551, 1552. * Justinian, Inst. ii. 8 pr. Cf. French Civil Code, Art. 1554. » Cf French Civil Code, Art. 1564. SECT. 45] DEVOLUTION OF THE DOS 173 Originally the husband was the legal owner of the dos, and as such he was entitled not only to enjoy its fruits and income, but to dispose of it as he pleased. The encouragement which this would afford to improvidence on the part of the husband was restricted by legislation ; thus the Lex Julia de adulteriis et de /undo dotali (18, B.C.) prohibited the husband from selling immovable property in Italy that formed part of the dos without his wife's consent, or from mortgaging such property even with her consent. Justinian subsequently extended the prohibi- tion to the alienation or burdening of any immovable part of the dos, whether situated in Italy or in the provinces, and whether or not the wife consented.^ The husband's rights in the dos may be said, speaking generally, to have become, by the time of Justinian, merely a life interest during the subsistence of the marriage, and which terminated on the dissolution of the marriage whether by death or by divorce, when the husband had to restore the dos ; except in the case of the marriage being dissolved by divorce by reason of the wife's misconduct, or on the part of the wife by divorcing the husband without reason assigned, in which two latter cases the husband became either actual owner, or only usufructuary of the dos^ according as there were not or were children of the marriage.^ The whole tendency of the development of the law with regard to the dos was to restrict the rights of the husband in the dos to a mere right of enjoyment during the subsistence of the marriage ; so that, apart from dissolution of the marriage by divorce on the ground of the wife's misconduct, or by divorce of the husband by the wife without reason assigned, the surviving husband, under the law of Justinian, had no right- to the dos on the dissolution of the marriage, and had then to restore it according to the general rules of the devolution of the dos^ failing express agreement otherwise. Under the later Justinianian law the dos was only in form the property of the husband, but was in substance the property of the wife, it having come by that time to be recognised by the law as really a portion of the wife's property (res uxoria) entrusted to the husband for a limited period, namely, that of the subsistence of the marriage.* Section 45. — Devolution of the Dos The devolution of the dos under the law of Justinian might differ according as the marriage was dissolved by death or by divorce. ' Justinian, Imt. ii. 8 pr. Cf. Gaius, Inst. ii. 62, 63 ; Code, v. 13, 15. 2 Code, V. 12, 24 ; cf. Code Th. iii. 16, 2. Originally the husband's right in such a case was only to a part, but under the later law it was extended to the whole, of the dos. ' See Section 45. * See Sohm, Inst., 3rd ed., p. 472. Cf. Mackenzie, Roman Law, 102, and note 2. 174 DEVOLUTION OF THE DOS [part ii. If the marriage was ended by the predecease of the husband, the dos profectitia and dos adventitico went to the wife if she was sui juris, or to her father if she was in potestate, and they both had to unite in claiming it : ^ dos receptitia, in such a case, reverted to the donor according to the condition upon which it had been given. A wife who survived hdr husband was entitled to the return of the dos adventitia, which before the time of Justinian she might obtain by means of either an actio rei v.xoriae or by an actio ex. stipulato if the husband had expressly stipulated to return it. Justinian substituted for the actio rei uxoriae an action based upon an implied stipulation, allowing the husband at the same time to deduct necessary expenses which he had incurred in connection with, and for the preservation of, the dotal property.^ A wife or her heirs also possessed, under the Justinianian law, a tacit or implied hypothec over the property of the husband in security of the return of the dos? If the marriage was dissolved by the death of the wife, dos profectitia reverted to the paternal ascendant who had provided it, if still surviv- ing, failing whom it went to the heirs of the wife ; but it could not be claimed by the donor's heirs. Dos adventitia went to the heirs of the wife in the absence of a special agreement to the contrary, while dos receptitia devolved in accordance with the agreement regarding it. Prior to Justinian, dos profectitia reverted, on the death of the wife, to the donor, subject to the retention of one-fifth in respect of each child of the marriage, but if the donor was not surviving at the time of the dissolution of the marriage the husband had right to it.* Under the Justinianian law the husband who survived his wife did not thereby acquire any right in the dos, which reverted to, and could be claimed, without any deduction in respect of children of the marriage, by the donor, or by the heirs of the wife according as it was dos receptitia or dos profectitia, and as the donor was or was not surviving, or as it was dos adventitial If the marriage was dissolved by divorce,^ the general rule was that (unless it was terminated by reason of the misconduct of the wife, or by the wife divorcing the husband without either any or 1 Dig. xxiv. 3, 2, 1. 2 Justinian, Imt. iv. 6, 37 ; Dig. xxiv. 3, 12, 14 ; xxv. 1, 5. See on " necessary " as distinguished from " useful " expenditure, Eoby, Rmnan Private Law, i. 151. 3 Code, V. 13, 1, 1. See "Hypothec," post. Part IV., "Obligations," Section 120 (1), at p. 379. « Vat. Frag. 120. 5 Code, V. 1.3, 1, 5, 6 ; v. 13, 1, 1.3. " See "Diwoice," post, Sections 48 and 49, pp. 181-183. SECT. 46] DONATIO ANTE NUPTIAS 175 sufficient reason assigned), the dos devolved as if the marriage had been dissolved by the husband's death ; dos adventitia and 2^ro/ectitia, therefore, went to the wife, or to her father if she were in his power, while dos receptitia reverted in accordance with the condition upon which it was given. If, however, the marriage was dissolved through the fault of the wife, whether by reason of her misconduct or by failure, to adduce valid reasons for divorce,^ the husband was entitled, under the Justinianian law, to the dos adventitia and profeditia, either absolutely or only for life according as there were not or were any children of the marriage.^ All property belonging to the wife that was not included in the dowry (dos), whether acquired before or after marriage, was known as "paraphernal" property (parapherna) ; it remained the separate property of the wife, and the husband had no rights in or over it except such as his wife might choose to accord him.^ Section 46. — Donatio ante (ok Propter) Nuptias* This was originally and strictly a gift or settlement made by a prospective husband to his betrothed wife by way of a provision for the maintenance of his wife in the event of her surviving the dissolution of the marriage by reason either of his death, or of divorce on account of his misconduct, and for the mutual benefit of the spouses during the subsistence of the marriage.^ This donation or contribution on the part of the husband towards the matrimonial expenses of the spouses corresponded to the dos con- tributed by the wife, or by some one on her behalf, and was regarded as a form of equivalent or return.^ Originally the donatio ante nuptias was essentially ante-nuptial, and could only competently be given before marriage {ante nuptias), as the 1 See as to wliat constituted suflBicient reasons for divorce, post. Section 49, p. 183. 2 See " Husband's Eights in Dos," ante. Section 44, p. 172. ^ Dig. xxiii. 3, 9, 3 ; Code, v. 14, 11. See upon Dos, Sohm, Inst, 3rd ed., 465- 472 ; Moyle, Imt., 4th ed., 131, 132 ; Sandars, Inst. 151, 152 ; Mackenzie, Roman Law, 7th ed., 101, 102 ; Hunter, Eoman Law, 4th ed., 295-.308, 679 Eoby, Roman Private Law, i. 136 et seq. ; Leage, Roman Private Law, 92-96 Girard, Manuel de Droit Romain, 926-941 ; May, Elements de Droit Romain, 340- 353 ; Didier-Pailh§, Droit Romain, 4th ed., i. 257-268 ; Ouq, Institutions Juridiqiies des Romains, i. 229-234. * See for reference to authorities upon the Donatio ante nuptial, post, p. 177, note 6. s Cf. Sohm, In^t. 473. * It was thus sometimes called antiphema, i.e. anti^os {Code, v. 3, 20, 2). See also Muirhead, Roman Law, 2nd ed., 388. Cf. Code, v. 3, 20 pr. 176 DONATIO ANTE NUPTIAS [part ii. Roman Law for long forbade post-nuptial gifts between husbands and wiyes.^ The Emperor Justin, the predecessor, uncle, and adoptive father of Justinian, permitted ante-nuptial donations to be supple- mented after marriage, and the Emperor Justinian went still further, and permitted such provisions to be even constituted for the first time after marriage ; but because the name donatio ante nuptias, or pre-nuptial gift, became thereby somewhat inaccurate, there was sub- stituted for it that of donatio propter nuptias, or gift " in respect of " or on account of marriage.^ The donatio ante nuptias was conditional upon the contemplated marriage in respect of {propter) which it was given taking place, and it was not intended to be effective until that event happened, just as in the case of the d,os ; ^ it was regulated by rules similar to those governing the dos, and, like the dos, it was secured from the claims of creditors. The donatio propter nuptias was the property of the wife, given to her for the specific ultimate purpose of providing for her maintenance if she survived the dissolution of the marriage by reason either of the death of the husband or of his divorce owing to misconduct. During the subsistence of the marriage the husband had control and management of all the property included in the donatio propter nuptias. He might competently apply the fruits or income of the property towards the matrimonial expenses, but he could not alienate the donatio, in so far as it consisted of immovables, even although his wife consented. The wife had a tacit hypothec over the husband's property in security of the donatio propter nuptias, and Justinian also gave to a wife a " real " action or " vindication " {vindicatio) for the recovery of property included within the provision.* In the event of the husband's insolvency the wife was entitled to demand the immediate transfer of the donatio propter nuptias? If the marriage was dissolved by the death of the wife, or by her divorce for misconduct, the donatio ante (or propter) nuptias reverted to the husband absolutely ; but if the marriage was termi- nated by the death of the husband, or by his divorce for misconduct, the wife was entitled to the donatio ante nuptias as her absolute property, unless there were children of the marriage, in which case ' Dig. xxiv. 1, 1 pr. 2 Justinian, Inst. ii. 7, 3 ; Code, v. 3, 19, 20. ^ See ante, Section 43, at p. 172. * Kov. Ixi. 1. 5 Code, V. 12, 29. SECT. 4;] GIFTS BETWEEN HUSBAND AND WIFE 177 she got the usufruct of the property and shared the dominium of it with them.i Under the legislation, of Justinian the valup of the donatio propter nuptias had to be equivalent to that of the dos,^ and wherever a dos was given, or promised, or supplemented on behalf of the wife a donatio required to be correspondingly given, promised, or increased on the part of the husband. Moreover, under the later law, the paterfamilias of the husband was, by a Constitution, put under a legal obligation to provide a donatio propter nuptias similar to that imposed upon the paterfamilias of a bride to provide a dos.^ The donatio from the husband in fact supplied the means ■whereby the wife might provide a dos ; it was frequently returned to the husband as dos which, as such, was the wife's own property which she could claim on the dissolution of the marriage. It is in view of this that Justinian states that the donatio propter nuptias was both in name and fact the same as the dos, the one being correlative to the other.* The donatio ante nuptias was of much later origin than the dos, and is only mentioned for the first time in a Constitution of Theodosius and Valentinian of 449 a.d.,' by which the donatio as well as the dos was to be liable to forfeiture on account of divorce without sufficient cause ; but the donatio ante nuptias is even there referred to as if it were an already recognised legal institutitm.^ Section 47. — Gifts between Husband and Wife (Donationes INTER VIKUM- ET UXOEEM) ^ It was for long a rule of the Eoman Law, supposed, in the time of Antoninus, to be based upon custom,^ that gifts between husband and ' See Mackenzie, JRoman Law, 102 ; Hunter, Roman Laiv, 693 ; Nov. 117, 9. But see Moyle, Inst. 236, to the effect that the surviving wife, without issue, had no claim to the donatio ante nuptias in the absence of express agreement. This view, however, would seem to defeat the true object of the constitution of the donatio. 2 Nov. 97, 1, 2. ' Code, V. 11, 2. * Code, V. 3, 20 pr. 5 Code, V. 17, 8, 4. " See upon the donatio ante (or propter) 7iioptias, Code, v. 3 ; Justinian, Inst. ii. 7, 3 ; Sohm, In.st., 3rd ed., 473 ; Moyle, Inst., 4th ed., 235 ; Sandars, Inst. 1.52 ; Mackenzie, Roman Law, 7th ed., 102 ; Muirhead, Roman Law, 2nd ed., 388 ; Hunter, Roman Law, 4th ed., 309 ; Girard, Manuel de Droit Remain, 941 ; Didier- Pailhl, Droit Romain, i. 268 ; May, Elements de Droit Romain, 3.53. ' See Dig. zxiv. 1 ; also Hunter, Roman Law, 6th ed., pp. 319-321 ; Roby, Roman Private Law, i. 159 et seq. ; Moyle, Institutes, 4th ed., 234 ; Mackenzie,, Roman Law, 7th ed., 103 ; Girard, Manuel de Droit Romain, 2nd ed., 919 ; Sohm. Institutes, 3rd ed., 464, 473. * Dig. xxiv. 1, 1 ; Dig. xxiv. 1, 3 pr. 12 178 GIFTS BETWEEN HUSBAND AND WIFE [part ii. wife given during marriage were void and of no effect; the reason advanced by the jurists for the existence of this rule was a desire to avoid the risk of the SB,ouses impoverishing each other owing to excess of mutual affection, and also a desire to preserve the purity of the married state by preventing the contraction of marriages in the mere expectation of gifts, which hope, if unrealised, might induce domestic discomfort and even divorce.^ The Lex Gincia de Bonis (203 A.D. circa), which existed up to the reign of Constantine but was obsolete by the time of Justinian, declared void gifts beyond a certain, but unknown, amount, except to certain persons related to the donor by either cognation or aflSnity, or as patron, or if the donee was under the tutelage of the donor.^ This law, however, did not apply to husband and wife. The rule voiding gifts between husband and wife only applied in the case of lawful marriage, and when the gift was of such value as to materially impoverish the giver,^ and when it was intended to take effect during the subsistence of the marriage; it did not apply to customary birthday or other gifts made by the spouses to each other during marriage, so long as they were moderate and reasonable in value.* Consequently a gift by a husband or a wife to the other spouse that was only intended to become operative after the dissolution of the marriage, as in the event of death, divorce,^ or exile,® was valid, and did not fall within the prohibition;^ nor did gifts between persons betrothed, provided they were actually given before marriage ; in the event of the contemplated marriage not taking place, or even if it did follow, such a gift could not be reclaimed unless that had been an express condition attached to the gift. Certain gifts, moreover, of a special character made between husband and wife were immediately valid and irrevocable, such as those given by way of remuneration for services rendered, or those given by a wife to her husband specially to qualify him for, or to maintain the dignity of certain public offices.^ ' Dig. xxiv. 1, 1, 2. ^ See Hunter, 319. ^ Dig. xxiv. 1, 25. * Dig. xxiv. 1, 31, 8. ^ Presumably mutual divorce upon such grounds as priestly office, barrenness, old age, health, or military service (ef. Dig. xxiv. 1, 60-62). The gift was only valid if made in contemplation of an immediate divorce, but was not good if given in view of merely a possible but uncertain future divorce {Dig. xxiv. 1, 60, 1 ; Dig. xxiv. 1, 62, 1 ; Dig. xxiv. 1, 12). » Dig. xxiv. 1, 43 ; xxiv. 1, 13, 1. ^ Dig. xxxix. 6, 43 ; Dig. xxiv. 1, 9, 2 ; Dig. xxiv. 1, 11 pr. * Dig. xxiv. 1 ; Code, v. 16 ; Ulpian, vii. 1 ; Paul, Sent. ii. 23. SECT. 47] GIFTS BETWEEN HUSBAND AND WIFE 179 From the time of the Emperor Septimius Severus (a.d. 193-211) the rigidity of the rule regarding gifts between spouses became relaxed. In the year 206 a.d. a Senatus-consultum, introduced by, and enacted at the instance of Antoninus, in the reign of Severus, and known as the omtio Antonini,^ provided that gifts between husband and wife should not be entirely void, but should be revocable at any time during the marriage, or if the donee predeceased the donor, or was divorced.^ Such gifts, moreover, would become valid unless they were expressly revoked by the donor, either during life or by testament.^ The law of Justinian followed this rule. Donations between husband and wife were not void, and could competently be made ; but they were voidable at any time during the subsistence of the marriage. If, however, the donor should predecease the donee without having revoked the gift it became thereby effectual, and was irrevocable on the part of the donor's heirs. Prior to the time of Justinian it was a disputed point between jurists — including Papinian and Ulpian — upon the interpretation of the oratio Antonini, whether a mere unrecalled promise to make a gift without an actual transfer of the property could be enforced against the donor's heir. Papinian held that the promise was not validated by the death of the promisor without revocation.* Ulpian took an opposite view, and maintained that a stipulation, for example, for an annuity could be enforced after the death of the promisor if he had not gone back on his promise during life.* Justinian established that not only were all such promises enforceable, but that even a mortgage or pledge of the property promised should not be considered as an implied revocation, as had been the view up to that time.* The death of the donor did not operatie as a ratification of the gift if the parties were divorced, or even permanently separated without divorce and not re-married before death ; '' or if the donee predeceased, or was reduced to slavery,* or if neither the donor nor donee had the legal capacity to give and to take a gift, respectively, at 1 The term " oration " (oratio), prefixed to a legal enactment of the Senj^te, was strictly applied to the speech by which the Eoman Emperor submitted proposals for legislation to that body ; but the " orations " ultimately came to be regarded as themselves law, apart from the Senatzis-eo'/isulta in which the proposals were embodied. 2 Dig. xxi. 1, 32. 3 Dig. xxi-\?. 1, 32, 2. * Dig. xxiv. 1, 23. 5 Dig. xxiv. 1, 33 pr. ; Dig. xxiv. 1, 33, 2. 6 Nov. 162, 1 ; Dig. xxiv. 1, 32, 5 ; Code, v. 16, 12. ' Big. xxiv. 1, 62, 1 ; Dig. xxiv. 1., 32, 10 ; Dig. xxiv. i. 32, 19. 8 Dig. xxiv. 1, 32, 6 ; Dig. xxiv. 1, 32, 18. 180 DISSOLUTION OF MARRIAGE [part li. the time of death.^ Under the later Justinianian law gifts that were unrevoked at the time of death became effective up to the amount that did not require registration, but were invalid beyond that amount.^ The rules of the Roman Law regarding gifts between husband and wife have been adopted in principle by those modern legal systems which are, in large measure, based upon the developed Roman Law. Thus, in both French Law^ and the Law of Scotland, such gifts are revocable, while in Roman-Dutch Law they are, with certain exceptions, void.* Section 48. — Dissolution of Maekiage A Roman marriage might be dissolved or terminated by death, divorce, slavery, or loss of citizenship ; ^ but loss of citizenship, as by outlawry (interdictio aquae et ignis),^ did not ipso facto dissolve a marriage ; it merely gave ground to the other party to do so if he or she desired.^ Under the old law, marriage with manus was dissolved by the capitis deminutio minima of either of the parties. Marriage might also be dissolved by reason of the emergence of incestuous cir- cumstances,* as, for example, if a man were to adopt as his son the husband of his daughter.^ Under the later law, slavery resulting from captivity did not dissolve a marriage ; the captivity was regarded as mere absence, and consequently, proof of the death of the absentee was requisite in order to entitle the remaining spouse to contract another marriage.^" This was the ultimate modifi(?ation of the rule of the earlier law, which was. to the effect that, although captivity did not dissolve a marriage, the recovery of liberty did not, by operation of postliminium ^^ (Jure post- liminii), revive the married relationship, to the renewal of which the parties had to give a fresh consent.^^ A wife could marry again, without divorcing her captive husband, after the lapse of five years since he was last known to be alive. 1 Big. xxiv. 1, 32, 7-8 ; Code, v. 16, 24. 2 Code, V. 16, 25 ; Mov. 162, 1, 2. 3 Civil Code, Art. 1096. * See Lee, Introduction to Roman-Dutch Law ; Wessel's History of the Roman- Dutch Law. ^ Dig. xxiv. 2, 1 . " See ante. Section 5, p. 77. 7 Code, V. 17, 1. * Incestus superveniens. » Of. Dig. xxiii. 2, 67, 3. w Nov. 117, 11. 1' See on postliminium, ante. Section 4, p. 74. 12 Dig. xlix. 15, 14, 1. Cf Eoby, Roman Private Law, i. 133. SECT. 48] DISSOLUTION OF MARRIAGE 181 (a) Dissolution of Marriage by Death According to the definition of the law/ marriage was a contract by which a man and a woman undertook, in certain ways prescribed by the law, to live together as husband and wife for the rest of their lives. The natural mode of termination of this contract was thus the natural death of one of the parties. A woman whose marriage had been dissolved by the death of her husband, or by divorce, was bound, under liability to incur " infamy " ^ and other penalties, to let a year elapse before contracting another marriage.^ (b) Dissolution of Marriage by Divorce Divorce is the dissolution of the contract of marriage in the lifetime of both the parties. Divorce always existed amongst the Romans from the earliest times, but for very long it was seldom employed ; by the end of the Republican Period, however, in the general corruption of public morals which had then come to prevail, it became so excessively common as to constitutCja very serious social danger and a real source of social and racial degene- ration, and various laws were passed with a view to check the evil. Divorce, in the view of the Roman Law, and contrary to that of most modern and European systems, was a purely private act between the parties, for the completion of which the intervention of a judge or the decree of a legal tribunal was not requisite. Divorce operated by the consent of the parties alone, and that con- sent might be either (a) mutual, or (6) on the part of only one of the parties. Mutual divorce, by the consent of both parties, was known as divortium, while divorce effected by the will of only one of the parties was distinguished as repudium or " repudiation," and this latter method was as available to the wife as to the husband.* Divorce, as specially understood by Roman Law, may consequently be defined as the dissolution of a lawful marriage in the lifetime of both parties by the will of both or either of them. The mode of dissolution of the marriage by divorce corresponded with the mode by which it had ^ See ante, Section 37, p. 151. ^ See on " infamy," ante, Section 8, p. 80. 3 Code, V. IT, 8, 9 ; Nov. 22, 16 pr. Cf. French Civil Code, Art. 228, which fixes a period of ten months from the date of the dissolution of the preceding marriage. * Divortium was sometimes employed to signify generally dissolution of marriage at the instance of either or both parties, and repudium as connoting the written " bill of divorce " {libellus repudii). See Hunter, Roman Law, 689. 182 DISSOLUTION OF MARRIAGE [part ii. been constituted, so that a jus civile marriage created by " confarrea- tion " was dissolved by " diffareation," which was another formal and similar religious sacrifice and ceremony to the contrary effect, and a marriage constituted by '' co-emption," or a fictitious sale, was terminated by " re -mancipation " or a re-sale.^ In the same way marriages con- stituted under the later law, by mere consent, after . marriage with manus had become obsolete, were also dissolved by mere consent, either mutually or by the will of one of the parties.^ Besides being terminated by the will of the parties themselves, a Roman marriage could also be dissolved by the paterfamilias of the wife, if she had not passed into the manus of her husband and had not been emancipated and thus remained under the potestas of her father, even against the wish of both her and her husband : the Emperor Antoninus Pius, in a "Constitution,'' prohibited the exercise of this power in the case of well-assorted raarriages,^ and the Emperor Marcus Aurelius further qualified the prohibition by permitting, the exercise of the power only in cases when there was serious and good ground for doing so.^ The essential element in a Roman divorce was the consent of the parties, whether of one or both of them, without the necessity of any judicial procedure or decree ; but the laws enacted during the period of the later Republic and that of the Empire in order to regulate and limit the excessive freedom of divorce endeavoured to accomplish their purpose by imposing penalties not only upon the spouses who gavfe good ground for divorce, but also upon parties who divorced each other by mutual consent without good and sufficient cause. The penalties usually involved forfeiture of the marriage contract, or other matrimonial provisions such as the dos*' or the donatio propter nuptias.^ Mutual divorce (divortium iona gratia) was practically prohibited by the legislation of Justinian by reason of the excessive severity of the penalties attached to it,'' but his successor repealed the prohibitive penalties, and restored the competency of mutual divorce.^ Divorce by one of the parties without the consent of the other ' See on " confarreation " and "co-emption," ante, Section 37, pp. 153-154. 2 Cf. Sotm, Inst., 3rd ed., 475. ^ Code, V. 17, 5. See ante. Section 30, at pp. 133-134, re the extent of the authority of the paterfamilias. i^ * See ante, Section 41, p. 169. * See ajite, Section 46, p. 175. » Nov. 117, 10-12 ; 134, 11. 7 Nov. 140, 1. SECT. 49] RESTRICTIONS UPON DIVORCE 183 required no special formalities i until the Lax Julia de aduUeriis ^ pre- scribed that the serious intention ^ of one party to divorce the other should be expressed and evidenced in a document or "letter of repudiation"* delivered in the presence of seven Roman citizens above puberty;^ following upon which the written record of the marriage^ was destroyed, and the fact of the divorce (repudivm) was recorded in a public registerJ Section 49. — Restrictions upon and Effects of Divorce Until the legislation of Justinian,^ to which reference has been already made,^ there was no legal restriction upon the freedom of mutual divorce {divortium). For long, moreover, there was also no legal restriction upon the freedom of divorce of one spouse by the other {repvAium), but this right came to be abused to such an extent that it was sought to check the evil by legislation imposing forfeitures or penalties upon persons who repudiated each other without sufficient reason for so doing, or whose conduct gave good ground for divorce. The Lex Julia et Pajna Poppaea^'^ A.D. 9, introduced the first legislative restraints upon the freedom of divorce by repudiation. The Emperor Constantine in a.d. 331, and the Emperors Honorius and Theodosius in A.D. 421, prescribed certain grounds upon which alone one party could repudiate the other without thereby incurring severe penalties or for- feitures ; 11 but their legislation, owing probably to the severity of its provisions, was subsequently superseded by legislation of a less stringent character on the part of the Emperors Theodosius and Valentinian in A.D. 449,12 a,nd of the Emperor Justinian ; the latter Emperor repealed all former Constitutions on the subject, and fixed anew what should constitute good grounds for the divorce of one spouse by the other.i^ Amongst valid grounds which did not involve any penalty or forfeiture were the adultery of either party, an attempt by one spouse on the life 1 Big. xxxviii. 11,1. 2 B.C. 17. 3 Cf. Dig. xxiv. 2, 3. * Lxhellui repvAii. ^ Dig. xxiv. 2, 9. ^ Nuptiales tabulae {Dig. xxiv. 2, 9). ' See also, for form of divorce. Dig. 24, 2, 2, 1. 8 Nov. 117, 10-12 ; Nov. 134, 11. ^ Ante, p. 182. 1° See also ante, Section 39, at p. 164, and Section 16 (e), p. 99. 11 C. Theod. iii. 16, 1, 2. 12 Code, V. 17, 8, 2. 1= Nov. 117, 8-9. 184 CONCUBINAGE (CONCUBINATUS) [part ii. of the other, an endeavour on the part of the husband to induce the wife to commit adultery, an unsubstantiated charge of adultery made by the husband against the wife, the keeping by the husband of a mistress or a concubine in the same house as his wife, and treason. If for any reasons such as these the wife or the husband, as the case might be, divorced the other, the wife, on the one hand, became entitled to the restoration of her dowry {dos) and also to the usufruct of the donatio 'propter nuptias if there were children of the marriage, or to the donatio as her absolute property if there were no children ; while the husband, on the other hand, became entitled absolutely to the dowry if there were no children of the marriage, or to the usufruct of the dowry if there were children.^ If a husband or a wife repudiated the other for any reasons other than those recognised as valid by the legislation of Justinian, the husband forfeited his interest in the dowry and also his matrimonial contribution in the form of the donatio propter nuptias, while the wife, on her part, forfeited her dowry, and was at the same time placed under a disability to contract another marriage during the next succeeding five years, as was prescribed in the legislation of the Emperors Theodosius and Valentinian.^ Section 50. — Concubinage (concubinatus) The Eoman Law recognised ^ a union, of a more or less permanent character, between a man and a woman which was of a lower degree than that of marriage, and was, moreover, regarded as, for the woman, of a somewhat degrading nature, under the name of concubinatus or " concubinage." " Concubinage " was the permanent cohabitation or living together of an unmarried man and an unmarried woman ; the relationship was legalised, in the reign of the Emperor Augustus, by the Lex Jidia et Papia Poppaea, and was exempted from the penal provisions of the Lex Julia de adulteriis.* Concubinage resembled marriage in many respects. It was a per- manent union, but without the intention of creating thereby the ' See ante, Sections 45 and 46. ^ See upon divorce and legislation with regard to it — Hunter, Rotnan Law, 4th ed., 688-694 ; Muirhead, Eoman Law, 2nd ed., 356 ; Moyle, Institutes of Justinian, 4th ed., 129-131 ; Mackenzie, Eoman Law, 7th ed., 119-121 ; Sohm, Institutes of Eoman Law, 3rd ed., 474-477 ; Roby, Eoman Private Law, i. 133-135. ■' Cf. Biff. XXV. 7, 3, 1. ■• Dig. XXV. 7, 3, 1. SECT, so] CONCUBINAGE (CONCUBINATUS) 185 relationship of husband and wife — in other words, it lacked what was known as maritalis affedio — and, like marriage, it could be dissolved at the pleasure of the parties. It was also, like marriage, of a mono- gamous character, and a man c6uld not have more than one concubine at one time, nor could he either take a concubine while he still had a wife, or take as a concubine the wife of another man without render- ing himself liable to a charge of adultery.^ Children born as the offspring of concubinage were not regarded as spurious {spurii) or bastards, as being the offspring of promiscuous, illicit, or incestuous intercourse,^ but were known as "natural" or illegitimate children (naturales liberi), as distinguished from those ■children who were legitimate in respect of being the issue of lawful marriage. " Natural " children, as distinguished from those that were " spurious " or bastard, and whom the law regarded as having no father,^ were entitled in certain circumstances, as the offspring of a recognised legal relationship, to be maintained by their father (whom the law recognised to that extent), although they had no legal rights of succes- sion to him; and they could, moreover, be rendered legitimate, and thereby be brought under the legal authority (jiatria potestas) of their father, if they so consented,* by the subsequent marriage of their parents.* " Natural " children, however, possessed rights of succession to their mother to the same extent as her lawful children. The essential distinction between concubinage send marriage was that a union of the former character did not create patria potestas, in respect of the fact that, although it was a relationship of a permanent nature, it was not lawful marriage, which alone could have that effect ; and, for the same reason, there could not be constituted, in the relation- ship of concubinage, a valid and enforceable dowry, while mutual gifts between the parties did not possess the qualities of donations between husband and wife, but were irrevocable like any other donations inter vivosJ^ Concubinage, as part of the Roman legal system, and as a Roman legal institution, was abolished by the Emperor Leo — "the Philosopher " — in A.D. 887, on the ground that it was contrary to the Christian religion and to public decency. Thereafter the law drew no distinction 1 Code, V. 26, 1 ; Paul, ii. 10, 1 ; ii. 20. 2 Stuprmn, adultermm, incestus. ' Such children were said to be vulgo concepti {Dig. i. 5, 2-3). * Nov. 89, 11 pr. ^ See legitimation joe?' sitbsequens matrimonium, ante, Section .36, at p. 148. '' See on " donations inter vivos," Part III., post. Section 84, p. 260. 186 CONCUBINAGE (CONCUBINATUS) [part ii. between " natural " children and " spurious " children or bastards, who were both equally illegitimate. Under the Roman Law the privilege of legitimation by the subsequent marriage of the parents had been con- fined solely to children born in concubinage, but the later Canon Law i extended the principle and the privilege to all illegitimate children, provided the parents were legally capable of contracting marriage at the time of the child's conception.^ ' See on the " Canon Law," Reichel, Manual of the Oancm Law. ^ This is said to have been effected by two Constitutions of Pope Alexander III. See Mackenzie, Roman Law, 7th ed., 128. See also ante, Section 36, at p. 149. CHAPTER VII Guardianship — Tutory (tutela) — Curatory (cura)i Section 51. — Guardianship Generally ^ - Persons might be placed under the guardianship of another person either because of youthfulness and consequent lacl? of understanding or judgment, or because of mental weakness, or some other special cause which presumably rendered them incapable of jierforming legal acts for themselves. There were recognised by the Eoman Law two general forms of guardianship known respectively as "Tutory" (tutela) and " Curatory " {euro). All persons under the age of legal majority {perfecta aetas), which the Eoman Law fixed at twenty-five complete years, were subject to guardianship, and also certain persons of full age but regarded by the law as of imperfect legal capacity. " Tutory " {tutela) was of two kinds— (1) " Tutory of Pupils " {tutela imp^iberum) and (2) " Tutory of "Women " (tutela mulieriwi). " Tutory of Pupils '' (tutela impuherum) was tutory proper, and was a right given by the law to a person, of full age, to control both the person and the property of -a-pupil. The father, during his lifetime, was the natural tutor of his pupil child ; if, however, the father was dead, and the pupil was consequently sui juris, he was nevertheless subject to the authority of another person as his legal tutor, in order to complete his defective legal capacity. " Tutory of Women " (tutela mulierum) was a special form of tutory which had disappeared from the Eoman system by the time of Justinian, so that the InstitiUes speak only of pupils as being subject to tutory.^ The tutelage to which women were originally subject, and which, although even by the time of Gains it was regarded as an irrational anachronism,* subsisted as an attenuated legal institution 1 Justinian, List. i. 1.3-26 ; Big. xxvi., xxvii. ^ Of. Cuq, Institutions Juridiques des Romains, i. 307-312. ^ Of. Eoby, Roman Pi-ivate Law, i. 102. * Cf. Gaius, Inst. i. 190. 187 188 GUARDIANSHIP GENERALLY [part ll. until the reign of Diocletian, was a right given by law to the agnates of a woman who was not in the power of either a father or a husband to prevent her from disposing of or burdening her property or from undertaking any serious obligation to their prejudice as her heirs. The rules of female tutelage were originally very strictly enforced, but were gradually relaxed, and after the reign of Diocletian entirely disappeared ; so that they have no place in the Justinianian system.^ "Curatory" (cura) was the guardianship or control exercised by a person of full age — called a curator — over another person who was sui juris, but whose legal capacity and power to administer his own affairs was qualified or limited by reason of either (a) minority, or (6) mental weakness, or (c) on account of some special and accidental circumstance. Curatory might extend either to administration (gestio) only, as in the case of minors, or to both the control of the person and the administration of the property, as in the case of insane persons. Curatory was subdivided into («) Curatory of Minors (Ctira minorum); (6) Curatory of a "Prodigal" {Cura prodigi); and (c) Curatory of an Insane Person {Cura fiiriosi). Tutelage (tutela), according to the definition of Justiman,^ was an authority and control over a person gui juris, either given or permitted by the law in order to protect one who is too young to protect himself by reason of the lack of proper understanding (intellectus) and judgment (Judicium). The essential distinction between tutory and curatory was that the tutor was given to the person, while the curator was given to the property ; ^ the principal function of the tutor was to complete the defective legal personality and capacity of his ward, while that of the curator was to administer the property of those persons who were deemed by the law incapable of managing it for themselves. The tutor performed his essential function by means of the inter- position or giving of his authority or approval {interpositio auctoritatis) to acts done ■ by his ward, thereby rendering them legally valid ; he might also have the right of gestio or administration and disposition of his ward's property combined with his auctoritas, but this was not essential and was not involved, for example, in female tutelage. The curator, on the other hand, was primarily given to the property, and the right of gestio or administration of the ward's property was the essence of curatory (cura) ; he did, indeed, in certain circumstances, act 1 See on " Tutory of Women," post, Section 68, p. 198. ^ Justinian, IvM. i. 13, 1 ; Dig. xxvi. 1 pr. ' Of. Justinian, Inst. i. 14, 4 ; also Dig. xxvi. 2, 12, 14. SECT. 52] TUTORY (TUTELA) 189 for and on behalf of his ward, but he did not exist, like the tutor, primarily to supplement and complete the defective capacity of his ward and to render his acts legally valid by the interposition of his approval. 1 Guardianship was originally regarded rather as a right inherent in the agnates for the protection of their own interests than as a duty for the safeguarding of the interests of the ward; but by the time of Justinian it had come to be considered, from the point of view of public policy, as a public office {munus publicum) which persons nominated could not refuse to fill unless upon certain well recognised grounds.^ Amongst valid grounds of, or reasons for exemption from acting as a guardian were — (a) the fact of being already engaged on the service of the State,^ or having fulfilled a public duty, as by having a certain number of lawful children living, or killed in battle;* (6) having interests, or being in a position adverse to the ward — as being engaged in a lawsuit with,^ or being a creditor, or debtor of the pupil or minor, as the case might be,'' or enmity existing between them,^ or the status of the person nominated having been challenged ; * (c) being unable to fulfil the duties of the office by reason of poverty,* ill-health,^" illiteracy,^'- or old age ; ^^ (d) filling or having filled similar offices ; ^^ (e) being a member of certain liberal professions, such as law, medicine, or rhetoric.^* Section 52. — Tutoey (tutela)'^ Tutory, as has been already stated,^'' was of two kinds, namely, that of " Pupils " (tutela impuberutii) — i.e. males under fourteen and ' Cf. on the distinction between Tutela and Cwa, Sohm, Inst., 3rd ed., 488, 489. ^ See Irist. i. 25, and Dig. xxvii. By French Law a person chosen as guardian is bound to act unless he can show valid grounds for exemption. As to the nature of Such grounds, see French Civil Code, Arts. 427-449. 2 Imt. i. 25, 1-3. * Inst. i. 25 pr. This ground of exemption was first introduced by the Lex^ Papia Poppaea. ^ Inst. i. 25, 4. " Nov. 72, 1. ^ Imt. i. 25, 9, 11. 8 Inst. i. 25, 12. ° Inst. i. 25, 6. 1" Inst. i. 25, 7. " Inst. i. 25, 8. 12 Inst. i. 25, 13. " Inst. i. 25, 5. " Inst. i. 25. '5 Justinian, Inst. i. 13 et seq. 18 Ante, p. 187. 190 TUTORY OF PUPILS [part ii. females under twelve years of age — and that of Womea (tutela mulierurii)} Section 53. — Tutoky of Pupils ^ Pupils of either sex who had ceased to be under the power {potestas) of a paterfamilias, and who were consequently sui juris, were placed by the Roman Law under the guardianship of a " tutor," who in the exercise of the functions of his office had control over the person of the pupil, and the management of his property. A tutor, however, was necessary to a pupil even although he had no property, in order to supplement and complete his defective legal personality and capacity, and to enable him to perform valid legal acts ; this the tutor effected by the interposition of his approval (audoritas) to acts done by the pupil.^ Only Roman citizens who had attained majority could fill the office of tutor,* but a filiusfamilias could be appointed a tutor-" since the office was regarded as a public one, and a filiusfamilias was always eligible for public office." Women could not, in general, act as tutors ; this was one of the forms of their legal incapacity and defective status by reason of their sex ; '' Justinian, however, after several enactments,* finally modified the general rule to the extent of permitting the mother or grandmother of a pupil to act as his tutor ; ^ but this concession did not extend to curatory, so that as soon as a pupil attained minority or puberty the tutory of the mother or grandmother, as the case might be, ipso facto ceased.^" ' See on " Tutory of Women," post. Section 58, p. 198. ^ See on " Tutory of Pupils " generally. Hunter, Roman Law, 4tli ed., 696-727 ; Sohm, Institutes of Roman Law, 3rd ed., 488 et seq. ; Poste, Institutes of Gaius, 4th ed., 87 et seq.; Moyle, Institutes of Justinian, 4tli ed., 147 et seq.; Mackenzie, Roman Law, 7th ed., 150-163 ; Sandars, Institutes of Justinian, 8th ed., 54 et seq. ; Liage, Roman Private Law, 98-105 ; Girard, Manuel de Droit Romain, 197-214 ; May, Elements de Droit Romain, 126-140 ; Didier-Pailhe, Droit Romain, 4th ed., i. 84-106 ; Cuq, Institutions Juridiques des Romains, i. 322-330, 565-566. 3 Justinian, Inst. i. 21. * Justinian, Inst. i. 25, 13. ^ Justinian, Inst. i. 14 pr. ; Dig. xxvii. 10, 1, 7. ^ Dig. i. 6, 9. See ante. Section 29, at p. 132. ' See ante, Section 10, pp. 83-87. 8 Code, V. 25, 3 ; Nov. 89, 14 ; 94, 2. " Kov. 118, 5. In such a case the mother or grandmother was preferred to all collaterals next after the testamentary tutors, provided she was willing to abstain from re-marriage and to renounce the benefit of the (S'.-C. Velleianum, which incapacitated women from binding themselves for other persons. Cf. Hunter, Roman Law, 4th ed., 718. By French Law no women can act as guardians except the mother and any female ancestor (French Civil Code, Art. 442). ^^ Cf. post. Section 60, p. 201, re " Curatory of Minors.'' SECT. 54] VARIETIES OF TUTORS 191 Section 54. — Varieties of Tutors In the time, of Justinian guardians were of three kinds : they were either appointed by will, or named by the law in the event of intestacy, or appointed by the magistrate, failing either a testamentary or a legal guardian: expressed more shortly, guardians were either (a) testa- mentary, (&) statutory, or (c) magisterial.^ According to the foregoing classification, there were otherwise, respectively (1) testamentary tutors ; (2) tutors-at-law ; and (3) tutors-dative.^ Corresponding to the varieties of tutors, " Tutory " (tutela) was of four kinds, namely : (1) Tutela testameniaria ; (2) Tiotela legitima; (3) Tutela dativa; and (4) Tutela fichiciaria; which created respectively by (1) testament; (2) statute ; (3) magisterial appointment ; and (4) operation of law. (a) Testavientary Tutor (Tutor testamentarius)^ This was a tutor specially named and appointed by a father in his testament to his lawful* pupil children, whether already born or posthumous.® The father, during his life, was the natural tutor of his pupil children, but he could by testament nominate a person or persons ^ to act as tutor to those of his children who should be under puberty and become sui juris at his death. A testamentary tutor was not required to give security for the faithful and proper discharge of his duties, because the law assumed 1 Cf. Sohm, Inst., 3rd ed., 492. 2 There was also a fourth but rather special form of tutory known as tutela jiduciaria, or "fiduciary" tutory. In the time of Justinian this signified the rights of tutelage vested by law in the filiifamUias over a pupil who had been emancipated, and whose paterfamUias had died without nominating a tutor for him. Originally, and in the time of Gains, fiduciary tutelage was that vested in a person who, in the course of the emancipation of a fiUusfamUias, had, after the third fictitious sale, manumitted him, and so became his patron, instead of re-mancipating the son to the father in order that the latter might acquire patronal rights. (See Emancipation of a filimfamilias, ante. Section 32, p. 138.) The Praetorian Edict ultimately provided against this contingency by implying in the ceremony of emancipation an agreement on the part of the fiduciary father to re-sell to the natural father, so that the fiduciary father thereafter, in all cases, held the tutelage in trust for the true father. {Cf. Gaius, Itist. i. 166a, also i. 115, 175, 195a ; Justinian, Inst. i. 19.) ^ Dig. xxvi. 2. * A father could nominate a tutor to an illegitimate child if, at the same time, he left him property. 5 Justinian, Inst. i. 13, 4. A " posthumous " child was either {a) one born after the father's death, or (6) in a special sense, one born after the date of a testament, although in the lifetime of the testator (cf. Inst. iii. 13, 2). » See on " Co-tutors," post, Section 56, p. 197. 192 VARIETIES OF TUTORS [part ii, from the fact that he had been specially selected by the father that the latter reposed special confidence in him ; unless in the interval since making the appointment in the testament some change had taken place in the position or character of the person nominated which manifestly rendered him unsuitable for the office. (b) Tutor -at- Law {Tutor legitimus) ^ A tutor-at-law or " legal " tutor was a person entitled to act as tutor to a pupil child by virtue of a, law or statute. The law which recognised the status of tutor legitimus or " legal " tutor was, primarily, the Twelve Tables, either directly by its terms, or indirectly by inference from them as interpreted by the jurists. " Legal " tutory {tutela legitima) was of three kinds, namely — (1) Tutory of agnates (legitima agnatoruvi tutela),^ (2) Tutory of patrons (legitima patronorum tutela),^ and (3) Tutory of parents (legitima parentum tutela)^ The Roman Law, by the Twelve Tables, gave the right of legal tutory to the nearest agnates of a pupil sui juris — who were those persons most nearly related to the pupil by "agnation," or the artificial legal tie created between persons by reason of their subjection to the potestas of the same person, or of their common descent from the same male ancestor — in these cases where either the paterfamilias had not named a tutor, or his nomination had failed (as, e.g., by the predecease, or by the supervening incapacity of the nominee) because they were the heirs of the ward upon intestacy and without lawful issue, upon the expressed principle that " where the benefit of the succession is, there ought also to be the burden of the tutelage." ^ Justinian abolished the distinction between "agnates" and "cog- nates " so far as tutory was concerned, and gave the right of " legal " tutelage (tutela legitima) to the next-of-kin, whether they happened to be agnate or cognate ; and he also permitted the mother or the grand- mother of a pupil to act as tutor-at-law preferably to the male agnates.^ The patron and his children became, indirectly, by the law of the Twelve Tables, as interpreted by the jurists, the " legal " tutor of a slave manumitted under puberty on the same principle as governed the right of the agnates of a pupil to the effect that as a patron and his children ' Justinian, Inst. ^ Justinian, Inst. i. 15. ' Justinian, Inst. i. 17. * Justinian, Inst. i. 18, 19. '^ Justinian, In^t. i. 17 pr. » Nov. 118. .. 15 ; Dig. xxvi. 4. SECT. 54] VARIETIES OF TUTORS 193 had certain rights of succession to his freedman the burden of the tutelage ought to accompany the benefit.^ A paterfamilias who emancipated a child under puberty became thereupon the " legal " tutor {tutor legitimus)- of that child,^ upon the same principle by which the right was given to the agnates or to the patron. (c) Tutor-dative (Tutor dativus)^ This was a tutor " given " (dativus) or appointed by the law through the medium of a magistrate. A " tutor-dative " was, in the ordinary case, given by the Court when there was neither a testamentary tutor appointed or capable of acting, nor any person legally entitled to the office of tutor in virtue of relationship to the pupil. A tutor-dative was, however, also appointed by the magistrate, in preference to the agnates of the pupil, when a father had named a tutor in his testament, but only to act conditionally upon the happening of some uncertain future event, in which case the tutor-dative filled the office temporarily {pro tempm-e) until the fulfilment of the condition.* .A " tutor-dative " might, moreover, be appointed to act, in preference to the agnates of the pupil, if the person nominated by the paterfamilias in his testament had been specially exempted from acting,^ or had become incapable, or had been removed from office, or taken captive. " Tutors-dative " or " magisterial tutors " (dativi a magistratibus) were originally appointed in Rome, under the terms of the £ex Atilia,^ by the Praetor Urhanus and a majority of the Tribunes, but in the time of Justinian they were appointed, after inquiry, by the " City Prefect " (Fraefectus urbis), if the pupil was of high rank or large fortune, or, in other cases, by the defensores,'' who were inferior magistrates selected out of the decuriones of a city to hold office for two years, with a limited civil and criminal jurisdiction. In the provinces tutors-dative were appointed by the Praeses under the Lex Julia et Titiafi ' Justinian, Inst. i. 17 pr. 2 Justinian, Inst. i. 18 ; also i. 12. ' Justinian, Inst. i. 20. It must be noted that Justinian and Gaius use the term tutor dativus in different senses. Gaius employs it to signify a testamentary- tutor (Gaius, Inst. i. 154), while Justinian means by it a guardian appointed by a magistrate {Code, i. 3, 52). Cf. also Dig. xlvi. 6, 7 ; Poste, Institutes of Gaius^ 4th ed., 91. * Justinian, Inst. i. 20, 1. "* For grounds of exemption from the office of guardian, see ante, p. 189. " Justinian, In^t, i. 20 pr. The date of this statute i.s uncertain, but it is generally fixed about b.c. 197. ' Justinian, Inst. i. 20, 3, 5. Cf. Dig. xxvi. 5, 1 ; Code, i. 4, 30. 8 Circa 31 b.o. On the dates of the " Atilian Law " and the Lex Julia et Titia,, see Sandars, Institutes of Justinian, 65. 13 194 DUTIES OF A TUTOR [part il. Section 55. — Duties of a Tutors The chief duties of a Roman tutor were to make provision for the proper care, and maintenance, and education of the pupil ; to manage the pupil's property, if any ; ^ and to give his sanction and approval (aiictoritas) to acts of the pupil, when necessary, in order to complete the pupil's defective legal capacity and so render his acts legally valid. These functions of a tutor were summed up, in the Roman Law, in the expressions auetoritatem interponere and negotium gerere. A Roman tutor had not necessarily the custody of the person of the pupil, and had not personally to undertake his maintenance and educa- tion ; in the absence of an appointment by the father for the purpose, the pupil's mother, so long as she remained unmarried, had his custody ; the Praetor determined, if necessary, what was the amount requisite, in the circumstances, for the pupil's maintenance, and it was the tutor's duty to provide that sum out of the pupil's property. The Court also usually determined where the pupil should be educated.^ Up to the age of seven a pupil was styled an " infant " (in/ans), and, in respect of not possessing either understanding {intellectus) or judg- ment {judicium), was under an absolute legal incapacity ; the tutor consequently acted for an infans personally, on his behalf, and had the sole administration of the infant pupil's property.* A pupil ward above the age of seven possessed a limited legal capacity which enabled him to do legal acts wholly beneficial ^ to himself without the sanction of his tutor — on the principle that pupils could make their position better but not worse without tutorial authorisation^ — but which was yet so defective that it necessitated the presence and consent of the tutor at the time of the transaction,' in the case of any legal acts done by the pupil involving possible liability or loss, in order that the act ' Justinian, I-ast. i. 21. ^ Dig. xxvi. 7, 1 pr. ; see for a detailed enumeration of the duties included within the management of the ward's property, Hunter, Roman Law, 4th ed., 702-705. ■ 2 See Dig. xxvii. 2 ; Code, v. 49. Cf. these functions of a Eoman tutor with those of an English guardian who has imposed upon him personally the duties of custody, maintenance, and education. ^ Justinian, Iiist. iii. 19, 10 ; Gaius, Imt. iii. 109. 5 A "wholly" beneficial act is one that does, not involve or impose any obligation corresponding or reciprocal to the benefit received ; as, e.g., a donation (see a'lite. Section 14 (a), p. 89, "capacity of pupils"). " Justinian, Imt. i. 21 pr. ; ii. 8, 2. See Commentaiy on these sections in Sandars' Institutes of Justinian. ' Justinian, Inst. i. 21, 2. The tutor's intervention and authorisation required to be (a) at the time of the transaction {in ipso negotio), (6) in person {praesens), and (c) voluntary. An authorisation given subsequently, or by letter, was of no effect. SECT. 55] DUTIES OF A TUTOR 195 should bind the pupil or his property.^ In such cases the pupil himself went through the forms requisite for the validity of the transaction, but the use of the forms required to be supplemented by the presence of the tutor in order to complete their validity by means of his sanction (audoritas). The pupil, in respect of possessing understanding (intelledus), could understand the meaning of the form which he used, but his lack of judgment {judicium), due to youthful inexperience, rendered him unable to determine whether it was to his advantage to employ the forms ; the tutor's sanction supplied the pupil's lack of judgment, and rendered the transaction legally valid and binding. In all cases of reciprocal obligation, as in contracts of buying, selling, letting, hiring, mandate, or deposit, the pupil was only bound if the tutor had authorised the pupil to enter into the transaction ; if the tutor had not consented to the transaction the pupil was not bound, but the person who contracted with him was bound.^ But a pupil could not repudiate a contract and at the same time retain the benefit of it ; he could not, for example, demand back property sold by him and at the same time retain the price paid to him, or keep what he had bought and refuse payment for it.^ A pupil could not be compelled to refund or restore anything that had been consumed, and he could always repudiate an executory contract made without tutorial sanction to his prejudice, whereas he could enforce such a contract through the intervention of his tutor, if it was to his advantage. There were three sets of circumstances, apart from reciprocal obligations, in which the act of a pupil ward was wholly invalid without tutorial authorisation, even although the act might be to the pupil's advantage, because it might subsequently involve obligations which, of course, a pupil, on the general principle, could not undertake. Thus a pupil could not, without the sanction of his tutor — (a) enter upon an inheritance, or (6) demand possession of goods, or (c) take an inheritance given by a trust (Jldeicommissum).^ There were, on the other hand, three cases in which a pupil could competently be sued upon acts done by him without the sanction of the tutor ; he was liable (a) for his own wrongdoing or delict, (6) for an obligation of mere restitution, and (c) if and in so far as he had been enriched (lucratus) by a transaction.' 1 Dig. xxvi. 8, 9. Cf. Moyle, Inst., -Ith ed., 150 ; Poste, Institutes of Gains, 4tli ed., 90 ; Sohm, List., .3rd ed., 489. ^ Justinian, Inst. i. 21 pr. ' Big. xliv. 1, 4. ^ Justinian, Irist. i. 21, 1 ; Big. xxvi. 8, 9, 3 ; Big. xxvi. 8, 11. The "inherit- ance " (haereditas) here referred to was the legal succession to a deceased person, while the "possession'' was the special interest in the estate of a deceased person recognised by the Praetor under the name of bonorum possessio (see Inst. iii. 9). ^ Di{j. xxvi. 8, 5, 1 ; xliv. 4, 4, 4. 196 DUTIES OF A TUTOR [part ii. The |;utor and the pupil were in a quasi-contractual relation towards each other.^ A tutor was bound to devote the same care (diligentia) to the management of his pupil's affairs as he gave to his own,^ and he was liable for any loss occasioned to the pupil, or to his property, by reason of either wilful bad management (dolus) or carelessness (culpa),^ and, in respect of this liability, his estate was subject to a tacit hypothec* The tutor was entitled, in the administration of the pupil's property, to collect debts, draw rents and interest, and, if he considered it right and necessary, to sell the movable property or any part of it; but he was only entitled to alienate immovable property under judicial sanction upon proved necessity.^ A tutor was not entitled, in the ordinary case, to buy or to acquire for himself, or fig. i. 8, 9 ; i. 8, 6, 3; Inst. ii. 1, 8). ^ Justinian, Inst, lit sup. ; Dig. ut sup. ^ Gaius, Inst. ii. 4 ; Justinian, Inst. ii. 1, 8, 9. Of. Dig. i. 8, 6, 3 ; Codi; i. 2, 21. "■ Gf. Justinian, Inst. ii. 1, 9 ; Gaius, Inst. ii. 6 ; Dig. i. 8, 6, 4 ; xi. 7. * Justinian, Inst. ii. 1, 10 ; Dig. i. 8, 8 ; i. 8, 9, 3 ; i. 8-11 ; Gaius, Inst. ii. 8. 222 JUSTINIAN'S CLASSIFICATION OF THINGS [part hi. divides things {res) into two great classes, namely, those (a) divini juris, or the objects of divine right, and (b) humani juris, or the objects of human right ; i things divini juris were subdivided into things sacrae, religiosae, and sanctae, while things humani juris were subdivided into things (a) public {res puhlicae) and (6) private {res privatae); "pubKc" things were further subdivided into {a) corporeal {res corporales) and {b) incorporeal {res incorporales), while "private" things were subdivided into res mancipi and res nee mancipi. Corresponding to Gaius' division of res into those divini juris and humani juris, Justinian divides things into those extra nostrum patrimonium (or otherwise extra commercium), and those in nostra patrimonio (or otherwise in commercio).^ Things extra nostrum patrimonium, according to Justinian, comprised res communes, puhlicae, universitatis, and nullius, the last including res saorae, religiosae, and sanctae ; things in nostra patrimonio were subdivided by Justinian into (a) corporeal {res corporales) and (6) incorporeal {res incorporales). Justinian's designation of Gains' res divini juris as res nullius, and as such extra tiostrum patrimonium, is inaccurate and incomplete, for, as has been already mentioned,^ a res nullius or " a thing that is the property of nobody" is truly something that is for the present unappropriated but may be capable of being acquired, and consequently in iwstro patriinonio. A thing may be a res nullius, or an unappropriated thing, because it is either {n) property for the time being without an owner but from its nature quite capable of being held in private ownership, examples of which, according to Justinian, are wild animals, treasure trove, derelict or abandoned things, property captured in war, islands formed in the sea, and such like ; or (6) property that, either from its particular nature or from the special use to which it is put, is regarded by the law as incapable of being the object of ownership, of which there may be instanced, as examples, the sun, the moon, or the stars, the atmosphere, and such like ; * and res sncrne, religiosae, and sanctae. Both Justinian and Gaius, in making their primary divisions of things, were only concerned to distinguish between those things that fell within the sphere of "private'' law and those that did not, but in identifying res nullius solely with the res divini juris of Gaius, Justinian falls short in logical accuracy and completeness/^ ' Gaius, Inst. ii. 2. 2 Justinian, Inst. ii. 1 pr. 3 Ante, p. 220. * Although these objects are classed by the Boman Law as res commimes, they are not " things " in the true sense of the term ; they are really res nullius, inas- much as from their particular nature they are incapable of any form of ownership, whether private or public. Cf. ante, p. 218. 3 Cf. Hunter, Roman Law, 4th ed., 256. CHAPTER II OWNERSHIP AND POSSESSION Ownership is the most absolute power that the law gives to a person, whether natural or juristic, over any particular thing. In the Eoman Law this highest form of the right of property was signified by the term dominium, and sometimes by proprietas. Dominium comprised and was the sum-total of four lesser rights, namely — (I) the right of use (jus ute7idi) ; (2) the right of enjoying the fruits or products {jiis fruendi) ; (3) the right of consumption or of disposal {jus cibutendi or dispoiiendi) ; and (4) the right of vindicating or claiming the property from third parties unlawfully possessing it (jus viiulicaiuli). The Roman conception of ownership underwent a gradual historical development. Dominiuiii (or dominium ex jure Quiritium)} in its original and strict sense, was the only legal ownership recognised by the jus civile or early Eoman Law ; it could, therefore, only be acquired by Roman citizens, or by persons enjoying the jus commercii ; ^ it could only be exercised over such things as were in commercio ; ^ and it could only be acquired or transferred by one or other of the modes peculiar to the strict jus civile, such as mancipatio * or in jure cessio? The Praetors came to recognise a form of ownership which was not dominium in the strict sense, but which was practically equivalent to it by reason of the person's possession being protected by a prae- torian interdict. This form of protected possession is known by com- mentators as " equitable," or " bonitarian," or " bonitary " ownership in contradistinction* to dominium e.c jure Quiritium. The Praetors granted such interdicts for the protection of possession in those cases where the title of a hond-fide possessor was defective owing to the ' " Quirites " was an old name for the Eomans. Cf. Justinian, lust. i. 2, 2. 2 See ante. Part II., Chapter IV., Section 17 (a), pp. 102-103. 3 See ante. Section 67 (h), p. 217. * See post, p. 229. s See post, p. 2.30. 223 224 OWNERSHIP AND POSSESSION [part III. dominium not having been legally transferred. The expression in bonis habere'^ was employed by the jurists to signify a possession which was, in effect, full ownership because it was protected by the Praetor, but which was not technically dominium ex jure Quiritium. Praetorian ownership was thus opposed to " quiritary " ownership or dominium, in the sense of the strict jus civile, and the remedies afforded by the Praetor, whether in the form of an action or of a defence (exceptio)^ to an action, had the effect of reducing the old ownership of the jus civile to a bare right or form {nudum jus Quiritium)? Although in the time of Gains the distinction between dominium, and in bonis habere is frequently evident, it had yet become, even by that time, for the most part of little practical importance ; by the time of Justinian there was but one form of dominimn recognised, and the only contrast was between that and possession (possessio).^ Justinian abolished the distinction between " civil " ownership or dominium proper and " equitable " or " bonitarian " ownership,^ and the only form of ownership recognised by the Justinianian law was " possessory " or praetorian ownership, which was protected and enforced by a " real " action known as a vindicatio. As distinguished from ownership (dominium) there is possession (possessio). The two rights are entirely distinct, and the ownership of property may be with one person whilst the possession is with another, as, for example, in the cases of the pledger and pledgee, lender and borrower, lessor and lessee ; in such cases as these the possessor only exercises and intends to exercise the possessory rights of the owner, but has not the intention (animus) of himself dealing with the property as owner. Possessio in the Eoman Law had two significations: it might be either (a) a mere right of physical control or detention of property unaccompanied by any intention of dealing with the property as one's own ; or (b) the physical control or detention of the thing with the added intention of retaining it (anirmis tenendi). The former case was known as " detention " (detentio) or " natural possession " (possessio naturalis), and gave no rights to, or in the thing itself ; the person possessing "naturally" was said "to be in possession" (in piossessione 1 The term bona or "goods'' was used' in the Eoman Law to signify all kinds of property, of whatever nature, to which a person might have right or title. 2 The actio publidaiM and the exceptio rei venditae et traditae. 3 Cf. Sohm, Inst., 3rd ed., 311. See also on "bonitarian ownership," Hunter, Roman Law, 4th ed., 263-265. * Moyle, Institutes of Justinian, 4th ed., 197, 198. 5 I.e., between dominium ex jure Quintiiim and in bonis habere. PART III.] OWNERSHIP AND POSSESSION 225 esse) or otherwise to have custodia, or mere custody or charge of the thing. The latter case was alone true "juristic" or legal possession, there being added to the intention to retain the " detention " or mere physical control 6r custody of the property the determination, whether in good or in bad faith, to retain the property, even against the superior right of the true owner {animus possidendi), and, it may even be, to deal with it as one's own {animus domini)} Only "juristic" possession was possessio in the strict sense of the Roman Law, and as such was some- times styled " civil " possession {"possessio civilis) in -contradistinction to " natural " possession ; and juristic possession alone was protected by the praetorian remedies of the possessory interdicts granted either for retaining or for recovering possession of property.^ Possession, in the strict sense, and as a right lower than ownership but higher than custody, might, under the older law, be converted into dominium by means of "usucapion" {usucapio)^ operating through lapse of time, provided that the possessor had acquired the property on a good title {ex justa causa), and in good faith {in bond fide) ; but only Roman citizens, or those non-citizens who were enjoying the special privilege of commerci^i.m, in respect of which they were competent to acquire "quiritary" ownership, could acquire dominium, and conse- quently non-citizens in general could not convert their possession into dominium whatever degree of animus possidendi might be present ; under the later law, however, the Praetors protected such possession by opposing "praetorian" ownership to "quiritary" ownership. The remedies given to the possessor in good faith by the Praetor's edict, whether in the form of an action at the instance of the possessor, or a defence available to the possessor against the true owner asserting his dominium, did not actually make the possessor's title that of true domiimim, but they did in practical effect render the possessor owner by reducing the rights of the true owner to a bare and empty form.* Justinian, as has been- already mentioned,^ abolished "quiritary" ownership in favour of praetorian or possessory ownership; but the abolition was merely formal, for praetorian ownership and acquisition. ^ Cf. on possession accompanied by the aniimis domini, or the oitimm tenendi, Hunter, Roman Laiv, 4th ed., pp. 377-378. 2 The " possessory " interdicts under the Justinianian law were the interdicts (a) uti possidetis, (b) undo vi, and (c) de precario ; the first was for retaining, and the other two were for recovering possession. 3 Qe&post, "Prescription," Chapter V., p. 250. * Nwdum jus Quiritiiim. '^ Ante, p. 224. IS 226 REAL RIGHTS AND PERSONAL RIGHTS [part III. based upon the principles and modes of the jiis gentium and not upon the forms of the old jus civile, was, in fact, the only form recognised in practice by that time.^ Section 69. — Real Eights and Personal Eights The Eoman Law recognised an important distinction between two different kinds of rights to property, according as a person was already the owner of it, or was entitled to compel the owner to transfer the ownership to him. The distinction has been connoted by the mediaeval commentators in the expressions jus in re and jus ad rem respectively.^ A jus in re or a right in a thing signified that the person had already acquired the ownership of the thing (res) and was entitled to exercise his rights as owner directly over the property without reference to any particular person more than another, but as against everybody else ; whereas a jus ad rem or a right to a thing signified that a person was not yet owner of the thing but merely had a right to compel the particular person who was the owner to transfer his owner- ship to him, and until such transference had taken place the right in the thing (jus in re) remained with the real owner, who was merely under a personal obligation, enforceable by an action, to transfer his rights of ownership. The distinction connoted by the expressions jms in re and j%ts ad rem may be said to correspond to that between a right of property and a right under an obligation. A right of property is a "real" right, or one by which a person, in respect of an already completed acquisition, is entitled to deal directly with a particular thing {res) himself irre- spective of any particular person, and the right can be asserted against everybody, being thus what is styled " absolute " ; whereas a right under an obligation is a "personal" right because it merely entitles ' See upon ownersliip and possession generally, Sohm, Institutes of Roman Law, .3rd ed., 330 et seq. ; Moyle, Institutes [of Justinian, 4th ed., 196 et seq. ; Poste, Institutes of Oaius, 4tli ed., 151 et seq. ; Buckland, Principles of Roman Private Law (1912), 64-83 ; Girard, Manuel de Droit Romaia, 5th ed., 258-281. 2 The Eoman jurists did not employ those actual terms ; they used expressions jus in ea re and j^ls in corpore in a descriptive but not in a technical sense. The mediaeval commentators came to employ the terms from the fact that by the Roman Law dominium gave rise to an action in rem for the recovery of the par- ticular thing, and an ohligatio gave rise to an action in personam. The commen- tators transferred the names of these actions to the rights which they protected'. Cf. Mackenzie, Roman Law, 171, note 2 ; Holland, Elements of Jurispi-udence, 8th ed., 129, for a history of the terms. SECT. 69] REAL RIGHTS AND PERSONAL RIGHTS 227 a person to compel some other particular person to act in some particular way.^ The distinction connoted by the expressions jus in re and Ju>i ad rem is also denoted by the terms jus in mu and jus iii personam, which signified respectively a right exercised directly over the object, and available against everybody, and a right that can be asserted only against a "particular person.^ 1 Cf. Sohm, Institutes of Roman Laiv, 3rd ed., 307, 309 ; Mackenzie, Roman Law, 170, 171. ^ Mackenzie, lit supra. Qi. ante, p. 213. CHAPTER III ACQUISITION OF THINGS i The Eoman Law, prior to the time of Justinian, drew a distinction between " civil " and " natural " acquisition. " Civil " acquisition was acquisition of property in one or other of the modes peculiar to the jus civile, or old Eoman Law, such as mancipation in jure ccssio,^ and usucapion which were available only to Eoman citizens, or to persons enjoying thejws commcrcii,^ and were characterised by formality, solemnity, and publicity in their procedure." "Natural" acquisition was acquisition in modes based upon the rules and principles of, and recognised by the jios gentium, and, as contrasted with " civil " acquisition, was characterised by the absence of solemnity, formality, and publicity, the legal right in such cases being usually acquired through the medium of possession.' We have thus in the pre-Justinianian Law the antithesis between acquisitio civilis or ex jure civili and acqidsitio naturalis or ex jure gentium. " Civil " and " natural " acquisition created " civil " and " natural " dominium or ownership, according to the particular mode in which the property was acquired. The principal "natural" modes of acquisition were "occupation" {occupatio) * and " tradition " (traditio),^ and there were also " accession " (acces-'iio),^'' prescription {praescrip)tio)}'^ 3,116. fi-vctvum piercejytio}'^ ' Dig. xli. 1. De remin acquirendo dominio ; see Monro (C. H.) on this book and title of the Digest (Cambridge University Press, 1900). 2 See post, p. 229. 3 See post, p. 230. « See post, p. 250. " See ante, Section 17 (a), at p. 103. 5 Property in single things could also be acquired " civilly " {ex jure civili) by traditio, adjiidicatio (by bequest) and by mere operation of law (lege) ; " universal " modes of " civil " acquisition were arrogation, inheritance, conventio in manum, and the purchase of a confiscated estate (see also post, p. 245, under singular and universal succession). ' Sohm, Imt., 3rd ed., 310. » See post, p. 232. » See post, p. 246. 1" Post, p. 235. " Post, p. 250 et seq. 12 Post, p. 243. SECT. 70] MANCIPATIO 229 Section 70. — Mancipatio This was the name applied by the jus civile after the Twelve Tables, when coined money had been introduced, to a fictitious sale or transfer of property. Prior to the Twelve Tables mancipatio was not a fictitious or imaginary sale {iniaginaria vcnclitio)} but an actual conveyance for an actual consideration. Mancipatio as a mode of conveyance of pro- perty peculiar to the jus civile was competent only to Eoman citizens and to such other persons as enjoyed the right of commcrcium. The procedure associated with mancipatio involved the presence of at least eight persons, namely, the transferror and the transferee of the property, a libripens or balance-holder, and not less than five citizens, above the age of puberty, to act as witnesses to the employment of the formal words and the due performance of the formal acts required by the law. The five witnesses were representative of the community, and their presence gave publicity to the proceedings, which further derived their validity from the solemn use pf the prescribed words and forms. The transferee, placing his hand upon the thing to be transferred, claimed the property as his in a prescribed form of words, ^ at the same time striking the scales in the hands of the libripens or balance-holder with a piece of copper or bronze, which he thereupon gave to the transferror as a symbol of the purchase money. ^ Mancipatio was the solemn sale or conveyance " by the copper and scales" {per aes ct libram), peculiar to the early Eoman Law. Certain kinds of property could be validly transferred only by this means, and as such were known as res mancipi.^ The institution of praetorian or " bonitarian " ownership, as opposed to " quiritary " ownership, in effect abolished the distinction between res muncipi and nee muncipi, and by the time of Justinian nianeipatio (as well as in jure cessio) as a "civil " mode of acquisition of property was obsolete, and the expression dominium, e.c jure Quiritium was expressly ordered to be expunged from the legal vocabulary, as being meaningless and only calculated to confuse students at the commencement of their legal studies.* Under the earlier law inancipatio was employed not only as a means of actually transferring property, but was also adapted to a variety of ' Gaius, Inst. i. 119. ^ This was known as the nuncupatio. ^ Gaius {iTist. i. 119) gives the form of words employed in the case of a sale of a slave : — " Hunc ego hominem ex jure (Quiritium, meum esse aw isque mihi emptus esto hoc acre acneaque libra." * See ante, p. 216. 5 Code, vii. 25, 1. 230 IN JURE CESSIO [part III. other purposes, such as adoption, emancipation,^ marriage (in the form of coemptio), and the making of testaments.^ Section 71. — In jure Ckssio This was the name applied to a fictitious action at law for either the recovery, or the declaration of a right of property ; it was, in other words, "simply a rei vindicatio arrested in its initial stage." ^ In jure cessio, or " surrender in Court," * was a mode of transferring property peculiar to the old jus civile, and, like maneipatio, it could only Ije employed by Roman citizens or by persons possessing the jus commercii. The parties to the fictitious action, previous to going into Court, arranged between themselves the terms upon which the transfer of the property was to be made — whether by sale, or exchange, or gift, or otherwise as the case might be — and then proceeded to go before a magistrate, such as the Praetor at Rome or the Praeses of a province. In Court the transferee, putting his hand upon the object of the transfer, claimed it in a set form of words ; ^ the magistrate then asked the trans- ferror if he had anything to say in reply to the claim, and on the trans- ferror, as previously arranged with the transferee, either not disclaiming the assertion or remaining silent, the magistrate pronounced a decree or addictio, which had the effect of completing the transfer.^ Besides being employed for conveyance of property, cessio in jvre was also used for other purposes, such as emancipation, adoption, manu- mission, creation of servitudes, transfer of tutela legitima of women, and the transfer of a haercditas. Sometimes either onnnripcdio or in jure cessio might be equally ' See as to emancipation of a jiliusfainiliM under the later law and in the time of Justinian, ante, Part II., Chapter VI., Section 32, at p. 139. ^ See upon maneipatio and its history, Muirhead, Roman Law, 2nd ed., 57 et seq. and 126 et seq. ; Sohm, Institutes of Roman Law, 3rd ed., 48-53 ; Girard, Manuel de Droit Roinain, 5th ed., 286-292 ; Poste, Institutes of Gains, 4th ed., 135-137. Cf. also Buckland, Elementary Principles of Roman Private Law, 92-98 ; Gaius, Inst., ss. 119-123 ; ii. ss. 14a;-22. ^ Muirhead, ut supra, 137. ^ In Roman legal procedure there was a sharp distinction between the expres- sions injure and injudicio. The term injure applied to the stage in the action at which the parties appeared in the Court of the Praetor to state their case, and in which the Praetor determined what, if any, issue was involved between them ; the term in judicio referred to the subsequent proceedings before the judeo: or judge, after the Praetoi', having fixed the point for determination, had formulated the issue between the parties and sent it to be decided by fhejvde.r. The issue or instructions thus sent to the judge by the Praetor was known as the " foi'mula " for the trial of the action. '' " I say this [ ] is my property by quiritary right " {Hv.nc ego [ ] e.r jure Quiritiv/m menm esse aio), Gaius, Inst. ii. 24. " Gaius, Inst. ii. 24. SECT. 72] ORIGINAL AND DERIVATIVE ACQUISITION 231 employed, in which case the former was usually resorted to as being more convenient.than in jure cessio, which latter involved appearance and procedure in Court.^ It was sometimes requisite to employ both viancipatio and in jure cessio, as in the cases of emancipation, and of adoption of a filiusfamilias. Persons alieni juris and slaves could acquire property for their superiors by mancipatio, by means of a modification of the prescribed words which was permitted by the law, but it was incompetent for such person to do so by in jure cessio, as a modification of the form of words required by law was in such a case not allowed, and persons alieni juris- being legally incapable of owning property for themselves, were techni- cally incompetent to bring an action for the " vindication " of property even although it was only fictitious.^ In jure cessio was still used in the time of Gaius for such purposes as adoption, creation of servitudes, transfer of tutory-at-law of women,^ and the transfer of the right to accept an inheritance, but by the time of Justinian it was quite obsolete, for by that time traditio or mere delivery operated to transfer all corporeal things, and the other pur- poses for which it was employed had either themselves become obsolete or were attained in other and simpler ways.* Section 72. — Original and Derivative Acquisition Generally By the time and in the law of Justinian the old distinction between " civil " and " natural " acquisition of ownership,^ although still surviving, had ceased to possess any significance, for praetorian ownership had come to be the only recognised ownership, and to it the natural or jus gentium modes of acquisition alone applied. The distinction in the modes of acquisition of property had thus by the time of Justinian come to be between those that were " original " and those that were " derivative." There is said to be " original " acquisition when there is obtained the ownership of property which either («) has never previously been the property of anyone, or (6) has been, but has ceased to be, the property of anyone. There is said to be "deriva- tive " acquisition when a person acquires rights of ownership which at ' Gaius, Inst. ii. 25. 2 Gaius, Inst. ii. 87 and 96. See Posts, Institutes of Oaius, 174. ' Gaius, Inst. i. 168. ■• Gaius, Inst. ii. 35-37. See upon Injure cessio, Muirhead, Roman Law, 2nd ed., 137 ; Poste, hisiitutes of Oaius, 4th ed., 136 ; Moyle, Institutes of Justinian, 3rd ed., 225 ; Sohm, Institutes of Roinan Law, 3rd ed., 56 ; Girard, Manuel de Droit RomaAn, 5th ed., 292, 293 ; Buckland, Principles of Roman Private Law, 98. See also upon the uses to which the processes of mancipatio and of in jure cessio were adapted, ante, pp. 229, 230. ■' See ante, p. 228. 232 ORIGINAL ACQUISITION [part III. the time of his acquisition existed in another person, and which are therefore derived through the ownership of that other person/ "Original" acquisition is a mode which operates independently of the ownership of any particular person; "derivative" acquisition, on the other hand, presupposes and depends upon the right of ownership of some particular person at the time of acquisition of the property. The person from whom the pre-existing rights of ownership are derived was known in Roman Law as the auctor or " author " of the person acquiring, to whose rights in the property the latter succeeds. It will thus be understood that there can be no auctor in " original " acquisition.^ The principal "original" modes of, acquisition, according to the Eoman Law, were what were respectively known as " Occupation " (occwpatid) and " Accession " {accessio), and the " derivative " modes, under the law of Justinian, were "Tradition" (traditio),^ "Bequest" {legatum), and "Adjudication" {adjudicatid)^ Section 73. — Original Acquisition (1) Occupation (Occupatio). — This was a " natural " mode of acquisi- tion recognised by the jus gentium, and the term signifies the taking possession of a thing which has either (a) never previously been owned by anyone, or (h) been previously owned by some one but has ceased to belong to anyone, with the intention of becoming owner by means of the appropriation. " Occupation " was thus the appropriation of a res nullius,^ and it operated in Eoman Law upon the principle that a thing belonging to no one becomes the property of him who appropriates it ; ^ the appropriation, however, required to be with the intention of thereby becoming owner, and consequently there required to be present the ' See further on " Derivative acquisition," post, p. 244. ^ Gf. Sohm, Institutes, 3rd ed., 312 and 316 ; Mackenzie, Roman Law, 173. ^ See^osi, p. 246. * "Adjudication" was a judicial award of ownership of property held in common by two or more persons in an action for division or partition. The award {adjudicatio) had the effect of investing each person immediately with the sole ownership of the part awarded to him in place of his co-ownership of the whole. The actions in which property might be acquired by "adjudication" were those for the division of a dead person's property amongst his heirs {actio familiae eriscundae), for the division of property held in common {actio commwni dividundo), and the action for fixing boundaries {actio finihus regimdis). The acquisition of a light of ownership by a judicial "adjudication" must be distinguished from the protection of an already acquired right of ownership by a judgment in an action for the vindication of property {rei vindicatio). Cf. on "Adjudication," Eoby, Roman Private Law, i. 422 ; Sohm, Inst., 3rd ed., 315 ; Poste, Institutes of Gains, 4th ed., 158. "■ See ante. Section 68 (d), p. 220. " Res mdlius cedit occnpanti. SECT. 73] ORIGINAL ACQUISITION 233 animus possidencli, or the intention to continue to possess in that character. Justinian mentions as examples of things capable of acquisition by " occupation " wild animals, derelict property, property captured in war, and inanimate things such as gems, shells, or precious stones found on the seashore.^ Wild animals included all beasts, birds, and fish of a nature which did not bring them within the category of either domesticated or semi- domesticated, and they were res nullius, capable of acquisition by occupation by the first-comer, until actually appropriated. Thereafter, however, so long as such property remained in the possession of the person who had appropriated it, even although he had done so by tres- passing, it could not be acquired by occupation by anyone else, unless and until the moment when it ceased to be in the power or possession of the occupant, and recovered its natural liberty.^ Tame or domesticated animals, such as horses, oxen, sheep, geese, fowls, did not become res nulliiis by the mere fact of straying, and the same rule was applied to certain wild animals such as pigeons, peacocks, and hawks in pursuit of game, which, although appropriated, are by nature and training in the habit of going off from but again returning whence they came. On the same principle, too, bees flying away in the course of swarming remained the property of him who had appro- priated them, but only so long as he continued to pursue them ; for the Roman Law regarded bees as naturally wild, and as such capable of acquisition by means of " occupation." ^ Tl^e Roman Law drew a distinction between wild animals that were by nature ferocious and untamable {ferae naturae) and those that were half-tamed or semi-domesticated (mans^iefacfaej, amongst which latter class are specially mentioned bees, peacocks, pigeons, and deer.* In the case of wild animals (ferae naturae) that had been appro- priated by occupation, rights of property only continued so long as there was actual detention of the object; rights of property in half- tamed animals (mansuefactae) were limited by the intention of return- ing {animus revertendi) on the part of the animal ; but in the case of tame or domestic animals the rights of property were limited neither ' See Justinian, Inst. ii. 1, 12-18. 2 Justinian, Inst. ii. 1, 12, 13. Cy. Gaius, Inst. ii. 67 ; Big. xli. 1, 1, 1 ; xli. 1, 3 pr., 1, 2. 3 Justinian, Inst. ii. 1, 14-16 ; Dig. xli. 1, 5, 2-4 ; xli. 1, 5, 6 ; Gaius, Imt. ii. 68. ■• Inst., ut supra. 234 ORIGINAL ACQUISITION [part iii. by detention, nor by mere intention to return on the part of the animal, but solely by the intention of the owner.^ Derelict things are things that have been abandoned by their owner with the deliberate intention of ceasing to own them. The Eoman Law held that the intention on the part of the owner to terminate his owner- ship had the effect of making the property a res nullius, and, as such, capable of appropriation by anyone by occupation.^ If, however, the property was not intentionally abandoned, but was merely lost, either by chance — as, for example, by falling from a carriage in motion — or through carelessness, or was thrown away, not with the intention of ceasing to be owner, but owing to necessity — as, for example, being "jettisoned " ^ or thrown overboard during a storm in order to lighten the ship and secure its safety — it did not thereby become " derelict " ; and it consequently continued to remain the property of the owner, to the effect that anyone appropriating it would be tliereby committing theft.* Inanimate things, such as precious stones, shells, and other things found upon the seashore (m litore), were regarded by the Eoman Law as roi nullius, and naturally belonging to whoever might find and appropriate them.-^ On the other hand, "treasure trove" (thesaurus), or anything valuable accidentally found hidden in the ground, and the owner of which was not known,^ was subject to certain special rules, which, however, varied at different times. Such property was not regarded as wholly a res nullius, and the owner of the land on which it was found was always considered as having a certain interest in it. By a Constitution ef the Emperor Hadrian, re-enacted by the Emperor Leo, and through whose enactment it became part of the law of Justinian,'' if a man found treasure on his own land the whole belonged to him, but if a person found, by chance, treasure on the land of another, half belonged to the finder and half to the owner of the land on which it was found.^ If the treasure was found on land that had * Cf. Poste, Institutes of (fauis, 165. 2 Justinian, Inst. ii. 1, 47 ; Dig. xli. 7, 1. ^ See " Jettison," posi, Part IV., Section 151, p. 441. * Justinian, Inst. ii. 1, 48 ; Dig. xli. 1, 9, 8. '' Justinian, Inst. ii. 1, 18 ; Dig. i. 8, 3. Cf. Dig. xli. 1, 31, 1 ; French Civil Code, Art. 716. " Code, X. 15. * This rule is embodied in the modern French law (see Civil Code, Art. 716). In Britain and some other countries "treasure trove" is not the property of either the owner of the land on which it is found or of the finder, but belongs to the Crown or sovereign authority, or to whomsoever the Crown may have transferred its rights. This rule appears to have for some time pre- vailed in the Roman Law, between the reigns of the Emperors Hadrian and Leo. See Moyle, Institutes of Justinian, 4th ed., 209. SECT. 73] ORIGINAL ACQUISITION 235 no owner, such as a "sacred" or a "religious" place {locus sacrus; locus religiosusy the whole belonged to the finder, provided that it had been found quite by chance ; for the law did not permit a person deliberately to search for treasure either on another man's ground or in " sacred " or " religious " places.^ Prize or Spoil of War. — The theory of the Eoman Law regarded both the persons and the movable property of enemies captured as res nullius, and as, therefore, capable of being acquired by anyone by occupation,^ but in practice the theory was modified, and movable property captured in war was disposed of and divided according to certain rules of military discipline, based upon the principle that pro- perty taken in war belongs to the State as praet/a or booty. Immov- able property taken in war appears to have been always regarded as belonging to the State.* (2) Accession (Aca'ssioy — This term signified that mode of original acquisition of property by means of which the owner of one thing becomes the owner of another thing in respect of being already the owner of the first, which is consequently regarded as the principal thing, and to which the other is only accessor}' or secondary. " Accession '' signified, in a general sense, the increase or develop- ment of property already belonging to a person, and the term is also used in a special sense to indicate the particular manner in which the increase became the property of the owner of the principal thing. Accession might take place in natural, industrial, or civil modes. Examples of accession are the "fruits" of animals in the form of their young, milk, hair, or wool;'' the natural or industrial fruits or produce of land, such as crops ; and civil fruits or profits, such as the rents of houses or interest upon money. These " fruits " are all acces- sory to the principal thing, because they could not come into existence independently of it, and they consequently accede or accrue to the principal thing, of which, indeed, they are really parts. Property might be acquired by accession, moreover, not only by reason ^ See on res sacrae, religiosae, and sanctae, ante. Section 68, p. 221. 2 Justinian, Imt. ii. 1, 39 ; Dig. xli. 1, 6.3 pr. See on "Treasure trove," Eoby, Roman Private Law, i. 417. ^ ^ Justinian, Inst. ii. 1, 17 ; Dig. xli. 1, 5, 7 ; Gains, hist. ii. 69. * Certain kinds of property had attached to them a jus postliniini, \\hich excluded them from the category of praeda or booty, so that if recaptured they reverted to their original owners. The particular kinds of property possessing this character were lands, slaves, horses, mules, and ships used in war. See Sandars, Institutes of Justinian, 97. ^ See Justinian, Inst. ii. 1, 19-37 inclusive. " Justinian, Inst. ii. 1, 19 ; ii. 1, 37 ; Dig. xli. 1, 6. 236 ORIGINAL ACQUISITION [part hi. of being in reality part of the thing already belonging to the principal owner, but also even if it were either a res nullius, or a res aliena. Acquisition of a Res nullius hy Accession. — Examples of acquisition by accession of res nullius given in Justinian's Institutes are what were particularly styled alluvio, insula natu, and cdveus derelictus. (ft) "Alluvion" was the gradual and imperceptible addition to a person's land that adjoined a river by either the washing up -or depositing of sand or earth, or by the gradual and imperceptible receding of the water. Alluvion was thus the accession of land to land. The owner of land receiving an addition by alluvion acquired it by natural accession.^ On the other hand, the temporary sub- mergence of land through flood did not in any way affect the owner's right to the land.^ But if a clearly distinguishable portion of an owner's land was forcibly torn away by the violence of a flood or storm and deposited on the land of another owner,^ it would become the property of the latter, by accession, if its former owner failed to claim it within such a time as the trees, or plants, if any, upon it had struck their roots in the new soil.^ (V) An island formed in a river by alluvion {insula nata) was con- sidered by the Eoman Law, as expounded by the later classical jurists, such as Ulpian, Gains, and Paul, as acceding in common to the " riparian " owners, or those persons who owned the banks (ji-ipae) on either side of the river,* and the extent of the right of each riparian owner was determined by drawing an imaginary line (known as the Medium Jiluiii) down the centre of the river bed. If an island formed by alluvion in a river was nearer to one bank than to the other, by reason of being wholly on one side of the medium filum, it belonged entirely to the owner or owners of the nearer bank in proportion to the extent of their rights in the bank.^ 1 Justinian, Inst. ii. 1, 20 ; Gains, Irut. ii. 70 ; Dig. xli. 1, 7, 1. But if the banks of the river formed part of agri limitati or State lands acquired by conquest and granted to private individuals in plots, the increase by alluvion did not become the property of the owner of the plot {Dig. xli. 1, 16 ; xliii. 12, 1, 6. See Hunter, Roman Law, 276 ; Sandars, Itistitutes of Justinian, 99). 2 Justinian, Inst. ii. 1, 24 ; Dig. xli. 1, 7, 6. ^ Justinian, Inst. ii. 1, 21. There was in such a case acquisition of a res aliena by accession in the mode known as " avulsion " {avidsio). See post, p. 237. * Cf. Dig. xli. 1, 65, 4, to the contrary, according to the opinion of Labeo, who, however, wrote nearly two centuries before the classical jurists named. 6 Justinian, Inst. ii. 1, 22 ; Dig. xli. 1, 7, 3, 4 ; Gaius, Inst. ii. 72 ; of. French Civil Code, Arts. 560, 561. The modern French law has adopted this rule of the Eoman Law only with regard to private.and non-navigable rivers. In the case of public navigable rivers, islands so formed belong to the State, failing any title or prescriptive right in anyone to the contrary. SECT. 73] ORIGINAL ACQUISITION 237 An island formed in the sea by alluvion, as distinguished from one so formed in a river, was regarded by the Eoman Law as a res nullius capable of acquisition by " occupation." ^ (c) If a river changed its course, the former channel was regarded as alveus derelidus, or a derelict or abandoned river-bed, and, as such, it would be strictly a res nullius; but the Roman Law, nevertheless, awarded the ownership of an alveus derelictus to the riparian owners ^ in proportion to the extent of their rights in the former river banks, it being considered, apparently, that the private rights of the riparian owners in the bed of the river were merely suspended so long as it was covered by the water, during which period the enjoyment of the covering water was public.^ Acquisition of a Res aliena hy Accession. — Property that was res aliena, or belonging to some one else, might be acquired by accession, in the special forms of avulsion, adjunction, confusion, commixture, or specification. (d) " Avulsion " (Avulsio) was the violent tearing away, as by the force of a flood, of a considerable and clearly distinguishable portion of an estate of one person and the depositing of it upon the land of another person. If the owner of the piece of land so " avulsed " delayed so long to assert his right that any trees or shrubs on it had had time to strike roots in the new soil, what was regarded as a reasonable time for the assertion of his rights was considered to have elapsed, and the avulsed land, together with any trees or shrubs adhering, acceded to the land on which it had been deposited and, consequently, to the owner of that land."* (e) Adjunction as a manifestation of the general principle of accession signified the addition of one thing to another, so as either to form a new thing, or to alter the character of each. Examples of adjunction, as instanced by Justinian, were embroidery on, or woven into a garment,^ writing on a paper (scriptura),^ painting upon a tablet (pictura)^ inaedificatio^ plantation' and satio}" ' Justinian, Bist. ii. 1, 22. ^ Justinian, Inst. ii. 1, 23 ; Dig. xli. 1, 7, 5. ^ Cf. Sandars, Institutes of Jiistinian, 100. ■* Cf Justinian, Inst. ii. 1, 21 ; Gains, Inst. ii. 71 ; Dig. xli. 1, 7, i ° Justinian, Inst. ii. 1, 26. ' Justinian, Inst. ii. 1, 33 ; Gaius, Inst. ii. 77 ; IXg. xli. 1, 9, 1. ' Justinian, Inst. ii. 1, 34 ; Gaius, Inst. ii. 78. ^ Justinian, Inst. ii. 1, 29, 30 ; Dig. xli. 1, 7, 10. ^ Justinian, Inst. ii. 1, 31 ; Gaius, Inst. ii. 74 ; Dig. xli. 1, 7, 13. '" Justinian, Inst. ii. 1, 32 ; Gaius, Inst. ii. 75 ; Dig. xli. 1, 9 pr. 238 ORIGINAL ACQUISITION [part ill. Embroidery, or dye worked upon or woven into a garment, was regarded by the Eonian Law as acceding to the garment, even although it might be much more valuable than the property to which it acceded, if it had been so worked upon or woven into the garment as to be inseparable from it, and the former owner of the accessory thing would, in such a case, have only a personal action against the owner -of the garment for the value of his property .^ Similarly, writing on a paper (scriptu/u) was regarded as acceding to the owner of the paper, subject to a liability to pay the value of the writing ; on the other hand, however, and contrary to this rule, a painting (pidura) was not regarded as acceding to the tablet or canvas on which it was painted, but, by reason of the special genius or skill involved in its production, the canvas was considered to be accessory to the painting, but the painter was liable to pay the value of the tablet to its former owner.^ There is, in principle, no difference between the case of writing on paper and a painting on a canvas or tablet. Indeed both Paul ^ and Gaius perceive that, and the latter, while enunciating as settled law in his time the view afterwards adopted by Justinian,* admits that he saw no sufficient reason for the distinction.' The explanation of the distinction drawn between writing upon a paper and a picture painted upon a tablet or canvas may probably be found in the fact that the Roman Law did not apparently consider writing upon a paper as literary property produced by the exercise of special skill and genius, but merely as so many signs appended to the paper." The law of literary property and copyright is a modern development of the law of ownership. Inaedificaiio. — This occurred when a man either built upon his own ground with materials belonging to some other person or built upon the ground of another person with his own materials.^ In both of these cases the building acceded to the owner of the land on which it was built, upon the principle solo cedit cjuod solo inaedificatur. If a man built on his own ground with materials belonging to another, in good faith (in hand fide), he could not be compelled to make them good to their owner ^ by pulling down or destroying the building 1 Cf. Dig. vi. 1, 23, 5. ^ The owner of the tablet could compel the painter to pay the value of the board rather than deliver up the tablet by a fictitious assertion of ownership allowed him by the Praetor in an actio utilis (cf. Sandars, Institutes of Jzistinian, 109). ■i Dig. vi. 1, 23, 3. "" List. ii. 1, 34 ; Dig. xli. 1, 9, 2. '' Gaius, /?isi. ii. 78. ^ Cf. Mackenzie, Roman Law, 7th ed., 178. ' Justinian, hist. ii. 1, 29, 30 ; Dig. xlvi. 1, 7, 10 ; xli. 1, 7, 12 ; Gaius, Inst. ii. 73, 76. 8 By means of an action ad exhibendum. SECT. 73] ORIGINAL ACQUISITION 239 in whole or in part, but the owner of the materials might, if he preferred, recover ^ double their value from the owner of the land ; if, however, he did not do so he could bring a " real " action (vindicatio) for the materials if and when, from any cause, the building was destroyed. If an owner built on his own land, however, in bad faith (in mala fide) with materials belonging to, and which he knew to belong to another person, he was punished for his bad faith by being liable to both an action for double the value of the materials and an action for their production,^ and as he could not produce them so long as the building stood he was condemned to pay compensation for having deliberately rendered himself unable to do so.^ The owner at the same time continued to retain his right to reclaim the materials on the destruction of the building.* On the other hand, if a man built in good faith, and unknowingly, on the ground of another person, although the building therefore acceded to the land upon whicK it was built and to the person who owned it, yet the builder, if in possession, could not be dispossessed by the owner of the land and building upon it unless he was compensated by the latter for the added value of the property.^ If, however, the owner of the .materials acted in bad faith, and built in the knowledge that he was not the owner of Dhe land, he had no claim for compensation, but he might remove the materials if that could be done without injury to the other person's property." When the owner of the materials was not in possession of the building he was entitled to reclaim the materials when the building was destroyed, irrespective of whether he had acted in good or in bad faith, but he had no claim for compensation. Plantatio. — Tliis term signified either the planting of another person's tree or such like in one's own ground, or the planting of one's own tree in another person's ground, by which the tree or plant acceded to the ground and to the owner of it as soon as it had taken root in the soil.'' If, however, the tree took root partly in the soil of one owner and partly in that of another, it was considered as belonging partly to the one and partly to the other.^ ' By means of the action de tigno jimcto. 2 Dig. vi. 1, 23, 6. 3 Dig. xlvii. 3, 1, 2. « Dig. xlvii. 3, 2. ^ Justinian, Inst. ii. 1, 30. See Sandars, Institutes of Jxistinian, 106, for com- mentary upon this section. » Dig. vi. 1, .37. ' Justinian, Inst. ii. 1, 31 ; Gaius, Inst. ii. 74, 76 ; Dig. xli. 1, 7, 13. * Cf. Sandars, Institutes of Justinian, 108. 240 ORIGINAL ACQUISITION [part hi. If the person who planted the tree was in possession of the land in good faith the owner of the land would have to compensate him, for otherwise his claim to possession could be defeated by the defence of bad faith (exceptio doli mali) on the part of the bond fide possessor of the land. Satio was the planting of grains of wheat or corn in circumstances similar to those of the planting of trees or plants, and exactly the same rules applied in the case of satio as in that of plantatio} In the cases of plantatio and satio the tree or the corn continued to belong to the owner of the land even after separation from it, on the principle that the tree, or plant, or corn was by that time something different from what it had formerly been, by reason of the nourishment it had drawn from the soil ;^ in this respect trees, plants, cereals, and such like were differentiated from building materials, which co^ld be reclaimed.^ (/) Confusion {Confusio) and Commixture (Commixtio). — These terms signified the mixing together, or the combination of things belonging to different owners without' thereby forming a new species (Tiova species) or article,* or something falling within a category of merchandise distinct from that of any of the combined things. The term " confusion " (confusio) was ordinarily used to mean the mingling together of liquids belonging to different owners, while the term " commixture " (commixtio) usually signified the mixture together of solids, but the separate use of the terms is not invariable. A combination might be either separable or inseparable ; if insepar- able there was confusion, and if separable there was commixture. If things or materials belonging to different owners were mixed together without the consent of one or the other owner, then so long as the things were of such a nature as to render them easily distinguish- able and separable — such as, for example, sheep, or cattle — the owner- ship of each remained separate and distinct, and each owner could sue for his property by a rei vindicatio or " real " action ; but if the things mixed were either thereafter incapable of being distinguished or separated — such as the contents of different casks of wine — or could only be separated and distinguished with great difficulty and labour — such as separate grains of corn — the whole combination was considered as becoming the common property of the respective owners, but the rights of each owner in the whole were determined by the different ' See Justinian, Imt. ii. 1, 32 ; Gaius, Iiut. ii. 75, 76 ; Big. xli. 1, 9 pr. 2 Dig. xli. 1, 26, 1, 2. ' Cf. Moyle, Inst. 205, 206 ; Sandars, Institutes of Justinian, 107, 108. ' See Justinian, Inst. ii. 1, 27, 28. SECT. 73] ORIGINAL ACQUISITION 241 qualities as well as quantities of the materials before they were mixed.'- If, on the other hand, materials belonging to different owners were mixed with the owners' consent, the whole combination thereby became their common property ; and it was immaterial, in such circumstances, whether the combination so formed was separable or inseparable. In such a case there was no room for the operation of the principle of accession, which only came into effect when the combination took place without the consent of one or other of the owners.^ (g) Specification (Specificatio). — This was the name applied in the Eoman Law to the acquisition of ownership by the formation, at the hands of one person, of a new subject or species (nova spcries) from materials belonging to another person, such as, for example, flour from corn, oil from olives, wine from grapes, a coat from wool, or a ship, a chest, or a seat from another man's timber.^ Specification is some- times treated as a form of accession and at other times is considered as itself constituting a separate mode of acquisition of property; the former view is probably the more correct one, although it is difficult in certain respects to fully reconcile specification with the principle of accession.* There was a controversy between the Proculians and the Sabinians ^ as to which was the principal and which was the accessory thing in those cases where the materials of one man had been given a new character through the labours of another. The Proculians held that the person who had made the new thing became thereby also the owner of the materials, while the Sabinians maintained that the change could not have been effected without the precedent existence of the materials, and that consequently the new thing acceded to the owner of the materials as the principal thing. Justinian settled the controversy by taking a middle course ; he established, as a criterion for the deter- mination as to whether or not specification had taken place, the rule that if the new species which had been made out of the original materials could be again reduced to the material of which it was originally composed — such as gold or silver plate into bullion — the original materials were to be regarded as Still existing to the effect of ' Justinian, Inst. ii. 1, 28 ; Dig. vi. 1, 4, 5. 2 Gf. on commixture and confusion, Hunter, Roman Law, 281 ; Mackenzie, 'Roman Law, 178 ; Sandars, Inst. 103-105. Cf. also French Civil Code, Arts 565- 569. 3 Justinian, Inst. ii. i. 25 ; Gaius, Inst. ii. 79 ; Dig. xli. 1, 7, 7 ; 1, 27, 1 ; vi. 1, 5, 1. * Cf. Poste, Institutes of Gains, 167. '^ See, as to the " Proculian " and the " Sabinian " schools of legal thought, ante, Part I., p. 37, note 1. l6 242 ORIGINAL ACQUISITION [part ill. enabling the owner to claim them even in that altered state, subject, however, to a liability to compensate the workman for the value of his labour ; but if, on the other hand, the original materials had been so wholly changed in character as to constitute, in fact, a " new species " (7iova species) that would fall within a different category of merchandise, and which could not be reduced or restored to its former state — such as wine from grapes, or flour from corn, or oil from olives, and such like — the new species was to be regarded as the principal thing, and the original material acceded to the person whose labour had effected the change, subject, however, to a liability to compensate the former. owner for the value of his materials. The middle course here adopted by Justinian and the distinction drawn by him reconciled the two conflicting views. In the latter case, however, in which effect was given to the Proculian view, the maker of the "new species" seems to have been regarded as becoming the owner of the materials rather by a form of occupation than by one of accession, on the ground that if the new species was actually not the same thing as the materials, it must be a res nullius} But the acquisi- tion of the new species on the part of the person who had done the work would seem, more correctly, to be truly by a form of accession, for it is impossible to overlook the Sabinian contention that but for the pre- cedent existence of the materials the "new species" could not come into existence. The fact is that, as remarked by Poste, "specification is a title which cannot without violence be brought under either occupatio or accessio." ^ The labour expended upon the materials undoubtedly invests them with a higher economic value, and it is in virtue of this fact that the workman who creates a new product may be regarded as acquiring thereby a right to claim the product as his own.^ If a thing that was not a " new species " had been made by a person who owned part of the materials, he would not be entitled, in virtue of the mere combination of his labour and skill, and his ownership of part of the materials, to claim the thing if the materials owned by him were not principal, but were merely accessory to some of the other materials.* Moreover, if after the work done upon the materials these were still separable from each other, the rights of the respective owners of each still subsisted. In order to properly constitute " specification," it was essential that the change in the materials upon which the work had been expended should have amounted to a real or actual alteration of the character of the subject; so that, for example, the mere threshing of corn or the ^ Cf. Dig. xli. 1, 7, 7, quia quod factum est ante nullius fuerat. 2 Poste, Institutes of Oaius, 4tli ed., 167. 3 Cf. Sohm, Inst., 3rd ed., 324. * Cf. Justinian, Inst. ii. 1, 25. SECT. 74] FRUCTUUM PERCEPTIO 243 dyeing of cloth would not suffice to operate specification and transfer the ownership of the materials.^ Section 74. — Pructuum Perceptio Besides " occupation " and " accession," the taking or gathering (per- ceptio) of the produce or " fruits " (fruchis) of things was a " natural " mode of acquisition. The " fruits " (frudus) or produce of property are such things as the milk, the young, the hair, or the wool of animals, minerals,^ the fruit in gardens, or the crops of fields; also " civil " or " industrial " fruits, such as the rents of houses ^ or the interest upon money.* In the ordinary case, the owner of property, such as land or animals, acquires by accession the fruits, by reason of his ownership or dominiuvi; but a person other than the owner of the property may have right to the enjoyment of its produce, and by the gathering {perceptio) of it become thereby its owner: the principal examples of such in the Roman Law were a lessee of a farm (colonus), a usufructuary,^ and a bond fide possessor. The fruits of the subject did not become the property of either the usufructuary or the bond fide possessor until they had been actually gathered, and consumed, and up to that time they belonged to the owner of the property that produced them.'^ A bo'^nd fide possessor was a person in possession of property that he had received in such a way as he honestly believed gave him a good legal title to it ; in other words, he had obtained the property in good faith, believing the person from whom he received it to be the owner, and competent to transfer the ownership ; while the mode by which he obtained the property was ex justa causd, or one recognised by the law as competent to transfer ownership. The right of a bond fide possessor in the fruits, which included not merely those produced by his care and cultivation but all the fruits of 1 See, with regard to accession, a special and instructive note upon the union of things and the principle regulating ownership in such cases, in Sohni, Imt., 3rd ed., 325-327. 2 Cf. Justinian, Inst. ii. 1, 37 ; Dig. i. 16, 77. 3 Dig. xxii. 1, 36. * This did not apply to usury, however, because it was not considered as arising from the money lent itself, but merely as the result of special agreement, and so could not be regarded as truly fructus, or "fruits" {Dig. 1. 16, 121). See, as to the nature of " fruits " {fructni) generally, Girard, Manuel de Droit Romain, 6th ed., 249. 5 See " Usufruct," ^os«, under "Personal Servitudes," Section 91, p. 279. " Cf. Justinian, Inst. ii. 1, 36. . 244 DERIVATIVE ACQUISITION [part hi. the property, whatsoever these might be,^ was complete, as against all the world except the owner of the property, from the moment he had gathered them, irrespective of whether he had or had not yet consumed them. The owner, on the other hand, could claim from the bond fide possessor the fruits so far as they had not yet been consumed, for they were regarded by the law as the property of the possessor merely interim, or "in the meantime," until such time as the owner should claim them, unless the possessor had already acquired a prescriptive right to the fruits as movables;^ but he had no claim for the fruits or the value of the fruits that had already been consumed in good faith.^ The mala fide possessor, or the possessor " in bad faith," on the other hand, was liable to make good to the owner not only the unconsumed fruits, but also the value of all the fruits that he had consumed since the commencement of his mala fide possession.* Section 75. — Deeivative Acquisition*^ Acquisition of property is said to be " derivative " in those cases where the right of ownership is derived from that of another person who transfers his right of ownership with the intention of making the transferee the lawful owner or possessor of the- subject instead of himself. Derivative acquisition presupposes and depends upon a right of ownership already existing in some person at the moment of acquisition of the property, being thus directly opposed to " original " acquisition ; and it may be effected by means of either (a) voluntary or (&) involuntary transfer. A " voluntary " transfer is one known otherwise as " conventional," because it is the outcome of a "convention" {conventid) ox agreement between parties; whereas an "involuntary" transfer is one that operates independently of the wishes of the owner at the time of transfer, as, for example, by a judicial decree, or by a legal forfeiture. Amongst derivative modes of acquisition recognised by the Eoman Law were contract, gift, exchange, bequest, or such other legal title in respect of which the transferee acquired at least the "juristic," if not ^ Dig. xli. 1, 48 ; but of. Jyig. xxii. 1, 45^ for the apparent opinion of Pomponius to the contrary. 2 Dig. xli. 1, 48 pi'. ; Dig. 7, 4, 13. 5 Justinian, Inst. ii. 1, 35 ; Dig. xli. 1, 48 ; xxii. 1, 25. * Justinian, Inst., nt supra ; Dig., ut supra. See, on fruetuum perceptio, Moyle,. Inst., 4tli ed., 207 ; Sohm, Inst., 3rd ed., 325 ; Eoby, Rmnan Private Law, i. 418 ; Sandars, Institutes of -histiman, 110 ; Girard, Manuel de Droit Rmnain, 3rd ed.> 321-325. ^' See also ante, p. 231. SECT. ;6] SINGULAR AND UNIVERSAL SUCCESSION 245 the actual, possession of the property by means of either actual or constructive " tradition " ^ (traditio) or delivery. Section 76. — Singular and Universal Succession ^ Property might be transferred and acquired, according to the Roman Law, either (a) singly or (b) as a universality or aggregate of things (universitas rcrum) ; in other words, there may be either a transfer of rights over particular objects or a transfer of the whole of a person's proprietary rights collectively.^ A universitas rerum, or " an entirety of things," was the aggregate of all the rights possessed by a particular person. " Single things '' {res singulares) could be acquired either " civilly " or "naturally" by niaiiciiMtio,^ in jure cessio,^ usiccapio,'' occupation ((cressio,^ fructtcuvi perceptio,^ praescriptio'^" and traditio^'^ and donatio,'^^ and the person so acquiring is known as a " singular successor " to such property in that he succeeds to the right of the previous owner in the single or particular object.^'^ Things could be acquired collectively, or as a universality or aggre- gate of all the rights of a particular person by testamentary succession, intestate succession, bonoru/n venditio or enforced sale of a debtor's property, arrogation," forfeiture,^* and addidio bonorxim libertatis causd}^ A person so acquiring a 'universitas, or collective aggregate of property, is known as a " universal successor." ' Seejoo»'<, Chapter IV., p. 246. ^ See "singular" things and "universalities" of things, ante, Section 67 (f), p. 216. ^ This distinction in modes of acquisition is signified in French Law by the expressions a litre pca-ticvlier and a titre v/iiiversel. * See ante, p. 229. ' See ante, p. 2.30. '' See post, p. 250. ' See ante, p. 2.32. '' See ante, p. 2.35. '■* See ante, p. 24.3. '" See post, p. 250 et seq. " Seejoos^, p. 246. 12 See post. Chapter VI., p, 259. !■* See ante, p. 216. " See " Arrogation,'' ante. Part II., Section .3.3 (a), pp. 141-143. '^ Under the S.-G. CloMdiannm. ^^ This was a means, introduced by the Emperor Marcus Auielius, whereby, failing heirs to enter upon an insolvent inheritance, a person was assigned the succession in order to prevent bequests of freedom becoming void by reason of the non-entry of an heir. CHAPTER IV Tkadition (Tkaditio) ok Deliveey of Property In order to transfer property, it was not sufficient, according to the Eoman Law, both that the transferror should be the legal owner,^ and the transferror and transferee should consent or agree to the transfer, but there further required to be " tradition " or delivery of possession,^ along with an intention to transfer the control and ownership of the property. The possession so delivered, however, did not require to be necessarily actual possession or physical detention, without which it was quite possible for ownership to pass, for traditio did not necessitate actual corporeal delivery. The possession that the Eoman Law- desiderated was "juristic" or legal possession, or control effected by a change of intention {animus), but which did not necessarily involve corporeal and visible transfer. "Tradition" {traditio), which signifies literally a " delivery '' or " handing-over," was thus in Eoman Law the placing of another person in legal possession of the property as owner of it by, and in place of the existing owner, through a change of intention with regard to the ownership ; a mere delivery {nuda traditio) of property, as for example, for safe custody under the contract of deposit, or in loan, on hire, or a mere agreement to deliver, unaccompanied by the change of intention with regard to the ownership, did not constitute " tradition " in the strict sense, or transfer ownership.^ The intention accompanying the delivery which gave the act the character of a traditio sufficient to transfer ownership required to be expressed in what was known as a justa causa traditionis, or " legal reason of delivery," * or, in other words, by some juristic act recognised as having that efi'ect, such as a contract of sale {veiiditio), an exchange {permutatio). 1 IHcf. xli. 1, 20 pr. Cf. French Civil Code, Arts. 1604-1624. ^ Justinian, Inst. ii. 1, 40, 41 ; French Civil Code, Art. 1604. ■ 3 Code, ii. 3, 20. ■* " I.e. the intention on the one hand to give, on the other to receive, owner- ship " (Moyle, Imt. 210). 246 SECT. 77] CONSTRUCTIVE DELIVERY 247 a promise to make a gift {donatio)^ a dowry (clos), a loan for consump- tion (mutuum)^ or payment (solutio)? " Tradition," or delivery of the property following upon the agree- ment to transfer, might be either (a) actual or (5) constructive ; and in order that the tradition or transference of the ownership of the property should be effective it was requisite that the lawful owner should con- sent to transfer the property {res) either personally or by his agent, upon some good legal title — such as sale, gift, or exchange — with the intention, at the same time, that his property should thereby become the property of the transferee, who, on his part, must have the inten- tion of thereby becoming, and exercising the legal control as owner of the thing, and not merely as juristic possessor on a limited title and for a limited time. Section 77. — Constructive Deliveey This is imaginary as opposed to actual delivery. Constructive delivery is operated when the thing itself is not actually handed over but merely some sign or symbol of juristic possession and ownership is given — such as the key of a house,* or the title-deeds of property — by means of which the transferee can make his possession complete and effective.^ When there did not take place actual physical handing over, but the property was nevertheless placed in the view of the transferee with the intention- that he should take possession of it, there was said to be traditio lonc/a manu (" delivery by the extended hand "), in contrast to a form of constructive delivery known in the Roman Law as traditio brevi manu (" with the short hand "). Tradition brevi manu took place in those cases where it happened that the property to be transferred was already in the possession of the person to whom it was to be trans- ferred, in virtue of some preceding agreement entitling the transferee to the possession of the property upon a title other and lower than . ownership, such as hire, or loan. When a person already having the detention of property on such a lower title purchases, or otherwise acquires it, the transfer of the ownership and the conversion of the previous title into one of ownership is effected by the mere change of 1 Of. Diff. xli. 1, 31 pr. 2 See^osi!, under "Real Contracts," Part IV., Section 114, p. 35.3. 3 See " Extinction of Obligations," post, Part IV., Chapter XIV., Section 158, p. 471. 4 Cf. Justinian, Inst. ii. 1, 45 ; Big. xli. 1, 9, 6. 5 Cf. Moyle, Inst. 211, 212. Cf. French Civil Code, Arts. 1605, 1606. 248 CONSTRUCTIVE DELIVERY [part iii. intention (animus) of both parties with regard to the thing, the former owner thereupon intending that the possessor should thereafter continue to possess the property upon a new title as owner, and no longer as a mere possessor under the preceding agreement, and the possessor must continue to possess with a corresponding change of intention.^ In the case of hrevi manu tradition the transfer of ownership, or of juristic possession, was thus effected without any change of detention, but merely by a change of intention on the part of both the transferror and the transferee ; and this also happened when a person who has alienated property to another continues to retain it in his own control and detention for the benefit of the transferee upon a lower title, such as hire, or loan, or usufruct, or mandate, or deposit ; this case is, as may be seen, the converse of traditio hrevi manu, and has been styled by modern commentators constitutiun posseftsorium} Traditio, or delivery, as a means of transferring ownership by a mere change of intention and without any necessary formalities, per- tained to the jus gentium, and as such was a "natural" mode of acquisition. The delivery of the old pis civilf was accompanied and effected by the formal procedure of either laancipatio or in jure cesdo, which constituted "civil" acquisition; but as has been already observed,^ the distinction between "natural" and "civil" modes of acquisition, altliough still existing, had lost its significance by the time, and- in the law of Justinian, and the distinction in the modes of acquisition had by that time come to be between thoge that were respectively " original " and " derivative." * The rule of the Roman Law requiring traditio or technical delivery in order to transfer the ownership of property has not been followed in some modern systems. Thus the law of both Scotland and England recognises as a general principle that, except in particular cases, '^ the transference of specific property is operated as soon as the contract or ' Cj. Justinian, Inst. ii. 1, 44 ; Dig. xli. 1, 9, 5. ^ Cf. Hunter, 4th ed., p. .352. This must not be confused with the "Praetorian pact" known as " Constitutuni" ov pactum de constituta peciinia, which was an informal agreement to discharge an existing debt, enforceable by an action de pecunia constituta. By this means a contract of suretyship could be created by a mere informal agreement to pay the debt of another person. 3 Ante, p. 231. ■• See upon the Roman traditio, Moyle, Institutes of Justinian, 4th ed., 209-212 ; Hunter, Romaa Law, 4th ed., 282-286 ; Buckland, Principles of Ronvui Pricate Low, 86-88 ; Mackenzie, Emnan Law, 7th ed., 178 ; Sandars, Institutes of Jtistinian, 8th ed., 112, 113; Sohm, Institvtes of Justinian, 3rd ed., 312-314; Gii-ard, Maniiel de Droit Roniain, 5th ed., 293-298 ; Cuq, Institutions Juridiqu.es des Romaitu, i. 266 et seq. * E.g., the transfer of shares. SECT. 77] CONSTRUCTIVE DELIVERY 249 agreement to transfer is completed in these cases where nothing remains to be done, except to deliver the thing.^ The law of France also recognises the general principle that property may be transferred by mere agreement without the necessity of actual delivery.^ 1 The Scots and English law in this respect have been assimilated by the " Sale of Goods Act," 1893, 56 and 57 Vict. c. 71, ss. 17, 18. See Corhntae aiid Moore, 25 Q.B.D. 57. 2 French Civil Code, Art. 11.38 ; I'f. also Arts. 711 and 1583, and Egyptian Civil Code, Art. 267. CHAPTER V Prescription (Praesckiptio) ^ Eights to property might be both acquired and lost by " prescription," which may be briefly and generally defined as either the acquisition or the loss of rights in property by mere lapse of time. Prescription as a positive mode of acquisition of property signified the acquisition of rights in property by reason of the continuous possession of it through- out a certain period fixed by law. The principle upon which mere lapse of time is permitted by the law to constitute a valid title to property is both in order to ensure security of enjoyment of property to which the title is defective by imposing a limit of time for the assertion of rights of ownership, and also to facilitate proof of ownership. The time {tenvpvs) fixed by law, the lapse of which constitutes a title to property, is known as " the prescriptive period." The earliest recognition in the Eoman Law of the principle of acquisition of property by possession for a certain length of time is to be found in the Twelve Tables under the name of "usucapion" (vsKcapio), which was a means intended to validate informal and defec- tive conveyances of property which would not otherwise have been valid transfers according to the old strict jus civile.^ " Usucapion " was thus the early form in the Eoman Law of the acquisition of right to property by mere lapse of time, in respect of which a prescriptive title to property was acquired by possession of movables for one year and of immovables for two years ; ^ it was, however, very limited in i-ts ' See, on prescription generally, Justinian, Inst. ii. 6 ; Big. xH. .3 ; Code, vii. 30-39. Of. Gains, Inst. ii. 42-51 ; Hunter, Rmnan Law, 4th ed., 288, 289, 645-649 ; Sandars, Institutes of Justinian, 136-147 ; Moyle, Institutes of Justinian, 4th ed., 225-231 ; Mackenzie, Roman Law, 194 et seq. ; Eoby, Rmnan Private Law, i. 467-483 ; Buckland, Roman Private Law, 88-92 ; Muirhead, History of Rmnan Law, 2nd ed., 392 ; Sohm, Institutes of Roman Law, 3rd ed., 319-322 ; Cuq, Institutimis Juridiques des Romains, ii. 243-251 ; Girard, Manuel de Droit Romain, 5th ed., 299-313. Cf. French Civil Code, Arts. 2219-2281. 2 See also ante, p. 225. ' Justinian, List. ii. 6 pr. These periods were afterwards extended by the law of Justinian, when usuoapio had come to be blended with praeseriptio. See post, p. 251, and also Section 78, p. 252. 260 PART III.] PRESCRIPTION 251 application, being competent only in the case of certain kinds of property, and available only to Roman citizens and those persons who, not being citizens, enjoyed the right of commercium {jus commercii) and were thereby capable of acquiring " quiritary " ownership.^ The Praetorian law came to recognise and protect the possessory titles of those persons who, not being Roman citizens, could not acquire a " quiritarian " title to property through usucapion, by means of the creation, under the name of praescriptio, or possessio longi temjwris,^ of an equitable defence to an action, available to a possessor against anyone claiming the property, based upon the fact of the possession of the property throughout a certain length of time. Prescription {praescriptio), thus originally introduced into the later Roman Law merely as an equitable defence, came in time to be regarded as itself a mode of curing defects of title and of acquiring property by lapse of time, and of giving a title to property that could not be the object of "quiritary" ownership :^ so that after the lapse of the prescriptive period the possessor, if he lost possession of the property, could recover it by a " vindication " in the character of owner.* Prescription (praescriptio) thus came to have, under the later law, the twofold effect of either positively giving a complete title to property in respect of continuous possession of it for a certain period, or, negatively, extinguishing rights to property by reason of the failure of the owner to assert his right within the limit of time fixed by the law. Prescription, however, notwithstanding its negative aspect in respect of the default of the owner, was truly a positive mode of acquisition based essentially upon the claims of the possessor.^ By the time of Justinian the technical distinction between " usucapion " (usucajno) and " prescription " {praescriptio, or possessio longi temporis) disappeared,^ and they became merged together under the general name of "prescription" {praescriptio); and, moreover, by that time prescription conferred upon the possessor the true ownership {dominium) of the property.''' 1 See ante, p. 223 et seq., on " quiritary " or " quiritarian " ownership. 2 Literally, " possession of a long time.'' ^ B.ff., " provincial lands." * See, as to the points of difference between usucapio and (M-aescriptio, Mackenzie, Roman Law, 194, note 3. ^ Cf. Hunter, Roman Law, 288 ; Mackenzie, Roman Jjaw, 195. " This was mainly by reason of the disappearance of the distinction between Italian and provincial land, and that between "quiritary" and "possessory" ownership (see ante, p. 224). ^ The term iisucapio was, nevertheless, sometimes thereafter used to signify the later prescriptive acquisition of movables in three years, and is so used in Institutes, ii. 6 pr., and so also in ii. 6, 12, with respect to accessio possessionis (see post, p. 255). 252 REQUISITES FOR A VALID TITLE [part ill. Section 78. — Requisites for a Valid Prescriptive Title In the time and by the law of Justinian it was requisite, in order to create a valid prescriptive title to property by lapse of time, that movables should have been possessed for three years, and 'immov- ables for a period of ten years, if the parties lived in the same province, or for a period of twenty years if they lived in different provinces,^ irrespective of the locality in which the property itself was situated.- The possession, moreover, upon which a valid prescriptive title might be acquired required to be («) in good faith (in bond fide), (b) upon a good title (e.r justa mi(fid), and (c) uninterrupted/' (a) Possession " in Good Faith " {in bond fide) This requirement signified that the possessor must have acquired possession of the property honestly believing that the person from whom he obtained the property had himself a good legal title to it as owner which he could competently transfer ; if the transferror or a predecessor had acquired the property illegally the title was thereby rendered "vitious," the illegality constituting what was known as a cifium or defect in the title. It was immaterial, however, and the course of the prescription was not affected if the possessor, subsequent to his entering, and provided that he had entered upon his possession in good faith, discovered the defect in his title,* unless in the case where the possessor was profiting by the period during which the person from whom he had acquired the property had already prescriptively possessed it ; in such a case the supervening bad faith, or knowledge of the defect in the possessor's title, had a different effect, according as it was on the part of an heir or of a singular successor.'' (b). Possession " uii a Good Title" (e^: justa causd) This requirement signified that the possessor must have become possessed of the property in such a way as would have legally made ' The allowance of time was 'in order to give the owner a reasonable period within which to assert his rights, having in view the difficulties of communication between one part of the Empire and another. Cf. Hunter, 289 ; ff. French Civil Code, Art. 2265. 2 Parties were said to be " present " if they were both domiciled in the same province, and "absent" if they had their domicile in different provinces {Code, vii. 3.3, 12). When parties had lived in the same province during part of the time, two years of "absence'' was held as equivalent to one year's presence {Xoc. 119, 8). Cf. French Civil Code, Art. 2266. 3 Cf. French Civil Code, Art. 2229. ' The belief, however, required to be one of fact and not of law, arid, moreover, in such circumstances as would render it reasonable and excusable. " See (jixes.fio temporii, po-' Cf. Code, iii. 33, 12, 1. 2 Cf. Code, iii. 33, 12 pr., and French Civil Code, Art. 620. 3 Dig^. vii. 1, 56. * Justinian, Inst. i. 4, 3. '"■ Imt. ii. 4, 3. " See ante, pp. 281-282. ' Inst. ii. 4, 3. See on "non-use" as extinctive of servitudes generally, a'itte„ pp. 270-271. ' Code, iii. 33, 16, 1 ; iii. 34, 13. By Justinian's legislation the usufructuary was placed so far in the position of an owner of a thing that it required the same length of time to make him lose the usufruct as it did to make the owner lose the property (Sandars, Institutes of Justinian, 129), " Justinian, Inst. ii. 4, 3. 286 USE (USUS) [part iii. Section 92. — Use (Usus)i This was a personal right of servitude similar to, but much less extensive than, usufruct. The personal servitude of " use " {usus) was, in the law of Justinian, a right to use property belonging to another person without in any way impairing the subject, and to enjoy the fruits or produce of the subject — such as vegetables, wood, fruit, flowers, hay, straw, or milk — only so far as might be necessary to meet the daily requirements of the user (usuarius) and his family or household.^ The right in the usuary to even a portion of the fruits of the object was an extension only accorded by the later law, and operated through equitable juristic interpretation; for under the older law a user had right to only the " bare use '' (nudus tisus) of the object, and was not entitled to take any of its produce. The usuary of a flock of sheep, for example, was not entitled to take any of the milk, or the lambs, or the wool, for these were their fruits, but he might make use of the animals to manure the land, and so render it more productive ; ^ but it came to be recognised that the user might take so much of the milk as was necessary for his personal requirements, if to do so was not inconsistent with the terms of the grant.* The user of a house was entitled to live in it with his wife and family and dependants and servants, and to receive guests in it, although previously it had been doubted whether the right of occupa- tion was not confined strictly to the user himself.^ The user was entitled to the whole use of the subject, and the owner could not demand the use of any part not used by him.'' The right of use was indivisible, and could not be given partially to different persons ; ^ but one person could have the use and another person the fruits of the same subject.* If the use of a house was given to a wife or to a husband, as the case might be, the other spouse was also entitled to enjoy the right.^ • The right of use was specially distinguished from that of usufruct ' Justinian, Inst. ii. 5 ; Biff. vii. 8. - Justinian, Inst. ii. 5, 1. 2 Justinian, Inst. ii. 5, 4 ; Big. vii. 8, 12, 2. * Big., ut stipra. * Justinian, Inst. ii. 5, 2 ; Big. vii. 8, 2, 1 ; vii. 8, 4, 6, 8. « Big. vii. 8, 22, 1. ' Big. vii. 8, 19. * Big. vii. 8, 4, 1; vii. 8, 9. " Big. vii. 8, 4, 1 ; vii. 8, 9. SECT. 93] HABITATION (HABITATIO) 287 in respect that the right of exercise of the right, as well as the right itself, was purely personal to the user ; he could only exercise his right personally and was not entitled to transfer the right of exercise to anyone else, in any way, whether gratuitously or onerously .^ The ground of this distinction and limitation was that the user had no more right to " civil " fruits of the subject (such as he would be taking if he were to let or to sell the exercise of his right to another person) than he had to the natural fruits or produce. It was only by means of equitable juristic interpretation that the grant of a right of use ultimately carried with it the right to take so much of certain kinds of produce of the subject as might suffice for the daily requirements of the user and his family.^ (a) Constitution and Terviination of Usus The personal servitude of use {iisiis) was created and ended in the same ways as usufruct,^ and it might be granted either for the life of the grantee or for a lesser limited period. Section 93. — Habitation (Habitatio) This was the third of the personal servitudes recognised by the Koman Law. " Habitation " was a right to occupy and reside in a house belonging to another person without payment of rent or other con- sideration. Before Justinian it was considered doubtful whether habitation was in itself a distinct servitude, but Justinian expressly gave to it that character.* "Habitation" was originally, like "use" {usus), a purely personal right, which had to be exercised personally, but in the time of Justinian a grantee was entitled either to inhabit the house himself or to let it for occupation to another person.^ A grant of the right of habitation was, under the older law, considered to be for one year only, but under the later law it was a grant for life, unless specially limited.^ The right of habitation was specially differentiated from both usufruct and use (usus) in re'spect that it was not lost by either non-use (non wteTido) or capitis deminutio minima.'' > Inst. ii. 5, 1. ^ Justinian, Inst. ii. 5, 1. See Sandars, Institutes of Justinian, 131. ^ Justinian, Inst. ii. 5 pr. See ante, pp. 280 and 283. * Inst. ii. 5, 5 ; Dig. vii. 8, 10 pr. " Inst., ibid. Cf. a right of habitation with a right of use of a house. The user had no right to transfer his right or its enjoyment to another {Inst. ii. 5, 2). « Dig. vii. 8, 10, 3. ^ Dig. vii. 8, 10 pr. 288 JURISTIC PERSONS [part in. Section 94. — Services of Slaves (Operae sbrvorum) ok of Animals (Opekae animalium) These two minor servitudes might be either combined or separate, and were sometimes conjoined with that of "habitation." They gave right to the services of the slaves, or of the animals belonging to another person ; ^ and they were purely personal to the grantee, who was not entitled to transfer either the right or its exercise to another.^ The personal servitudes of " habitation," and " services of slaves " {operae sei'vorum), and " services of animals " (operae animalium) like both the other personal servitudes of " usufruct " and " use," might be created by agreement or by testament ; but where a right to the services of slaves or of animals was given by testament (testamento) as a legacy, the right of enjoyment of the servitude did not end with the death of the legatee, but passed to his heirs, who, in their turn, continued to enjoy the right so long as the slaves or the animals lived. Servitude rights to the services of slaves or of animals were specially distinguished from both usufruct and usiis, in that they were not terminated by either non-use or, even before the time of Justinian, by capitis deminutio minima ; * and whilst a usufruct of slaves, or of animals, only subsisted during the life of the usufructuary, the right to the services of slaves or of animals, as the case might be, continued throughout the lives of the objects of the right.* Section 95. — Juristic Persons and Personal Servitudes A personal servitude might competently be constituted in favour of, and pertain to, a "juristic" person, just as to a natural one, and a right so established was terminated either by the dissolution of the juristic person — which was regarded as equivalent to the death, natural or civil, of a natural person — or by the lapse of one hundred years from the time when the right was first granted, unless there was in the terms of the grant express provision otherwise.* 1 Diff. vii. 7. 2 Justinian, Inst. ii. 5, 3 ; Big. vii. 8, 12, 5, 6. 5 Dig. xxxiii. 2, 2 ; Dig. vii. 7, 2 ; vii. 8, 10 pr. * Dig. xxxiii. 2, 2. Cf. Girard, Divit Rmnain, 5th ed., 370, 371. ^ See ante, p. 284. CHAPTER IX Eights other than Servitudes over the Property of Another Person which fell short of Ownership The Eoman Law recognised, besides servitudes, three .other forms of rights over the property of another person (/wra in re aliena), which were not so extensive as ownership {dominium), under the respective names of Emphyteusis, Superficies, and Pignus} Section 96. — Emphyteusis This was a form of contract by which, , under the later Eoman Law, an owner of land or of buildings^ gave to another person, in respect of an annual return,^ either in money or in produce, a real right in his property which entitled him to exercise practically full rights of ownership over it to the extent of enjoying all the fruits, and disposing of the estate (praedium), while the owner himself (dominus) retained only the bare ownership {nudum dominium). The grant of emphyteusis was usually, although not necessarily, in per- petuity,* and was subject to the condition that failing payment of the annual sum or other c5nsideration, the right should be forfeited. The person receiving the grant of emphyteusis was known as the emphyteuta, and he was said to have the jus emphyteuticarium. It was for long a disputed point whether emphyteusis was a contract of sale or of lease ; ^ in its origin it undoubtedly possessed the char- acter of a lease, but as time progressed and its importance increased it became necessary to determine its exact character ; the Emperor Zeno (a.d. 475-491), accordingly, declared emphyteusis to be in itself a distinct contract, with special characteristics of its own.^ 1 Pignus will be found treated of in Part IV. under the " Law of Obligations,'' voce "Contracts, Re." Sections 117-121, pp. 368-383. 2 Nw. 7, 3, 1, 2. ^ The consideration was known a,a pensio or canon. * Bigr. vii. 3, 3. ^ Gains, Inst. iii. 145 ; Justinian, Inst. iii. 24, 3. ° Justinian, Imt. iii. 24, 3 ; Big. vi. 3 ; Code, iv. 66, 1. Cf. Hunter, 4th ed., p. 420. 19 289 290 EMPHYTEUSIS [part hi. (a) Bights and Duties of the. Emphyteuta The grantee in emphyteusis did not acquire the absolute ownership of the property, for the "' bare ownership " {nudum dominium) remained with the granter; but he received possession of the land, or other property, usually in perpetuity, and his right could not be interfered with by the true owner so long as the emphyteuta duly respected and performed the duties imposed upon him by the contract, to the effect that {a) the stipulated annual return was forthcoming ; ^ (6) all taxes or other annual burdens were paid ; ^ (c) the value of the property was not permanently .deteriorated by the actings of the grantee, or by the use to which he put the property ; ^ and {d) the emphyteuta duly recognised the rights of the owner when making an alienation of the property.* The emphyteuta was liable to eviction if the annual return in respect of the property was in arrear for three years, or for two years if the owner of the land was a church, or a charitable foundation ; ^ or if the taxes on the property were in arrear for three years ; ^ or if he failed to perform the special duties incumbent upon him on alienation ; ® or if the operations of the grantee upon the property lessened its value and the owner was a church, or a charitable foundation.' The grantee (emphyteuta) was entitled to possess and to have the complete use of the lands, and, having reaped them, to enjoy and con- sume the fruits;^ he could make changes in the substance of the property, and might alter its character by such means as building, planting, reclaiming, draining, so long as the value of the property was not lessened by reason of such operations. If the permanent value of the property was lessened by the actings of the emphyteuta, he was bound to indemnify the owner, and he might even be liable to eviction if the owner were a church or a charitable foundation,^ but he was not himself entitled to claim compensation for improvements.^" The emphyteuta might burden the land, as by mortgage,^^ or by a 1 Code, iv. 66, 1. 2 Cf. Joo. 7, 3, 2 ; 120, 8 ; Code, iv. 66, 2 ; x. 16, 2. 3 Of. ^Voi). 7, 3 ; 120, 6, 8. * Code, iv. 66, 3. See post, p. 291, for rights of the owner in such circumstancejs. ^ Code, iv. 66, 2 ; Nov. 7, 3, 2. " Code, iv. 66, 3. ' Nov. 120, 8. Such forfeiture was styled privatio or " deprivation." " Dig. xxii. 1, 25, 1. '■> Nov. 120, 8. JO Code, iv. 66, 2. " Dig. xiii. 7, 16, 2. SECT. 96] EMPHYTEUSIS 291 servitude, for the period of the duration of his own right ; ^ for his rights as such were heritable, and he enjoyed all the real remedies of an owner, in the form of actiones utiles for their protection.^ His rights, more- over, were alienable both inter vivos and by testament, and he might sell them with the consent of the owner, or otherwise dispose of them ; but if he did not transfer or dispose of his rights they descended to his heirs. When the emphyteuta sold his right the real owner had a right ■of pre-emption,^ in virtue of which he was entitled to have the first opportunity of purchasing the property at the price offered for it, and he had also a right to a commission or fine, not exceeding two per cent., on the purchase price or value of the property on the occasion of every alienation by the emphyteuta to a third party.* It will be observed that in all respects the rights of the emphyteuta ^ere more extensive than those of a usufructuary; they resembled rather those of the hond-fide possessor than those of a usufructuary, in respect that the emphyteuta was entitled to the fruits as soon as they were separated from the land, whether they had been gathered or not,* and the emphyteuta was, moreover, not bound, like the usufructuary, ±0 deal with the property as a " good paterfamilias." ^ (b) Creation and Termination of Emphyteusis Emphyteusis was created by agreement in writing,'' by testament, .and probably also by prescription upon the analogy of servitudes.^ Emphyteusis was terminated by the mutual consent of the granter and grantee, by the destruction of the property, by the expiry of the period for which the right was granted, by consolidation or confusion, by prescriptive possession on the part of the true owner, by forfeiture, and hj the death of the emphyteuta without lawful heirs. Emphyteusis originated in the early Roman practice of the leasing out by the State of lands taken in war for fixed periods'or in perpetuity, in return for a rent called vectigal, and lands so leased out were called agri vectigales ov "vectigal lands." ^ Later on this special practice of 1 Dig. vii. 4, 1 pr. ; xxx. 71, 5, 6 ; xliii. 18, 1, 9. 2 Dig. vi. 3, 1, 1. 3 See Code, iv. 66, 3. * Code, iv. 66, 3. * Dig. xxii. 1, 25, 1. 1 Nov. 120, 8. ^ Code, iv. 66, i. ' See Hunter, Roman Law, 428, and Mackenzie, Boman Law, 192, note 2. " See Gains, Inst. iii. 145. 292 SUPERFICIES [part in, letting out lands was adopted by corporate bodies, and it was ultimately- applied to both the lands and houses of private individuals. In eaob case the tenure was usually as a lease in perpetuity. When this special form of tenure was applied to the lands and houses of private individuals property so leased was styled praedia emphyteuticaria, and the tenure- itself was known as emphyteusis} Thereafter the tenures and rights- relating to the agri vectigcdi leased out by the State, and to the praedia emphyUuticaria let out by corporate bodies and private individuals, con- tinued to subsist concurrently, until, in the time of Justinian, or shortly before, they were blended under the common name of emphyteusis. Emphyteusis is historically important as a form of land tenure. Its most characteristic feature was the practically double ownership of th& true owner (dominus), and of the grantee (emphyteuta) existing con- currently ; this conception of dual ownership was reproduced and developed in Mediaeval Feudalism. ^ Section 97. — Superficies * This, as a form of right in the property of another person (jus in re aliena), signified a real right granted by the owner of land to another person over a building erected by the grantee upon a certain area or extent of the surface (superficies) of the granter's land in consideration of a stipulated annual return,* or for a definite price, and in respect of vyhich the grantee was entitled to use and enjoy,^ and to dispose of or burden,^ the building so long as he did not destroy it, the granter's ownership of the soil remaining all the time unaffected.'' A grant of superficies was usually, like emphyteusis, in perpetuity, or for a long term ; it was, in effect, a perpetual or very extended lease of land for building purposes. The right of superficies^ was constituted, transferred, and ex- tinguished in the same ways as was emphyteusis^ ' The name emphyteusis {iv (pvreOw) connoted the idea of what, in effect, amounted to another ownership being grafted upon the real dominium (Sandars, Institutes 0/ Jxt^tinian, 134). 2 See on Emphyteusis, Moyle, Inst., 4tli ed., 323-325 ; Poste, Institutes of Oaius, . 4th ed., 372 ; Hunter, Roman Law, 4th ed., 420 et seq. ; Sandars, Institutes oj Justinian, 134, 135 ; Mackenzie, Roman Law, 7th ed., 191-193 ; Muirhead, Roman Law, 2nd ed., 392-394 ; Maine, Ancient Law, pp. 299, 302-303 ; Sohm, Institutes of Roman Laio, 3rd ed., 348-350 ; Girard, Manuel de Droit Romain, 5th ed., 386, 387.- 3 Dig. xliii. 18. * This return was known as either pensio or solarium. ^ Dig. xliii. 18, 1, 1 ; xliii. 18, 1, 6. » Dig. xliii. 18, 1, 7 ; xliii. 18, 1, 9 ; xx. 4, 15. ' Dig. vi. 1, 74 ; vi. 1, 73, 1 ; xliii. 18, 2. ^ Jus superficiariiim. 9 See p. 291. SECT. 97] SUPERFICIES 293 The right of the " superficiary " (superficiarius), or grantee in super- ficies was heritable, and he might dispose of his right either inter vivos •or by testament ; he might also burden it, as with a pledge or with a servitude, but if he did not dispose of his right it descended to his heirs. The effect -of a grant of superficies was that, while the building ■erected upon the area of surface (superficies) over which the right had been granted became, necessarily, by accession the property of the •owner of the soil on which it stood, the grantee or "superficiary" obtained, at the same time, a real right to the full possession and -enjoyment of the building, and his rights were protected by a " real " ■action and by the possessory interdicts generally.^ The rights of superficies and of emphyteusis closely resemble each ■other, the main distinction between them being merely that superficies related only to the surface and to things built upon the surface of the land, whereas emphyteusis related to the land itself. The legal position -of the " superficiary " was the same as that of the emphyteuta ; they had the same legal remedies in the form of real actions and protected possession, and they both were entitled to the juristic possession of the land to the exclusion of the true owner as contrasted with the juristic possession of a servitude right which is not exclusive of the right of the owner of the land.^ The " superficiary," in virtue of his real right, was entitled to take and use the fruits or profits of the building, and to pledge it or other- wise burden it, or to alienate it to the same effect as an emphyteuta. The principal duty of the superficiary was, like the emphyteuta, to pay the stipulated annual return, as well as to refrain from so using the property as to seriously and permanently depreciate its value, and he was not bound to show the care of a bonus paterfamilias. Superficies is supposed to have originated in the Praetorian law at a time prior to that when buildings could competently be the subject of emphyteusis.^ 1 See ante, p. 223, and p. 225, note 2. 2 Cf. Sohm, Inst., 3rd ed., 350, 351. ' See on " Superficies," in addition to the authorities cited on " Emphyteusis " {ante, p. 292, note 2), Cuq, InstitxUions Juridiques des Romaina, ii. 297-301. PART IV THE LAW EELATING TO OBLIGATIONS ^ CHAPTER I Obligations Generally^ Section 98.— General Nature of an Obligation An " obligation " (ohligatio) is defined in the Institutes of Justinian as " a bond of the law " {vinculuvi juris) in respect of which persons are compelled to do something in conformity with the law of the State.^ Legal obligations may be created either by the mutual consent of persons, or by the law itself, apart from and irrespective of the wishes or the consent of parties. A legal obligation, therefore, may be defined more fully as a bond {vinculum) created by the law which unites persons together in certain relations, either with or without their consent, to the effect that one person is bound either to do, or to refrain from doing, some act for the benefit of another person.* The term employed in the Eoman Law to signify performance of a legal obligation was solutio ; and " solution " of an obligation involved all that a person was bound (phligatus) to do, or to refrain from doing, for the benefit of the other person.^ 1 See Justinian, Inst. iii. 13-24, and iv. 1-5 ; Gains, Inst. iii. 88-225 ; Big. xliv. 7. In book iii. of the Institutes, obligations are considered in so far as they are created by contract, while in book iv. they are treated of as arising out of delict or wrongdoing. 2 See on obligations generally, Moyle, Institutes of Justinian, 4th ed., 474-482 ; Poste, Institutes of Oaius, 4th ed., 315-322 ; Hunter, Roman law, 4th ed., 451-458 ; Buckland, Principles of Roman Private Law, ch. vi. ; Muirhead, Ro^nan Law, 2nd ed., ss. 31, 39, and 53 ; Sohm, Institutes of Roman Law, 3rd ed., part ii. bk. ii. ch. iii. 358 et seq. ; Girard, Manuel de Droit Romain, 5th ed., bk. iii. ch. iv. 388 et seq. ; Cuq, Institutions Jvjridiques des Rmnains,. bk. iv. (vol. ii.) 319 ; May, Mem^nts de Droit Romain, 8th ed., 229-237. ^ Cf. Justinian, Iiut. iii. 13 pr. : Ohligatio est juris vincidum, quo necessitate adstringimur alimijus solvendae rei, secundum nostrae civitatis jura. {Of also Dig. xliv. 7, 3 pr.) * Cf. Dig. 1. 16, 11, 12. ^ Just as solutio signified "performance" of an obligation, the word solvere meant "to perform" or to give effect to the legal bond {vincidum jurii). The term 295 296 GENERAL NATURE OF AN OBLIGATION [part iv. An obligatio was the correlative of a right in personam ; the dbligatio was the duty that corresponded to the right {jus). The law of obligations is concerned with rights created against particular persons, as contrasted with the law of things or property, which deals with rights available against everybody, and not merely against special individuals ; the distinction is, in other words, between "' personal " rights {jura in perscaiam) and " real " rights {jura in rem)} An obligatio, or a right in pe^'sonam created by contract, was, in the Roman system, in striking contrast to a right in rem which was created and existed in virtue of the fact of conveyance and ownership. Owner- ship gives rise to rights available against everybody, or, as it is usually expressed, " against all the world," which entitles the person in right of it to claim from all persons either acts or forbearances with respect to certain property by reason of the fact that it is already his own to the exclusion of everybody else. A contractual obligation, on the other hand, creates merely a right in personam, or one against a particular person only, which entitles the person in right of the obligation to claim on the part of the person alone bound either the performance of, or the abstention from, a particular act. The distinction between rights of ownership and con- tractual rights has been expressed by the jurist Paul to the effect that the essence of an obligation is not that it creates rights over property {in rem), but that it merely binds other persons either to give some- thing to us, or to do something for us.^ A legal obligation creates the relation of creditor {creditor) and debtor {debitor). solva'e included three different ideas (connoting the particular object of tlie obligation) signified respectively by the words dare, facere, and praestare {cf. Paul, Dig. xliv. 7, 3 pr.), or otherwise " to give," " to do," and " to make good." Bare signified to give either the property in or the possession of a thing ; facere meant, strictly, to do some particular act undertaken, and praestare had the special meaning of to make good or to compensate for some fault {cvlpa) that had been committed. The distinction between the terms, however, was not strictly adhered to : dare is frequently employed as a generic term embracing both facere and praestare. According to Moyle {Institutes of Justinian, 4th ed., 475) this classifica- tion of the objects of oblig'ation was, in the time of Justinian, " a mere valueless survival of an older and obsolete procedure," unscientific in character, and having its origin in the technicalities of the formulary procedure. Moreover, the precise meaning to be attached to each of the terms is so disputed that it is futile to attempt to determine their exact signification. See on the signification of the terms dare, facere, and praestare. Hunter, Roman Law, 453. 1 See on "real" and "personal" rights, ante. Part III., Section 69, p. 226. ^ Dig. xliv. 7, 3 pr. SECT. 98] GENERAL NATURE OF AN OBLIGATION 297 The creditor is the person who can compel, by legal process, the performance 'of the obligation ; and the debtor (debitor) is the person who can be legally compelled to perform the obligation.^ The right of the creditor against the debtor is the jus in personam, and the " obligation " {oUigatio) is the correlative duty imposed upon the debtor {debitor) in respect of the creditor's right. The word obligatio is used in the Roman Law in a variety of senses. In a general sense it is employed to signify the legal bond between a creditor and a debtor, in which sense it applies equally to both parties ; but it is also found with particular meanings, as signifying (a) the creditor's right alone ;^ (6) the debtor's duty only in respect of the bond ; ^ (c) the mode in which the relation is created, in which sense it is practically equivalent to " contract " (contractus) ; (d) the document or deed by which the debt is constituted ; * and («) the object of the obliga- tion, such as a thing pledged.^ In modern times, however, the term obligatio is ordinarily used with reference to the debtor only, and the creditor's interest is referred to as the jus or right to which the obligatio or duty of the debtor is correlative.® All obligations are reducible to a twofold classification of either ■{a) acts, or (b) forbearances, but the Roman Law required that, in all -cases, the duty imposed upon the debtor, whether it were oiie of doing -or of not doing, should be capable of estimation in pecuniary terms,' as ^n equivalent to non-performance. The rationale of this rule was that obligation neither implied nor involved any control over the person or the acts of the debtor, as did the paternal power (patria potestas) and the dominical authority (dominica potestas), and the creditor could not, at his own hand, compel the debtor to fulfil the obligation, but in order to get satisfaction required to invoke the aid of the State through the Courts to obtain a monetary equivalent to performance if the debtor failed to perform. "An obligation means a deduction, not from a man's liberty, but only from his property,'' for, in the last resort, a debtor can always rid himself of every obligation by sacrificing a corresponding portion of his property in order to indemnify the other person.* 1 Big. 1. 16, 108 ; 1. 16, 10 ; I. 16, 11 ; v. 1, 20. 2 Inst. iii. 28 ; Big. xii. 2, 9, 3 ; xxiii. 3, 46 pr. ; xlv. 1, 126, 2. 3 Big. 1. 16, 21. * Cf. Code, iv. 30, 7. « a. Big. XX. 6, 11. ^ In the English language the term obligatio applies exclusively to the debtor '^Hunter, Roman Law, 4th ed., 454). ' Big. xl. 7, 9, 2. * Sohm, Institutes of Roman Law, 3rd ed., 359. See also on this point, Poste, 298 GENERAL DIVISION OF OBLIGATIONS [part iv. It follows from the definition of an obligation that it is the law itself which fastens the legal bond, and similarly, it is the law that- unloosens the bond by prescribing what is necessary in order to con- stitute "solution" or legal performance of the obligation. As soon as an obligation has been created or undertaken, the law thereupon supplies the "sanction" or element of compulsion, to the effect that neither party can thereafter please himself as to whether or not he will perform his part, for the law will compel him to do so by mulcting him in pecuniary damages for his failure. Section 99. — General Division of Obligations The Eoman Law divided obligations into two general classes — namely, (1) those enforceable by action at law, and (2) those not enforceable by action. Obligations enforceable by action are classified in the Institutes of Justinian in a twofold manner — namely, (1) according to the source- f rom which they derive their authority into either (a) " civil," or (6} Praetorian ;i and (2) according to their juristic source, as they arose from either contract or delict, or their analogues.^ Stated another way, obligations enforceable by action were so on account of either (a) the authority from which they derived their binding effect — e.g. the jus civile, express enactment, or the ju^ honorarium; or (6) their juristic source — i.e. according as they arose- from contract, or from circumstances analogous to contract, or from delict, or from circumstances resembling wilful wrongdoing.^ An obligation that could not be enforced by an action at law was styled a "natural" one (naturalis obligatio) as being one imposed by natural equity in contrast to one imposed and enforced by the civil law, and as such it was referred to as vinculum aequitatis, or an equitable- bond.* Institutes of Gains, 4tli ed., 317 ; Cuq, Institutions Juridiques des Romains, ii. 319 p and Moyle, Institutes of Justinian, 4th ed., 476. Moyle's view is that this rule originated in the fact that under the formulary system the remedy in a personal action was always damages, as there was neither then, nor subsequently, introduced specific performance, although some writers maintain the contrary. ' Justinian, Inst. iii. 13, 1 ; Dig. xliv. 7, 52 pr., 5, 6. 2 Justinian, Inst. iii. 13, 2 ; Gaius, Inst. iii. 88, 89 ; Dig. xliv. 7, 1 pr., 1. See as to Justinian's classification and its scientific character or otherwise, Buckland,. Principles of Roman Law, 288, s. 103 ; also Moyle, Inst. 390. ^ I.e. according as the obligation arose ex contractu, quasi ex contractu, ex delicto, or quasi ex delicto ; see alsoposi, p. 302, and Chapters II., III., IV., pp. 303, 316, 318. * Dig. xlvi. 3, 95, 4. See "■jus naturale " and "_;«« civile," ante. Part I., Chapter- II., Section IV., p. 60. See " Natural Obligations," post, Section 101, p. 300. SECT. 100] CIVIL AND PRAETORIAN OBLIGATIONS 299 Section 100. — Civil and Pkaetorian Obligations A " civil " as contrasted with a " praetorian " obligation was one which was based either upon the strict jus civile, or upon express statutory enactment, and which could, in general, be enforced by a form of action under the older Roman Law. The forms of action pro- vided by the strict jus civile were very few in number and unadaptable in form and character, and the obligations to which they gave effect derived their binding character as such, for the most part, from the exact use of particular forms and words at the time of the transaction. A "praetorian" obligation, on the other hand, was one that was neither recognised nor enforced by the forms of the older /ms civile, or by statutory enactment, but which received its sanction and enforce- ability from the Edicts of the magistrates (edicta inagistratuum)} and especially from the edict of the Praetor ^ in the exercise of his equitable discretion, or, in the later Roman Law, from the authority of the Emperor, and for which special forms of action were provided, adapted to the particular circumstances of each case. " Praetorian " obligations formed part of what was styled the jus lionorarium or equitable law grafted upon the older jus civile, and for that reason they were some- times referred to as " honorary obligations " (Iwywrariae ohligationes).^ Although "civil" and "praetorian" obligations were thus dis- tinguished from each other they possessed the common element of enforceability by action at law, although by different forms of process, and although each was based upon a different source of authority.* The actions by which "civil" and "praetorian" obligations were respectively enforced were known as " condictions " (condictio) and actions bonae fidei, and this distinction between the forms of action corresponded to the distinction between the forms of obligation. " Con- dictions " as derived from the jus civile were stricti juris, the judge being confined strictly to the letter of the law, and not permitted any latitude in arriving at his decision. In the case of bonae fidei actions or those arising out of obligations based upon good faith and intention of parties the judge was entitled to take into account equitable con- ' See "Historical Introduction,'' ante, Part I., p. 25. 2 See ante, Part I., Section V., p. 26. ^ See upon the jus honorarium and the origin of the term, ante, Part I., p. 29. * There was a further distinction between " civil " and " praetorian " obligations with regard to their prescription or extinction by lapse of time. A " civil " obliga- tion could not, originally, be extinguished by lapse of time, whereas a "praetorian'^ obligation could not, as a rule, be enforced after the lapse of a year from its origina- tion {Dig. xliv. 7, 35 pr. See also, on this point, "Prescription of Obligations," ante. Section 83, p. 256 and p. 257, note 4). 300 NATURAL OBLIGATIONS [part iv. siderations according to the circumstances of each case and to give judgment accordingly. Section 101— Natural Obligations i A " natural " obligation was one which, while possessing the qualities of a legal obligation, was, nevertheless, not enforceable by action. A " natural " obligation was considered by the Eoman Law to exist in those cases where a person was bound by the " law of nature," or, in other words, was morally bound to another, but not civilly so related to the effect of enabling him to enforce the obligation by legal process. An obligation might be " natural," as opposed to both " civil " and " praetorian," either because of (a) some defect (such as the absence of an essential formality) in the form of the contract constituting the obligation, or (h) defective status or legal capacity in the parties to the obligation. The incapacity giving rise to a " natural " instead of a " civil " or a ^'praetorian," or, otherwise generally, an enforceable obligation might be either relative or absolute ; an example of the former would be an agreement between a paterfamilias and anyone in his power ; while an instance of the latter would be an undertaking by a slave to do something ; so long as a slave remained such he could not validly bind himself, but if he subsequently became free he would be under a natural obligation to perform what he had undertaken, although he could not be legally compelled to do so.^ Slaves were sometimes manumitted on the strength of a preceding agreement with their masters that, on manumission, they would give something to or do something for him ; but it came to be usual, in order to obviate the risk of the repudiation of the natural obligation so created, that a formal stipulation by the slave should immediately succeed the ceremony of manumission as part of the same act, the two processes taking place unico contextu, or as parts of one and the same transaction. Although a natural obligation was not enforceable directly by an action at law, this defect was largely counterbalanced by certain well- recognised legal effects of such an obligation ; for a natural obligation might be pleaded or employed by way of a defence or "exception" ' See on natural obligations, Girard, Manuel de D-rait Eomain, 5th ed., 639-644 ; Poste, Institutes of Oaius, ith ed., 317, 318 ; Moyle, Institutes of Jiistinian, 4th ed., 476-479 ; Hunter, Roman Law, 4th ed., 454, 455 ; Buckland, Principles of Roman Private Law, 293. 2 Cf. Dig. xliv. 7, 14. See also post, p. 306. SECT. loi] NATURAL OBLIGATIONS 301 (exceptio) to a direct action, and it might form the foundation for an accessory agreement that was itself enforceable by action.^ Thus the restoration of money paid voluntarily in respect of a natural obligation co'uld not be afterwards sued for by the debtor, under the action known as a condictio indebiti, or " the action for money not owing," on the ground that the money had never been legally due, although the debtor could not have been compelled to pay ; for the debt was none the less in existence morally, though not " civilly " to the effect of being exigible by action, and the payment by the debtor was a recognition of this fact.^ A " natural " obligation could also usually, but not always, be employed ^ as a set-off against an actionable debt,* or as the founda- tion of an accessory contract,^ such as suretyship,® or as the foundation of a new debt by " novation " (novatio),'' or to fortify a mortgage or a. pledge.^ Obligations were thus divided, in the Eoman Law, as has been already stated,* into two great classes — namely, (1) those enforceable and (2) those not enforceable by action ; but Justinian further specially divided obligations, not only according to the authority, whether " civil " or " praetorian," from which they derived their binding character, but also, according to their juristic source, into obligations arising out of (a) express agreement (ex contractu) ; (b) circumstances resembling express agreement (quasi ex contractu); (c) wilful wrongdoing (ex delicto); and (d) circumstances analogous to wilful wrongdoing (quasi ex delicto)}" ' Justinian, Inst. iii. 20, 1. 2 Die/ xii. 6, 19 pr. ' See Buckland, Principles of Roman Private Law, p. 294. * Dig. xvi. 2, 6. See " compensation of obligations," joos<, Section 160 (a), p. 474. '' An " accessory " contract is a subsidiary or secondary one entered into in order to fortify an already existing obligation, whether " civil " or " natural." In the latter case the accessory contract, such as suretyship if created by eith&v fidejiissio or constitutum, was itself enforceable by action, although the principal obligation was not. 8 Justinian, Inst. iii. 20, 1 ; Gains, Inst. iii. 119 ; Dig. xlvi. 1, 8, 1, 2 ; xlvi. 1, 70, 3. But this was not competent in the ease of a loan contrary to the S.-G. Macedo^nannm,. unless for some reason the surety had no right to demand indemnity from the prin- cipal, for that would have been to make the filitisfamilias liable indirectly, which was what the enactment sought to prevent (c/. Buckland, p. 294. Re the S.-C. Macedonianum, see the Contract of Mutuum, post, p. 353). See on " Suretyship," post. Chapter XIII., p. 466. ' See " novation," joos«, Chapter XIV., Section 160 (b), p. 475. ^ See "Pledge" (pignus) and " Hypotheca," post, Section 117, p. 368, and Section 118, p. 371. 8 See ante. Section 99, p. 298. '" Justinian, Inst. iii. 13, 2. See, for a criticism of this fourfold classification by Justinian, Moyle, ut supra, 390 ; also Eoby, Roman Private Law, ii. ch. i. 302 NATURAL OBLIGATIONS [part iv. It will thus be seen that the main sources of obligations and of rights in personam, according to the Justinianian law, were two in number — namely, (1) contract and (2) delict; a person is legally bound {dbligatus) to another either because {a) he has consented to be bound, or (6) he has done an injury to another, either in his property or in his person, and must consequently make good or give compensation for his wrongdoing {delictum). This division, however, which by itself is that of Gaius,i does not include all obligations enforceable by action ; and Justinian adds two supplementary classes — namely, (a) obligations resembling those based on agreement {ijucmi ex contractu), and (6) obligations resem- bling those founded on delict {quasi ex delicto) ; ^ for it is obvious that some obligations are created merely by a state of facts or circumstances by which a person, without any express agreement, is placed in a posi- tion resembling that in which he would have placed himself if he had specifically agreed or contracted. Moreover, the particular wrongful acts (delicta) that gave rise to an obligation ex delicto were very few in number and precise in character, and the wrong actually done might be of such a character as did not bring it within the category of recognised delicts, in which cases an obligation arose quasi ex delicto in respect of the circumstances resembling those which would give rise to a delictual liability in the limited sense recognised by the Roman Law.^ This fourfold classification of obligations made by Justinian, although, indeed, more extensive than the twofold division of Gains,* is not itself complete, for it does not include certain informal agreements or " pacts " (pacta) which, under the later law, were rendered enforceable by action either by the sanction of the Praetor's edict or by Imperial enactment,* but which did not technically fall within the recognised classes of contracts, whether "nominate" or "innominate."^ ' Gaius, iTist. ill. 88. ^ Cf. Poste, Institutes of Oaius, 4th ed., 318, 319. 3 See " Delicts," post, Chapter XI., p. 444. ^ Inst. iii. 88. " These were known as pacta vestita (see post, p. 306). '' On "innominate" contracts, s&6 post, p. 313. CHAPTER II Obligations arising out of Express Agreement (Ex contractu) IN General In the Koman Law the terms " obligation " (obligatio) and " contract " {contractus) are not co-extensive. Contract is truly a form of obligation that is created by the special fact of consent of parties, whereas an obhgation may be created by mere operation of law alone irrespective altogether of the wishes and consent of parties. The term " obligation " is thus much wider than " contract," although they both give rise to rights in personam. A " contract," in a general sense, may be defined as an agreement (conventio, jpactio, pactum) between two or more persons ^ which the law will enforce regarding a particular matter in which they are concerned, by which one person voluntarily undertakes a duty or duties with the intention of thereby creating in favour of another person rights against himself personally.^ A "contract" is thus an "accord of wills," effected by an offer (pollicitatio) on the one hand, and an acceptance of the offer on the other hand, to which is added the legal bond (vinculum juris) that creates the obligation. In order, however, that the agreement should have legal sanction it was necessary, according to the strict Eoman Law, that the accord of wills should have been expressed in a par- ticular way, which constituted the causa civilis or legal ground of the obligation under the strict /its civile. A contract was thus in the strict theory of the Eoman Law an agreement effected by means of the two elements of offer and acceptance to which there had been added a recognised legal ground of obligation {causa civilis) ; such were, under the earlier law, the nexum and the " stipulation." The nexum was the solemn conveyance " by the copper and scales " (per aes et libram) and was the earliest Roman conception of obligation, ^ Cf. Big. ii. 14, 1, 2 : M est pactio dv/yrv/m. pliirmmve in idem placitum et consensus. 2 Cf. Mackenzie, Roman Law, 7th ed., 204. 304 CONTRACTUAL OBLIGATIONS [part iv. and the principal, if not indeed the only form of contract recognised by the early law.i The stipulafio was a formal unilateral contract, in which the obligation was originally created by the employment of a particular form of solemn verbal question and answer ; but the necessity for the use of a strict form of words was ultimately dispensed with by a Consti- tution of the Emperor Leo in 472 a.d.,^ and thereafter a "stipulation" was binding as a "verbal"^ contract whatever words might be employed,, provided that the words were used in the form of question and answer, and that they sufficiently expressed the intention of the parties. The- siipulatio succeeded the nexum, under the name of sponsio, when the latter went out of use after the Poetilian law (326 B.C.).* In course of time the law gradually recognised other grounds, besides- the Tuxum and the "stipulation," upon which an enforceable legaL obligation might be based, and other forms in which contracts could be made — namely, (a) by entry in a ledger or account book (litteris) ; ^' (V) by simple delivery of a thing (re) in one or other of four ways styled respectively mutuum,^ commodatum^ depositum^ and pignus,^ unaccompanied by any special formalities ; and (c) by mere consent of parties (consensu),'^'^ as in the contracts of sale (emptio-venditio), letting on hire (locatio-conditctio), partnership (societas) and mandate (mmidatum),. also, like contracts re, unattended by any special formalities, so long as,, in the forms and words employed, the intentions of the parties were sufficiently clearly expressed. There were ten particular forms of contract comprised under the four respective categories of " verbal " (rerhis),^^ " literal " (Jitteris)^^ " real "^ ^ In the language of the early ^ji^ civile, nexum signified any money transaction- effected "by the copper and scales" {per aei et libram), the efifect of which was to- hind, or to create liability. In a narrow sense nexum was a loan of money, just as a mancipatio was a sale and conveyance of property, effected by the solemn procedure per aes et libram. In the early period of Roman legal history we find all private dealings between individuals governed by the two juristic acts of mancipatio (or mancipium) and nexum. Cf. Sohm, Institutes of Roman 'Law, 3rd ed., 48-50. See also " Mancipatio," ante, Part III., Section 70, p. 229. 2 Code, viii. 37, 10. ^ See on " verbal " contracts, post, p. 309. * See on the "Stipulation," Muirhead, Roman Law, 2nd ed., 213-219 and 256-258. Many modern writers now favour the theory that the sponsio was itself as old as the nexum. • ^ On "literal" contracts, see^os^, p. 311. •^ See post, p. 353. ' See^o«^, p. 357. >* See^osf, p. 362 " See post, p. 368. '" See on the " consensual " contracts, post, p. 384 et seq. " See " verbal " contracts, post, p. 309. '2 See "literal" contracts, post, p. 311. CONTRACTUAL OBLIGATIONS 305 (re)/ and "consensual" (consensit,),^ which constituted the recognised " nominate " or " named " enforceable contracts under the Justinianian law. A contract may be either (a) unilateral or (•&) bilateral ^ according as the obligation created by it binds only one of the parties, or both parties mutually ; in the former case there is only one debtor who is the party bound by the obligation, while in the latter case both parties are, in turn, debtor and creditor.* Thus, as will be observed when they come to be particularly con- sidered, the Roman "nominate" contracts verbis ("verbal") and litteris ("literal") and the "real" contract oi mutuum -wero unilateral; while the other contracts made re, namely, commodatum, depositum, and pignus, were bilateral in so far that there was upon the party to whom the property was delivered, and who primarily derived the benefit under the contract, a right to claim from the other party exceptional expenses incurred in the maintenance, or for the preservation of the property, or incurred by him by reason of the fault (culpa) of the other party to the contract. In much the same sense the consensual contract of mandate was bilateral ; and the other nominate consensual contracts were essentially and always bilateral.^ It was not every agreement (concentio, ijoctio, paduvi) that con- atituted a contract. The Roman Law originally and for long used the term contractus in a narrow and special sense to signify only those agreements or conventions that were specially recognised and enforceable by forms of action under the strict jus civile, or by statute, and all other agreements not so recognised and enforceable were known as " pacts " (pacta). A "pact" {pactum) was thus a mere promise or informal agreement that did not, from its nature, fall within any of the cate- gories of the recognised enforceable agreements, whether " nominate ' or " innominate," " and could not therefore form the basis of an action at law; it created, however, a "natural" obligation, which might in certain circumstances constitute a defence or " exception " (ivccptio) to an action at law.^ Thus an enforceable contractual obligation might be modified by a subsequent informal agreement not to sue upon it, ' See " real " contracts, -post, p. 352 et seq. 2. See " congenial " contracts, post, p. 384 et seq. ' French, synallagmatiqv^. ■* Cf. Poste, Institutes of Gains, 4th ed., 320, 321. ' See Sandars, Institutes of JvMinian, 8th ed., 322 ; also Poste, ut sup. ° See, on " Innominate Contracts," post. Section 10.3, p. 313. ' Dig. ii. 14, 7, 4 : Xuda pactio ohligationem n'on parit, sed po.nt I'xo'ptlonem, see ante, p. .300. On "Exceptions," see .Justinian, Inst. iv. 13. 306 PACTA VESTITA [part iv. either not at all, or not before, or not after a certain time, or unless a certain condition were fulfilled, and such an informal agreement could ■ be pleaded by way of defence to an action upon the principal obligation.^ A " natural " obligation, however, might arise and be pleaded by way of a defence to an action in cases where it had been created without even the medium of a pact, or informal agreement, because of the legal incapacity of parties to bind themselves ; thus a slave might promise something but he could not legally bind himself to perform ; if, however,, he became free, and thereby acquired legal capacity, the promise thereupon assumed the character of a natural obligation, in respect of which performance was "naturally" due although, of course, not legally exigible.^ Some pacts came, in course of time, to be enforceable by an action,, either with the sanction of the Praetorian law or by express Imperial enactment ; ■ such were styled by the commentators facta vestita, in respect of being by that means " clothed " ^ (vestita) with an action to enforce them, and all other informal conventions not so fortified were distinguished by the style of nuda pacta or " bare agreements," which, were only available by way of defence to an action.* In later times the term contractus lost its original rather limited significance and came to be employed in the Eoman Law in the general sense of any agreement that was enforceable by law, whether its- enforceability was based upon they^s civile, or upon the Praetorian law,^ or upon Imperial sanction. A "contract" {contractus) having been- thus ultimately resolved into the definition of any agreement enforce- able by the law, it will be understood that it involves two essential- elements — namely, (1) the agreement of parties (conventio) or "accord of wills," and (2) the legal bond {vinculum Juris) that attaches en- forceability to the agreement. Section 102. — Pacta Vestita ^ The "pacts" to which legal enforceability was attached, whether .by the jus civile, the Praetorian law, or by Imperial enactment, fall into- three categories known respectively as (a) 2^acia adjecta, (b) imcta 2}raetoria, and (c) jJocta legitima.^ ' Cf. Justinian, Inst. iv. 13, 3. 2 Cf. Dig. 44, 7, 14 ; see also on this point, ante, p. 300. ' Cf. Hunter, Roman Law, 4th ed., 549. * Dig. ii. 14, 7, 4 : Kuda pactio obligatioiurm non parit, md pant exceptionem.. ^ This is a term applied by the commentators. '' See on "Pacts" generally,. Hunter, Roman Law, 4th ed., 545-550. SECT. I02] PACTA VESTITA 307 (a) Pacta adjecta, or " added pacts," were collateral agreements added {adjecta), or accessory, or secondary to a principal hond-fide transaction ; they usually took the form of a condition made in continenti at the same time as a contract honaefidei, and as part of a single transaction. Thus it might be agreed between parties in a contract of sale that the seller was to be entitled to rescind the sale if he should receive a better offer within a fixed time ; or the purchaser of property might agree to subsequently lease it to the seller at a fixed rent.^ According to the classical law, pacta adjecta, if added at the same time as the principal contract was made, were truly a part of the contract itself,^ and were enforceable by the same form of action as was competent to enforce the principal contract, but if they were made subsequent to the principal agreement (ex intervallo), although they might materially modify the terms of the contract, or even end it, they were only available by way of " exception " or defence to an action for performance of the obligation under the principal contract.^ (b) Pacta Praetoria. — " Praetorian pacts " were informal agree- ments that had received legal sanction and were rendered enforce- able by action at law through the medium of the Edict of the Praetor : the chief examples of such pacts were hypotlieca, constitidum, and receptum argentariorum. Hypotheca, or " mortgage," was. an agreement by a debtor that certain of his property, although remaining in his own possession, and subject to his own control, should be a security to his creditor for his debt, and that the creditor should thereby acquire a real right {jus in re) in such property.* Gonstitutum, or the pactum de constitute, was an informal agreement to discharge a debt, either of oneself or of another person, or to give security for its performance on a fixed date, in consideration of the creditor not suing upon the obligation. ' This pact was originally only applicable to money debts, but was ultimately extended by Justinian to agreements relating to all kinds of property, and it was enforceable by the actio de pecunia constitutaj' 1 Of. Dig. xviii. 1, 75. See In diem addictio, post, p. 341. 5 Dig. ii. 14, '7, 5. ' These rules only applied to contracts hondfidei. The rules applicable to the contracts stricti jims, viz., stipulatio, expensilatio, and mutuum, were somewhat different (see Hunter, -ut supra, 549). * See " Hypothec," ^o««, Section 118, p. 371 et seq. 6 See, on Gonstitutum, Justinian, Inst. iv. 6, 8-9 ; Dig. xiii. 5 ; Hunter, Roman Law, 4th ed., 566-568 ; Eoby, Roman Private Law, ii. 86-88 ; Moyle, Institutes of Justinian, 4th ed., 426. 308 PACTA VESTITA [part iv. Beceptum ArgeTdariorum. — -This was a pact or informal agreement by which a banker {argentarius) undertook to discharge a customer's obligation in respect of either having or being about to have in his hands, in ordinary course of business, property of whatever kind belonging to the customer. Such an agreement was originally enforceable by the actio recepticia, but when Justinian merged the two actions de pecunia constituta and recepticia} the rules relating to the former action were amended so as to extend to all cases to which the latter had applied, and to include the latter's special advantages.^ (c) Pacta Legitima. — These were certain informal agreements which were rendered legally enforceable by special Imperial enactment. Such were the pachim de constituenda dote, or a mere promise to give a dowry, and the 2)adum donationis, or a mere promise to make a gift. The Emperors Theodosius and Valentinian enacted, in 428 a.d., that a mere agreement {pactum) to give a dowry should constitute a binding and enforceable obligation, although unfortified by a " stipula- tion " ; ^ and Justinian declared that a mere promise to make a gift was to bind not only the promiser but his heirs, and could be enforced even by the heirs of the donee.* Prior to this enactment of Justinian it was necessary, in order to give legal validity to an agreement that did not involve a valuable considera- tion, that it should either have been expressed in a solemn form — such as nexum, expensilatio, or stipulatio — or have been performed by one of the parties. " Justinian put a promise to give a thing gratuitously upon the same footing as if a price had been agreed upon," and "by giving an action to support a mere informal promise of a gift, departed from the unbroken tradition of Roman Law." = Obligations eoc contractu. -were thus the legal bonds created by both contracts (contractus) in the strict and special sense,^ and also those arising under the informal agreements or pacts that came to be specially recognised and enforceable either by the Praetorian law or by Imperial legislation.'' ' Justinian, I/iM. iy. 6, 8. '' For the advantages of the actio recepticia over the actio de constitiUa pecunia, see Moyle, Institutes of Justinian, 4th ed., 547. 3 Code, v. 11, 6. See "Dowry," ante, pp. 169-175, and specially Section 43, at p. 171. * Code, viii. 54, 35, 5 ; cf. Inst. ii. 7, 2. See " Donation," ante, Part III., Chapter VI., p. 259 et seq., and specially Section 84, at p. 260. ^ Hunter, Roman Law, 4th ed., 550, q.v. " See ante, p. 305. ' See ante, p. 306. SECT. 102] PACTA VESTITA 309 The Justinianian law, as has been already stated/ recognised four great classes of conventions or agreements that were enforceable as contractual obligations in the strict sense — namely, (1) Contracts re ("real" contracts); (2) contracts verhis ("verbal" contracts); (3) contracts litteris ("literal" contracts); and (4) contracts consensu (" consensual " contracts).^ (1) The contracts lie or, literally, "by a thing," were agreements under which an obligation arose by reason of some particular act or fact, and not because of the employment of any particular words or forms, as in the formal contracts of the old jus civile, such as nexvAn, mancipatio, in j%t,re cessio, and stijmlatio. The act or fact which was the thing (res^) that constituted the contract consisted in the delivery by one person to another of some property with the intention, at the time of delivery, of thereby imposing certain obligations upon the other, whether in respect of ownership, possession, or of mere physical detention. Such delivery of the property in any one of four particular modes constituted the " real " contracts distinguished, respectively, as mutuum, commodatum, depositum, a,TiA. pignus ; these were all constituted by mere delivery of property by one person to another, were all what were known as " equitable " contracts, and were wholly dependent for their validity upon the intentions of the parties and not upon the employment by them of any particular words or forms. (2) The contracts verhis (" by words ") were certain agreements that derived their validity and enforceability from the use of certain formal and particular words.* The most important of the " verbal " contracts was the " stipulation '' {sfipula(io), which was a formal and unilateral contract in which an obligation was created by the employment of a solemn form of spoken ^ question and answer. It was essential for this purpose that both of the parties should be present at the ceremony. In the earlier stages of the history of the stipulation the only words that could competently be used in asking the question and giving the answer were spondes and spondeo, signifying " Do you solemnly engage yourself?" and "I do solemnly engage myself," the verb spondere having a peculiarly solemn signification; moreover, the sponsio, as the stipulation was originally called on account of the use of these words, was a form of contract essentially pertaining to the jus civile, and as such was avail- 1 Ante, p. .304. 2 Justinian, Inst. iii. 13, 2 ; Dig. xliv. 7, 1 pr., and 1. ; Gaius, Inst. iii. 88, 89. 2 Hence the name " real " contract. * See Justinian, Inst. iii. 15. * The contract was essentially an oral one, but the agreement was sometimes subsequently expressed in writing for the sake of greater certainty. 310 PACTA VESTITA [part iv. able only to Roman citizens, i and probably to non-citizens enjoying the privilege of commercium. In course of time other words with a less solemn signification came to be used, such as "Do you promise T' (promittis), and "I do promise" (promitto) ; "Will you give?" (dabis), and "I will give" (dabo) ; "Will you do?" (facies), and "I will do" (faeiam) ; but until towards the end of the Republic these simpler forms were stricti juris, and as such binding only between citizens. The later forms of the sponsio had hecome juris gentium by the end of the Republic, and Gaius speaks of them as such and as consequently binding between citizens and non-citizens. The law of Justinian, following a Constitu- tion of the Emperor Leo pubhshed in a.d. 472, did not insist upon the use of any strict form of words, or even that the words should be in the same language, provided that the procedure of question and answer was followed, that the answer agreed with the question, and that the words used sufficiently clearly expressed the intention of the parties.^ In the " stipulation " the obligation was created by the use of the formal words, which gave thereafter a right of action upon them irrespective of whether there was any true ground of debt ; but this disadvantage was ultimately remedied by the introduction of words, in certain cases, excluding action if there was fraud, either prior or sub- sequent to the contract, on the part of the creditor,^ and by praetorian " exceptions " or equitable defences, such as the exceptio doli or plea of fraud.* There were two other forms of " verbal " contract in the Roman Law besides the stipulation, namely, Dictio dotis and jurata promissio liberti. Dictio dotis was an early form of agreement, obsolete in the later law, to give a dowry, and was competent only to the intended wife, to the wife's father or other ascendant, or to the wife's debtor by her express direction, while any other persons who gave, or who promised to give, a dowry (dos) required either to transfer the property or to enter into a formal stipulation with regard to it.* The " verbal " contract known as jurata promissio liberti was con- stituted by an oral promise accompanied by a solemn oath made by a freedman to his patron immediately after his manumission, by which he undertook to perform for the latter certain specified services.^ ' Gaius, Inst. iii. 93. 2 Justinian, List. iii. 15, 1 ; Gaius, Inst. iii. 92, 93. ' This was known as the clausula doli. * See upon the stipulation and its history and place in the development of the Roman law of contract, Muirhead, Roman Law, 2nd ed., 213-219 and 256-258 ; Buckland, The Origin aiid History of Contract in Roman Law, 15-22 ; Poste, Listitutes of Gaius, 4th ed., 333. ° See "Modes of Constituting Dos," ante, Part II., Section 43, p. 171. " Cf. Poste, Listitutes of Qams, 4th ed., 338. See also ante. Part II., Section 26, pp. 125, 126. SECT. I02] PACTA VESTITA 311 Both the verbal contracts of Dictio dotis and jurata promissio liberti differed from the stipulation in not being put into the form of question and answer. 1 (3) The contracts litteris^ or " in writing," of the Roman Law were certain special obligations based upon particular written forms, such as the entry of a debt, either made mutually in the account books of the creditor and debtor or in the books of the creditor with the consent of the debtor, known as ea:pensilatio or as rwrniiut transcriptitia (i.e. " trans- ferred entries "),* or written acknowledgments of debt, known either as chirographa or as syngraphae. During the simpler period of the Roman Republic the regular keep- ing of private account books was regarded as a public duty invested with almost a religious character. Daily transactions were jotted down on rough memoranda (known as adversaria), and once a month these memoranda were entered in the principal ledger, known as the codex or tabulae. The entry in the domestic ledger was known as expensilatio, and if the debtor had made a corresponding entry in his account book this was called acceptilatio. The entry by the creditor alone was admis- sible evidence of debt, although it might be controverted, but a corre- sponding entry by the debtor was conclusive proof of his consent and of the existence of the debt, and the two entries together created an obligation litteris. The entry in the codex was equivalent to the interrogation in a stipulation, and had the same effect as if the parties had entered into a formal stipulation ; the entry created a contract, and was not merely evidence of the existence of one. The actual ground of obligation in expensilatio was the implied consent of the debtor to the creditor's entry of the debt. By the time of Cicero the domestic ledger of codex, upon the entries in which the obligation of expensilatio or nomina transcriptitia, was based, was almost obsolete, and, except in the case of bankers or money-lenders, was entirely so by the time of Gaius, when the nomina transcriptitia had assumed the character of detached written acknowledgments of debt in the form of either chirographa or of syngraphae ; these, indeed, had been in use in the time of Cicero, and had co-existed with expensi- latio, which latter, however, was competent to Roman citizens only, while peregrins could avail themselves of chirographa (plu.) or of syngraphae.* Syngraphae were written acknowledgments of debt signed by both creditor and debtor, whereas cMrographum (sing.) was a written acknow- ' See on the verbal contracts and the stipulation, Cuq, Institutions -Juridiqiuis des Romains, ii. 373 et seq. ^ Justinian, Inst. iii. 21 ; Gaius, I'iist. iii. 128-134. See also Cuq, iit sup,, 378. ' See Gaius, Inst. iii. 128. ' Gaius, In^st. iii. 134. Chirographa and syngraphae were of Greek origin. 312 PACTA VESTITA [part iv. ledgment of debt signed only by the debtor, and delivered by him to the creditor. By the time of Justinian the true " literal " contracts of eoepeiidlatio, chirograplmm, and syngraphae were no longer in use,^ and their place was taken by a general acknowledgment of debt known as cautio. Unlike the true literal contract, however, cautio did not itself create a contract, but was merely available by way of proof of the existence of one; nevertheless, since, by the law of Justinian, cautio as an acknowledgment of debt could not be repudiated after two years, it may be said to have become thereby equivalent to, as well as to have superseded, the true " literal " contract, because the same " exception " which protected the latter contract ^ was barred after the lapse of that time. The creditor, however, required to take proceedings upon the liability within a reasonable time thereafter, or the debtor might otherwise bring a condictio to reclaim the document of debt, or, if the creditor were absent, the debtor might make perpetual his exceptio or defence by a formal entry in the records of the Court.^ (4) The contracts consensu,* or " by consent," were those created by the mutual consent of the parties, and which did not require for their constitution and validity any writing, or any special acts, or particular words or formalities, the mere consent of the parties being held sufficient to create a contract binding both parties at the same time, without the necessity of anything further being done by one party in order to bind the other, as in the " real " contracts.* The "nominate" "consensual" contracts, according to Justinian's classification, were four in number, namely — (1) Emptio-venditio or sale ; (2) Zocatio-condtictio or hire ; (3) Societas or partnership ; and (4) Muiiilatum or mandate or agency. These contracts, completed by mere consent alone, to the effect of being enforceable against either party by the other, pertain to the jus gentium,^ and were all bilateral ; they were contracts honae fidei — i.e. ^ Inst. iii. 21 pr. 2 Exceptio dolt; Exceptio non numeratae pecuniae {Code, iv. 30, 3). 5 In the Corpm Juris Civilis the term chirograrphum generally signifies a cautio, or a document which is evidence of the existence or of the discharge of a debt (Poste, p. 365). See on the " Literal " contracts, Moyle, Institutes of Justinian, 4th ed., 492-496 ; Poste, Institutes of Gaius, 4th ed., 362-366 ; Sohm, Institutes of Roman Law, 3rd ed., 391-396 ; Hunter, Roman Law, 4th ed., 466-471 ; Sandars, Institutes of Justinian, 8th ed., 359-361 ; Eoby, Roman Private Laiv, ii. 64-66, and 279-296 (Appendix to bk. v.). * Justinian, Inst. iii. 22 ; Gaius, Inst. iii. 135-162. ^ Justinian, Inst. iii. 22, 1 ; Gaius, Inst. iii. 136. " See on the Jus gentium, Part I., Chapter II., Section 4, p. 60. SECT. 103] INNOMINATE CONTRACTS 313 " of good faith " — based essentially upon the intention of parties, and as such were enforceable by. actions honac fidci, or actions under the Praetorian law, into which considerations of circumstances and equity were admitted.^ All the various kinds of agreements that have been mentioned as creating obligations ea; co9i and also Munro, The Lex Aquilia (Dig. ix. 2), Camb. University Press, 1898. 320 DELICTUAL OBLIGATIONS GENERALLY [part iv. tionally through fault and negligence. The obligation upon the wrong- doer ex delicto under the later law might be to pay damages, or to pay a penalty, or to pay both damages and a penalty, according to circumstances.^ ° ' See further, and more particularly, ujDon " Delicts " and " Quasi-delicts," po»t. Chapters XI. and XII., pp. 444 and 462 respectively. CHAPTER V Essentials of a Valid CoNXRAeTUAL Obligation ^ In considering the requisites and the characteristics of a valid con- tractual obligation it is necessary to distinguish between (a) the essence, (b) the nature, and (c) the accidents of a contract. A thing is of the essence of a contract if the latter could not exist without it, as, for example, a thing to be sold and a price in a contract of sale. A thing is of the nature of the contract if it is included in it by mere operation of law without the necessity of being expressed. A thing is an accident of a contract if it forms no part of the contract unless it is expressly made such, and is not inherent in the nature of the contract itself.^ In order to render a contractual obligation valid and effectual the person granting tlfe obligation must be legally capable of contracting, and the obligation must be undertaken for hiinself, unless he has been either expressly or by implication authorised to act for another ; for no one can contract for and bind another person without that other's authority: moreover, the act to be done in respect of the obligation, or, in other words, the object of the contract, requires to be (a) lawful, (b) possible, (c) definite ; and the consent to the contract must be both [a) voluntary and (b) mutual. It will thus be seen that the considerations with regard to the validity of a contractual obligation have a threefold aspect according as they relate to (1) the person contracting, (2) the act or object of the contract, and (3) the consent to the contract. With regard to the person contracting, the consideration is (a) as to his legal capacity to contract,^ and (b) , as to whether he is contracting in order to bind himself or another person ; with regard to the act or object of the con- tract, the consideration has reference to whether the act is (a) lawful. ' Cf. Cuq, Institutions Juridiques des Romains, ii. 352 et seq. ^ Cf. Mackenzie, Roman Law, 7th ed., 207 ; Pothier, Traiti des Obligationes, pt. i., ch. i., s. 1, Art. 1, s. 3 ; Girard, Manuel de Droit Romain, 5th ed., 443. ^ See on "Legal Capacity of Persons," ante. Part II., Chapter III., p. 83 et seq. 21 321 322 VALID CONTRACTUAL OBLIGATION [part IV. or (6) possiUe, or (c) definite, or any or all of these ; and with regard to the consent to the obligation the consideration is as to whether the consent is both (a) mutual and (b) voluntary. (a) lawful Object. — The act undertaken to be done must be a lawful one, so a promise in a contract would be void if it was to do an act which was either prohibited by law, or was contrary to morality or to public policy. (b) Possible Object. — The act to be done under the contract, or the obligation undertaken, must be possible of performance ; no one can bind himself to do something that is, from the very nature of things, impossible. The impossibility of an act may be either («) physical or (6) legal ; for example, an undertaking to sell something that does not exist, and that could not, from the very nature of things, exist, or to do something obviously beyond human power and capacity, would be void on the ground of physical impossibility; whereas a promise to sell something that was extra commercium would be legally impossible, there being nothing in the physical character of the thing to prevent the performance of the promise, and the impossibility arising solely from the prohibition of the law. The impossibility must be something essential and absolute, so that if the act to be done was only temporarily impossible, but would or might become possible, the undertaking would be valid. If the act to be performed in respect of the obligation, although itself quite possible of performance, was qualified or limited by an impossible condition,^ the whole agreement would be thereby rendered null and void. (c) Definite Object. — The act to be done in respect of the obligation ought to be sufficiently clear and definite for the parties to be able to understand exactly the nature of the undertaking to which they have agreed ; if the nature of the act to be done is so vague or indefinite as not to be clearly intelligible, it cannot be enforced. Consent. — All contracts imply consent,^ and the consent must be both (a) mutual and (b) voluntary. "Mutual" consent is the agreement of two or more persons "upon the same thing in the same sense." ^ In order to establish an enforceable obligation or promise the offer must have been accepted in the same sense as that in which it was made, and as it was intended to be ' See " Conditional Obligations," post, Section 106 (c), at p. 336, and Section 109, p. 339. 2 Cf. Dig. xliv. 7, 3, 1. 2 Consensus in idem plaoitum {Dig. ii. 2, 14, 1, 2). SECT. 104] ERROR OR MISTAKE 323 understood. Intention, however, as a mental act can only be expressed through the medium of language or of acts, and error or mistake may in that way arise which may invalidate the contract.^ " Voluntary " consent necessarily implies that the parties have, of their own free will (voluntas), agreed to be bound in full understanding of that to which they were consenting. The Roman Law required that, in order that the consent should be regarded as " voluntary," it must not have been obtained (a) by violence {vis), (b) by fear or intimidation {inetus), (c) by fraud (dolus), (d) without a proper consideration (sine ■causa), or («) for an illegal consideration (injusta causa)} Section 104. — Eeeoe or Mistake and its Effect upon Contractual Obligations ^ Consent is the essence of all contractual obligations. The consent xaust, however, be true consent, and not merely apparent. Real consent exists only when the parties to the contract agree, both mutually and voluntarily, " upon the same thing in the same sense " ; * the ititention of the parties must coincide in order that the agreement should consti- tute an enforceable obligation, or, in other words, the offer must be accepted in the same sense as that in which it was made. But inten- tion is a mental act to which process expression is given, and which ■can only be known or ascertained by means of language, or aets, or both. Owing, however, to the uncertainty or the indefiniteness of the language used, or of the acts employed, as a means of expressing the intention of the parties, misunderstanding, or, as it is generally styled, " error " (error) may arise. Error is of two kinds — (1) essential, and (2) non-essential, which, in the Roman Law, were distinguished respectively as error in corpore -and error in substantia or materia. Essenticd Error. — An " essential " error (error in corpore) is one of such a nature that it entirely prevents an agreement between the parties upon the same thing in the same sense, and consequently vitiates any consent.^ "Essential" error may arise in any of three ' Cf. Hunter, Roman Law, 4tli ed., 581. ^ See further on " Voluntary Consent," post. Section 105, p. 326. 2 See Hunter, Roman Law, 4th ed., 580, 584 ; Girard, Manuel dn Droit Romain, .5th ed., 460, 462 ; Buckland, Roman Private Law, 287-289 ; Sohm, Institutes of Roman Law, .3rd ed., 210, 211. * See p. 322, note 3. " Cf. Dig. xxxix. 3, 20, Nulla enim voluntas errantis est ; also Dig. 1. 17, 116, 2, Noii videntur qui errant consentire. 324 ERROR OR MISTAKE [part iv. ways — namely, as to (1)' the subject of the contract or the thing^ promised (corpus), (2) the nature of the obligation, and (3) the person bound by the agreement. Thus a man may promise a thing to a,nother who really means to accept something else ; ^ or parties may agree upon the thing, but each understand different kinds of obligations in connec- tion with it ; or a man intending to bind himself to a particular person may really bind himself to another.^ As an example of a mistake as to the subject of the contract or the thing promised (corpus), A. promises a thing, X., to B., who, through mis- understanding, intends to accept a different thing. Thus A. agrees to sell to B. for a certain agreed price a farm known by the special name of X., but -S. is mistaken as to the name, by which he understands and intends to buy quite a different farm ; there would be, in such a case, no contract of sale, because what the one intended to sell the other did not intend to buy.^ If, however, both parties knew the same property merely by different names the contract would be good ; for a mistake in the name is immaterial if there is truly consent as to the same thing in the same sense.* As an example of an error as to the nature of the obligation under- taken, M. agrees to let a farm to S. for a certain period; S., misunder- standing, in good faith, agrees to buy the farm; there would be no- contract in such a case, for the one has in view the duties attaching, to the contract of sale, and the other those attaching to the contract of hire.'' As an example of an error with regard to the person bound by the agreement, A. agrees to advance money to B., whom he knows by- repute to be an honest man. G. brings to A. another man of the name- of B. who is not respectable, and he induces A. to lend the money to- B. under the mistaken belief that he is the man B. whom he had in his mind when he made the promise. In this case there would be no- contract, and both C. and the spurious B. would be guilty of theft and of fraudulently obtaining the money.^ Non-Essential Error. — A "non-essential" error (error in substantia or materia) is one that does not prevent an agreement being made- between the parties with regard to the same thing, but which may, in certain circumstances, entitle one of the parties to be freed from the- obligation. In other words, an error is "non-essential" when it has. 1 Justinian, Inst. iii. 19, 23. 2 Cf. Hunter, ut supra, 581. ^ Dig. xviii. 1, 9 pr. * Dig. x\'iii. 1, 9, 1 : Nihil enim facit error nominis, cum de corpore constat. Cf^ also Dig. xix. 2, 52. ■' Dig. xliv. 7, 57 ; cf. Dig. xiii. 1, 18 pr. and 1. " Dig. xlvii. 2, 52, 21 ; xlvii. 2, 66, 4. «ECT, 104] ERROR' OR MISTAKE 325 reference to the substance or the material qualities of the object of the •contract, or to the motive or purpose of the agreement, but not to the •object itself. The parties may have agreed upon the same thing in the same sense, so that there would be no error in corpora or " essential " ■error, Ijut the one party may have, unknown to the other, and in perfect good faith, a wrong or mistaken belief as to the qualities of the subject, •or as to the motives and purpose of the agreement. Whether or not a " non-essential " error would suf&ce to invalidate an agreement depends upon the materiality or degree of error as to the qualities of the subject, which is, in each case, a question of circumstances. Thus A. and B. ■agree upon a specific article X., and B. undertakes to buy it from A. for a certain price; but B. in agreeing to this was under the mistaken belief that the thing was made of silver, while A. knew that it was made of (say) lead or tin, but was unaware of the mistaken belief possessed by B. In such a case the agreement would be voidable because the mistake was as to the actual material of which the thing was composed, each party contemplating an entirely different category •of merchandise ; ^ similarly, the contract would be voidable if wine was bought that was in reality vinegar, unless it only became vinegar when sour after the sale, in which case the sale would be good, for the buyer would have got what he intended.^ So also the sale of a slave would be voidable if it was believed to be of one sex when the seller, in good faith, knew it to be of the other, for the distinct uses to which slaves of different sexes were put placed them in different categories of merchandise; on the other hand, however, the purchase of a female slave as a virgin when she was not would not vitiate the contract, for the error was merely one as to the inherent quality of the subject.^ B. agrees to buy from A. at a fixed price a particular article which be believes to be of the finest quality of gold. A. knows that the article is of an inferior quality of gold, but is unaware of B.'s erroneous belief as to the superiority of its quality; in this case the contract would be good because there was no mistake as to either the particular ■article or the actual material of the object, but merely with regard to the quality of the material of which the subject of the contract {corpus) is composed.* 1 Dig. xviii. 1, 9, 2. ^ Dig., ut supra. 3 Cf. Dig. xviii. 1, 11, 1. ^ Dig. xviii. 1, 10. Other examples of non-essential error may be cited : <(1) Article sold believed to be gold but really mainly bronze — sale good because 326 VOLUNTARY & INVOLUNTARY CONSENT [part iv. It will thus be observed that in cases of "non-essential" error the parties are agreed upon the same thing, but not in the same sense ; both parties are under an innocent mistake unknown to the other. In one case, however, the mistake may be more serious than in another ; it may relate to the actual nature of the subject, although not to the subject itself, or it may be only with regard to certain qualities of the subject ; but an error in relation to the quality of the subject of the agreement may invalidate a contract if its effect is to place the subject in a different category of merchandise from that which, was contemplated by the parties. The degree or materiality of error in substantia or materia that would suffice to invalidate a contract was the subject of much dispute amongst the Boman jurists, and in Roman practice much difficulty was experienced in attempting to determine the point; the multitude of cases cited in the Roman law books are indecisive and often conflicting ;. the general conclusion is that the matter is incapable of exact definition,, depending upon the whole circumstances of each particular case.^ Section 105. — Voluntaky and Involuntaey Consent The consent to a contractual obligation, besides being mutual, requires to be "voluntary" or free consent; consequently an agree- ment based upon a consent that was apparently voluntary but which was not really so was invalid. So a promise or undertaking that had been obtained by means of force, whether actual physical violence (vis), or moral compulsion and intimidation (inehcs), or by fraud, could not be enforced. Force — -fear — -fraud (vis, nietus, dolus). — It is obvious that force and fraud are inconsistent with voluntary or free consent, and therefore a promise given in such circumstances does not bind anyone. The two terms vis and nietus correspond to what is nowadays usually styled "force" and "fear," and dolus is equivalent to fraud, whether actual or constructive. In the Roman Law the strict distinction between the two terms was- that vis signified actual physical violence,^ while metus meant moral subject consisted partly of gold (Dig. xviii. 1, 14). (2) Table sold covered with silver, but believed by the purchaser to be solid — sale void (Dig. xviii. 1, 41, 1) ; but c/. Ulpian (in Dig. xviii. 1, 14), who holds the contrary view in the analogous, case of a thing merely gilt with gold. ' Cf. Hunter, Ro-nxan Law, 4th ed., 582, 583. 2 Dig. iv. 2, 2. SECT. lOS] VOLUNTARY & INVOLUNTARY CONSENT 327 compulsion or intimidation, or a threat of such present immediate evil as would shake the constancy bi a man of ordinary firmness ; ^ but in ordinary practice the term " violence " usually comprises both physical and moral force, and vis and metus are ordinarily employed in conjunc- tion as a single legal expression known as "force and fear," or simply as "intimidation." Vis, as mentioned incidentally above, signified, literally, actual physical force and the actual exercise of superior physical force in order to compel the giving of the promise in the contract ; ^ while metus meant, literally, " fear," and in a legal sense signified " intimida- tion," or a threat of actual injury made in order to compel the giving of the promise through fear of the consequences of refusal. In order, however, to constitute metus or intimidation in this sense, it was essen- tial, according to the Roman Law," that the threal^should be one of such present immediate evil as would shake the constancy or will of a man of ordinary and reasonable firmness — having regard always, however, to" the age, sex, and the mental and moral condition of the person. It was necessary that the force which had induced the giving of the promise, whether it was physical force or merely moral compulsion, should amount to "an immediate present danger" or to a fear of injury that would immediately follow upon a failure to give the promise required ; consequently a mere apprehension of possible future injury was not sufficient to invalidate a contract.^ The effect upon the con- tract was the same whether the physical violence (vis) or the moral violence {metus) was on the part of the person in whose favour and for whose benefit the promise was given; or was on the part of a third person who was not a party to the contract ; and the defence of " violence " or of " intimidation " was available, no matter by whom the violence or the intimidation had been committed.* In order that violence or intimidation should vitiate an agreement it required to be illegal; it was not every form of violence that, by the Roman Law, constituted an illegal act, and there were circum- stances in which violence or intimidation might be even justifiable. As examples of violence or intimidation invalidating an agreement as being illegal in its nature, the following will suffice : — A promise extorted from a man by shutting him up in a house until he should give 1 Dig. iv. 2, 5-7. 2 Vis est majoj-is rei iinpetus qui repelli non potest {Dig. iv. 2, 2). 3 Dig. iv. 2, 4-8, 9 pr. 4 Dig. iv. 29, 1. 328 VOLUNTARY & INVOLUNTARY CONSENT [part iv. it ; 1 a promise extorted by threat of death or torture ; ^ money given under threat to destroy the title-dee'ds of the giver's freedom, which are • in the other's possession;^ the master of an athlete slave promises money to a usurer which he does not owe him because the usurer detains his slave, and threatens to prevent him competing in the public games unless and until the money is paid ; * a man promises to pay a sum of money to a magistrate who threatens to condemn him, although innocent, unless he does so ; the promise is void, because the threat is an unlawful exercise of the magistrate's authority.' The following are examples of violence or intimidation that was not considered illegal, and which consequently did not vitiate the consent to an agreement : — A stipulation made by a party to an action that he will ensure his neighbour — the complainant — from loss in the event of the stipulator's house falling down, made on a threat by the Praetor that if he does not so stipulate he will give the house into the custody of the other party ; the promise is here valid because the intimidation is, in the circumstances,*fei lawful exercise of the Praetor's authority.^ The patron of a freedwoman, who has been wrongfully sued by her, threatens to reduce her again to slavery on the ground of " ingratitude," and she induces him to refrain from doing so by promising him a sum of money; the promise is valid, for the threat was one which, in the circumstances, the patron was legally entitled to use7 Threatening language used in the heat of an angry altercation (in ricc(i) did not amount to intimidation {metus)? Bohis, or " Fraud." — In the Roman Law of Contraet clohis is a wide term embracing every kind of failure in honest dealing, whether actual or constructive, and it signified generally such fraud or deception in obtaining the consent or promise as would render the enforcement of the contract inequitable or unfair.^ The agreement was only voidable, however, on the ground of dolus if the fraud had been perpetrated by a person who was a party to the contract; if the fraud had been com- mitted by a third person, who was not a party to the agreement, the contract was valid, but the person bount^ by the contract could sue the third person who had defrauded him for reparation on account of his 1 Dig. iv. 2, 22. 2 Code, ii. 20, 7. 3 Dig. iv. 2, 4 ; iv. 2, 8, 1. 4 Dig. iv. 2, 23, 2. s Dig. iv. 2, 3, 1. " Dig. iv. 2, 3, 1. ' Dig. iv. 2, 21 pr. * Code, ii. 20, 9. See, for these and further illustrations of legal and illegal violence. Hunter, Roman Law, 4th ed., 594, 595. ^ See, for the definition of dlolv^ malus by the jurist Labeo and approved by Ulpian, Dig. iv. 3, 1, 2 : Omnis calliditas, fallacia, machinatio ad circv.mveniendum, fallendum, dedpiendum altenim adhibita. SECT. los] VOLUNTARY & INVOLUNTARY CONSENT 329 f raud.i The burden {onus) of proving fraud was placed upon the person who alleged it.^ Dolus, as a Roman legal term, occurs chiefly in the two forms of (1) suggestio falsi and (2) suppressio veri. Su^gestio -falsi, or, literally, " the statement of something false," was an expression used to signify the representation as a fact of something that the person making the representation either knows not to be, or does not believe to be a fact. Suppressio veri, or, literally, "the suppression of something true," was an expression used to signify the intentional concealment of a fact by a person having knowledge or belief of the fact. Expressed otherwise, suggestio falsi is the statement of something which is not true, while suppressio veri is the non-statement of something which is true, the object in both cases being the same, namely, to induce the other person to do something, which, but for the deception, he would probably not do, for the first person's benefit. The following are examples of suggestio falsi : — A seller lies to a buyer with regard to the skill or the peculium of a slave that he is selling, and must consequently either make good to the buyer the difference in value of the slave or submit to the cancellation of the sale.^ A man sells to another man a female slave, stating that she had borne children, which she had not done, or stating that she is a virgin knowing that she has borne children ; in such a case he required to submit to either reduction of the price or to cancellation of the sale.* The following are examples of suppressio veri : — A man sells to another a property without informing the buyer of an annual burden upon it of the existence of which he is aware ; he would have to submit to a deduction from the price proportionate to the diminished value of the property with the burden attached to it.° A man sells to another a slave that he knows is given to stealing, and says nothing as to the fact ; in such a case the seller was liable in damages even before the slave had stolen anything.^ A man sells to another an ox suffering from a contagious disease, which affects and destroys the- other's cattle ; if the seller knew that the ox was diseased he was liable, for his failure to disclose the fact, to pay the value of the whole of the ' Dig. xliv. 4, 2, 1. His remedy was the actio de dolo. ■^ Code, ii. 21, 6. 3 Paul, Sent. ii. 17, 6. ■* Of. Big. xix. 1, 11, 5. ° Dig. xix. 1, 41 ; xix. 1, 21, 1. If a seller knew of the existence of a right of servitude enjoyed by the property, and did not inform the buyer, he was liable in damages if the buyer lost the right through " non-use " (non utendo) (Dig. xviii. 1, 66, 1) ; but a seller was not liable for not informing a buyer of the existence of servitudes on the property if he himself did not know of their existence (Dig. xxi. 2, 75 ; xix. 1, 1, 1 ; xviii. 1, 66 pr.). 8 Dig. xix. 1, 4 pr. 330 VOLUNTARY &. INVOLUNTARY CONSENT [part iv. cattle so lost, but if he did not know he could only claim from the buyer what the latter would have given if he had known that the ox was- diseased.! Dolus in a special sense might also arise, or be legally inferred, from the fact that the contract had been made either (a) without a valuable consideration (sme causa) or (b) for an illegal consideration {injusta or turpis causa). The mere absence of a consideration or inducement to give the promise did not of itself necessarily invalidate a contract, because it might be the fact that either (a) the parties did not intend a considera- tion, or (&) that a consideration was intended, and was, in the particular circumstances, reasonable and suf&cient. If, however, neither of these elements was present, the contract was " without consideration " {sine causa), and to insist upon its performance would constitute dolus as being contrary to natural fairness or equity.^ When the " consideration " or inducement offered in order to bring about the giving of the promise was an illegal one {injusta causa), the contract was vitiated by dolus and could not be enforced.^ ' Dig. xix. 1, 13 pr. See also Dig. xix. 2 ; xix. 1. See Hunter, Roman Law,, ith. ed., 596, 597, for these and many other examples of suggestio falsi and suppressio veri. 2 Of. Dig. xliv. 4, 1, 1. ■* Code, iv. 7, 5 ; iv. 7, 1. It is necessary to clearly distinguish the promise in a contract from the inducement to give the promise. ch;apter VI The. Promise in a Conteact We have considered how contracts or agreements might be invalidated by reason of the mode in which they originated, and because of the way in which the promiser was induced to give his promise, whether that way were by force (vis), or intimidation (metus), or fraud (dolus), or without a consideration (sine causa), or for an illegal consideration (irijusta causa). The promise in the contract, as distinguished from the consideration or inducement to give the promise, might itself vitiate the contract on acpount of either its («) impossibility, or (b) illegality. The Eoman Law required that the promise in a contract, in otder to be valid, should be (a) possible, (h) legal, and (c) made by a person legally capable of contracting. (a) Possible Promise. — ^The act to be done in respect of the promise must be possible of performance; if it is impossible the promise is void.i Impossibility may be either physical or legal.''^ A promise to sell something eostra commer^ium^ would be either physically or legally impossible, according as the incapacity to be held in private ownership arose from the very nature of the thing itself or merely from legal enactment. " Impossibility " of performance in the strict legal sense only exists when performance is humanly impossible from the very nature of things, and the act is one which no human person can do,* but there is no " impossibility " present that is sufficient to invalidate a promise when a person merely undertakes to do what he himself cannot perform, if the act is, at the same time, one which can quite humanly be done,^ Thus a promise to sell something non-existent would be void,'' as when 1 Of. Dig. 1. 17, 185 : Impossibilium nulla ohligatio est. 2 Of. ante, p. 322. 3 See on things in convmercio and extra conimerciiim, Part III., Section 67 (h), p. 217. * Cf. Justinian, Inst. iii. 15, 5 ; Dig. xlv. 1, 73 pr. ; xiii. 4, 2, 6. 5 Cf. Dig. xlv. 1, 137, 5. " See also post, Section 123 (a), p. 388, "What could not be the subject of Sale." S31 332 THE PROMISE IN A CONTRACT [part iv. a man stipulates for something which either does not now or cannot exist, such as a slave or a horse that has died but which he believes to be alive, or a free man whom he believes to be a slave, or a res religiosa which he does not know to be extra commerciuin, or a mythical creature that never did and cannot, from the nature of things, exist, such as a hippocentaur.i On the other hand, a promise is not " impossible " merely because the promiser himself cannot perform it, as if, for example, a man were to undertake to deliver to another a quantity of a particular mineral or material which he has not got ; for although he has not got it, there is nothing humanly impossible about obtaining it, and so the promiser would be liable for breach of his promise if he failed to deliver what he had promised.^ The impossibility of performing the promise may be either («) known or unknown to both parties, or (h) known to one only of the parties. In the former case the promise would be void,^ but in the latter case the party in knowledge of the impossibility would be liable for his failure to perform. Thus, for example, if a contract for the sale of a house was entered into between two persons, the house being in reality non-existent at the time of the sale owing to having been destroyed, as by fire, there would be no sale, and the promise in the contract would be void on the ground of impossibility if both parties were ignorant of the fact ; but if the buyer was aware of the previous destruction of the property, he would be bound by the contract, and liable to pay the whole price ; on the other hand, if the seller alone knew of the non-existence of the subject, the contract would be void, but the seller would have to compensate the buyer for his- fraud (dolus) ; if both seller and buyer knew of the destruction of the property, the promise would be void, and there would be no contract or liability, for both parties would be equally guilty of dolus^ (b) Legal Promise. — A promise was legal, according to the Roman Law, if it was not contrary to {a) some particular law, or (6) public morality, or (c) public policy.^ Thus particular laws forbade certain acts; the Twelve Tables ^ Gaius, Inst. iii. 97, 97a ; Justinian, Inst. iii. 19, 1. 2 Cf. Dig. xlv. 1, 137, 6. ^ Dig. xviii. 1, 15 pr. * Cf. Dig. xviii. 1, 57 pr., 1, 2, 3. Cf. also Dig. xi. 7, 8, 1 ; a man knowingly sells as in oormnercio a thing that is extra cornvmercinm ; the contract was void, but the seller would be liable in damages to the buyer for his fraudulent mis- representation. 8 Code, ii. 3, 6. .SECT. io6] QUALIFICATION OF PROMISE 333 declared it to be unlawful to sell stolen property ; ^ a Senatus-Conmltum prohibited the sale of fugitive slaves,^ and the sale of grain that had been stored for public distribution was similarly forbidden ; ^ a promise to kill or to injure a person, or to steal, or to commit some other criminal act,* or a promise to hold a man free from liability to punishment,' was void on the ground of both public policy and public morality ; on the ground of public policy, also, a promise to marry some one already married when that person should obtain divorce was void.® (c) Promise must he by some one Legally Capable of Contracting. — The question of legal capacity to contract, and the various modes and circum- stances in which it might be qualified or limited, has been already considered^ Section 106. — Qualification ok Limitation of the Promise IN A Contract ■* A promise in a contract may lae either (« ) simple and unconditional, or (6) qualified or limited. The qualification of the promise may be («) with regard to the time of performance, or (b) with regard to the place of performance, or (c) in respect of a condition attached to the promise. A limitation of the promise in any of these ways affects either the validity or the operation of the contract in a greater or less degree, according to the particular terms of the qualification." (A) Simple and Unconditional Promise. — This is a promise without qualification or limitation of any sort. (B) Qualified Promise. — (a) Qualification of Promise as to Time of Performance. — A promise is said to be qualified as to time when a 1 Dig. xviii. 1, 34, 3. ^ Dig. xviii. 1, 35, 3. 3 Code, iv. 40, 3. * Justinian, Inst. iii. 19, 24 ; Iiwt. iii. 26, 7 ; Gaius, Inst. iii. 157 ; Dig. xlv. 1, 26, 27 ; xvii. 1, 22, 6. ° Dig. xiii. 6, 17 pr. ; ii. 14, 27, 3. But although a promise not to sue a wrong- doer if a wrong should be afterwards committed was illegal and void, an agree- ment not to sue entered into after a wrong had been already committed was competent {Dig. ii. 14, 27, 4). " See for many further examples of impossible and illegal promises, Hunter, Roman Law, 4th ed., 598-601. ^ See Part II., Chapter III., pp. 83-101. ' 8 Cf. Justinian, Inst. iii. 15, 2-5 ; Dig. xlv. 1, 46 pr. ; 1. 16, 213 ; xlv. 1, 56, 4 ; xlv. 1, 115, 1 ; 1. 15, 54 ; xlv. 1, 73 pr. ; xiii. 4, 2, 6. ^ The qualification or limitation of the promise in a contract with regard to the time or to the place of performance, or by a condition, is frequently signified by the term " modality." 334 QUALIFICATION OF PROMISE [part iv. particular time for performance is agreed upon by the parties. According to the Eoman Law, if no particular time was fixed in the contract performance was immediately exigible, and could be at once demanded.^ The nature of the circumstances, however, might render an actually immediate performance (other than a promise to pay money) impossible, and the law required that in -such circum- stances a reasonable time must be allowed by the creditor for perform- ance. What is a " reasonable " length of time for performance depends upon and varies according to the nature of the contract and the circum- stances of each case. Thus, for example, in the case of a building, the builder must be allowed the time that would be required by an ordinary or average builder,^ and if any accident should occur to cause delay, auch as fire, allowance must be made and a longer time be accorded.^ Similarly, if two persons living in the same city were to agree that one was to pay to the other money at a place situated at a distance, what is a " reasonable " time to allow for the performance is a matter in the discretion of the Court, who will consider how long an averagely active man would take to cover the distance ; the debtor is not to be required to go through storm and tempest, or to travel continuously by night and day ; nor, on the other hand, is he entitled to linger on the way, but he must make such progress as might fairly be expected having regard to his age, the state of his health, and the season of the year. If, however, he should cover the distance and arrive sooner at his destination than might have been reasonably expected, the money would be due and exigible immediately upon his arrival.* An express provision in a contract with regard to the time of performance was construed and applied strictly. Until the time specially agreed upon and fixed for performance of the promise in the contract had arrived, no claim for performance could be made by the creditor ; on the other hand, however, if the contract provided that performance should be demanded within a certain time, the promise could not be enforced and performance could not be demanded after the lapse of the specified period.^ If the contract was one for the performance of an act — such as the building of a house — within a certain time, no action could be brought for failure to perform the act until the whole time had elapsed, even I Dig. xlv. 1, 60 ; xli. 1, 41, 1 ; 1. 17, 14. ^ Dig. xlv. 1, 1.37, 3. •* Dig. xlv. 1, 15. ■• Dig. xlv. 1, 137, 2. ■' See " The Time of Performance," jjost, Sectiori 107, p. 337. SECT. io6] QUALIFICATION OF PROMISE 335 ■although, owing to delay, it was obviously impossible that the promise could be fulfilled within the stipulated time.^ If the time or day (dies) fixed for performance of the promise was one which must arrive in the ordinary and natural future course of events, the right of the creditor to demand performance was regarded as suspended or delayed until the time should have arrived ; but in such a case the obligation or debt in respect of the contract was " due " as soon as the contract was made, although it was not exigible or enforce- able, and performance of it could not be demanded until the arrival of the time fixed. When performance of a promise was thus suspended, the Roman Law signified the fact by the expression Dies cedit sed non venit, which meant that the obligation under the contract had already begun to exist, but the time when performance of it could be demanded had not yet arrived. (b) Qualification of Promise as to Place of Performance. — If there was in the contract an express provision as to the place where the promise was to be performed, such a qualification was strictly con- strued and performance could not be demanded elsewhere without ■ensuring that the debtor was not thereby prejudiced. In some cases the place where performance is to take place is sufficiently indicated by the nature of the promise itself, or by the object of the contract, without the necessity of any express provision or agreement upon the matter; so a promise to deliver an immovable has necessarily to be performed at the place where the immovable is situated ; or a promise to repair a house requires to be performed, of necessity, where the house stands. Where, however, there were no such indications, either expressed or clearly implied from the nature of either the promise or the contract, the creditor might demand performance wherever he could competently sue or bring an action against the •debtor, or, in other words, within any jurisdiction to which the debtor was subject.^ 1 Dig. xlv. 1, 124. This is the opinion of the jurist Papinian. There was considerable divergence of opinion between the jurists Ulpian, Marcellus, Pomponius, and Papinian with regard to the cases both of repairing and of building. It was contended that an action would lie if, by unreasonable delay, sufficient time had elapsed in which the building oi' the repairs might have been completed. (See Die/, xlv. 1, 72, 2 ; xlv. 1, 98, 1 ; xlv. 1, 14 ; and Hunter, lU supra, 586.) ^ Dig. xlv. 1, 137, 4. There is no Roman text with refeience to the place where the debtor could compel the creditor to accept performance, but Savigny thinks that the debtor would have a freedom of choice corresponding to that enjoyed by the creditor (Hunter, Roman Law, 584). 336 QUALIFICATION OF PROMISE [part IV. (c) Qualification of Promise hy a Condition} — An obligation is con- ditional when the existence and the performance of it is made dependent upon some event which is both future and uncertain.^ A condition in a contract may consequently be defined as some uncertain future event upon which the existence of the obligation is dependent.^ If the event upon which performance of the obligation was made dependent either was already past or was present, the obligation was either enforceable at once or void respectively ; thus, a stipulation might be qualified, " If Titius has been Consul," or " if Maevius is alive " ; if Titius has not been consul or if Maevius is not alive, the obligation would be void ; but if, on the contrary, Titius was consul or Maevius is living, the obligation would be valid and immediately enforceable as a simple and unconditional promise.* In Eoman practice, conditions intended to qualify or limit the obligation were usually inserted in the contract at the time when it was entered into, but it was quite competent to insert or to add subse- quently a condition if the parties mutually agreed, and such a subse- quently added condition would modify the original terms of the obligation, and it might be pleaded by way of defence to an action for performance of the original terms of the concract. For example, if a creditor under a contract agreed, subsequent to the date of the contract, not to sue the debtor unless a particular contemplated event should occur, and he thereafter sued upon the original contract before the occurrence of the event and the consequent fulfilment of the condition upon which the existence of the obligation had been subsequently made dependent, he might be met by the debtor with the defence (eaxeptio) of either a subsequent agreement (exceptio pacti conventi) or bad faith {exceptio doli mali). As a further example, if a creditor under a contract agreed, subsequent to the completion of the contract, to discharge the debt owing to him under it if a contemplated event should happen, and, the event having occurred, sought to enforce the contract, he could be met by the defence of a subsequent agreement, or of bad faith. The exceptio pacti conventi was thus a defence competent to a debtor under a contract in respect of which he was entitled to plead that he was not bound to perform the obligation under the contract, because its 1 Justinian, List. iii. 15, 4 ; J)ig. xlv. 1, 115, 1 ; 1. 16, 54 ; xii. 1, 39 ; xlv. 1, 100. See upon conditions generally and their varieties, Hunter, Roman Law, 586-592. 2 Cf. French Civil Code, Art. 1168. ^ Cf. Cuq, Institutions Jwridiques des Romains, ii. 360. "i Justinian, List. iii. 15, 6 ; Dig. xlv. 1, 100 ; xii. 1, 37-39. SECT. 107] THE TIME OF PERFORMANCE 337 original terms had been modified by a subsequent mutual agreement, or by a condition mutually assented to by the parties. Section 107. — The Time of Performance (Dies) The time or the date when a contractual obligation is to be per- formed or " solved," or, in other words, the time when performance or " solution " (solutio) is to take place, was expressed, in the Roman Law, by the term dies, or " the day." The time of performance of an obligation is ordinarily that agreed upon by the parties, and may be either present or future. If there was no express agreement as to the time of solution, the Roman Law pre- sumed that present performance was intended, and the obligation was regarded as immediately exigible or enforceable. The time of performance (dies) might be either (a) ex die, or (b) in diem. Performance was said to be ex die when it could not be demanded before a certain date, and it was in diem when it could not be insisted upon after a certain time.^ When a particular day (dies) or time was named for performance of the obligation under the contract there was said to be a dies certus, or " certain " or definite day ; if, on the other hand, no particular date was specified, but it is, at the same time, certain that the day will come, although uncertain when — such as, for example, the date of a person's death — the dies, or time of performance, was said to be mcertus, or indefinite. There is an important distinction between an uncertain or indefinite time of performance (dies incertus) and a condition upon which the existence and performance of the promise is dependent. In the case of a dies incertus the uncertainty relates only to the actual time when performance can be demanded and take place, but that the time will come is not uncertain ; in other words, it is certain that the " day " (dies) will come, but it is uncertain when it will actually arrive. In the case of a condition (conditio), however, qualifying a contract, and upon the fulfilment or " purification " of which the existence and performance of the promise in the contract is dependent, it is not certain that the condition will ever be fulfilled, and it is consequently uncertain whether performance will ever become due and exigible.^ The Roman Law connoted the distinction between the time when 1 Biff. xliv. 7; 44, 1. Of. ante, p. 334. ^ See upon fulfilment of a condition, and upon varieties of conditions, post, pp. 338 and 339. 338 FULFILMENT OF A CONDITION [part iv. an obligation begins to exist and the time when performance of the promise can be demanded by the expressions dies cedit and dies venit respectively. The time when an obligation begins to exist and the time when it becomes enforceable are entirely distinct points, although in certain circumstances they may happen to synchronise ; an obligation may be long existing and due, but not yet enforceable. This distinction appears clearly in the following sets of circum- stances : — (a) Unconditional Contract, amd no Time Fixed for Performance. — The obligation is here enforceable as soon as it begins to exist ; dies cedit and dies venit together. (b) Unconditional Contract, hut a Time Fixed for Terformance. — In such a case the obligation would begin to exist— i.e. dies cedit — as soon as the contract is made, but performance could not be demanded until the time fixed had arrived. ' (c) Conditional Contract hut no Tim^ Fixed for Performance. — In this ■case no obligation would begin to exist unless and until the condition had been fulfilled, but as soon as that event happened the obligation Taecomes not only existent and due, but also enforceable at the same time. (d) Conditional Contract and a Time Fixed for Performance. — The obligation comes into existence — i.e, dies cedit — in this case only if and when the condition is fulfilled, but performance cannot be demanded until the time has arrived (dies venit).^ Section 108. — Fulfilment of a Condition in a Contract ^ A condition in a contract is fulfilled or " purified " in either of two sets of circumstances, namely, (a) when the event upon which the promise was made conditional has happened ; or (b) when the person who made the promise has prevented from occurring the event upon which performance of the promise was made conditional. The latter •case, however, must be clearly distinguished from that of something happening quite independently of the act or will of the promiser which prevents the fulfilment of the condition ; in such a case the contract would be of no effect. When a condition is fulfilled its effect is retroactive, and dates back the commencement of the obligation to the time when the contract was made, so that it did not merely begin at the time of the fulfilment 1 In the Roman law of wills and succession dies cedit signified the point of time at which the right accrued to a legatee, whUe dies venit signified the time when the legacy was payable. ^ Cf. Cuq, Institutions Jtiridiques des Romains, ii. 365. SECT. 109] VARIETIES OF CONDITIONS 339 of the condition 1 ; thus the legal capacity of the person giving the promise is determined as at the time of making the promise and not at that when the condition is fulfilled. Section 109. — Varieties of Conditions Conditions are either "resolutive" (resolutiva) or "suspensive" {siispensiva}.^ (a) Resolutive GoTiclition? — A resolutive condition is one which, if ■and when fulfilled, resolves or ends rights already acquired under a completed contract ; in other words, there is a completed contract, but it is liable to be ended by the occurrence of an uncertain future event. Thus in a contract of sale subject to a resolutive condition the buyer became, on delivery of the property sold,* the owner of it, subject, how- ever, to a liability to be divested of his rights under the contract by the happening of the event upon which the continuance of his rights had been made conditional.^ Thus, for example, A. sells something to B., but upon the condition that if the latter should change his mind (or some other uncertain event should happen) within a certain time the sale should be off.^ In such a case the contract of sale would be complete and the buyer would have been vested with the ownership of the property, subject, however, to a possible liability to retransfer the property to the former owner if the contemplated event should have occurred. If the buyer refused to retransfer the ownership of the property to the seller on the fulfilment •of the resolutive condition, the latter could not sue him as owner by a vindicatio, because the effect of the fulfilment of the condition was only to end the contract and did not divest the buyer of the ownership, but merely in the capacity of a seller by an ordinary action on the sale I Cf. French Civil Code, Art. 1179 ; Cuq, ut sup. ^ Cf. French Civil Code, Art. 1168. This distinction was appreciated by the Roman jurists, although they did not employ these particular terms to connote it (see Dig. xviii. 2, 2 pr.). Conditions are also, in modern usage, termed {a) fwtuitmis (Fr. casuelle), (6) potestative, and (c) mixed. A "fortuitous" condition is one ■dependent upon chance alone, apart altogether from the will of either creditor or debtor. A "potestative" condition is one the fulfilment of which is within the power of the person who is to conditionally acquire the right. A "mixed" condition is one that is dependent partly on the will of one of the parties to the contract and partly on the will of a thii-d party (cf. French Civil Code, Arts. 1169-1171 ; Mackenzie, Roman Law, 7th ed., 207, note 2). 3 Cf. French Civil Code, Arts. 1183, 1184. ■• See " Sale {Emptio-venditio)," post, p. 385. ° There was, in such a case, what was expressed by the Eoman Jurist as a pura temptio q.uae sub conditione resolvitur (of. Dig. xviii. 2, 2 pr.). 6 Cf. Dig. xviii. 1, 3. 340 IMPOSSIBLE AND ILLEGAL CONDITIONS [part iv. (actio ex vendito).^ A vindicatio was the remedy available only to an owner claiming his property from the unlawful possession of another person, and in the case figured above the seller had ceased to be the owner by reason of his transference of the dominium to the buyer when, the contract was completed.^ (b) Suspensive Condition.^ — A " suspensive " condition is one which suspends or delays the commencement of the obligations and the rights, created by the contract until the happening of the contemplated event ;. consequently, failing the fulfilment of the condition, no completed contract has existed. In a contract of sale, for example, that is quali- fied by a suspensive condition, the buyer would not acquire the owner- ship {dominium) of the thing sold unless and until the condition is fulfilled, and, imlike a buyer under a resolutive condition, who by the completion of the contract becomes the owner,* he could neither acquire a prescriptive right to the property nor claim to enjoy the fruits.^ Thus, if A. agrees to sell property to B. upon condition that the- contract will hold good if he shall not have received a better offer for it within a fixed time thereafter, such condition would be suspensive of the completion of the contract, and of the rights and duties under it, which would only come into existence upon the expiry of the time fixed without a better offer having been made.^ It will be observed from what has preceded that "suspensive" conditions are conditions precedent and " resolutive " conditions, are conditions subsequent. Section 110. — Impossible and Illegal Conditions Conditions qualifying or limiting the terms of a contract require tO' be both (a) legal and (6) possible.'^ A condition was not bad, however. 1 Big. xviii. 5, 6 ; Code, iv. 54, 3. 2 Examples of resolutive conditions are chiefly concerned with the contract of sale, and their importance is confined to the question of ownership (Hunter, Roman Law, 4th ed., 590 ; see also Girard, Manuel de Droit Rmnain, 5th ed., 720-721). ^ See on suspensive conditions, Girard, ut sup., 472 et seq. ; of. also French Civil Code, Arts. 1181, 1182. * Big. xviii. 2, 2, 1. 8 Cf. Big. xviii. 2, 4 pr. " Big. xviii. 2, 2 pr. See in diem addictio, and upon what constitutes a " better o^ev," post. Section 111, p. 341. " Cf. French Civil Code, Art. 1172. SECT. Ill] FORMS OF CONDITIONAL CLAUSES 341 and did not void a contract, according to the Eoman Law, merely because it happened to be foolish or unreasonable, but if the condition -amounted to either illegality or to physical impossibility its effect was to invalidate the contract. Illegal Condition. — There is an illegal condition when performance ■of the obligation is made dependent upon an act or event that is forbidden by the law. Impossible Condition. — A condition is impossible if from the very nature of things it cannot be fulfilled, as, for example, if a man stipulated for a certain sum if he should touch the sky- with his finger, or if he should, without any adventitious scientific aid, fly from one mountain top to another, and contracts qualified by such conditions would be invalid.^ But the converse of such a condition, such as a promise to pay money if. another person should not do some impossible act, was not invalid, and was regarded as an unconditional undertaking, fulfilment of which could be at once demanded.^ An iirlpossible condition attached to a legacy or gift given in a will or testament, by reason of the special favour with which wills were regarded by the Eoman Law, and its strong inclination in favour of testacy wherever such a construction was possible, was regarded as if it had not been written {jiro non scripto), and, although there was some controversy upon the matter amongst the Roman jurists,^ such a condition was generally considered not to invalidate a legacy.* Section 111. — Some Special Forms of Conditional Clauses IN Contracts^ (a) In Diem Addictio. — In the contract of sale a clause of in diem addictio was one providing that if a better offer was made to the seller within an agreed upon time, he was to be entitled, in his option, to regard the contract as ended and to be free from any liability under it.^ Such a clause in the ordinary case, and in the absence of either any express or any clearly implied intention otherwise of parties, was sus- pensive of the rights and obligations under the contract ; but it might equally well be from its terms resolutive, and whether it was to be 1 Big. xlv. 1, 7 ; Justinian, Inst. iii. 19, 11 ; Gains, Inst. iii. 98. ^ Justinian, Inst., ut sup. ; cf. French Civil Code, Art. 117.3. 5 Gaius, Inst. iii. 98. * Justinian, Inst. ii. 14, 10 ; Big. xxviii. 7, 1. 5 Cy. Girard, Manuel de Droit Romain, 5tli ed., 720, 721 ; see Hunter, Roiium Law, 590. ^ Cf. Big. xviii. 2, 1 ; xviii. 2, 2 pr. 342 FORMS OF CONDITIONAL CLAUSES [part iv. regarded as one or the other depended upon the real intention of the parties, who might have in view either (a) that the sale was to be at once complete but liable to rescission in the event of a better offer being actually made, in which case the condition was resolutive ; or (h) that the sale should not be complete until the expiry of the time fixed, when only it would and could be known whether there were any better offers, in which case the condition was suspensive.^ A " better offer " was either (a) an actual higher price, or (6) more speedy payment or payment at a more convenient place, 'or (c) better security for payment, or (d) generally more favourable terms for the seller, offered within the time fixed, by a genuine (pond fide) intending buyer.^ If a genuine " better offer " was made the seller was bound to give the first buyer notice of it in order that he might have an opportunity of making as good an offer and so to retain the property ; * if the buyer declined to make as good an offer the seller was bound to accept the new offer.* If the first buyer was in the enjoyment of the property at the time when the better offer was made and accepted, he was bound to deliver up to the seller any unconsumed fruits and produce {fructus)^ of the subject,* and to deliver the thing sold to the new purchaser ; ^ but he was at the same time entitled to claim from the seller any expenses or outlays incurred by him that were beneficial to the property and likely to increase its value.* As between the former and the new buyer, however, there was no contractual relation whatever, and the former's claim for either expenses or repayment of the purchase price was against the seller alone.^ (b) Le;r Gommissoria}" — This was a special form of resolutive condi- tion, or penalty clause,^^ which provided that if the obligation contained ' Dig. xviii. 2, 2 pr. ^ Dig. xviii. 2, 4, 5-6. ' Dig. xviii. 2, 8. * Dig. xviii. 2, 7 ; xviii. 2, 9. " See, upon what constitutes "fruits" of a subject, ante. Part III., Section 74,. p. 243, and Section 91 (b), p. 281. " Dig. xviii. 2, 6 pr. ' Dig. xviii. 2, 14, 4. '^ Dig. xviii. 2, 16. " Dig. xviii. 2, 20. 1" See Dig. xviii. 3 ; Hunter, Roman Law, 4tli ed., 591 ; Mackenzie, Roman Law,, 7th ed., 226 and 239 ; Girard, Manuel de Droit Romain, 5th ed., 721. " From Committere, signifying "to incur a penalty." SECT. Ill] FORMS OF CONDITIONAL CLAUSES 843 in the contract was not performed within or by the time agreed upon, the contract was to be voidable at the option of the other party to the agreement. Such a clause most usually occurred, as a pactum adjectum, in the contract of sale, but it was also used in the contracts of hire (locatio-conductio) and pledge {pignus)} As applied to the contract of sale, there was a lex commissoria ^ in these cases where it was specially agreed by the parties that if the whole price was not paid within or by the time fixed ■ in the contract the sale was to be rescinded at the option of the seller.^ In order that a lex commissoria in a contract of sale should operate, three elements were essential, namely, (1) a time must have been fixed within which the whole price was to be paid; (2) the whole time fixed must have elapsed; and (3) some portion of the price must remain unpaid at the termination of the period agreed upon. A contract of sale qualified by a lex commissoria was good from the beginning {ah initio), or from the time when it was made, but, by reason of the resolutive condition attached to it, it was liable to be rescinded ; the mere fulfilment of the condition, however, by the buyer's failure to pay by the time fixed did not of itself {ipso facto) void or end the contract; it merely gave to the seller the right to rescind it if he should choose to do so. The option or alternative of the seller under a lex commissoria was either (a) to hold the sale as ended, or {I) to hold the sale as still existing and binding, and to sue the buyer for the unpaid balance of the price.* The seller's choice was not dependent upon his having previously demanded payment upon the expiry of the period fixed, but it vested in him, ipso facto, by the mere lapse of the time. When, however, the seller had once exercised his option, and had elected or chosen between ending the contract and holding it as still binding, he was thereafter bound by his choice, and could not go back upon it.^ If the seller had accepted a portion of the purchase price after the ' See Mackenzie, Roman Law, 226 ; Sohm, Institutes of Rmnan Law, 3rd ed., 353 and 356. As applied to pledge, the lex commissoria might constitute a condition that the thing pledged should become the absolute property of the creditor if the debt was not paid at the time agreed upon. Such a condition in the contract of pledge -was declared void by a Constitution of the Emperor Constantine in a.d. 326, as it was found to operate a hardship and injustice {Code, viii. 35). ^ Or, otherwise, pactum legis commissoriae. ' Dig. xviii. 3, 8 ; Code, iv. 54, 1. In such a case the seller was entitled to retain any "earnest-money'' that might have been delivered to him. (See on arrhae or " earnest-money," po^i. Section 125, p. 391.) * Dig. xviii. 3, 2. 5 Dig. xviii. 3, 4, 2 ; 1. 17, 75. 344 FORMS OF CONDITIONAL CLAUSES [part IV. lapse of the period had entitled him to demand the whole price, he was regarded as having thereby tacitly and impliedly chosen to hold the contract as good and still binding, and his only remedy thereafter was to 'Sue the buyer for payment of the balance of the contract price.^ The lex commissoria required to be expressly agreed upon by the parties, and was never presumed ; consequently, in the absence of such a clause, a seller was not entitled to regard the contract as no longer binding merely by reason of the buyer's failure to pay ; his only right and remedy, in such circumstances, was to sue the purchaser for the price or its balance, and for damages for breach of contract.^ It was usual, in Eoman practice, to make the buyer expressly liable, under the lex commissoria, to the seller for any loss that the latter might suffer on account of the buyer's failure to pay by the time agreed upon necessitating a second and less advantageous sale to another purchaser.^ It will be observed that the clauses of addidio in diem and lex commissoria are special " added pacts " (pacta adjecta) for the benefit of one of the parties ; and, as applied to the contract of sale they were inserted for the benefit of the seller. Certain special conditional clauses, however, were frequently attached to the contract of sale for the benefit of the purchaser, with a view to relieving him from liability under the contract when, after reasonable examination and trial, he was not satisfied with the thing sold ; such special conditional clauses are most usually found in the form of either an emptio ad gusturn or a pactum displicentiae. (c) Emptio ad gustum was, literally, "a purchase to taste," and signified a sale made dependent upon the satisfaction of the buyer; it was, in other words, what is known in modern commercial usage as a sale " on approval." * It might be either resolutive or suspensive. Thus in a sale to the effect " If the property suits you, within a certain time it will be purchased by you at such a price," ^ the condition would be suspensive ; the converse case, however, would be a resolutive 1 Big. xviii. 3, 6, 2. 2 Cf. French Civil Code, Art. 1184. By French law there is implied in all bilateral contracts a condition dissolving the contract if one of the parties does not fulfil his promise ; but the dissolution does not operate, ipso facto, upon failure to perform. The other party has the option either to insist upon fulfilment (when that is possible) or to dissolve the contract ; but in the latter case the dissolution requires to have judicial sanction. s Dig. xviii. 3, 4, 3. * Cf. French Civil Code, Arts. 1587-1588. ^ Justinian, Inst. iii. 23, 4. Cf. Gains, Inst. iii. 146. SECT. Ill] FORMS OF CONDITIONAL CLAUSES 345 condition, as if it were agreed to the effect " If within a certain time you find that the property does not suit you, let it be considered that you have not bought it." ^ In the case of a suspensive emptio ad gustum the seller was bound to sell the property to the buyer at the price fixed if and when the purchaser after trial expressed his satisfaction with it ; and until then the seller was conditionally bound to the effect and extent of being precluded from selling the thing to any other person so long as the condition remained unfulfilled ; but the purchaser was in no way bound until he had expressed his satisfaction, and the condition had been thereby fulfilled.^ In the case of a resolutive emptio ad gustum the contract was com- plete and binding from the moment when it was made, but was liable to be ended or "resolved" if the buyer intimated his dissatisfaction with the property, after a fair examination or trial of it, either within the time agreed upon, or, failing a fixed time, within what would amount, in all the circumstances, to a reasonable time. (d) Pactum Bisplicentiae. — This was a special form of resolutive condition in the contract of sale, inserted for the benefit of the buyer, in respect of which he was to be entitled to rescind the contract, at his option, by actually returning the property to the seller, and not, as in the e7nptio ad guMum, by merely intimating his dissatisfaction with and rejection of it, and the seller was correspondingly bound to take the property back. The Aedilician Edict provided that the property must be returned within sixty days if no time had been fixed in the contract under this special pact. (e) Prae-emptio. — A clause of " pre-emption " in a contract of sale, is one by which either (a) a seller reserves to himself the right to the first opportunity to re-purchase the property if the buyer should after- wards desire to sell it, or (h) in respect of which the buyer is bound not to sell the property to anyone except the seller.^ (f) The Pactum de retro-vendendo, or, literally, " the agreement con- cerning selling back," was a pact, for the special benefit of the seller, to the effect that the buyer was to be bound to re-sell the property to 1 ZHg. xli. 4, 2, 5. ^ Cf. French Civil Code, Art. 1588. By the French law a sale on trial is always assumed to be suspensive ; but the parties may enter into an out and out sale subject to the condition that it shall be resolved if the result of the trial should not be satisfactory. This, of course, affects the question of risk under the contract. ^ Big. xviii. 1, 75 ; xix. 1, 21, 5. See alao post, Section 128, p. 402. 346 FORMS OF CONDITIONAL CLAUSES [part iv. the seller, and to take back the price paid for it, if the seller should wish to redeem the property within a fixed time.i This conditional clause, however, sometimes took the form of an agreement for the special benefit of the buyer, to the effect that the seller should be bound to buy back the property if the buyer should require him to do so within a fixed time ; in this form the clause was known as the (g) pactum cle retro-emendo, or, literally, " the agreement concerning buying back.'' ' See Girard, Manuel de Droit Romain, 5tli ed., 721 ; Mackenzie, Roman Law, 7th .ed., ,239. CHAPTER VII The Theory of Eesponsibility foe Fault Section 112. — Fault (Culpa) and Diligence (Diligentia) ^ The consideration of " fault " and of " diligence " arises with reference to the responsibility that is created and put upon either or both of the parties to a legal obligation. In the performance of a contract, or of a legal act generally, loss or damage {damnum) may be caused by a person either intentionally or unintentionally omitting to do something that the law requires him to do (culpa in omittendo), or by him doing something in the performance of the contract, or of the act which he ought not to have done {culpa in committendo). By the Eoman Law every person was liable for wilful wrongdoing or loss caused in the course of the execution of a contract, and a party who in such a way caused loss or harm to the other party to the contract was regarded as guilty of dolus, and was liable to make good the malicious injury so caused. No person could escape this liability for wilful wrong- doing by any form of agreement, and any special convention that had as its object the exemption of the parties from such liability was void.^ Every agreement or contract ipso facto subjected the parties to an implied obligation to make good injury caused either wilfully by dolus, or unintentionally through c%dpa. A party to an obligation was said to be guilty of culpa or " fault " if, without any intention on his part to do so, and apart from inevitable or unavoidable accident {damnum fatale)^ he caused injury or loss {damnum) ; but this liability was removed if ^ See Sandars, Institutes of Justinian, 8th ed., 323-325 ; Muirhead, Roman Law, 7th ed., 208-211 ; Sohm, Institutes of Justinian, 3rd ed., 368-371 ; Poste, Institutes of Oaius, 4th ed., 429, 430 ; Buckland, Principles of Roman Private Law, 289-292 ; Girard, Manuel de Droit Rmnain, 5th ed., 652 et seq.; May, Elements de Droit Romain, 8th ed., 387-389. 2 Dicf. ii. 14, 27, 3 ; xiii. 6, 17. The technical expression signifying the liability to make good malicious injury or wilful wrongdoing was praestare dolum ; and, similarly, the responsibility for unintentional loss caused by fault {ndpa) or lack of care was signified by the tsTm. pn-aesta/re culpa/m. ^ See damnum fatale and vis major, post, Section 116, at p. 367. 347 348 FAULT AND DILIGENCE [part IV. the person injured had himself been careless, and so had contributed to the injury by his own negligence.^ Dolus thus signified intentional wrongdoing, whereas culpa was unintentional injury caused by negligence, or lack of sufficient care in the performance of an obligation ; the care which the law required on account of the responsibility created and placed upon the parties by the obligation was known as diligentia or '' diligence." In the Roman Law the degree of responsibility created by an obligation was usually estimated in terms of diligence, but it is equally competent to measure the responsibility of persons bound by an obligation by the degree of fault (culpa) for which the law will hold them responsible ; or, in other words, by the amount of negligence {negligentia) or lack of " diligence " {diligentia) that is implied by the degree of fault present. Diligentia was thus the care which the law required that a party to an obligation required to show in the performance of the duties involved in the contract, and with regard to the matter or property dealt with in the contract ; but the liability or responsibility of parties for lack of sufficient "diligence," or, otherwise, for "fault," varied in degree. Diligence {diligentia) or carefulness was of two degrees ; the higher degree was known as " exact " diligence {exacta diligentia), and was the amount of care which a prudent man of business {bonus paterfamilias) would employ, while the lower degree was " ordinary '' or the amount of care which a man of average, but not exceptional prudence would use in the management of affairs. The higher degree of diligence was an absolute, abstract, and unvarying standard, but the lower degree was only relative, for it considered merely the amount of care which the particular careless person was accustomed to show in the management of his own affairs,^ which necessarily varied in the case of different individuals, so that what was " fault " {culpa) in one person might not be so in another. Just as diligentia or care in the performance of an obligation was of two degrees, so was culpa or lack of care.^ If the fault was so extreme that no person of reasonable intelligence, having in view the probable 1 See on " Contributory Negligence " and its effects, post. Chapter XI., Section 156, at p. 456. ^ Quanta in suis rebus diligentia {Dig. xvi. 3, 32). ^ See Mackenzie, Roman Law, 7th ed., 208-210, upon the controversy as to the recognition by the Roman Law of three degrees of fault, namely, culpa lata, levis, and levissima, and see also Poste, Institutes of Gaiiis, 4th ed., 430, and Girard, Manuel de Droit Rmnain, 5th ed., 656, note 2. SECT. 112] FAULT AND DILIGENCE 349 consequences, would have committed it, it was known as culpa lata} and such an extreme degree of fault was regarded as practically equivalent to dolus, upon the assumption that such egregious carelessness could only have been committed intentionally ; if the fault was not extreme it was known as c%dpa levis ; but culpa levis varied in degree according as the standard of diligence desiderated was either the absolute abstract one of " the prudent man of affairs " (bonus paterfamilias), who would employ the utmost possible care to avoid injury, or the relative one of the man of average discretion in the management of his own affairs ; the first case involved a failure to show " exact " diligence {exacta diligentia) or the utmost care possible, whil^ the second involved a failure to employ " ordinary " or average care {diligentia). Modern jurists distinguish between these two degrees of culpa levis by the use of the terms culpa levis in ahstracto and culpa leois in concreto ; in those cases in which the standard of diligence set up is that of " the prudent man of business," a failure to attain that absolute standard has been styled by these jurists culpa levis in abstracto, but where the standard of care desiderated is merely the relative one of the particular indi- vidual concerned in the management of his own affairs, the failure to attain that standard has been correspondingly styled cvl2}a levis in concreto. " Exact " diligence, or the utmost possible care, was required by the law, and a person was consequently liable for culpa, levis in abstracto — (1) When the contract was one entirely for his benefit, such as the " commodatary " in the contract of " commodate " ; ^ (2) when the contract was for the mutual benefit of both parties,^ as in the contracts of sale,* hire,^ or mortgage ; and (3) when a person voluntarily undertook a trust, as in the contract of mandate/ and in the quasi-contract known as negotiorum gestio? " Ordinary " or average diligence was required by the law, and a person was consequently liable only for culpa levis in conc7-eto in those cases — (1) Where the benefit of the contract was wholly with the other ' Dig. 1. 16, 213, 2 : Lata culpa est nimia diligentia, id est, nmi intelligere quod omm.es intelligunt. ^ See jDo«*, Section 115, at p. 357. ' I.e. Tvhen both parties have a common interest in the obligation being performed, but there is no joint interest in the thing. * Dig. xviii. 6, 3. * Dig. xix. 2, 25, 7. "Justinian, Inst. iii. 26; Dig. xvii. 1. See "Mandate," post. Section 142, p. 424. ^ See Justinian, Inst. iii. 27, 1 ; Dig. iii. 5. See Negotiorum gestio, ante, p. 316, and joos<. Section 146, p. 436. 350 FAULT AND DILIGENCE [part iv. contracting party, as, for example, the depositary (depositarius) in the contract of "deposit" (depositumy when it must be proved that the depositary has been guilty of " crass " or extreme carelessness (crassa iiegligentia) by failing to show as much care as he ordinarily employs in his own affairs {quanta in suis rebus diligentia) ; "^ (2) where both parties had a common interest in the thing as to which the question of diligence or negligence arose, such as partners in the contract of partnership (societas),^ or the husband in the management of the dotal property, in which respect he was a sort of partner,* co-heirs, and legatees ; * (3) where the obligation was created by law and not by agreement, or where, otherwise, parties were involuntarily bound by a quasi-contract, as in the cases of tutors and curators.^ It will thus be seen that, in any particular contract, in proportion to the slightness of the degree of responsibility or liability for fault, the greater was the amount of fault necessary in order to render a person liable ; in other words, if the responsibility imposed upon a person by the special character and circumstances of a particular form of obligation was only of a slight degree, he would only be liable for serious fault {culpa lata) or extreme negligence (crassa negligentia), so gross as to be practically equivalent to dolus or wilful wrongdoing ; and correspondingly in the converse case. A person who was only liable for culpa lata or extreme carelessness was not held liable unless it could be proved against him, hj those making the allegation of fault, that he had actually failed to use as much care as he ordinarily did in the management of his own affairs ; but a person who was liable for culpa levis in concrete had placed upon him the burden (onus) of proving that, in the matter of the contract, he had exercised as much care as he ordinarily employed with regard to his own concerns. A person who was responsible for culpa levis in abstracto required to show that he had actually employed such a high degree of care as " the prudent man of business" who, by reason of his attainment of such absolute standard, was entitled to be styled a bonus paterfamilias. Just as "diligence" or care was either (a) special (exacta), or (b) 1 Justinian, Imt. iii. 14, 3 ; Dig. xliv. 7, 1, 5. See also Dig. xvi. 3, and "Contract of Deposit," ^osi. Section 116, p. 362. 2 Dig. xvi. 3, 32. 3 See " The Contract of Partnership,'' ^osi, Section 138, p. 417. 4 Dig. xxiii. 3, 17. ' 6 Dig. X..2, 25, 16. " Dig. xxvii. 3, 1 pr. See " Guardianship Generally," ante, Part II., Section 51, p. 187, at p. 189. SECT. 113] CONSTRUCTIVE FAULT 351 average, so negligence or carelessness might be either (a) gross or extreme (crassa) or (6) slight (minima). When there had been crassa negligentia it signified that the person guilty of it had not conformed to the absolute standard of care, while minima negligentia indicated that in the matter of the contract the person had not shown the same amount of care as he usually employed in his own affairs. Section 113. — Constructive Fault Fault {culpa) might be committed constructively by mere delay {mora) if a person failed to perform his obligation within a reasonable time.^ The determination of what constitutes unreasonable delay in the performance of an obligation depends upon the circumstances of each particular ease, and cannot be absolutely fixed. ' When delay (mora) amounted to culpa, it usually involved a liability to pay interest {tisurae) {Dig. xxii. 1, 7). See upon the Roman Law as to payment of interest generally, Mackenzie, Roraan Law, 7th ed., 218. Sees' also ^osi, Section 126, p. .393. CHAPTER VIII The "Eeal" Contracts ^ It has been already stated ^ that, according to Justinian, the obligations arising ex contractu, or out of express agreement, were included within four great classes, namely, (1) "Eeal" (re), (2) "verbal" {verbis), (3) written or "literal" {litteris), and (4) "consensual" (comensu). The contracts verbis and litteris have been already sufficiently ex- plained,^ and we now proceed to consider in some detail these obli- gations arising ex contractu that were included within either the " real " or the " consensual " contracts, since these are of the utmost importance from the modern standpoint. Contracts re, or " real " contracts, were introduced into the Eoman system through the Praetorian Edict upon equitable grounds and in order to obviate the inconvenience or the injustice that was increasingly frequently found to be entailed by the necessity for a close adherence to the rigid technical forms of the strict jus civile. The " real " contracts were those which were constituted re (literally, " by a thing "), by the intervention of a res or " thing " in the form of some act or fact ; the act or fact which had the effect of constituting such contracts was the delivery of something by one person to another with the intention, at the same time, of thereby imposing duties upon the person to whom the property was delivered. Justinian included four different kinds of contracts within the category of contracts re, namely, (1) Mutuum; (2) commodate {com- modatum) ; (3) deposit (depositum) ; and (4) pledge (pignus).^ 1 See on the " real " contracts generally, Cuq, Institutions Jiiridiques des Romains, ii. 380-399 ; Hunter, Roman Law, 4tli ed., 471-482 ; Moyle, Institutes 6f Justinian, 4tli ed., 392-398 ; Mackenzie, Roman Law, 7th ed., 215-229 ; Sandars, Institutes of Justinian, 8th ed., 327-332 ; Poste, Institutes of Gaius, 4th ed., 323-330 ; Girard, Manuel de Droit Romain, 506-532 ; May, Elements de Droit Remain, 8th ed., 258- 273 ; Sohm, Institutes of Roman Law, 3rd ed., 375-382. 2 Ante, pp. 304 and 309. ^ See ante, p. 309. * These are known as the "nominate'' real contracts, as distinguished from those other contracts that were also created re, and enforced upon the principle of part performance, but which were not included within this special category, 352 SECT. 114] THE CONTRACT OF MUTUUM 353 Section 114. — The Contract of Mutuumi This was a form of the contract of loan. It was the gratuitous loan ■of fungibles ; ^ expressed otherwise, it was a loan, either simple or con- ■ditional,^ without any consideration, of things that were intended to be -and which are naturally consumed in the course of their ordinary use. Mutuum was thus the gratuitous loan of " fungibles " for consumption, or such things as are generally estimated by weight, number, or measure, as wine, oil, corn, metal, money,* fruit, and such like.^ The essential characteristic of the contract of mutuum was that it was qualified by a condition, which did not require to be expressed, that the borrower should restore to the lender at the time agreed upon an amount of property equivalent to that lent, and of the. same kind and •quality.® It was also characteristic of the contract of mutuum that the owner- ship (dominium) of the thing lent passed to the borrower, for his right "was to consume the property lent and so cause it to cease to exist ; •only an owner could contract mutuum, for the lender's duty was to make the thing lent the property of the borrower, so that he could lawfully consume it.^ (1) Borrowers Liability under the Contract of Mutuum The borrower, in virtue of the completion of the contract by the -delivery to him of the property by the owner, immediately acquired thereby the ownership of the thing, and at the same time came under an obligation to restore to the lender property of the same kind as he had received, and equal in quantity and quality, but not to restore the identical thing. It was not necessary that the borrower should expressly .and whici are consequently known as the "innominate'' real contracts (see ante, Section 103, p. 313 ; also Sohm, Imt., 3rd ed., 375). ' See on contract of mutuum, Hunter, Roman Law, 4tli ed., 472 et seq. ; Mackenzie, Romun Law, 7th ed., 217 ; Girard, Manuel de Droit Romain, 5th ed., 507-519 ; Poste, Institutes of Gaius, 323 ; Sohm, Institutes of Justinian, 3rd ed., 375, 376 ; Buckland, Principles of Roman Law, 238, 239 ; Cuq, Institutions -Jwridiques des Romains, ii. 381-391. 2 See on " Fungibles and Non-Fungibles," ante, Part III., Section 67 (d), p. 214. ^ JDiff. xii. 1, 7 ; xii. 1, 8. * See on money as a "consumable" thing, ante. Part III., Section 67 (c), -p. 214. « See Justinian, Inst. iii. 14 pr. ; Gaius, Inst. ill. 90 ; Big. xii. 1 pr., 1, 2 ; .'Code, iv. 1. Cf French Civil Code, Art. 1874, and Arts. 1892-1904. " Biff. xii. 1, 3. Of. French Civil Code, Art. 1892. ' Big. xii. 1, 2, 4. The other "real" contracts, however, could be created by a person who was not the owner, but merely a possessor (see post, pp. 354-355). 23 354 THE CONTRACT OF MUTUUM [part iv. promise to restore as good as he got, for such an undertaking was implied in the contract. The borrower, in the absence of express agreement otherwise, could not fulfil his obligation by giving or tendering some kind of thing other than that lent, although it might be equivalent in value,^ as, e.g., money, for wine, or cloth for corn, or oil for fruit. If the property lent was money, the borrower, in order properly to perform his obligation, required to restore the same amount. of money, but not the actual coins lent, for these having been, presumably, spent were regarded as thereby consumed.^ The liability of the borrower under the contract of mutuum to restore the same kind of thing lent, and equal in both quantity and quality, was quite irrespective of the fact whether or not the market value of the commodity had risen or fallen between the time of the making of the contract and of the performance of his obligation. If the property lent under the contract of mutuum suffered damage or destruction the loss fell upon the borrower, because, from the very nature of the contract, the ownership (dominium) of the thing lent passes to him on the completion of the contract by delivery, and not- withstanding the deterioration or the destruction of the subject th& borrower remained liable for its value, for which the lender was, by the contract, merely a creditor.^ It was essential to the proper constitution of the contract of inutuuvi that the property should either have been actually delivered to the borrower, or be in his possession before the making of the contract.* (2) Bwrower's Bights under the Contract of Mutuum The borrower acquired by the contract all the rights of an owner,, as distinguished from a mere possessor ; but, since rights of dominium or ownership can only be acquired from one who is himself the actual owner — for no one can transfer a title to property higher than that which he himself possesses — it follows that only the true owner (dominus) could competently lend property as a mutuum, although a. 1 Dig. xii. 1, 2 pr. 2 Cf. ante, p. 214. ' The action by which the lender could recover the equivalent of the property lent was the cmidictio certi or incerti, according as the quid, quale, or quantum to be recovered was determinate or indeterminate. Sometimes the term cmidictio ex mutuo or the actio mutui {Code, vii. 35, 5) was employed. The condictio certi was strictly a personal action for the recovery of a definite sum of money {oerta pecunia).. Cf. Mackenzie, ut sup., 217, note 3 ; Sandars, Iiistitutes of Justinian, 328. * Dig. xii. 1, 9, 9. SECT. 114] THE CONTRACT OF MUTUUM 355 mere possessor might validly deliver property and create rights and duties under any of the other real contracts.^ Neither a consideration nor interest was payable under the contract of mutuum, because it was essentially gratuitous, and neither of these fell within the obligations incidental to the contract ; but, nevertheless, interest {foenus or usurae)^ might be expressly agreed upon by the parties either by a formal stipulation,^ or, in a few exceptional cases, by a mere pact (pactum) or informal agreement.* In such cases, however, the obligations to make good the loan, and the undertaking to pay interest upon, or to give a consideration in respect of, the loan were quite distinct and separate from the obligations necessarily incidental to the contract itself. (3) Special Restriction upon the Contract of Mutuum The contract of mutuum was subject, to a special restriction in respect of which persons in potestate, or subject to family authority, could not competently obtain a loan of money without the knowledge and consent of the paterfamilias. This restriction was operated by the provisions of the Seiiatus-Gonsultum Macedonianum, which was passed sometime between 41 a.d. and 79 a.d.^ The object of this statute was to prevent a, fliusfamilias from borrowing money on the strength of his expectations from his father, and being thereafter tempted, on pressure of his creditors, to attempt the life of his parent.*' This statute did not either directly forbid loans of money to a filiusfamilias without his father's consent, or declare such loans to be null and void, but it attained that result indirectly by refusing to the lender an action, or other legal means, to recover money so lent. But such loans, neverthe- less, created a "natural" obligation, and if paid they could not be reclaimed under a condictio indebiti, or an action for money not owing.'' 1 Dig. xii. 1, 2, 4. 2 See upon interest in the Roman Law, Mackenzie, Roman Law, 7tli ed., 218, 219. ^ An informal agreement regarding interest was generally not enforceable unless subsequently embodied in a stipulation. * Such as loans by municipalities {I>ig. xxii. 1, 30), or loans of corn or fodder {Code, iv. 32, 12 ; Nov. 136, 4). ^ According to Tacitus {Ann. xi. 13) this Senatus-Considtum was passed in the reign of the Emperor Claudius (41-54 a.d.), and according to Suetonius (Vesp. 11) in the reign of the Emperor Vespasian (69-79 a.d.). 8 Justinian, Inst. iv. 7, 7 ; Dig. xiv. 6, 1 pr. ; xiv. 6, 3, 3 ; xiv. 6, 7, 10 ; Code, iv. 28. This statute derived its name, Theophilus says, either from a spendthrift young parricide called Macedo, or from a notorious usurer of the same name, whose actions had drawn attention to the dangers arising from such unchecked courses. ' Dig. xii. 1, 14. See "Natural Obligations," ante, Section 101. 356 THE CONTRACT OF MUTUUM [part iv. The Senatus-Consultum only applied to loans of money, but in other respects left the capacity of persons under potestas to contract perfectly unaffected ; ^ so that a son could buy or sell, or let or hire, and if the obligations created by these means were changed into a mutuum the latter would be valid,^ unless the sale or the hire was merely intended to evade the provisions of the statute.^ Although a, filiusfamilias could, in general, plead this law by way of defence to a claim for repayment, a surety might quite competently be bound and compelled to pay. Moreover, the statute did not apply, and it could not be pleaded as an " exception " or legal defence by a filius- familias (1) if he had borrowed on the security of his peculium castrense, or quasi-castrense,^ and to the extent of that ; ^ (2) if he had, after becoming sui juris, either expressly, or by clear implication, ratified the loan, as by paying the whole or part of it ; ^ (3) if the loan had been contracted with the father's consent, either directly '' or indirectly,^ as by payment of a part of the loan, or had been subsequently ratified by him ; ^ (4) if the loan had been made for the benefit of the father's estate, and with the intention on the part of the son to make the father the real debtor ; ^^ (5) if the loan was proper, or necessary, as to pay a legal debt,^^ or to procure things necessary for the son's maintenance, education, or official duties, if abroad, such as his father was in the habit of providing ; ^^ (6) if the lender was reasonably mistaken as to the status of the borrower, and the error was not one in law.^^ (4) Special Form of Loan of Money (Pecunia trajectitia^^ Nauticum foenus) The Eoman Law placed in a special legal position, and dealt in a special way with, " maritime " loans, or loans of money given expressly for certain maritime or commercial purposes." ' See on capacity of persons mtiA&c potestas, ante, Part II., Section 16 (d), p. 98. 2 Dig. xiv. 6, 33. 3 Dig. xiv. 6, 7, 3. * See ante. Part II., Section 31 (b) and (c), at pp. 136-137. Dig. xiv. 6, 1, 3 ; xiv. 6, 2. « Code, iv. 28, 2. ■^ Dig. xiv. 6, 2 ; Code, iv. 28, 4. 8 Dig. xiv. 6, 7, 15. 8 Code, iv. 28, 7. 10 Dig. xiv. 6, 7, 12. " Dig. xiv. 6, 7, 14. 12 Code, iv. 28, 5 ; iv. 28, 1. 1' Dig. xiv. 6, 3. See on the Senatus-Consultum Macedonianum, and the circum- stances in which it did not apply, Moyle, Institutes of JustinioM, 4th ed., 572, 573 ; Hunter, ut supra, 474 ; Girard, Manuel de Droit Remain, 5th ed., 518, 519; 1* See Cuq, Institutions Jundignes des Romains, ii. 389. SECT. IIS] THE CONTRACT OF COMMODATE 357 Money lent at interest for the specific purpose of purchasing mer- chandise, and thereafter shipping it to some destination oversea for sale or disposal, was known by the special name of pecunia trajectitia} The risk of loss of or of injury to the goods or merchandise purchased with money so lent was with the lender until the goods arrived at their destination, because the lender was considered as having taken the risk of non-arrival into his consideration when agreeing to make the loan, and in estimating the "maritime interest'' {nauticum foenus) to be paid upon it in respect of the risk.^ The borrower of pecunia trajectitia was not under any obligation to repay the loan until the goods had safely reached their destination oversea,^ or unless the merchandise was lost in transit by accident or occurrences other than ordinary "perils of the sea," such as being confiscated by Customs authorities as illicit or contraband goods.* Pecunia trajectitia possessed three characteristics, which distinguished it from both an ordinary mutuum and an ordinary loan of money, namely — there required to be (1) a loan of money intended to be con- verted into merchandise ; (2) the merchandise so purchased with the money lent must be shipped oversea for disposal ; and (3) the loan was at the risk of the lender until the safe arrival of the goods at the port of destination. 5 Section 115. — The Contract of Commodate," (Commodatum) This was, like mutuum, a gratuitous loan of property^ but, unlike mutuum, it was a loan for use only, and not for consumption. In " commodate " the borrower obtained only the use of the thing lent, for a limited time and for a temporary purpose, and his obligation or liability was to restore to the lender the actual or identical property lent on the expiry of the period fixed. 1 This is the modern " bottomry loan " (French, pret a la grosse). ^ The interest was not limited (Paul, Sent. ii. 14, 3) until Justinian latterly fixed a maximum of twelve joer cent, per annum {Code, iv. 32, 26, 1). 2 Kg. xxii. 2, 3 ; Code, iv. 33, 4. * Code, iv. 33, 3. '' The contract was thus a contingent one (French, aleatoire), since the payment of both the capital and the interest are dependent upon the happening of an uncertain future event. ^ Justinian, Inst. iii. 14, 2 ; Dig. xiv. 7, 1, 3, 4 ; Dig. xiii. 6, 18 pr. See Cuq, Institutions Juridiques des Romains, ii. 391, 392 ; Hunter, Roman Law, 4th ed., 475- 479 ; Poste, Institutes of Oaius, 4th ed., 325 ; Mackenzie, Roman Law, 7th ed., 215- 219 ; Moyle, Institutes of Justinian, 4th ed., 394, 395 ; Sohm, Institutes of Justinian, 3rd ed., 376 ; Girard, Manuel de Droit Romain, 5th ed., 529, 530 ; May, Elements de Droit Romain, 8th ed., 269, 270. Cf. French Civil Code, Arts. 1874-1891. 358 THE CONTRACT OF COMMODATE [part iv. It was of the essence of commodate that the loan was gratuitous, and that the thing was lent without any consideration or fee for its use being either agreed upon or given, for otherwise the character of the ■contract would have been thereby changed to that of "location" (locatio) or hire. The lender, under the contract of commodate, was called the commodator (or the commodans), and the borrower was known as the cominodatarius or the " commodatary." From its very nature the contract of commodate was unsuited to the loan of "fungibles" or things that are actually consumed in the course of their ordinary and natural use, because the principal liability of the borrower (commodatarius) was to restore to the lender (commo- dator ; commodans) the actual thing lent.^ Commodate was originally, and strictly, a unilateral contract entered into for the benefit of the borrower alone, and, in conse- quence, imposing obligations only upon him ; but the Praetor came, in time, to allow a "commodatary" to claim from the commodator, or lender, any considerable and unexpected expenses which he might have necessarily and reasonably incurred whilst the property was in his possession. (1) Duties of the Borrower (Commodatarius) The primary duty or liability of the borrower in the contract of " commodate " was to restore the actual thing lent, on the expiry of the period for which the loan had been granted, in as good condition as it was when he received it, except for such depreciation as might be naturally occasioned and expected through ordinary and reasonable use. The borrower was also bound to use the property lent only for the purpose that had been agreed upon or intended ; ^ so that if a borrower fraudulently obtained the loan of a thing in commodate ostensibly for a purpose of which he knew the owner of it would approve, but really for a purpose of which he knew the owner either did not, or might not, approve ; or if a borrower having obtained, in good faith, property in commodate, subsequently used it in a manner of which he knew the owner disapproved, or would not permit, he was regarded, in such circumstances, as having committed "a theft of the use" (furtum ' In certain exceptional circumstances, however, fungibles might be the subject of commodate if they were lent expressly not to be consumed, but merely for display ; but such a loan was not a true commodate, it was only a quasi- commodate (cf. Dig. xiii. 6, 3, 6 ; xiii. 6, 4). 2 Cf. Dig. xiii. 6, 23 ; xiii. 6, 5, 7. In such cases, if there was no fault (culpa) on the part of the borrower, any loss would fall on the lender. SECT. IIS] THE CONTRACT OF COMMODATE 359 ■usus), which subjected him to liability to pay compensation to the lender.! A further duty imposed upon the oommodatary was to take good care of the property lent, in the absence of any special agreement other- wise.^ The extent of his obligation in this respect was to exhibit the care of " the prudent man of business " (bonus paterfamilias), which implied exacta diligentia, or the utmost care, because the contract was, strictly, wholly for the benefit of the Ijorrower.^ It was not sufficient for the borrower, in order to escape liability to the lender for the loss of, or injury to, the thing lent, to use merely as much care as he himself ordinarily employed with regard to his own affairs, unless he could show that the loss or injury could not have been prevented even by the exercise of the utmost care. If, however, no amount of carefulness could have prevented the loss or injury, or if, in other words, it was unavoidable, whether in the form of "inevitable accident" {damnum fatale)* or " superior force " {vis major),^ the loss would fall upon the lender '{commodator), and the borrower would not be liable for it, upon the principle that, in the absence of fault on the part of anyone, the loss falls upon the owner of the thing. ^ There were circumstances, however, in which a commodatary might even be liable for loss or injury occasioned by either inevitable accident or superior force, as when he had kept the property lent beyond the time agreed upon in the contract, or, if no time had been fixed, beyond the time reasonably sufficient to accomplish the purpose for which the property had been borrowed. There is an important distinction between mutuum and commodate with regard to the risk of loss of, or injury^ to, the property- borrowed. In mutuu7n the borrower became the actual owner of the property lent, subject only to a liability to restore to the lender the same kind of thing, and of the same quantity and quality.^ This obligation did not depend upon what might subsequently happen to the property, for, whatever its fate might be, the borrower's liability none the less '■ Cy. Justinian, Inst. iv. 1, 6 ; Gaius, Inst. iii. 196, 197 ; Big. xlvii. 2, 54. 2 Dig. xiii. 6, 5, 7 ; xiii. 6, 23 ; Code, vi. 43, 1. ^ See " Theory of Eesponsibility for Fault," ante, p. 347, and specially p. 349. * See post, p. 367. 5 See post, p. 367. ^ lies peril domino. Loss of property lent by theft was regarded as inferring the absence of sufficient diligence, and would fall upon the borrower {Dig. xiii. «, 21, 1). ^ The question of "risk" was known in the Eoman Law by the teria periouhmi. ^ See ante, p. 353. 360 THE CONTRACT OF COMMODATE [part iv. continued, even if the property had been lost as by fire, or robbery, or shipwreck, or by the fall of a house, or by flood, or by war, or any such- like inevitable or unavoidable occurrences, because in mutuum the borrower, as has been already said, became the owner (dominus) of the- property borrowed, and the general principle of the Eoman Law con- sequently applied to the effect that, in the absence of fault, accidental loss falls upon the owner. In commodate, on the other hand, the- " commodatary " or borrower did not become the owner of the property lent, and his right was only to its custody and use, subject to an obliga- tion, which was implied in the contract and did not require to be expressed,, to restore the identical thing lent upon the expiry of the time agreed upon for the loan. The duty of the commodatary to take the utmost care of the thing lent was based upon the principle that extreme care of the property lent constituted a fair equivalent for the gratuitous benefit which he received under the contract.^ In addition to his other liabilities the commodatary was also liable for all ordinary expenses connected with the thing lent, and necessarily incidental to its possession and use; but he was entitled to be re- imbursed by the lender for all extraordinary and exceptional expenses- necessarily and reasonably incurred by him while the property was in his possession. " Ordinary " expenses were such things as incidental and trifling: repairs, as the food of animals, or slaves, or such like ; ^ whilst " extra- ordinary " expenses included such things as money expended in medical attendance upon sick slaves or animals, if of considerable amount, or in recovering the property if its possession had been lost without fault on the part of the borrower, and, generally speaking, aU expenses of more than a comparatively trifling amount that were not necessarily incidental to the possession and the use of the property, and which were reasonably and necessarily incurred by the borrower in the preservation of the property lent.^ (2) Duties of the Lender (Conwnodafor or Commodans) The lender, or commodator, was bound to permit the borrower tO' use the property lent according to the terms of their agreement, after 1 Dig. xiii. 6, 5, 2. If, however, the lender also received some benefit from the contract, the degree of care required on the part of the borrower was proportion- ately reduced (cf. Dig. xiii. 6, 18 pr. ; xiii. 6, 5, 10 ; and Hunter, ut supra., 477). 2 Dig. xiii. 6, 18, 4. ^ Paul, Sent. ii. 4, 1. Cf. infra, "Duties of the Lender." SECT. 115] THE CONTRACT OF COMMODATE 361 he had duly delivered it, and thereby created the contract. It was also the duty of the lender to pay any " extraordinary " or unusual expenses, or such expenses as could not be expected to have been in the con- templation of the parties as necessarily incidental to the possession and use of the property when making the contract, that had been reason- ably incurred by the borrower in connection with or in preserving the thing lent.^ The thing lent required to be suitable for the purpose for which it was borrowed ; so that, if, for example, a person knowingly lent some- thing unsuited to the purpose of the loan, such as rotten wood to build a house,^ leaky casks,^ or a vicious animal,* he would be liable to pay compensation to the borrower for any loss or damage that might be thereby occasioned. Since the contract of commodate did not transfer ownership (dominium), as did the contract of mutuum, it was not necessary to the validity of a commodate that the lender should have a good title as owner to the subject of the contract, for his warranty to the borrower was not one of title but merely against eviction ; so a person who was not owner — even a thief — could competently lend a thing in commodate.^ (3) Remedies of Bo7'7'oiver in Commodate The commodatary, or borrower, might enforce his rights under the contract against the commodator, or lender, either by " retention " (retentio) of the property * or by an actio commodati contraria, or, in special circumstances, by an actio utilis commodati contraria ; this latter action at law was of a special character, and was one available to a commodatary in order to compel a commodator to restore the value of property that had been lent in cases where the lender had, without the knowledge or consent of the borrower, carried off the thing lent, and had then sued the borrower for restoration of the property and had obtained from him, on his failure to implement his obligation to deliver the thing lent, payment of its value.' ' Paul, Sent. ii. 4, 1. See Ouq, ut supra, 392; cf. supra, re "Extraordinary Expenses." 2 Cf. JXff. xiii. 6, 17, 3. 3 Cf. Big. xiii. 6, 18, 3. « Cf . Big. xiii. 6, 22. 5 Big. xiii. 6, 15, 16. " I.e. lien. Of. Moyle, ut supra, 395 ; Cuq, ut supra, 392. ' Big. xiii. 6, 21. 362 THE CONTRACT OF DEPOSIT [part IV. (4) Remedy of Lender in Commodate The lender (commodator, commodans) could enforce the duties of the borrower, and compel him to perform them by means of the actio com- modati directa. If the borrower had, without any fault on his part, lost the property lent, he might be compelled to give security to deliver it up if he should find it, or if it should again come into his possession.^ Section 116.— The Contract of Deposit (Defositum)^ This contract, in the Eoman legal system, was one according to which a person called the "depositor" {depositor) gave to another person, called the " depositary " (depositarius), some property belong- ing to him to keep or hold for him gratuitously, and under an implied obligation to give back the property whenever he should be asked to do so, with all its fruits and accessories.^ The contract of deposit (depositum) was completed by' delivery, just as were the contracts of mutuiMn and of conirnodate ; but it is distin- guished from each of these contracts. It is differentiated from mutuum in respect that the person receiving the property did not acquire either the ownership {dominium) or even the possession of it in the sense of the strict law, and it is distinguished from " commodate " by the fact that the person receiving the property — i.e. the depositary — did not thereby acquire either the right of legal possession or the right to use and enjoy the property, for the depositary's right under the contract was one of bare custody and detention {detentid)^ at the pleasure of the depositor ; so that the use of the property by him would constitute a form of theft {furturn usus), such as might subject him to liability to pay interest,^ unless he was either expressly or impliedly authorised by the depositor to use it.^ ^ Dig. xiii. 6, 13 pr. ^ Justinian, Imt. iii. 14, 3 ; Big. xliv. 7, 1, 5 ; cf. French Civil Code, Arts. 1915- 1963 ; Ouq, Instiiutio?is Juridiques des Romains, ii. 394-397 ; Hunter, Roman Law., 4th ed., 479-482 ; Mackenzie, Roman Law, 7th ed., 221-224 ; Buckland, Principles of Roman Law, 239, 240 ; Moyle, Institutes of Justinian, 4th ed., 395, 396 ; Poste, Institutes of Gaius, 4th ed., 325 ; Sohm, Inst., 3rd ed., 376-378. 5 Gaius, Inst. iv. 47 ; Justinian, Inst, ut supi-a ; Dig. xvi. 3 ; Code, iv. 34 ; Dig. xvi. 3, 1, 8 ; xvi. 3, 1, 45 ; xvi. 3, 1, 24 ; xvi. 3, 34. * See Part III., Chapter II., at p. 224. 5 Code, iv. 34, 3-4. ^ If the depositary was either expressly or impliedly authorised by the depositor to use the property deposited, the contract would become one of either commodate or of location (hire), according as the use was to be gratuitous or for a consideration. Cf. French Civil Code, Art. 1930. SECT. ii6] THE CONTRACT OF DEPOSIT 363 (1) Risk {periculum) in Deposit The risk of loss or of accidental injury remained with the depositor, but the depositary was bound to exercise reasonable care in the custody of the property, and to employ such diligence as he ordinarily used with regard to his own affairs ; ^ he was only liable to the depositor if the loss or injury was due to gross neglect, or to wilful destruction, or to fraud (dolus) on his part, because the contract was one created primarily for the benefit of the depositor, and therefore such a high degree of care was not required by the law as would have been the case if it had been for the benefit of the depositary .^ In this respect, also, " deposit " is distinguished from " commodate," in which latter contract the benefit was entirely for the borrower. If, however, the depositary specially undertook to keep the property safe, he would be bound to exercise a greater degree of care — the amount of which would be in proportion to the extent of the depositary's undertaking — and would consequently be liable for a lesser degree of negligence than in those cases where no such special undertaking had been given.^ If it was agreed that the depositary was to receive any compensation or consideration in respect of the deposit, the character of the contract would be thereby changed to one of " hire of services " (locatio operarum),^ and the depositary in such a case would become liable for loss or injury arising from even slight carelessness in the preservation of the property, because he would then be deriving benefit from the contract as well as the other party. (2) Duties of the Depositary^ The principal duties of the depositary were, in the absence of any special agreement otherwise, to keep the property safe, and to restore it to the depositor when demanded by him, with all its fruits and accessories, without making any charge or taking any consideration for its custody. The depositary, however, was entitled to claim from the depositor any necessary expenses that had been reasonably incurred by him on account of the property deposited and which were reasonably incidental to its custody or necessary for its preservation, and to be 1 Cf. French Civil Code, Art. 1927. 2 Dig. xiii. 6, 5, 2. ' In some cases the depositary might even be liable for accidental loss (cf. Dig. xii. 1, 4 pr. ; see Hunter, p. 481). * See " Hire of Work and Hire of Services," post, Section 136, p. 412. 6 Cf. French Civil Code, Arts. 1927-1946. 364 THE CONTRACT OF DEPOSIT [part iv, indemnified for any loss caused to him by the property.^ Thus, for example, the depositor was liable for damage caused to the depositary by the property deposited if he knew, or, in the circumstances, ought to have known, that it was likely to cause damage or loss,^ and for the cost of its transit;^ and the depositary was entitled to retain the property deposited in security of such expenses.* But the depositary was not entitled to set-off the property depositecJ with him against any other debt due to him by the depositor, although he was entitled to do so against any expense incurred by him m connection with the thing itself, or on account of loss or damage- caused to him by the thing deposited, if, from the nature of the- property, such was likely to happen. The reason for the inability to set off deposit against any other debt was because of the special trust and confidence in the depositary on the part of the depositor that was implied by the fact of depositing the property with him. If the depositary refused to restore the property when demanded by the depositor, and was at the same time in a position to do so, he was liable in interest upon the value of the property. The depositor could enforce his rights against the depositary by the- actio depositi directa, or "direct" action on the contract, in order to- obtain restitution of the property ; if the depositor had transferred his right of restitution to some third person, the latter might, in liis turn, enforce his right against the depositary by an actio utilis depositi directa.^ Such an action was also available to the depositor against any person with whom the depositary might have, on his part, deposited the property." (3) Special Foo'ms of Deposit There were certain special forms of the contract of deposit ; in particular (a) that known as " necessary '' deposit {depositum miserabile') ; ^ (6) that styled "irregular" deposit {depositum irregulare) ; (c) "seques- tration " ; and (d) that form regulated by the operation of the Praetorian Edict " Nautae Crnqmnes" to which reference has been already made.^ 1 Gf. Trench Civil Code, Art. 1947. 2 Dig. xiii. 7, 31. 5 Dig. xvi. 3, 12 pr. * Cf. French Civil Code, Art. 1948. 5 Code, iii. 42, 8. ° Paul, Sent. ii. 12, 8. ^ Cf. French Civil Code, Art. 1920, and Arts. 1949-1954. 8 Ante, p. 317. SECT. ii6] THE CONTRACT OF DEPOSIT 365 (a) " Necessary " deposit ^ arose in those cases where persons were compelled through stress of circumstances, such as, e.g., fire, shipwreck, riot, the fall of a house, or similar sudden calamitous conditions,^ to deposit their property in the hands of persons whom they did not know, and of whose honest discharge of the trust imposed upon them they were not certain. A " necessary " depositary who was unfaithful to his trust was liable to be sued under a Praetorian action for double the value of the property entrusted to him.^ (6) " Irregular " deposit (depositum irregulare) was a form of deposit that closely resembled muiuum, in respect that it was a loan of fungibles under an agreement that the depositary should become the owner of them thereby, and should only be bound to restore a similar quantity and quality ; moreover, like mutuum, the property was at the risk of the depositary and he had the right to use and so consume it. ■" Irregular " deposit differed from mutumn only in the intention of the parties : in mutuum the benefit was wholly with the borrower (unless there was a stipulation as to interest), but in depositum irregulare the intention was to benefit the depositor. The legal consequences of this distinction were material : in mutuum interest could only be claimed if it had been the subject of express stipulation, but the cwtio depositi being one of good faith (lonae fidei), interest could be claimed under ^'irregular" deposit either under the contract itself, or on the ground of undue delay {mora). The most usual example of depositum irregulare was money deposited with bankers ; and money deposited that was unsecured by key, seal, or other fastening was presumed to be an " irregular " deposit.* (c) " Sequestration " (sequestratio),^ as a special form of deposit, was the placing of property in which two or more persons had competing interests in the custody of a third neutral person called the sequester, "until the determination of the issue between the parties. The most frequent example of sequestration was the deposit of the subject-matter of an action at law until the decision of the case. Sequestration might ' Called by the Romans and styled by the commentators depositum miserabile, l3ut not so named by the Eoman jurists themselves. 2 Cf. Dig. xvi. 3, 18. ^ Dig. xvi. 3, 1, 1-4 ; xvi. 3, 18 ; Justinian, Inst. iv. 6, 17. See on depositum miserabile, Moyle, ut supra, at p. 396 ; also Cuq, Institutions Jimdiques des Remains, ii. 395. Cf. French Civil Code, Arts. 1949-1954. * Big. xix. 2, 31. See on "irregular" deposit, Moyle, ut supra, 396; Cuq, Institutions Juridiques des Eomains, ii. 395, 396. ^ See on sequestration, Cuq, ut supra, ii. 396 ; Moyle, ut supra, 396 ; Hunter, ut supra, 383 ; Mackenzie, ut supra, 222 ; Girard, Manuel de Droit Romain, 5th ed., mi. Cf. French Civil Code, Arts. 1955-1963. 366 THE CONTRACT OF DEPOSIT [part IV. be either voluntary or judicial, and the obligation, whether express or implied, that was put upon the depositary in a sequestration was that he should deliver the property to the person or persons found to be entitled to it as a result of the fulfilment of a condition, or of the settlement of the question between the parties, whether that were voluntary under a reference and arbitration, or judicially by a judg-. ment of the Court. The application of sequestration as a special form of deposit was wider than that of ordinary deposit, because immovables as well as movables might be sequestrated, and even a person whose status was in dispute might be the subject of a sequestration. The sequester had usually only the bare custody or "detention" (detentio} of the property, but he might have, by express agreement, the civil possession in order to prevent the acquisition of the property deposited by usucapion on the part of any of the competing claimants to it.^ The position of a sequester or stakeholder having the custody of some- property until a dispute regarding it should be determined, was the same as that of a pledgee.^ {d) The edict Nautae Caupones regulated, under the general name of receptum,^ another, and a very important, special form of the contract- of deposit by which a quasi-contractual relation and liability was created. This edict is generally known and referred to by the words with which it commenced — namely, nautae, caupones, stabularii,* and it was issued by the Praetor in order to regulate the liability of ship- masters or carriers by water {nautae), innkeepers {caupones'), and stablers {stabularii) for the property of travellers which had either been expressly entrusted to their care, or had been so entrusted by implication through the fact of having been brought by the travellers into the ship, inn, or stable as the case might be, and there deposited. Under this edict the Eoman Law held carriers by water {nautae) and keepers of inns {caupones), where travellers were accommodated with food and lodging, liable for loss of or injury to property belonging to travellers that had been either brought with theni or deposited by them. The liability thus imposed by the edict was absolute, and arose from the ' Dig. xvi. 3, 17, 1 ; xvi. 3, 6 ; xli. 2, 39. ^ Sohm, Institutes of Eoman Law, 3rd ed., 332, note 2. ^ Receptumvraa a "Praetorian Pact" (see ante, p. 307), and it assumed three forms, namely, (1) receptum nautarum, cauponum, stabulariormn ; (2) receptuni argentariorum ; and (3) receptum arbitrii. See on receptum, Girard, Manuel de Droit Romain, bth. ed., 605-608. ■• Dig. iv. 9, 1 pr., 1 ; xlvii. 5. See upon this edict, Mackenzie, Roman Law, 7th ed., 222 ; Girard, ut supra, 607 ; May, EUments de Droit Romain, 8th ed., 327. SECT. ii6] THE CONTRACT OF DEPOSIT 367 mere fact of loss or injury, whether it had been caused by the acts of the casriers, or of the innkeepers themselves, or had been occasioned by the acts of their servants or by the acts of strangers. The fact that property so deposited or intrusted had been stolen by a servant or by a stranger did not exempt the carrier or the innkeeper from liability, because the object of the edict was, by its severity, to protect travellers against both dishonesty and negligence, and if persons were able to obtain access to the premises unnoticed and commit theft, that was regarded as in itself implying a lack of sufficient care. There was not any liability under the edict, however, in cases where the loss or damage had been caused by either inevitable accident (damnum fatale), or superior force (vis major)} but the burden (onus) of proving this was upon the carrier or the innkeeper, and if he failed in doing so he was liable from the mere fact of the loss or damage having happened. Damnum fatale. — The Romans used the term dammim, fatale to signify any loss or injury that was inevitable or unavoidable in that it was occasioned by natural phenomena, such as storm, lightning, earth- quake, cloud-burst, or such like, which do not originate by human means, and are not controllable or avoidable by either human skill or foresight. Vis major. — This expression, signifying literally "superior force" (French, ybrce majeure), was employed with reference to loss or injury caused to either property or person in circumstances involving the exercise of human force and resistance, such as robbery, riot, piracy, and such like events, both occasioned and preventible by human means and actions. Vis m,ajor operated as a defence if it could be proved that the whole force which the person sought to be made liable for the loss could employ in resistance was actually and seriously employed, and that it was yet inferior to the force sought to be resisted. In the operation of the edict Nautae Caupones, the Eoman Law distinguished between loss arising from theft committed secretly and without violence (furtum), and loss occasioned by the exercise of violence and superior force, as in the case of robbery (rapina). In the case of secret theft there was, ipso facto, liability, and the mere fact of the theft happening was held to imply negligence and want of sufficient care ; but in the case of robbery there was no liability, since no amount of care and resistance could have prevented the loss if the force employed to overcome the resistance was actually superior to it, provided that the resistance offered to the violence was made in a genuine {bond fide) effort to preserve the property. 1 Dig. iv. 9, 3, 1. 368 THE CONTRACT OF PLEDGE (PIGNUS) [part iv. The principle of this edict has been generally adopted and extended in the legal systems of modern Europe and in the States of North America, and it is applied, in different ways, in order to regulate the liability of carriers by both sea and land.i such as railway and shipping companies, and of hotelkeepers, and, generally, of all those persons who hold themselves out to facilitate travel and transit.^ Section 117.— The Contract of Pledge (Pignus)^ The contract oi 2ngnus, or "pledge," was the fourth of the contracts re, or " real " contracts under Justinian's classification. Pignus, in the Eoman Law, may be defined as the delivery of a thing to a creditor as a security for debt, upon condition that the creditor would restore the property to the debtor on payment of the debt, or performance of the obligation, and that the creditor should be entitled to sell the property and pay his debt with the proceeds if the debt was not paid by the time fixed.* The contract of pignus or pledge was thus a form of right in security. In order to constitute and complete the contract delivery was essential. The effect of the delivery of the property by the debtor to the creditor was merely to transfer its lawful possession, but the dominium, or actual ownership, remained with the debtor, and he, or his heirs or representatives after his death, might recover the property from either the creditor himself or any third party in whose hands it might happen to be, by means of a rei vindicatio or real action for the recovery of property that is already one's own. The contract of pigmis marks the second stage in the history of the Eoman law of mortgage. In its original form the grant of a right in security involved the actual and absolute transference of the property with both its possession and its ownership, by mancipatio, or injure cessio, 1 This is a more extended application than that of the Eoman Law, in which the term nautae only applied to carriers by water. 2 Cy. French Civil Code, Arts. 1952-1954. 5 Big. XX. 1-6 ; Code, viii. 14 ; Justinian, Inst. iii. 14, 4 ; Big. xiiL 7, 13, 1 ; xliv. 7, 1, 6 ; Code, iv. 24. See also Hunter, Roman Law, 4th ed., 430-448 ; Moyle, Institutes of Justinian, 4th ed., 326-331 ; Sohm, Institutes of Rmnan Law, 3rd ed., 352-355, 378 ; Cuq, Institutions Juridiques des Bomains, i. 634-638 ; ii. 397-399 ; Buokland, Principles of Eoman Law, 241-244 ; Mackenzie, Eoman Law, 7th ed., 224-228 ; Sandars, Institutes of Justinian, 8th ed., 135, 136, 331, 332 ; Girard, Manuel de Broit Romain, 5th ed., 526-529, 532, 533 ; French Civil Code, Arts. 2073-2091. ■* The power of sale was not originally an implied term in the contract of pignus, but it ultimately became such. See also post, 373, note 1 ; and upon the creditor's right of s3\e.,post. Section 119 (1), p. 376. SECT. 117] THE CONTRACT OF PLEDGE (PIGJSfUS) 369 qualified by a collateral pactum fiduciae or " fiduciary agreement " ^ on the part of the creditor to reconvey the property to the debtor on paj'^- ment of the debt at the time fixed or agreed upon, with any interest iipon it. The next stage in the development of the law regarding the grant of a right in security of a debt or obligation was the recognition, under the name of pignus, of an agreement in respect of which the creditor got only the lawful possession (possessio) of the subject, while the dominium or ownership of it remained with the debtor. This modi- fication of the law relating to the granting of a security was due to the recognition in the Praetorian Edict of a right to legal possession as distinguished from a right of ownership, and its consequent protection •of a possessory title to property.^ Disadvantages of Pignus Both the original mode of granting a security by means of an absolute transference of the property by " mancipation " qualified by a collateral " fiduciary agreement " {pactum fiduciae) to reconvey the property on performance by the debtor of his obligation, and the later form of security recognised by the Praetorian Edict under the name of pignus, had certain marked disadvantages. Under the fiduciary form the debtor lost both the ownership and the possession of the property, while under the modified form of pignus the debtor, while retaining, indeed, the ownership, lost both its possession and, consequently, its use. On the other hand the creditor, although he got the lawful possession of the property, was not entitled to use it, or to enjoy its fruits or profits, or to sell it without express agreement with the debtor ^ A contractus Jlductae was the conveyance of anything by mancipatio or in jure cessio, with the condition that if a certain sum was paid by a certain day the thing would be reconvey ed. If the creditor sold the property before the time for pay- ment he might be declared infamus under an actio fiduciae brought against him by the debtor, who, however, did not thereby recover his property. See Hunter, 434 ; Isidor, Orig. v. 25 ; Gains, ii. 59-61. ^ See " Ownership and Possession," ante, Part III., Chapter IL, p. 223 et seq. The contract of pignus gave rise to the actio pigneraticia. This action was f direct " {directa) when it was used by the debtor to compel the creditor either to ^ive back the property pledged, if the debt had been paid, or to pay over the surplus price if the thing pledged had been sold, or to obtain compensation from the creditor for any injury to the thing pledged caused by his fault. The actio pigneraticia was " contrary " {contraria) when the creditor used it to compel the debtor either to repay him expenses necessarily incurred for the preservation of the thing, and to compensate him for injuries sustained by the thing pledged through the fault of the debtor, or to compensate him if the thing pledged proved to be not the property of the debtor and was claimed by the real owner. Cf. -Sandars, Iiutitutes of Jtistinian, 8th ed., 332. 24 370 THE CONTRACT OF PLEDGE (PIGNUS) [part iv. to that effect, or to " vindicate '' it from third parties, since he was not- the owner (dominus). A still further and serious disadvantage of pignus, in particular, was that nothing could he given in pledge that was incapable of physical delivery, for delivery was essential to the- completion of the contract ; moreover, the same property could not he- pledged to different persons for different debts, even although its value might be fully sufficient to cover the amount of all the debts. These disadvantages and inconveniences attaching to pignus, or pledge, in its strict sense as a grant in security by actual delivery of the security subject to the Creditor,^ lendered it necessary to devisfr some form of legal security which would leave with the debtor not only the dominium or ownership of the security subject, but also both its. possession and its use, but which would, at the same time, give to the creditor such a real right in the property as would entitle him, if" necessary, failing payment or performance by the debtor, to take the security subject and sell it and satisfy his debts with the proceeds. Ini this way the third stage in the development of the law of mortgage was reached by the recognition in the Praetorian Edict of a form of contracts in security under the name of hypotheca or " hypothec." ^ Although the three stages signified respectively by the pactum-- fiduciae, pignus, and hypotheca were successive, the introduction of the later did not involve the disappearance of the earlier form. " In point of fact, pledges with and without possession continued to exist, and were subject to precisely the same rules, so that they fall to be considered together, and may in fact be treated as one.^ The earliest (fiducia) long co-existed with the other two and may have flourished up to the time of Constantine. That Emperor, however, gave it a. death-blow, for he abolished the lex commissoria* which was of the essence of the fiducia, namely, that if the money borrowed were not repaid by a given day the pledge would be forfeited and become the absolute property of the lender. Moreover, when the ancient forms of conveyance, mancipatio and cessio in jure, fell into disuse, ^c^itcm lost the other pillar upon which it rested ; and in the time of Justinian, if not earlier, it had passed into oblivion." * 1 Ultimately pignus became identified with hypotheca although there always- remained the essential theoretical distinction that the pignus strictly involved delivery, whereas under hypotheca the creditor got a real right to property that^ nevertheless, remained in the debtor's possession. See " Hypothec," joosi, p. 371. 2 See upon the History of Pledge or Mortgage in Eoman Law, Sohm, Institutes, of Roinan Law, .3rd ed., 352-355 ; Poste, Institutes of Oaiua, 4th ed., 326, 327. ^ Dig. XX. 1, 5, 1. * Code, viii. 35 (a.d. 326). On Lex commissoria, see ante, p. 342. ^ Hunter, Roman Law, 4th ed., 434. Cf. also Sohm, ut stipra. SECT. ii8] HYPOTHEC (HYPOTHECA) 371 Section 118. — Hypothec (Hypotheca)i This was a " Praetorian pact," or, otherwise, a special form of agree- ment deriving its validity and its enforceability from the Praetor's Edict.^ "Hypothec" (hypotheca) was a mortgage or security for debt, created either (a) by express agreement, or (6) by testament, or even (c) tacitly, by mere operation of law,^ and it was specially characterised by the fact that neither the ownership nor the possession of the subject was trans- ferred to the creditor, both of these remaining with the debtor, who at the same time enjoyed the use of the property in so far as the rights of the creditor were not thereby prejudiced. " Hypothec " may be otherwise described or defined as a pledge of property either by mere agreement or by implied agreement, without any special formality, and without the necessity of delivery of possession for the completion of the contract.* (1) Origin of Hypothec The contract of "hypothec" (hypotheca) was originally introduced into the Eoman Law by the Praetorian Edict, in the regulation of the special relation of landlord and tenant ; and it was designed to be a means by which the tenant could pledge the produce of the land cultivated by him in security of his rent. Hypothec originated in the practice of the great Eoman landowners letting out their estates for cultivation as small farms. The only property possessed by these small tenant farmers was, for the most part, practically the stocking of their farms. "Whilst it was necessary that the landowners should have some form of security for their rent, the contract of pignus was, at the same time, obviously unsuited for such cases, as it would have involved the tenant delivering up to the landlord the possession, and at the same time depriving himself of the use of the very things by means of which the farm was to be cultivated and be rendered profitable and thereby capable of paying rent. A Praetor named Servius, but of whom nothing is known beyond ' See Ouq, Institutions Juridiqites des Romains, ii. 304-318. 2 See on " Praetorian Pacts," ante, Section 102 (b), p. 307. 8 I.e. hypothecs were (a) " conventional," (6) " testamentary,'' and (c) " legal " or tacit. * Any form of words sufficed to create the contract if they were sufficiently clear {Dig. xx. 1, 4), and parties did not require to be actually present ; a hypothec might be created in absence, as by letter, or by messenger {Dig. xx. 1, 23, 1). The agreement was generally in writing, but that was not essential to its validity {Code, viii. 14, 12). 372 HYPOTHEC (HYPOTHECA) [part iv. that he lived before Cicero, introduced a form of action by means of which the landlord of a farm might obtain possession of the stock of his tenant for rent due, in those cases where the tenant had agreed that the stock should be treated as a pledge {pignus), although no delivery of it had been given. This action was known as the actio Serviana, and it was subsequently extended, under the name actio quasi- Serviana, or hypothecaria, to all eases in which it had been agreed between debtor and creditor that a thing should be regarded as a pledge, even although there had not been any completion of the contract by the fact of delivery of possession, and that it should be held by the debtor as security for the creditor. In this way " hypothec " {hypotheca) came to be the pledge of a thing by mere agreement, without any formality and without the necessity of delivery of possession in order to complete the contract.^ (2) Advantages of Hypothec {Hypotheca) over Pledge (Pignus) The chief advantages of hypotheca as compared with pignus were that (1) the debtor was not deprived of the use and benefit of the thing pledged, while, at the same time, the creditor was fully secured by a " real " right in the property {jus in re) ; ^ (2) a greater variety of things could be pledged under hypothec, as it was not necessary that the property hypothecated should be capable of actual physical delivery ; thus immovables as well as movables could be the subject of hypothec, and even " future things " ^ {res futurae), such as a sown crop, or an unborn animal {nasciiurus) ; (3) a general security or lien could be created by hypothec over the whole property of a debtor and not merely over particular parts of it ; (4) the same thing might be hypothecated to different persons, at different times, for different debts. In course of time hypotheca and pignus became practically the same contract subject equally to the same rules and principles,* except that there always continued to exist the theoretical distinction that pignus in its strict and narrow sense involved the actual delivery of the security subject to the creditor upon the condition, either express ' See Hunter, Rmnan Law, 4th ed., 433. The hypotheca was borrowed, both in name and substance, from Greek law, and its development from pignus proper was brought about through the influence of the requirements of Greek trade. Cf. Sohm, ut supra, 334, 335. 2 See on " real " rights, ante, Part III., Section 69, pp. 226, 227. 3 See on "future things," post. Section 123 (3) (a), p. 388, Section 124, p. 390. * Cf. Moyle, ut supra, 330. SECT. -ii8] HYPOTHEC (HYPOTHECA) 373 or implied, that the creditor should restore the property to the debtor on payment of the debt, or on performance of the obligation, but that, failing^ payment or performance, the creditor was to be entitled to sell the subject.'- ■ In contradistinction to pign.us in the strict sense hypotheca or " hypothec " was a " real " security given by a debtor to a creditor over property belonging to the former, which was allowed, at the same time, by mutual agreement, to remain in the possession of and to be used by the debtor. Apart, however, from this theoretical distinction pignus and hypotheca became in time practically interchangeable terms.^ (3) Over what Kinds of Property Hypothec could he Ch-anted Hypothec might be constituted over all kinds of property, whether corporeal movables or immovables, such as land and houses ; and the agreement was competent to secure all kinds of obligations, or rights in personam, whether conditional or -unconditional, " natural " ^ or " civil," past, present, or future.* The property hypothecated required to be something that was in commercio, and capable of being sold.^ Any accessions to the thing hypothecated came within the hypothec ; thus a house built upoti hypothecated land was itself subject to the hypothec,^ and a creditor had the same rights over the children of a hypothecated female slave as over the slave herself.^ (4) Who Might Grant a Hypothec It was not necessary that the person giving the. security by way of hypothec should himself be the debtor under the obligation for which the security was to be granted ; any person was entitled to give a hypothec over his own property as a security for a debt or obligation ' This power of sale was not originally implied in, and an essential part of the contract of pignus, and it required to have been expressly granted by the debtor, under a pactum quod liceat vendere ; latterly, however, it came to be an implied term of the contract (see ante, p. 368, note 4, and also post, Section 119 (1), p. 376. 2 See Justinian, Inst. iv. 6, 7 ; Dig. xx. 2, 4 ; xx. 1, 17 ; xx. 5, 1 ; also Dig. xiii. 7, 9, 2 {Proprie pignus dicimus, quod ad creditorem rem transit ; kypothecam cum nmi transit, nee possessio ad oreditorem), and Dig, xx. 1, 5, 1 {Inter pignus autem et kypo- thecam tantum nominis sonus differt). ^ Dig. XX. 1, 5 pr. Unless where the result would have been to evade a positive law such as the Senatus-Gonsultum Maoedonianum (see ante, p. 355) or the Senatus-Consultum Velleianum (see ante, p. 86). * Hunter, ut s:upra, 445. 5 Dig. XX. 3, 1, 2 ; Dig. xx. 1, 24. « Dig. xiii. 7, 21. ■f Dig. XX. 1, 29, 1 ; Code, viii. 25, 1. 374 MUTUAL RIGHTS AND DUTIES IN [PART iv. incurred and owed by another person, and it was immaterial whether or not the obligation had been undertaken on his behalf or for his benefit.^ Moreover, a person with only a power of sale, although not owner, such as a tutor or a procurator, could hypothecate property.^ Section 119. — Mutual Eights and Duties in Pignus and Hypotheca "When the creditor was in possession of the subject pledged he was bound to use " exact diligence " in order to preserve it.^ If, however, the property was unavoidably lost while in the possession of the creditor, either from inevitable accident or from some inherent intrinsic defect, the loss fell upon the debtor as owner of the subject, and the creditor was still entitled to enforce the obligation ; * but he was bound to show that he could not have prevented the loss or accident. The creditor, however, remained liable for wilful negligence (dolus) and for wrong- doing (delictum), and was bound to compensate the debtor for any loss caused to him by such means. When the creditor was in possession of the security subject he was bound to account to the debtor for any fruits or profits of it, unless he was specially entitled to these by express agreement ; ^ but an express agreement was not requisite in order to entitle him to apply the fruits or profits of the subject towards the extinction of the principal debt.* The creditor was entitled to be reimbursed all expenses necessarily incurred by him in the preservation of the subject pledged or hypothecated,'^ 1 Big. XX. 1, 5, 2 ; xiii. 7, 9, 1. 2 Dig. xiii. 7, 11, 7 ; xx. 1, 11 pr. ^ Justinian, Inst. iii. 14, 4 — i.e. he would be liable for culpa levis in ahstracto. See "Fault" (culpa), ante. Chapter VII., Section 112, p. 347. * Justinian, Inst., ut supra. * It was sometimes specially agreed that the creditor was to be entitled to the fruits or profits of the subject pledged by way of interest upon the debt ; such an express agreement was known as pactum antichresis {Dig. xx. 1, 11, 1 ; xiii. 7, 33 ; XX. 1, 1, 3 ; Code, iv. 32, 17). Cf. French Civil Code, Arts. 2085-2091. 6 Code, iv. 24, 1 ; iv. 24, 2 ; iv. 24, 3. ' E.g., repairing a house, medical attendance on a sick slave or animal. The claim to reimbursement remained good, even although the slave or animal after- wards died or the house was afterwards burnt {Dig. xiii. 7, 8 pr.). Cf. French Civil Code, Art. 2080. It was a matter of dispute among Roman jurists whether a creditor was entitled to claim expenses that were not strictly "necessary" for the preservation of the property, but which were actually beneficial to it. Such expenses were known as utiles impensae, or "beneficial outlays," in contra- distinction to impensae necessariae (Paul, Sent. ii. 13, 7 ; Ulpian, Dig. xiii, 7, 25 ; Hunter, 440). SECT. 119] PIGNUS AND HYPOTHECA 375 -and also all loss or damage sustained by him by reason of the Bubject.^ The obligation in respect of which a pledge was given or a hypothec was granted included the principal debt itself, and also, in the absence •of an express pactum antichresis, any interest upon the debt,^ and all necessary expenses in connection with the thing pledged and hypothe- cated.^ The debtor was entitled to have the pledge restored to him, •or to have the hypothec released when the whole debt, interest, and expenses had been paid, or if payment had been offered in good faith,* unless there were other unpaid debts due by the debtor to the creditor that were not secured by pledge, or hypothec, or otherwise ; in such latter- case a creditor in possession of a security subject was entitled to retain a pledge even after payment in full of the particular debt for which the pledge had been given,^ but the right so given was merely one of retention, and did not include a power of sale.^ The debtor, if he remained in possession of the security subject, was entitled to use it, provided he did nothing with it that was prejudicial to the right of the creditor ; but a creditor in possession of the security subject was not entitled to use it, or to take its profits, without an express agreement to that effect. Any accessions to the security subject were the property of the debtor; and in those cases where the subject was in the possession of the creditor, the debtor was entitled to have any accessions set off against the amount of the debt, including ally interest or expenses, 1 But if the debtor was in good faith {in boiid fde), he had the alternative of •"noxal surrender" {noxae deditio), or giving up to the creditor the thing that had done the injury. Cf. Dig. xlvii. 2, 61, 1 ; xiii. 7, 31 ; xlvii. 2, 61, 3. See also on ^' Noxal Surrender," ante, p. 116. 2 See ante, p. 374, note 5. 3 See also post. Section 121, at p. 382. * A thing might be the subject of a contract of pignus, even although it was not the property of the debtor ; in such a case, however, it was liable to be claimed by the real owner, and the creditor would then have an actio pigneraticia <:ontraria against the debtor for compensation (see note 2, ante, p. 369). But unless and until the property, was claimed the creditor remained bound to restore the property to the debtor on payment of the debt. Cf. Sandars, Imtitntes of Justinian, 8th ed., 332. 5 But this was only as against the debtor himself {Code, viii. 27, 1). By the French Civil Code, Art. 2082, a creditor may retain a pledge for other debts due to him from the pledger, without the necessity of any special agreement. By the law of England a creditor is not entitled to retain a pledge in security of any other debt than that for which it was given ; and the law of Scotland, though not definite upon the point, is probably the same (see National Bank v. Forbes, 1858, ■2,1 D. 79). See also post, p. 378, Section 119 (2), "Creditor's Eight of Eetention." 376 MUTUAL- RIGHTS AND DUTIES IN [part iv. unless, by the special agfeement already referred to,^ and known as 'pactum antichresis, the creditor was to be entitled to the fruits or profits as, or instead of, interest upon the debt.^ . (1) Creditor's Bight of Sale The creditor had a right to sell the tiling pledged or hypothecated, and to satisfy his debt out of the proceeds of the sale, if the time fixed for payment of the debt, or performance of the obligation in respect of which the security had been given, had passed.^ If, however, the right of hypothec had been granted conditionally, the creditor could not demand possession of the subject before the condition had been fulfilled and the debt had thereby become due.* If the amount realised by the sale more than sufficed to pay the whole debt (including, as it did in the ordinary case, any interest and necessary expenses ®) the debtor was entitled to get any surplus price, and the creditor was bound to hand it over ; ^ but if the amount realised by the sale was not sufficient to pay the whole debt, the creditor still retained a personal action against the debtor for the recovery of the unpaid balance of the debt, although, by the exercise of his right of sale, the rights of hypothec or of pignus, as the case might be, were thereby extinguished, and the remaining balance of the debt was thereby unsecured. The right of sale originally required to be express in order to entitle the creditor to validly exercise it, but it came, latterly, to be an implied term of the contract. It was usual for parties to agree specially as to the mode or circum- stances in which the power of sale was to be exercised, in which case no judicial authority was required; but in the absence of any such special agreement between the parties a special procedure was prescribed ' See ante, p. 375, and p. 374, note 5, and post, p. 382. 2 "Fruits" or "profits" were held to include "natural," "civil," and " industrial " fruits, and such things as services of slaves and rents of houses, and generally any benefit derived by the creditor through or by reason of the security ; there was, consequently, also included any damages that the creditor might have received on account of things stolen, unless the debtor was the thief (Hunter, 439 ; Code, iv. 24, 2 ; Dig. xiii. 7, 22 pr. ; Dig. xlvii. 2, 79). On pactum antichresis, cf. French Civil Code, Arts. 2085-2091. ' Cf. Justinian, Inst. iii. 14, 4 ; iv. 6, 7 ; Dig. xx. 1 ; Dig. xiii. 7 ; Code, iv. 24 ; Code, viii. 14-18. « Dig. XX. 1, 13, 5. ^ See as to " Necessary Expenses," or those requisite to preserve the security subject, ante, p. 374, note 7. " Dig. xiii. 7, 42. The surplus of the amount reahsed by the sale over the value of the whole debt was called hyperocha. SECT. 119] PIGNUS AND HYPOTHECA 377 : that was intended to protect the interest's of both debtor and creditor. Justinian required i that the sale should not take place until two years had elapsed from the date when the creditor gave the debtor notice to pay, or from,, the date when the creditor obtained judicial authority to sell' the property; if the creditor had not possession of the property, he required to obtain a judicial warrant to sell ; but if he had possession of the property all that he required to do was to give formal notice to the debtor of his intention to sell, and he was then entitled to sell, two years after either of these events.^ If the same subject had been hypothecated successively to several persons, only the creditor whose hypothec was first in priority of time could exercise the power of sale ; his right excluded that of all other creditors, and he was entitled to be paid in full, only the balance there- after being divided amongst the subsequent creditors in order of their priority, unless a subsequent creditor had, by one or other recognised means, placed himself in the place of the first creditor,^ - Priority in time was determined by the date of the contract of hypothec, and not by either that of obtaining possession of the property or of the debt for which the hypothec was granted.* The creditor's right of sale only emerged when the debtor's default put the creditor in a position to sue him, or, in other words, when the debt became exigible,^ but it continued thereafter until the whole debt, including principal, interest, and necessary expenses, had been paid.* If it had been agreed between the parties that payment of the debt was. to be by instalments, and not all at one time, the creditor's right of sale did not become active until the last instalment was due and unpaid ; if, however, on the other hand, the parties had agreed that if any of the instalments was not paid at one or other of the fixed times the creditor was to be then entitled to sell the property, he could legally do so if the debtor failed to pay even the first instalment.'' 1 Code, viii. 34, 3, 1. 2 Code, viii. 34, 3, 1 ; Dig. xiii. 7, 4 ; xiii. 7, 5. By French law judicial authority to sell is requisite (Civil Code, Art. 2078). The same rule prevails in Scotland (2 Bell, Com. 22), but in England the creditor, upon the debtor's failure to pay, is entitled to sell without judicial procedure after giving to the debtor reasonable opportunity to redeem (Story, Commentary on the Law of Bailments, 4th ed., sees. 308-310). See Mackenzie, Roman Law, 7th ed., 227. ' LHg. XX. 5, 5 pr. ; Code, viii. 18, 1 ; viii. 18, 8 ; viii. 18, 5 ; e.g., a subsequent creditor who advanced money for the preservation of the property was given a preference {Dig. xx. 4, 5, 6). ■> See^o«<, p. 378. For examples illustrative of "priority' of creditors' rights, see Hunter, ut supra, 441-442. ^ Dig. XX. 5, 4. « Dig. xiii. 7, 8, 5 ; Code, viii. 28, 6 ; Code, viii. 29, 2. 7 Dig. xiii. 7, 8, 3. S78 PIGNUS AND HYPOTHECA [part iv. When the creditor sold the security subject he was assumed by the law to be acting as the agent of the debtor, and he was therefore bound to conduct the sale at such a time and in such a place and manner as would be most conducive to the interests of both himself and the debtor ; consequently, if the creditor sold the security in bad faith, for less than he might reasonably have obtained for it, he was liable in damages to the debtor ; and if the purchaser had been in collusion with the creditor he was liable to restore the property to the debtor. (2) Creditor's Bight of Betention This right, known as the jus reti'tiendi, was one in respect of which the creditor was entitled to retain possession of the subject pledged as security for a debt or debts other than that for which it was given, that was or were due by the debtor to him, and were not otherwise secured, even after the debt for which the property had been pledged had been fully paid, or the obligation otherwise fully performed ; this was, how- ever, a mere right of retention, or lien, and did not give the creditor a " real " right in the thing (Jus in re), or a right of sale.^ (3) Rights of Creditors amoiigst Tliemsehes {Inter se) — Priority Creditors who obtained a hypothec over the same thing at the same time were regarded as having equal and indivisible rights in the subject, and no such creditor had any preference over any other.^ The question of preference or precedence amongst creditors only arose when the same thing was hypothecated at different times to different creditors for different debts. In such cases the creditor who happened to have the prior hypothec was preferred to him who had acquired his right subsequently; the creditor who possessed the first hypothec had preference over all the other subsequent creditors, and was entitled to be paid his debt in full, only the balance that might remain thereafter being divisible amongst the subsequent creditors, in the order of their priority ; but a subsequent creditor might put him- self in the place of a prior creditor by paying off the latter's debt.^ The factor which determined the priority of a creditor's rights was the date of the granting of the hypothec, and was neither the date of acquiring possession of the property nor the date of the debt for which the security was given.* ' See ante, p. 375, and note 5, ihid. 2 Dig. xiii. 7, 20, 1. ' Cf. ante, p. 377, and note 2, ihid. * Cf. ante, p. 377. 5ECT. 120] TACIT OR IMPLIED HYPOTHECS 379 If the date of the acquisition of a creditor's right of hypothec was known and certain, it was preferred to and got precedence or " priority " before the rights of creditors of which the date of acquisition was unknown or uncertain.^ Moreover, all secured creditors, whether their rights were certain or uncertain, were preferred to those who were not secured by either pledge or hypothec.^ Section 120. — Tacit or Implied Hypothecs (Tacita hypotheca)^ Tacit hypothecs are those created by mere operation of law. The Eoman Law recognised the existence of certain hypothecs in respect of particular kinds of debts, without the necessity of agreement ■concerning them ; they were thus implied or " tacit " {tacita), and such hypothecs, in certain cases, such as, e.g., debts due to the public treasury ; a married woman's claim to her dos or dowry; money advanced on security of property expressly to save it from destruction, were privileged to the effect of ranking before those that might be actually prior in date of granting.* Privileged and tacit hypothecs were either "general" or "special," according as they extended over the debtor's whole estate or only over a particular part of it. (1) Tacit "General" Hypothecs Among tacit "general" hypothecs were the following: — (1) The hypothec of the "fisc" (Jiscus) or public treasury, in respect of taxes or of fines, over the whole property of a person so indebted ; ^ (2) the hypothec of pupils, minors, and insane persons over the whole estates of their tutors or curators for loss arising through their fault ; " (3) the hypothec of a husband over the property of the person bound to provide his wife's dowry (dos), and the hypothec of a wife over the property •of her husband for restitution of her dowry;'' (4) the hypothec ■of children under potesias over the property of their father in 1 See, for examples of priority among creditors, Hunter, ut supra, 441, 442. 2 Code, viii. 18, 9. ^ Big. XX. 2 ; Code, viii. 15. * See ante, Part II., Section 45, p. 173 et seq. — "Devolution of the Dos"; Digest, 20, 4-5 ; of. French Civil Code, Art. 2121. 5 Big. xlix. 14, 46, 3 ; Code, iv. 46, 1. ^ Code, iv. 53 ; v. 37, 20 ; v. 70, 7, 5-6. See ante, Section 55, at p. 196, and Section 65, p. 208. ' Justinian, Inst. iv. 6, 29; Big. iv. 5, 8; Code, viii. 18, 12 pr., ], 2 ; v. 13, 1, 1 ; V. 3, 19, 2 ; v. 12, 30. This hypothec was introduced by Justinian. See upon "Dowry" (dos), ante, Part II., Sections 41-45, pp. 169-175. 380 TACIT OR IMPLIED HYPOTHECS [PART iv. respect of property coming to them from their mother's side (hona materna) ; ^ (5) the hypothec of legatees, or of fidei-commissarii, over the property of the deceased, or over the particular part of the inheritance that was burdened with the legacy, or the trust, in security of payment.^ (2) Tacit "Special" Hypothecs Amongst tacit "special" hypothecs were (1) the hypothec of the proprietor of a rural subject — such as lands, gardens, vineyards — over the fruits (fructus) of the subject in security of the rent.^ This right is known as the " rural hypothec." It extended only over the crops of the tenant and nothing else, unless expressly agreed otherwise, in which case, moreover, it only applied to things intended for permanent use. The implied hypothec of the landlord attached to the crop {fructus) from the moment of gathering it.* (2) The hypothec of the owner of " urban " property ^ — such as houses, shops, warehouses, or other build- ings — over the movable property brought by the tenant (inguilinus) into the urban subject for his personal use, in security of the rent. This right is known as the " urban hypothec " ; it covered all things brought in (invecta et illata) for use on the premises, although such had been done without the knowledge of the tenant, and it extended gener- ally to all claims competent to the landlord against the tenant arising out of their contract of letting.* The particular kinds of property to which, by the Eoman Law, the implied urban hypothec strictly applied were dwelling-houses, granaries {horrea), inns (deversoria), and threshing-floors (areae), but it did not extend to farms (praedia rustica)J The " urban " hypothec was originally confined to Eome and its suburbs, and was only extended to the provinces by Justinian.* (3) The hypothec over a building possessed by a person who had lent money expressly either to build it, or to repair it in order to preserve it from destruction.^ (4) The hypothec of legatees over the special portion of the testators' estate' burdened with their ^ Code, V. 7, 8 ; vi. 61, 6, 4. See also on bona materna, Part II., Section 31 (d), at p. 138. 2 Code, vi. 43, 1 ; vi. 43, 3 ; Mvels, 108, 2. ^ Dig. XX. 2, 7 pr. * Dig., ut supra. ' Upon the distinction between the terms " rural " and '' urban,'' see " Servi- tudes," ante. Part III., Section 87, pp. 269, 270. ^ Dig. xiii. 7, 11, 5 ; xx. 2, 4 pr. See also Dig. xx. 2, 2-4, 6, 7, 9. " Dig. XX. 2, 4, 1 ; Code, viii. 15, 5. ^ Code, viii. 15, 7. ' Dig. xlii. 5, 24, 1 ; xx. 2, 1 ; xx. 4, 5. SECT. 121] TERMINATION OF RIGHTS 381 legacies. (5) The hypothec of pupils over property bought by their tutors with their moiiey.^ (6) The hypothec possessed by bankers over immovables bought by their clients with money advanced by them.^ The tacit hypothecs given by the law to the owners of urban and rural subjects were the oldest of all such legal rights. All privileged hypothecs in regard to which priority in time was not postponed to other considerations ranked according to their priority in time, but were preferred to all non-privileged hypothecs. All other hypothecs that were not so specially treated, or protected by the law took rank and preference strictly according to their priority in time, and all creditors who were secured by pledge or hypothec were preferred, in turn, according to the date of their security, to all those who were not so secured.^ In the case of ordinary hypothecs that were not tacit and privileged, preference was given to mortgages granted by public deed * over those granted only by private document. Section 121. — Termination of Rights under Pignus and Hypotheca ^ Rights created under the contracts of pignus and of hypotheca were extinguished by (a) " solution " (solutio) or performance ; (b) sale ; (c) remission (remissio) ; (d) confusion (confusio) ; (e) destruction ; or (/) prescription. (a) Solution. — Extinction in this way signified performance of the obligation in security of which the pledge was given, or the hypothec was created. The debtor was not entitled to reclaim any part of the property pledged or hypothecated until the obligation had been entirely fulfilled,^ by payment of the debt, and also all incidental expenses that 1 Big. xxvii. 9, 3 pr. ; Code, vii. 8, 6. 2 Novels, 136, 3. This hypothec was specially granted by Justinian to members of the Corporation of Bankers {collegium argentarim-um) ; in general, a person with whose money anything was bought had no hypothec over it unless by express agreement {Code, viii. 14, 7 ; Hunter, 445). 3 Code, viii. 18, 9. * A public deed was one prepared by a notary {tabellio), and sealed in the presence of witnesses. A preference was also given by the Emperor Leo {Code, viii. 18, 11), and continued by Justinian {Nov. 73, 1), to a private deed if signed by three good and respectable witnesses. 5 Cf. Hunter, Roman Law, 4th ed., 445-447. 6 Dig. XX. 1, 19 ; xiii. 7, 8, 1 ; Code, viii. 28, 6. 382 TERMINATION OF RIGHTS UNDER [part iv, were necessary and reasonable/ and any interest due upon the debt^ unless there had been an express agreement {pactum aivtiehresis) with regard to that;^ until full solution had been made the creditor was- entitled to retain the property.^ If the debtor in bond fide offered payment to the creditor, and the latter refused to accept it, the hypothec was released by the consignation or deposit of the money in a sealed bag.* (b) Sale. — The sale by the creditor of the subject pledged or hypothecated extinguished the obligation so far as the price realised by the sale sufficed to pay the debt; but the debtor remained liable to pay any balance of the debt that was not covered by the price obtained, and the creditor had a personal action against him in order to recover the balance of debt still unpaid.^ If, on the other hand, there was a surplus on the sale, the debtor was entitled to get it from the creditor after payment of the principal debt, interest, and expenses.^ (c) BemissionJ — This was the voluntary release by the creditor of the subject pledged or hypothecated without payment having been either given or demanded, and it operated extinction of the security. Remission of a pledge or of a hypothec might be either express or implied. Implied remission or release might be effected in such ways as (a) by the acceptance on the part of the creditor of some other security in place of the original one ; for example, by taking a surety instead of the pledge;^ or (&) by the creditor consenting to the sale of the hypothecated property,® unless while consenting to the sale the hypothec was expressly reserved ; i" or (c) by the creditor restoring the property to the debtor without asking or receiving payment of the debt, and with ^ Biff. XX. 6, 1 pr. See also ante, Section 119, p. 374. ^ Big. XX. 1, 13, 6. See on pactum antichresis, ante, p. 374, note 5. ^ See " Creditor's Right of Betention," a^ite, pp. 375 and 378. * Code, viii. 25, 2. This was known by the expression deponere consignatum. 6 Big. xii. 1, 28. " Big. xiii. 7, 42. See also ante, p. 375. ' Known specially in the Roman Law by the expression remissio pignoris. 8 Big. XX. 6, 5, 2. " Big. 1. 17, 158. If the debtor had sold the hypothecated property, the mere fact of the sale did not of itself create any legal presumption of the consent of the creditor unless the sale had been properly advertised and had taken place with the creditor's knowledge and without any objection on his part (Big. xx. 6, 8, 15 ; Code, viii. 26, 6). See Hunter, p. 446, and illustrative examples, ibid. >" Big. XX. 6, 4, 1. SECT. i2ij PIGNUS AND HYPOTHECA 38? the intention (animus) of thereby releasing the security ; ^ or (d) by the •creditor returning to the debtor the title-deeds of the property that had been hypothecated.^ (d) Confusion. — The obligations under pignus and hypotheca were extinguished by " confusion " (confusione) in those cases when the rights of the creditor and the obligations of the debtor became confused or merged in the same person ; as, for example, if the debtor became the heir of the creditor, or if the creditor became the owner of the property hypothecated, by purchase, or by any other legal mode of transfer.^ (e) Destruction. — The destruction of the property pledged or hypothecated extinguished the security and the rights and obligations in respect of it.* A mere change in the vsubject of security, however, did not operate extinction so long as its intrinsic character was not altered ; thus, the pulling down of a house standing upon hypothecated ground did not cause the hypothec over the ground to cease to subsist ; ^ and, similarly, if hypothecated ground that was uncultivated was to become cultivated, or built upon, the hypothec over the ground would continue unaffected thereby." (f) Prescription.'' — If a third person, other than the debtor or his heirs, got possession of the thing pledged or hypothecated, and there- after continued to possess it, in good faith, for the prescriptive period required by law, of ten or twenty years as the case might be, th& creditor's "real" right in the property was thereby extinguished, and the defective title of the possessor was at the same time validated.* 1 Code, viii. 26, 9. 2 Code, viii. 26, 7. 3 Dig. XX. 6, 9 pr. ; xiii. 7, 29. * Dig. XX. 6, 8 pr. 5 Dig. XX. 1, 29, 2. s Dig. XX. 1, 16, 2. ' See on " Prescription," ante, Part III., Chapter V., p. 250 et seq, 8 Code, vii. 36, 1, 2. CHAPTER IX The " Consensual " Conteacts ^ The " consensual " contracts, or those created and completed by consent {consensu) alone, to the effect of simultaneously imposing mutual obliga- tions upon the parties, formed the fourth of the cksses into which Justinian divided obligations arising ex contractu? The important element in the consensual contracts was the fact of the mutual consent of the parties, while the form in which the consent was expressed^ and the actual presence of parties were immaterial and unimportant,^ so long as the consent itself was sufficiently clearly expressed and given in return for a valuable consideration.^ The essential features of the " consensual " contracts were that (a) they were bilateral, and as such bound both parties ; (h) they were bonae fidei and not stricti juris ; and (c) they could be completed in the absence of parties, as by letter, or by messenger. The contracts peculiar to the early Eoman Law, such as the " stipula- tion," were unilateral, while " commodate," " deposit," and "pignus " were only bilateral in the sense that they gave rise to "contrary" actions {actiones contrariae) only when one party had performed what he had undertaken, and only then were both parties bound. The " consensual " contracts, however, were not enforced by actions stricti juris, such as were proper to the contracts peculiar to the older Eoman law, but by actions lonae fdei, or " of good faith," or, in other words, by actions having their origin and sanction in the Praetorian Edict, in which the issue was determined upon principles of equity and not upon the strict letter of the law.^ ' Justinian, Inst. iii. 22-26 ; Gains, Inst. iii. 135-162. 2 See ante, pp. 304, 309, 312. ' Justinian, ut supra, iii. 22, 1. ^ Justinian, lU supra, iii. 22, 2. * The presence of a valuable consideration was the distinguishing characteristic of the Eoman " consensual " contracts, but in the Institutes (iii. 22) this feature is not referred to, possibly because the gratuitous contract of mandate was included in the contracts consensu by Justinian, when it would more properly have been placed among the contracts re. {Cf. Hunter, ut supra, 490 and 533 ; and see " Mandate," post, at p. 424.) " Of. Sandars, Institutes of Justinian, 8th ed., 362. 384 SECT. 123] ESSENTIALS OF CONTRACT OF SALE 385 The "consensual" contracts, according to Justinian's classification, were (1) sale (emptio-venditio) ; (2) hire (locatio-conductio) ; (3) partner- ship (societas); and (4) mandate (inandatum)} Section 122. — The Contkact of Sale (Emptio-veisiditio)^ The contract of sale, known in the Roman Law as emptio-venditio, is one by which a person promises to give or deliver to another person something in consideration of, or in return for, a price to be paid. The price is the essential feature of the contract of sale ; if one thing, other than a money price, is given in return for another thing there would not, thereby, be created a contract of sale {emptio-venditio) but one of exchange (permutatio). Sale and exchange were distinguished in the Roman Law in that the former was created conseiisu, while the latter was created re, the one party being bound to give the thing agreed upon only after the other party had already delivered the other thing.^ The person giving the property in the contract of sale was called the venditor, or " vendor," or " seller," and the person receiving the thing agreed upon was called the emptor, or " vendee," or " buyer " ; the thing sold was known as the merx or " merchandise," and the consideration given was styled the pretttim or " price." Section 123. — Essentials of the Contract of Sale Three requisites are essential to the valid constitution of a contract of sale — namely, (1) the agreement of the parties; (2) a price; and (3) a subject to be sold. (1) The Agreement of Parties. — The agreement of the parties in the contract of sale is to mutually give the thing sold for the price offered, and it may be either express or implied, written or verbal, by letter, by an agent or messenger, or merely inferred from the conduct or acts 1 See as to the accuracy of including mandate amongst the consensual contracts, post, p. 427. 2 Dig. xviii. 1; six. 1 ; xxi.; Justinian, Imt. iii. 23; Gains, Inst. iii. 139-141; Gode, iv. 38-40. See also Moyle, The Contract of Sale in the Civil Law, 1892, Oxford ; and Mackintosh, The Roman Law of Sale, 1892, Edinburgh. Gf. also Moyle, Institutes of Justinian, 4th ed., 429-435 ; Poste, Institutes of Gaitis, 4th ed., 368- 370 ; Hunter, Roman Law, 4th ed., 490-505 ; Mackenzie, Roman La,%u, 7th ed., 235-242 ; Sandars, Institutes of Justinian, 8th ed., 362-368 ; Buckland, Principles of Roman Law, 266-274 ; Cuq, Institutions Juridiques des Romains, ii. 400-423 ; Girard, Mamiel de Droit Romain, 5th ed., 535-568. Cf French Civil Code, Arts. 1582-1701. 3 Cf. Dig. xix. 4, 1, 2. 25 386 ESSENTIALS OF CONTRACT OF SALE [part iv. of the parties.1 Although the contract of sale was, in general, completed by the mere consent of parties expressed in any of these ways, yet the Justinian ian law provided that if it was agreed between the parties that the contract should be reduced to writing the contract was not complete until that had been done, and either party might withdraw or resile without thereby incurring liability, up to the time of the formal execution of the contract.^ (2) The Price or " Consideration " (Pretium). — A price or " considera- tion " was not only necessary for the valid constitution of the contract of sale, but it was also its essentially distinctive feature* The price, moreover, required to be (a) fixed in money ; (b) definite ; (c) real ; and (d) sufficient, (a) Price Fia:ed in Money. — Although it was essential that the price should be fixed in money ,^ or be capable of being ascertained in money,* the actual payment might be in goods of equivalent value,® or in some other equivalent ; so, for example, a house might be sold for a fixed sum, but only a portion of that amount might be paid in actual money, and the buyer might perform for the seller some services equivalent in value to the unpaid balance of the price. '' (b) Price Definite. — The price was usually fixed by the parties, but they might competently agree to leave it to be fixed by a third party ; such person's valuation, however, was only binding if it was certain.^ If the third party either could not or would not fix a definite price the contract was invalid, for in such a case its validity was conditional upon the price being definitely fixed by the third person. There would not be a good contract of sale constituted if the price was left to be fixed by the buyer himself.^ (c) Price Real. — It was essential that the price should be a real or actual one {verum preti^om) ; the sale must not be merely a fictitious or a nominal one {imagiimria venditid)^^ and the price must be one intended to be paid and without receiving which the seller does not ' Gf. Justinian, Inst. iii. 22. ^ Justinian, Inst. iii. 23 pr. Cf. Buokland, Principles of Roman Law, 274. 3 Inst. iii. 23, 1. •* Gf. Justinian, Inst. iii. 23, 1 ; Gains, Inst. iii. 140. ^ Justinian, Inst. iii. 23, 2 ; Gains, Inst. iii. 141. « Gode, iv. 44, 9. ^ Cf. Dig. xix. 1, 6, 1. ' Justinian, Inst. iii. 23, 1 ; Gains, Inst. iii. 140 ; Gode, iv. 38, 15. " Big. xviii. 1, 35, 1 ; Code, iv. 38, 13. w Big. 1. 17, 16. In such a case the transaction would be a gift, not a sale (Big. xviii. 1, 36). Gf. Planiol, Traite iiUmentaire de Broit Civil, ii. 1379. SECT. 123] ESSENTIALS OF CONTRACT OF SALE 387 intend to transfer the property,^ although for any reason, such as special favour to the buyer, the price may be modified in amount.^ If the consideration given was merely an imaginary or ostensible price not really intended to be exacted there was no true contract of sale.^ (d) Price Sufficient. — The price also required to be fair and reason- able {justum pretiurit), but mere insufficiency of price did not suffice to invalidate a contract of sale, when there was no question of fraud {dolus) involved.* By the Code of Justinian a seller had a right to rescind the contract and recover the property in those cases where the thing was sold for a price that was less than half its true value, unless the purchaser consented to make up the deficiency in the value ; ^ but this probably did not apply in those cases where the seller had acted knowingly. This special right given to the seller apparently arose from an erroneous idea that the price in a sale, in order to be a true one, ought to be equivalent to the value of the thing sold, whereas, in the absence of any fraud or bad faith, the amount agreed upon by the parties is the essential matter, and constitutes a good price, however little proportion it may bear to the true or actual value of the property. The technical ground of this peculiar right was that less than half (dimidiuni) the true value constituted " lesion " (laesio) or injury, or loss to the seller.^ There were three cases, however, in which the seller could not rescind the contract on the ground of lesion (laesio eiim-mis), namely, (1) when the seller expressly waived his right ; (2) when the sale was the purchase of a chance or hope of gain {emptio spei) ; '' and (3) when the thing was sold at an under-value in terms of a testament under which the seller was the heir, or had derived benefit. It has been suggested by some writers, but without authority, that the buyer might have a right of rescission corresponding to that of the seller, on the ground of excess of price, unless the seller should consent to accept a fair price. 1 Code, iv. 38, 3. 2 Dig. xviii. 1, 38. 3 Code, iv. 38, 3. * Dig. iv. 4, 16, 4. = Code, iv. 44, 2, 8. Cf. French Civil Code, Art. 1674, which provides that if the vendor of an immovable has been damaged by receiving seven-twelfths less than its true price he has the right to demand that the sale should be rescinded, even though, by the terms of the contract itself, he has renounced any right to ask for rescission, and the contract recites that full value has been given. (See also Art. 1681.) The "true price" is the fair market value unaffected by any circumstance peculiar to either vendor or purchaser. * The technical expression used to signify loss so occasioned was laesio ultra dimidium, or "injury beyond half." ' See post, p. 390. 388 ESSENTIALS OF CONTRACT OF SALE [part iv. (3) Tlie Subject of the Contract of Sale. — Stated generally, all things in commercio might be the subject of sale, unless specially forbidden by the law.^ The vieiw or "merchandise,'' or subject, might be things corporeal and incorporeal, real rights, and per- -sonal rights; moreover, a "future" thing (i-es futvra) not in exist- ence at the time of the contract, but which is expected to come into existence in ordinary course of time — such as a sown crop and the unborn young of animals — and even a mere chance of future gain, such as a hope of succession {spes succession-is), or of success in a lottery, might be the subject of a contract of sale.^ Further, a res aliena, or a thing belonging to some person other than the seller, might even be the subject of a sale, for the mere fact that the person selling had no right to the subject as owner did not invalidate the sale ; in such a case, however, the real ownership {dominium) was not transferred by the sale, and the real owner {dominus) was therefore entitled to " vindicate " or claim his property ; if he did so successf uUj', the seller was liable to compensate the buyer for any loss that he had sustained through having been evicted from the property.^ If, however, the buyer had bought the property in good faith and had subsequently acquired a title by prescription, or if the real owner had in any way ratified or homologated the sale, the thing could not thereafter be vindicated from the buyer by the true owner. (a) What could not he the Subject of Scdc The following things could not form the subject of a valid contract of sale — namely, (1) things outside commerce {i-es extra commercium),* whether they were so placed either by reason of their nature or through being forbidden by law ; thus the law expressly prohibited the sale of free men and of stolen property (res furtive) ; (2) non- existent things ; these are either (a) things that have already existed but have now ceased to exist — such as a dead horse or a house that has been destroyed ; or (h) things which, from the very nature of things, cannot exist — such as a mythological animal. " Non-existent " things must be distinguished from " future " things, which are things that do not yet exist but will come into existence in ordinary future course of 1 Dig. xviii. 1, 72, 1. 2 Cf. Dig. xviii. 1, 8. See on "Future Things," post, p. 390. 3 Dig. xli. 3, 23, 1 ; Code, iv. 52, 5 ; \\n. 45, 6 ; viii. 45, 23. See " Sellert Duties," ^os<, Section 127 (1), p. 396. * See on "Things Extra Cmnmerciiim," a?!fe. Part III., Section 67 (h), p. 217, and Section 68, p. 217 et seq. SECT. 123] ESSENTIALS OF CONTRACT OF SALE 389 time — such as a crop that has been sown ; (3) things that are already the property of the buyer {res sua) ; (4) the services, or labour, or skill of a person ; these might be hired for a consideration, but could not be sold for a price. The sale of a non-existent thing ^ was void if neither the seller nor the buyer knew that the subject of the sale had ceased to exist ; if a price had already been paid, it required to be restored to the buyer. If the seller alone knew that the subject was non-existent, he was liable to compensate the buyer for any loss he might suffer owing to the seller's non-performance of the contract, and he was also bound to give back the price to the buyer if it had been paid. If, on the other hand, the buyer alone knew that the subject of the contract was non-existent, he was liable to pay the price agreed upon, and had no remedy against the seller. If both seller and buyer knew that the subject was non- existent there was neither contract nor liability. It might, indeed, happen that the subject was only partially non-existent ; in the case of the partial destruction of the subject of sale the buyer was still bound by the contract, but was entitled to a reduction of the price proportionate to the deterioration of the property, unless more than half of the subject had been destroyed, or the buyer could prove that the portion remaining, although exceeding half of the subject, was not that special part on account, or mainly on account, of which he had bought the property. In the case of the sale of property that is already the property of the buyer {res sua), the rule of the Roman Law was that such a contract was void irrespective of whether the purchaser was aware of the fact or not; if, however, a price had been paid the purchaser could only recover it from the seller if he was ignorant of the fact that the subject was really his own property. There were some apparent exceptions to this rule, in certain circumstances ; thus, for example, a man might be entitled to the legal possession of property belonging to another person, and the owner of the property might validly purchase that right of possession from him ; or again, a man might be entitled to property if a certain condition should happen to be fulfilled, but rather than take the risk of the non-fulfilment of the condition he might validly pur- chase the property, and the subsequent fulfilment of the condition did not render the sale invalid, even although, as events turned out, it would have become his property in any case without the necessity of purchase. In the former case the thing purchased is the right of ' See also ante, pp. .331-332. 390 SALE OF FUTURE THINGS [part iv. possession, but not the right of ownership which is already in the purchaser ; while, in the latter case, the thing bought did not belong to the purchaser, and so was not a res sua at the time of the transaction. 'Section 124. — Sale of Future Things (Ees futueae) Bes futurae, or " future things," were, as distinguished from " non- existent " things,!' things that are not yet in existence but which are likely to come into existence in the ordinary future course of events, such as, for example, the produce and fruits of land, or of animals, interest on money, and such like. "Future" things might competently be the subject of a contract of sale, but the Eoman .jurists drew a distinction between the pur- chase of a mere chance or hope of future gain, and a purchase of something hoped for in the natural future course of events ; this distinction was connoted by the expressions emptio spei and emptio rei speratae^ Emptio spei signifies literally, " the purchase of a hope " or of a mere chance of future gain ; it is the chance only that is purchased and not the subject hoped for, which may not exist at the time of the purchase, and may never exist, there being only the hope and chance that it will exist ; for example, a hope of inheritance (spes successionis), the hope of a catch of a fisherman's net, the hope of success in a lottery or sweepstake. Emptio rei speratae is, literally, " the purchase of a thing hoped for," and not merely of the h.ope alone, as in the case of emp>tio spei. The expression signified the purchase of an actual thing hoped for and expected in the ordinary and natural future course of events, such as a crop already sown but not yet sprung up, or the young of animals not yet born but about to be born {nasciturus). The distinction is further illustrated thus : " Either a proportionate price may bo agreed to be paid on a greater or lesser number of things that may be actually realised, as ' so much a head for all the fish I catch to-day,' which is termed rei speratae emptio ; or a definite sum may be agreed on as the price of the possibility of any number of things, more or less, being realised, as ' so much for the chance of all the fish I catch to-day'; and this was termed spei em,ptio."^ 1 See ante, p. 388. 2 Cf. Dig. xviii. 1, 8, 1. ' Sandars, Institutes of Jihstinian, 8tli ed., 363. Cf. Dig. xviii. 1, 8, 1. SECT. 125] HOW CONTRACT OF SALE CONSTITUTED 391 In the case of the purchase of a mere hope the price was payable whether or not the subject eventually came into existence ; but in the case of the purchase of an actual thing hoped for and expected the price was only payable in proportion to what was eventually forth- coming. Section 125. — How the Contract of Sale was Constituted The contract of sale was complete as soon as parties had agreed upon the subject of the sale, and upon the price to be paid/ either as fixed by themselves or as determined by the arbitrament of a mutually agreed upon third person, without the necessity of their consent being expressed in writing, or in any special form of words. The agreement of parties upon the subject of the sale and the price was thus the date of the contract,^ and when delivery was afterwards given, and the price paid, these events operated retroactively to transfer the owner- ship to the buyer.^ This was due to the fact that the contract of sale {e^nptio-venditio) pertained to the jus gentmm* and was consequently unattended by any of the material symbols and formalities that characterised the contracts peculiar to the strict jus civile ; as soon as there was agreement with regard to the subject and the price the contract was complete, and nothing required to be delivered, and no money required to be paid in order to create an obligation binding upon both parties ; the obligation having been thus created, the seller was thereupon bound to deliver the subject, and the buyer was, at the same time, bound to pay the price.^ Justinian, however, modified the existing law to the effect that if parties expressly agreed to put their contract in writing it would not be complete and binding until that had been done and the written agreement had been signed by the parties, until which time tliere was " room for repentance " (locus-poenitentiae), and either party might withdraw from the agreement without thereby incurring any liability for breach of contract." But if arrhae or earnest- money had been given the case was different, and, in such circumstances. 1 Cf. French Civil Code, Art. 1583. 2 Dig. xviii. 6, 8 ; Code, iv. 48, 1. Cf. Hunter, 284, 28.). 3 Cf. post, p. 393. * See Part I., ante, p. 60. « See "Sellei-'s Duties," post, Section 127 (1), p. 396, and "Buyer's Duties," Section 127 (3), p. 400. '' Justinian, Inst. iii. 23 pr. ; Gaius, Inst. iii. 139 ; Code, iv. 21, 17. There is an apparent conflict between the terms of the Institutes, iii. 23 pr., and those of the constitution referred to in Code, iv. 21, 17. See upon the matter, Hunter, Rinnan Law, 4th ed., 504. 392 HOW CONTRACT OF SALE CONSTITUTED [part iv. whether the contract was written or unwritten, either the buyer forfeited the earnest or the seller had to restore double the arrhae, as the case might be, without, the necessity of any express agreement on the subject.^ It was a common Roman practice for the purchaser to give to the seller arrhae or earnest-money as an assurance of his good faith and of his intention to fulfil the contract and to pay the price ; and it was for- feited if he failed to perform his undertaking. The arrhae possessed two characters : they might be either (a) merely confirmatory of the agreement,^ or (6) an advance of a portion of the purchase price. If the arrhae were not intended to be an advance of a portion of the price, they required to be returned by the seller to the buyer upon the completion of the sale.^ Although the Roman Law attached much importance to arrhae, the giving of earnest was not essential to the contract of sale ; it was, however, important as facilitating proof of a definite agreement having been made, while the risk of the forfeiture of the arrhae was naturally an inducement to the due performance of the undertaking. Justinian made a great change upon the existing law by giving to the arrhae a new character, making them the measure of a forfeit in case either party wished to resile from the agreement, which they were entitled to do if they chose to incur the forfeit. The power to withdraw from the contract was given irrespective of whether the agreement was in writing or not ; the extent of the buyer's liability was the forfeiture of the deposit, while that of the seller was forfeiture of double its value.* If the subject of the sale consisted of commodities that were ordinarily reckoned according to number, weight, or measure,^ the contract was not complete until the numbering, weighing, or measur- ing, as the case might he, had taken place. The agreement of the parties to the contract might be expressed either verbally or in writing, or it might be inferred from the acts of the parties, or from other facts and circumstances ; the particular manner in which the consent was expressed was immaterial, provided the intention of parties was sufficiently clear. ' Justinian, Inst., ut supra, and other references, ibid. 2 E.g., the buyer depositing his ring with the seller, as was very commonly done {Dig. xviii. 1, 35 pr. ; xiv. 3, 5, 15). ' Dig. xix. 1, 11, 6 ; xviii. 3, 8. * Justinian, Inst. iii. 23 pr. Of. French Civil Code, Art. 1590. See upon an apparent conflict between the Institutes and Code, iv. 21, 17 ; Hunter, 504. « See "Fungible and Non-Fungible Things," Part III., Section 67 (d), ante, p. 214. SECT. 126] INCIDENCE OF RISK 393 Section 126. — Incidence of Risk in the Conteact of Sale The general rule of the Roman Law, apart from certain special exceptions, was that as soon as the contract of sale was completed the risk of the loss of, or damage to, the subject ^ (when the thing sold was a corporeal and definitely ascertained thing) passed to the purchaser,^ unless the loss was occasioned by the fault of the seller — as by undue delay in giving delivery,^ or by negligence — or parties had specially agreed otherwise. When there was no delay {mora) on the part of the seller, and he was not otherwise in fault, the buyer had not only to bear any loss of or damage to the subject, but was also bound to pay the price agreed upon, for his obligation to pay the price was a distinct obligation that was independent of what might happen to the thing sold. Although the contract of sale was completed and dated by the mutual agreemeat upon the subject and the fixing of the price,* to the effect of creating reciprocal enforceable obligations, the ownership (dominium) was not thereby transferred but remained with the seller until delivery (traditio) ^ of the property to the buyer, or until the ownership had been passed either by the buyer having paid the price or given security for it, or having been allowed credit, or other wisS having satisfied the seller." The obligation upon the seller to deliver the property was conditional upon payment of the price by the buyer, unless the former agreed otherwise,' and until the whole price was paid the seller held the property as if it were a pledge.® Although the risk passed to the buyer upon completion of the contract in the absence of any fault on the part of the seller, without the necessity of delivery,^ ' I.e. perimdum. This term signified the risk or danger of any damage, including total loss, that might befall the subject of the contract {merx) after its completion, whether the loss was occasioned by human agency or by inevitable accident {damnum fatale). ^ Justinian, iii. 23, 3 ; Dig. xviii. 6, 8 pr. ; xviii. 1, 35, 4 ; Code, iv. 48, 4. ^ Undue delay {mora) on the part of the seller in giving delivery after he was, or ought to have been, in a position to do so, was regarded as equivalent to negli- gence, which had the eifect of transferring the risk of the thing {periculum rei) from the buyer back, as it were, to the seller. See ante, Section 113, p. 351, Delay {mora) as " constructive fault." * See ante, p. 391. * See " Tradition {traditio) or Delivery of Property," ante, Part III., Chapter IV., p. 246. s Cf. Dig. xiv. 4, 5, 18. &e% post, p. 396. 7 Dig. xix. 1, 50 ; xviii. 4, 22. 8 Dig. xix. 1, 13, 8. " Dig. xlvii. 2, 14 pr. ; Justinian, Inst. iii. 23, 3 : Periculum rei ad emptorem pertinat, dimmiodo oustodiam, venditw ante traditionem praestat {Dig., supra) ; PericvZum rei venditae statim ad emptorem pertinat tametsi adhuc ea res empiori tradita non sit {Inst., supra). 394 INCIDENCE OF RISK [part iv. the buyer was entitled to any additions to the subject that might have accrued between the time of the completion of the contract and the delivery of the subject by the vendor to the vendee,^ for the obligation upon the seller was to deliver the property to the buyer in the state in which it might happen to be at the time of delivery ; any accretions to or diminutions of the subject in the interval between completion of the contract and delivery of the property were consequently immaterial to the seller, for they could neither benefit nor prejudice him ; but during that time the seller was bound to show the care of a bonus paterfamilias in order to escape liability for negligence.^ The date of the contract of sale being that of the agreement of parties upon the subject and the price,' the subsequent delivery of the property and payment of the price had tlie effect of retroactively transferring the ownership to the buyer ; hence the buyer's right to fruits and accessions of the thing from the date of the sale, and also his liability for loss if the property perished without fault on the part of anyone, in virtue of the principle that, in such circumstances, the loss falls upon, or the thing is lost to the owner (res. perit domino)^ There were three cases, however, in which the risk did not pass to the buyer immediately upon the completion of the contract, apart from either fault or agreement, namely, (a) when the subject sold consisted of things reckoned according to weight, number, or measure ; * (i) when the property was sold subject to a condition ; and (c) when the buyer had a choice of two things. In the first case the risk remained with the seller until the property had been specifically ascertained and appropriated to the contract ; ^ if, however, " fungibles " were sold per aversioneni or " by lot " (or en bloc) for a slump sum,'^ and not at a fixed price for each unit — such as all the wine in a particular cellar, or all the corn in a particular granary — the risk passed to the buyer at the date of the contract,^ because nothing further required to be done to ascer- 1 See, "Seller's Duties," post, Section 127 (1), p. 396. Of. French Civil Code, Arts. 1614-1615. 2 Big. xviii. 6, 3 ; xiii. 6, 5, 2. See "Duties of the Seller,'' post, Section 127 (1), pp. 396, 397. ' Dig. xviii. 6, 8 ; Code, iv. 48, 1. See ante, p. 391. 4 Cf. Hunter, 285, 286. ^ See " Fungible and Non-Fungible Things,'' ante. Part III., Section 67 (d), p. 214. e B>.g. xviii. 1, 35, 5-7. ' I.e. a number of things in the aggregate for a single inclusive price. * As to the date of the contract, see ante, pp. 391, 393, 394. Cf. the "Contract of Hire," post, p. 404 et seq. Where work was let " by the job " {per aversionem), or as a whole (see post. Section 136 (1), at p. 414), the risk remained with the SECT. 127] GENERAL DUTIES OF PARTIES 395 tain the subject or to put it into a deliverable state ; ^ in the second case, the rule of the Roman Law was that the risk of total loss passed to the buyer only if and when the condition was fulfilled, but if, when that event happened, the property was not entirely destroyed, but was merely deteriorated, the loss fell on the buyer ; ^ in the third case— that of an optional sale— the risk was transferred to the buyer only when he had made his choice; in this case, however, if one of the two things was destroyed before the buyer had exercised his option, the loss never- theless fell upon him, because he was bound to take one of the two things in any case, and he was, consequently, liable to pay the price of the thing that remained.^ The general principles regulating the incidence of the risk in the contract of sale might competently be modified by the parties by special agreement ; thus a seller might agree to be liable even for the acci- dental loss of the thing sold, or to be responsible only for misconduct (dolus), and not for due care or lack of diligence (i.e. for culpa and diligentia) ; * but parties could not, by any form of agreement, exempt themselves from liability for fraud (dolus).^ Section 127. — General Ditties of Parties in Contkact of Sale Certain rights and duties pertained to, and were inherent in the conti'aet of sale, in the absence of any special agreement of the parties otherwise. Each party was bound to perform his part of the con- tract irrespective of performance by the other, and neither party could sue the other for non-performance if he himself had not either per- formejd, or been, in good faith, willing to perform his part of the contract. The parties might express their agreement in any form, so workman until its completion, and its approval by the employer ; and work under- taken to be paid for according to measure remained at the risk of the workman until the measure was made (Dig. xix. 2, 36), unless the failure to approve was due to the fault of the employer, or the work was destroyed by vis major before approval or measurement {Dig. xix. 2, 37). See post, Section 136 (1), at pp. 414-416. 1 Cf. Dig. xviii. 1, 62, 2 ; xviii. 6, 1 ; xviii. 6, 4, 2 ; Vat. Frag. 16. 2 Dig. xviii. 6, 8 pr. ; Code, iv. 48, 5. The principle of the rule was that if the thing sold did not actually exist when the condition was fulfilled, the seller could not fulfil his obligation, but if any part of it existed, in however bad a state, he could deliver it, and so perform his promise under the contract («/. Hunter, 286). See also upon "Special Forms of Conditional Clauses in Contracts," ante. Section 111, p. 341. 3 Dig. xviii. 1, 34, 6. * Dig. xviii. 1, 35, 4. 5 Dig. xiii. 6, 17. Cf. Dig. xix. 1, 6, 9. 396 DUTIES OF THE SELLER [part iv. long as their mutual intention was sufficiently clear and definite, and so long as the terms of the contract were not contrary to law, morality, or public policy. (1) Seller's Duties'^ The primary duty of the seller was to deliver the subject sold to the buyer,^ with all accessions,^ unless these had been specially reserved by the seller, but the obligation upon the seller to ' deliver was conditional upon payment of the price by the buyer, or upon the seller being otherwise guaranteed or satisfied.* The seller was not bound to give the buyer a good title as owner ,^ but merely such possession as would enable him to succeed in a possessory action ; * he was held as impliedly guaranteeing to the buyer the free and undisturbed^ and lawful possession* and enjoyment of what he had bought, which subjected him to a liability to compensate the buyer if the latter should have been legally evicted from the property, either in whole or in part.^ It will thus be seen that a person who was not the owner, but had the legal possession of a thing, might enter into a valid contract of sale.^" The expression " eviction " signified not only the dispossession of the buyer by the true owner of the property, or by one who had a better title to it than the seller had had, but also the discovery by the buyer of servitudes or other burdens affecting the property which had not been disclosed to him.'^ In order, however, to render the seller liable for eviction, {a) the eviction must have been lawfully at the hands of a third person,^^ and the defect must have existed in the title at the date of the contract ; (6) the eviction must not have been due to the buyer's own fault or carelessness ; and (c) the seller must have had 1 Cf. French Civil Code, Arts. 1602-1649. 2 Dig. xix. 1, 11, 2. ' See, on the reason for this, ante, p. 394. Cf. French Civil Code, Arts. 1614-1615. ■• Dig. xviii. 4, 22 ; xix. 1, 50. See ante, p. 393. Cf. French Civil Code, Art. 1612. •* Dig. xviii. 1, 25, 1 ; xix. 4, 1 pr. 6 Dig. xix. 1, 11, 3. ' Dig. xix. 1, 2, 1. 8 Dig. xix. 1, 30, 1. » Dig. xxi. 2, 35 ; xli. 3, 23, 1 ; Code, viii. 45, 6 ; iv. 52, 5. Cf. French Civil Code, Arts. 1603 and 1625. i» Dig. xviii. 1, 28. " Mackenzie, Roman Law, 7th ed., 239, note 4 ; Dig. xviii. 1, 66 pr. ; xix. 1, 30, 1 ; xxi. 2, 35. '2 Dig. xxi. 2, 16, 1 ; xxi. 2, 51 pr. ; Code, viii. 45, 15. SECT. 127] DUTIES OF THE SELLER 397 notice that the title was challenged,' unless the seller could not be found, or had expressly relieved the buyer from the necessity of notifying him.^ The measure of damages on eviction was the market value of the property at the time of eviction, which was the real amount of the loss suffered by the eviction, and not the price that had been paid by the buyer ; ^ and the amount of damages payable by the seller might thus be greater or less, according as the property had increased or decreased in value ; * but if the seller was, in good faith, ignorant of the defect in the title, he was not, in any case, liable for more than twice the price as compensation for the eviction.^ The seller was, further, bound to take good care of the property during the period between the completion of the contract and the delivery of the subject ; he was bound to show the care of a bmius pater- familias,^ but this liability for lack of sufficient care (diligentia) might be either increased or dim?hished by special agreement, as if the seller agreed to be responsible for even accidental loss of the thing, or liable only for wilful misconduct (dolus),'' or according either as the seller wrongfully delayed to deliver, or as the buyer wrongfully refused or delayed to take delivery,^ in which latter case the seller was only liable for wilful misconduct or for gross negligence." But a seller could not, in any circumstances, free hiiuself from liability for dishonesty (dolusy^ If the seller wrongfully delayed to deliver, or was, in technical terms, " in delay " (in mora), he was liable for any loss that the buyer could show to be directly due to the delay, including accidental loss,!' and the buyer was entitled to interest upon the purchase-money if it had been already paid, from the time at which delivery ought to and could have been given by the seller. If both the seller and the buyer were in mora it was the same as if the buyer alone was in delay.^- 1 Dig. xxi. 2, 53, 1 ; Code, viii. 45, 20 ; viii. 45, 8 ; viii. 45, 17. 2 Dig. xxi. 2, 63 ; xxi. 2, 56, 6 ; xxi. 2, 55, 1. 3 Cf. Code, viii. 45, 23. Gf. French Civil Code, Art. 1633. * Dig. xxi. 2, 70 ; Code, viii. 45, 9. 5 Dig. xix. 1, 44. Cf. on Eviction, Hunter, Roinan Law, 4tli ed., 495-498. ^ Dig. xviii. 1, 35, 4 ; xix. 1, 36. See also ante, p. 394. ' Dig. xviii. 1, 35, 4. See also post, p. 402. 8 Dig. xviii. 6, 17 ; xviii. 6, 12. " Dig. xviii. 6, 17. i" Dig. xiii. 6, 17. Dig. xix. 1, 6, 9. " Cf. examples in Dig. xix. 1, 36 ; xviii. 6, 11 ; xix. 1, 54 pr., cited by Hunter at p. 495 ; and also French Civil Code, Arts. 1610, 1611. 12 Dig. xix. 1, 51. 398 WARRANTY IN CONTRACT OF SALE [part iv. (2) Seller's Warranty'^ Although the seller was not bound to warrant the validity of the purchaser's title,^ he was held as impliedly warranting peaceful possession to the purchaser, and also the quality of the thing sold, to the effect that it was free from any latent defects (vitia; sing, vitium)^ that would render it unfit for the use for which it was intended, or which would interfere with the buyer's possession and enjoyment of the property.* Under the earlier law the warranty of quality was present only in cases of fraud or of express representation, but the later Roman Law of the Empire, under juristic interpretation, came to hold that a warranty of quality was implied in every sale with regard to defects that might be subsequently discovered but which could not have been discovered by examination at the time of sale ; ^ and, in this matter, the law drew no distinction between an express warranty and a representation inducing the purchase ; but a mere general recommendation did not subject the seller to any liability in respect of a warranty.® "Language of mere praise was scrupulously distinguished from promises intended to create a liability.'^ If the seller said his slave was steady you were not to expect the gravity and sobriety of a philosopher ; if he said the slave was active and vigilant, it was not to be supposed that he worked night and day.* So if the slave was said to be an artificer you must only expect what was ordinarily looked for in an artificer." ^ The seller, if he was aware of them, was bound to disclose to the buyer the existence of any defects {vitia) ; if he knew of any latent defect (vitium) and did not disclose it he was guilty of fraud (dolus), and was held liable in an action on the sale (actio ex empto) for even 1 Cf. French Civil Code, Arts. 1625-1649. 2 See ante, p. 396. ^ The term mtium signified such an inherent and permanent defect in the subject as was likely to impair its usefulness either in whole or in part. * Cf. Dig. xix. 1, 11, 1 ; French Civil Code, Arts. 1625, 1641, 1642. ° Cf. Dig. xxi. 1, 18 ; xxi. 1, 17, 20 ; Hunter, Roman Law, 4th ed., 501. Cf. French Civil Code, Art. 1642. " Under the later Eoman Law, consequently, the maxim caveat emptor — "let the buyer beware'' — did not apply. ' Dig. xxi. 1, 19. * Dig. xxi. 1, 18 pr. ^ Dig. xxi. 1, 19, 4 ; Hunter, ut supra, 501. SECT. 127] SELLER'S WARRANTY 399 consequential as well as direct loss : ^ if, however, the seller was in good faith, and did not know of the defect, he was only liable for direct damage, but he was bound either to allow the contract to be rescinded or to pay compensation, if the buyer so preferred, in respect of his breach of implied warranty.^ When a seller had been guilty of a breach of the implied warranty of quality the buyer might use either of two direct remedies known respectively as the actio redhibitoria, and the adio aestwiatoria or qucmti minoris? The actio redhibitoria was an action at the instance of the buyer to have the contract rescinded, and to have the thing sold restored to the seller, with all its produce and accessories, if any, and to have the price returned to the buyer, with interest as an equivalent for the restoration of the produce.* The seller required to restore the price before the buyer was bound to deliver back the thing sold.^ This action was introduced by the Aedilician Edict.'^ It required to be brought within six months of the date of the contract, and could be brought by the buyer, or by any universal successor.'' The actio aestimatoria or quanti minoris was an action at law at the instance of the buyer in order to recover a proportion of the price paid equivalent to the difference between the actual value of the property with the defect (vitium) and its value as impliedly warranted. This action might be brought at any time within a year from the date of the contract, and its object was not to rescind the sale but merely to recover a proportion of the price ; but it was, nevertheless, in the power of the judge to cancel the sale, in his discretion. ^ The bayer, in all cases of breach of the implied warranty of quality, had the right to make his election between the actio redhibitoria and the actio aestimatoria.^ In addition to these two direct remedies by action for breach of warranty, the buyer might bring an actio in factum against the seller ' Dig. xii. 1, 13 pr. ^ Cf. Dig. xix. 1, 13, 1. See, as to the manner in which the obligation in respect of an implied warranty came to form part of the contract of sale, Hunter, ut supra, 498-502. ^ See Dig. xxi. 1 ; Code, iv. 58. * Dig. xxi. 1, 31, 2 ; xxi. 1, 23, 9 ; xxi. 1, 27 ; xxi. 1, 29, 2. ^ Dig. xxi. 25, 10 ; xxi. 1, 26. ° Dig. xxi. 1, 23, 7 ; xxi. 1, 60. See on the "Aedilician Edict," ante, Part I., p. 36. 7 Dig. xxi. 1, 23, 5 ; 1. 16, 171 ; xxi. 1, 19, 5. See "Singular and Universal Succession," ante, Part III., Section 76, p. 245 ; also Section 67 (f), p. 216. 8 Dig. xxi. 1, 43, 6. » Dig. xxi. 1, 18 pr. ; xxi. 1, 48, 2 ; xliv. 2, 25, 1. 400 DUTIES OF THE BUYER [part iv when the latter had received back the property, but refused to restore the price paid ; and he might, by an actio e.v empto enforce against the seller any obligations arising from the terms of the contract. He had also an indirect remedy ; for he might refuse to pay the price, and if the seller then sued him for payment in a direct action upon the contract he might meet it with a defence (exceptio) based upon the warranty, whether express or implied, and the defect.^ Special Warranty. — Besides the implied general warranty of quality the seller might expressly give a warranty as to the possession by the subject of some special quality ; in such a case the absence of such special quality would, on discovery, render the seller liable in damages for breach. (3) Buyei's Duties^ In the absence of any special agreement otherwise the duties of the buyer that were inherent in the contract were threefold — namely, (1) to pay the price agreed upon ; (2) to accept delivery ; and (3) to pay any expenses which had been reasonably and properly incurred by the seller in the course of keeping the thing sold between the date of the contract and the delivery of the property.' In the absence of any express agreement otherwise upon the matter, tlie buyer was not entitled to delay payment of the price until it had first been demanded by the seller ; his duty was to pay the price as soon as the contract was concluded upon the seller delivering, or offering, in good faith, to deliver the property, unless a particular future time for payment had been expressly specified, or the buyer had credit with the seller ; for, as has been already stated,* the obligation upon the seller to deliver was conditional upon payment of the price. If the buyer did not pay on delivery by the seller and had not, at the same time, credit with the seller, he was liable to pay interest upon the price ; ^ but if he had credit interest was only payable from the date when the credit ended. The buyer was bound to pay either with his own money, or with money of which he had the right to dispose, and so give ' Upon warranty against defects in the thing sold, cf. Trench Civil Code, Arts. 1641-1649 ; also "Sale of Goods Act," 1893 (56-57 Vict. c. 71). The English and Scots laws as to an implied warranty of goods supplied under a contract of sale are assimilated in Section 14 of that statute (q.v.). 2 Gf. French Civil Code, Arts. 1650-1657. 3 Cf. Code, iv. 49, 16 ;• Dig. xix. 1, 13, 22. 1 Ante, p. 393. '' Big. xix. 1, 13, 20, 21. Gf. the liabilit of an employer under the contract of hire to pay interest, post, Section 136 (2), p. 416. SECT. 128] SPECIAL DUTIES OF PARTIES IN SALE 401 the seller a good title to it.i^ Payment of the price with money belong- ing to the seller himself was no payment at all : ^ and similarly pay- ment with money belonging to a third person, unless the buyer had the right to dispose of it, left the purchaser still liable to be sued by the seller for the price ; for the seller, if he knew that the money neither belonged to the buyer nor was that of which he had the right to dis- pose, could not himself use the money without rendering himself liable for theft. It was not necessary, however, that the buyer should himself pay the money ; it was immaterial who actually delivered the money, so long as payment was made in the name and on account of the buyer, and with money of which the payer had a right to dispose.^ ' Such a payment discharged the liability of the buyer, even although it had been made without his knowledge, or against his will. The second main general duty of the buyer was to accept delivery of the property as soon as the seller was ready and able to deliver, whether that time was immediately upon the conclusion of the contract or at some later time agreed upon. If the buyer wrongfully refused to accept delivery, or wrongfully refused or delayed to take away what he had bought, the seller could compel him to do so by the actio ex venditor Section 128. — Special Duties of Parties in Contract OF Sale. It was quite competent for parties expressly to agree upon special rights and liabilities that did not ordinarily pertain to, and were not usually involved in, the contract of sale without special agreement to that effect ; thus a seller might consent to make himself liable even for the accidental loss of the thing sold, or the parties might agree that the seller was only to be liable for dolus and not for lack of due care (cidpa) and diligence (diligentia) ; ^ so, also, a seller might expressly reserve rights, such as of usufriict," or of "habitation,"^ or the edible fruit 1 Cf. Dig. xix. 1, 11, 2. 3 Code, iv. 49, 7. 3 See " Solution of an Obligation by Payment," post, Chapter XIV., Section 158, p. 471. * Diff. xix. 1, 9. 5 Dig. xviii. 1, 35, 4. See also ante, p. 397. ° Dig. xix. 1, 7. ' Dig. xix. 1, 53, 2. 26 402 SPECIAL DUTIES OF PARTIES IN SALE [part iv. (pomum)} or the quarries {lapiciclinae),^ or the property ; or he might specially warrant the absence of any servitude right over the subject ; ^ and what was known as ruta-caesa, i.e. things dug up (eruta), such as gravel, or lime, or things cut, such as trees (which did not ordinarily fall within the contract),* might be expressly included, and the seller might also expressly undertake to give sureties against eviction.^ It was not competent, however, for parties to mutually agree that the seller was not to be liable for fraud (dolus),^ so that, for example, if one man were to sell to another property which he knew was not his own, or in the knowledge that it was hypothecated to some one else, and if he at the time of the sale bargained that he was not to be liable in the event of the buyer being dispossessed or evicted, such an agreement would be voidJ Just as special liabilities that were not ordinarily inherent in the contract of sale might be imposed upon the seller by special agreement, so also special liabilities might be similarly imposed upon the buyer ; thus it might be expressly agreed that the buyer should give to the seller a right of pre-emption in respect of which he might undertake either not to sell the property to anyone except the seller, or to give to the seller an opportunity to purchase the subject before anyone else should have the chance to do so ; ^ or the buyer might expressly under- take to subsequently let the thing sold to the seller at a fixed rent ; ^ or property might be sold upon the express condition that it should not be used for particular purposes,^" or that some particular act — such as, c.ff., manumission — should be done by the buyer with regard to it.ii These special liabilities were often imposed by formal stipulation, especially when a penalty was added, but a mere oral agreement without stipulation was perfectly valid.^^ Certain special conditional clauses which were frequently attached 1 Big. 1. 16, 205. ^ Dig. xviii. 1, 77. 3 Dig. 1. 16, 90 ; 1. 16, 169. * Big. xviii. 1, 66, 2 ; xix. 1, 17, 6. '' Dig. xxi. 2, 4 pr. ^ Dig. xiii. 6, 17. ' Big. xix. 1, 6, 9. * Of. Dig. xviii. 1, 75 ; xix. 1, 21, 5. See prae-emptio, ante, Section 111 (e), 345. » Cf. Dig. xix. 1, 21, 4. 1° Cf. Code, iv. 56, 3. " Cf. Code, iv. 57, 6 ; iv. 55, 5 ; Dig. xviii. 7, 5. ^^ Hunter, ut supra, 504. SECT. 130] REMEDIES IN CONTRACT OF SALE 403 to the contract of sale for the special benefit of one or other of the parties under the names of in diem addictio, lex commissoria, emptio ad gimtum, pactum displicentiae, pactum de retro-vendendo and pactum de retro-ejnendo have been already considered.^ Section 129. — Termination of Contkact of Sale The contract of sale was ordinarily terminated by specific perform- ance, but it might also be rescinded in various ways,^ as by (a) mutual consent of the parties ; (&) non-performance or non-fulfilment of some essential condition ; (c) error (ctto?-)/ fraud (dolics),* force {vis, metus),^ or other general ground of contractual nullity .** Rescission or termination of the contract by mutual agreement was known as contraria voluntas, or, literally, " contrary will " or opposite intention. Such termination could only take place before either party had performed any part of his undertaking and while things were still intact,'^ nothing having been done as yet on the strength of the contract. In effect contraria voluntas amounted to a mutual undertaking by the parties that neither would sue the other for performance. Section 130. — Remedies of Parties in Contract OF Sale (1) Buyer's Remedies According to circumstances the buyer might enforce his rights as against the seller by the actio empti, actio redhihitoria, actio aestimatoria (or qitanti minoris), and the actio ex stipidatu (or condictio certi). The ctctio empti was the ordinary action arising out of the contract of sale by means of which a buyer could compel a seller either to perform his obligation under the contract or to pay compensation for his failure to do so. In order, however, to entitle the buyer to employ this remedy, it was necessary that he should either have paid the price, or have, in good faith, tendered it.^ 1 See ante, Section 111, p. 341 et seq. 2 See Code, iv. 44. 3 See ante. Chapter V., Section 104, p. .323. * See ante, Chapter V., Section 105, p. 326. ^ See ante, y,t supra. " See "Essentials of a Valid Contractual Obligation," ante, Chapter V., p. 321. ' I.e. while matters were still res integra. « Cf. Dig. xix. 1, 13, 8. 404 THE CONTRACT OF HIRE [part iv. The actio empti was also competent for the enforcement of all special agreements or pacts {j)ada) with reference to the contract.^ The ad.io ex stipulatu or condidio certi was the action competent when the promise in the contract had been constituted by a formal stipulation. (2) Seller's Bemedy The seller could enforce his rights against the buyer by the actio venditi. The action was competent to the seller in all circumstances to compel a buyer to perform his obligations under the contract, whether these obligations were such as were inherent in the contract itself with- out the necessity of any special agreement, or were created in respect of special agreements or " pacts " {pacta) between the parties with reference to the terms of the contract." Section 131. — The Contract of Hike (Locatio-conductio)^ In its general principles the contract of hire resembles that of sale, but it differs from sale just as ownership differs from possession and from mere temporary use. The contract of hire is defined as a contract by which one person agrees either (a) to give to another person the use and enjoyment of some property, or (6) to do some work, in return for an agreed upon sum of money. The contract of hire is thus of two kinds — namely, (1) the hire of things {locatio-condudio rerum), and (2) the hire of services (locatio-condttdio operarum) or of work {locatio-condudio operis).'^ Hire of things ^ was known in the Roman Law as locatio-condudio rei (sing.) or rerum (plu.), and it was a contract by whicti one person under- took to give the use and enjoyment of some property to another person. 1 Cf. Dig. xix. 1, 11, 1. 2 Cf. Dig. xviii. 1, 75; xix. 1, 11, 1. The actio veiiditi is also styled aetia.ex vendito or " the action arising out of something having been sold." ^ Justinian, Inst. iii. 24 ; Dig. xix. 2 ; Code, iv. 65 ; Gaius, Inst. iii. 142-147. See also, on the "Contract of Hire" generally, Monro, C. JL., ,Locatio-conductio {Dig. xix. 2), Cambridge, 1891 ; Hunter, Roman Law, 4th ed., 505-516 ; Mackenzie, Roman Law, 7th ed., 243-247 ; Buckland, Principles of Roman Law, 274-276 p Sandars, Institutes of Justinian, 8th ed., 368-372 ; Moyle, Institutes of Justinian, 4th ed., 436-440 ; Sohm, Institutes of Roman Law, 3rd ed., 404-406 ; Cuq, Insti- tutions Juridiques des Romains, ii. 423-432 ; Girard, Manuel de Droit Romain, 5th ed., 568-570 ; May, ^le'ments de Droit Romain, 8th ed., 305-310. Of. French Civil Code, Arts. 1708-1831. See also upon the distinction between the "Contract of Hire " and both Precarium and Oommodatum, Sohm, ut sxipra, 334, note 5, and 376, note 1. * Cf. French Civil Code, Art. 1708. ^ See specially on the " Contract of Hire of Things," post, p. 406. SECT. 132] ESSENTIALS OF CONTRACT OF HIRE 405 for a limited period, in return for and in consideration of an agreed ■upon sum by way of an equivalent for the use of the thing. There might in this way be let and hired, respectively, corporeal things, both movable and immovable, and also incorporeal things, such as a usufruct. The contract of hire of a thing is specially distinguished from sale in that th6 person who lets the thing has not the intention (animus) of permanently parting with the possession of it. ITire of services or of ivork was known in the Roman Law as locatio- conductio operarum or operis respectively, according as one person under- took to give his services to another person alone, or only to do a particular work or job for another person, in consideration of a certain sum of money {inerces certa) by way of an equivalent for the services, or for the work, as the case might be.^ In hire of services {l.-c. operarum) one person undertakes to supply another person with a certain amount {quantum) of labour ; but in hire of work {l.-c. operis) one person agrees to supply another person not with labour but merely with the result of labour. Section 132. — Essentials of the Contract of Hire The fact that was essential to the contract of hire — whether of things, or of services, or of work — was the consent of parties, how- ever it might have been expressed, so long as it was sufficiently clear. There required also to be a fixed sum {merces certa) agreed upon as a return or consideration for the enjoyment of the thing, or for the services, or for the labour, as the case might be ; but such sum was in no sense a price but was merely an equivalent to the use and enjoyment of the thing, or to the services or to the labour respectively. It was not necessary that the whole of the agreed upon sum should be paid in money ; it was competent to pay it partly in goods or in kind ; thus a landlord might agree to accept a certain quantity of corn as a portion of the rent, provided that the amount of the rent had been already fixed.^ The consideration, however, required to be, in all the circumstances. ' When the person engaged to do the work also supplied the materials the law of Justinian, as had been the generally received opinion in the time of Gaius, regarded such an agreement as a contract of sale and not of hire. The ordinary case of hire of work {l.-c. operis) was the employment by one man of another for an agreed upon sum of money to make something out of materials either belonging to or to be obtained by the employer. Of. Justinian, Inst. iii. 24, 4 ; Dig. xix. 2, 2, 1 ; Gaius, iii. 147. See also post, p. 412, note 2. Gf. on this point the law of England in Lee v. Griffin, .30 L.J. (Q.B.) 252. 2 Cf. Dig. xix. 2, 19, 3. 406 HIRE OF THINGS [part iv. something real and considerable, and not merely nominal or illusory;'^ but, as in the contract of sale, the mere smallness of the consideration or rent was immaterial, and did not invalidate the contract if the parties seriously intended to make a real and not merely an apparent or fictitious contract of hire, and so long as the consideration was not induced or influenced by fraud {dolus)? Section 133. — What could be the Subject of the Contract OF Hire Everything that was in commercio, whether movable or immovable, and even incorporeal rights, as of usufruct, might be the subject of a contract of hire or letting, and even a portion of a person's services might be let. "Fungibles," however, or such things as are naturally consumed in the ordinary course of their use — such as, for example, wine, money, corn, fruit, or oil — are by their very nature unsuited to be the subject of hire unless they should have been expressly hired, not for consumption but merely for show or display ; that, however, would be only a guasi-hire and was not locatio-conducHo in the strict and proper sense. Section 134. — Hire of Things (Locatio-conductio rerum) In the contract Of hire of things the letter of the property was known generally as the locator, and the hirer was similarly styled the condiictor.^ (1) Duties of the Letter {Locator) The contract having been completed by the mutual consent of the parties and agreement upon a consideration, the primary duty of the letter (locator) was to deliver the property to the hirer (conductor) and thereafter to allow him to retain the property during all the time agreed upon.* If no definite time had been fixed the letter was bound to permit the hirer to retain the property for such a time as would be. 1 Cf. Dig. xix. 2, 46 ; xix. 2, 20, 1 ; xxiv. 1, 52. In such cases there would be donation and not a letting for hire. 2 Dig. xix. 2, 22, 3 ; xix. 2, 23 ; xix. 2, 9 ; xix. 2, 15, 1. ' A special phraseology was employed in certain cases to designate the parties ; thus the hirer {conductor) of a house {praediwni urbaniim) was specially styled inquilinus, and the consideration or rent paid by him was known as pejisio ; similarly the hirer (conductor) of a farm or lands {praedium msticum) was called colonus, and the consideration paid by him was styled reditus. * Cf. Dig. xix. 2, ] 5, 1 ; xix. 2, 15, 8 ; xix. 2, 33. SECT. 134] HIRE OF THINGS 407 in the special circumstances, reasonably sufficient to accomplish the purpose for which the property had been hired. In order that the delivery of the property by the letter to the hirer should be complete it required to be of such a nature that the hirer could fully use and enjoy the property in the manner intended. A hirer was, by the Eoman Law, entitled to sub-let, or to let to any third person, the property that had been hired by him unless there was in the contract an express agreement otherwise. The letter (locator) was bound to maintain the thing let in such a state that the hirer could enjoy the full use of the property.^ If the thing deteriorated in the course of reasonable use, and without fault on the part of the hirer, the letter {locator) was bound to repair it ; and if he did not do so the hirer (conditctor) might claim either to be released from the contract, or to have a reduction of the rent.^ The repairs, however, for which the letter was responsible were such considerable ones as were necessary for the preservation of the property, or for its proper use and enjoyment, and not merely trifling repairs of a simple character, and necessarily incidental, more or less, to the enjoyment of the thing ; these latter required to be executed by the hirer (conductor).^ The letter (locator) was also bound to guarantee to the hirer — as was the seller in the contract of sale — the peaceable enjoyment of the thing let during the period agreed upon,* and he was at the same time held as warranting the freedom of the property from faults or defects (vitia) which would render it unfit for the purpose for which it was let.^ A warranty on the part of the letter (locator) of the fitness of the property for the use intended was implied in the contract ; thus, for example, if a man let a building containing vats for making wine there would be an implied warranty that the vats were sound, so that, if they were really rotten, and the hirer lost wine or its value in consequence, the letter was liable to compensate him for the loss he had sustained on account of the breach of implied warranty; so also, if a man let for pasture land upon which were poisonous herbs or shrubs he would be bound either to remit the rent or to pay compensation for all damage that might result, according as he was not, or was aware of the fault or defect." 1 Cf. Dig. six. 2, 9 pr. ; xix. 2, 33. 2 Cf. Dig. xix. 2, 27. 3 Cf. Dig., ut supra. * Cf. Dig. xix. 2, 7, 8, 9 pr. "Upon "Eviction," see avte, p. 396. 6 Big. xix. 2, 19, 1. Cf. Lemmon v. Wehb, 1895, A.C. 1 [L.T. 205]. Chester v. Cater, 1918, 1 K.B. 247 (A.C.) [87 L.T. 449]. " Dig., itt supra. 408 HIRE OF THINGS [part iv. The letter of lands and houses was bound, at the end of the agreed upon period, to permit the hirer or lessee of the property, if he had duly fulfilled all his obligations under the contract, to carry away any movables that he had brought on to the land or into the building ; and even to remove fixtures if the lessee expressly undertook that their removal would not injure the property or the fabric of the building, and that he would leave the property in as good condition as when he got it.^ The locator was bound, moreover, to compensate the tenant of lands or property for the value of unexhausted improvements, provided the improvements were not part of the contract.^ The letter {locator) was liable to the hirer (conductor) for any failure to perform his obligations under the contract, but his liability naturally varied according as his failure was occasioned by his fault or otherwise.^ If non-performance of his obligation was due to the letter's own fault, he was bound to compensate fully the hirer (conductor) for the breach ; thus, for example, if a man were to let a farm to another for a term of five years, but at the end of two years he sold the property to a third party who then evicted the lessee, the locator would be liable to compensate the conductor for his eviction,* because the sale of the property was his own voluntary act, and if he had not chosen to do so he would have been able to fulfil his original obligation by permitting the lease to run to the full term agreed upon.^ But when the failure of the letter (locator) to perform his obligation to give undisturbed posses- sion was not due to his own fault, the hirer (conductor) was not entitled to compensation but only to a remission of the rent or consideration ; ^ as, for example, when a house that had been leased was accidentally burned without fault on the part of the lessee,' or the property let had been carried off by robbers.* If, however, there had been a special 1 Cf. Dig. xix. 2, 19, 4. 2 Cf. Dig. xix. 2, 55, 1 ; xix. 2, 61 pr. 3 Cf. Dig. xix. 2, 30 pr. ; xix. 2, 25, 1. * Cf. Dig. xix. 2, 25, 1. ^ According to the Roman Law, the purchaser of property that was, at the time of the sale, already let to another person, was not bound by the terms of the lease, because he was not a party to it, and the contract of hire did not create a " real " right in the subject but only a personal obligation. The purchaser was entitled, consequently, to evict the lessee (condiictor, inquilinus, colonus). It was usual, however, in practice, in order to obviate the risk of the eviction of the lessee, to stipulate that the purchaser was to be bound by any existing leases of the property. Cf. Dig. xix. 2, 25, 1 ; Code, iv. 65, 9. See, also, p. 411, note 3. « Cf. Dig. xix. 2, 30 pr. 1. ' Dig. xix. 2, 30, 1. 8 Cf. Dig. xix. 2, 34 ; see also post, p. 410. SECT. 134] HIRE OF THINGS. 409 agreement against the use of fire by the hirer, the accidental loss of the property by that means not only rendered him liable for the loss, but would also deprive him of any claim to remission of the rent.^ On the other hand, however, if a landlord, for example, during the currency of a lease pulled down the house in order to rebuild it, he would be liable either to pay compensation to the tenant for his failure to give him the enjoyment of the property during the whole time fixed, or merely to allow him a remission of the rent proportioned to the time during which he was deprived of the use of the property, according as the demolition of the house was or was not necessary in all the circunjstances ; ^ so also he would have to remit the rent if a tenant had to leave the house, being in reasonable fear that the house would collapse.^ (2) Duties of the Hirer {Conductor) The principal obligation of the hirer or lessee was to pay the rent or consideration agreed upon at the time fixed, and if he fell into arrear he was liable to pay interest upon it> The sum paid as rent or consideration (whether under the name of merces,^ peiisio,^ or reditus^) represented the equivalent of the hirer's enjoyment of the thing ; and, therefore, if from any good cause he was prevented from having the enjoyment of the thing or subject let, he was not liable to pay rent for the period during which he had not the enjoyment of the property.'^ It was, however, one of the duties of the hirer, inherent in the contract, in the absence of special agreement otherwise, to keep possession of the property let for the whole period fixed, and he was not freed from liability to pay the agreed upon con- sideration if he chose to leave the property before the fixed time without reasonable ground for doing so.* Thei rent or consideration was usually paid in money ; but the Eoman Law permitted the rent of land to be paid in fruits or produce, provided the amount had been fixed. The fruits of lands " were subject to the tacit hypothec of the owner in security of the rent, and similarly 1 Cf. Dig. xix. 2, 11. ^ Cf. Dig. xix. 2, 35 pr. ; xix. 2, 27, 1. 3 Cf. Dig. xix. 2, 27, 1. « Cf. Dig. xxii. 1, 17, 4 ; Code, iv. 65, 17. ^ See ante, p. 405. " See ante, p. 406, note 3. ' Cf. Dig. xix. 2, 35 pr. ; xix. 2, 27, 1. See ante, p. 408. 8 Cf. Dig. xix. 2, 24, 2 ; xix. 2, 55, 2 ; xix. 2, 27, 1. " Praedia rustioa. 410 HIRE OF THINGS [part iv. the landlord of urban subjects ^ had a tacit hypothec over the tenant's movable property.^ The tenant of a farm was specially entitled to a remission of his rent if his whole crop was destroyed by an unforeseen and extraordinary calamity,^ such as an inundation or a hostile irruption ; but the nature of the disaster required to be exceptional ; * and, moreover, if, during the remainder of the term of the lease, unusual fertility compensated the tenant for his loss, he was liable to pay to the landlord the amount of the rent that had been remitted.^ The hirer or lessee was also bound to take all reasonable care of the thing hired,'' and to use it properly ; he required to keep it in good con- dition and employ it only for the purpose for which it was let,^ but he was not liable for unavoidable accident, whether in the form of damnum fatale or of vis major.^ Thus he was not liable for loss occasioned by natural phenomena, or if he was violently despoiled of the property by robbers, because bath of these cases involved the exercise of superior force against which the utmost care would not have availed ; * but he was not freed from liability by reason of the property having been stolen, because the fact that it had been possible to commit the theft without observation raised a presumption of lack of sufficient care.^*' The final duty of the hirer or lessee was to restore the thing hired at the term fixed. Even although the hirer might claim the property as truly belonging to himself he was bound, in order to fulfil his obligation under the contract of hire, to give up its possession ; but he might thereafter vindicate his ownership by an ordinary action for its recovery.^i These duties of the hirer (conductor) as well as those of the letter ' Praedia urhana. 2 Cf. Dig. XX. 2 ; xx. 2, 14, 4 pr. See also ante, "Tacit Hypothecs," Section 120, p. 379. 3 Dig. xix. 2, 15, 2-4. * Dig. xix. 2, 25, 6. ^ Dig. xix. 2, 15. Gf. somewhat analogous provisions of the French Civil Code, Arts. 1769, 1770. ° Cf. Justinian, Iiwt. iii. 24, 5 ; Dig. xix. 2, 25, 3, 7. " If he used the property for a purpose other than that for which it was let, he would, in such a case, be guilty of a "theft of the use" {furtum iisus). Cf. the " Contract of Commodate," ante, Section 115 (1), at p. 358, and Gaius, Inst. iii. ] 96, 197. 8 Justinian, Inst., ut supra. Cf. Code, iv. 65, 28. See, on damnum fatale and vis major, ante, Section 116, at p. 367. " Dig. xix. 2, 9, 4. '" Justinian, Inst. iv. 1, 15. » Code, iv. 65, 25. Cf. Code, iv. 65, 32. SECT. 13s] TERMINATION OF HIRE OF THINGS 411 {locator) which have been mentioned were ordinarily inherent in the contract without the necessity of special agreement, but they might be either modified or extended by the express consent of the parties. Thus, if it had been expressly agreed that a farm should be cultivated in a particular way the tenant might be ejected, and the farm be let to another, if he failed to comply with the special terms of the contract.^ Section 135. — Termination of the Conteact of Hire of Things The contract of hire of things usually terminated by the expiry of the period fixed for the use and enjoyment of the thing hired.^ If no time had been definitely fixed the contract ended by the lapse of such time as was reasonably necessary, in all the circumstances, to accomplish the purpose for which the property had been hired. The contract might also end by the sale,^ or by the loss or destruction of the property, or by it, unavoidably, becoming unfit for the purpose for which it was hired, or by reason of the ejection of the lessee before the lapse of the time fixed in the contract, either because of his failure to pay the rent agreed upon,* or for making an improper or damaging use of the property.^ But the contract of hire of things was not terminated by the death of either the hirer or the letter during the ' Cf. Dig. xix. 2, 51 pr. ; xix. 2, 54, 1 (imposing a special penalty) ; xix. 2, 11, 1 — an example of a special agreement against tlie use of fire by the hirer rendering him liable if loss was accidentally so caused. (See ante, pp. 408-409.) ^ Code, iv. 65, 11. If a tenant was permitted by the landlord to continue in possession of the property after the period for which the lease had been granted had expired, there was presumed to have been a " tacit relocation " or implied re-letting of the property. In the case of lands the implied renewal of the lease was considered as from year to year upon the same conditions as before. In the case of houses relocation was not presumed if the original lease was in writing, and could only be effected by writing, in the absence of which the tenant was considered as holding the property merely during the pleasure of the owner. While tacit relocation renewed, for the time, all the ordinary terms and conditions of the lease, the obligations of a surety were not renewed thereby. Cf. Hunter, 514, and Mackenzie, 245. ^ In such a case the buyer was not considered bound by the contract, but the hirer could claim compensation from the letter. The right of the conductor was purely a personal one against the locator in respect of the dispossession. The right of a usufructuary, on the other hand, was a "real" servitude right, the usufruct itself being part of the property. Cf. Code, iv. 65, 9 ; and see also ante, Section 91 (b), at p. 281, and p. 408, note 5 ; and Sandars, Inst. 372. * Dig. xix. 2, 54, 1. ^ Code, iv. 65, 3. It was also peculiar to leases of houses that the lessee might be ejected before the term fixed, if the proprietor wanted the house for his own occupation {Code, ibid.). • 412 HIRE OF WORK AND HIRE OF SERVICES [part iv. time fixed, and their respective rights and duties passed to their heirs upon the same terms.^ Section 136. — Hire of "Work, and Hire of Services (Locatio- CONDUCTIO OPERIS ; LOCATIO-CONDUCTIO OPERAEUM) The general principles applicable to the contract of hiring of things {locatio-conductio rerum) applied, for the most part, to the hiring of work or of services. A person might engage another person either to execute some particular piece of work for him by reason of the possession of special skill, or he might employ another person to give him his whole services during an agreed upon time. If a person undertook to do some special work for another person, for a consideration — to employ, in other words, his skill, or his labour, or both, upon materials supplied by that other person ^ — there was created in such a case, according to the Roman Law, a contract of " hire of work " (locatio-conductio operis). The person who undertook to do the work — who was the employee — was regarded by the Roman jurists as the hirer or condxictor of the work, while the person who employed him — i.e. the employer — was considered as the letter or. locator of the work to be done.^ Thus, a laundress was regarded as the conductor, while the owner of the clothes being washed by her was the locator operis ; a fuller of clothes was the conductor, the owner of them was the locator ; * a carrier of goods was the conductor, and the owner of the goods carried was the locator operis ; ^ a jeweller, or a builder executing work, or expending labour upon materials supplied by the other, was the conductor of the work, and the person with or upon whose materials the work was to be done was the locator operis.^ In the case, however, of a builder contracting to build a house upon the ground of the other party and at the same time to furnish the necessary materials the rule was different. The ground being the principal thing, the building and its materials merely acceded to it, on ' Justinian, Inst. iii. 24, 6 ; Code, iv. 65, 10. See also post, Section 137, p. 416. ^ In the case where the workman also supplied the materials upon which his labour or skill was to be expended, the contract was regarded by the Eomans as one of sale and not one of hire. See Justinian, Inst. iii. 24, 4 ; Gaius, iii. 147 ; Big. xix. 2, 2, 1 ; also ante, p. 405, note 1. 3 Cf. Dig. xix. 2, 13, 5 ; xix. 2, 59 ; xix. 2, 62. * Of. Dig. xix. 2, 13, 6 ; xix. 2, 60, 2. 6 Cf. Dig. xix. 2, 11, 3. " Cf. Dig. xix. 2, 13, 5 ; xix. 2, 59 ; xix. 2, 62 ; Hunter, 511. SECT. 136] HIRE OF WORK AND HIRE OF SERVICES 413 the principle that "a building accedes to the land" {aedificium solo cedit). The proprietor of the ground was thus the letter (locator) of the real thing upon which the builder was to expend his labour, and which the latter consequently hired for that purpose. This case is also differentiated from that of the workman supplying both the materials and the labour which, as has been already seen, was regarded by the jurists as truly a sale.^ The reason why the Roman jurists spoke of the person who gave out the work, or contracted for the work to be performed, as the locator, and the person who undertook to do the work as the conductor, was because they looked at the work itself that was to be done as a whole, and did not consider the labour that was to be expended in doing the work ; if they had done so the person doing tlie work and expending the labour would naturally and properly be regarded as letting out his services for the execution of the work — i.e. as the locator — and the other person as hiring these services for its performance — i.e. as the conductor.^ The usage of the Roman jurists with regard to the relations of parties in the case of a hire of work, or the expending of labour in respect of some particular thing, while distinct and uniform throughout, proceeds upon a confusion between that case and the entirely distinct case of a letting or hiring of things for use (locatio-conductio rerurii), which would not have arisen if they had regarded payment as the essential criterion ; for just as the tenant of property pays for its use and is the hirer {conductor) of it, so a person who sends his child to be taught pays for, and thereby hires, and is the conductor of the services of the teacher, which the latter lets to him.^ As distinguished from a "hire of work" {locatio-conductio ojperis) there was said to be a " hire of services " {locatio-conductio operarum) when a person let his services solely to another person. In such cases the person whose services were thus employed — i.e. the employee — such as a secretary, or a domestic servant, or a labourer, was the locator or letter of the services, and the person to whom the services were to be alone rendered — i.e. the employer — was the conductor or hirer of them. The distinction between locatio-conductio operis and 023erarum arises when the work or services are rendered either in connection with a particular thing or generally ; but in order to avoid the confusion caused 1 Ante, p. 405, note 1. ^ Cf. Sandars, Institutes of Justinian, 8th ed., 369. ' See Huntei', Roman Law, 4th ed., 511, 512. 414 HIRE OF WORK AND HIRE OF SERVICES [part iv. by the different aspects in which the Roman jurists regarded the relations of parties, according as it was a " hire of work " or a " hire of services," it is advisable to speak of the "employer" and "employee." The employer is the person for whom the work is done, whether generally or in particular, and he was either the conductor operarum or hirer of services, or the locator operis or letter of work, as the case might be ; while, similarly, the employee is the person doing the work, whether general or special, and he was either the locator operarum, or letter of services, or the conductor operis or the hirer of work, as the case might be. (1) Duties of the Employee or Workman {Locator operarum; Conductor operis) In a contract of hire of work (locatio-conductio operis) the principal duty of the employee or workman was to perform the work properly, and in the way agreed upon, within a reasonable time, if no time had been definitely fixed.^ If the workman was unavoidably prevented, as, for example, by illness, from performing the work, he was not entitled to the agreed upon payment for his services, but, at the same time, he was not liable for damages by reason of his failure to do the work. If, however, the employee's failure to do the work was due either to negligence or to lack of skill he was liable to compensate the employer (who, according to the Roman theory, had let the work to him) for his non-performance, because the contract implied and required that the workman should apply to the work both sufficient care and sufficient skill. If the workman does not possess sufficient skill he ought not to undertake the work, but having once done so he was liable for the consequences ; and, moreover, in such circumstances he was not entitled to payment for his services. A person who undertook to do work requiring special skill, and who knew, or ought to have known, that want of reasonable care or skill would cause danger to others, was liable, under the Aquilian law {Lex Aquilia) for any damage that might be caused by reason of his want of skill. Thus, a doctor who neglected to attend to a patient so that he, in consequence, died,^ or who unskilfully performed an operation, or through lack of skill prescribed wrong remedies,^ was liable for fault {culpa). Lack of reasonable skill was regarded as equivalent ' to culpa or fault, and the liability in consequence was 1 Of. Dig. xix. 2, 51, 1 ; xix. 2, 58, 1 ; xix. 2, 60, 3. ^ Justinian, Inst. iv. 3, 6 ; Dig. ix. 2, 8 pr. 5 Justinian, Inst. iv. 3, 7 ; Dig. ix. 2, 7, 8 ; ix. 2, 8 pr. ; 1. 17, 132. SECT. 136] HIRE OF WORK AND HIRE OF SERVICES 415 expressed in the legal maxim imperitia culpae adnumeratur ; ^ the fault consisted in undertaking work which the person knew, or ought to have known, he was not competent to perform.^ Under the contract of hire of work (locatio-conductio operis) it was the duty of the person to whom the work was entrusted for the exer- cise of his skill — that is, the employee or conductor of the work^ — to take good care of the subject ; and therefore if the property so entrusted to him were lost or destroyed through his negligence or through his lack of skill, he was liable for the loss. He was not liable, however, for loss or damage caused by "superior force" (ms major), such as robbery, or arising from intrinsic faults in the thing itself upon which he was working, or from inevitable accident {damnum fatale). The employee or workman might competently, by express agree- ment with the other party, either extend or limit the legal liability ordinarily inherent in the contract, either with regard to the subject of the contract^ or to the manner in which the work was to be per- formed. Thus, he might agree to be responsible for loss caused by accident,^ or he might agree that the quality of the work done was to be estimated by the employer ; in such latter case, however, the standard of judgment was not an arbitrary one, but was that of a reasonable man.* A person might undertake to do work per aversionem or as an entire job, which signified that the whole work was to be done for a fixed and inclusive sum, and was to be delivered as a whole after its completion ; this is in contrast with work undertaken to be done at so much for each portion completed, or for each day's work (per diem).^ In the case of a hire of work per aversionem (or aversione) the risk of loss or injury did not pass to the employer until the whole work had been completed and approved, but if the work was to be performed by the piece or by measurement the risk (periculum) passed to the employer (locator) whenever each piece was completed, measured, and approved.® In these cases there was a presumption that before completion or approval the work was lost through the fault of the employee (con- ductor') while the subject was still in his hands, but this presumption 1 J)ig. 1. 17, 132. ^ See also post, Section 156, p. 451, " Daranum," at p. 456. =* Cf. Dig. xix. 2, 13, 5. * Dig. xix. 2, 24 pr. ^ Cf. a, sale per aversionem {ante, p. 394). Cj. also Dig. xix. 2, 35 pr. ; xix. 2, 51, 1. » Cf. Dig. xix. 2, 36 ; xix. 2, 37 ; xix. 2, 60, 3 ; xix. 2, 62. 416 TERMINATION OF WORK AND SERVICES [part iv. might be overcome on the part of the employee by proof that the loss was accidental, or unavoidable, or had been caused by defects in the thing itself that had been supplied by the employer {locator), or other- wise through the fault of the employer ; and in such circumstances the risk (periculum) was upon the locator or employer. Thus if loss or injury was occasioned before the work had been measured or approved, and, at the same time, the failure to measure or approve had been due to the fault of the employer, the risk was thereby transferred from the workman or employee to the employer. Moreover, if before approval the subject was lost by vis major, or by accident, without any negli- gence, the loss fell upon the employer, because the workman was not responsible for more than his own care and skill.^ (2) Duties of the Employer {Locator operis ; Conductor operarum) The primary duty of the employer, whether in the character of the letter of work or the hirer of services, was to pay the sum agreed upon as the consideration for the work or for the services, unless owing to the fault of the employee the services promised had not been rendered.^ If the amount fixed was not paid timeously, interest became due upon it.^ Section 137. — Termination of the Contract of Hire of Work, AND OF Services The contract of hire of work, and of services generally, ended in either of two ways — namely, {a) by the completion of the work under- taken to be performed, or (&) by the expiry of the period agreed upon. Moreover, in the case both of a contract to give services {locatio- eonductio operarum), and of one to do some work {loeatio-conductio operis fcLciendi), the death of the person giving his services — that is, the employee or workman — had the effect of terminating the contract. In the case of a contract of hire of things {loeatio-conductio rerum), how- ever, the obligations under the contract were not ended by the death of either the locator or the conductor, but passed to their respective representatives.* ' Dig. xix. 2, 37. 2 Cf. Dig. xix. 2, 38 pr. ^ Cook, iv. 65, 17. Cf. the buyer's liability to pay interest upon the price, ante. Section 127 (3), at p. 400. ^ Justinian, Inst. iii. 24, 6 ; Code, ir. 65, 10 ; see ante, p. 412. SECT. 138] THE CONTRACT OF PARTNERSHIP 417 Section 138. — The Coktract of Paetnership (Societas)i Partnership is a contract by which two or more persons agree to combine their property or their labour, or both, for the sake of gain or profit.^ The Roman contract of societas was not confined to sharing the profits of a business, but extended to any sharing of profits or losses as the result of agreement between the parties, whether these profits or losses arose in business, or trade, or otherwise, and even included co- ownership when that had been created by agreement.* In the Institutes* Justinian, following the arrangement of Gaius,^ divides partnership into two great classes according as it was either of a general character or for a particular purpose.^ In the Digest, how- ever, five different kinds of partnerships are distinguished,'' namely : — (1) Societas uniwrsoru^n honorum ; (2) Societas universorum quae ex quaestu veniunt ; (3) Societas negotiationis alicujus ; (4) Societas vectigalis ; (5) Societas rei unius. (1) Societas universorum honorum, or " a partnership of all goods,'' was one in respect of which everything belonging to each partner, at the time of the contract and subsequently accruing to him, in whatever way it might have been acquired,^ was held by the partners, and enjoyed by them in common. Under such a form of contract everything that belonged to each partner at the date of the contract became partner- ship property without the necessity of delivery or transfer,^ but property that was subsequently acquired required to be specially conveyed.!" (2) Societas universorum quae ex quaestu veniimt was " a partnership of 1 See Juatinian, Imt. iii. 25 ; Gaius, Inst. iii. 148-154 ; Dig. xvii. 2 ; cf. French Civil Code, Arts. 1832-1873. See also, on the " Contract of Partnership " generally, Hunter, Roman law, 4th ed., 516-524 ; Mackenzie, Roman Law, 7th ed., 248, 249 ; Moyle, Institutes of Justinian, 4th ed., 441-446 ; Buckland, Principles of Roman Private Law, 276-281 ; Sohm, Institutes of Roman Law, 3rd ed., 406, 407 ; Sandars, Institutes of Justinian, 8th ed., 372-377 ; Cuq, Institutions Juridiques des Romains, ii. 438-444 ; Girard, Manuel de Droit Romain, 5th ed., 575-581 ; May, Elements de Droit Romain, 313-317. 2 Cf. the definition of partnership in the French Civil Code, Art. 1832. 3 See Societas rei unius {vel certarnm rerwn), post, p. 418. * Justinian, Inst. iii. 25 pr. ^ Gaius, Inst. iii. 148. " Cf. French Civil Code, Art. 1835 : " Partnerships may be either universal or affecting only certain property." '• Dig. xvii. 2, 5-7. 8 Dig. xvii. 2, 3, 1 ; xvii. 2, 73. » Dig. xvii. 2, 1, 1-2. i» Dig. xvii. 2, 74. Cf French Civil Code, Arts. 1836, 1837, 1838. 27 418 THE CONTRACT OF PARTNERSHIP [part iv. all things which came from the exercise of skill or labour," ^ or, in other words, a professional or trade partnership in which the partners share the profits gained by each in the course of carrying on business trans- actions. The special nature of this form of partnership consequently excluded from its application property belonging to the individual partners that had not been applied to the partnership purposes, and property that was acquired by the partners in ways other than in the course of business, as, for example, by succession, by gift, or by bequest.^ (3) Societas negotiationis alicujus was a partnership entered into for, and limited to a particular transaction — such as to sell certain property ^ — and only continued until the completion of the particular transaction ; * while only the gains and losses made or incurred, respectively, in con- nection with the transaction entered into the partnership.^ (4) Societas vedigcdis was a partnership formed for the purposes of farming the revenue. It was a variety of societas negotiationis alicujus, but it was governed by certain special rules.® (5) Societas rei unius {vel certarum rerum), or " a partnership of one thing," was a partnership formed in relation to one thing ; it was a form of joint ownership.^ Property might be owned jointly either by agreement of parties, or by reason of some act or event independent of the will of the parties, as, for example, when property is bequeathed by a testator to several persons jointly. In the former case there would be true partnership, because there is present the element essential to a proper partnership, namely, the mutual choice of a person (delectus joersonae); but in the latter case they have been accidentally brought into association with each other by the act of a third person and without any knowledge or agreement on their part, so that, conse- quently, there is no true partnership. The distinction between the ways in which joint ownership might arise was indicated by the different ways in which the rights of joint owners might be enforced according as the joint ownership was either ' The term quaestus signified commercial and professional profit (cf. Big. xvii. 2, 7-8). This special form of the contract is also styled either societas quaestus et lucri {Dig. xvii. 2, 13), or societas quaestus et compendii {Dig. xxix. 2, 45, 2). 2 Cf. Dig. xvii. 2, 7-9 ; xvii. 2, 71, 1 ; xxix. 2, 45, 2. 3 Cf. Dig. xvii. 2, 58 pr. * Justinian,. /ms<. iii. 25, 6. = Dig. xvii. 2, 5 pr. ; xvii. 2, 58 pr. " See Dig. xvii. 2, 59. 7 Cf. Dig. xvii. 2, 31. SECT. 139] CONSTITUTION OF PARTNERSHIP 419 (a) of consent, or (b) by law. If the joint association of parties had been brought about by their consent the appropriate remedy was the actio pro socio, which was the ordinary mode in which partners insisted on their rights against each other ; but if, on the other hand, the joint ownership had arisen from operation of law and independent of their consent, the competent actions were the actio communi dividundo or the actio familiae eriscundae.^ The ordinary professional or trade partnership (societas universorum qime ex quaestu veniunt) was the most usual one, and was the kind that was ordinarily understood if no other form was clearly agreed upon.^ Section 139. — Constitution of Partnership The contract of partnership was constituted by simple consent of parties, whether verbal or in writing, and, by the law of Justinian, might be contracted conditionally,^ although, previous to that time, the point had been undecided.* But a partnership could not be validly entered into to last for ever (m aeternmii),^ because such an agreement might be equivalent to compelling a person to remain a partner against his will, and consent was of the essence of the contract.^ In order validly to constitute partnership it was requisite that the purpose of the contract should be lawful, and not contrary to either public . morals or public policy,^ and also that each partner should con- tribute either property, or services, or both ; * one partner, however, might contribute all the capital and the other merely services and both share the profits, for a man's services to the partnership might be so valuable as to be equivalent to capital." Each partner's share of the profits of the partnership was not neces- sarily proportionate to the amount of capital contributed by him, but might be fixed in various proportions by express agreement ; i" the amount of capital contributed by each partner was not necessarily equal, but was also fixed by agreement. There was no necessary correlation between the amount of capital contributed by each partner 1 Dig. xvii. 2, 34. 2 Dig. xvii. 2, 7. 2 Dig. xvii. 2, 1 pr. 4 Code, iv. .37, 6. 5 Dig. xvii. 2, 70. 6 Code, iii. 37, 5. " Cf. Dig. xvii. 2, 57 ; also French Civil Code, Art. 1833. 8 Cf. French Civil Code, Art. 1833. ° Cf. Gaius, Inst. Hi. 149 ; Justinian, Inst. iii. 25, 2. i» Cf. Dig. xvii. 2, 5, 1. 420 RIGHTS AND DUTIES OF PARTNERS [part iv. and his share of the profits, or proportion of the losses of the partnership, each of these matters being the subject of separate agreement, but if the proportion of profit or of loss attaching to each partner had not been specially agreed upon, the shares were regarded as equal — that is, each partner would either obtain, or be liable for, an equal share of the whole profit or loss, as the case might be, and not merely a share proportionate to his contribution to the partnership.^ If either the share of profit, or of loss, had been fixed but no men- tion was made of the other, its amount was considered to be the same as that other which had been agreed upon.^ A contract of partnership was valid in which one of the parties was to share in the profits but was not to be liable for any share of the losses;^ the converse case, however, was invalid in which it was agreed that one of the parties was to share in the losses but not in the profits ; * such an arrangement was styled by the jurists societas leonina, and it was not considered as a proper partnership; it was void on that account, because it was of the essence of true partnership that there should be a consideration in the form of profit present to the minds of each of the parties and arising from either the money or the services contributed by each ; such an arrangement would amount to a form of donation rather than a partnership.^ Section 140. — Eights and Duties of Partners'* In the Roman contract of partnership the rights and duties of partners amongst themselves {inter se) were alone considered, and the rights and obligations of third parties in relation to the partners or the partnership were not dealt with. The reason of this is that the Roman Law, contrary to modern principle, did not regard each partner as an implied agent for the other partners whom he might effectually bind in transactions with third persons within the scope of the partnership business.^ The absence of the implication of agency on the part of each partner was due to the slow development of the law of agency in the ^ Justinian, Inst. iii. 25, 1 ; Gaiua, Inst. iii. 150. Cf. French Civil Code, Art. 1853, which provides that, in such circumstances, each partner's share is pro- portionate to what he has put into the partnership. ^ Justinian, In^t. iii. 25, 3 ; Gaius, Inst. iii. 150. ^ Justinian, Inst. iii. 25, 2. * Dig. xvii. 2, 29, 2. Cf. French Civil Code, Art. 1855. 5 Cf. Di^. xvii. 2, 5, 2. « Of. French Civil Code, Arts. 1843-1861. ' Cf. French Civil Code, Art. 1859. SECT. 140] RIGHTS AND DUTIES OF PARTNERS 421 Roman Law in connection with the making of contracts. The Roman Law, in theory, did not permit one independent person to represent another in the making of a contract, or in the performance of other legal acts regulated hy the jus civile ; i' the only legal contracting party in such cases was that person who actually made the contract, speaking the binding words and performing the essential formalities, and only that person could sue and be sued on the contract.^ According to Roman Law a partnership was not a juristic person having a legal existence apart from that of the partners composing it ; as a result, contracts made by individual partners in the course of the partnership business ^nd on behalf of the partnership gave rise to obligations only between the individual partner making them and third parties, and did not create enforceable contractual obligations between the partnership as such and third persons. Only the particular partner who had made the contract could competently be sued for its enforcement;^ but he had a right of recourse thereafter against the other partners, by means of the actio pro socio, as the ordinary remedy by which the mutual rights and duties of partners were enforced amongst themselves.* A contract that had been made by a partner in that capacity, but which went beyond the proper scope of the partnership business, and one entered into by a partner as an individual and not as a partner, and which was on his own private account and for his own benefit, created no enforceable rights as against the other partners, and the sole responsibility was upon the contracting partner. Each partner was bound to contribute to the partnership funds the amount of capital agreed upon, in the agreed proportions, whether in ^ This did not apply to the case of a slave, or of a person under binding his master {dominus) or his paterfamilias, as the case might be. ^ The failure of the Roman Law to recognise direct representation in the making of contracts or in the performance of legal acts gave rise to the contract of " Mandate " {mandatwn), by means of which a person in whom special confidence was placed contracted in his own name (although really on behalf of another person) but subject to an express undertaking to give up to the person on whose behalf the contract was entered into anything gained by the transaction. This was an indirect mode of representation ; the person contracting in his own name was personally bound by the contract, but the contract of mandate imposed upon the mandator, or person on whose behalf the act was done, an obligation to make good to the mandatarius, or person doing the act, any loss that he might thereby incur. See " Mandate," ^osf, Section 142, p. 424, and, specially, the "History of Mandate," p. 425. ^ The Praetorian law, however, permitted the third party to sue the partners if they had benefited b'y the contract (Dig. xvii. 2, 82), and the other partners to sue if they could not protect their interests by any other means {Dig. xiv. 3, 1, 2). ^ Cf. French Civil Code, Arts. 1852, 1859, and 1862. 422 TERMINATION OF PARTNERSHIP [part iv. money, or in services, or in both.i It was, further, the duty of each partner to account to the other partners for all sums or profits obtained by himself in the course of carrying on the partnership business, and to contribute to the partnership funds all acquisitions gained by himself in the exercise of his labour and skill that might properly come within the definition of commercial or business profit {quaestus)? But a partner was not bound to account for or to contribute to the partnership anything that had been acquired by him in such ways as by succession or by testament or by gift ; for such things accrue to him personally and not in the capacity of a partner, and are outside of and have no relation to the ordinary business of the partnership. The liability of a partner in a trade or professional partnership to contribute to the partnership debts was limited to such debts only as had been properly incurred within the limits of the partnership busi- ness, in the absence of any express agreement otherwise. Each partner was entitled to be reimbursed out of the funds of the partnership all expenses that he had properly incurred in the course of carrying on the partnership business, and he was also entitled to be relieved of all obligations properly incurred by him on behalf of the partnership. A partner was bound to exercise ordinary diligence in the business of the partnership, or the same care as he ordinarily showed in the management of his own affairs, and he was liable within these limits for loss occasioned to the partnership by his negligence.^ A partner was not liable for loss occasioned by inevitable accident {damnum fatale), or by superior force {vis viajor).^ Section 141. — Termination of Pabtneeship ^ The contract of partnership {societas) might be ended or dissolved in a considerable variety of ways and circumstances ; thus it might terminate by {a) mutual consent of the partners ; ^ (V) expiry of the period for which the partnership had been entered into ; "^ a partner withdrawing before the expiry of the period that had been agreed upon for the continuance of the contract thereby lost all rights as a 1 Cf. Frencli Civil Code, Art. 1845. ^ Cf. Fi'ench Civil Code, Art. 1847 : as to quaestus, see ante, p. 418, note 1. ^ Justiman, Inst. iii. 25, 9 ; Big. xvii. 2, 72. Cf. Dig. xiii. 6, 5, 2, and Frencli Civil Code, Art. 1850. See ante, Section 112, at p. 350. * Big. xvii. 2, 53, 3 ; xvii. 2, 58 pr., 1. ^ Cf. Justinian, iTist. iii. 25, 4-8 ; Gains, Imt. iii. 151'154 ; Big. xvii. 2, 65. Cf. French Civil Code, Arts. 1865-1872. * '' Justinian, Inst. iii. 25, 4. ' Big. xvii. 2, 65, 6. SECT. 141] TERMINATION OF PARTNERSHIP 423 partner, but at the same time remained liable for all partnership obligations during that time;i (c) renunciation or withdrawal of a partner, if no time had been fixed for the duration of the contract.^ A partner might renounce or withdraw at any time, and an agreement to the effect that he should not be entitled to withdraw was invalid ; » but when a time had been definitely fixed for the duration of the contract a partner could not escape liability as such during the agreed upon period.* Even although the continuance of the partnership was indefinite a partner was not entitled to renounce or withdraw at a time specially inconvenient to the other partner, or in bad faith {in mala fide) in order to obtain for himself some personal advantage,^ as, for example, if a partner in a partnership embracing all the property of each of the partners {societas omnium, or totorum lonorum) were to withdraw in order to enjoy alone the benefit of an inheritance or a legacy that had been left to him ; in such a case he would be bound to put the benefit so accruing to him into the common fund and share it with the other partners in terms of the contract ; ® but if a partner withdrew in good faith any such subsequent benefit would accrue to him alone, and the remaining partner or partners would alone enjoy any partnership profits acquired subsequent to the renunciation ; ^ (d) fulfilment of the object of the partnership, as where a partnership had been formed for a particular transaction ; ^ (e) happening of an event that rendered impossible the accomplishment of the object of the partnership ; (/) loss of the partnership property or funds ; ^ (g) death of a partner, unless the partnership contract expressly provided other- wise.^'' The death of one partner dissolved the partnership, although there might be more than one partner surviving, unless it had been specially agreed otherwise at the time when the contract was formed ;^i the contract, however, was not dissolved, but was considered as still existing in the case where a partner had acted as such, in good faith, on the assump- 1 Big. xvii. 2, 65, 6. ^ Justinian, Iiist. iii. 25, 4. 2 Big. xvii. 2, 14. * See supra. ^ Justinian, Inst., ut supra. " iTist., ut supra. See ante, p. 417. ' Inst., wt supra. * Justinian," iii. 25, 6 ; Big. xvii. 2, 65, 10. See ante, p. 418. " Big. xvii. 2, 63, 10. 1" iTist. iii. 25, 5 ; Big. xvii. 2, 65, 9 ; Gaius, hist. iii. 152. The Societas vectigalis (see ante, p. 418) was an exception to this rule, and the heir of such a partner might by special agreement succeed him {Dig. xvii. 2, 59 ; xvii. 2, 35). 1' Inst., ut supra ; Big., ut supra. 424 THE CONTRACT OF MANDATE [part iv. tion that his partner was alive when he was in fact dead at the time ; ^ (A) insolvency or bankruptcy of a partner, involving either cessio bonorum or venditio honorum ; but in both such cases the partners roight agree to form a new partnership ; ^ {i) capitis deminutio maxima or media of a partner and the consequent confiscation {publicatio) of his property ^ by the " fisc " or. public treasury. The effect of confiscation was to destroy the legal persona of the partner, who was thereby civilly dead as such. The capitis deminutio minima of a partner had not the effect of dissolving a partnership, so that neither the arrogation* nor the emancipation^ of a partner terminated the contract;^ but the arrogator did not, as such, become a partner, as no one could become such without the consent (invitus) of the other partners ; ^ (j) an action at law. If one partner brought an action against any of his partners in order to enforce his rights under the partnership contract, the latter was considered as thereby ipso fa/ito dissolved.^ The action known as pro socio was the legal remedy that was usually employed in the case of disputes between partners, as for the settlement of accounts or for compensation for loss incurred in the course of transacting partnership business, and, generally, for the enforcement of the rights in personam of the partners against each other. But a partner who had committed a delict against any of his partners was liable, according to circum- stances, to such actions as the actio furti, actio vi bonorum raptorum, and the cbctio legis Aquiliae ; * and there was yet another action to which partners might be liable, known as the actio communi dividundo, when it was sought to obtain a division of common property. Section 142. — The Contract of Mandate (Mandatum) i" This was, in Eoman Law, a contract by which one person agreed to do something, or to give some personal services, without remuneration. ^ Dig. xvii. 2, 65, 10. This equitable principle was also applied in the contract of "Mandate." See Dig., ut supra ; and &\so post. Section 144, p. 433. ^ Justinian, Inst. iii. 25, 8 ; Gaius, Inst. iii. 154. 3 Inst. iii. 25, 7 ; Dig. xvii. 2, 65, 12. See on capitis demimctio, Part II., Sections 3-7, pp. 74-80. * See on " Arrogation," ante, Part II., Section 33, p. 141. 5 See on "Emancipation,'' ante. Part II., Section 32, p. 138. 6 Dig. xvii. 2, 65, 11 ; xvii. 2, 58, 2. 7 Of. Dig. xvii. 2, 65, 11. * Dig. xvii. 2, 65. " Dig. xvii. 2, 45 ; xvii. 2, 46 ; xvii. 2, 47, 1 ; xvii. 2, 49 ; xvii. 2, 50 ; xvii. 2, 51 pr. ; xvii. 2, 51, 1. '" See Justinian, Inst. iii. 26 ; Dig. xvii. 1 ; Code, iv. 35. See also, on the " Contract of Mandate " generally, Hunter, Roman Lata, 4th ed., 482-490, and 533, SECT. 142] THE CONTRACT OF MANDATE 425 on behalf of another person, who, on his part, undertook to protect him from loss in respect of so doing. It will be observed from the definition that the contracts of "man- date" and "commodate" are closely related to each other, for while mandatum was a contract to give personal service without a consideration, commodatum was a contract for the use of a thing without a considera- tion ; 1 for these reasons these two contracts stand in the same relation to the contract of hire, or locatio-conduotio, which was a contract for either the use of a thing, or for personal services for a monetary consideration. 2 The person for whom the service was done or given was styled the mandator or "mandaut," and the person doing the act or giving the service on the other's behalf was known as the mandatarius or " mandatary." The contract of mandatum was the Roman equivalent of the modern law of agency. History of Mandate. — The principle of representation in the making of contracts developed very slowly in the Roman Law, the fundamental theory of which was that one person could not represent another and that the only lawful contracting party was he who actually made the contract, who spoke the binding words, and who performed the essential formal acts. That person alone could sue and be sued, and it was immaterial that the contract was really made on behalf of some one else. The expedient was resorted to of obtaining a friend in whom reliance could be placed to contract in his own name, subject to an undertaking to give up to the person at whose request he entered into the contract anything that he might gain under it, whilst the person on whose behalf the contract had been made undertook to hold his friend free from any loss or liability. In the earlier period of Roman Law the promise to perform the act of friendship was accompanied by certain formalities ; the person on whose behalf the act was being done took the hand of the other in his right hand, telling him at the same time that he thereby 534 ; Mackenzie, Roman Law, Ith ed., 2bS-2b& ; Moyle, InstihUes of Jiistinian, 4th ed., 447-453 ; Sandars, Institutes of Justinian, 8th ed., 377-385 ; Buckland, Roman Private Law, 281-285 ; Sohiu, Institutes of Roman Law, 3rd ed., 407, 408 ; Cuq, Institutions Juridiques des Romains, ii. 432-437 ; Girard, Manuel de Droit Roniain, 5tli ed., 581-587 ; May, Elements de Droit Romain, 8th ed., 310-3r3. Cf. French Civil Code, Arts. 1984-2010. ' See on '-Commodate," ante, Section 115, p. 357. 2 See on " Hire," ante, Section 131, p. 404. Of. Hunter, Roman Law, 4th ed., 534. 426 THE CONTRACT OF MANDATE [part iv. placed in his hand the commission that he desired to have executed. For this reason the trust itself was called mandatu7n or vimiu datum, that is, " given with the hand." The contract of a mandatum was thus in its origin the execution of an office of friendship, and on that account it was gratuitous in character,i while a specially high degree of care was required in the performance of the trust as an equivalent to the excessive confidence reposed in the mandatary ; ^ wilful failure to properly execute the trust, involving condemnation in an actio mandati, stamped the person with " infamy " (infamia)? With the development of the Praetorian law, and the means which it provided for the enforcement of all claims based upon principles of equity, friends who entered into a contract of mandate were compelled to perform their reciprocal duties. The Praetor enabled the mandatm- to compel the mandatarius, by means of the direct action of mandate (actio mandati directa), to account for, and to give up, all profits received by him, and the mandatary might similarly compel the mandant to make good to him any expenses or losses incurred by him, and to free him from any liabilities incurred by him in the course of the execution of the mandate, by means of the " contrary " action of mandate (actio mandati contraria). The later Praetorian law permitted a mandator to bring equitable actions against and to be sued by the third person with whom his mandatary had contracted; and thus whatever "direct" actions the mandatary could have brought, or was liable to, the mandator might sue in the form of actiones utiles. The intervention of an agent was gradually recognised by the Praetorian law ; thus, " A cognitor, i.e. a person authorised formally to conduct a suit, was allowed to act on behalf of the plaintiff or defendant, and fully represented his principal.* The manager of a shop (institor) and the captain of a ship (magister navis) were permitted to bind their employers,^ and by an extension of the actions appropriate to these cases — i.e. by allowing a utilis actio quasi institoria — the Praetor made all employers liable for acts of their agents authorised by or profitable to them, and allowed actions to be brought directly against the employer without regard to the procurator or agent ; and this was the mode in 1 Of. Dig. xvii. 1, 1, 4. 2 Code, iv. 35, 13. '' Big. iii. 2, 1. See p. 434. See upon " Tnfamia,'' ante, Part II., Section 8, p. 80. * See Justinian, iTist. iv. 10 pr. ; Sandars, Institutes of Justinian, 8th ed., 469, note. ^ Justinian, Irist. iv. 7, 2. SECT. 142] THE CONTRACT OF MANDATE 427 which the mandator was made responsible. The Praetor also gave the mandator the right to sue directly without the consent of the agent, a right not given by the actiones institoriae and exercitariae, except in special cases. Thus, ultimately, obligations were acquired by or against the mandator through the agent, and not for him by the agent." 1 The contract of mandate in order to be valid required to be lawful, and the act sought to be performed must not be contra bonos mm-es; thus a mandate to commit a theft or to do an injury would not be binding upon the mandatary, nor would the mandatary have any recourse against the mandator if he executed such a mandate.^ Although classed as a " consensual " contract mandate was not properly such,* for a feature of the consensual contracts is the presence of the element of a consideration, while mandate was in its essence, and by reason of its origin,* gratuitous in character.^ The introduction of a consideration would transform the contract into one of hire (locatio- conductio), either of work or of services, as the case might be ; ^ but a sum of money might be agreed upon as a honorarium or reward for the services rendered that did not fall within the terms of the contract and in no way affected its essentially gratuitous character. The gratuitous nature of the contract of mandate was gradually felt as an inconvenience, and it came to be competent for parties to agree upon what was called honorarium (or salarium),'^ not by way of payment for the services but in gratitude and as reward for them ; but an agreement as to honorarium, formed no part of the contract of mandate itself and could not, originally, be enforced by action ; when, later on, " rewards " (salaria, or honoraria) to those persons who exercised the liberal professions came to be recoverable, this was only possible by a special action quite distinct from remedies appropriate to the contract of mandate. The consent of parties to the contract of mandate might be given in any way that sufficiently clearly indicated their intention. It might be either express or implied. If express, the agreement might be either verbal or in writing, and if implied it might be inferred from facts and ' Sandars, Institutes of Jtcstinian, 8th ed., 379. 2 Of. Justinian, Inst. iii. 26, 7 ; Gaius, Inst. iii. 157 ; Dig. xvii. 1, 22, 6. ^ Hunter, Roman Law, 4th ed., 533. * Of. IHff. xvii. 1, 1, 4. 5 Gf. French Civil Code, Art. 1986. ^ Justinian, Inst. iii. 26, 13 ; Dig., rU supra. Of. Gaius, Inst. iii. 162. ' These terms were specially applied to the rewards given to persona exercising what were known as the liberal professions, such as advocates, rhetoricians, philosophers, or physicians. 428 THE CONTRACT OF MANDATE [part iv. circumstances, as, for example, if a man permitted another to do his business for him. The contract of mandate may truly be said to stand midway between the " real " and the " consensual " contracts. It was purely consensual in respect that the mode in which the consent of parties was expressed was immaterial to the validity of the contract, but it is distinguished from the other so-called " consensxial " contracts, and approximates to the " real " contracts in respect that the contract was not complete to the effect of being binding and reciprocally enforceable by the mere fact of consent ; for no enforceable obligation was created until the mandatary had actually commenced performance of the com- mission entrusted to him, or matters were no longer entire and had gone so far that the "mandant" (mcmdator) had not a reasonable opportunity either to act himself or to appoint some one else to act for him if the mandatary should refuse to act; up to that point the mandatary was entitled to renounce his mandate without thereby subjecting himself to liability.^ A mandate may be either (a) general, or (6) special.^ A " general " mandate is one in respect of which one man represents another in all hi^ affairs ; while a " special " mandate is one in respect of which one man acts for another with regard to one or more particular thing or undertakings.^ Mandatuni besides being either " general " or " special," might also be simplex or qualificatum, according as the agency was undertaken for the benefit of the principal or for that of a third person. The contract of mandate might be constituted either (a) to take effect from a particular time (i.e. in diem) or (b) subject to a condition (i.e. sub conditione).* The Roman contract of mandatum was employed for three special purposes, namely (1) to effect agency or representation;^ (2) to create suretyship, in the form of mandatum qualificatum,,^ as when, for example, one person requested another to lend money to a third person ; ^ in such ' See Justinian, Inst. iii. 26, 11 ; Dig. xvii. 1, 22, 11. 2 Of. French Civil Code, Arts. 1987, 1988. 3 a.fiig. iii. 3, 1. * Justinian, Inst. iii. 26, 12 ; Dig. xvii. 1, 1, 3. " See arite, p. 425, for the history of mandate and how the Roman Law came to recognise that one person might represent another. " See supra ; also Moyle, 449. See further, as to mandatum qualificatum, post, p. 466, and pp. 469-470. '' Cf. Justinian, Inst. iii. 26, 3 ; Dig. xvii. 1, 2, 2. SECT. 142] THE CONTRACT OF MANDATE 429 a case the law implied a promise on the part of the first person to indemnify the second person against any loss incurred through execut- ing the mandate ; (3) to transfer (under the later law) the benefit of a debt or other obligation, the assignee, in such a case, being given a mandate to sue in the assignor's name. There were in the Justinianian law five varieties of the contract of mandate,! according as it was for the benefit of (1) the mandator only ; - (2) the mandator and the mandatary ; =* (3) a third party alone;" (4) the mandator and a third person ; ^ (5) the mandatary and a third person.^ A mandate would be for the benefit of the mandator only if, for example, one person were to give to another a mandate to manage his business, or to buy a property, or to become surety for him ; '^ it would be for the benefit of the mandator and the mandatary if a person were to give to another a mandate to lend money to a third person for the good of the mandator's property, or if, when one person was about to sue another as surety, the latter were to give to the former a mandate to sue the principal at his risk, or to stipulate at his risk for payment of something owed by him to the former with a person appointed by him as his substitute ; ^ a mandate would be for the benefit of a third party alone if, for instance, a mandator were to direct another person to manage the afiairs of a third party, or to buy an estate, or to become surety for that person;^ a mandate would be for the benefit of the mandator and a third person if, for example, one person were to give to another an authority to act in matters common to himself and a third party, or to become surety for himself and that third person, i" A mandate would be for the benefit of the mandatary and a third person if a mandator were to direct a mandatary to lend money to a third party at interest.ii If the money was lent without interest, the mandate would be for the benefit of the third person only.12 There could not be a valid contract of mandate for the benefit of the mandatary alone ; as when, for example, one man advises another to ' See on these five varieties and their authority, Moyle, ut supra, 447. ^ Justinian, Inst. iii. 26, 1 ; Big. xvii. 1, 2, 1. ' Justinian, Inst. iv. 26, 2 ; Big. xvii. 1, 2, 4 ; xvii. 1, 45, 7, 8. * Justinian, Inst. iii. 26, 3 ; Big. xvii. 1, 2, 2. " Justinian, Inst. iii. 26, 4 ; Big. xvii. 1, 2, 3. ° Justinian, Inst. iii. 26, 5 ; Big. xvii. 1, 2, 5. " Justinian, Inst. iii. 26, 1 ; Big. xvii. 1, 2, 1. ^ Justinian, Inst. iii. 26, 2 ; Big. xvii. 1, 2, 4 ; xvii. 1, 45, 7, 8. " Justinian, Inst. iii. 26, 3 ; Big. xvii. 1, 2, 2. '" Justinian, Inst. iii. 26, 4 ; Big. xvii. 1, 2, 3. " Justinian, Inst. iii. 26, 5 ; Big. xvii. 1, 2, 5. ^^ Inst., ut supra. 4:3,0 DUTIES OF PARTIES IN MANDATE [part iv. invest his money in a certain way ; such advice is not a mandate, and is not obligatory as such.^ Section 143. — Duties of Paeties in Contract of Mandate (1) Duties of the Mandatary^ The mandatary, in the first instance, was not bound to undertake the contract,^ but, having undertaken it, he was bound to fulfil it unless certain good reasons recognised by the law — such as sudden and serious illness, a necessary journey, enmity arising between the mandator and the mavdatarius, or the insolvency of the mandator*' — entitled him to renounce it.^ The reason why the insolvency of the mandator was considered as a good ground for renunciation of the mandate was that the mandatary thereby lost his guarantee against loss incurred in the execution of the mandate, which was one of the essential features of the contract. A mandate might be renounced, just as it might be revoked, so long as nothing had been done to carry it out ; or, in legal phraseology, so long as "matters were still entire."^ But neither mandator nor mandatarius was entitled to revoke or to renounce the mandate, as the case might be, in such a way, or at such a time, as to prejudice the interests of the other. If the mandatary renounced the mandate, he was bound to do so without delay, in order that the mandant might have an opportunity either to do the work himself or to get some other person to undertake the duty.' It was this ^ower of revocation which distinguished the contract of mandate from the other consensual con- tracts, and gave it the peculiar character of being at once complete, and yet, at the same time, of being uncertain of taking effect. The mandatary was bound to perform the duties of the contract with reasonable speed, and if he delayed unduly he was liable to the mandant in an action (actio mandati) ; * what amounted to undue delay (mora) was a question of circumstances in each case. The mandatary was ' Justinian, Inst. iii. 26, 6 ; Gaius, iTist. iii. 156 ; Dig. xvii. 1, 2, 6. See also Sandars, Institutes of Justinian, 8th ed., 381, note. 2 Cf. French Civil Code, Arts. 1991-1997. ^ Justinian, Inst. iij. 26, 11 ; Dig. xvii. 1, 22, 11. * Paul, Sent. ii. 15, 1. Cf. Dig. xvii. 1, 23-2,5. ^ Justinian, Inst., ut supra ; Dig., ut supra. " Res integra. ' Justinian, Inst. iii. 26, 11. ^ Justinian, In^t. iii. 26, 11. SECT. 143] DUTIES OF PARTIES IN MANDATE 431 bound to execute the mandate according to its terms and within its limits ; ^ if he exceeded his instructions, express or implied, he was liable to an action at the instance of his principal for breach, while he himself would have no remedy or claim against his principal for indemnity if the excess of his instructions had involved him in loss.^ So long, how- ever, as the mandatary acted within the limits of his instructions and the terms of his mandate, the mandatar, or principal, was bound to ratify what he had done, and to reimburse him for all expenses he had properly incurred, and to relieve him of all obligations he had properly undertaken.^ A mandatary was also bound to perform his mandate honestly and with the utmost care ; it was his duty to show the diligence of a " good paterfamilias," * and he was therefore liable for culpa levis as well as for dolus and gross negligence.^ This liability of the mandatary for culpa levis, and the obligation upon him to show the utmost care is an exception to the general rule of the Roman Law that those who derive no benefit from a transaction are only liable for culpa lata, or gross negligence.^ This liability was probably based upon the origin of the contract of mandate, as, primarily, the discharge of an office of friendship," and had in view the protection of the mandator against any abuse by the mandatarius of the trust reposed in him.^ The jurist Modestinus, indeed, states' that the mandatarius was only answerable for dolus and not for culpa, and in that respect contrasts him with a tutor who was responsible for both. " The statement of Modestinus was undoubtedly not law ; it is interest- ing, however, as evidence that there was not complete unanimity among the Roman jurists upon the subject of the responsibility of the mandatarius." i" The mandator, however, since he was deriving the whole benefit from the transaction, was liable for o^imis culpa or "all fault" or negligence. 1 Justinian, Inst. iii. 26, 8. Of. French Civil Code, Art. 1989. 2 Justinian, Inst., ut swpra ; Gaius, Inst. iii. 161 ; Dig. xvii. 1, .3, 2-4, 5 ; xvii. 1, 41. See, for examples of the proper execution or non-execution of the duties of a mandatary. Hunter, 486, 487. 3 Dig. xvii. 1, 10, 9, 10 ; xvii. 1, 12, 9 ; xvii. 1, 27, 4 ; xvii. 1, 56, 4. Cf. "French Civil Code, Arts. 1998-2000. * Code, iv. 35, 13. See ante, p. 426. ■> See ante, Section 112, p. 347. Cf. French Civil Code, Art. 1992. " See ante, p. 349. ' Cf. Dig. xvii. 1, 1, 4. See also infra. 8 Cf. Mackenzie, Roman Law, 7th ed., 254, note 2. " Mas. et Rom. Leg. Collat., x. 2, 3. 1" Hunter, Roman Law, 4th ed., 487. 432 TERMINATION OF MANDATE [part iv. It was the duty of a mandatary to render to the mandant an account of his actings, and he was bound to give up to the latter all property or produce that had been acquired by him and was in his possession by reason of the execution of the mandate ; ^ it was, further, his duty to give up all rights of action acquired by him against third parties ; ^ his refusal or failure in these respects rendered him guilty of dolus. -If, owing to his own fault or misconduct, a mandatary was unable to account, or to render up the property or produce entrusted to him, he was liable to make good to the mandant the loss occasioned by his failure in duty. But a mandatary was not liable for accidental loss unless he had specially undertaken to be so.^ (2) Duties of the Mandant {Mandator) * The mandator, or principal, was the person who gave the mandate. His obligations may be summarised generally as to ensure that the mandatarius incurred no loss by reason of the execution of the mandate, on the equitable ground that since he got no profit by the transaction, so ought he to suffer no loss.^ But this general obligation upon the mandant was conditional upon the mandatary performing his mandate properly. In virtue of this general obligation the mandator was bound to ratify whatever had been done by the mandatary within the limits of his instructions, and to make good to him all expenses reasonably and properly incurred by him in the execution of the mandate;^ he was, moreover, bound to accept whatever the mandatary had bought, and to indemnify or relieve him from all obligations undertaken by him in the due and proper performance of the commission entrusted to him.'' Section 144. — Termination of the Conteact of Mandate* The contract of mandate might be ended by (a) mutual consent ; (b) completion of the work undertaken ; (c) revocation on the part of the 1 Big. xvii. 1, 10, 2 ; xvii. 1, 10, 9. '^ Dig. xvii. 1, 43. 3 Dig. xvii. 1, 39. « Cf. French Civil Code, Arts. 1998-2002. ^ See, as to loss suffered by a mandatary. Dig. xvii. 1, 15 ; xvii. 1, 20 pr. ; xvii. 1, 20, 6-7 ; xlvii. 2, 61, 5. ° Dig. xvii. 1, 10, 9, 10 ; xvii. 1, 12, 9 ; xvii. 1, 27, 4 ; xvii. 1, 56, 4. Expenses of a mandatary included personal expenses, as for travelling (so far as these were not merely luxurious and unreasonable), and also money expended upon obtaining fruits or produce. ^ See ante, p. 431. (;/. also French Civil Code, Arts. 1998-2000. » Cf. French Civil Code, Arts. 2003-2010. SECT. 145] REMEDIES OF PARTIES IN MANDATE 433 mandaior ; ^ (d) renunciation on the part of the mandatary ; ^ (e) death of either party ; ^ (/) impossibility of executing the mandate. When the mandate had been revoked before it had been acted upon in any way no obligation arose under the contract, which was ended ipso facto by the revocation ; if, however, the mandate had been partially ful- filled the mandator was liable to the 7nandatarius to the extent of what had been duly and properly done towards the performance of the man- date, on the principle that it would be inequitable to permit a mandator, by merely revoking the mandate, to escape liability to the mandatary for what the latter had already in good faith and properly, although only partially, performed in pursuance of his mandate.* The mandatary was only entitled to renounce the mandate while matters were still entire and in such circumstances that the mandaiit would not be prejudiced by the renunciation,^ or for certain reasons regarded by the law as good and sufficient to justify the act, such as sudden illness, a necessary journey, enmity emerging between the parties, or the insolvency of the mandator.^ Although the death of either the maudant or the mandatary ended a contract ipso facto, yet if a man- datary who was excusably ignorant of the death of his principal did something in good faith and within the terms of his mandate, he was entitled to be indemnified by the heirs of the mandator, and could bring an action against them if they resisted his claim.'' Impossibility of performing the contract might be occasioned by either physical or legal causes,® Section 145. — Kemedies of Parties in Contract of Mandate The mandator or principal could sue the mandatarius in the actio mandati directa, and the mandatary could sue the mandant in the actio ' Justinian, Inst. iii. 26, 9 ; Gains, Inst. iii. 159. 2 Justinian, Inst. iii. 26, 11 ; Big. xvii. 1, 22, 11. 3 Justinian, Inst. iii. 26, 10 ; Gains, Inst. iii. 160 ; Big. xvii. 1, 26 pr. « Cf. Big. xvii. 1, 15. 5 Justinian, Inst. iii. 26, 11 ; Big. xvii. 1, 22, 11. Cf. French Civil Code, Art. 2007. 8 Paul, Sent. ii. 15, 1 ; see also ante, p. 430. Cf. French Civil Code, Art. 2003. ' Cf Justinian, Inst. iii. 26, 10 ; Gains, Inst. iii. 160 ; Big. xvii. 1, 26 pr. Cf French Civil Code, Art. 2008. On the same principle, if a slave had acted as the steward of his master, and debtors made payments to him as such in ignorance of the fact that he had been manumitted, or had ceased to act as steward, or had been sold, they were thereby freed from their obligation (Justinian, Inst., ut supi-a ; Big. xlvi. 3, 51). 8 See on " Impossibility of Performance of Obligations," ante, p. 331. 28 434 REMEDIES OF PARTIES IN MANDATE [part iv. mandati contraria. If a honorarium had been agreed upon as a reward for the services given, it could not be recovered under the actio man- dati, but only by special and separate procedure extra ordinem. The condemnation of the mandatary in an action at the instance of the mandator involved "infamy" (infamia'^), if his failure to perform his obligation had been wilful : ^ the reason for this is to be found in the special fiduciary origin of the contract of mandate.^ ^ See on " Infamia," ante. Part II., Section 8, p. 80. - Dig. iii. 2, 1. Cf. ante, p. 426. 2 See ante, p. 425, for the origin of the contract. k/ CHAPTER X Obligations arising Quasi ex Contractu — Quasi-contracts ^ Certain obligations are held to arise, and to be implied, from circum- stances alone, " as if " (quasi) they were the outcome of express agree- ment. Such obligations thus arising quasi ex contracht,, as the Roman jurists said, are known as " quasi-contracts," because they are analogous in their incidents to those arising ex contractu or from express consent. A " quasi-contract " may be defined, accordingly, as one analogous to an express contract, by which one person is put under a legal obligation to another person, or another person is bound to him by implication from circumstances alone, upon grounds of equity or of public policy, without the necessity of any express agreement or consent on the part of one person or another, but by mere operation of law. "Rights in perso/uon arising from consent are contracts; rights in personam arising by operation of law are quasi-contracts." ^ Examples of quasi-contractual obligations in the Roman Law are Negotiorum gestio^ Solutio indebiti,^ Lex Rhodia de jactu ; ^ the obliga- tion known as Receptum nautarum, caivponum, staiulariorwm, or that placed upon " shipmasters, innkeepers, and stablers " by the Praetorian Edict known as Nautae Caupones ; <> and the obligations created by the relation of tutor and pupil,'' curator and ward, heir and legatee,® common owners® and co-heirs-^" ' See also Chapter III., ante, p. 316. And see Justinian, Inst. iii. 27 ; Hunter, Roman Law, 4th ed., 655-666 ; Moyle, Institutes of Justinian, Ath ed., 390, 454-457 ; Sandars, Institutes of Justinian, 8th ed., 385-389 ; Mackenzie, Roman Law, 7th ed., 262-267 ; Buckland, Principles of Roman Private Law, 302-307 ; May, Elements de Droit Remain, 8th ed., 375-383 ; Sohm, Institutes of Roman Law, 3rd ed., 408-414. Of also French Civil Code, Arts. 1370-1381. 2 Hunter, ut supra, 655. ^ Justinian, Inst. iii. 27, 1 ; Dig. iii. 5, 2 ; xliv. 7, 5 pr. ; Oode, ii. 18, 20. * Justinian, List. iii. 27, 6 ; Big. xliv. 7, 5, 3. " Dig. xiv. 2. * Dig. iv. 9. This obligation is not mentioned by Justinian in the Institutes as an example of quasi-contract. " Justinian, Inst. iii. 27, 2 ; Dig. xliv. 7, 5, 1. * Justinian, Inst. iii. 27, 5 ; Dig. xliv. 7, 5, 2. " Justinian, Inst. iii. 27, 3 ; Dig. xvii. 2, 31, 34. ^o Justinian, Inst. iii. 27, 4 ; Dig. xvii. 2, 34. 435 436 ESSENTIALS OF NEGOTIORUM GESTIO [part iv. The quasi-contractual relation created by negotiorum gestio was analo- gous to that arising in the contract of mandate {mandatum)^ as was also the case of the relations between tutors and pupils, curators and wards, and heirs and legatees. The relations created by solutio indeliti were analogous to those of mutuum ; ^ those created by receptuvt nautarum * resembled deposituvi,^ while those existing between owners-in-common and co-heirs were analogous to societasfi Section 146. — Negotiokum . Gestio '^ This was the name applied to the spontaneous and unauthorised assumption by one person of the affairs of another person without any previous mandate or authority from him. A negotiorum gestor, or, liter- ally, " a manager of affairs," was thus a person who had, unasked, done something for another (as, for example, conduct a lawsuit for a man who is absent, take charge of a man's property, or pay a man's debts), and such an act created reciprocal obligations between the parties very similar to those arising from the contract of mandate.^ This particular form of obligation was first recognised by and received its sanction from the Praetorian Edict, which introduced the actio negotioruvi gestorum for the enforcement of the reciprocal duties of parties created in such circumstances.^ Section 147. — Essentials of Negotiorum Gk.stio In order to constitute the quasi-contractual relationship of Tiegoti- orum gestio it was requisite that there should be (a) an overt act on the part of one person for the benefit of the other ; (&) no mandate to do, or prohibition against doing, the act ; (c) an intention to benefit and to bind the person for whom the act is done. (a) An Overt Act. — The act of the gestor must have been overt or open, and capable of being seen, such as the repair of a wall, or of a house, to prevent its destruction or deterioration, or the payment ' See on " Mandate," ante. Section 142, p. 424 et seq. 2 See on "Mutuum," ante, Section 114, p. 353 e( seq. ^ Se&post, p. 443. * See on "Deposit," ante. Section 116, p. 362 et seq. ^ See on Sooietas or Partnership, ante, Section 138, p. 417 et seq. " See also ante, p. 316, and also Justinian, Inst. iv. 27, 1 ; Dig. iii. 5, 2 ; Dig. xliv. 7, 5 pr. ; Code, ii. 19. See also Hunter, Roman Law, 4th ed., 661-666 ; Mackenzie, Roman Law, 7th ed., 262, 263 ; Moyle, Institutes of Justinian, 4th ed., 454, 455 ; Sohm, Institutes of Roman Law, 3rd ed., 411, 412. ' Of. Dig. xliv. 7, 5 pr. * Cf. Dig. iii. 5, 3 pr. SECT. 147] ESSENTIALS OF NEGOTIORUM GESTIO 437 of a pel-son's debts to a third party in order to avert the seizure of his property. The act, moreover, must have been for the benefit of the other person ; a man who interfered in the affairs of another person for his own benefit was not a negotiorum gestor. (b) No Mandate. — It was essential to the idea of negotiorum gestio, and in order to create the quasi-contractual relationship involved in it, that the person acting for the benefit of the other should have no man- date or authority from him to do so, because the reason for the recogni- tion of negotiorum gestio, and the introduction of the actio negotiorum gestorum, was in order to supplement the express contract of mandate in that respect, so that, in the absence of express agreement, a person might, upon equitable grounds, if the circumstances appeared to demand it, be reimbursed expenditure incurred by him with the object and intention of benefiting another.^ Moreover, the person doing the act must not only have no authority to do so, but must not have been forbidden by the other person to do the act.^ (c) An Intention to Benefit and to Bind the other Person. — The justification of the unauthorised act of the negotiorum gestor was the desire to preserve the property of the other person, and thereby benefit him ; if, however, there was no such intention, and the gestor acted as if he himself were the owner of the property, with the object of benefiting himself, he was not a true gestor and could not sue the actio negotiorum gestorum against the other person, although he would be liable to the same action at the instance of the latter.^ Further, the person doing the act, in order to acquire the true character of negotiorum gestor, must have acted with the intention of thereby binding the other ; if he acted with an animus donandi, or an inten- tion to make a gift,* or merely in the performance of a duty that he already owed,^ he was not a true gestor, and no reciprocal and enforceable obligations were created by the act. The analogy, and at the same time the distinction, between negoti- orum gestio and nw/ndatum will now be evident. While mandate was based upon the request of the mandator, the gestor acted without either the knowledge or the authority of the principal. Moreover, negotiorum gestio was wholly for the benefit of the absent principal, while mandate ^ Cf. Hunter, ut sup., 665, and see examples, ibid. 2 Cf. Dig. xvii. 1, 40. ^ See, for examples. Hunter, itt sup., 664, 665. * Dig. iii. 5, 4. See, for examples, Dig. iii. 5, 44 ; Code, ii. 19, 1 ; Dig. iii. 5, 27, 1 ; X. 2, 50. '" Code, ii. 19, 5. 438 DUTIES OF THE NEGOTIORUM GESTOR [part iv. might be for the benefit of persons other than the mandator. Further, mandatum was one of the contracts recognised as being created by consent of parties, whereas in the case of negotioruni gestio the obligation was not created by consent, but was imposed by law upon equitable grounds. Section 148. — Duties of the Negotioeum Gestor The principal duty of the iiegotiorum gestor was to account to the person for whom he had acted — who was the dominus negotii or principal — and that person acquired, in virtue of the relationship created by the act, a right to insist that the gestor should show, in general, omnis diligeiitia, or the utmost care in the management of the aifairs he had unauthorisedly undertaken, and to enforce the right he could employ the actio negotioriini gestorum directa. In general, the negotiorum gestor was bound to show " exact " diligence, and not merely the same degree of care as he usually bestowed upon his own affairs, so that he would be liable if a person who was more careful than himself could, in the circumstances, have acted more profitably for the principal {dominus negotii)?- The reason for this excessive liability was the fact that the inter- ference of the gestor was spontaneous and unauthorised. But although, in the general case, the gestor was required to show the utmost care in performing what he had undertaken, yet his liability varied according as his interference in the other person's affairs was or was not necessary, and it might happen in consequence that, according to circumstances, he was either not responsible even for negligence, or responsible even for accident (casus) as well as for omnis diligeiitia. The gestor was bound to show the utmost care {eiacta diligeiitia) if he had interfered in the affairs of the other person without there being urgent necessity that he should do so ; ^ but a gestor who interfered unwillingly, and only because he was compelled to do so by force of circumstances, in order to avert a serious loss from the other person— as, for example, to prevent him being rendered bankrupt ^ — was liable only for dolus, and not for either fault {culpa) or accident {casus). As a general rule accidental loss did not impose any liability upon the gestor* unless his interference had been unnecessary ; ^ but he was ' Justinian, Inst. iii. 27, 1. 2 Cf. Dig. iii. 5, 37, 1. ■' Dig. iii. 5, 3, 9. * Code, u. 19, 22. » Dig. 1. 17, 36. SECT. 150] SOLUTIO INDEBITI 439 always liable for accidental loss or injury if he acted in directions or ways which he knew, or ought to have known, were contrary to the principles or the habits of the other person.^ Having once undertaken the duties the gestor was bound to go on with them as if he had a mandate to do so, unless or until relieved by the principal (dominus negotii) ; and even if the principal were to die the gestor was bound to complete transactions already begun, although he was not entitled to enter upon any new ones.^ Section 149. — Duties of the Pkincipal in Negotioeum Gestio The principal (dominus negotii) was bound to mal^e good to the negotiorum gestor all expenditure properly incurred by him for the other's benefit,' and to relieve him from all obligations reasonably undertaken in the course of his management. Section 150. — Solutio Indebiti When a person, under an erroneous belief as to fact but not of law, except in certain Special cases,* had paid money that was not really owing, he might recover what he had paid^ by means of an action known in Eoman Law as condictio indebiti.^ Thus, for example, a legacy paid under a will supposed to be genuine, but which in fact was false, could be reclaimed. Sohitio indebiti, or, literally, " the payment of money not owing," created a legal relation analogous to (quasi) the contract of mutuum, or loan, for in such circumstances the law implied an obligation on the part of the person receiving the money to pay it back. In order, however, to recover by means of the condictio indebiti money that had been paid in error, it was essential that the money should not have been due under any form of existing obligation, whether " civil " or " natural " ; ^ if the money was due on equitable grounds, under an existing "natural" obligation it would have been 1 Dig. iii. 5, 11. 2 Ci. Dig. iii. 5, 21, 2. 3 Dig. iii. .5, 45 pr. Cf. Dig. iii. 5, 10, 1, for an instance of expenditure that was not beneficial, and could not therefore be reclaimed by the gestor. * See p. 440 ; also ante, Part II., Section 10—" Limitation of Legal Capacity by Sex," at p. 8.3. 5 Of. French Civil Code, Art. 1235. ° See Dig. xii. 6 ; Code, iv. 5 ; Justinian, Inst. iii. 27, 6 ; Dig. xliv. 7, 5, 3. ■ See on "Civil Obligations" and "Natural Obligations," ante, Part IV., Chapter I., Sections 99 and 100, pp. 298, 299. 440 SOLUTIO INDEBITI [part iv. obviously inequitable to insist upon its restoration, and consequently the condictio indebiti, in such circumstances, was incompetent.^ If, moreover, the person who made the payment knew that the money was not due, he could not thereafter sue for its recovery, for in such a case the law presumed donation or gift.^ Further, the payment must have been accepted in good faith, under an honest belief that, it was due ; if the recipient knew that the payment was not due he would be guilty of theft {furtum), and would be liable to a condictio furtiva. The error under which the payment was made required to be one of fact but not of law, for every one was assumed to know the law,^ and ignorance of law was therefore no excuse ; * thus, for example, there would be an error of fact if an executor were to pay a legacy under a will that was really forged, and there would be an error in law if a person, in ignorance of his legal rights as heir, neglected to claim for himself the " Falcidian fourth " ^ and paid the legatees in full ; in the former case the amount paid could be recovered, but not so in -the latter.* It was not, indeed, all errors of fact that were sufficient to support a condictio indebiti ; it was requisite that the mistake should have arisen through excusable ignorance and not by reason of want of reasonable and ordinary carefulness.^ There were certain special exceptions in the Eoman Law to the rule that ignorance of law was no excuse, in the case of persons who were so situated by nature or by circumstances as to be unlikely to know the law or to have opportunities either to know it or to get advice upon it,* such as minors,^ women,'* peasants,^! soldiers on serviee,^^ and 1 Of. Dig. xii. 6, 51 ; also cf. French CivQ Code, Art. 1235. 2 Dig. 1. 17, 33. See on " Donation," Part III., CJhapter VI., p. 259 et seq. 3 Code, i. 18, 12. * This is expressed by the maxim, Ignorantia juris ii&iniiiem, excugat, or "Ignorance of the law excuses no one." The reason for this rule as given was that while the terms of the law can and ought to be definite and capable of being known, yet even the wisest person cannot know everything {Dig. xxii. 6, 2 ; cf. xxii. 6, 9 pr.). ° The Lex Palcidia (b.c. 40) provided that one-fourth of the nett value of the inheritance must be left to the heir. ^ Dig. xxii. 6, 9, 5. ' Cf. Dig. xxii. 6, 9, 2 ; xxii. 6, 6 ; xxii. 6, 3, 1. 8 Dig. xxii. 6, 9, 3. " Dig. xxii. 6, 10 ; xxii. 6, 9 pr. i» Dig. xxii. 6, 9 pr. ; ii. 13, 1, 5. " Dig. xxii. 3, 25, 1. 12 Dig. xxii. 6, 9, 1. SECT. 151] LEX RHODIA DE JACTU (JETTISON) 441 other persons presumably more or less excusably ignorant by reason of their circumstances.^ The question whether money that had been paid in error of law could be recovered, gave rise to an acute controversy among jurists, the result of which seems to be that if ignorance of law was under any circumstances admissible, it could only be upon the ground that it was excusable.^ ' The French Civil Code * permits restitution whether the error is one of fact or in law, and gives the person making the payment a right of repetition against the creditor, or an ultimate right of recourse against the true debtor if the creditor in consequence of the payment has destroyed the voucher of the debt ; but the law of both England and Scotland only permits restitution /or an error in fact, but not in law.^ There were certain special forms of the condictio indebiti, or action to recover money that had been paid but which was not legally owing ; for example, an action was competent in order to recover a payment made in view of a lawful future event, which, however, did not occur, such as a dowry {dos) paid in view of a marriage which ultimately did not take place.^ So, also, an action was competent for the recovery of money that had been paid in view of some wrongful future event, as, for example, money paid in order to prevent a person from comndtting a crime. Section 151. — Lex Rhodia de Jactu'' (Jettison) A quasi-contractual relation was created between the owners of a ship and the owners of property on board the ship by the fact of the ' See, for examples of exceptions, Hunter, iit sup.., 660. ^ See upon the controversy as to the eifect of an error in law, Mackenzie, Roman Law, 7th ed., 264, 265. ' Art. 1.377. ■* WUson V. Sinclair, 7th December 18.30, 4 Wilson & Shaw's Appeal Cases, .398, Dixon V. Monkland Canal Co., 17th September 1831, 5 Wilson & Shaw's Appeal Cases, 445. But of. Biohon v. Hidbert, 17th February 1854, 16 D. 586, and Mercer V. Amtnaher, eth March 1871, 9 Macph. 618 ; 25th April 1872, 10 Macph. (H.L.) 39, for evidence that the Scottish Courts have hesitated to accept the dicta of the House of Lords in the cases of Wilson and of Dixon to the effect that a mistake in law can never afford ground for the condictio indebiti. See Mackenzie, iit sup., 265, 266. ^ See on "dowry" {dos), ante. Part II., Sections 41-45, pp. 169-175. A dowry given before marriage was conditional upon that event taking place (see ante, p. 172). " Dig. xiv. 2. See Hunter, Roman Lam, 4th ed., 514-516 ; Mackenzie, Roman Law, 7th ed., 266, 267. 442 LEX RHODIA DE JACTU (JETTISON) [part iv. "jettisoning," or abandonment, of any part of such propei'ty. Cargo is said to have been jettisoned when it has been thrown overboard from a ship in danger of destruction through stress of storm, in order to lighten the vessel and thereby save it and the rest of the cargo on board. The Lex Bhodia de Jadu was tlie maritime law of Ehodes that was adopted by the Eomans (being introduced by the Peregrin Praetor) and other commercial nations, and applied by them so far as it was not inconsistent with special legislation.^ The principle underlying the Lex Bhodia was that those persons who suffered loss through property belonging to them being voluntarily sacrificed at sea for the common benefit of the owners of the vessel and the owners of the property not so jettisoned were entitled to be recompensed on equitable grounds qvMsi ex contractu, and the Lex. Rhodia regulated the apportionment of the loss between the owners of the ship and the owners of the cargo saved. If the jettison had the effect of saving the ship a quasi-contractual relation was thereby created between the owners of the ship and the owners of the cargo that had not been sacrificed, in respect of which they were bound to share proportionately with the owners of the jettisoned goods the loss sustained by the latter, on the principle that their loss had been incurred for the common benefit, and, but for the loss so sustained, the other owners would have lost their property also, so that it was only equitable that they should contribute towards making good the loss.^ Liability to contribute was only created if the jettison had been successful in saving the ship, and there was consequently no liability if the ship, notwithstanding, was lost. Contribution could be demanded in respect of goods which, although saved, had been damaged ; but the contribution was in proportion to their depreciated value. In estimating the amount of contribution a distinction was drawn between the value of the goods that had either been thrown overboard or had been damaged by sea water, and the value of those that had been saved. In the two former cases the value was considered to be the price that had been actually paid for them, but in the last case the value was the price which would be obtainable for them at the port of destination. The reason for this distinction was that all that equity demanded was that the owners of the goods saved should save the owner of the jettisoned goods from loss, but they 1 Dig. liv. 2, 9. 2 Dig. xiv. 2, 1 ; xiv. 2, 5. See, for examples, Hunter, p. 515 ; Dig. xiv. 2, 4 pr. ; xiv. 2, 3 ; xiv. 2, 5 ; xiv. 2, 6 ; xiv. 2, 2, 3 ; xiv. 2, 2, 5. SECT. 152] RECEPTUM NAUTARUM, ETC. 443 should not be required to make a profit for him ; whereas in the case of the goods that had been saved the true measure of their value as such was the price they would fetch at the port of destination.^ Section 15:2. — Receptum Nautarum, Cauponum, Stabulakioeum Quasi-contractual relations were also created in respect of the edict Nttutae Caupones, under which " shipmasters, innkeepers, and stablers " were put under an absolute liability to restore, and for the loss of or damage to property that had been entrusted to them, unless the loss or damage had been caused by either inevitable accident (dammmi fatale) or by superior force {vis major),^ or by the negligence, of the person himself who had entrusted the property to them.^ ' Dig. xiv. 2, 2, 4. ^ Dig. iv. 9, 3, 1. See on Damnum fatale and vis major, ante, Section 116, p. 367. ^ See also on the edict Nautae Gaiipones, ante, p. 366, Section 116 (3) (d), and post, Chapter XII., at p. 464, re " quasi-delicts,^' and Mackenzie, Roman Law, 7th ed., 222-224. CHAPTER XI Obligations arising Ex delicto ^ (or Ex maleficio) — Delicts ^ There are two great sources of obligation; one is contract, and the other is delict. A "delict" (delictum, maleficium) is an unlawful act, but the obligation arising in respect of the act is either ex delicto or quasi-ex delicto according as it was wilfully committed in known violation of the law or was committed without any negligence or unlawful intention. It is not the intention that renders an act a delict or wrong. A breach of contract is a violation of a personal right available against only a particular individual because of a contract or agree- ment either express or implied, but a delict is the violation of a person's right to a particular ' property or " thing " (res). In other words, a delict is a violation of a " real " right or right in a thing • itself (jus in re)^ enforceable against everybody. The term "thing" (res) in reference to delicts includes not only material and corporeal property, but also such immaterial and incorporeal things as the right to security of person, property, and reputation — in other words, the right to live unmolested, to enjoy undisturbed one's lawfully acquired property, and to have one's honour protected from false and malicious attacks. The obligation in a contract is the result of agreement, either express or implied, but the obligation that arises from delict is one created by the law itself, apart from any agreement, and arises from the doing of the act.* Delicts may thus be defined generally as offences or wrongs committed either intentionally or unintentionally in violation of the law. ■ See also ante, Chapter IV., p. .318 — "Obligations in general arising from ' Delicts ' and ' Quasi-Delicts.' " ^ See Justinian, Inst. iv. 1-4 ; Diff. xlvii. ^ See on " Real Rights and Personal Eights," Part III., Section 69, p. 226. * Gf. Justinian, Inst. iv. 1 pr. : Na-scuntur ex re, id est ex ipso maleficio ; also Dig. xliv. 7, 4 : E.v malefi/^io nascuntur ohligationes, etc. OBLIGATIONS ARISING EX DELICTO 445 It is a general rule of law that the commission of any wrongful act which causes damage to another person imposes upon the wrongdoer a liability to compensate the injured party, whether the -injury arose from a positive act or from mere negligence or lack of foresight. Delicts are of two general kinds, namely — (1) public, and (2) private. " Public " delicts are what are generally known as " crimes," and are such unlawful acts as are considered to be primarily injurious to the State or community as a whole, and are therefore punishable by public accusation and prosecution. " Private " delicts or " wrongs," as distinguished from " crimes," are such acts as are considered to be harmful, either mainly or entirely, to private and particular individuals in the community, but not necessarily to the State as a whole. The obligation created by "public" delicts is one of liability to punishment at the hands of the State for the violation of its laws ; that created by "private" delicts is to compensate the private indi- viduals whose real rights have been violated for the injury thereby caused to them. In Eoman Law the distinction between " public " and " private " delicts was between "public crimes" (crimina publica) and "private delicts " {delicta privata, or, simply, delicto). The former were offences against the State, while the latter were civil offences against particular private individuals. The Eoman Law treated as private delicts, or actionable civil wrongs, certain offences which in modern times are regarded as crimes or public wrongs; it regarded as delicts, moreover, onlj- those acts which had been specially characterised as such by the ancient civil law, and the consequences of which were provided against by the attachment to the act of a particular action at law. It was only in respect of injury suffered through any such special acts that an obligation ex delicto arose; when an injury was sustained that was not so expressly characterised as a delict {delictum), and for which no special form of action was provided, an obligation was held to arise quasi-ex delicto} The rights arising from private delicts are treated in the Institutes of Justinian under four heads, namely : — (1) Furtvui ; (2) Bainnu ; (3) Damnum ; (4) Injuria. ' On quasi-delicts, see post, p. 462. 446 FURTUM [part iv. Section 153. — Fuetumi This was secret theft. Furtum is the wrongful or felonious taking and carrying away, or the wrongful and felonious use or possession, of the property of another person for the sake of gain.^ Dishonest {fraudulosa) intention was requisite in order to constitute thef t,^ and, further, some overt act * was necessary in order to indicate the wrongful intention to derive benefit from the dishonest act.® The theft {furtum) might be either of the thing itself, or of its use or possession ; moreover, the taking or appropriating of the thing (contredatio rei) might be either (a) to benefit oneself, or (b) to injure another, but in the latter case there was not theft (furtum), and the person would be liable for the damage (damnum) under the Aquilian law (Lex Aquilia), or for injuria if the act amounted to insult. Since a dishonest (fraudulosa) intention was essential, a person would not be guilty oi furtum or theft if he appropriated the property in the honest belief either that it was his own, or if not his own, that he had the owner's consent to take it. In certain circumstances, however, a person might even steal his own property, such as, for example, a pledge (pignus) •* in the lawful possession of one of his creditors,' or property for the time being usufructed by another person. Only movable things (res mobiles) could be the subject of theft,* but the term furtum included things moved from the soil, such as trees, fruits, crops, stones, sand, or chalk." The term furtum or theft, moreover, was not confined to the dishonest taking of a thing from the possession of another, but was also applied to the dishonest appropriation or misuse of a thing belonging to another person that is already in one's possession, or over which one has ' See Dig. xlvii. 2 ; Inst. iv. 1 ; Gaius, Inst. iii. 183-208. See also Monro (C. H.), De Fwtis {Dig. xlvii. 2), Cambridge University Press, 1893 ; Sandars, Lutitutes of .Iitstinian, 8th ed., 399-409 ; Hunter, Roman Law, 4tli ed., 232-241. 2 Gf. definitions of fwtiom in Dig. xlvii. 2, 1, 3 : Furtum est contrectatio rei fraudulosa lucn faciendi gratia vel ipsius rei vel etiam usus ejus possessionisve, and in Institutes, iv. 1, 1 : Furtwm est contrectatio rei fraudidosa vel ipsius rei vel etiam usus ejus possessionisve. See also note 5, infra. ^ Institutes, iv. 1, 7. * See as to overt acts evidencing intention, post, p. 448. ^ This is indicated by the use of the words lucri faciendi gratia in the definition given in the Digest (lU supra). These essential words are omitted from the definition in the Institutes {lU supra), which is, in that respect, incomplete. ^ See on Pignus, ante, Sections 117-121, pp. 368-383. ' Justinian, Inst. iv. 1, 10 ; Dig. xlvii. 2, 66 pr. ; Gaius, Inst. iii. 20. This is probably implied from the use of the expression contrectatio rei in the definitions in both the Digest and the Institutes. » Dig. xlvii. 2, 25, 2 ; xlvii. 2, 57. SECT. 153] FURTUM 447 real rights ; ^ thus a depositary, or a creditor using, without the owner's consent, property deposited or .pledged with him, as the case might be, or a commodatary (commodatarius) using the thing lent in a manner other than that intended in the contract, or a debtor selling hypothe- cated property without the consent of the creditor would be guilty of theft.2 In order to constitute theft it is further requisite that the thing appropriated should be already the property of some one, so that there could not be theft of a res nuUius,^ but only of a res in commercio or patrivionio* In modern legal systems theft is treated as a crime or public delict, an offence against and punishable by the State ; but the Roman Law, in common with other early systems, regarded theft as mefely a private wrong (delictum privatum) or civil injury committed against a particular private individual ; in the later Roman Law, however, the same delictual act might be pursued either as a crime or as a civil injury, or as both. The Roman Law distinguished between (a) " manifest," and (b) " non- manifest" theft (furtum manifeshim and furhcni nee manifestum).^ " Manifest " theft, known as ^urtiim manifestum, took place when the thief was caught, either in the act or near the spot wliere the theft was committed, with the stolen property in his possession. To be taken "in the act or near the spot" signified, under the law of Justinian, either the actual commission of the offence before the thief had left the premises, or, if he had actually left the premises, while he was in course of carrying away the property and had not yet reached the place where he intended to deposit it. In such a case the liability of the thief was to restore four times the value of the property stolen to the owner of it.® The value of the thing stolen was " the true price of the thing " {rei veriimi pretium), or its worth under all the circumstances of the case ; for example, if a slave was stolen who was in a position to enter upon an inheritance at his master's bidding, and then died before entering, the value of the inheritance (pretium haereditatis) lost in that way was taken into account in estimating the value of the stolen property — i.e. the slave.'' ' This is connoted in the definitions by the words iisiis ejxts possessionisve. ^ Justinian, iTist. iv. 1, 6, 7. 3 See ante, Part III., Section 68 (d), p. 220. * See ante, Part III., Section 67 (h), p. 217. ■" Justinian, hist. iv. 1, 3 ; iv. 1, 5. 6 iTist. iv. 1, 5 ; Gaius, Inst. 189, 190. ^ Dig. xlvii. 2, 50 pr. ; Sandars, Institutes of Justinian, 8th ed., 402. 448 FURTUM [PART iv. " Non -manifest " theft, or furhmi nee manifestum, was committed in those oases when the thief was not caught either in the act or near the spot with the stolen property in his possession. In such a case the thief was liable for only twice the value of the stolen property. The distinction between the penalties in furtum manifestutn and nee manifestum is supposed to be a survival of archaic ideas relating to the period of self-help in the obtaining of redress for offences against indi- viduals. The thief caught in the act was more likely to suffer a more severe vengeance under the influence of the anger of the moment than if taken after an interval ; in this view the infliction of a more severe penalty upon the thief caught red-handed was regarded as likely to induce the injured person to forego his private vengeance and submit the matter to judicial decision, for, " 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 law-giver and judge." ^ The retention of the more severe penalty under the later law was probably based upon the more reasonable ground that the thief taken in the act was usually more dangerous than the one caught subsequently. A person who had not actually committed the theft might be liable notwithstanding, equally with the actual thief to an action and for the recognised compensation and penalties if by means of his help and advice the theft was committed.^ It has already been stated that some overt or visible act was requisite, under the Roman Law, in order to indicate the wrongful intention to derive benefit from the dishonest act.^ The various overt ways in which furtum might manifest itself were thus— (a) the actual taking away of property, not necessarily of another person {res alieni), since a man might, in certain circumstances, steal property belonging to himself * {res sua) ; (&) the wrongful appropriation of the property of another person which is already lawfully in one's possession or detention, in the character, for example, of agent, depositary, creditor, usufructuary, and such like ; (c) the wrongful appropriation, on finding, of property that has been lost ; ^ (d) the disposal, in bad faith, of property belonging to another person ; (e) the wrongful use of the property of another, of which one happens to have the lawful possession 1 Poate, Institutes of Oaiiis, 4tli ed., 411, 412. '' Ejus ope et coiuilio furtum faetwm est; Justinian, Inst. iv. 1, 11. Of. Dig. xlvii. 2, 36 ; xlvii. 2, 54, 4 ; Gaius, Inst. iii. 202. ' See ante, p. 446. * See ante, p. 446. ■'' See ante, Part III., Section 73, at p. 234. SECT. 154] REMEDIES OR ACTIONS 449 or detention upon a special title, for example, as hirer {conductor) or as borrower (comTnodatarius) ; (/) giving assistance or advice in the commission of the wrongful act; and (g) the wilful destruction of documentary evidence of debt. Section 154. — Remedies or Actions arising out of Fuetum The remedies or actions arising out of furtum were fourfold, namely — (1) the actio furti; (2) a vindicatio; (3) an actio ad exhibendum ; and (4) the condictio furtiva. The actio furti or " action of theft " could be brought by any person who was responsible for the safety of the thing, whether he was the owner or not; in other words, the action was competent to anyone whose interest it was that the thing should not be stolen.^- The object of the actio furti was solely the recovery of the penalty; the thing itself could be recovered either by a vindicatio or by a condictio.^ In order, however, to entitle a person to sue the actio furti, the interest required to be in connection with a right to possession or to detention, and an interest created by a mere right in personam did not render the action competent ; thus the owner would not have any interest in the safety of the property, and could not therefore briug the action of theft if the loss would be made good to him by some other person who was responsible to him for, and consequently had an interest in, its safe custody, as, for example, a hirer or a pledgee (but not a depositary),^ or a fuller who had in his possession clothes to clean, or a tailor who had received clothes to mend, so long as that person was solvent and capable of satisfying the owner's claim.* So the purchaser of property could not sue the action of theft in his own name if the thing was stolen before delivery, for his interest in such a case arose from a mere right in personam ; but he might insist that the right of action should be assigned to him. A vindicatio could be brought by the owner against anyone -in whose possession the stolen property was in order to recover it.^ An actio ad exhibendum could be brought by any person who was ' Justinian, Inst. iv. 1,13; Dig. xlvii. 2, 10 ; Gaiua, Inst. iii. 203. 2 Justinian, Inst. iv. 1, 19 ; IHff. xlvii. 2, 54, 3 ; Gaius, Inst. iv. 8. 3 Inst. iv. 1, 17 ; Bigi. xlvii. 2, 14, 3 ; Gaius, Inst. iii. 207. * Of. Inst. iv. 1, 15 ; Dig. xlvii. 2, 12 pr. ; xlvii. 2, 20, 1 ; Gaius, Inst. iii. 205. Under the law of Justinian the case of the commodatarius was special, and the owner had the option of either bringing the actio furti against the thief or the actio commodati against the borrower {Inst. iv. 1, 16). 5 Justinian, Inst. iv. 1, 19 ; Dig. xlvii. 2, 54, 3 ; Gaius, Inst. iv. 8. 29 450 RAPINA [PART IV. entitled to possession against any person declared to be in possession of the stolen property in order tHat it should be produced in Court. A coiidictio furtiva was brought by the owner of the stolen property against the thief, either for the restoration of the stolen property or for compensation according to its value. The condictio furtiva might be brought against the heirs of the thief, but the actio furti, since it sought only to inflict a penalty for a personal wrong, could only be brought against the wrongdoer himself. Every action against a thief, or against those who assisted him, might be brought by the heirs of any person entitled to bring it.^ Section 155. — Eapina^ This was robbery or theft of movables, or of things that move themselves,* or forcible disturbance,* accompanied by the exercise of violence and superior force. In order to constitute rapina it was essential that there should be, on the part of the wrongdoer, a wilful intention to take the property forcibly, if necessary ; ^ if therefore a man honestly believing property to be his own took it by force, his violence, although unlawful, did not amount to rapina or robbery, and he was only liable to restore the property and to pay a penalty amounting to the value of the property.® To rapina the Roman Law attached a penalty of four times the value of the property if action was brought within a year, but after the lapse of a year simple restitution or indemnity could alone be claimed. The special actio vi honorum raptorum was granted by the Prae- torian Edict as a remedy for rapina ; robbery was made a distinct delict, subjecting a wrongdoer to this action by the edict of the Praetor LucuUus (77 B.C.), which was enacted with a view to checking the grow- ing number of acts of violence resulting from the " Social war." The action, being penal, could not be brought against the heir of the thief. The penalty, although nominally quadruple, was, under the law of ^ See Justinian, last. iv. 12. There were some old distinctions between various forms of theft, namely, furtum conceptnm, ohlatwm, prohibitmn, and non-exhibitum-, -which, although still existing in the time of Gaius {Inst. iii. 186-192), had fallen into disuse by the time of Justinian {Inst. iv. 1, 4). See Sandars, 402. 2 Justinian, Lut. iv. 2 ; Dig. xlvii. 8 ; Gaius, Inst. iii. 209 ; Code, ii. 33. 3 Justinian, Lut. iv. 2, 1 ; Dig. xlvii. 8, 2, 12 ; Code, viii. 4, 7. ' Citations, supra. ^ Inst. iv. 2, 1 ; i.e. the act must be committed dolo malo. " Of. Dig. xlvii. 8, 2, 20. A tax-gatherer who, in good faith, carried off cattle belonging to a farmer in order to satisfy a claim that, in fact, turned out to be unfounded, did not commit rapina. SECT. 156] DAMNUM 451- Justinian/ really only triple {j^oena tripli), for it included the value of the property, whereas in the ease of the actio furti the penalty was over and above the value of the thing. The action vi hmwrum raptorum was available to any person who had a legal interest in the property not being taken away by force, such as a hirer, borrower, pledgee, or usufructuary, and even a person having a mere detention of the property, and not the legal possession, such as a depositary,^ although the interest of the last was not sufficient to entitle him to sue the actio furti. The reason why the existence of the slightest degree of interest was held to entitle a person to sue the actio vi honorum raptorum was in order to render more severe and deterrent the punishment of a theft committed openly and flagrantly in violation of the law, than in the case of secret theft {furtu-ni). Section 156. — Damnum^ ^ This delict, known strictly as damnum injuria datum, originated with the Xta- Aqwilia or " Aquilian law," which was a plebiscitum,* passed after the secession of the Plebeians, probably about B.C. 287, upon the proposition of the Tribune Aquilius, and which superseded the existing limited provisions of the Twelve Tables with regard to unlawful damage to property and to person.^ The term damnum by itself implied, generally, the diminution or deterioration of a man's property. In the Institutes of Justinian damnum is treated of ahnost entirely in connection with the LexAquilia in the special form of damnum injuria datum. In the Digest, howeVer, damnum is dealt with more generally, according either as it has been already done or suffered (damnum factum), or is apprehended (damnum infectum), as, for example, if an adjoining house were likely to fall down.^ Damnum factum (or simply damnum) might be caused either by accident (casu) or intentionally. If caused intentionally it might either 1 Iiut. iv. 2 pr. 2 Justinian, Inst. iv. 2, 2 ; Dig. xlvii. 8, 22, 24. 5 Justinian, Inst. iv. 3 ; Dig. ix. 2 ; Code, iii. 35 ; Gaius, Inst. iii. 210-219. * See on " Flehiscita," ante, Part I., pp. 18-20. " The Jurist Ulpian says (Dig. ix. 2, 1 pr.) that the provisions of the Twelve Tables upon these matters were repealed by the Zex Aquilia, but it is probably more correct to say that they were superseded by the wider operation and remedies of this statute. ^ In the case of damnum infectum the owner of the endangered property might insist upon the owner of the property likely to do damage giving security against any loss so caused {Dig. xxxix. 2, 7 pr.). 452 DAMNUM [PART iv. arise in the lawful exercise of a right, in which case no liability to make reparation would be involved/ or it might have been done wrongfully, without either legal right or justification, in which latter case it was damnum injuria datum and gave rise to a liability to make compensa- tion to the injured person, under the Lex Aquilia, if the damage came within the scope of that statute, or, if it did not do so, then as the result of an actio in factum, adapted to the particular circumstances of the case.^ The Lea: Aquilia was the foundation of the later developed Eoman Law of reparation for injury causing patrimonial loss, and it established the actio damni injuria.^ The early law, as expressed in the Twelve Tables, only provided remedies for unlawful damage in a few specified cases of common occurrence, and such cases were included under the terms noxia and nocere, but the meaning of these terms is not defined. The cases included in noxia or wilful injuries include both damage to property {damnum) and injury to, the person (injuria), comprising such acts as maiming (membrum ruptum), breaking of bones (os fractum), setting fire to buildings, or corn, cutting down of trees, cattle trespass, and such like. The Lex Aquilia consisted of three chapters ; the first fchapter pro- vided that if anyone wrongfully killed the slave or cattle {pecvs) * of another person, he should be liable to pay to that person the highest price that the property could have realised at any time during the preceding year.^ The second chapter of the Lex Aquilia was obsolete in the time of Justinian ; ^ the third chapter dealt with every kind of unlawful damage done tt) property of every kind, animate or inani- 1 Dig. 1. 17, 155. 2 See on damnum generally, Sandars, Iristitutes of Jiistinian, 8th ed., 417, 418. 2 Inst. iv. 3 pr. See Dig. ix. 2 ; see on Lex xiquilia, Poste's Gains, 421-426 ; also Monro (C. H.), Lex Aquilia {Dig. ix. 2), Cambridge University Press, 1898. * The term pecus or cattle applied to all animals which may properly be said to graze, and included horses, mules, asses, sheep, oxen, and goats. It came also to include swine, since they usually feed in herds ; elephants and camels were also ultimately included as being beasts of burden. Dogs and wild animals did not come within the term (Inst. iv. 3, 1 ( Dig. ix. 2, 2, 2 ; xxxii. 65, 4). ^ See Justinian, Inst. iv. 3 j)r. ; also Inst. iv. 3, 9, and 10 ; and Gaius, Inst. iii. 210 ; Dig. ix. 9, 2 pr. " See Inst. iv. 3, 12 ; Dig. ix. 2, 27, 4. This chapter provided that an adstiptdator who released the debtor by acceptilatio (see Inst. iii. 29,, 1), in fraud of the principal stipulator, was to be liable for the whole amount of the loss thereby caused to the stipulator (see Gains, iii. 215). The practice of employing adstipulators was quite obsolete by the time of Justinian. See on adstipulatio, as an accessory contract, Hunter, Roman Laiv, 4th ed., 563, 564. SECT. 156] DAMNUM 453 mate, except the killing of slaves or cattle.'^ The Aquilian law applied to immovables as well as to movables, but it was confined mainly to damage to movable property, whether slaves, animals, or inanimate things.^ The principles of the Lex Aquilia were gradually developed by tlie interpretation of jurists, and by the Praetor granting forms of action in circumstances coming within the principle of the law indeed, but which did not fall within the strict terms of the statute ; such actions were either actiones utiles or adiones in fadihm? An actio was said to be utilis when it was allowed in cases to which it was not strictly applicable, by the exercise of the equitable discretion of the Praetor, and the object of the action was attained by a modifica- tion of the terms of the formula so as to make it apply to the particular case.* When cases presented themselves the circumstances of which were of the nature of the evil sought to be remedied by the Aquilian law, but which at the same time were neither met by the terms of the statute, nor included within the extended phraseology of an actio utilis, the Praetor introduced * the actio in /actum adapted to the special circumstances of the particular case, the/ormula directing that if the fact should be found to be so-and-so, the judge (judex) was. to pronounce in a particular way, without any reference to the authority of the statute.'' The extension of the scope of the Lex Aquilia, by means of juristic interpretation and by granting equitable actions, was in three directions relating respectively to (1) the person entitled to sue under the statute; (2) the nature of the wrongful act for which compensation was granted ; and (3) the measure of damages.' As to the person entitled to sue, the statute strictly contemplated only an action for damnum injuria datum at the instance of the owner (domimis) of the injured property,^ but, just as the Praetor, in time, gave a remedy to an owner for indirect as well as direct damage, so he provided a remedy for persons having an interest in the usefulness of the property, although their interest might not amount to full 1 Justinian, Inst. iv. 3, 13 ; Dig. ix. 2, 27, 13-15 ; Gaius, iii. 217. For the terms of Chapters I. and III. of the Lex Aquilia, see Dig. ix. 2, 2 pr. ; and ix. 2, 27, 5 respectively. 2 Hunter, lU supra, 243. ^ Cf. Justinian, Inst. iv. 3, 16 ; Gaius, Inst. iii. 219 ; Dig. ix. 2, 33, 1 ; iv. 3, 7, 7. * Hunter, Roman Law, 244, q.v. 5 Dig. xix. 5, 11. Cf. Dig. ix. 2, 53. ^ Hunter, ut supt-a. ' See^o«<, p. 457. 8 Dig. ix. 2, 11, 6. 454 DAMNUM [part iv. ownership ; thus, by means of equitable remedies, in the form of actions utiles or in factum, the benefits of the Aquilian law came to be extended to a hond-fde possessor,^ usufructuaries and usuaries,^ a person having a servitude,* and to pledgees whose interest in the property pledged was prejudiced by the injury.* An exception, more- over, to the rule that a person having only a mere personal right {jus in personam) could not sue came to be introduced and recognised upon grounds of practical convenience, and a farm tenant {colonus) was given an action for damage to his crops, provided he gave security that the owner would not himself sue.^ All these persons came to have remedies against the owner of the property himself if he had caused the damage. With regard to the nature of the act for which a remedy was granted under the Aquilian law, the first chapter of that statute strictly applied only to cases of the direct killing of slaves, or anything falling within the category of peeus,^ and the third chapter had reference only to direct damage (damnum) caused corpore corpori, or " by the body to the body," or, in other words, by direct actual bodily contact. By interpreta- tion, however, the statute was extended to all cases where death was the consequence of the act, even although there had not been any actual bodily contact, as, for example, in the case of dropping a beam on a slave,^ and by means of equitable actions the principle of the statute was extended to cases of indirect killing, such as where one man held a slave or animal while another killed it,^ or one person pushed another who fell ag&inst a third, the last being killed thereby,® or a man starved a slave to deathj^" or one person startles a horse on which the slave of another is riding so that the slave is thrown off and killed.i^ In cases such as these the liability upon the person who indirectly caused the damage was said to be " to make good the cause of death," ^^ and this end was effected by means of an actio in factum, or one specially adapted to the particular circumstances of the case. 1 Dig. ix. 2, 17. 2 Dig. ix. 2, 11, 10. 3 Cf. Dig. ix. 2, 27, 32. * Dig. ix. 2, 17. See Huntei', 247, 248. ' Dig. ix. 2, 27, 14. ^ As to pecus, see ante, p. 452, note 4. ' Dig. ix. 2, 11, 4. 8 Dig. ix. 2, 11, 1. » Dig. ix. 2, 7, 3. w Dig. ix. 2, 9, 2. " Dig. ix. 2, 9, 3. Cf Justinian, Inst. iv. 3, 16 ; Gaius, Inst. iii. 219. '2 Causam mortis praestare. SECT. 156] DAMNUM 455 With regard to the third chapter of the Lex Aquilia relating to wilful damage to property other than the killing of slaves and cattle (pecus),^ this came to be interpreted as applying to any form of destruc- tion or deterioration of property, whether direct ^ or indirect;^ and actions — either utiles or in factum — were granted by the Praetor in such cases of indirect damage as unmooring a boat so that it drifts away and is lost,* driving cattle into the field of another without the owner's authority and permitting them to eat there,*^ setting a dog on to attack another person,* or knocking money out of the hand of another person so that it is scattered and lostJ It will be seen from what has preceded that the Lex Aquilia originally only afforded to an owner reparation for injuries directly inflicted by the wrongdoer upon his property (corpore corpori), but by means of equitable interpretation, and the granting by the Praetor of equitable actions the provisions of the Aquilian law came to be extended to damage indirectly caused either to the owner of the property or to certain persons having an interest in it less than ownership.^ Under the extended principles of the Lex Aquilia a person was liable for patrimonial damage caused either directly or indirectly by his fault or negligence, as well as for injury or loss occasioned by his dolus or wilful wrongdoing ; but there was no liability for injury caused without either intention or fault, or by inevitable accident {damnum fatale),^ or in self-defence ; ^'^ in other words, it was requisite, in order to create liability under the enlarged operation of the Aquilian law, that the damage {damnum) should have been either intentional, or due to carelessness.^^ Thus, if a soldier while practising with his weapon on a space of ground that was specially appropriated to military exercises caused injury to a passer-by, there would be neither fault nor liability on his part, because the act was one which it was his duty to perform, and the place where he did it was the proper one ; so that any person there without right took the risk of accident.^^ So also if a man was 1 See ante, p. 452, note 4. 2 Cf. Justinian, Inst. iv. 3, 13 ; Dig. ix. 2, 27, 13, 15 ; ix. 2, 27, 19. 3 Justinian, Inst. iv. 3, 16 ; Gaius, InM. iii. 219. « Dig. ix. 2, 29, 5. 6 Gode, iii. 35, 6. Dig. ix. 2, 11, 5. 7 Dig. ix. 2, 27, 21 ; xix. 5, 14, 2. See, for further examples, Hunter, 244, 245. 8 Inst. iv. 3, 16. " Imt. iv. 3, 3. w Inst. iv. 3, 2. Cf. Dig. ix. 2, llpr. " See Inst. iv. 3, 4-5 ; Dig. ix. 2, 9. 12 Justinian, List. iv. 3, 4 ; Dig. ix. 2, 9, 4. 456 DAMNUM [part iv. pruning a tree in the middle of a field, or far from any public way or road, and a branch fell on a passer-by he would not be liable for fault even although he might not have warned him, for the stranger had no right to be where he was, and took thereby the chance of injury; if, however, the tree was close to a public road, or to a right of way, the person cutting the branches would be liable for fault if he did not warn passers-by.^ If the person injured is himself negligent there is no liability, because his carelessness has contributed to the injury, and but for his "contributory negligence" he might not have suffered the injury; he could only claim compensation if either he did not foresee the danger, or could not have avoided it even if he had seen it ; but there is no remedy for a person who, seeing the danger and being able to avoid it, makes no effort to do so.- If, however, the damage was caused wilfully and maliciously there would be liability even although there had been gross carelessness and contributory negligence on the part of the injured person. Unskilfulness was regarded by the Roman Law as amounting to fault {adpa) in certain circumstances, and a person who exercised a profession or a trade without being properly qualified to do so was liable for all damage that might be caused through his lack of skill, his fault consisting in undertaking work which he knew or ought to have known he was unable to properly perform.' Thus a physician was liable if, by the unskilful performance of an operation upon a slave, or by the administration of wrong remedies, it died ; * so also he would be guilty of culpa if, although possessing sufficient skill, he neglected to attend to the case after the operation, and the slave consequently died.^ There may be, indeed, circumstances in which a person deliberately inflicts damage upon another person's property in order to prevent greater loss to himself, and yet does not thereby incur liability ; thus if a house on fire was pulled down to prevent the spread of the flames the owner would have no remedy unless he could show that the damage was done in panic and from an unreasonable estimate of the danger ; ^ or if a ship is driven by stress of weather in a storm among the ropes ' Imt. iv. 3, 5 ; Dig. ix. 2, 31. 2 Di^. ix. 2, 28, 1. Hence the maxim " coUiiti non fit injuria" or " no injury is done to a person who consents to it." ' Imperitia eidpae adnumeratur {Dig. 1. 17, 132). See ante, pp. 414, 415. * List. iv. 3, 7 ; Dig. ix. 2, 7, 8 ; ix. 2, 8 pr. ; 1. 17, 132. « Inst. iv. 3, 6 ; Dig. ix. 2, 8 pr. « Dig. ix. 2, 49, 1. SECT. 156] DAMNUM 457 mooring another vessel, or gets entangled in fishermen's nets, and the only apparent way to escape the danger is by cutting some of the ropes or the nets, there would he no liability for so doing.^ With regard to the measure of the damages awarded under the Lex Aquilia, the words of the statute itself seem to have contemplated only the actual value of the property destroyed or damaged, but by juristic interpretation the measure of the damage came to be extended to the loss in any way suffered by the injury.^ The measure of the damages thus came to include (a) supervening loss (damnum emergens), and (6) gain which should have accrued to the injured person but for the wrongful act (lucrum cessans); so if, for example, one of a pair of mules, or of a team of horses, or of a band of performing slaves was killed, account had to be taken, in estimating the damage, not only of the value of the thing destroyed, but also the super- vening loss represented by the diminished value of what remained; or, if a slave that had been instituted heir by some one was killed before entering on the inheritance, the value of the inheritance so lost required to be taken into account besides the actual value of the dead slave.* Damage caused by animals was in a somewhat special category. Such injury was denoted by the term pauperies, which signified damage done without wrong intent, " since animals, being without reason, cannot be said to have wrong intent."* The Twelve Tables gave a noxal action de pauperie against the owner of a domestic animal which, con- trary to the usual nature of its kind, caused damage without being provoked to do so, as in the case of a vicious ox goring, or a bad- tempered horse kicking.^ The action de pauperie did not apply in the case of a wild animal, for in doing damage it would be acting simply in accordance with its nature. The distinction drawn by the Roman Law was that between animals of a naturally fierce inborn disposition, such as a lion or a tiger, and animals ordinarily tame by nature but possessing in particular cases confirmed vicious habits. The Twelve Tables applied strictly to quadrupeds doing damage,^ but all animals came to be held included under the term quadrupes. There was an analogy between injury done by an animal and injury done by a slave ; ' Big. ix. 2, 29, 3. ^ Big. ix. 2, 21, 2 : St hoc jure uti7nur, ut ejus, qiiod interest, fiat aestimatio. ^ Justinian, Irist. iv. 3, 10 ; Big. ix. 2, 22, 1 ; Gaius, iii. 213. * Inst. iv. 9 pr. ; Big. ix. 1. ^ ItisL, ut supra ; Big. ix. 1, 1 pr., 3, 4, 7, 10. " Big. ix. 1, 1 pr. 458 DAMNUM [part iv. when the latter did an act which would be wrongful in the case of a free man it was styled noxia} and the injurious act of an animal contrary to the usual nature of its kind was called pauperies ; moreover, just as responsibility for injurious acts fell upon the owner of the slave, so did liability for injuries caused by an animal rest upon the person to whom, for the time being, it belonged.^ If the damage was caused by reason of the animal being provoked, whether by the owner or by some other person, an action under the Lex Aquilia or an analogous action in factum was competent against the person who caused the animal to do the damage.^ There would not be auy liability upon the owner of a fierce dog which was chained in a house, and which bit some one who accidentally stumbled upon it ; * but, on the other hand, the owner would be liable if he were to take such a savage dog into a place where its fierce temper might be excited, or if it escaped and caused damage by not being sufficiently under control.^ The direct noxal action de pauperie did not apply in the case of damage done by wild animals — i.e. animals fierce by nature and instinct — such as a lion, or tiger, or bear, but the person in whose keeping such an animal might be was liable to an actio utilis. If a wild animal escaped and subsequently caused damage, there was no noxal action competent against the former owner, because, on its escape, it became at once a res nullius, and ceased to be the property of its former owner.* Such damage, however, might come within the terms of the Aedilician Edict, which referred to animals whose acts did not come within the category of pauperies; it prohibited any man from keeping, where there was a public road, a dog, a boar, a wild boar, a wolf, a bear, a panther, or a lion, m: any other animal likely to do injury, and if this prohibition was disobeyed and a free man was injured the master of the animal was liable in damages at the discretion of the judge and to a penalty of 200 solidi if a free man was killed, and in other cases of injury to a penalty of twice the amount of the damage done.' 1 See Inst. iv. 8 pr., 1 ; Biff. ix. 1, 1, 1 ; ix. 4, 1 ; Gaius, Iiut. iv. 75. 2 Biff. ix. 1, 1, 12. ' Big. ix. 1, 1, 4. ^ Biff. ix. 1, 2, 1. '' Biff. ix. 1, 1, 6. Damage done by dogs was also dealt with by a statute called the Lex Pesolania, mentioned by the jurist Paul in Sent. i. 15, 1. " But. iv. 9 pr. See ante, Part III., Section 73, at p. 233. ■ Justinian, Inst. iv. 9, 1 ; Big. xxi. 1, 40-42 ; xliv. 7, 60. Of. Moyle, Institutes of Jiistinian, 5th ed., 580. SECT, is;] injuria 459 Section 157.— Injuria i In its general sense the term injuria was used to signify every action contrary to law ; ^ it was also employed, however, in three special senses to mean (1) a wrongful act done without legal right (nullo jure) ; (2) the fault committed by a judge in giving an unjust judgment, or one contrary to jus ; and (3) a public outrage or insult. It is of injuria in the third special sense that the Institutes of Justinian treat as a delict. Injuria as an outrage or an insult might be either real or verbal ; it might be either («) an injury intentionally committed by one person upon the body of another person, such as an assault, or (h) an injury maliciously done to a person's reputation, either directly or indirectly,^ as, for example, by a slander or a libel. Injuria, therefore, in the special sense of a delict, was thus a wrong maliciously done by one person, or by another, person at his instigation,* to the right of another person to safety, and to reputation ; and it might take the form of either personal bodily injury, or slander, or libel,^ whether in words ^ or in writing,^ and whether private or public; as, for example, by maliciously seizing and advertising for sale the goods of a person, as if he were insolvent, or an absconding debtor;* or by writing defamatory prose or verse ;® or by publicly insulting or mobbing a particular indi- vidual, as by assembling before his house or shop in order to annoy him, or by shouting out scandal about him to a crowd-^" The injured person had as remedy the a^tio injicriarum, by means of which he could claim reparation for the injury done to his person or to his property as the case might be, whether direct or indirect. In order, however, to found the a^tio injuriarum, the injuria required to be either actually or constructively intentional, and not merely the result of negligence.^' The term injuria thus included all wilful hurt to the body, which extended to a threat of personal violence if it was accompanied with an 1 Justinian, Inet. iv. 4 ; Dig. xlvii. 10 ; Code, ix. 35. 2 Omne quod non jure fit {Inst,, ut mipra). 3 Imt. iv. 4, 2. * Cf. Inst. iv. 4, 11 ; Dig. xlvii. 10, 11 pr. 5 Cf. Inst. iv. 4, 1 ; Gaius, Inst. iii. 220. « Cf. Code, ix. 9, 35, 9, 10 ; ix. 35, 3. " Cf. Inst., nt sv,p)-a. * Inst., ut supra ; Gaius, ut supra. ° Inst., ut supra ; Gaius, ut s^opj-a. i" Dig. xlvii. 10, 15, 9 ; xlvii. 10, 15, 11 ; xlvii. 10, 15, 7. This offence was known as convidmn, and is explained to this eifect by Ulpian in Dig. xlvii. 10, 15, 4. It was specially created such by the Praetor (Dig. xlvii. 10, 15, 2). " Dig. xlvii. 10, 3. 460 INJURIA [PART IV. apparent serious intention of immediately inflicting it,^ and an intention to injure another person's reputation, whether (a) by words, or (&) by writing, or (c) by acts. Thus it was an " injury '' (injuria) to seize a person's goods for debt and put them up for sale as if he were insolvent, knowing that he did not owe anything ; ^ or to demand a debt that is not due from another person in order to injure his credit ; ^ or to pass over a solvent debtor as if he were insolvent, and sue his sureties, in order to injure his credit ; * to refuse a solvent surety in order to defame him by doing so ; ^ to apprehend a person as a fugitive slave, or to bring an action claiming a person as a slave in the knowledge that he is a free man.^ It was also an injuria to persist in following about a respectable woman or a young boy or girl, or to make an attempt upon anyone's chastity ; ^ the act of persistent pursuit itself was considered as constituting a reflection upon the character.* In order to constitute a slander or libel the statements require to be not merely defamatory, but false, so that the fact that the statement was true would constitute a good defence to an action.^ An injury (injuria) might be specially serious by reason of (a) the nature of the act, or (&) the nature of the place where the act is done, or (c) the rank of the person injured, or (d) the particular part of the body affected; in such cases there was said to be atrox injuria, or " aggravated injury," which proportionately increased the damages awarded.^" The actio injuriarum was open to each person who had been injured by the act complained of; "a man may receive an injury not only in his own person, but in that of his children in potestate, and in that of 1 Dig. xlvii. 10, 15, 1. ^ Justinian, Inst. iv. 4, 1. 3 Big. xlvii. 10, 15, 33. * Big. xlvii. 10, 19. 5 Big. ii. 8, 5, 1. ^ Big. xlvii. 10, 12 ; xlvii. 10, 22. See Hunter, Roman Zaw, 4th ed., 149. ' Inst. iv. 4, 1 ; Gains, iii. 220. 8 Big. xlvii. 10, 15, 22. " Big. xlvii. 10, 18, 4 ; Code, ix. 35, 10. See also Big. xlvii. 10, 18 pr. ; Code, ix. 35, 5. ^^ Justinian, Inst. iv. 4, 9 ; Big. xlvii. 10, 7, 8 ; xlvii. 10, 8, 9, 1, 2. See as to the measure of damages, Justinian, Inst. iv. 4, 7. In the ordinary ease the Praetor permitted the parties to make their own estimate, but the judge could yet award damages in his own discretion (Inst. iv. 4, 7). In the case of atrox injuria, however, the Praetor himself fixed the maximum compen-sation, which, as a rule, the judge (judex) could not modify (Gains, /««*. iii. 224). SECT. 1 57] INJURIA 461 his wife."i In the case of a married woman, for example, she, her husband, her father, and her husband's father, had each an action, although, if she and her husband were in potestate, they could not them- selves sue except in certain circumstances, such as the absence of the paterfamilias. The action would be brought by the paterfamilias, who could sue either in his son's name or in his own. Moreover, although the wife was iu the power of the father, yet her husband could always bring an action for injury done to her, based on his natural duty to protect her.^ It was optional, under the Lex Cornelia (b.c. 81), for the injured person to proceed against the offender either by a civil action or by a criminal prosecution.^ ' Justinian, Iiist. iv. 4, 2. 2 Sandars, 419, 420. 3 Big. xlvii. 10, 5, 6, 7 ; xlviii. 2, 12, 4. CHAPTER XII Obligations musing Quasi ex Delicto — Quasi-delicts ^ A " quasi-delict " was an actionable wrong arising from circumstances resembling a delict, but which did not fall within the limited and arbitrary category of delicts (delicto), strictly so styled in the Eoman Law; it might be committed without any wrongful intention, or negligence, or even, it might be, knowledge on the part of the person whom the law held liable, and to whose fault it was not directly imputable. The examples of obligations created quasi ex delicto given in the Institutes'^ of Justinian are the cases of (1) "the judge, who makes a cause his own " {judex qui litem suam facerit)^ (2) the actio de effusis vd dejectis,^ (3) the actio de positis et suspensis,^ (4) dolus, or fitrtum, on the part of the servants of the master of a ship, inn, or stable." A judge {judex) who through favour, corruption, fear, or even mere ignorance of the law gave a manifestly unjust sentence thus made the suit or cause {lis) his own {sua), inasmuch as he was thereby affected by it through becoming liable to an action on the ground of the sentence.'' If the judge gave a wrong judgment by reason of dolus he was liable to be condemned in the whole amount involved in the litigation,^ and if he acted from culpa or carelessness, he was liable to ' See Justinian, Iiist. iv. 5 ; Dig. xliv. 7, 5, 4-6. See ante, Chapter IV., p. 318, on " Quasi-Delicts " in general. '' Inst. iv. 5. 3 Inst. iv. 5 pr. ; Dig. 1. 13, 6. * List. iv. 5, 1. ^ Inst. iv. 5, 1, 2. ^ Inst. iv. 5, 3. ' Dig. v. 1, 15, 1. Gains gives an example of a judge "making a cause of his own" by condemning a defendant in a, sum different from that fixed in the formula (Gains, Inst. iv. 52). » Dig. V. 1, 15, 1. 462 QUASI-DELICTUAL OBLIGATIONS 463 be condemned in an action in such damages as the judge in his discretion should assess.^ The liability of an ignorant physician to an action for fault under the Lex Aquilia,^ and that of an ignorant judge to an action for fault quasi ex delicto, was based upon the distinction that the injury caused by the unskilful physician was done to the body {corpori). " The severity of the penalty against a judge who was merely ignorant of the law is owing probably to the great checks against ignorance which the judex possessed, if he pleased to avail himself of them on the advice of- the prudentes,^ whose business it was to assist him, and in the possibility of having recourse to the magistrate who had given the action to him." * The occupier of a house, or an apartment, whether as proprietor, hirer, or gratuitously, had imposed upon him by law an obligation quasi ex delicto (or maleficio), which was enforceable by the actio de effusis vel dejectis, to make good double any loss or injury caused by anything being " poured or thrown '' from the windows if they overlooked or were near a public thoroughfare, even although the act was done, without the knowledge of the occupier, by members of his family, or by his servants, or even by a stranger, such as a guest.^ The liability was in such a case imposed upon the occupier by the Praetor, for the protection of the public; but if he had not himself done the injurious act he had a right of recourse, by means of an action m factum, against the actual wrongdoer. If the offender was a filius- familias or a slave their peculium was liable to make good the damage. If the occupier was a filiusfamilias living apart from his father no action lay against the latter, but against the son alone;® the same rule also held good in the case of a filiusfamilias who was a judex, and made a cause his own.^ In such cases the occupier could not be sued under the Lex Aquilia, because the injury was not directly attributable to him. Similarly, if a person kept something " placed or suspended " over a public thoroughfare or way which, if it fell, was likely to injure 1 Dig. 1. 13, 6. Cf. Poste's Gains, 4th ed., 501. ^ See ante, p. 456. ^ See on pnidentes. Part I., Section 8, ante, pp. 38-44. * Sandars, Institutes of Justinian, 8th ed., 424. * Inst. iv. 5, 1 ; Dig. xliv. 7, 5, 5 ; ix. 3, 5, 6 ; ix. 3, 1 pr. ; ix. 3, 7. ^ Justinian, Inst. iv. 5, 2 ; Dig. xliv. 7, 5, 5 ; v. 1, 15 pr. ' See ut supra. 464 QUASI-DELICTUAL OBLIGATIONS [part iv. passers-by, there was thereby created by the Praetorian Edict,^ for the public protection, a penal offence, quasi ex delicto, which subjected the wrongdoer to be sued in the actio de positis et suspensis for any injury that might have been caused; but since this was a penal action introduced by the Praetor in the public interest it was not necessary that any actual injury should have been done, and the wrongdoer might be compelled to remove the source of danger, if injury was merely apprehended.^ " Shipmasters, innkeepers, and stablers " (nautae, caupones, et stabu- larii) were liable quasi ex delicto (or maleficio) for the loss or damage owing to theft {furtu-ni) or fraud {dolus) on the part of anyone employed by them, this liability being based upon the principle that an employer is in fault or negligent if he employs dishonest servants.^ The action against the employer, if innocent, was not under the Lex Aquilia, but was in factum conceptum ; * it was for double the value of the thing damaged or lost,^ and might be brought by, although not against, the heir.* The person who had suffered the loss or damage had also the option of suing against the servant actually in fault an actio furti or an actio legis AquiliaeJ It is to be noted that the liability of " shipmasters, innkeepers, and stablers " for loss or damage caused by reason of the dishonesty of their servants was distinct from that imposed upon them by the Praetorian Edict "Nautae Caupones," to restore, uninjured, property that had been entrusted to or deposited in their care, which arose quasi ex contractu} An owner, or even a possessor of property, such as slaves, or animals that had done damage to the property of some other person, was, in certain circumstances, liable to a "noxal" action,® even although the damage had been done without his knowledge or against his will; if, however, there was no actual fault on his part, he might free himself ' For the terms of the edict with reference to the circumstances instanced in Inst. iv. 5, 1, see Big. ix. 3, 1 pr. ; ix. 3, 5, 6. 2 Justinian, Imt. iv. 5, 1 ; Dig. xliv. 7, 5, 5 ; ix. 3, 5, 6 ; ix. 3, 1 pr. ; ix. 3, 7. 2 Inst. iv. 5, 3 ; Big. xliv. 7, 5, 6 ; ix. 3, 5, 13. * Inst., ut sup. ^ Big. xlvii. 5, 2. " Irist., ut sup. '• Big. xlvii. 5. * Big. iv. 9. See ante, p. 317, and also Section 116 (3) (d), ante, p. 366. 8 The term noxa signified the body, i.e. the slave or animal that had done the damage, while noxia was the wrongful act itself, e.g., the theft, damage, robbery or injury {Inst. iv. 8, 1 ; Big. ix. 1, 1, 1). QUASI-DELICTUAL OBLIGATIONS 465 from further liability by " noxal surrender " {noxae deditio), or giving up to the injured person the thing that had done the damage. A distinction was drawn between animals that are fierce by nature {ferae naturae) and those of a more or less domesticated character (mansuetae naturae), in which latter case the same degree of care was not required by the law, unless the animal was known to be vicious or dangerous. Justinian does not actually class noxal actions under obligations quasi ex delicto, but, in principle, they undoubtedly fall within that category. 3° CHAPTER XIII Cautionary Obligations Suretyship ^ The performance of an obligation may be secured or guaranteed by either (a) a real or (b) a personal surety. A "real" surety in the Eoman Law was such a thing as a pignus ^ or a hypothec ; ^ but a person might also bind himself personally to fulfil the obligation of another in the event of that other person failing to do so.* The consent or knowledge of the debtor was unnecessary.* The contracts by which, in the time of Justinian, a person might bind himself to make good to the creditor another person's obligation were three in number — namely, fdejussio, constitutum,^ and mandatum qvAdificatum? There were two other forms of suretyship known to the Roman Law under the names of sponsio and fidepromissio respectively, but they were both obsolete by the time of Justinian. The use of the sponsio was confined to Roman citizens; it was created by formal stipulation, and could be accessory only to a " verbal " contract ; ^ and fidepromissio, although competent to aliens as well as to citizens, was also, like the sponsio, only accessory to a "verbal" contract,^ and both of these forms were otherwise much restricted in their opera- tion, for they did not bind the heirs of the surety, the liability of both sponsors and fidepromissors was limited to two years, and each surety 1 Justinian, Inst. iii. 20 ; Dig. xlvi. 1 ; Code, viii. 41 ; Gaius, hut. iii. 115-127 ; see also Hunter, Roman Law, 563-579 ; Sandars, Institutes of Justiniaii, 353-358 ; Moyle, Institutes of Justinian, 4tli ed., 422-427 ; Posts, Institutes of Gaiiis, 4th ed., 353-361 ; Buckland, Principles of Roman Law, 256-260 ; Cuq, Institutions Juridiques des Romains, ii. 543-559 ; May, Elements de Droit Romain, 8th ed., 453-462. Cf. French Civil Code, Arts. 2011-2043. 2 See ante. Section 117, p. 368. ■* See ante, Section 118, p. 371. * Cf French Civil Code, Art. 201 1. ■> Dig. xlvi. 1, 30 ; xiii. 5, 27. " Otherwise known as the pactum de constituta peninia. See post, p. 469. ' This was the special name attached by civilians to surety when created by mandate. See post, p. 469, and also ante, p. 428. ' See on the "verbal" contracts, ante. Section 102, p. 309. '■> Cf Gaius, hut. iii. 92, 93 ; iii. 118, 119. 46« SURETYSHIP 467 was liable for only his proportionate share of the whole debt thus secured,^ any excess of which could be recovered by action from the co-sureties," and in order that the sureties should remain liable the creditor had to declare the amount of the debt and the num- ber of sponsors, or of ftdepromissors, by whom the debt was to be guaranteed, s (1) Fidejussio,* as a form of suretyship, came into use during the later Roman Republic ; it was usually made in the form of a verbal stipula- tion, but it might also be in writing.^ It was much wider in its opera- tion than the earlier forms of suretyship, the sponsio and fidepromissio ; thus it might competently be accessory to any form of obligation,* whether civil or natural, present or future, whether contracted re, litteris, verbis, or consensu,'' and it might even be accessory to an obliga- tion arising ex delicto ; ^ moreover, fidejussio could itself be the basis of an action, even although the obligation to which it was accessory was not itself actionable; thus, in the case of a " natural " obligation ^ the surety might be liable to an action while his principal could not be sued. A fidejussor bound not only himself but his heirs,^" and where there were several sureties each was bound, without any right of relief or contribu- tion from the others, to the whole extent of the debt, and the creditor could demand the whole from anyone he pleased, until a rescript of the Emperor Hadrian gave " the benefit of division '' (heneficium divi- sionis), in respect of which one of several sureties, who was sued by the creditor, could claim to have the debt divided proportionately amongst the other sureties who were solvent.^^ This right did not operate ipso > This was effected by the Lex Furia de Sponsu, passed about B.C. 95. See Gains, Inst. iii. 121. ^ Gaius, Inst. iii. 122. This right to recover by action was given by the Lex Appuleia, B.C. 102. ^ This was in virtue of the Lex Cicercia, the date of which is uncertain. See Gaius, Inst. iii. 124. * Fidejussio was a form of what was called intercessio, which was a general term used in Roman Law to signify either the addition or the substitution of a new debtor ; in the former case there was " cumulative," and in the latter case " privative " intercessio. See Poste, Institutes of Gains, 4th ed., 356-358. 5 Inst. iii. 20, 8. ^ Biff. xlvi. 1, 1. ^ Justinian, Inst. iii. 20, 1 ; iii. 20, 3 ; Big. xlvi. 1, 8, 1, 2 ; xlvi. i. 8, 70, 3 ; xlvi. 1, 6 pr., 2 ; Gaius, In^t. iii. 119. See on these various forms of contract, ante. Section 102, pp. 309-313. " Biff. xlvi. 1, 8, 5. See on obligations ex delicto generally, ante, Chapter IV., p. 318. ' See on " Natural Obligations," ante, Section 101, p. 300. w Justinian, Inst. iii. 20, 2 ; Big. xlvi. 1, 4, 1. 11 Inst. iii. 20, 4 ; Biff. xlvi. 1, 26 ; Gaius, Imt. iii. 121. 468 SURETYSHIP [part iv. jure, but required to be expressly claimed by the surety; whereas, in the eases of both sponsors and fidepromissors, a right of con- tribution arose ipso jure\ moreover, the duration of the liability of sponsors and fidepromissors was fixed by the Leo: Furia de Sponsu (circa B.C. 95) at two years, but there was no limitation of time in regard to the liability of fidejussors, because the Zw Furia did not apply to them. A fidejussor was not liable for a greater sum than that owed by his principal, because his obligation was only accessory to that of the latter,! and he might be liable for less if he claimed what was known as " the benefit of discussion " (jbeneficium ordinis, or discus- sionis, or excussionis), which was introduced by Justinian,- and asked that the creditpr should first sue the principal debtor and thereafter sue the surety for what he could not recover from the former. The creditor, however, might evade this demand if he could show that the exercise of the "benefit of discussion" would be useless, by reason of either the debtor's insolvency, or of his absence beyond the jurisdiction.^ The fidejussor or surety had also the benefit of another right, if he chose to exercise it, when he was sued by the creditor without the latter having previously sued the principal debtor. In such cases, if he was willing to pay the whole debt, he could demand, before satisfying the creditor, that the latter should transfer to him all his rights of action, and also all securities held by him in respect of the debt ; and if the creditor refused to do so, and continued to sue the surety, he could be met by the defence of bad faith {exceptio doli mali).* This right of subrogation possessed by a fidejussor was known as the heneficium cedendarum actionum or " the benefit of the transfer of actions." The reason why it was necessary that the surety who was willing to pay the whole debt should demand an assignation of all the creditor's rights in respect of the debt before satisfying the creditor, was that the demand would be useless after payment, for the debt would be then discharged, and the rights of action being then discharged could no longer be assigned.^ The heneficium cedendarum actionum was often more advan- tageous to the surety {fidejussor) than if he were to claim the " benefit of division'' (beneficimn divisionis) under the edict of the Emperor 1 Inst. iii. 20, 5 ; Dig. xlvi. 1, 8, 7 ; Gaiua, Inst. iii. 113, 126. 2 Nov. iv. 1. ^ See on the heneficium m-dinis. Hunter, Roman Law, 568, 569. * Dig. xlvi. 1, 17 ; xlvi. 1, 59. ^ Cf. Moyle, Institutes of Justinian, 4th ed., 424. SURETYSHIP 469 Hadrian, because such pledges as might be in the possession of the creditor were transferred to the surety at the same time as the former ceded his rights of action.^ (2) Gonstitntuiii. — From the time of the later Republic, or of the Early Empire, suretyship might also be created by a mere informal agreement or "pact" {pactum) to pay the debt of another person on a fixed day ; such an agreement was known as constitittum or pactum de coTistituta pern Ilia? (3) Mandatuiii Qualificatum. — Suretyship might be created also by mandate (mandatum), as when a person directs another to lend money to a third person ; * in such a ease there was considered to be an obligation upon the first party, who had offered himself as mandator pecunictc rredendnc, to indemnify the creditor or lender if the third party — i.e. the borrower — failed to fulfil his obligation.* When, how- ever, suretyship was thus created by mandate, there was no liability upon the surety until the loan was actually made. The liability under suretyship in the form of both constitutum and of mandate was unlimited in regard to time, and extended to the whole amount of the debt, just as in the case of fidejussio ; but the surety was entitled to the various privileges and benefits (jbeneficia) of " discussion " (discicssionis), of " division " (divisionis), and of cession of rights of action {cedendarum actionum), which have been already mentioned. The Senatv.s-CoasidtuTn VcUeianum, which was passed about 46 A.D. in the reign of the Emperor Claudius, declared that a cautionary obligation entered into by a married woman was invalid ; but Justinian modified this provision of the law to the extent of recognising such an obligation if it had been constituted in the form of a probative written document signed and evidenced by three witnesses of good repute. Such an obligation, however, if contracted by a wife on behalf of her husband, was invalid even although it was expressed in a written and properly attested document;^ moreover, the provisions of the S.-G. Velleianum did not apply if the woman's obligation on behalf of the other person (intercessio) was made for a valuable consideration or with reference to her dowry (dos). ' Cf. Sandars, Institutes of Justinian, 8th ed., .357. 2 Of. Dig. xiii. 5, 5, 3; xiii- 5, 25; Nov. 115, 6; Hunter, ut supra, 570, 571. See also ante, p. 466, and Section 102, at p. .307. 3 Big. xvii. 1, 12, 13 ; Hunter, 570. See also on laaiidatum qtialificatum, ante, Section 142, at p. 428. •• Inst. iii. 20, 6 ; Gaius, Inst. iii. 127. ° jSTov. 134, 8. 470 SURETYSHIP [part iv. It will thus be seen that suretyship ^ in Eoman Law was either (a) personal or (b) real. " Personal " sureties were such forms as sponsio, fideproniissio, fidejussio, constitutum, and mandatuTn qualificatwm, which were either (a) stricti juris, as sponsio, Jidepromissio, and fidejussio, or (6) loTiae fidei, as mandatum pecuniae credendae, and the Praetorian pact constitutum, while the " real " sureties were the contracts of pignus ^ and hypothec.^ ' Trench, cautionnemffiit. 2 See ante, p. 368. 3 See ante, p. 371. CHAPTER XIV Extinction of Obligations ^ An obligation is properly extinguished or ended by what is known as " solution " (solutio) or actual performance ; the term solutio signified in the Koman Law the satisfaction of an obligation whatever might be its nature.^ An obligation may also be terminated, without actual solution or performance, by reason of some facts or circumstances which either render it ineffectual or invalid, or are regarded as in themselves equiva- lent to fulfilment. The extinction of an obligation might be effected, according to the Justinianian law, by solution either («) actual ^ or (V) virtual, as by " acceptilation " * or discharge, and by prescription or lapse of time.^ Section 158. — Actual Solution" The most usual mode of terminating an obligation is by actual per- formance of what has been undertaken to be done, whether the act is to give some services or to pay money. It was immaterial, according to the Eoman Law, who the person might be who actually made the pay- ment ; it might be made by the debtor himself, or by another person for him. A debtor was equally freed from his obligation whether he paid the debt himself or another person paid it for him, either with or without his knowledge or consent, and even against his wish,^ provided that the payment was made in the name or on account of the debtor,* 1 Inst. iii. 29 ; Gaius, Inst. iii. 168-181 ; Moyle, Institutes of Justinian, 4th ed., 459-468 ; Sandars, Institutes of Justinian, 8th ed., 391-398 ; Mackenzie, Roman Law, 7th ed., 277-282 ; Sohm, Institutes of Roman Law, 3rd ed., 433-447 ; Hunter, Roman Law, 4th ed., 626-650 ; Girard, Manuel de Droit Romain, 5th ed., 684-730 ; May, Elements de Broit Romain, 5th ed., 403-427. Cf. French Civil Code, Art. 1234. 2 Dig. 1. 16, 176 ; cf. Dig. xlvi. 3, 54. ' Inst. iii. 29 pr. ; Gaius, Inst. iii. 168 ; Dig. xlvi. 3. * Inst. iii. 29, 1, 2 ; Gaius, Inst. iii. 169, 170, 172 ; Dig. xlvi. 4, 8, 4 ; Dig. xlvi. 4, 9 ; Dig. xlvi. 4, 18, 1. 5 See on " Prescription of Obligations," ante. Part III., Section 83, p. 256. ^ See references in note 3, supra. ' This was on the principle that a person may have his position made better but not worse without his consent (Dig. iii. 5, 39). 8 Cf French Civil Code, Art. 1236. 471 472 ACTUAL SOLUTION [part iv. and with money of which the person paying had a right to dispose,^ for otherwise the debtor's obligation would not be solved and he would still remain liable. Payment by or on behalf of the debtor had the effect of releasing any sureties there might be for the debt, just as payment by a surety loosed the obligations of both himself and the principal debtor to the creditor.^ In certain cases solution of an obligation implies the performance of particular acts. Such obligations were said to be ad factum pro£staiidum ; they are often dependent upon the possession and employment of special skill and ability, in which cases the creditor was entitled by the Roman Law to refuse performance from anyone but his debtot.^ A creditor was not bound to accept payment by instalments, or in any way other than full payment at the time, place, and in the manner agreed upon, unless there was an express agreement upon the matter,* or there were certain special circumstances in which the Praetor might compel the creditor to accept a partial payment.^ In order that solution should be effectual it must be made either to the creditor himself or to some person properly authorised by him, or to the creditor's tutor or curator, or to the pupil creditor himself if authorised to receive it.* In the general case only the creditor himself, or his heirs, or some one authorised by them, could accept payment,^ unless some other person had been specially mentioned in the con- tract.* A debtor, however, would be freed of his obligation if he made payment to the agent of his creditor in excusable ignorance of the fact that the creditor had revoked the authority of his agent,^ and a debtor might even be freed by reason of a bond-Jide payment to a negotiorum gestor}^ If performance should have become impossible through the 'fault of the debtor, he was liable in damages to the creditor ; he was bound to act in all cases as a diligens paterfamilias or with reasonable care in all ' Gf. "Contract of Sale," and payment of the price, ante, Section 127, at pp. 400-401. 2 Cf. Inst. iii. 29 pr. ; Dig. xlvi. 1, 66 ; xlvi. 3, 23 ; xlvi. 3, 53 ; Gains, Inst. iii. 168. 3 Dig. xlvi. 3, 31. Cf. French Civil Code, Art. 1237. *■ Dig. xxii. 1, 41, 1. * Dig. xii. 1, 21 ; see Hunter, 635. 8 Of. French Civil Code, Art. 1239. 7 Dig. 1. 17, 180. 8 Dig. xlvi. 3, 12, 1. " Dig. xlvi. 3, 12. Cf. the case of a mandatary in excusable ignorance of the death of his principal, ante, Section 144, at p. 433. i« Dig. xlvi. 3, 58 pr. SECT. i6o] VIRTUAL SOLUTION 473 the eircumstances.i But if he was not in fault by reason of the failure to exercise reasonable care, and performance (solutio) was rendered im- possible through accident (casio), the obligation was extinguished ipso ■ facto and there was no further liability ; it was, however, essential that the impossibility should have arisen by chance (castt).- Section 159. — Indefinite Payments, and Apportionment of Pay- ments TOWARDS Extinction of Different Debts ^ In those cases where a debtor owed a creditor more than one debt he might specify the particular debt towards the extinction of which the payment was to be applied. If the debtor did not specially appro- priate the payment to the extinction of a particular debt it was in such a case indefinite, and the creditor was then bound, according to the Eoman Law, to apply the payment towards the extinction of that debt which, if he were himself the debtor, he would naturally wish to have discharged, or, in other words, that debt which was most burdensome to him.* This rule differs from the principle prevailing in certain modern legal systems, such as those of England and of Scotland, to the effect that in such a case the interest of the creditor is primarily of more importance than that of the debtor, and that therefore a creditor is entitled to apply an indefinite payment in whatever way is more favourable to himself ; thus he may apply it towards an unsecured, or an insufficiently secured, debt, unless by so doing the debtor is put in danger of suffering serious prejudice. If interest was already due upon the debt the Eoman Law required that an indefinite payment should be applied, in the first place, towards extinction of the interest, and thereafter the surplus, if any, would go towards the extinction of the principal debt.^ Section 160. — Virtual Solution Obligations may be extinguished or terminated by virtual fulfil- ment, or by some act or circumstance which is regarded as equivalent to fulfilment. 1 Big. xlv. 1, 137, 2, 3. ^ Biff. xlv. I, 33 ; xlv. 1, 83, 5. See, for examples of " Impossibility of Per- formance," Hunter, p. 638 ; and upon " Impossibility " generally, ante, pp. 322 and 331. 3 Cf. French Civil Code, Arts. 1253-1256 and 1297. « JDiff. xlvi. 3, 1. 5 Code, viii. 43, 1. 474 VIRTUAL SOLUTION— COMPENSATION [part iv. In the Justinianian law virtual fulfilment was operated when there had taken place what was known as (a) " compensation " (compensatio), (b) "novation" {novatio), and (c) "confusion" {eonfus-w); also by {d) " acceptilation " (acceptilatio), (e) pactum de non petendo, (/) prescription, and (g) in certain circumstances, death and capitis deminutio} (a) Compensation (Compensatio) This is otherwise known as "set-off," and it is defined as "the reciprocal extinction of debts between two persons, each of whom is indebted to the other." ^ If both debts are equal each mutually ex- tinguishes the other, but if the debts to be compensated or "set-off" against each other are unequal the lesser debt is extinguished altogether, while the greater debt is diminished by the amount of the lesser. By the law of Justinian " compensation " could be pleaded in any action, whether real or personal, with the exception of the action on deposit, " lest under this pretence anyone should be fraudulently prevented from recovering the thing deposited."^ Moreover, "compensation" could not be pleaded against a demand for restitution of a thing of which the owner had been illegally deprived. Not all debts could be compensated or set-off against each other ; in order that compensation should operate, the Justinianian law insisted upon certain requisite circumstances, to the effect (1) both debts must be actually exigible or enforceable ; consequently a debt that had already prescribed could not be set-off against an existing one ; * a " natural " obligation, however, although not legally enforceable, could, nevertheless, be set-off against an enforceable "civil" debt;* (2) the debts to be compensated must be of the same nature, so that an obligation to do some specific act — as to deliver property — could not be set-off against an obligation to pay money ; (3) both debts required to be actually due and payable; therefore compensation was not competent between a debt that could be enforced at once and one that was future, far less merely conditional upon the happening of an uncertain future event ; ■^ See Inst. iv. 6, 30 and 39 ; Gaius, Inst. iv. 41-68 ; Justinian, Big. xvi. 2 ; Code, iv. 31 ; Hunter, Roman Law, 4th ed., 1017, 1018 ; Mackenzie, Roman Law, 7th ed., 279, 280 ; Moyle, InstitiUes of Jiistinian, 4th ed., 556-558 ; Sohm, Institutes of Roman Laiv, 3rd ed., 441-447 ; Sandars, Institutes of Justinian, 8th ed., 457-459. 2 Mackenzie, ut snpra ; Dig. xvi. 2, 1 : Cmnpensatio est dehiti et crediti inter se contributio. Cf French Civil Code, Art. 1289. ' Justinian, Inst. iv. 6, 30. * Dig. xvi. 2, 14. ■* Dig. xvi. 2, 6. See " Natural Obligations," ante. Section 101, at p. 300. SECT. i6o] VIRTUAL SOLUTION— NOVATION 475 (4) the debts to be compensated required to be both definitely determined and due, or, in other words, they must both be " liquid " ; 1 a debt is not " liquid " if either its existence or its nature is disputed, unless it is capable of being immediately ascertained and determined. As a general rule, compensation could be pleaded by a person only upon a debt due to himself ; but there were certain exceptions to this rule, for an heir could competently set-off, as if it were his own, a debt due to his predecessor, and a surety might set-off' a debt due by the creditor to the principal debtor ; but the principal debtor, on his part, was not entitled to set-off against his debt a debt due by the creditor to the surety.^ Compensation did not operate ipso jure, but only when the debtor directly pleaded it in reply to a demand made by the creditor for the performance of the debtor's obligation ; it then operated in either of two ways, for either the parties might mutually agree that their reciprocal obligations should be extinguished either wholly or partially, or the Court might give effect to the debtor's plea in defence ; in the former case there would be what is known as " voluntary compensation," while in the latter case it was "judicial."^ If the debtor's defence of compen- sation or set-off was sustained it operated retrospectively, or backwards, and consequently interest would cease to run upon the two debts from the time when they began to co-exist. (b) Novation {Novatio)^ This signifies the extinction of an existing obligation by the creation of another new one.^ It was effected in three different ways, namely — (») by the substitution of a new creditor, with the consent of both parties ; (V) by the substitution of a new debtor ; or (c) by the sub- stitution of a new contract between the same parties.® Every kind of contract could be superseded by novation, but the new contract required to be either " literal " (litteris) ^ or by stipulation 1 Cf. Code, iv. ,31, 14, 1. - Dig. xvi. 2, 5. ■' See Mackenzie, ut supra, 280, note 2. ^ Justinian, Inst. iii. 29, 3 ; Die/, xlvi. 2 ; Code, viii. 42 ; Gaius, Inst. iii. 176-179. See also Hunter, 626-632 ; Mackenzie, 280, 281 ; Sandais, 396, 397 ; Moyle, 464-466. Cf. French Civil Code, 1271-1281. •' Dig. xlvi. 2, 1 pr. Cf. French Civil Code, Art. 1271. ■ See Inst. iii. 21 ; also ante, Section 102, p. 311. 476 VIRTUAL SOLUTION— NOTATION [part iv. (stipulaiimie) ; since, however, the literal contract was obsolete by the time of Justinian,! j^jjg Q^jy method of novation dealt with in the Institutes^ is a novation by means of a stipulation; apart from that fact, however, stipulation had been for long the almost invariable instrument of novation and is alone usually referred to by the jurists.^ The obligation superseded required to be actually existing at the time, but it was immaterial whether it was civil, praetorian, or natural ; * it was necessary, however, that the superseding stipulation should be binding either civilly or naturally. The substitution of a new debtor for the former one was known generally as " delegation " {delegatio) and the new debtor was called the expromissor. "Delegation," or the substitution of a new debtor, might take place either with or without the consent of the former debtor,' but the consent of the creditor was essential in order to avoid the risk of an insolvent debtor being foisted upon him.^ Strictly speaking, delegatio signified the process by which a new debtor was substituted for the original one, if the substitution took place with his consent; in such a case the new debtor was called delegatus ; if, however, the substitution was without the consent of the original debtor, the process was known as eoqiromissio, and the new debtor was styled the expromissor ; but these terms came in time to be used in a wide general sense with reference to the new debtor and without any necessary implication that the original debtor was not a consenting partyJ The supervening insolvency of the substituted debtor (delegatus) involved no liability on the part of the original debtor unless he had specially guaranteed the credit of the new debtor.* Novation was not presumed, and, therefore, iinless an intention to novate and thereby to extinguish the former obligation was clearly expressed, the new obligation was regarded merely as either corrobora- tive of or additional to the former one." The extinction of an obligation by " novation " involved the extinc- ' Of. Hunter, ut supra, 631. 2 Inst. iii. 29, 3. 3 Cf. Dig. xlvi. 2, 1, 1. * Big. xlvi. 2, 1, 1. * Gf. French Civil Code, Art. 1274. ^ Code, viii. 42, 1 ; viii. 42, 6. See Hunter, wJ supra, 632. ' Gf. Dig. xiii. 7, 10 ; Sandars, wt supra, 396. » Cf. French Civil Code, Art. 1276. » Inst. iii. 29, 3 ; Dig. xlvi. 2. Gf. French Civil Code, Art. 1273. SECT. i6o] VIRTUAL SOLUTION— ACCEPTILATION 477 tion of all obligations that were accessory to the principal contract, such as a surety. (c) Confusion ^ An obKgation was said to have been extinguished " Ijy confusion " {confusione) when the rights of both debtor and creditor became merged in the same person ^ upon either a universal or a singular title,^ for one cannot be a debtor to himself; thus the debtor might succeed as heir to the creditor, or the creditor might succeed as heir to the debtor, or a third party might succeed as heir to both the creditor and the debtor.* The confusion of an obligation in the person of the principal debtor had the effect of releasing all obligations that were accessory to the prmcipal one, such as sureties; but, on the other hand, the obligation was not extinguished by the confusion of the creditor in the person of the surety.* (d) Acceptilation (Acceptilatio) " This, in its general sense, signified the discharge of an obligation by a creditor without insisting upon payment or performance by the debtor. Acceptilation was an "imaginary solution" (imaginaria solutio)^ for, except in the case when the obligation had been created verbis, it did not strictly operate as a release from the obligation but was held as merely implying, in all cases, an informal pact or agree- ment not to sue upon it, which would ground an etxxeptio or defence against the creditor if he should endeavour to enforce performance of the obligation by the debtor. Acceptilatio was, strictly, only applicable to obligations that had been created by means of a stipulation, and it was the discharge of an obligation that had been created in that way, by means of a solemn declaration on the part of the creditor, in answer to a solemn formal question put to him by the debtor, that he held the original stipulation ^ See Hunter, ut supra, 649 and 748 ; Mackenzie, ut supra, 281. 2 Cf. French Civil Code, Art. 1300. ' See on "Universal" and "Singular" Succession, ante. Part III., Section 67 (f), p. 216, and Section 76, p. 245. * Dig. xlvi. 1, 71 pr. ; xlvi. 3, 95, 2 ; Code, iv. 16, 5. ^ Dig. xlvi. 3, 43 ; xlvi. 1, 21, 3. ° Justinian, Inst. iii. 39, 1, 2 ; Dig. xlvi. 4 ; ii. 15, 4 ; Gaius, Irist. iii. 169- 172 ; Code, viii. 44.. See also Poste's Oaim, 4th ed., 394 ; Hunter, vt supra, 639- 641 ; Sandara, ut supra, 393, 394 ; Moyle, ut supra, 462-464. " Justinian, Inst., ibid. ; Gaius, Inst. iii. 169. 478 PACTUM DE NON PETENDO [part iv. as fulfilled or satisfied.^ The jurists, however, ultimately extended the acceptilatio to every kind of contract, and it came to be regarded as a stipulation which had the effect of operating a novation of the former contract by the substitution of a new agreement not to sue upon it. What was known in the Roman Law as the "Aquilian Stipulation" (stipulatio Aquiliana) was a general form .of stipulation devised by Aquilius Gallus, who was a praetor and a colleague of Cicero, in B.C. 65, which was competent to convert by novation any obliga- tion, however it might have been created, into one arising out of a stipulation (ex stvpulatione) and which could be extinguished thereafter by a formal acceptilatio.^ In the later law even a partial release of an obligation might be effected by acceptilatio if the obligation was a divisible one ; if, however, the obligation was indivisible an acceptilatio was void if it did not inckide the whole obligation.^ (e) Pactum de non petendo There was a form of agreement standing midway between acceptilatio in the strict sense, and the discharge of an obligation in the general sense of an acknowledgment of the fact that payment or performance of the obligation has actually taken place; this was an informal agreement known as \he pactum de non petendo, by which the creditor undertook that he would not insist upon performance of the obligation by the debtor. From one point of view such an agreement was wider in its application than acceptilatio, because it could apply to all obligations however they might have been constituted; but from another point of view it was of a much more restricted nature than acceptilatio, inasmuch as the creditor did not, by it, declare that he held the debt as paid or the obligation as satisfied, but merely declared that he would not insist upon payinent or performance. Such an agreement, therefore, was thus not a release from, or an extinction of, the obligation, which still continued to subsist,* but merely constituted a defence (exceptio) 1 Of. Inst. iii. 29, 1. 2 See Inst. iii. 29, 2. See. upon the Aquilian Stipulation and its terms, Sandars, Institutes of Justinian, 8th ed., 394 ; Poste's Oaius, 4th ed., 394 ; Moyle, Institutes of Juitinian, 4th ed., 463 ; Hunter, Roman Law, 4th ed., 639-641. ■' Cf. Dig. xlvi. 4, 13, 1. See for examples of the distinction between divisible and indivisible obligations, Hunter, ut supra, 640, 641. * An informal pact could not, in any case, supersede a civil obligation although it might extinguish a natural one ipso jure {Dig. xlvi. 3, 95, 4 ; Gains, Inst. iv. 116). Contrary to the usual rule, however, an informal pact could extinguish the actions injurianim And furti {Dig. ii. 14, 17, 1). SECT. i6o] DEATH, AND CAPITIS DEMINUTIO 479 available to the debtor in the event of the creditor insisting upon performance; in other words, such an agreement operated merely Ofe exceptionis and not ipso jure} If the agreement not to sue was personal (m personam) it afforded a defence (exceptio) only to the particular person in whose favour the undertaking was given,^ but if the pact was in rem it was available both to the debtor and to his sureties and representatives.^ The "consensual" contracts* being constituted by consent alone and not by reason of the employment of any form of. words, might be extinguished by mere contrary consent (contraria voluntas) without any performance by either party, so long as neither party had done anything towards performance of his undertaking, or, in other words, so long as matters were still entire {re integra).^ In modern practice the Koman form of acceptilatio is not employed ; but all debts and obligations, however they may have been created, may be extinguished by a simple agreement between the creditor and debtor.^ (f) Prescription In certain cases prescription, or mere lapse of time, either extin- guished the obligation or precluded action from being taken upon it, and thus was equivalent to a discharge.' (g) Death, and Capitis Beminutio Death and capitis deminutio might both also operate extinction of an obligation in certain circumstances, such as, for example, when the obligation had arisen through dehct, or where the obligation was one based upon the personal skill or qualifications of the debtor. In the general case, however, death did not operate the extinction of " civil " obligations, and these consequently transmitted to the debtor's heirs, 1 See upon the Pactitm de non peteiido, Justinian, Inst. iv. 13, 3 ; Gaius, Inst. iv. 116 ; Hunter, ut supra, 642 ; Sohm, Institutes of Roman Law, 3rd ed., 440. 2 Dig. ii. 14, 7, 8 ; ii. 14, 57, 1. ' Justinian, Inst. iv. 14, 4 ; Dig. ii. 14, 27, 2. Of. Mackenzie, ut supra, 282, note 5. * See ante, p. 384 et seq. (Chapter IX.). 5 Justinian, Inst. iii. 29, 4 ; Dig. xlvi. 3, 80 ; xviii. 5, 5, 1. ^ Of. Mackenzie, vt supra, 283. ' See Prescription, ante, Part III., Chapter V., p. 250, and specially as extinctive of obligations and actionable rights, ante, Section 83, p. 256. 480 DEATH, AND CAPITIS DEMINUTIO [part iv. who became liable for them; capitis deminutio or loss of legal status^ in any form, had the effect of extinguishing "civil" obligations, as such, but thereafter they continued to subsist as "natural" ones;^ obligations based upon delict, however, were not extinguished by capitis deminutio.^ ' See on capitis demimitio, ante. Part II., Sections 3-7, pp. 74-80. 2 See also ante. Part II., Section 7, p. 79. ^ See also ante, p. 79. INDEX ACOEPTILATION, 311, 477 Accessio temporis, 255 (see Prescription) Accession, 235 of a res imllius, 235 of a res aliena, 236 Acquisition, 228-245 (see Fropcrti/) "civil" and "natural," 228 "original" and "derivative," 231. 232, 234 ^Ic;; to, -right of, in special sense, 103 Actions — Actio aestimatoria, 399, 403 bonaejidei, 384 commodati, 362 communi dividundo, 232, 419 curatelae, 208 de constituto, 248 de pauperis, 457 de pecunia constituta, 248, 466, 469 depositi, 365 de tigno juncti, 239 doli, or de dole, 329 empti, 403 exhihendiim, 238 ex stipidatu, 403, 404 ex vendito, 340, 404 familiae eriscundae, 232 fictitia, 40 fidueiae, 369 Jinibus regundis, 232 furti, 449, hypothecaria, 372 injuriarum, 459 ire reni / ire personam, 226 /e^is, 103 negotiorum geslorum, 437 noxalis, 116, 134 Pauliana, 40, 144 pigneraticia, 369 Fubliciana, 40, 144 quanti minoris, 399 qxiasi-Serviaita, 372 redhibitoria, 399, 403 rei uxoriae, 174 Rutiliana, 40, 144 Serviana, 40, 144 airic^ 8 juris, 384 stispecti, 208 iMtetoe, 208 venditi, 404 (-8 6ono?'M»i raptorum, 450 Addiotio, 111, 230 bonorum libertatis causa, 245 ire diem, 341 Adjudicatio, 232 Adjunction, 237 ' Adoption, 140-148 by woman, 145 definition of, 141-143 3' Adoption (coreif^.) — efifeots of, 146-148 how effected, 144 minus plena, 146 object of, 140 plena, 147 who could and could not adopt, 145- 146 Adrogation (Arrogation), 141-143 definition of, 141 effect of, 141 how effected, 141-142 of pupil, 143 restrictions on, 143 Adscriptitii, 127 (see Goloni) AosERTaR libertatis, 117 Aediles, 34 edicts of, 36 functions of, 35 " Aedilician Actions," 36 Aestimatum, 314 Affinity, 162, 163 (see Impediments to Marriage, 161) Agnation ; Agnates, 129, 130 Agri limitati, 236 Alluvion, 236 Altius non tollendi, servitude of, 275 (see Servitudes ; Pkoperty) Alveus derelictus, 237 Animals, 233 damage done by, 457 dangerous, 458 Anniculi probatio, 124 Antichresis pactum, 374 Aquaeductus, servitude of, 272 Aqidliaii Law, 319, 451 (see Le.r Leges) Arrhae, 391 AucTO RITAS — inleypositio, 190 AvBRSiON,/7e/' — hire, 394, 415 ; sale, 394 Avulsion, 237 Basilica, 53 Bees (as res uidlius), 233 Beneficium— cedendarum actionum, 468 divisionix, 467 ordinix, discusslonis, or fxcns-noni^, 468 Birth — lawful and unlawful, 87 what constitutes, 87 Bologna, School of Law, 56 Bona, 125 (see Freedman's duties) meaning of term, 221 Bonitarian OWNERSHIP, 223 (see Ownership) 482 INDEX BONORUM POSSESSIO — venditio, 245 Breviaritjm Alarici, 9, 52 Buildings or Land (see Accession, 235 ; and Inaedificatio, 238) Buyer, 400 (see Sale) Byzantine Law, 53 Caduca, 100 Lex Cadticaria, 100 Carriers, liability of, 366 (see Deposit, special forms of, 364-366) Calcis coquendab, servitude of, 271 Canon Law, 186 Cai^acity, legal, 83-101 (see Persons) limitation of, by age, 89 by birth, 87 by infancy, 93 by insanity, 93 by mental condition, 93 by sex, 95 by special circumstances, 95-101 Capitis deminuticj, 74, 48p effects of, 79-80 maxima, 74-76 media, IQ-Ti minima, 78-79 Caput, 73 (see Status) Causa civilis, 303 Cautio, 312 Cbssio, bonorum — ■ injure, 230, 231 Children — infants, 89, 91, 94 minors, 89, 91 "natural," 185 pupils, 89 status of, 88 Chirographa, 311, 312 Citations, Valentinian's Law of, 44 Civis — Civitas — Citizenship, 73-1 29 Cloacae mittendae, servitude of, 276 Code {Codex), 16 Gregorian, 14 Hermogeniau, 14 Justinianian, 13, 14 Theodosian, 14 Vetut, 16, 17 Co-EMPTION, 153-155, 230 Cognation, 129-130 Colon I, 127, 406, 408 Comitia, The Roman, 20-23 ce7ituriata, 21 concilium plehis, 22 trihiita, 21 COMMERCIUM, 103 res extra comm,ercium, 217 res in commercio, 217 Commixture, 240 (see Accession) COMMODATUM, 357 Concilium plehis, 22 Concubinage, 184 condictio — furtira, 449 indeiiti, 317, 439 Condition, 336 fulfilment, 338 illegal, 341 impossible, effect of, 341 resolutive, 339 suspensive, 340 Conditional clauses, special forms of, 341-346 Conductor (see Hire ; Locatio-Cort- ductio) duties of, 409 rights of, 406 Confabheatio,153, 155 CoNFUSio, 240, 477 connubium, 103 Consolidation of the Eomas Law by Justinian, 13 Constitutions, Imperial, 24 Constittttum, 248, 466, 469 possessorium, 248 Contract (see Obligations) Contubernium, 112, 163 CoNViciUM, 449 (see Injuria) Corpus Juris Civilis, 13-18 Culpa (Fault), 347 lata, 349 levis in ahslracto, 349 levis in concreto, 349 Curatory (Cura), 200 of minors {minorum), 201 of prodigals (prodigorum), 203, 205 of the insane, 205 Curator, ad litem, 207 distinguished from Tutor, 188 when could be demanded, 204 Curiales, 150 CuRULE Aediles, 34 (see Aediles) Damnum, 319, 451 fatale, 367 Deoreta {Decrees), 24 Decuriones, 150 Dediticii, 122 Defects (see Vitium) Delegation, 476 Delicts, 318, 444 (see Obligations) Delivery, 246 -(see Traditio) Deportation, 77 Depositum, 362 irregulare ("irregiilar "), 364 miserahile ("necessary"), 364 Derivative Acquisition, 244 Development of Roman Law, 37 by equity, 44 by interpretation, 37, 44 by legislation, 44 Dictio dotis, 172, 310 Dibs, 337 certus, 337 incertus, 337 Diligentia, 347 (see Culpa) exacta, 348 in commodate, 359 in depositum, 363 in hire, 410 in mandatum, 431 mpigmts, 369 in sale, 394 INDEX 483 Divisions of the Eoman Empire, 49 of Roman Law, 5 Divorce, 181 (see Marriage) ■ effects of, 183 restrictions on, 183 Dolus, 326, 328, 330 Dominium, 223 Donation, 259 (see Gifts ; Property) ante or propter Nxiptias, 175-177 inter riros, 260 inter drum et uxorem, 177 mortis causa, 262 Dos (Dowry), 169 adventitia, 160 devolution of, 173 modes of constituting, 171 profectitia, 171 receptitia, 171 varieties of, 170, 171 DOTIS — datio, 172 dictio, 172 promisaio, 172 Earnest-money, 391 (see Arrhae) Edict (Edictum), 25 Aedilician, 36 Imperial, 24 magisterial, 25 norum, 28 perpetuum, 26 "Perpetual Edict" of Julian or Hadrian, 30 repentinum, 26 Theodorici, 50 tralaticium, 27 Emancipation — filius familias, of, 138039 mode of, 138-139 slave, of, 116-117 (see Manumission) Emphyteusis, 289 Emptio, 385 (see Sale) ad yustum, 344 rei speratae, 390 spei, 390 Epistolae (Rescripts of Ejiperors),24 Error, 323-326 essential, 323-324 non-essential, 324-326 Exchange, 314, 385 (see Permutatio) Existimationis MiNUTio, 80-82 Expensilatio, 311 Expromissor, 476 Extinction op Obligations, 471 "Ealcidian fourth,'' 440 Pamilia, 129-131 agnatic, 129 cognatic, 130 Fas, 7 Fault, 347 constructive, 351 Fictions — development of law by, 40 fictitious actions, 40 FiDBJUssio, 466 FiDEPROMISSIO, 466 FiDUCiA, 369 FiLiuspAMiLiAS (see Pateia Potestas) contract of, 135 peculium of, 136 proprietary rights of, 136 Frbedman, 125-127 (see Libertinus) bona of, 125 dbsequium of, 125 operae of, 125 Fructuarius, 280 (see Usufruct) Fruits, 235, 243, 281 Fructuum percbptio, 243 FuRTUM, 319, 446 manifestum, 447 nee manifestum, 447 overt, forms of, 448 Gaius, 12, 41 General Definitions of Eoman Law, 58 General Divisions of Law, 58 General Organisation of Eoman State, 46 Gens, 46 Gifts, 259 (see Donation) ante miptias, 175 inter virum et uxorem. 111, 262 inter vivos, 260 mortis causa, 262 propter nuptias, 175 Glbbab ascriptus, 127 Grabco-Roman Law, 53 Guardianship, 187, 208 Habitation, 287 Hire, 404 (see Locatio-conductio) of services, 404, 412 of things, 404, 411, 412 Historical Introduction, 3-56 Honorarium, Jus, 29, 62 honorarii tidores, 197 Husband and Wife (see Marriage) gifts between, 175-177 Hyperocha, 376 Hypothec, 371 general, 379 landlord's implied special, 380 "rural," 380 special, 380 " urban," 380 Impediments to Marriage, 161 Impekitia, 415, 456 Imperium, 21, 31 Impubes, 89 (see Pupils) Arrogatio of, 143 Inabdificatio, 238 (see Accession) Incapacity, legal, 83 In diem addictio, 341 Infamia, 80-82 Ingbnuus, 103 " Ingratitude " — of a freedman. 111 of a donee inter vivos, 260 In jure cessio, 230, 231 Injuria, 319, 459 atrox, 460 484 INDEX Innkeepers, liability of, 317, 435, 443 Innominate contracts, 313 Inquilinus, 127, 408 Insula nata, 237 Intbrdictio aquae et ignis, 77 Interdicts, 225 Ixtbrpretation, Equity and Legisla- tion AS means of development, 37 Ixterruption op Prescription, 254 Iter, Servitude of, 272 Jurists, Classical, 41 Jus, Meanings of the Term, 57 abutundi, 223 Aedilicium, 36 Aehannm, 43 cifi/e, 65 commercii, 103 connubii, 103 constituere, 24 edicetidi, 25 Flavianum, 42 fniendi, 223, 281 gentium, 60 Honorarium, 29, 62 honorum, 102 ad rem, 226 in personam, 227 in re, 22(i in rem, 227 liherorum, JOG iwLturale, 63 navigandi, 272 non-xcriptum, 18 noinim, 17 Papirianum, 43 pascendipecoris,271, 273 (seePKAEDiAL Servitudes) patronatus, 125 pecoris acl aqtiam appn/.sim, 271, 273 (see Praedial Servitudes) personarum, 69-208 poMiminii, 74-75, 108, 235 PrneJorium, 29, 62 privatum, 58-59 puhHann, 58-59 renim, 211-293 respondendi, 38 scriptum, 18 suffragii, 102 - ■MtoiA', 223, 279, 286 IVi'hs, 17 Justae Nuptiae, 151 Justinian's Consolidation of Roman Law, 13 changes in Law of Adoption, 146 of Intestate Succession, 130 Laesio (lesion or injury) 202, 387 ultra dimidium, 367 Landlord, implied hypothes for rent, 379, 380 Lapidis eximendab, Servitude of, 271 Latins (Latini) — colmriarii, 123 " Jnnian Latins," 123 Leges, as Sources of the Eoman Law 19, 20 Legis Actiones, 42 Legislation, as means of development of Roman Law, 38, 44 Legitimation, 148 by Imperial Rescript, 148, 149 by oblation to the Curia, 148, 150 by subsequent marriage, 148, 149 Lex-Leges, 19 Aebutia, 5 Aelia Sentia, 121, 123 Anastasiana, 139 Atilia, 179 Aquilia, 319, 451 Cadncaria, 100, 164 Canuleia, 164 Cinoia de donis, 178, 261 Claudia, 85, 199 Commissoria, 342 Cornelia, 27 dr: injnruia, 461 de Ki'canis, 113, 114 • Curiata, 21 de imperio, 24 Falcidia, 440 Fufia Caninia, 122 Furia de Sponsu, iff! Horatio Valeria, 20, 23 Hortensia, 20 Julia de aduUeriit, 173 Julia de fundo dotaJi, 173 Julia et Papia Poppaea, 99, 164, 183, 199 Junia Norbana, 121, 123 Licinia, 31 Minicia, 89 Petronia, 113 Plaetoria, 203, 205 Poetilia Papiria, 111 postHminii, 74, 254 Publilia Philonis, 20, 22 regia, 24 Rhodia dejactu, 441 Romana Barbarorum, 50 Romana Burgundionum, 50, 51 Romana Visigothorum, 50, 51 Valeria Horatia, 20, 23 Visellia, 124 Voconia, 86 Libertas, 73, 74 LiBERTiNUS, 103, 125 (see Freedman) LiTISCONTESTATIO, 253 Loan (see Obligations : Contract of Mutmim, 353 ; Contract of Com- modate, 357) of money to a person under pofesfas, 355 LocATio-coNDUCTio, 404 (see Obliga- tions : Contract of Hire) LOCUS-POENITENTIAB, 391 Magistratum Edicta, 25 (see Edict) Mancipatio, 229 Mandate (Mandatum), 424 (see Obli- gations) Mandatum qualificatum, 428, 466, INDEX 485 Manumission, 116 formal, 117 informal, 119 involuntary, 120 restrictions on, 121 voluntary, 117 Manus, 152 (see Marriage) Marriage, 151 dissolution of, 180 impediments to, 161 requisites for valid, 157 Matbrfamilias, 153 Matrimonidm, 151 Matrona, 153 Metus, 326-328 Minutio, Capitis, 74-80 existimationis, 80-82 Mistake, 323 (see Error) Mora (Delay), 351 (see Fault) Mortgage — Fiducia, 369 Hypothem, 307, 371 Pignm, 368 MuTATio familiae, 79 (see Capitis diminutio minima) MuTuuii, 353 (see Obligations) Special forms, 356 Special restrictions, 355 Nauticum foenus, 356 Negligence, 348 contributory, 456 Neqotiorum gestio, 316, 436 Negotium gerere (see Tutory) Nexum, 111 Nomina transcriptitia, 311 NovATio>', 475 (see Obligations, Ex- tinction of) Notellae Constitutiones, 16 NOXAB deditio, 116, 134 Nuptiae, 151 (see Marriage) Oblatio Cueiae, 150 (see Legitima- tion) Obligations, 295 et seq. Cautionary Obligations — Suretyship, 466 Civil and Praetorian, 299 Commodatcmus, 358 "Consensual" Contracts, 3S4 Constructive Fault, 351 Contract — Conditional Contract, but no time fixed for performance, 338 Fulfilment of a condition, 338 Illegal condition, 340 Impossible condition, 340 Promise in, 331 by some one legally capable, 333 Legal, 332 possible, 331 Qualification as to place, time, etc. , 333-337 Qualified, 333 Kesolutive condition, 339 Suspensive condition, 340 Time of performance, 337 Varieties of conditions, 339 Obligations (contd.) — Contract of Commodate(Commodatum), 357 Commodator or Commodans, 360 Duties of borrovi'er, 358 Duties of lender, 360 Remedies of borrower, 361 Remedies of lender, 362 Contract of Deposit, 362 Damnum fata/e in, 367 Depositmn irmjiilare, 365 Depositiim mixtrahl/e, 365 Duties of depositary, 363 Xaiitae, Canpoiie-', 364 Pericii/um (Bisk), 363 Sequestration, 365 Special forms of, 364 r/.v major in, 367 Contract of Hire, 404 Duties pf Employee, 414 Duties of Employer, 416 Essentials of, 405 Services, 412 Subject of, 406 Termination of, 416 Things, 406 Work, 412 Contract of Mandate, 424, Duties of Mandant, 432 Duties of Mandatary, 430 Remedies of parties, 433 Termination of, 432 Contract of Miitiium, 353 Borrower's liability, 353 Borrower's rights, 354 Nauticum foenus, 356 Pecuuia trajectilia, 356 Special Forms, 356 Special Restrictions, 355 Contract of Partnership, 417 constitution of, 419 rights and duties of partners, 420 termination of, 422 Contract of Pledge (Pignus), 368 Contract of Sale, 385 Agreement of parties, 385 Arrhae or Earnest-money, 391 Buyer's duties, 400 Buyer's remedies, 403 Constitution, 391 Essentials of, 385 Future things, 390 General duties of parties, 395 incidence of Risk, 393 price, definite, 386 fixed, 386 real, 386 sufficient, 387 Seller's Duties, 396 Seller's Remedy, 404 Seller's AVarranty, 398 Special duties of parties, 401 Special Warranty, 400 Subject of, 388 Termination of, 403 Contractual Obligations, 303 Constittifiim, 307 Dictio dolls, 310 Hypotheca (Mortgage), 307 J II rata promi'sio liberti, 310 486 INDEX Obligations (contd.) — Contractual Obligations (contd. ) — Pacta adjecta, 307 Legitima, 308 ProBtoria, 307 Vestita, 306 Pactum de Constituto, 307 Receptum argentariornm , 308 Syngraphae, 311 Delictual Obligations, 318, 444 Damnum, 319, 451 Furtum, 319, 446 Injuria, 319, 459 Rapina, 319, 450 Diligence, Fault and, 347 Error or mistake, Effect on Contractual Obligations, 323 Extinction of Obligations, 471 actual solution, 471 indefinite payments, apportionment of, 473 virtual solution, 473 Acoeptilation, 477 Compensation, 474 Confusion, 477 Death and Ca/pitU Demiiiutio, 479 Novation, 475 PacUtm de non petendo, 478 Prescription, 479 Fault and Diligence, 347 Theory of Responsibility for Fault, 347 General Division of, 298 General Nature of, 295 Hypothec, 371 Advantages over Pledge, 372 Origin, 371 property, 373 Tacit "Special "or " General," 379 who might grant, 373 Implied Obligations generally, 316 Innominate Contracts, 313 Natural Obligations, 300 Obligations with Express Agreement, 303 Pignus, 368 disadvantages, 369 Pignun and Hypothini., 374 Creditor's rights of retention, 378 creditor's rights of sale, 374 creditor's rights hittr i-t, 378 mutual rights and duties, 374 termination of rights, 381 Prescription of Obligations and Action- able Bights, 236 Quasi-Contractual Obligations, 435 Lex Rhodia de Jactu. 441 Negotioriim Ge-itio, 436 Duties of parties, 438, 439 Essentials of, 436 Receptum Nautamm, Caupomun, Slahulariorun,, 443 Solutio Indebiti, 439 Quasi-Delictual Obligations, 462 "Real" Contracts, 352 Special Forms of Conditional Clauses in Contracts, 341 Emptio ad gusttim, 344 In diem addictio, 341 Lex Commi'tforia, 342 Pactum, de retro-em^iido, 346 Obligations {contd.) — Special Forms {contd.) — Pactum de retro-rendendo, 345 Pactum displicentiae, 345 Prae-emptio, 345 Suretyship, 466 Valid Contractual Obligation, 321- 323 Voluntary and involunta-ry Consent, 326 Dote, or "Fraud," 328 m^elus, 327 Suggeatiofalxi, 329 Siippresiio veri, 329 vis, 327 Obsequium, 125 (see Freedman) Occupation, as a mode of Acquisition, 232 Oneris ferendi, 274 (see Servitudes voce Property) Operae, 125 (see Libertihtjs) Oratio Autonini, 179 Ownership, 223 bonitarian or equitable, 223 in time of Justinian, 224 quiritarian, 223, 224 riparian, 237 Pact {Pactum), 305 adjectum, 307, 313 antichresis, 375 constitutum, 307, 469 de constiiuetida dote, 308 de constitiita pecunia, 248, 307, 469 de non petendo, 478 de retro emendo, 346 de retro-vendendo, 345 displicentiae, 345 fiduciae, 369 donationis, 308 hypothecae, 307 legitimum, 308, 313 nudum, 313 praetorium, 307 receptum argentariorum, 307 restitum, 306 Pandects, 15 Papinian, 12 Paraphoma, 175 Partnership, 417 (see Obligations) Paterfamilias, 132 Patria Potestas, 132, 138 Pauperies, 457 Pecoris ad aquam appulsus, 273 (see Servitudes) Pbculium — adventitium, 137 castrense, 136 oi filiiisfamil ias, 135 of slaves, 115 profectitium, 136 quasi- castrense, 137 Pecunia — trajectitia, 356 Pecus, 452 Pensio, 406, 409 Peregrin i, 102 Perfecta aetas, 89, 187 INDEX 487 Performance of Obligation, 471 ex die, 337 in diem, 337 Periculitm, 393 (see Obligations ; Contract of Sale, Incidence of Eisk) Prrmutatio, 314, 385 (see Exchange) Persona, 69 Persons — Adoption, 140 Agnates, 129 Birth, Lawful and Unlawful, 87 Birth, what Constitutes, 87 Capitis Deminutio, 74 Capitis Deminutio Maxima, 74 Capitis Demimitio Ifedia or Minor, 76 Capitis Deminutio Minima, 78 Caput and Status, 73 Cognates, 129 Coloni, 127 Concubinage, 184 Gura, 187, 200 Curator ad Litem, 207 Curatory, 187, 200 Dissolution of Marriage, 180 Divisions of, 102 Divorce, 181 Donatio ante Xuptias, 175 Donationes inter Virum et Uxorem, 177 Dowry {Dos), 169 Effects of Capitis Deminutio, 79 Existimationis Minutio—Infamia, 81 . Familia, 129 Foreigners, Legal Disabilities of, 103 Freedman, relation to Patron, 125 Guardianship, 187 Incapacity, due to Alienage, 96 Celibacy and to Childlessness, 99 Impuberty and to Minority, 94 Infamy or to Religion, 100 Insanitj' and to Infancy, 93 Office, 95 Physical Defect, 96 Prodigality, 94 Subjection to Potestas, 98 Infamia, 80, 100 Legal Capacity of Persons, 83 Legal Capacitj' of Persons Born of Parents of Unequal Status, 88 Legitimation, 14S Limitation of Legal Capacity, b3r Age, 89 by Birth, 87 by Mental Condition, 93 by Sex, 83 by Special Circumstances, 95 Manumission, 116 Marriage, 151 Marriage, Dissolution of, 180 Minors, Capacity of, 89 Patria Potestas, 132 How Created, 132 How Terminated, 138 PecuKum Adventitium, 137 Pecidium Castrejise, 136 PecuHum of Filiusfamilias, 135 PecuKum Profectitium, 136 Peculiuin Quasi-Castrense, 137 Persons Generally, 69 Pupils, Capacity of, 89 Persons (contd.) — Roman Citizenship, 102 Roman Family Organisation, 129 Slavery, 109-128 Status, Caput and, 73 Tutory, 189-200 PiGNUS, 368 (see Obligations) Plantatio, 239 (see Accession) Plebiscitum, 19, 20, 22 Pledge, 368 Pontiffs {Pontifices), 37 Possession, 224 longi temporis, 251 longissimi temporis, 255 protected by Praetor, 225 Postliminium, 74-76, 180, 235 (see Jus postliminii) Praeda, 235 Prabdium, 270 Praedial Servitudes, 269 Praetor, 31 Edict of, 26 peregrinus, 32 urhaiius, 32 Praetorian Edict, 26, 29 Precarium, 314 Pre-emption (Prae-emptio), 345 Prescription (Prabscriptio), 250 of Obligations, 256 Principum placita, as Source of Eoman Law, 24 Procedure, in jure and injudicio, 28, 29, 230 Proculians, 37, 241 Prodigal (Prodigus), 94, 95, 200, 205 P-ROJECTiQN, Servitude of, 275 Property — AcceKfio Temporis, 255 Acquisition of Things, 228 Delivery, 246 Con-structive, 231, 244 Derivative Acquisition, 231, 244 Donation, 259 Inter Viro.s 260 Mortis Causa, 262 Emphyteusis, 289 Creation and Termination o^, 291 Rights and Duties of the Emphv- teuta, 290 Fructaum Perceptio, 243 Habitation, 287 Injure Cessio, 230 Mancipatio, 229 Original Acquisition, 232 Accession, 235 Acquisition of a Res alieiia, 237 Acquisition of a Rtx nullius, 233, 235 Adjunction, 237 "Alluvion," 236 "Avulsion," 236 Confusion and Commixture, 240 Derelict Things, 234 Inaedificatio, 238 Inanimate Things, 238 Occupation, 232 Plantatio, 239 Prize or Spoil of War, 235 Specification, 241 488 INDEX Property (contd.) — Original and Derivative Acquisition Generally, 231 Ownership and Possession, 223, 266 Personal Rights, 226 Praedial Servitudes, 269 (see Servi- tudes) Prescription, 250 Eflfect of Interruption, 254 Lo)igi>:simi Teniporis, 255 Of Obligations and Actionable Rights, 256 When Complete, 254 Real Rights and Personal Rights, 226 "Real" Rights less than Ownersliip, 267 Requisites for a Valid Prescriptive Title, 252 Possession "in Good Faith," 252 Possession " on a Good Title," 252 Possession Uninterrupted, 253 "Usurpation," 253 Bights iu the Property of Another Person, 267 • Rights other than Servitudes over the Property of Another Person, 289 Servitudes Generally, 266 Constitution of, 276 Extinction of, 277 Juristic Persons and Personal Servi- tudes, 288 Personal, 278 Services of. Animals, 288 Slaves, 288 Praedial Servitudes, 269 Rural Servitudes, 271 Actu«, 272 Aquaeductus, 272 Aquaefiaustus, 273 Iter, 272 Via, 272 Urban Servitudes, 273 Altitis non tollendi, 275 Oiieris ferendi, 274 i^tt/ficidii rtcipltndi, 274 Tigni iinmitfandi, 274 Essential Characteristics of, 276 Succession, Singular and Universal, 245 Sii'jierficies, 292 Termination of Ownership, 266 Things Generally, 211 Classification of, 211, 217 Consumable and Inconsumable, 214 Corporeal and Incorporeal, 213 Divisible and Indivisible, 215 E.rtra Commtrcium, 217 Res Coiiiiniiiies, 218 Res ytiUius, 220 li<-« Publicae, 218 Res Uiiiversitatis, 220 Fungible and Non-Fiingible, 214 ill Commercio, 217 Movable and Immovable, 214 Res iimncipi and Res nee maneipi, 216 ^ ' " Singular," 216 " Universalities" of, 216 Tradition or Delivery of Property, Use, 286 Property (contd.) — Usufruct, 279 Cession of, 285 ' ' Consolidation " or " Confusion, '' 285 Constitution of, 280 Destruction of, 285 Duties of a Usufructuary, 282 Non-use of. 285 Rights of a Usufructuary, 281 Termination of, 283 Prudentes, 38, 43 Puberty, 158 Pupils, 89 Quarta — Antonina, 143 Fcdcidia, 440 Quasi-Contbacts, 301, 411 (see Obli- gations) Quasi-Dblicts, 303, 437 (see Obliga- tions) Quasi -Usufruct, 280 quinquaointa decisiones, 16, 17 Rapina, 450 Receptum, 366 arbitrii, 366 aryentarionnn, 308, 366 nautarum, cauponum, etc., 366, 443 Reouperatores, 60 Rbditus, 406 Relegation, 77 Repudium, 181 Ees, 211 (see Things : Property) Rescripts, as means of legitimation, 148-149 as source of law, 24 Responsa Prudentium, 19, 38 .Restitutio in integrum, 203 Rights, real and personal, 226, 227 Riparian owners, 236 Risk [Pericvlum), 393 Rivers, 218-220 Roman Comitia, 20 Romano-Barbarian Codes, 50 RusTici, 86 Sabinians, 37, 241 Sale, Contract op, 385 (see Obliga- tions) Salvius Julianus, 12, 30 Satio, 240 (see Accession) Scaevola, Q. Mucius, 39 Sea ; Sea-Shore, 218 Security, Rights in, 368- fiducia, 369 pig7ius, 368 hypotlieca, 371 Suretyship, 466 Senatus-Consulta, as source of law, 19 Sexatus-Consultum, 20 Gtaudianum, 245 Macedonianitm, 355 Vetteianam, 86 INDEX 489 Servitudes (Servitus), 267 (see Pro- perty) personal, 278 praedial, 269 Set-opf, 474 (see Obligations, Ex- tinction of, compensaticm) Sewer, Servitude of a, 276 Sex, ground of incapacity, 83 Sextus Aelius Paetus, 42 Singular Succession, 245 Slavery, 109-127 (see Persons) SociETAS, 417 (see Obligations; Partnership) in aeternum, 419 leonina, 420 negotiationis alicjijus, 417 rei unixis, 417 universorum bonorum, 417 universorum quae ex qwaesto veniunt, 417 vectigalis, 417 Soldiers, special privileges, 86, 97 Solutio indebiti, 439 Sources of Roman Law, 18 Specification, 241 (see Property) Sponsio, 466 Statuliber, 118 Status, 73 (see Caput) Stillicidb, 275 (see Servitudes) Stipulatio, 309 Succession, singular, 245 universal, 245 SuFFRAGiUM, 102 (see Jus Hufragii) SuGGESTio falsi, 329 Superficies, 292 SuppRESSio veri, 329 Suretyship, 466 Syngraphab, 311 Tables, The Twelve, 7 Tabulae, accepti et expensi, 31 1 Tbstamenti factio, 97 Theft, 446 (see Furtum) Things, 211 (see Property) Tigni immittendi, 274 (see Servi- tudes) Traditio, 246 brevi manu, 247 longa manu, 247 Treasure Trove, 234 Tribonian, 13 Tutbla (Tutory), 187 (see Persons) dativa, 193 fiduciaria, 191 impuberum, 187, 189, 190 legitima, 192 mulierum, 187, 190, 198 object of, 190 testamentaria, 191 women, 198 Tutor, at law, 192 dative, 193 duties of, 194 exemption, 189 magisterial, 193 security, 191 statutory, 192 testamentary, 191 varieties of, 191 Twelve Tables, The, 7 Ulpian, 12, 41 Universal Succession, 24 Usucapion, 250 (see Prescription) Usufruct : Usufructuary, 279 (see Property) Qiiasi-uxiifruct, 280 Use (Usus), 280 (see Property) Valentinian Law of Citations, 44 Venditio, 385 (see Sale) Venia aetatis, 205 Verbal Contracts, 309 Veteres, 40 Vi bonorum raptorum, 450 (see Eapina) Via, 272 (see Servitudes) ViNDICATIO, 224 Vis, 327 effect on Contract, 327 major, 367 ViTiUM (Vitia), 398 in Hire, 407 in Sale, 398 Woman — adoption by, 84, 145 disabilities of, 83 tutory of, 198 32 PRINTED IN GKKAT BRITAIN AT THE DARIEN PRESS, EDINBURGH * ^ .x\\: \\\ ^^ \ \ ^ \