(p.264) Extracts from Gaius’s and Justinian’s Institutes
(p.264) Extracts from Gaius’s and Justinian’s Institutes
Translated by the author
Institutes, book 3
Now let us move on to obligations. Of these the main division distinguishes two species. For every obligation is born either from a contract (ex contractu) or from a delict (ex delicto).
And first let us look into those which are born ex contractu. This time the division is into four genera. For the obligation is contracted either re or verbis or litteris or consensu.
An obligation is contracted re as, for example, by the giving of a mutuum. The giving of a mutuum happens, properly speaking in relation to the sort of things which are dealt in by weight, by number or by measure. Coined money is of this kind, as also oil, corn, bronze, silver and gold. With such things, when we either count or measure or weigh them out, we give them with the intent that they should vest in the receiver and that any later render back to ourselves should be, not of the very same things, but of others of the same kind. This is how mutuum gets its name, because what is given by me to you in this way does become ex meo tuum.
An obligation re is also incurred by one who has received something not due from one who has paid by mistake. In fact he can be sued by the condictio, with its pleading which says ‘if it appears that he ought at civil law to convey (si paret eum dare oportere)’, just as though he had received a mutuum. For this reason some hold that a pupillus or a woman to whom, without the guardian’s authority, something not due has been given by mistake is not bound by the condictio, no more than by reason of the giving of a mutuum. But this species of obligation does not seem to exist by virtue of contract because he who gives with the intention of paying off a debt (solvendi animo) has it in mind rather to undo a deal than to do one up (magis distrahere uult negotium quam contrahere).
An obligation verbis is created by question and answer, as in this way:
- Dari spondes? Spondeo.
- Dabis? Dabo.
- Promittis? Promitto.
- Fidepromittis? Fidepromitto.
- Fideiubes? Fideiubeo.
- Facies? Faciam.
But this obligation verbis in the form Dari spondes? Spondeo is confined to Roman citizens. Yet the others are ius gentium. As such they are valid between all men, whether Roman citizens or aliens, and even if put into Greek, as in this manner:
- Doseis? Doso.
- Homologeis? Homologo.
- Pistei keleueis? Pistei keleuo.
- Poieseis? Poieso.
These are also valid however even between Roman citizens, provided only that they are able to understand Greek. And, vice versa, even if Latin is used the obligations are nonetheless valid between aliens, so long as they understand Latin. But that obligation verbis in the form Dari spondes? Spondeo is so restricted to Roman citizens that it cannot properly be found an equivalent in Greek, even though the verb is said to be derived from Greek.
In this connexion it is said that in one case it is possible even for an alien to be put under an obligation by this word, as where our emperor questions the leader of an alien people about peace, thus: Pacem futuram spondes? Or where the question is put to him in the same form. But this example is too clever by half since if anything is done against the peace treaty no action ex stipulatu arises but the matter is pursued by the law of war.
There is a doubtful question whether, if someone…[Illegible lines create a gap, and then the text relies on somewhat conjectural reconstruction through 95a and part of 96].
There are also other obligations which can be contracted by words spoken without any question being put beforehand, as where a woman declares a dowry either to her fiancé as a wife to be or to her husband after marriage. This applies as much to movables as to land. And in this obligation not only can the woman herself be bound but also her father and her debtor if at her behest he declares as dowry the debt he owes to her. Nobody else can incur an obligation in this way. Therefore, if anyone else does want to promise a dowry for a woman he must bind himself according to the ordinary law. That is, he must promise in response to a stipulation by the man.
Again an obligation is contracted by unilateral speech, with a promise made to the other without any question put, where a freedman has sworn that he will render his patron a gift or service or labour. This, however, is the single case in which an obligation is contracted by means of an oath. Certainly there is no other case in which men incur obligations through oath-taking, at least so long as the inquiry is confined to the law of the Romans. As for the question as to the law applicable among aliens, we will find, if we look into the laws of different citizenships, that different rules prevail from one to another.
Suppose that the thing which we stipulate to be given (dari) is such that it cannot be given. The stipulation is then ineffective. Examples are where one stipulates for the giving of a free man in the belief that he is a slave or for the giving of a dead man in the belief that he is alive or for sacred or religious land in the belief that it is governed by human law.
Again, if someone stipulates subject to a condition which cannot be fulfilled, as for instance ‘on condition that he touches the sky’, the stipulation is ineffective. Yet in the case of a legacy left under an impossible condition, our teachers hold it to be due exactly as though left unconditionally. The supporters of the other school think the legacy ineffective, just as with the stipulation. And it is certainly true that a satisfactory reason can hardly be given for any distinction.
Besides these, a stipulation is also ineffective where someone stipulates for a thing to be given to him which, unknown to him, is his already. This is because what belongs to a man cannot be given to him.
Next, the stipulation is ineffective if someone stipulates for a giving in this way: Post mortem meam dari spondes? Or in this way: Post mortem tuam dari spondes? Yet this form of stipulation is valid: Cum moriar (when I am dying) dari spondes? So also this: Cum morieris (when you are dying) dari spondes? The point is that these forms have the effect of triggering the obligation during the last moments of the life of the stipulator or promissor. For it was perceived as awkward (inelegans) to have an obligation come first into being with the person of the heir. Moreover, we cannot stipulate thus: Pridie quam moriar (the day before I die) or Pridie quam morieris (the day before you die) dari spondes? For there is no way of discovering ‘the day before someone dies’ other than by waiting for him to be dead. And then, once the death has happened, the stipulation is pushed back into the time before. It is tantamount to saying: Heredi meo dari spondes (Do you promise a giving to my heir)? And there is no doubt that that is ineffective.
The stipulation is also ineffective where someone fails to answer to the question put, as where I stipulate for 10,000 sesterces to be given by you and you promise 5,000. Or where I stipulate absolutely, and you promise conditionally.
Again, the stipulation is ineffective if we stipulate for a giving to someone to whose rule we are not subject. Suppose therefore that someone stipulates for a giving both to himself and to someone to whose rule he is not subject. There is a question then to what extent the stipulation is valid. Our teachers hold it wholly valid and say that the full amount is due to the stipulator alone, just as though the outsider’s name had not been mentioned. But the supporters of the other school think that half is due to him, and that the stipulation is ineffective so far as concerns the other half.
Again, the stipulation is ineffective if I stipulate from one who is subject to my rule, or he from me. In fact a slave, a person in mancipio, a daughter in power, and a woman in manu, cannot be put under an obligation to anyone at all, let alone to a person to whose rule they are subject.
It is obvious that a mute cannot stipulate or promise. The same has been accepted for the deaf, since the stipulator and the promissor ought to hear each other’s words.
A madman (furiosus) cannot transact any deal at all, because he does not understand what he is doing.
A pupillus can properly transact every deal, subject however to his getting his guardian’s authority where necessary, as where he himself is put under an obligation; for he can put someone else under an obligation to himself even without his guardian’s authority.
But what we have said about a pupillus is properly speaking only true of one who already has some understanding. In fact infants and those very close to infancy scarcely differ from madmen in that pupils of that age have no understanding. But for the sake of convenience the law in relation to such pupilli has been less drastically interpreted.
But we can join another person to a stipulation made by ourselves. He then stipulates for the same performance. The common name for such a party is ‘adstipulator’.
The action then lies for him just as well as for ourselves. And payment can as well be made to him as to us. But he will be compelled to make over to us whatever he obtains, this duty being enforced by the actio mandati.
Moreover, the adstipulator can use words other than those which we ourselves have used. Thus if, for example, I have put the stipulatory question in the form, ‘DARI SPONDES?’, the adstipulator can still say, ‘IDEM FIDE TUA PROMITTIS?’ or ‘IDEM FIDEIUBES?’ Or vice versa.
Again the adstipulator can demand a lesser performance. He cannot demand a greater. Hence, if I stipulate for 10,000 sestertii he can demand 5,000, but he cannot ask for more than that. Again, if I make an absolute demand, he can demand conditionally. But not the other way about. Here ‘more’ and ‘less’ are applied not only to quantity but also to time; for it is ‘more’ to give immediately, ‘less’ to give after an interval of time.
This area of law reveals some legal oddities. For the adstipulator’s heir acquires no action. Again a slave’s adstipulation achieves nothing whereas in all other cases he acquires a right for his owner through his stipulation. The same view has prevailed of persons in mancipio, who are in a position equivalent to that of a slave. He who is in the power of his father does achieve something acting as adstipulator, but he acquires nothing for his parent even though in other cases he does acquire for him by making a stipulation. Yet even in his own case, no action lies for him unless he leaves his father’s power without suffering a capitis deminutio (status-loss), as by the father’s death or by himself becoming a flamen Dialis. The same results must be taken to apply in the case of a daughter in power or woman in manu.
On the other side it is also usual for extra people to be obligated on behalf of the promissor. These we call either sponsors or fidepromissors or fideiussors.
The question to a sponsor is, Idem dari spondes? To a fidepromissor it is, Idem fidepromittis? To a fideiussor it is, Idem fide tua esse iubes? There is a question what name can be given to people who answer to, Idem dabis? or Idem promittis? or Idem facies?
We often take sponsors, fidepromissors or fideiussors as a means of making sure that we are provided with better security. On the other hand almost the only case for using an adstipulator is where we stipulate for something to be given after our death. For since by making such a stipulation we ourselves achieve nothing, an adstipulator is attached so that he can sue after our death. Then, if he obtains anything, the trial for mandatum (commission) binds him to restore it to my heir.
The legal positions of sponsors and fidepromissors are similar; but fideiussors stand markedly apart.
For the first two cannot be attached to any obligations other than those verbis. The qualification is that the obligation verbis sometimes is not binding on the actual promissor, as where a woman or pupillus promises without the guardian’s authority or where someone promises a giving after his own death. It is debated, however, whether a sponsor or fidepromissor is bound if a slave or alien is principal promissor by the word spondere.
A fideiussor, by contrast, can be added to all sorts of obligations, that is to say whether the obligation is contracted re, verbis, litteris or consensu. Nor does it even matter whether the principal obligation is civil or natural. It can even be a slave for whom the guarantor by fideiussio becomes liable, and the stipulator who takes the guarantor for the slave can be an outsider or even the slave’s own owner seeking a guarantee of what is owed to himself.
Next, the heir of a sponsor or fidepromissor is not bound (unless we think of an alien fidepromissor whose civitas uses a different rule). But in the case of a fideiussor, the heir is bound.
Next, sponsors and fidepromissors are discharged after two years by the lex Furia; and, whatever their number shall be at the time when it becomes possible to sue for the money, in that many parts the obligation is shared between them and each will be called for his share only. By contrast, fideiussors are liable without limit of time and, whatever their number, each is obligated for the full amount. Hence, it is up to the creditor to sue whichever he wants. However, a letter (epistula) of the deified Hadrian now compels the creditor to sue for a share from each of them who is solvent. The rule of this letter differs from that of the lex Furia in this: if any sponsor or fidepromissor is insolvent his burden does not accrue to the others; with fideiussors, however, even if only one is solvent he must carry the burden of all the others.
But the lex Furia applies only in Italy and the effect of this is that in other provinces sponsors and fidepromissors are, in the same way as fideiussors, bound without limit of time and are each under an obligation for the full amount, unless they too derive assistance as to part from the letter of the deified Hadrian.
The next aspect of the matter this: the lex Appuleia introduced a kind of partnership (societas) between sponsors and fidepromissors. In fact if one of them paid more than his share the lex established an action for him against the others in respect of the overpayment. This lex was passed before the lex Furia, when each was under an obligation for the full amount. The question thus arises whether the right (beneficium) given by the lex Appuleia survives the passing of the lex Furia. There is no doubt that outside Italy it does survive. For the lex Furia only applies in Italy, while the lex Appuleia applies also in other provinces. But there really is room for debate whether the Appuleian right survives in Italy too. On the other hand, to fideiussors the lex Appuleia does not apply. Hence if a creditor obtains the whole sum from one fideiussor the loss is his alone, at least if the principal for whom he stood surety is insolvent. However, as is clear from what was said above, one who is sued for the whole sum by the creditor can now plead that under the terms of the letter of the deified Hadrian the action should be given against him only for his share.
Next, it was provided by the lex Cicereia that someone taking sponsors or fidepromissors should openly say so in advance and declare both the matter in respect of which he is taking security and the number of sponsors and fidepromissors he is about to have. And if he does not make this announcement the sponsors and (p.270) fidepromissors are permitted to ask within thirty days for a declaratory judgement (praeiudicium) to answer the question whether the statutory declaration was made. And if it is declared that it was not made they are thereby discharged. Under this statute no mention is made of fideiussors. However the practice is to give the statutory notice even when we take fideiussors.
The lex Cornelia, on the other hand, introduced a control (beneficium) common to all guarantors. By this statute it is prohibited for any person to bind himself in any one year to any one creditor on behalf of any one debtor for a sum of ‘credited money (creditae pecuniae)’ greater than 20,000 sesterces. Then, even if the sponsors, fidepromissors or fideiussors have bound themselves in a full sum of, say, 100,000, nevertheless their liability is limited to a maximum of 20,000. We define ‘credited money’ as including not only money which we give on credit (eam quam credendi causa damus) but also every sum which is certain to be owed at the moment at which an obligation is contracted—that is, money which is unconditionally subjected to an obligation of payment. Hence, if we stipulate for money to be paid on a certain day, that sum comes within the definition, because it is certain that the money will be owed even though the suit is postponed. Moreover the term ‘money (pecunia)’ in this statute includes all things (omnes res). Hence, if we stipulate for wine or corn or a farm or a slave, the statute must be applied.
The statute does however allow unlimited guarantees in some cases, as for dowry or for what is owed to you under a will or a guarantee given by judicial order (iussu iudicis). And, further, the lex on estate duty at 5 per cent provides that the lex Cornelia shall not apply to guarantees required under its provisions.
Another rule common to all, that is to sponsors and fidepromissors and fideiussors, is that they cannot incur an obligation such that they owe more than is owed by the person for whom they take on the guarantee. And, the other way round, they can bind themselves to owe less, as we said in relation to adstipulators. For as in the case of the adstipulator’s right, so here the obligation of these guarantors is an addition (accessio) to the principal obligation. And it is impossible for there to be more in the addition than in the principal matter.
In this next rule too, all are in the same case, namely that if they pay anything on the principal’s behalf they have an actio mandati against him for its recovery. And, beyond this, sponsors have an action of their own under the lex Publilia for double recovery (duplum). That is called the actio depensi.
An obligation is created by writing (litteris) as for example in cross-written debts (in nominibus transcripticiis). Now a cross-written debt is something which happens in two ways. It happens either from a thing to a person (a re in personam) or from one person to another (a persona in personam).
A cross-entry is made from a thing to a person when, for example, I enter as paid out to you that which you owe me as the result of a purchase or a hiring or a partnership.
A cross-entry is made from one person to another when, for example, I enter as paid out to you, that which Titius owes to me. That is to say, so long as Titius has offered you to me as a substitute debtor (te pro se delegaverit mihi).
It is a different case with the debt-entries called ‘cash-box entries’. For with them the obligation arises re, not litteris. The reason is that they only take effect if the money is actually paid out. The paying out of the money makes an obligation re. And we therefore rightly assert that cash-box entries (nomina arcaria) do not create any obligation but rather provide evidence of an obligation already created.
It follows that it cannot correctly be said even that aliens are put under obligations by cash-box entries, since it is not by the entry itself (non ipso nomine) but by the payment out of the money (numeratione pecuniae) that they are obligated. And that kind of obligation belongs to the ius gentium.
It is a good question, by contrast, whether aliens incur obligations by cross-written debts. For that kind of obligation is arguably ius civile. Nerva so held. Sabinus and Cassius took the view, however, that even aliens are bound by a cross-written debt from a thing to a person but not by a cross-writing from one person to another.
Beyond this, an obligation appears to arise litteris through the use of cheirographs and syngraphs. That is to say, where a person writes that he owes or that he will give, in circumstances in which no stipulatio is made on that account. That kind of obligation is peculiar to aliens.
Obligations are created consensu (by agreement) in emptio-venditio (sale), locatio-conductio (hire), societas (partnership) and mandatum (commission).
The reason why we say that in those ways the obligation is contracted consensu is that no formality of words or writing is required but, on the contrary, it suffices that the parties to the transaction have come to an agreement. Hence such deals can be contracted even inter absentes, as by letter or messenger, whereas by contrast an obligation verbis cannot be created inter absentes.
Again, in these contracts the parties come under obligations to each other on the basis of that which each ought to make good for the other in decency and fairness (ex bono et aequo), whereas by contrast in obligations verbis one party stipulates and the other party promises, and in cross-entries by the entry of the payment out one party binds and the other is bound.
Yet, even though an obligation verbis cannot be contracted with a person who is absent, the entry of a payment out can be effected with a party not present.
Emptio-venditio (sale) is contracted when agreement is reached on price. This is so notwithstanding the fact that the price may not yet have been paid and not even any arra may have been given. For what is given by way of arra is evidence of an emptio-venditio already contracted.1
The price must, however, be definite (pretium autem certum esse debet). For, on the other side of the line, if we come to an agreement that a thing be bought at Titius’s valuation (ut quanti Titius rem aestimaverit, tanti sit empta), Labeo held that the deal had no effect whatever. And Cassius approves Labeo’s opinion. Ofilius thought that even that was emptio-venditio. And Proculus followed Ofilius’s opinion.
Next, the price must consist in counted money (pretium in numerata pecunia consistere debet). There is, to be sure, a hot debate whether the price can consist in other things, as for example whether the price of something can be a slave or a toga or a parcel of land. Our teachers think that the price can consist in something other than money. Hence follows their regular tenet that an exchange of things makes a contract of emptio-venditio and is indeed the oldest form of emptio-venditio. By way of evidence they cite the Greek poet Homer, who at one place says this:
There the long-haired Achaeans bought wine,
Some with bronze, and some with shining steel,
Some with ox-hides, some with the very oxen,
And some with slaves [Iliad, 7.472–5].
The masters of the other school disagree. They say that permutatio (barter) is one thing and emptio-venditio is another and that it is not otherwise possible to settle the issue, when things have been exchanged, which thing should be seen as sold and which as given by way of price. Then, following on from there, they hold it absurd to count each thing as both sold and given by way of price. However, Caelius Sabinus says that if you have something on offer for sale, as for instance a farm, and I give say a slave as its price, the farm has clearly enough been sold and the slave given as price for the purpose of acquiring the farm.
Locatio-conductio is formed on similar principles. Thus, if no fixed reward (certa merces) is determined, no contract of locatio-conductio is made.
And from this arises the question whether locatio-conductio is formed when the reward is left to the decision of a third party, as where it is set at ‘as much as Titius’ valuation comes to’. For this reason it is a question whether a contract of locatio-conductio comes into existence where I give clothes to a cleaner to be cleaned or treated or to tailor for mending and I do not immediately fix any reward but instead intend to give whatever we later agree.
Again if I give something to you to use and in return receive from you another thing to use, there is a question whether that amounts to a contract of locatio-conductio.
The closeness between emptio-venditio and locatio-conductio is such that in some cases there is a standing debate as to which of the two contracts is made. For example, suppose a thing is located without limit of time (in perpetuum) which happens in relation to municipal estates, which are located on the express terms that so long as the public ground-rent (vectigal) is paid they will not be taken away from (p.273) either the conductor himself or from his heir. The prevailing view does make this locatio-conductio.
Next, suppose I deliver gladiators to you on the express terms that I will get 20 denarii for the sweat of each one who comes off harmless but 1000 denarii for each one killed or maimed. Is that emptio-venditio or locatio-conductio? The prevailing view is that there seems to be locatio-conductio of the ones who come off harmless but emptio-venditio for those killed or maimed. Events determine one classification, as though there is a conditional sale or hire of each one. For there is no longer any doubt that things can be sold and hired subject to conditions.
Again there is a question whether emptio-venditio is contracted, or rather locatio-conductio, where I agree with a goldsmith that he will make for me from his gold some rings of specified form and weight in return for, say, 200 denarii. Cassius holds that on the one hand there is emptio-venditio of the material while on the other there is locatio-conductio of the labour (operarum). But the view of very many jurists is that the contract is emptio-venditio. By contrast, if I give him my gold and a reward is fixed for the work, it is agreed that there is a contract of locatio-conductio.
It is usual to enter partnerships either of ‘all wealth (totorum bonorum)’ or of one line of business (alicuius negotii), as for instance in buying or selling slaves.
There was a great question whether societas could be formed on such terms that one party would take a larger share of the profit but a smaller share of loss. Quintus Mucius thought that that was contrary to the nature of societas. But Servius Sulpicius, whose view has prevailed, thought that such a partnership could be made, even to the extreme that, in his opinion, the contract could be entered on the term that one party should make no contribution at all to a loss but should take a share in profit, so long as his assistance seems so valuable that it is reasonable (aequum) for him to be admitted to the partnership subject to this agreement (hac pactione). In fact societas can also be entered, as is now accepted, on the term that one shall and the other shall not bring in capital, the profit nonetheless being shared. For often some person’s support (opera) is as valuable as money.
And this is certain, that, if nothing is agreed about the shares of profit and loss, then both plus and minus must be shared equally. But if shares are specified in one or other, as for example in profit, while there is silence as to the other, then the shares on the omitted side will be the same as specified on the other.
The societas continues to exist just so long as the parties remain of the same mind. But if one party renounces, the partnership is dissolved. Yet it is clear that if the renunciation is made in order to secure some approaching profit exclusively for himself, the party will be compelled to share that profit. Take, for example, the case where my partner of ‘all wealth’ is left heir to some other person and then renounces the partnership to take the profit of the inheritance solely for himself. On the other hand, if some profit comes to him other than the one which he snatched at then that (p.274) goes to him alone. On my side, though, anything at all acquired after his renunciation of the partnership is attributed to me.
Societas is also dissolved by the death of a partner, because one who makes a contract of partnership chooses for himself a particular person (certam personam).
It is said that societas is also dissolved by status-loss (capitis deminutio), on the ground that according to the reason of the civil law (civili ratione) status-loss is made equivalent to death. Yet the truth is that, if the parties still maintain the intention to be partners, a new partnership is understood to be set in train.
Again, if the goods of a partner are sold up by the state or by ordinary creditors, the partnership is dissolved. Yet this societas of which we are speaking (i.e. that which is contracted by mere agreement) is part of the ius gentium. It operates by virtue of common sense (naturali ratione) among all men.
There is, however, another genus of societas peculiar to Roman citizens. For in former times it was the case that when a paterfamilias died there arose among his immediate heirs (sui heredes) a kind of partnership which was at once statutory and natural. This was called ercto non cito, which is ‘ownership undivided’. For erctum means ownership (dominium), whence erus is a word for ‘owner’. And ciere, on the other hand, means ‘to divide’, whence also caedere (to strike) and secare (to cut).
Other people also, if they wanted to have this same societas, could achieve it before the praetor by means of a set form of words (certa legis actio). In this partnership between brothers or between other people entering a partnership in imitation of brothers (ad exemplum fratrum suorum), a special feature was that even one of the partners could by manumission free a jointly-owned slave and acquire him as a freedman of all of them, or again that one partner by mancipating a jointly owned asset could transfer the property in it to the person taking through mancipatio.
Mandatum occurs when we give a commission, whether in our own interest or in the interest of another (sive nostra gratia…sive aliena). And, so, whether I commission you to do my business or someone else’s business the obligation of mandate is contracted, and we will be bound to one another in that which in good faith I ought to do for you or you for me.
Now if I give you a commission on your own account (tua gratia) the mandate is quite without effect (supervacuum). For in respect of anything you are inclined to do on your own account you should rely on your own decision and not on my commission. And so if you have idle money at home and I exhort you to lend it out you will not have an action of mandate against me even if you lend it out as a mutuum to someone from whom you cannot get it back. Again, if I have encouraged you to buy something I will not be liable in an actio mandati even if it turns out to have been a bad bargain for you. This is carried to the length of raising a question whether a man is liable to the action of mandate if he commissions you to lend to Titius. Servius said not. In his view no obligation could arise in this case any more than in the case of a general mandate to lend out money. But we follow Sabinus’s (p.275) contrary opinion based on the fact that you would not have selected Titius to give credit to, had it not been for the mandate given to you.
It is agreed that if someone gives a mandate for a performance which is contra bonos mores (against good standards of behaviour), no obligation is contracted, as for example if I commissioned you to commit a theft or a wrongful contempt (iniuria).
Again, if someone gives a mandate to me for something to be done after my death, the mandate is ineffective, on the ground of the general rule laid down that an obligation cannot begin in the person of the heir.
Also, even a mandate properly contracted dissolves if revoked before there has been any action in reliance about it.
Again, if one of the parties, whether the one who gave the mandate or the one who accepted it, dies before the mandate has been acted upon, the contract is dissolved. But for policy reasons (utilitatis causa) it has been accepted that if the person who gives me a mandate dies and I nevertheless perform the mandate in ignorance of his death, I can bring the actio mandati. Otherwise a just and demonstrable want of knowledge would cause me loss. This conclusion is similar to that in which, as many hold, a debtor is discharged by paying my cashier after and in ignorance of the latter’s manumission. There, the strict logic of the law cannot explain this discharge since he has paid someone other than the person whom he was bound to pay.
If I give a mandate to someone and he exceeds the terms of the commission, I have an action of mandate against him to the extent that I have an interest in his performance of the commission, provided only that it was possible for him to fulfil it. But he cannot bring any action against me. Thus, if I have mandated you to, say, buy a farm for me for 100,000 sesterces and you have bought it for 150,000, you will have no action of mandate against me, even though you are willing to let me have the farm at the sum at which I mandated you to buy. Sabinus and Cassius were very strongly of that opinion. On the other hand, if you have bought for a lesser sum you will certainly have an action against me because one who commissions a purchase at 100,000 is obviously understood to commission a purchase for less if it be possible.
In conclusion we should note that whenever I give something to be done gratis in circumstances in which if I had fixed a reward a contract of locatio-conductio would have been made, then in those circumstances the action of mandate lies. Take, for example, the case in which I have given clothes to a cleaner for cleaning or some other treatment or to a tailor for mending.
That completes the exposition of the genera of obligation which arise from contract (quae ex contractu nascuntur). We must now take note that there is acquisition for us (adquiri nobis) not only through our own selves but also through those persons in our potestas (paternal power), manus (matrimonial power), or mancipium (patrimonial power).
There is also acquisition for us through free men and through slaves belonging to other people when possessed in good faith by us. But this occurs only in two cases. Those are, where they acquire ex operis suis (through their own labour) or ex re nostra (through our capital).
There is acquisition for us under the same two heads in the case in which we have a usufruct in a slave.
Now take the case of one who has the nudum ius Quiritium (bare Quiritary title, empty Quiritary title) in a slave. Even though he is ‘owner’ (dominus), yet he is understood as having less right in the thing even than the usufructuary or bona fide possessor. For it is the rule that there is no case in which the rights accrue to him. To such a length is this taken that some hold that, even if a slave expressly names him as the beneficiary of a stipulation or mancipation, still nothing is acquired for him.
There is no doubt that a slave in joint ownership acquires for his owners in the proportions of their ownership. The exception is that if he names one owner as the beneficiary of the stipulation or the mancipation he acquires solely for that named owner. As where he stipulates in these words: ‘Do you promise (spondes) conveyance to Titius my owner (dominus)?’ or takes my mancipation with this declaration: ‘I say that this res belongs by Quiritary title to Lucius Titius, my dominus, and let it be bought for him with this bronze and these bronze scales (Hanc rem ex iure Quiritium Lucii Titii domini mei esse aio, eaque ei empta esto hoc aere aeneaque libra)’.
This is a question: does the consequence which flows from naming one dominus also flow from a iussum (authority) given by one of the domini? Our teachers hold that an owner who gives a iussum becomes entitled exclusively in exactly the same way as where an owner is expressly named as the beneficiary of a stipulation by the slave or a mancipation to the slave. But the authorities of the other school hold that the entitlement accrues to each of them exactly as though no iussum had been given by any one of them.
An obligation is discharged immediately by the performance (solutione) of that which is owed. From this there arises a question. If something else is given instead with the consent of the creditor, is the debtor freed by automatic operation of law (ipso iure) as our authorities hold? Or, does he remain technically subject to the obligation at law with the effect that he must defend himself by an exceptio doli mali (defence of fraud) in the event of his being sued, which is the analysis of the authorities of the other school.
An obligation is also discharged by ‘verbal release (acceptilatio)’. ‘Verbal release’ is essentially an imaginary performance (solutio). Suppose that I owe you something under an obligation verbis, and you want to let me off. It can be done by your allowing me to make this declaration: ‘That which I promised to you, do you hold it in receipt (habesne acceptum)?’ And then your answering, ‘I do so hold it.’
By this means, as we have said, obligations verbis are discharged. But the rest are not. For there seemed to be a proper congruency in the rule that an obligation (p.277) created verbis should be capable of being dissolved verbis. However, it is possible to reduce anything owed on another basis into the form of a stipulation and then to effect a verbal release.
Though an acceptilatio is an imaginary performance (solutio) yet a woman cannot effect an acceptilatio without her guardian’s authority, albeit she can accept an actual performance without his authority.
There is a question whether given that there can be partial discharge by partial performance of what is owed, there can also be an acceptilatio limited to part.
There is another species of imaginary performance. This is discharge per aes et libram (by bronze and scales). This too has been recognised only for certain cases, as where something is owing as a result of a transaction per aes et libram or under a judgement.
In the presence of no less than five witnesses and a libripens (scale-holder), the person being freed must make this declaration: ‘Whereas I have been condemned to pay you such and such a sum of sestertii, with this bronze and these scales I now loose and free myself from you in that matter (me eo nomine a te solvo liberoque hoc aere aeneaque libra). I weigh out this pound for you as first and last, in accordance with the public statute.’ Next he strikes the scales with the bronze piece and gives it to the person from whom he is obtaining the release, as though thereby making his performance (veluti solvendi causa).
In the same way a legatee releases an heir from payment of a legacy constituted per damnationem. There is then this variation. Whereas the judgement-debtor signifies that he has been condemned (condemnatus) the heir declares that he has been ‘by will doomed’ (testamento damnatus). However, an heir can only be freed in this way from legacies of things reckoned by weight or number and then only when their quantum is fixed. Some hold that the same extends also to things handled by measure.
The next way in which an obligation is discharged is novation (novatio), as where I take a stipulation from Titius for what you owe me. For with the intervention of a new person a new obligation arises and the old is discharged, merged into the new. This can go very far, as where it happens that the new stipulation is ineffective but nevertheless discharges the old one by novation: for example, where I stipulate from Titius that what you owe me will be given to me after his death or where I take such a stipulation from a woman or pupillus without the authority of their guardian. In such a case I lose out. The earlier debtor is released, and the later obligation is void. A different legal conclusion follows if I take the stipulation from a slave. Then the earlier obligation subsists just as though I had later taken a stipulation from no person at all.
Suppose it is the same person to whom I return with a later stipulation. In that case a novation only happens if something new is added in the later stipulation, as (p.278) for instance where a condition or a time or a guarantor (sponsor) is either added or removed.
Yet what we have said about a sponsor is doubtful, because the authorities of the other school hold that the addition or removal of a sponsor does nothing to work a novation.
And what we have said about novation occurring if a condition is added is to be understood as meaning that it happens if the condition is fulfilled. On the other hand, if it fails the earlier obligation survives. But the question must be put whether one who sues on it should not be defeated by a defence of fraud or of contrary agreement (exceptione doli mali aut pacti conventi). For the parties’ intention would seem to have been that the claim should arise only if the condition of the later stipulation was fulfilled. The opinion of Servius Sulpicius was that there was an immediate novation even while the condition remained unfulfilled and, further, that if the condition failed no action could be brought on either ground, so that the matter was in that way lost. Following the same line, he gave a responsum that someone who stipulated from a slave for payment of what was owed to him by Lucius Titius did effect a novation and thus incur a loss, since no action can be brought against a slave. However, in both cases we employ a different rule; there is no more a novation here than if I stipulate from an alien for that which you owe me and, when he is outside the number of those people who share the word spondere, I put the question in the form ‘spondes?’
Next, an obligation is discharged by joinder of issue (litis contestatio), so long as the suit was through a iudicium legitimum (statutory trial). For in such a case the original obligation is discharged, and the defendant begins to be bound instead by the litis contestatio. Then, if he is condemned the litis contestatio is displaced and he begins to be bound on the basis of the judgement. This is the key to the writing of the old jurists to the effect that before litis contestatio the debtor ought to give; after litis contestatio he ought to be condemned; after condemnation he ought to satisfy the judgement.
It follows from this that, if I sue for what is owed to me through a iudicium legitimum, thereafter automatically (ipso iure) I cannot sue again for that matter, since my intentio will maintain in vain that he ought-at-civil-law to give. For with litis contestatio he ceased to be under that duty. It is different if I sue through a iudicium imperio continens (a trial based on magistral power). For there the obligation survives, and I can as a matter of technical law maintain another action later. But then I should be defeated by the defence that the matter has been decided or carried to trial (exceptio rei iudicatae vel in iudicium deductae). The difference between iudicia legitima and iudicia imperio continentia will be considered in the next book.
Let us now cross over to the obligations which arise from delict, as where someone has committed a theft, has seized goods, has inflicted a loss, or has been guilty of a contempt-iniuria. There is only one genus of obligation arising from these (p.279) types of conduct. By contrast, as we have set out above, obligations from contract divide into four genera.
But within theft (furtum) there are four genera according to Servius Sulpicius and Masurius Sabinus, namely; manifest theft, non-manifest theft, theft by receiving and theft by planting (manifestum, nec manifestum, conceptum, oblatum). According to Labeo there are two genera, namely manifest and non-manifest, since the others, receiving and planting, are really species of action emanating from theft rather than genera of theft. That certainly seems nearer the truth as will appear from the discussion below.
Manifest theft is, some have said, that which happens when the thief is seized while he is in the act (dum fit). Others, however, have gone further saying that it is enough that he is seized in the place of the theft (ubi fit); as for instance, if there is a theft of olives from a grove or grapes from a vineyard, the manifest stage would last so long as the thief remains in that grove or that vineyard, or, in the case of theft from a house, so long as he remains in that house. Others have gone even further and have said that the manifest stage lasts even so long as the thief is carrying the thing to the place to which he planned to take it (donec perferret). Yet others have gone even beyond this, making the theft manifest if and whenever the thief is seen carrying the thing (quandoque rem tenens). But this last opinion has been rejected. And the opinion of those who thought the theft manifest if the thief was seized while carrying the thing to the predetermined place (donec perferret) has also been disapproved, for the reason that it admits of a great doubt whether the test applies for only one day or for a number of days. This is an important issue since it is often the case that thieves intend to carry stolen goods from the district (civitas) of the theft to another district or province. Of the two other positions reported above each has its supporters, but most authorities incline to the second (i.e. ubi fit).
The definition of non-manifest theft can be inferred from what we have just said, since that which does not qualify as manifest is non-manifest.
Theft by receiving (furtum conceptum) is said to happen where a stolen thing is found with someone (apud aliquem) after a search in the presence of witnesses. For against such a person a special action is provided even though he may not be a thief. And the name of the action is actio furti concepti (action of theft-having-been-received).
Theft by planting (furtum oblatum) is said to happen where a stolen res is brought to you by someone and is received in by you, so long of course as there is the intention that it be taken in by you rather than by him who gave it to you. For a special action is provided for you, the receiver, against him, the planter, even though he may not be the thief. And the name of the action is actio furti oblati (action of theft-having-been-brought-in).
There is also an actio furti prohibiti (action of theft-having-been-prohibited) against a man who prevents one who wants to conduct a search from doing so.
(p.280) [Note on translation of furtum conceptum. In this translation the verb concipere is taken in the sense of ‘receive in’, ‘take in’. It is more usually (cf. Zulueta, 3.187) made to refer to the act of seizing done by the finder in his search, i.e. the con-capere is of the finder not of the person made liable. It is certainly true that 3.187 is easier to translate if the planter’s intention is that the res be ‘found on your premises’: apud te…conciperetur. The translation above supposes that the planter must intend to find the thing a home with the receiver rather than with himself, i.e. the focus of the intention is his desire to keep his own premises clear.]
The penalty for manifest theft was capital under the Twelve Tables; that is, a free man was flogged and assigned to the victim of this theft—it was a question among the old jurists whether he was made a slave by such assignment or was put in the position of an adiudicatus (a judgement debtor)—while a slave was similarly flogged and then despatched. But later the severity of this punishment was disapproved and an action for quadruple damages was set up by the praetor’s edict.
For non-manifest theft the Twelve Tables appointed a penalty of double damages, which the praetor also retains.
The Twelve Tables had a threefold penalty for furtum conceptum and furtum oblatum, and the praetor also retains those.
For furtum prohibitum the praetor introduced a quadruple penalty. Statute never provided any penalty under that head. It only provides that anyone wishing to conduct a search should so do naked save for a licium and should hold a dish (lanx). Under these conditions the statutory provision is that if the searcher finds something the theft is manifest.
There has been a question as to what a licium is. But the truth appears to be that it is a species of clothing to cover the private parts. All of which is wholly ridiculous. For anyone who wants to prevent a search will no less prevent a naked searcher than one who keeps his clothes on, all the more so if finding by a naked searcher leads to a higher penalty being imposed. Next, as between competing reasons for the lanx, either to keep the hands occupied to prevent planting or to receive the res when found, neither fits the case of a thing of such a kind or size as to be impossible either to plant or to put in the dish. At least no question is raised whether to satisfy the statute the lanx must be of some special material.
As a result of this provision that the theft is manifest in such a case there are writers who hold that there can be furtum manifestum either lege (by statute) or natura (by nature), statutory manifestness consisting in this case, natural manifestness in the case discussed earlier. But it is more true to say that there can only be natural manifest theft. For statute cannot make a thief who is non-manifest into a thief manifest, no more than it can make a person into a thief when he is not a thief at all or can turn someone into an adulterer or a murderer who is not an adulterer and not a murderer. What statute certainly can do is to make someone subject to the very (p.281) same penalty as if he had committed theft, adultery or murder even in a case in which in fact he committed none of these.
Furtum is committed not only when someone takes away a res belonging to another for the sake of having it for himself (non solum cum quis intercipiendi causa rem alienam amovet) but, taking the matter at its full width (generaliter), when someone handles something belonging to another without the owner’s consent (cum quis rem alienam invito domino contrectat).
And so if someone uses a thing which has been deposited with him he commits furtum. Again if one borrows a thing for use and then transfers it to some other use one incurs the obligation from theft, as where one borrows silver with a view to entertaining friends to dinner and then takes it on a journey to another place, or where one borrows a horse for riding and takes it further, a point made by the old jurists in the case of one who took a borrowed horse into battle.
It has been decided, however, that those who use borrowed things for different purposes only commit theft if they know that they are doing it without the owner’s consent and that he, if he knew, would not consent. But if they believe he would consent, they are outside the scope of a charge of theft. And this is certainly an excellent distinction because theft cannot be committed without wicked intent (furtum sine dolo malo non committitur).
But even if someone does think he is handling goods without their owner’s consent, when in fact the owner happens to want him to do so, it is said that no theft is committed. Hence this problem: Titius approaches my slave to get him to remove goods of mine and take them to him. The slave tells me. Wanting to catch Titius in the very act of committing the delict, I permit the slave to take some things to him. Is Titius liable for theft or servi corruptio (corruption of a slave) or neither? The question has elicited this responsum: he is liable for neither, not for theft because it was not without my consent that he handled the res and not for corruption of the slave because the slave was not made worse.
Sometimes there can be theft even of free people, as of our children in power, a wife in manu, a judgement-debtor, or a bonded gladiator.
And sometimes a man can steal his own goods, as where a debtor removes the res given to a creditor as a pledge, or if I carry off from a bona fide possessor a thing of mine which he is holding. Whence it is held to follow that if one’s own slave returns to one from someone who was holding him as a bona fide possessor then, if one hides him away, one commits theft.
Then there is an opposite case, where it is allowed to seize and usucapt someone else’s goods without it being held that theft is committed, as for instance—but only in a case where there is no heres necessarius (automatic heir)—by taking estate goods of which the heir has not yet obtained. If there is a heres necessarius this usucapio pro herede is excluded. Again, a debtor who has parted with a res through a fiduciary (p.282) mancipation or cession-at-law in the way discussed in our earlier book can possess and usucapt it without committing theft.
Sometimes someone comes under a liability to the actio furti without himself committing theft. Such a person is one by whose ‘help or plan’ (ope consilio) a theft is committed. In the number of such people fall: one who strikes coins from your hand so that another can get then, or obstructs you so that another can remove something from you, or one who chases off your sheep or cattle so that another may take them. The example used by the older jurists in their writing was driving off a herd with a red rag. But if something is done like this for fun and not to have a theft committed (per lasciviam et non data opera ut furtum committeretur) the question is whether an actio utilis should be given since the lex Aquilia, which was passed to deal with economic loss (de damno), penalises even non-intentional fault (culpa).
The action of theft lies for someone with an interest in the safety of the thing even though not necessarily its owner. By the same token it does not even lie to the owner if he has no such interest.
Whence it is agreed that a pledge-creditor can have the action of theft for a pledge removed, even to the extent that if it is removed by the owner himself, that is to say by the debtor, still the action of theft lies for the creditor.
Again if a cleaner receives clothes for cleaning at a fixed price or giving them some other treatment, or if a tailor takes in clothes to be mended, loss of them by theft gives the cleaner or tailor the action of theft and not the dominus. The reason is that here the owner has no interest in their not being lost, since the trial under locatio (hire) will allow him to recover fully from the cleaner or the tailor, so long as the cleaner or tailor have sufficient means to make good the value of his property. If they are insolvent the owner, unable to recover from them, can maintain the actio furti, since on these facts the owner again does have an interest in the safety of his res.
What we have said about cleaners and tailors applies also to borrowers-for-use (ad eum cui rem commodavimus). For as the former must guarantee safe-keeping (custodiam praestare) by reason of receiving for a reward, so here the borrower must do so by reason of the advantage which accrues to him in the user of the thing.
But a depositee does not guarantee safe-keeping and is only liable if he himself does something dolo malo (with wicked intent). Hence if the res is removed from him, the actio depositi will not make him liable on such facts for restoration of it, with the further consequence that the interest in the thing’s security does not attach to him. It follows that the depositee cannot use the actio furti and the owner can.
Finally we must notice that it has been a question whether a young person (impubes) commits theft by removing another’s property. Most hold that, since theft is based on intention, an impubes can only be under an obligation from this wrong if he is very near to puberty and on that account able to understand that he is doing wrong.
Someone who seizes goods of another is also liable for theft. For who more obviously handles another’s goods without his consent than one who seizes them with force? Hence it is rightly said that such a man is disgraceful even among thieves (improbum furem). But for this delict the praetor has introduced a special action whose name is actio vi bonorum raptorum (action of goods violently seized). It lies within a year for quadruple damages, thereafter for single damages. This action is capable of being used even where one res is seized, however small.
The action for wrongful loss is established by the lex Aquilia. That lex provides by section 1 that, if someone wrongfully kills someone else’s slave, male or female, or quadruped within the category of pecus (cattle), he is to be condemned to pay the owner the value of that thing at its highest in the preceding year.
A person is understood to kill wrongfully (iniuria = lit. ‘by a wrong’) when the death happens by his evil intent (dolus) or fault (culpa). There is no other statute which sanctions loss caused without wrongfulness (damnum quod sine iniuria datur). Hence no liability is imposed on one who inflicts loss without fault (culpa) or evil intent (dolus malus) but by some accident (casu).
In the action under this lex the valuation is made not only of the body but also of any extra loss which the owner suffers by the death of his slave over and above his price, as where my slave, instituted heir by someone, is killed before he enters on the inheritance with my authority. There the valuation is not only of his price but also of the inheritance which has been lost. Again, suppose one of a pair of twins or of a team of actors or musicians is killed. The valuation is made not only of the one who has been killed but also, in addition, of the depreciation of the survivors. The same applies where one of a pair of mules or a team of horses is killed.
When someone’s slave is killed, the owner has a free choice whether to make the killer the object of a criminal and capital charge or to pursue the remedy for loss under this lex.
When the lex says ‘the value of the thing at its highest in that year’, the effect is that, if a lame or one-eyed slave is killed who in that year was once whole, the valuation must proceed not as at the date of his death but as at the time in the year when his value was highest. From him it happens that sometimes one recovers more than one has suffered loss.
The second section of the lex provides an action against an adstipulator who discharges a debt in fraud of the stipulator, and it gives the action for the value in money of that matter.
It is obvious that this part of the lex is also about loss (damnum) and was introduced on that account, but the provision was not necessary because the action on mandate suffices for that purpose, unless one wants the doubling of damages which the lex allows in case of one who denies liability.
The third section provides for all other loss. Hence, if someone wounds a slave or quadruped in the category of pecus (cattle), or if someone wounds or kills a non- (p.284) pecus quadruped, such as a dog or a wild beast like a lion, an action lies under this section. In respect of all other animals and all inanimate things, loss wrongfully caused is remedied under this section. For the section establishes a remedy for anything ustum, fractum or ruptum (burnt, broken, burst). In fact the word rumpere (ruptum) would have covered all these cases. For by ‘ruptum’ is understood any type of corruption. Whence the word includes not only burning and breaking but also tearing, bruising, spilling, and any kind of vitiation or destruction or deterioration.
By this section the award is not the value in that year but the value in the nearest thirty days (in diebus triginta proximis). That is what the person causing the loss must pay. Note that the word ‘plurimi’ is not present. Some have therefore thought that the judge was free to make his valuation at the time in the thirty days when the res was at its highest value or when it stood lower. But Sabinus held that the word plurimi was to be implied into that part just as though it had been expressly added, the legislator having been content to make express mention of it only in the first section.
On the other hand it has been decided that the action on this statute lies only where someone has caused loss by his own bodily force (‘corpore suo’). Hence where loss is caused in another mode actiones utiles (policy-actions) are given, as where someone shuts up a slave or beast and starves them to death; or drives a beast of burden so hard as to cause it to damage itself; or, again, persuades another’s slave to climb a tree to go down a well so that in going up or down he falls and is killed or injured in some part of his body; or, again, if someone pushes another’s slave off a bridge or river bank and he drowns (though here it would not be difficult to say that he inflicts the loss corpore suo, in that he pushed).
Contempt-iniuria is committed not only when someone is struck with a fist or, say, a stick, or when he is even flogged; but also when a convicium (a verbal abuse) is offered to someone; or where a person advertises someone’s goods for a debtor’s selling up, knowing that he owes him nothing; or when someone writes a book or a poem to bring infamy on another; or where someone hangs about after a lady or a youth; and in short many other ways.
We are understood to suffer contempt-iniuria not only in our own selves but also through our children in our power and through our wives. Hence, if you commit a contempt-iniuria to my daughter who is married to Titius you will be exposed to actions for contempt-iniuria not only on her account but also on mine and on his.
No contempt-iniuria is understood to be committed to a slave, but only to his dominus through him. However, the same things done to our children or wives which cause us to suffer contempt-iniuria do not have that effect when done to slaves, but only acts which are of an aggravated kind, which are clearly in contempt of the owner as the law sees them, as where one man flogs another’s slave. And for this case a formula is proposed in the edict. But if someone offers a slave a convicium (p.285) (verbal offence) or strikes him with a fist, no pattern formula is provided and none is likely to be given to one who rashly seeks such a remedy.
The penalty for iniuriae under the Twelve Tables was: for membrum ruptum, retaliation; for os fractum aut collisum, 300 asses for a free man, and 150 asses for a slave; for all other iniuriae, 25 asses was the penalty established. And it seemed in those times of great poverty that those pecuniary penalties were sufficient.
But now the law we use is different. The praetor allows us to put our own value on the iniuria, and then the judge condemns either for the sum which we have fixed or for less, as seems right to him. But since the praetor customarily sets the value of aggravated iniuriae himself, if once he has set the sum for bail (vadimonium) we then put the same sum in our formula as the taxatio [the clause specifying the maximum], the iudex, though he can go lower, will generally out of respect for the praetor’s authority not be so bold as to reduce the condemnation below that figure.
Aggravated contempt-iniuria are so qualified either ex facto, as where someone is wounded by someone or beaten up or struck with clubs, or ex loco, as where the contempt-iniuria is committed in the theatre or in the forum, or ex persona, as where a magistrate is the victim or a senator suffers a contempt-iniuria from a commoner (ab humili persona).
The next division puts obligations into four species: aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex maleficio (for they are either from contract or quasi from contract or from wrongdoing or quasi from wrongdoing).
Institutes, 3.27: On Obligations Quasi ex Contractu
We have finished examining the types of contract. Let us turn to those obligations which cannot properly be said to arise from a contract but which can however, in that they do not owe their substance to a delict, be understood as arising quasi ex contractu.
Thus, when someone intervenes in the affairs of another when he is away (absentis negotia gesserit) actions arise in each direction between them called the actiones negotiorum gestorum (the actions for intervention in another’s affairs). The person to whom the affair belongs (dominus rei gestae) has the direct action, and the intervener (gestor) has the counter action for intervention. It is obvious that these actions do not properly arise from any contract. For they come into being in the very case in which anyone puts himself forward to conduct another’s affairs without being given any mandate to do it. It follows that those whose business is done come under an obligation even when unaware of what is happening (etiam ignorantes). And (p.286) this was established as good public policy (utilitatis causa) to stop the affairs of the absent running to ruin if some sudden urgency drove them to leave without entrusting to someone the management of their interests. Certainly nobody would look after them without an action to recover his outlay. But, just as an intervener who has usefully conducted the business holds the other to whom it belongs under an obligation to him, so vice versa he himself must also render an account of his management. And for that case he is obliged to answer to the highest standard of diligence (ad exactissimam diligentiam). And it is not enough for him to show such attention as he usually shows in his own affairs if it happens that another more attentive person would have conducted the intervention more successfully.
Furthermore guardians made liable in the trial arising from guardianship also cannot properly be understood as coming under an obligation by virtue of contract (for there is no deal at all contracted between guardian and ward). But, since a guardian’s liability is certainly not delictual, he is taken to become liable quasi ex contractu. Here too the actions are reciprocal. For not only does a ward have the action on guardianship (actio tutelae) against his guardian, but also the guardian from the other side has the counter-action on guardianship against the ward for the case in which he has spent anything in the ward’s interest or incurred an obligation for him or charged his own property to the ward’s creditor.
Again if some asset is shared between people who have not agreed to be partners (sine societate), as where it is bequeathed or given to them both equally, each is liable to the other in the action for division of shared property (actio communi dividundo) as, say, because he alone took the fruits of the thing or because his socius bore the burden of necessary expenditure upon it. This obligation cannot be understood as properly deriving from contract in that no terms are agreed between them. Yet, in that the liability does not come from delict, it seems to arise quasi ex contractu.
The same legal analysis applies where someone comes under an obligation to a co-heir on similar grounds in the action for division of an inheritance (actio familiae erciscundae).
An heir also cannot be understood as incurring a properly contractual obligation to pay legacies. For the legatee cannot rightly be described as having concluded any deal either with the heir or with the deceased. But because his obligation is not born of wrongdoing his debt is understood to arise quasi ex contractu.
Again the person to whom a payment which is not due is mistakenly made is taken to incur a debt quasi ex contractu. To such an extent it is true that he does not properly come under a contractual obligation that if we stuck to a more logical analysis we might rather say, as was mentioned earlier, that his obligation arises ex distractu, not ex contractu [from discharge rather than from contract—but the word-play cannot be reproduced in English: ‘from un-contract rather than contract’]. For one who gives money with the intention of performing a duty appears to give it for this purpose, namely to untie rather than to tie up a transaction. Yet (p.287) despite this the recipient comes under an obligation just as though a loan (mutuum) had been given to him. Which is why the condictio lies against him.
In some cases it is not possible to recover a payment mistakenly made when not due. Thus the older jurists made it a maxim that wherever denial doubled liability (ex quibus causis infitiando lis crescit) in those cases there would be no recovery of what was paid when not owed, as for instance under the lex Aquilia and under legacy. But those older jurists applied this to only those legacies which were left to someone in exact certainty by the imposition of an obligation on the heir (quae certa constitute per damnationem cuicumque fuerunt legata). However, our enactment has made all legacies and trusts by will into one kind and has applied this increase of liability to all such legacies and trusts but not in respect of all recipients. The rule now applies only where the legacy or trust is to holy churches or other sacred places endowed for the sake of religion and piety. Such gifts once paid cannot be recovered if they turn out not to have been due.
Institutes, 4.5: On Obligations Arising Quasi ex Delicto
If a judge ‘makes a case his own’ (si iudex litem suam fecerit) he does not appear to come under an obligation which is properly ex maleficio (from wrongdoing). But his obligation is also not contractual and he is certainly seen to have incurred some blame even though want of knowledge (et utique peccasse aliquid intellegitur licet per imprudentiam). For those reasons he seems to become liable as though from wrongdoing. And he will have to bear such penalty as the conscience of the court deems fair on the facts of his case.
Again if something is thrown down or poured down from a dwelling in such a way as to harm someone, the person whose dwelling it is, whether he owns it, hires it or lives there free, is taken to come under an obligation as though from wrongdoing. And the reason why he is not properly said to incur an obligation as though from wrongdoing is that frequently his liability arises from the fault (culpa) of someone else, perhaps of a slave or a child. Similar to his case is that of the man who, in a place where people commonly pass, has something placed or hung in such a way that if it fell it could harm someone. For that case a penalty of ten aurei is laid down. On the other hand for something thrown or poured an action is given for double the value of the loss caused, while in the case of a freeman there is a penalty of fifty aurei if he is killed and an action for as much as seems fair to the judge on the facts if he survives but is injured. And the judge should take into account the fees paid to a doctor and all the other expenses of the cure as well as the earnings lost or to be lost because of the faculty which has been impaired.
If a son in power lives separately from his paterfamilias and something is thrown or poured from his dwelling or he has something placed or hung so as to be dangerous if it falls, Julian held that there is no action maintainable against the father but that the suit must be brought against the filiusfamilias himself. The same applies in the case of a filius who is a judge and makes the case his own.
Again where any fraud or theft is committed in a ship, inn or stable the owner running the business (exercitor) comes under a liability quasi ex maleficio, so long as the maleficium is in fact not his own but that of one of the people through whose labour he manages the ship, inn or stable. The reason this is quasi ex maleficio is that the action given against him for this case is not based on contract and yet he is to a certain degree blameworthy in relying on the service of bad men. The action for these cases is in factum and is available to the heir of the person to whom the claim accrues but not against the heir of the person against whom it accrues.
(1) An alternative translation reads: ‘Emptio-venditio is contracted when agreement is reached on the price. It does not matter that the price has not been paid or that no arra has even been given. For what is given by way of arra is evidence of an emptio-venditio already contracted.’