Justinian, Institutes (J. B. Moyle, trans.)
OF THE DEVOLUTION OF INHERITANCES ON INTESTACY
A man is said to die intestate who either has made no will at all, or has made one which is invalid, or if one which has been duly executed has been subsequently revoked, or rescinded, or finally, if no one accepts as heir under the testament.
1The inheritances of intestate persons go first, by the statute of the Twelve Tables, to family heirs; 2and family heirs, as we said above, are those who were in the power of the deceased at the time of his death, such as a son or daughter, a grandchild by a son, or a great-grandchild by such grandchild if a male, and this whether the relationship be natural or adoptive. Among them must also be reckoned children who, though not born in lawful wedlock, have been inscribed members of the curia according to the tenor of the imperial constitutions relating to them, and thus acquire the rights of family heirs, or who come within the terms of our constitutions by which we have enacted that, if any one shall cohabit with a woman whom he might have lawfully married, but for whom he did not at first feel marital affection, and shall after begetting children by her begin to feel such affection and formally marry her, and then have by her sons or daughters, not only shall those be lawful children and in their father’s power who were born after the settlement of the dowry, but also those born before, to whom in reality the later born ones owed their legitimacy; and we have provided that this rule shall hold even though no children are born after the execution of the dowry deed, or if, having been born, they are dead. It is to be observed, however, that a grandchild or great-grandchild is not a family heir, unless the person in the preceding degree has ceased to be in the power of the parent, either through having died, or by some other means, such as emancipation; for if at the time of a man’s decease a son is in his power, a grandson by that son cannot be a family heir, and the case is exactly the same with more remote descendants. Children too who are born after the ancestor’s death, and who would have been in his power had they been born during his lifetime, are family heirs. 3Family heirs succeed even though ignorant of their title, and they can take upon an intestacy even though insane, because whenever the law vests property in a person, even when he is ignorant of his title, it equally vests it in him if insane. Thus, immediately on the parent’s death, the ownership is as it were continued without any break, so that pupils who are family heirs do not require their guardian’s sanction in order to succeed, for inheritances go to such heirs even though ignorant of their title; and similarly an insane family heir does not require his curator’s consent in order to succeed, but takes by operation of law. 4Sometimes, however, a family heir succeeds in this way to his parent, even though not in the latter’s power at the time of his decease, as where a person returns from captivity after his father’s death, this being the effect of the law of postliminium. 5And sometimes conversely a man is not a family heir although in the power of the deceased at the time of his death, as where the latter after his death is adjudged to have been guilty of treason, and his memory is thereby branded with infamy: such a person is unable to have a family heir, for his property is confiscated to the treasury, though one who would otherwise have succeeded him may be said to have in law been a family heir, and ceased to be such. 6Where there is a son or daughter, and a grandchild by another son, these are called together to the inheritance, nor does the nearer in degree exclude the more remote, for it seems just that grandchildren should represent their father and take his place in the succession. Similarly a grandchild by a son, and a great-grandchild by a grandson are called to the inheritance together. And as it was thought just that grandchildren and great-grandchildren should represent their father, it seemed consistent that the inheritance should be divided by the number of stems, and not by the number of individuals, so that a son should take one-half, and grandchildren by another son the other: or, if two sons left children, that a single grandchild, or two grandchildren by one son, should take one-half, and three or four grandchildren by the other son the other. 7In ascertaining whether, in any particular case, so and so is a family heir, one ought to regard only that moment of time at which it first was certain that the deceased died intestate, including hereunder the case of no one’s accepting under the will. For instance, if a son be disinherited and a stranger instituted heir, and the son die after the decease of his father, but before it is certain that the heir instituted in the will either will not or cannot take the inheritance, a grandson will take as family heir to his grandfather, because he is the only descendant in existence when first it is certain that the ancestor died intestate; and of this there can be no doubt. 8A grandson born after, though conceived before, his grandfather’s death, whose father dies in the interval between the grandfather’s decease and desertion of the latter’s will through failure of the instituted heir to take, is family heir to his grandfather; though it is obvious that if (other circumstances remaining the same) he is conceived as well as born after the grandfather’s decease, he is no family heir, because he was never connected with his grandfather by any tie of relationship; exactly as a person adopted by an emancipated son is not among the children of, and therefore cannot be family heir to, the latter’s father. And such persons, not being children in relation to the inheritance, cannot apply either for possession of the goods of the deceased as next of kin. So much for family heirs.
9As to emancipated children, they have, by the civil law, no rights to succeed to an intestate; for having ceased to be in the power of their parent, they are not family heirs, nor are they called by any other title in the statute of the Twelve Tables. The praetor, however, following natural equity, gives them possession of the goods of the deceased merely as children, exactly as if they had been in his power at the time of his death, and this whether they stand alone or whether there are family heirs as well. Consequently, if a man die leaving two children, one emancipated, and the other in his power at the time of his decease, the latter is sole heir by the civil law, as being the only family heir; but through the former’s being admitted to part of the inheritance by the indulgence of the praetor, the family heir becomes heir to part of the inheritance only. 10Emancipated children, however, who have given themselves in adoption are not thus admitted, under the title of children, to share the property of their natural father, if at the time of his decease they are in their adoptive family; though it is otherwise if they are emancipated during his lifetime by their adoptive father, for then they are admitted as if they had been emancipated by him and had never been in an adoptive family, while, conversely, as regards their adoptive father, they are henceforth regarded as strangers. If, however, they are emancipated by the adoptive after the death of the natural father, as regards the former they are strangers all the same, and yet do not acquire the rank of children as regards succession to the property of the latter; the reason of this rule being the injustice of putting it within the power of an adoptive father to determine to whom the property of the natural father shall belong, whether to his children or to his agnates. 11Adoptive are thus not so well off as natural children in respect of rights of succession: for by the indulgence of the praetor the latter retain their rank as children even after emancipation, although they lose it by the civil law; while the former, if emancipated, are not assisted even by the praetor. And there is nothing wrong in their being thus differently treated, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title, and natural descendants, though on emancipation they cease to be family heirs, cannot cease to be children or grandchildren; whereas on the other hand adoptive children are regarded as strangers after emancipation, because they lose the title and name of son or daughter, which they have acquired by a civil change, namely adoption, by another civil change, namely emancipation. 12And the rule is the same in the possession of goods against the will which the praetor promises to children who are passed over in their parent’s testament, that is to say, are neither instituted nor duly disinherited; for the praetor calls to this possession children who were in their parent’s power at the time of his decease, or emancipated, but excludes those who at that time were in an adoptive family: still less does he here admit adoptive children emancipated by their adoptive father, for by emancipation they cease entirely to be children of his. 13We should observe, however, that though children who are in an adoptive family, or who are emancipated by their adoptive after the decease of their natural father, are not admitted on the death of the latter intestate by that part of the edict by which children are called to the possession of goods, they are called by another part, namely that which admits the cognates of the deceased, who, however, come in only if there are no family heirs, emancipated children, or agnates to take before them: for the praetor prefers children, whether family heirs or emancipated, to all other claimants, ranking in the second degree statutory successors, and in the third cognates, or next of kin. 14All these rules, however, which to our predecessors were sufficient, have received some emendation by the constitution which we have enacted relative to persons who have been given in adoption to others by their natural fathers; for we found cases in which sons by entering an adoptive family forfeited their right of succeeding their natural parents, and then, the tie of adoption being easily broken by emancipation, lost all title to succeed their adoptive parents as well. We have corrected this, in our usual manner, by a constitution which enacts that, when a natural father gives his son in adoption to another person, the son’s rights shall remain the same in every particular as if he had continued in the power of his natural father, and the adoption had never taken place, except only that he shall be able to succeed his adoptive father should he die intestate. If, however, the latter makes a will, the son cannot obtain any part of the inheritance either by the civil or by the praetorian law, that is to say, either by impeaching the will as unduteous or by applying for possession against the will; for, being related by no tie of blood, the adoptive father is not bound either to institute him heir or to disinherit him, even though he has been adopted, in accordance with the SC. Afinianum, from among three brothers; for, even under these circumstances, he is not entitled to a fourth of what he might have taken on intestacy, nor has he any action for its recovery. We have, however, by our constitution excepted persons adopted by natural ascendants, for between them and their adopters there is the natural tie of blood as well as the civil tie of adoption, and therefore in this case we have preserved the older law, as also in that of an independent person giving himself in adrogation: all of which enactment can be gathered in its special details from the tenor of the aforesaid constitution.
15By the ancient law too, which favoured the descent through males, those grandchildren only were called as family heirs, and preferred to agnates, who were related to the grandfather in this way: grandchildren by daughters, and great-grandchildren by granddaughters, whom it regarded only as cognates, being called after the agnates in succession to their maternal grandfather or great-grandfather, or their grandmother or great-grandmother, whether paternal or maternal. But the Emperors would not allow so unnatural a wrong to endure without sufficient correction, and accordingly, as people are, and are called, grandchildren and great-grandchildren of a person whether they trace their descent through males or through females, they placed them altogether in the same rank and order of succession. In order, however, to bestow some privilege on those who had in their favour the provisions of the ancient law as well as natural right, they determined that grandchildren, great-grandchildren, and others who traced their descent through a female should have their portion of the inheritance diminished by receiving less by one-third than their mother or grandmother would have taken, or than their father or grandfather, paternal or maternal, when the deceased, whose inheritance was in question, was a woman; and they excluded the agnates, if such descendants claimed the inheritance, even though they stood alone. Thus, exactly as the statute of the Twelve Tables calls the grandchildren and great-grandchildren to represent their deceased father in the succession to their grandfather, so the imperial legislation substitutes them for their deceased mother or grandmother, subject to the aforesaid deduction of a third part of the share which she personally would have taken. 16As, however, there was still some question as to the relative rights of such grandchildren and of the agnates, who on the authority of a certain constitution claimed a fourth part of the deceased’s estate, we have repealed the said enactment, and not permitted its insertion in our Code from that of Theodosius. By the constitution which we have published, and by which we have altogether deprived it of validity, we have provided that in case of the survival of grandchildren by a daughter, great-grandchildren by a granddaughter, or more remote descendants related through a female, the agnates shall have no claim to any part of the estate of the deceased, that collaterals may no longer be preferred to lineal descendants; which constitution we hereby re-enact with all its force from the date originally determined: provided always, as we direct, that the inheritance shall be divided between sons and grandchildren by a daughter, or between all the grandchildren, and other more remote descendants, according to stocks, and not by counting heads, on the principle observed by the ancient law in dividing an inheritance between sons and grandchildren by a son, the issue obtaining without any diminution the portion which would have belonged to their mother or father, grandmother or grandfather: so that if, for instance, there be one or two children by one stock, and three or four by another, the one or two, and the three or four, shall together take respectively one moiety of the inheritance.
OF THE STATUTORY SUCCESSION OF AGNATES
If there is no family heir, nor any of those persons called to the succession along with family heirs by the praetor or the imperial legislation, to take the inheritance in any way, it devolves, by the statute of the Twelve Tables, on the nearest agnate.
1Agnates, as we have observed in the first book, are those cognates who trace their relationship through males, or, in other words, who are cognate through their respective fathers. Thus, brothers by the same father are agnates, whether by the same mother or not, and are called consanguinei; an uncle is agnate to his brother’s son, and vice versa; and the children of brothers by the same father, who are called consobrini, are one another’s agnates, so that it is easy to arrive at various degrees of agnation. Children who are born after their father’s decease acquire the rights of kinship exactly as if they had been born before that event. But the law does not give the inheritance to all the agnates, but only to those who were nearest in degree at the moment when it was first certain that the deceased died intestate.
2The relation of agnation can also be established by adoption, for instance, between a man’s own sons and those whom he has adopted, all of whom are properly called consanguinei in relation to one another. So, too, if your brother, or your paternal uncle, or even a more remote agnate, adopts any one, that person undoubtedly becomes one of your agnates.
3Male agnates have reciprocal rights of succession, however remote the degree of relationship: but the rule as regards females, on the other hand, was that they could not succeed as agnates to any one more remotely related to them than a brother, while they themselves could be succeeded by their male agnates, however distant the connexion: thus you, if a male, could take the inheritance of a daughter either of your brother or of your paternal uncle, or of your paternal aunt, but she could not take yours; the reason of this distinction being the seeming expediency of successions devolving as much as possible on males. But as it was most unjust that such females should be as completely excluded as if they were strangers, the praetor admits them to the possession of goods promised in that part of the edict in which mere natural kinship is recognised as a title to succession, under which they take provided there is no agnate, or other cognate of a nearer degree of relationship. Now these distinctions were in no way due to the statute of the Twelve Tables, which, with the simplicity proper to all legislation, conferred reciprocal rights of succession on all agnates alike, whether males or females, and excluded no degree by reason merely of its remoteness, after the analogy of family heirs; but it was introduced by the jurists who came between the Twelve Tables and the imperial legislation, and who with their legal subtleties and refinements excluded females other than sisters altogether from agnatic succession. And no other scheme of succession was in those times heard of, until the praetors, by gradually mitigating to the best of their ability the harshness of the civil law, or by filling up voids in the old system, provided through their edicts a new one. Mere cognation was thus in its various degrees recognised as a title to succession, and the praetors gave relief to such females through the possession of goods, which they promised to them in that part of the edict by which cognates are called to the succession. We, however, have followed the Twelve Tables in this department of law, and adhered to their principles: and, while we commend the praetors for their sense of equity, we cannot hold that their remedy was adequate; for when the degree of natural relationship was the same, and when the civil title of agnation was conferred by the older law on males and females alike, why should males be allowed to succeed all their agnates, and women (except sisters) be debarred from succeeding any? Accordingly, we have restored the old rules in their integrity, and made the law on this subject an exact copy of the Twelve Tables, by enacting, in our constitution, that all statutory
successors, that is, persons tracing their descent from the deceased through males, shall be called alike to the succession as agnates on an intestacy, whether they be males or females, according to their proximity of degree; and that no females shall be excluded on the pretence that none but sisters have the right of succeeding by the title of kinship.
4By an addition to the same enactment we have deemed it right to transfer one, though only one, degree of cognates into the ranks of those who succeed by a statutory title, in order that not only the children of a brother may be called, as we have just explained, to the succession of their paternal uncle, but that the children of a sister too, even though only of the half blood on either side (but not her more remote descendants), may share with the former the inheritance of their uncle; so that, on the decease of a man who is paternal uncle to his brother’s children, and maternal uncle to those of his sister, the nephews and nieces on either side will now succeed him alike, provided, of course, that the brother and sister do not survive, exactly as if they all traced their relationship through males, and thus all had a statutory title. But if the deceased leaves brothers and sisters who accept the inheritance, the remoter degrees are altogether excluded, the division in this case being made individually, that is to say, by counting heads, not stocks.
5If there are several degrees of agnates, the statute of the Twelve Tables clearly calls only the nearest, so that if, for instance, the deceased leaves a brother, and a nephew by another brother deceased, or a paternal uncle, the brother is preferred. And although that statute, in speaking of the nearest agnate, uses the singular number, there is no doubt that if there are several of the same degree they are all admitted: for though properly one can speak of the nearest degree
only when there are several, yet it is certain that even though all the agnates are in the same degree the inheritance belongs to them.
6If a man dies without having made a will at all, the agnate who takes is the one who was nearest at the time of the death of the deceased. But when a man dies, having made a will, the agnate who takes (if one is to take at all) is the one who is nearest when first it becomes certain that no one will accept the inheritance under the testament; for until that moment the deceased cannot properly be said to have died intestate at all, and this period of uncertainty is sometimes a long one, so that it not unfrequently happens that through the death, during it, of a nearer agnate, another becomes nearest who was not so at the death of the testator.
7In agnatic succession the established rule was that the right of accepting the inheritance could not pass from a nearer to a more remote degree; in other words, that if the nearest agnate, who, as we have described, is called to the inheritance, either refuses it or dies before acceptance, the agnates of the next grade have no claim to admittance under the Twelve Tables. This hard rule again the praetors did not leave entirely without correction, though their remedy, which consisted in the admission of such persons, since they were excluded from the rights of agnation, in the rank of cognates, was inadequate. But we, in our desire to have the law as complete as possible, have enacted in the constitution which in our clemency we have issued respecting the rights of patrons, that in agnatic succession the transference of the rights to accept from a nearer to a remoter degree shall not be refused: for it was most absurd that agnates should be denied a privilege which the praetor had conferred on cognates, especially as the burden of guardianship fell on the second degree of agnates if there was a failure of the first, the principle which we have now sanctioned being admitted so far as it imposed burdens, but rejected so far as it conferred a boon.
8To statutory succession the ascendant too is none the less called who emancipates a child, grandchild, or remoter descendant under a fiduciary agreement, which by our constitution is now implied in every emancipation. Among the ancients the rule was different, for the parent acquired no rights of succession unless he had entered into a special agreement of trust to that effect prior to the emancipation.
OF THE SENATUSCONSULTUM TERTULLIANUM
So strict were the rules of the statute of the Twelve Tables in preferring the issue of males, and excluding those who traced their relationship through females, that they did not confer reciprocal rights of inheritance even on a mother and her children, though the praetors called them to succeed one another as next of kin by promising them the possession of goods in the class of cognates. 1But this narrowness of the law was afterwards amended, the Emperor Claudius being the first to confer on a mother, as a consolation for the loss of her children, a statutory right to their inheritance, 2and afterwards, very full provisions were made by the SC. Tertullianum, enacted in the time of the Emperor Hadrian, and relating to the melancholy succession of children by their mothers, though not by their grandmothers, whereby it was provided that a freeborn woman who had three or a freedwoman who had four children should be entitled to succeed to the goods of her children who died intestate, even though herself under paternal power; though, in this latter case, she cannot accept the inheritance except by the direction of the person in whose power she is. 3Children of the deceased who are or who rank as family heirs, whether in the first or any other degree, are preferred to the mother, and even where the deceased is a woman her children by imperial constitutions have a prior claim to the mother, that is, to their own grandmother. Again, the father of the deceased is preferred to the mother, but not so the paternal grandfather or great-grandfather, at least when it is between them only that the question arises who is entitled. A brother by the same father excluded the mother from the succession to both sons and daughters, but a sister by the same father came in equally with the mother; and where there were both a brother and a sister by the same father, as well as a mother who was entitled by number of children, the brother excluded the mother, and divided the inheritance in equal moieties with the sister. 4By a constitution, however, which we have placed in the Code made illustrious by our name, we have deemed it right to afford relief to the mother, in consideration of natural justice, of the pains of childbirth, and of the danger and even death which mothers often incur in this manner; for which reason we have judged it a sin that they should be prejudiced by a circumstance which is entirely fortuitous. For if a freeborn woman had not borne three, or a freedwoman four children, she was undeservedly defrauded of the succession to her own offspring; and yet what fault had she committed in bearing few rather than many children? Accordingly, we have conferred on mothers a full statutory right of succession to their children, whether they be freeborn or freedwoman, although they may not have given birth to three or four children, and even if they have had no other child than the one in question deceased. 5The earlier constitutions, in their review of statutory rights of succession, were in some points favourable, in others unfavourable, to mothers; thus in some cases they did not call them to the whole inheritance of their children, but deducted a third in favour of certain other persons with a statutory title, while in others they did exactly the opposite. We, however, have determined to follow a straightforward and simple path, and, preferring the mother to all other persons with a statutory title, to give her the entire succession of her sons, without deduction in favour of any other persons except a brother or sister, whether by the same father as the deceased, or possessing rights of cognation only; so that, as we have preferred the mother to all with a statutory title, so we call to the inheritance, along with her, all brothers and sisters of the deceased, whether statutorily entitled or not: provided that, if the only surviving relatives of the deceased are sisters, agnatic or cognatic, and a mother, the latter shall have one-half, and all the sisters together the other half of the inheritance; if a mother and a brother or brothers, with or without sisters agnatic or cognatic, the inheritance shall be divided among mother, brothers, and sisters in equal portions. 6But, while we are legislating for mothers, we ought also to bestow some thought on their offspring; and accordingly mothers should observe that if they do not apply within a year for guardians for their children, either originally or in lieu of those who have been removed or excused, they will forfeit their title to succeed such children if they die under the age of puberty. 7A mother can succeed her child under the SC. Tertullianum even though the child be illegitimate.
OF THE SENATUSCONSULTUM ORFITIANUM
Conversely, children were admitted to succeed their mother on her death intestate by the SC. Orfitianum, passed in the time of the Emperor Marcus, when Orfitus and Rufus were consuls: by which a statutory right of succession was conferred on both sons and daughters, even though in the power of another, in preference to their deceased mother’s brothers and sisters and other agnates. 1As, however, grandsons were not called by this senatusconsult with a statutory title to the succession of their grandmothers, this was subsequently amended by imperial constitutions, providing that grandchildren should be called to inherit exactly like children. 2It is to be observed that rights of succession such as those conferred by the SC. Tertullianum and Orfitianum are not extinguished by loss of status, owing to the rule that rights of succession conferred by later statutes are not destroyed in this way, but only such as are conferred by the statute of the Twelve Tables; 3and finally that under the latter of these two enactments even illegitimate children are admitted to their mother’s inheritance.
4If there are several heirs with a statutory title, some of whom do not accept, or are prevented from doing so by death or some other cause, their shares accrue in equal proportions to those who do accept the inheritance, or to their heirs, supposing they die before the failure of the others to take.
OF THE SUCCESSION OF COGNATES
After family heirs, and persons who by the praetor and the imperial legislation are ranked as such, and after persons statutorily entitled, among whom are the agnates and those whom the aforesaid senatusconsults and our constitution have raised to the rank of agnates, the praetor calls the nearest cognates. 1In this class or order natural or blood relationship alone is considered: for agnates who have undergone loss of status and their children, though not regarded as having a statutory title under the statute of the Twelve Tables, are called by the praetor in the third order of the succession. The sole exceptions to this rule are emancipated brothers and sisters (not, however, including their children), who are admitted by the statute of Anastasius to the statutory succession of a brother or sister along with other brothers and sisters, though not in equal shares with them, but with some deduction, the amount of which can easily be ascertained from the terms of the constitution itself. But to other agnates of remoter degrees, even though they have not undergone loss of status, and still more to cognates, they are preferred by the aforesaid statute. 2Again, collateral relations connected with the deceased only by the female line are called to the succession by the praetor in the third order as cognates; 3and children who are in an adoptive family are admitted in this order to the inheritance of their natural parent. 4It is clear that illegitimate children can have no agnates, for in law they have no father, and it is through the father that agnatic relationship is traced, while cognatic relationship is traced through the mother as well. On the same principle they cannot be held to be consanguinei of one another, for consanguinei are in a way agnatically related: consequently, they are connected with one another only as cognates, and in the same way too with the cognates of their mother. Accordingly, they can succeed to the possession of goods under that part of the Edict in which cognates are called by the title of mere kinship. 5In this place too we should observe that a person who claims as an agnate can be admitted to the inheritance, even though ten degrees removed from the deceased, both by the statute of the Twelve Tables, and by the Edict in which the praetor promises the possession of goods to heirs statutorily entitled: but on the ground of mere natural kinship the praetor promises possession of goods to those cognates only who are within the sixth degree; the only persons in the seventh degree whom he admits as cognates being the children of a second cousin of the deceased.
OF THE DEGREES OF COGNATION
It is here necessary to explain the way in which the degrees of natural relationship are reckoned. In the first place it is to be observed that they can be counted either upwards, or downwards, or crosswise, that is to say, collaterally. Relations in the ascending line are parents, in the descending line, children: collateral relations are brothers and sisters, their children, and similarly uncles and aunts paternal and maternal. In the ascending and descending lines a man’s nearest cognate may be related to him in the first degree; in the collateral line he cannot be nearer to him than the second. 1Relations in the first degree, reckoning upwards, are the father and mother; reckoning downwards, the son and daughter. 2Those in the second degree, upwards, are grandfather and grandmother; downwards, grandson and granddaughter; 3and in the collateral line brother and sister. In the third degree, upwards, are the great-grandfather and great-grandmother; downwards, the great-grandson and great-granddaughter; in the collateral line, the sons and daughters of a brother or sister, and also uncles and aunts paternal and maternal. The father’s brother is called patruus, in Greek πατρῷος, the mother’s brother avunculus, in Greek specifically μητρῷος, though the term θεῖος is used indifferently to indicate either. The father’s sister is called amita, the mother’s matertera; both go in Greek by the name θεία, or, with some, τιτθίς. 4In the fourth degree, upwards, are the great-great-grandfather and the great-great-grandmother; downwards, the great-great-grandson and the great-great-granddaughter; in the collateral line, the paternal great-uncle and great-aunt, that is to say, the grandfather’s brother and sister: the same relations on the grandmother’s side, that is to say, her brother and sister: and first cousins male and female, that is, children of brothers and sisters in relation to one another. The children of two sisters, in relation to one another, are properly called consobrini, a corruption of consororini; those of two brothers, in relation to one another, fratres patrueles, if males, sorores patrueles, if females; and those of a brother and a sister, in relation to one another, amitini; thus the sons of your father’s sister call you consobrinus, and you call them amitini. 5In the fifth degree, upwards, are the grandfather’s great-grandfather and great-grandmother, downwards, the great-grandchildren of one’s own grandchildren, and in the collateral line the grandchildren of a brother or sister, a great-grandfather’s or great-grandmother’s brother or sister, the children of one’s first cousins, that is, of a frater or soror patruelis, of a consobrinus or consobrina, of an amitinus or amitina, and first cousins once removed, that is to say, the children of a great-uncle or great-aunt paternal or maternal. 6In the sixth degree, upwards, are the great-grandfather’s great-grandfather and great-grandmother; downwards, the great-grandchildren of a great-grandchild, and in the collateral line the great-grandchildren of a brother or sister, as also the brother and sister of a great-great-grandfather or great-great-grandmother, and second cousins, that is to say, the children of fratres or sorores patrueles, of consobrini, or of amitini. 7This will be enough to show how the degrees of relationship are reckoned; for from what has been said it is easy to understand how we ought to calculate the remoter degrees also, each generation always adding one degree: so that it is far easier to say in what degree any one is related to some one else than to indicate his relationship by the proper specific term. 8The degrees of agnation are also reckoned in the same manner; 9but as truth is fixed in the mind of man much better by the eye than by the ear, we have deemed it necessary, after giving an account of the degree of relationship, to have a table of them inserted in the present book, that so the youth may be able by both ears and eyes to gain a most perfect knowledge of them. [Note:—the pedagogical table is omitted in the present edition.]
10It is certain that the part of the Edict in which the possession of goods is promised to the next of kin has nothing to do with the relationships of slaves with one another, nor is there any old statute by which such relationships were recognised. However, in the constitution which we have issued with regard to the rights of patrons—a subject which up to our times had been most obscure, and full of difficulties and confusion—we have been prompted by humanity to grant that if a slave shall beget children by either a free woman or another slave, or conversely if a slave woman shall bear children of either sex by either a freeman or a slave, and both the parents and the children (if born of a slave woman) shall become free, or if the mother being free, the father be a slave, and subsequently acquire his freedom, the children shall in all these cases succeed their father and mother, and the patron’s rights lie dormant. And such children we have called to the succession not only of their parents, but also of one another reciprocally, by this enactment, whether those born in slavery and subsequently manumitted are the only children, or whether there be others conceived after their parents had obtained their freedom, and whether they all have the same father and mother, or the same father and different mothers, or vice versa; the rules applying to children born in lawful wedlock being applied here also.
11To sum up all that we have said, it appears that persons related in the same degree of cognation to the deceased are not always called together, and that even a remoter is sometimes preferred to a nearer cognate. For as family heirs and those whom we have enumerated as equivalent to family heirs have a priority over all other claimants, it is clear that a great-grandson or great-great-grandson is preferred to a brother, or the father or mother of the deceased; and yet the father and mother, as we have remarked above, are in the first degree of cognation, and the brother is in the second, while the great-grandson and great-great-grandson are only in the third and fourth respectively. And it is immaterial whether the descendant who ranks among family heirs was in the power of the deceased at the time of his death, or out of it through having been emancipated or through being the child of an emancipated child or of a child of the female sex. 12When there are no family heirs, and none of those persons who we have said rank as such, an agnate who has lost none of his agnatic rights, even though very many degrees removed from the deceased, is usually preferred to a nearer cognate; for instance, the grandson or great-grandson of a paternal uncle has a better title than a maternal uncle or aunt. Accordingly, in saying that the nearest cognate is preferred in the succession, or that, if there are several cognates in the nearest degree, they are called equally, we mean that this is the case if no one is entitled to priority, according to what we have said, as either being or ranking as a family heir, or as being an agnate; the only exceptions to this being emancipated brothers and sisters of the deceased who are called to succeed him, and who, in spite of their loss of status, are preferred to other agnates in a remoter degree than themselves.
OF THE SUCCESSION TO FREEDMEN
Let us now turn to the property of freedmen. These were originally allowed to pass over their patrons in their wills with impunity: for by the statute of the Twelve Tables the inheritance of a freedman devolved on his patron only when he died intestate without leaving a family heir. If he died intestate, but left a family heir, the patron was not entitled to any portion of this property, and this, if the family heir was a natural child, seemed to be no grievance; but if he was an adoptive child, it was clearly unfair that the patron should be debarred from all right to the succession. 1Accordingly this injustice of the law was at a later period corrected by the praetor’s Edict, by which, if a freedman made a will, he was commanded to leave his patron half his property; and, if he left him nothing at all, or less than a half, possession of such half was given to him against the testament. If, on the other hand, he died intestate, leaving as family heir an adoptive son, the patron could obtain even against the latter possession of the goods of the deceased to the extent of one-half. But the freedman was enabled to exclude the patron if he left natural children, whether in his power at the time of his death, or emancipated or given in adoption, provided that he made a will in which he instituted them heirs to any part of the succession, or that, being passed over, they demanded possession against the will under the Edict: 2if disinherited, they did not avail to bar the patron. At a still later period the lex Papia Poppaea augmented the rights of patrons who had more wealthy freedmen. By this it was enacted that, whenever a freedman left property amounting in value to a hundred thousand sesterces and upwards, and not so many as three children, the patron, whether he died testate or intestate, should be entitled to a portion equal to that of a single child. Accordingly, if the freedman left a single son or daughter as heir, the patron could claim half the property, exactly as if he had died without leaving any children: if he left two children as heirs, the patron could claim a third: if he left three, the patron was excluded altogether. 3In our constitution, however, which we have drawn up in a convenient form and in the Greek language, so as to be known by all, we have established the following rules for application to such cases. If the freedman or freedwoman is less than a centenarius, that is, has a fortune of less than a hundred aurei (which we have reckoned as equivalent to the sum of a hundred thousand sesterces fixed by the lex Papia), the patron shall have no right to any share in the succession if they make a will; while, if they die intestate without leaving any children, we have retained unimpaired the rights conferred on the patron by the Twelve Tables. If they are possessed of more than a hundred aurei, and leave a descendant or descendants of either sex and any degree to take the inheritance civil or praetorian, we have given to such child or children the succession to their parents, to the exclusion of every patron and his issue. If, however, they leave no children, and die intestate, we have called the patron or patroness to their whole inheritance: while if they make a will, passing over their patron or patroness, and leaving no children, or having disinherited such as they have, or (supposing them to be mothers or maternal grandfathers) having passed them over without leaving them the right to impeach the testament as unduteous, then, under our constitution, the patron shall succeed, by possession against the will, not, as before, to one-half of the freedman’s estate, but to one-third, or, if the freedman or freedwoman has left him less than this third in his or her will, to so much as will make up the difference. But this third shall be free from all charges, even from legacies or trust bequests in favour of the children of the freedman or freedwoman, all of which are to fall on the patron’s co-heirs. In the same constitution we have gathered together the rules applying to many other cases, which we deemed necessary for the complete settlement of this branch of law: for instance, a title to the succession of freedmen is conferred not only on patrons and patronesses, but on their children and collateral relatives to the fifth degree: all of which may be ascertained by reference to the constitution itself. If, however, there are several descendants of a patron or patroness, or of two or several, the nearest in degree is to take the succession of the freedman or freedwoman, which is to be divided, not among the stocks, but by counting the heads of those nearest in degree. And the same rule is to be observed with collaterals: for we have made the law of succession to freedmen almost identical with that relating to freeborn persons. 4All that has been said relates nowadays to freedmen who are Roman citizens, for dediticii and Latini Iuniani having been together abolished there are now no others. As to a statutory right of succession to a Latin, there never was any such thing; for men of this class, though during life they lived as free, yet as they drew their last breath they lost their liberty along with their life, and under the lex Iunia their manumitters kept their property, like that of slaves, as a kind of peculium. It was subsequently provided by the SC. Largianum that the manumitter’s children, unless expressly disinherited, should be preferred to his external heirs in succession to the goods of a Latin; and this was followed by the edict of the Emperor Trajan, providing that a Latin who contrived, without the knowledge or consent of his patron, to obtain by imperial favour a grant of citizenship should live a citizen, but die a Latin. Owing, however, to the difficulties accompanying these changes of condition, and others as well, we have determined by our constitution to repeal for ever the lex Iunia, the SC. Largianum, and the edict of Trajan, and to abolish them along with the Latins themselves, so as to enable all freedmen to enjoy the citizenship of Rome: and we have converted in a wonderful manner the modes in which persons became Latins, with some additions, into modes of attaining Roman citizenship.
OF THE ASSIGNMENT OF FREEDMEN
Before we leave the subject of succession to freedmen, we should observe a resolution of the Senate, to the effect that, though the property of freedmen belongs in equal portions to all the patron’s children who are in the same degree, it shall yet be lawful for a parent to assign a freedman to one of his children, so that after his own death the assignee shall be considered his sole patron, and the other children who, had it not been for such assignment, would be admitted equally with him, shall have no claim to the succession whatever: though they recover their original rights if the assignee dies without issue. 1It is lawful to assign freedwomen as well as freedmen, and to daughters and granddaughters no less than to sons and grandsons; 2and the power of assignment is conferred on all who have two or more children in their power, and enables them to assign a freedman or freedwoman to such children while so subject to them. Accordingly the question arose, whether the assignment becomes void, if the parent subsequently emancipates the assignee? and the affirmative opinion, which was held by Julian and many others, has now become settled law. 3It is immaterial whether the assignment is made in a testament or not, and indeed patrons are enabled to exercise this power in any terms whatsoever, as is provided by the senatusconsult passed in the time of Claudius, when Suillus Rufus and Ostorius Scapula were consuls.
OF POSSESSION OF GOODS
The law as to possession of goods was introduced by the praetor by way of amending the older system, and this not only in intestate succession, as has been described, but also in cases where deceased persons have made a will. For instance, although the posthumous child of a stranger, if instituted heir, could not by the civil law enter upon the inheritance, because his institution would be invalid, he could with the assistance of the praetor be made possessor of the goods by the praetorian law. Such a one can now, however, by our constitution be lawfully instituted, as being no longer unrecognised by the civil law.
1Sometimes, however, the praetor promises the possession of goods rather in confirmation of the old law than for the purpose of correcting or impugning it; as, for instance, when he gives possession in accordance with a duly executed will to those who have been instituted heirs therein. Again, he calls family heirs and agnates to the possession of goods on an intestacy; and yet, even putting aside the possession of goods, the inheritance belongs to them already by the civil law.
2Those whom the praetor calls to a succession do not become heirs in the eye of the law, for the praetor cannot make an heir, because persons become heirs by a statute only, or some similar ordinance such as a senatusconsult or an imperial constitution: but as the praetor gives them the possession of goods they become quasi-heirs, and are called possessors of goods.
And several additional grades of grantees of possession were recognised by the praetor in his anxiety that no one might die without a successor; the right of entering upon an inheritance, which had been confined by the statute of the Twelve Tables within very narrow limits, having been conferred more extensively by him in the spirit of justice and equity.
3The following are the kinds of testamentary possession of goods. First, the so-called contratabular
possession, given to children who are merely passed over in the will. Second, that which the praetor promises to all duly instituted heirs, and which is for that reason called secundum tabulas
. Then, having spoken of wills, the praetor passes on to cases of intestacy, in which, firstly, he gives the possession of goods which is called unde liberi to family heirs and those who in his Edict are ranked as such. Failing these, he gives it, secondly, to successors having a statutory title: thirdly, to the ten persons whom he preferred to the manumitter of a free person, if a stranger in relation to the latter, namely the latter’s father and mother, grandparents paternal and maternal, children, grandchildren by daughters as well as by sons, and brothers and sisters whether of the whole or of the half blood only. The fourth degree of possession is that given to the nearest cognates: the fifth is that called tum quam ex familia: the sixth, that given to the patron and patroness, their children and parents: the seventh, that given to the husband or wife of the deceased: the eighth, that given to cognates of the manumitter.
4Such was the system established by the praetorian jurisdiction. We, however, who have been careful to pass over nothing, but correct all defects by our constitutions, have retained, as necessary, the possession of goods called contra tabulas and secundum tabulas, and also the kinds of possession upon intestacy known as unde liberis and unde legitimi.
5The possession, however, which in the praetor’s Edict occupied the fifth place, and was called unde decem personae, we have with benevolent intentions and with a short treatment shown to be superfluous. Its effect was to prefer to the extraneous manumitter the ten persons specified above; but our constitution, which we have made concerning the emancipation of children, has in all cases made the parent implicitly the manumitter, as previously under a fiduciary contract, and has attached this privilege to every such manumission, so as to render superfluous the aforesaid kind of possession of goods. We have therefore removed it, and put in its place the possession which the praetor promises to the nearest cognates, and which we have thus made the fifth kind instead of the sixth.
6The possession of goods which formerly stood seventh in the list, which was called tum quam ex familia, and that which stood eighth, namely, the possession entitled unde liberi patroni patronaeque et parentes eorum, we have altogether suppressed by our constitution respecting the rights of patrons. For, having assimilated the succession to freedmen to the succession to freeborn persons, with this sole exception—in order to preserve some difference between the two classes—that no one has any title to the former who is related more distantly than the fifth degree, we have left them sufficient remedies in the contratabular
possession, and in those called unde legitimi and unde cognati, wherewith to vindicate their rights, so that thus all the subtleties and inextricable confusion of these two kinds of possession of goods have been abolished.
7We have preserved in full force another possession of goods, which is called unde vir et uxor, and which occupied the ninth place in the old classification, and have given it a higher place, namely, the sixth. The tenth kind, which was called unde cognati manumissoris, we have very properly abolished for reasons which have been already stated: thus leaving in full operation only six ordinary kinds of possession of goods.
8The seventh, which follows them, was introduced with most excellent reason by the praetors, whose Edict finally promised the possession of goods to those persons expressly entitled to it by any statute, senatusconsult, or imperial constitution; but this was not permanently incorporated by the praetor with either the intestate or the testamentary kinds of possession, but was accorded by him, as circumstances demanded, as an extreme and extraordinary remedy to those persons who claim, either under a will or on an intestacy, under statutes, senatusconsults, or the more recent legislation of the emperors.
9The praetor, having thus introduced many kinds of successions, and arranged them in a system, fixed a definite time within which the possession of goods must be applied for, as there are often several persons entitled in the same kind of succession, though related in different degrees to the deceased, in order to save the creditors of the estate from delay in their suits, and to provide them with a proper defendant to sue; and with the object also of making it less easy for them to obtain possession of the property of the deceased, as in bankruptcy, wherein they consulted their own advantage only. He allowed to children and parents, adoptive no less than natural, an interval of a year, and to all other persons one hundred days, within which to make the application.
10If a person entitled does not apply for the possession of goods within the time specified, his portion goes by accrual to those in the same degree or class with himself: or, if there be none, the praetor promises by his successory edict the possession to those in the next degree, exactly as if the person in the preceding one were non-existent. If any one refuses the possession of goods which he has the opportunity of accepting, it is not unusual to wait until the aforesaid interval, within which possession must be applied for, has elapsed, but the next degree is admitted immediately under the same edict.
11In reckoning the interval, only those days are considered upon which the persons entitled could have made application.
12Earlier emperors, however, have judiciously provided that no one need trouble himself expressly to apply for the possession of goods, but that, if he shall within the prescribed time in any manner have signified his intention to accept, he shall have the full benefit of such tacit acceptance.
OF ACQUISITION BY ADROGATION
There is another kind of universal succession which owes its introduction neither to the statute of the Twelve Tables nor to the praetor’s Edict, but to the law which is based upon custom and consent. 1When an independent person gives himself in adrogation, all his property, corporeal and incorporeal, and all debts due to him formerly passed in full ownership to the adrogator, except such rights as are extinguished by loss of status, for instance, bounden services of freedmen and rights of agnation. Use and usufruct, though formerly enumerated among such rights, have now been saved by our constitution from extinction by the least loss of status. 2But we have now confined acquisition by adrogation within the same limits as acquisition through their children by natural parents; that is to say, adoptive as well as natural parents acquire no greater right in property which comes to children in their power from any extraneous source than a mere usufruct; the ownership is vested in the children themselves. But if a son who has been adrogated dies in his adoptive family, the whole of his property vests in the adrogator, failing those persons who, under our constitution, are preferred to the father in succession to property which is not acquired immediately from him. 3Conversely, the adrogator is not, by strict law, suable for the debts of his adoptive son, but an action may be brought against him as his representative; and if he declines to defend the latter, the creditors are allowed, by an order of the magistrates having jurisdiction in such cases, to take possession of the property of which the usufruct as well as the ownership would have belonged to the son, had he not subjected himself to the power of another, and to dispose of it in the mode prescribed by law.
OF THE ADJUDICATION OF A DECEASED PERSON’S ESTATE TO PRESERVE THE GIFTS OF LIBERTY
A new form of succession was added by a constitution of the Emperor Marcus, which provided that if slaves, who have received a bequest of liberty from their master in a will under which no heir takes, wish to have his property adjudged to them, in order that effect may be given to the gift of freedom, their application shall be entertained.
1Such is the substance of a rescript addressed by the Emperor Marcus to Popilius Rufus, which runs as follows: If there is no successor to take on the intestacy of Virginius Valens, who by his will has conferred freedom on certain of his slaves, and if, consequently, his property is in danger of being sold, the magistrate who has cognizance of such matters shall on application entertain your desire to have the property adjudged to you, in order to give effect to the bequests of liberty, direct and fiduciary, provided you give proper security to the creditors for payment of their claims in full. Slaves to whom liberty has been directly bequeathed shall become free exactly as if the inheritance had been actually accepted, and those whom the heir was requested to manumit shall obtain their liberty from you; provided that if you will have the property adjudged to you only upon the condition, that even the slaves who have received a direct bequest of liberty shall become your freedmen, and if they, whose status is now in question, agree to this, we are ready to authorize compliance with your wishes. And lest the benefit afforded by this our rescript be rendered ineffectual in another way, by the Treasury laying claim to the property, be it hereby known to those engaged in our service that the cause of liberty is to be preferred to pecuniary advantage, and that they must so effect such seizures as to preserve the freedom of those who could have obtained it had the inheritance been accepted under the will.
If there is no successor to take on the intestacy of Virginius Valens, who by his will has conferred freedom on certain of his slaves, and if, consequently, his property is in danger of being sold, the magistrate who has cognizance of such matters shall on application entertain your desire to have the property adjudged to you, in order to give effect to the bequests of liberty, direct and fiduciary, provided you give proper security to the creditors for payment of their claims in full. Slaves to whom liberty has been directly bequeathed shall become free exactly as if the inheritance had been actually accepted, and those whom the heir was requested to manumit shall obtain their liberty from you; provided that if you will have the property adjudged to you only upon the condition, that even the slaves who have received a direct bequest of liberty shall become your freedmen, and if they, whose status is now in question, agree to this, we are ready to authorize compliance with your wishes. And lest the benefit afforded by this our rescript be rendered ineffectual in another way, by the Treasury laying claim to the property, be it hereby known to those engaged in our service that the cause of liberty is to be preferred to pecuniary advantage, and that they must so effect such seizures as to preserve the freedom of those who could have obtained it had the inheritance been accepted under the will.
2This rescript was a benefit not only to slaves thus liberated, but also to the deceased testators themselves, by saving their property from being seized and sold by their creditors; for it is certain that such seizure and sale cannot take place if the property has been adjudged on this account, because some one has come forward to defend the deceased, and a satisfactory defender too, who gives the creditors full security for payment.
3Primarily, the rescript is applicable only where freedom is conferred by a will. How then will the case stand, if a man who dies intestate makes gifts of freedom by codicils, and on the intestacy no one accepts the inheritance? We answer, that the boon conferred by the constitution ought not here to be refused. No one can doubt that liberty given, in codicils, by a man who dies having made a will, is effectual.
4The terms of the constitution show that it comes into application when there is no successor on an intestacy; accordingly, it is of no use so long as it is uncertain whether there will be one or not; but, when this has been determined in the negative, it at once becomes applicable.
5Again, it may be asked whether, if a person who abstains from accepting an inheritance can claim a judicial restoration of rights, the constitution can still be applied, and the goods adjudged under it? And what, if such person obtains a restoration after they have been actually adjudged in order to give effect to the bequest of freedom? We reply that gifts of liberty to which effect has once been given cannot possibly be recalled.
6The object with which this constitution was enacted was to give effect to bequests of liberty, and accordingly it is quite inapplicable where no such bequests are made. Supposing, however, that a man manumits certain slaves in his lifetime, or in contemplation of death, and in order to prevent any questions arising whether the creditors have thereby been defrauded, the slaves are desirous of having the property adjudged to them, should this be permitted? and we are inclined to say that it should, though the point is not covered by the terms of the constitution.
7Perceiving, however, that the enactment was wanting in many minute points of this kind, we have ourselves issued a very full constitution, in which have been collected many conceivable cases by which the law relating to this kind of succession has been completed, and with which any one can become acquainted by reading the constitution itself.
OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM
There were other kinds of universal succession in existence prior to that last before mentioned; for instance, the purchase of goods
which was introduced with many prolixities of form for the sale of insolvent debtors’ estates, and which remained in use under the so-called ordinary
system of procedure. Later generations adopted the extraordinary
procedure, and accordingly sales of goods became obsolete along with the ordinary procedure of which they were a part. Creditors are now allowed to take possession of their debtor’s property only by the order of a judge, and to dispose of it as to them seems most advantageous; all of which will appear more perfectly from the larger books of the Digest.
1There was too a miserable form of universal acquisition under the SC. Claudianum, when a free woman, through indulgence of her passion for a slave, lost her freedom by the senatusconsult, and with her freedom her property. But this enactment we deemed unworthy of our times, and have ordered its abolition in our Empire, nor allowed it to be inserted in our Digest.
OF OBLIGATIONS
Let us now pass on to obligations. An obligation is a legal bond, with which we are bound by a necessity of performing some act according to the laws of our State. 1The leading division of obligations is into two kinds, civil and praetorian. Those obligations are civil which are established by statute, or at least are sanctioned by the civil law; those are praetorian which the praetor has established by his own jurisdiction, and which are also called honorary. 2By another division they are arranged in four classes, contractual, quasi-contractual, delictal, and quasi-delictal. And first, we must examine those which are contractual, and which again fall into four species, for contract is concluded either by delivery, by a form of words, by writing, or by consent: each of which we will treat in detail.
OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE CONTRACTED BY DELIVERY
Real contracts, or contracts concluded by delivery, are exemplified by loan for consumption, that is to say, loan of such things as are estimated by weight, number, or measure, for instance, wine, oil, corn, coined money, copper, silver, or gold: things in which we transfer our property on condition that the receiver shall transfer to us, at a future time, not the same things, but other things of the same kind and quality: and this contract is called mutuum, because thereby meum or mine becomes tuum or thine. The action to which it gives rise is called a condiction.
1Again, a man is bound by a real obligation if he takes what is not owed him from another who pays him by mistake; and the latter can, as plaintiff, bring a condiction against him for its recovery, after the analogy of the action whose formula ran if it be proved that he ought to convey,
exactly as if the defendant had received a loan from him. Consequently a pupil who, by mistake, is paid something which is not really owed him without his guardian’s authority, will no more be bound by a condiction for the recovery of money not owed than by one for money received as a loan: though this kind of liability does not seem to be founded on contract; for a payment made in order to discharge a debt is intended to extinguish, not to create, an obligation.
2So too a person to whom a thing is lent for use is laid under a real obligation, and is liable to the action on a loan for use. The difference between this case and a loan for consumption is considerable, for here the intention is not to make the object lent the property of the borrower, who accordingly is bound to restore the same identical thing. Again, if the receiver of a loan for consumption loses what he has received by some accident, such as fire, the fall of a building, shipwreck, or the attack of thieves or enemies, he still remains bound: but the borrower for use, though responsible for the greatest care in keeping what is lent him—and it is not enough that he has shown as much care as he usually bestows on his own affairs, if only some one else could have been more diligent in the charge of it—has not to answer for loss occasioned by fire or accident beyond his control, provided it did not occur through any fault of his own. Otherwise, of course, it is different: for instance, if you choose to take with you on a journey a thing which has been lent to you for use, and lose it by being attacked by enemies or thieves, or by a shipwreck, it is beyond question that you will be liable for its restoration. A thing is not properly said to be lent for use if any recompense is received or agreed upon for the service; for where this is the case, the use of the thing is held to be hired, and the contract is of a different kind, for a loan for use ought always to be gratuitous.
3Again, the obligation incurred by a person with whom a thing is deposited for custody is real, and he can be sued by the action of the deposit; he too being responsible for the restoration of the identical thing deposited, though only where it is lost through some positive act of commission on his part: for for carelessness, that is to say, inattention and negligence, he is not liable. Thus a person from whom a thing is stolen, in the charge of which he has been most careless, cannot be called to account, because, if a man entrusts property to the custody of a careless friend, he has no one to blame but himself for his want of caution.
4Finally, the creditor who takes a thing in pledge is under a real obligation, and is bound to restore the thing itself by the action of pledge. A pledge, however, is for the benefit of both parties; of the debtor, because it enables him to borrow more easily, and of the creditor, because he has the better security for repayment; and accordingly, it is a settled rule that the pledgee cannot be held responsible for more than the greatest care in the custody of the pledge; if he shows this, and still loses it by some accident, he himself is freed from all liability, without losing his right to sue for the debt.
OF VERBAL OBLIGATION
An obligation is contracted by question and answer, that is to say, by a form of words, when we stipulate that property shall be conveyed to us, or some other act be performed in our favour. Such verbal contracts ground two different action, namely condiction, when the stipulation is certain, and the action on stipulation, when it is uncertain; and the name is derived from stipulum, a word in use among the ancients to mean firm,
coming possibly from stipes, the trunk of a tree.
1In this contract the following forms of words were formerly sanctioned by usage: Do you engage yourself to do so and so?
I do engage myself.
Do you promise?
I do promise.
Do you pledge your credit?
I pledge my credit.
Do you guarantee?
I guarantee.
Will you convey?
I will convey.
Will you do?
I will do.
Whether the stipulation is in Latin, or Greek, or any other language, is immaterial, provided the two parties understand one another, so that it is not necessary even that they should both speak in the same tongue, so long as the answer corresponds to the question, and thus two Greeks, for instance, may contract an obligation in Latin. But it was only in former times that the solemn forms referred to were in use: for subsequently, by the enactment of Leo’s constitution, their employment was rendered unnecessary, and nothing was afterwards required except that the parties should understand each other, and agree to the same thing, the words in which such agreement was expressed being immaterial.
2The terms of a stipulation may be absolute, or performance may either be postponed to some future time, or be made subject to a condition. An absolute stipulation may be exemplified by the following: Do you promise to give five aurei?
and here (if the promise be made) that sum may be instantly sued for. As an instance of stipulation in diem
, as it is called where a future day is fixed for payment, we may take the following: Do you promise to give ten aurei on the first of March?
In such a stipulation as this, an immediate debt is created, but it cannot be sued upon until the arrival of the day fixed for payment: and even on that very day an action cannot be brought, because the debtor ought to have the whole of it allowed to him for payment; for otherwise, unless the whole day on which payment was promised is past, it cannot be certain that default has been made.
3If the terms of your stipulation run Do you promise to pay me ten aurei a year so long as I live?
the obligation is deemed absolute, and the liability perpetual, for a debt cannot be owed till a certain time only; though if the promisee’s heir sues for payment, he will be successfully met by the plea of contrary agreement.
4A stipulation is conditional, when performance is made to depend on some uncertain event in the future, so that it becomes actionable only on something being done or omitted: for instance, Do you promise to give five aurei if Titius is made consul?
If, however, a man stipulates in the form Do you promise to give so and so, if I do not go up to the Capitol?
the effect is the same as if he had stipulated for payment to himself at the time of his death. The immediate effect of a conditional stipulation is not a debt, but merely the expectation that at some time there will be a debt: and this expectation devolves on the stipulator’s heir, supposing he dies himself before fulfilment of the condition.
5It is usual in stipulations to name a place for payment; for instance, Do you promise to give at Carthage?
Such a stipulation as this, though in its terms absolute, implies a condition that enough time shall be allowed to the promisor to enable him to pay the money at Carthage. Accordingly, if a man at Rome stipulates thus, Do you promise to pay today at Carthage?
the stipulation is void, because the performance of the act to be promised is a physical impossibility.
6Conditions relating to past or present time either make the obligation void at once, or have no suspensive operation whatever. Thus, in the stipulation Do you promise to give so and so, if Titius has been consul, or if Maevius is alive?
the promise is void, if the condition is not satisfied; while if it is, it is binding at once: for events which in themselves are certain do not suspend the binding force of an obligation, however uncertain we ourselves may be about them.
7The performance or non-performance of an act may be the object of a stipulation no less than the delivery of property, though where this is the case, it will be best to connect the non-performance of the act to be performed, or the performance of the act to be omitted, with a pecuniary penalty to be paid in default, lest there be doubt as to the value of the act or omission, which will make it necessary for the plaintiff to prove to what damages he is entitled. Thus, if it be a performance which is stipulated for, some such penalty should be added as in the following: If so and so is not done, do you promise to pay ten aurei as a penalty?
And if the performance of some acts, and the non-performance of others, are bargained for in the same stipulation, a clause of the following kind should be added, If any default is made, either as contrary to what is agreed upon, or by way of non-performance, do you promise to pay a penalty of ten aurei?
OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO DEBTORS
There may be two or more parties on either side in a stipulation, that is to say, as promisors or promisees. Joint promises are so constituted by the promisor answering, I promise,
after they have all first asked the question; for instance, if after two promises have separately stipulated from him, he answers, I promise to give so and so to each of you.
But if he first promises to Titius, and then, on another’s putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all. The usual form to constitute two or more joint promisors is as follows,—Maevius, do you promise to give five aurei? Seius, do you promise to give the same five aurei?
and in answer they reply separately, I promise.
1In obligations of this kind each joint promisee is owed the whole sum, and the whole sum can be claimed from each joint promisor; and yet in both cases but one payment is due, so that if one joint promisee receives the debt, or one joint promisor pays it, the obligation is thereby extinguished for all, and all are thereby released from it.
2Of two joint promisors one may be bound absolutely, while performance by the other is postponed to a future day, or made to depend on a condition; but such postponement or such condition in no way prevents the stipulator from at once suing the one who was bound absolutely.
OF STIPULATIONS MADE BY SLAVES
From his master’s legal capacity a slave derives ability to be promisee in a stipulation. Thus, as an inheritance in most matters represents the legal person
of the deceased, whatever a slave belonging to it stipulates for, before the inheritance is accepted, he acquires for the inheritance, and so for the person who subsequently becomes heir.
1All that a slave acquires by a stipulation he acquires for his master only, whether it was to that master, or himself, or his fellow slave, or no one in particular that performance was to be made under the contract; and the same principle applies to children in power, so far as they now are instruments of acquisition for their father.
2When, however, what is stipulated for is permission to do some specific act, that permission cannot extend beyond the person of the promisee: for instance, if a slave stipulates for permission to cross the promisor’s land, he cannot himself be denied passage, though his master can.
3A stipulation by a slave belonging to joint owners enures to the benefit of all of them in proportion to the shares in which they own him, unless he stipulated at the bidding, or expressly in favour, of one of them only, in which case that one alone is benefited. Where a jointly owned slave stipulates for the transfer of property which cannot be acquired for one of his two masters, the contract enures to the benefit of the other only: for instance, where the stipulation is for the transfer of a thing which already belongs to one of them.
OF THE DIFFERENT KINDS OF STIPULATIONS
Stipulations are either judicial, praetorian, conventional, or common: by the latter being meant those which are both praetorian and judicial. 1Judicial stipulations are those which it is simply part of the judge’s duty to require; for instance, security against fraud, or for the pursuit of a runaway slave, or (in default) for payment of his value. 2Those are praetorian, which the praetor is bound to exact simply in virtue of his magisterial functions; for instance, security against apprehended damage, or for payment of legacies by an heir. Under praetorian stipulations we must include also those directed by the aedile, for these too are based upon jurisdiction. 3Conventional stipulations are those which arise merely from the agreement of the parties, apart from any direction of a judge or of the praetor, and which one may almost say are of as many different kinds as there are conceivable objects to a contract. 4Common stipulations may be exemplified by that by which a guardian gives security that his ward’s property will not be squandered or misappropriated, which he is sometimes required to enter into by the praetor, and sometimes also by a judge when the matter cannot be managed in any other way; or, again, we might take the stipulation by which an agent promises that his acts shall be ratified by his principal.
OF INVALID STIPULATIONS
Anything, whether movable or immovable, which admits of private ownership, may be made the object of a stipulation; 1but if a man stipulates for the delivery of a thing which either does not or cannot exist, such as Stichus, who is dead but whom he though alive, or an impossible creature, like a hippocentaur, the contract will be void.
2Precisely the same principles applies where a man stipulates for the delivery of a thing which is sacred or religious, but which he thought was a subject of human ownership, or of a thing which is public, that is to say, devoted in perpetuity to the use and enjoyment of the people at large, like a forum or theatre, or of a free man whom he thought a slave, or of a thing which he is incapable of owning, or which is his own already. And the fact that a thing which is public may become private property, that a free man may become a slave, that the stipulator may become capable of owning such and such a thing, or that such and such a thing may cease to belong to him, will not avail to merely suspend the force of the stipulation in these cases, but it is void from the outset. Conversely, a stipulation which originally was perfectly good may be avoided by the thing, which is its object, acquiring any of the characters just specified through no fault of the promisor. And a stipulation, such as do you promise to convey Lucius Titius when he shall be a slave
and others like it, are also void from the beginning; for objects which by their very nature cannot be owned by man cannot either in any way be made the object of an obligation.
3If one man promises that another shall convey, or do so and so, as, for instance, that Titius shall give five aurei, he will not be bound, though he will if he promises to get Titius to give them.
4If a man stipulates for conveyance to, or performance in favour of, another person who is not his paterfamilias, the contract is void; though of course performance to a third person may be bargained for (as in the stipulation do you promise to give to me or to Seius?
); where, though the obligation is created in favour of the stipulator only, payment may still be lawfully made to Seius, even against the stipulator’s will, the result of which, if it is done, being that the promisor is entirely released from his obligation, while the stipulator can sue Seius by the action of agency. If a man stipulates for payment of ten aurei to himself and another who is not his paterfamilias, the contract will be good, though there has been much doubt whether in such a case the stipulator can sue for the whole sum agreed upon, or only half; the law is now settled in favour of the smaller sum. If you stipulate for performance in favour of one in your power, all benefit under the contract is taken by yourself, for your words are as the words of your son, as his words are as yours, in all cases in which he is merely an instrument of acquisition for you.
5Another circumstance by which a stipulation may be avoided is want of correspondence between question and answer, as where a man stipulates from you for payment of ten aurei, and you promise five, or vice versa; or where his question is unconditional, your answer conditional, or vice versa, provided only that in this latter case the difference is express and clear; that is to say, if he stipulates for payment on fulfilment of a condition, or on some determinate future day, and you answer: I. promise to pay today,
the contract is void; but if you merely answer: I promise,
you are held by this laconic reply to have undertaken payment on the day, or subject to the condition specified; for it is not essential that every word used by the stipulator should be repeated in the answer of the promise.
6Again, no valid stipulation can be made between two persons of whom one is in the power of the other. A slave indeed cannot be under an obligation to either his master or anybody else: but children in power can be bound in favour of any one except their own paterfamilias.
7The dumb, of course, cannot either stipulate or promise, nor can the deaf, for the promisee in stipulation must hear the answer, and the promisor must hear the question; and this makes it clear that we are speaking of persons only who are stone deaf, not of those who (as it is said) are hard of hearing.
8A lunatic cannot enter into any contract at all, because he does not understand what he is doing.
9On the other hand a pupil can enter into any contract, provided that he has his guardian’s authority, when necessary, as it is for incurring an obligation, though not for imposing an obligation on another person.
10This concession of legal capacity of disposition is manifestly reasonable in respect of children who have acquired to some understanding, for children below the age of seven years, or who have just passed that age, resemble lunatics in want of intelligence. Those, however, who have just completed their seventh year are permitted, by a beneficent interpretation of the law, in order to promote their interests, to have the same capacity as those approaching the age of puberty; but a child below the latter age, who is in paternal power, cannot bind himself even with his father’s sanction.
11An impossible condition annexed to an obligation invalidates the stipulation. An impossible condition is one which, according to the course of nature, cannot be fulfilled, as, for instance, if one says: Do you promise to give if I. touch the sky with my finger?
But if the stipulation runs: Do you promise to give if I do not touch the sky with my finger?
it is considered unconditional, and accordingly can be sued upon at once.
12Again, a verbal obligation made between persons who are not present with one another is void. This rule, however, afforded contentious persons opportunities of litigation, by alleging, after some interval, that they, or their adversaries, had not been present on the occasion in question; and we have therefore issued a constitution, addressed to the advocates of Caesarea, in order with the more dispatch to settle such disputes, whereby it is enacted that written documents in evidence of a contract which recite the presence of the parties shall be taken to be indisputable proof of the fact, unless the person, who resorts to allegations usually so disgraceful, proves by the clearest evidence, either documentary or borne by credible witnesses, that he or his adversary was elsewhere than alleged during the whole day on which the document is stated to have been executed.
13Formerly, a man could not stipulate that a thing should be conveyed to him after his own death, or after that of the promisor; nor could one person who was in another’s power even stipulate for conveyance after that person’s death, because he was deemed to speak with the voice of his parent or master; and stipulations for conveyance the day before the promisee’s or promisor’s decease were also void. Stipulation, however, as has already been remarked, derive their validity from the consent of the contracting parties, and we therefore introduced a necessary emendation in respect also of this rule of law, by providing that a stipulation shall be good which bargains for performance either after the death, or the day before the death, of either promisee or promisor.
14Again, a stipulation in the form: Do you promise to give today, if such or such a ship arrives from Asia tomorrow?
was formerly void, as being preposterous in its expression, because what should come last is put first. Leo, however, of famous memory held that a preposterous stipulation in the settlement of a dowry ought not to be rejected as void, and we have determined to allow it perfect validity in every case, and not merely in that in which it was formerly sanctioned.
15A stipulation, say by Titius, in the form: Do you promise to give when I shall die
or when you shall die
? is good now, as indeed it always was even under the older law.
16So too a stipulation for performance after the death of a third person is good.
17If a document in evidence of a contract states that so and so promised, the promise is deemed to have been given in answer to a preceding question.
18When several acts of conveyance or performance are comprised in a single stipulation, if the promisor simply answers: I promise to convey,
he becomes liable on each and all of them, but if he answers that he will convey only one or some of them, he incurs an obligation in respect of those only which are comprised in his answer, there being in reality several distinct stipulations of which only one or some are considered to have acquired binding force: for for each act of conveyance or performance there ought to be a separate question and a separate answer.
19As has been already observed, no one can validly stipulate for performance to a person other than himself, for the purpose of this kind of obligation is to enable persons to acquire for themselves that whereby they are profited, and a stipulator is not profited if the conveyance is made to a third person. Hence, if it be wished to make a stipulation in favour of any such third person, a penalty should be stipulated for, to be paid, in default of performance of that which is in reality the object of the contract, to the party who otherwise would have no interest in such performance; for when one stipulates for a penalty, it is not his interest in what is the real contract which is considered, but only the amount to be forfeited to him upon non-fulfilment of the condition. So that a stipulation for conveyance to Titius, but made by some one else, is void: but the addition of a penalty, in the form If you do not convey, do you promise to pay me so many aurei?
makes it good and actionable.
20But where the promisor stipulates in favour of a third person, having himself an interest in the performance of the promise, the stipulation is good. For instance, if a guardian, after beginning to exercise his tutorial functions, retires from their exercise in favour of his fellow guardian, taking from him by stipulation security for the due charge of the ward’s property, he has a sufficient interest in the performance of this promise, because the ward could have sued him in case of maladministration, and therefore the obligation is binding. So too a stipulation will be good by which one bargains for delivery to one’s agent, or for payment to one’s creditor, for in the latter case one may be so far interested in the payment that, if it not be made, one will become liable to a penalty or to having a foreclosure of estates which one has mortgaged.
21Conversely, he who promises that another shall do so and so is not bound unless he promises a penalty in default;
22and, again, a man cannot validly stipulate that property which will hereafter be his shall be conveyed to him as soon as it becomes his own.
23If a stipulator and the promisor mean different things, there is no contractual obligation, but it is just as if no answer had been made to the question; for instance, if one stipulates from you for Stichus, and you think he means Pamphilus, whose name you believed to be Stichus.
24A promise made for an illegal or immoral purpose, as, for instance, to commit a sacrilege or homicide, is void.
25If a man stipulates for performance on the fulfilment of a condition, and dies before such fulfilment, his heir can sue on the contract when it occurs: and the heir of the promisor can be sued under the same circumstances. 26A stipulation for a conveyance this year, or this month, cannot be sued upon until the whole year, or the whole month, has elapsed: 27and similarly the promisee cannot sue immediately upon a stipulation for the conveyance of an estate or a slave, but only after allowing a sufficient interval for the conveyance to be made.
OF FIDEJUSSORS OR SURETIES
Very often other persons, called fidejussors or sureties, are bound for the promisor, being taken by promises as additional security. 1Such sureties may accompany any obligation, whether real, verbal, literal or consensual: and it is immaterial even whether the principal obligation be civil or natural, so that a man may go surety for the obligation of a slave either to a stranger or to his master. 2A fidejussor is not only bound himself, but his obligation devolves also on his heir; 3and the contract of suretyship may be entered into before no less than after the creation of the principal obligation. 4If there are several fidejussors to the same obligation, each of them, however many they are, is liable for the whole amount, and the creditor may sue whichever he chooses for the whole; but by the letter of Hadrian he may be compelled to sue for only an aliquot part, determined by the number of sureties who are solvent at the commencement of the action: so that if one of them is insolvent at that time the liability of the rest is proportionately increased. Thus, if one fidejussor pay the whole amount, he alone suffers by the insolvency of the principal debtor; but this is his own fault, as he might have availed himself of the letter of Hadrian, and required that the claim should be reduced to his rateable portion. 5Fidejussors cannot be bound for more than their principal, for their obligation is but accessory to the latter’s, and the accessory cannot contain more than the principal; but they can be bound for less. Thus, if the principal debtor promised ten aurei, the fidejussor can well be bound for five, but not vice versa; and if the principal’s promise is absolute, that of the fidejussor may be conditional, though a conditional promise cannot be absolutely guaranteed, for more and less is to be understood of time as well as of quantity, immediate payment being regarded as more, and future payment as less. 6For the recovery of anything paid by him for the principal the fidejussor can sue the latter by the action on agency. 7A fidejussor may be taken in Greek, by using the expressions τῇ ἐμῇ πίστει κελεὐω, λέγω, θέλω, or βούλομαι; and φημί will be taken as equivalent to λέγω. 8It is to be observed that in the stipulations of fidejussors the general rule is that whatever is stated in writing to have been done is taken to have really been done; and, accordingly, it is settled law that if a man signs his name to a paper stating that he became a fidejussor, all formalities are presumed to have been duly observed.
OF LITERAL OBLIGATION
Formerly there was a kind of obligation made by writing, and said to be contracted by the entry of a debt in a ledger; but such entries have nowadays gone out of use. Of course, if a man states in writing that he owes money which has never been paid over to him, he cannot be allowed, after a considerable interval, to defend himself by the plea that the money was not, in fact, advanced; for this is a point which has frequently been settled by imperial constitutions. The consequence is, that even at the present day a person who is estopped from this plea is bound by his written signature, which (even of course where there is no stipulation) is ground for a condiction. The length of time after which this defence could not be pleaded was formerly fixed by imperial constitutions at five years; but it has been reduced by our constitution, in order to save creditors from a more extended risk of being defrauded of their money, so that now it cannot be advanced after the lapse of two years from the date of the alleged payment.
OF OBLIGATION BY CONSENT
Obligations contracted by mere consent are exemplified by sale, hire, partnership and agency, which are called consensual contracts because no writing, nor the presence of the parties, nor any delivery is required to make the obligation actionable, but the consent of the parties is sufficient. Parties who are not present together, therefore, can form these contracts by letter, for instance, or by messenger: and they are in their nature bilateral, that is, both parties incur a reciprocal obligation to perform whatever is just and fair, whereas verbal contracts are unilateral, one party being promisee, and the other alone promisor.
OF PURCHASE AND SALE
The contract of purchase and sale is complete immediately the price is agreed upon, and even before the price or as much as any earnest is paid: for earnest is merely evidence of the completion of the contract. In respect of sales unattested by any written evidence this is a reasonable rule, and so far as they are concerned we have made no innovations. By one of our constitutions, however, we have enacted, that no sale effected by an agreement in writing shall be good or binding, unless that agreement is written by the contracting parties themselves, or, if written by some one else, is at least signed by them, or finally, if written by a notary, is duly drawn by him and executed by the parties. So long as any of these requirements is unsatisfied, there is room to retract, and either purchaser or vendor may withdraw from the agreement with impunity—provided, that is to say, that no earnest has been given. Where earnest has been given, and either party refuses to perform the contract, that party, whether the agreement be in writing or not, if purchaser forfeits what he has given, and if vendor is compelled to restore double of what he has received, even though there has been no express agreement in the matter of earnest.
1It is necessary that the price should be settled, for without a price there can be no purchase and sale, and it ought to be a fixed and certain price. For instance, where the parties agreed that the thing should be sold at a price to be subsequently fixed by Titius, the older jurists doubted much whether this was a valid contract of sale or not. The doubt has been settled in the following way by our decision; if the third person named actually fixes the price, it must certainly be paid, as settled by him, and the thing must be delivered, in order to give effect to the sale; the purchaser (if not fairly treated) suing by the action on purchase, and the vendor by the action on sale. But if the third person named will not or cannot fix the price, the sale will be void, because no price has been settled. This rule, which we have adopted with regard to sales, may reasonably be extended also to contracts of hire.
2The price, too, should be in money; for it used to be much disputed whether anything else, such as a slave, a piece of land, or a robe, could be treated as a price. Sabinus and Cassius held the affirmative, explaining thus the common theory that exchange is a species, and the oldest species, of purchase and sale; and in their support they quoted the lines of Homer, who says in a certain passage that the army of the Greeks procured themselves wine by giving other things in exchange, the actual words being as follow: then the longhaired Greeks bought themselves wine, some with bronze, some with shining iron, some with hides, some with live oxen, some with slaves.
* The other school maintained the negative, and distinguished between exchange on the one hand, and purchase and sale on the other: for if an exchange were the same thing as a sale, it would be impossible to determine which is the thing sold, and which is the price, and both things cannot be regarded in each of these characters. The opinion, however, of Proculus, who affirmed that exchange was a species of contract apart by itself, and distinct from sale, has deservedly prevailed, as it is confirmed by other lines from Homer, and by still more cogent reasons, and this has been admitted by preceding Emperors, and is fully stated in our Digest.
3As soon as the contract of sale is concluded—that is, as we have said, as soon as the price is agreed upon, if the contract is not in writing—the thing sold is immediately at the risk of the purchaser, even though it has not yet been delivered to him. Accordingly, if a slave dies, or is injured in any part of his body, or if a house is either totally or partially burnt down, or if a piece of land is wholly or partially swept away by a river flood, or is reduced in acreage by an inundation, or made of less value by a storm blowing down some of its trees, the loss falls on the purchaser, who must pay the price even though he has not got what he purchased. The vendor is not responsible and does not suffer for anything not due to any design or fault of his own. If, however, after the purchase of a piece of land, it receives an increase by alluvion, it is the purchaser who profits thereby: for the profit ought to belong to him who also bears the risk. And if a slave who has been sold runs away, or is stolen, without any design or fault of the vendor, one should look to see whether the latter expressly undertook to keep him safely until delivery was made; for, if he did this, the loss falls upon him, though otherwise he incurs no liability: and this is a rule which applies to all animals and other objects whatsoever. The vendor, however, will be bound to transfer to the purchaser all his rights of action for the recovery of the object or damages, for, not having yet delivered it to the purchaser, he still remains its owner, and the same holds good of the penal actions on theft and on unlawful damage.
4A sale may be made conditionally as well as absolutely. The following is an example of a conditional sale: If Stichus meets with your approval within a certain time, he shall be purchased by you for so many aurei.
5If a man buys a piece of land which is sacred, religious, or public, such as a forum or basilica, knowing it to be such, the purchase is void. But if the vendor has fraudulently induced him to believe that what he was buying was not sacred, or was private property, as he cannot legally have what he contracted for, he can bring the action on purchase to recover damages for what he has lost by the fraud; and the same rule applies to the purchase of a free man represented by the vendor to be a slave.
* Il. vii. 472 sqq.
OF LETTING AND HIRING
The contract of hire resembles very closely the contract of sale, and the same rules of law apply to both. Thus, as the contract of sale is concluded as soon as the price is agreed upon, so the contract of hire is held to be concluded as soon as the sum to be paid for the hiring is settled, and from that moment the letter has an action on the letting, and the hirer on the hiring. 1What we have said above as to a sale in which the price is left to be fixed by a third person must be understood to apply also to a contract of hire in which the amount to be paid for hire is left to be fixed in the same way. Consequently, if a man gives clothes to a fuller to clean or finish, or to a tailor to mend, and the amount of hire is not fixed at the time, but left to subsequent agreement between the parties, a contract of hire cannot properly be said to have been concluded, but an action is given on the circumstances, as amounting to an innominate contract. 2Again, a question often arose in connexion with the contract of hire similar to that which was so common, namely, whether an exchange was a sale. For instance, what is the nature of the transaction if a man gives you the use or enjoyment of a thing, and receives in return the use or enjoyment of another thing from you? It is now settled that this is not a contract of hire, but a kind of contract apart by itself. Thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract. 3So nearly akin, indeed, is purchase and sale, to letting and hiring, that in some cases it is a question to which class of the two a contract belongs. As an instance may be taken those lands which are delivered over to be enjoyed for ever, upon the terms, that is to say, that so long as the rent is paid to the owner it shall not be lawful for the latter to take the lands away from either the original hirer, or his heir, or any one else to whom he or his heirs has conveyed them by sale, gift, dowry, or in any other way whatsoever. The questionings of the earlier lawyers, some of whom thought this kind of contract a hiring, and others a sale, occasioned the enactment of the statute of Zeno, which determined that this contract of emphyteusis, as it is called, was of a peculiar nature, and should not be included under either hire or sale, but should rest on the terms of the agreement in each particular case: so that if anything were agreed upon between the parties, this should bind them exactly as if it were inherent in the very nature of the contract; while if they did not agree expressly at whose risk the land should be, it should be at that of the owner in case of total destruction, and at that of the tenant, if the injury were merely partial. And these rules we have adopted in our legislation. 4Again, if a goldsmith agrees to make Titius rings of a certain weight and pattern out of his own gold for, say, ten aurei, it is a question whether the contract is purchase and sale or letting and hiring. Cassius says the material is bought and sold, the labour let and hired; but it is now settled that there is only a purchase and sale. But if Titius provided the gold, and agreed to pay him for his work, the contract is clearly a letting and hiring.
5The hirer ought to observe all the terms of the contract, and in the absence of express agreement his obligations should be ascertained by reference to what is fair and equitable. Where a man has either given or promised for hire for the use of clothes, silver, or a beast of burden, he is required in his charge of it to show as much care as the most diligent father of a family shows in his own affairs; if he do this, and still accidentally lose it, he will be under no obligation to restore either it or its value. 6If the hirer dies before the time fixed for the termination of the contract has elapsed, his heir succeeds to his rights and obligations in respect thereof.
OF PARTNERSHIP
A partnership either extends to all the goods of the partners, when the Greeks call it by the special name of κοινοπραξία, or is confined to a single sort of business, such as the purchase and sale of slaves, oil, wine, or grain. 1If no express agreement has been made as to the division of the profit and loss, an equal division of both is understood to be intended, but if it has, such agreement ought to be carried into effect; and there has never been any doubt as to the validity of a contract between two partners that one shall take two-thirds of the profit and bear two-thirds of the loss, and that the remaining third shall be taken and borne respectively by the other. 2If Titius and Seius agreed that the former should take two-thirds of the profits, and bear only one-third of the loss, and that the latter should bear two-thirds of the loss, and take only one-third of the profits, it has been made a question whether such an agreement ought to be held valid. Quintus Mucius thought such an arrangement contrary to the very nature of partnership, and therefore not to be supported: but Servius Sulpicius, whose opinion has prevailed, was of a different view, because the services of a particular partner are often so valuable that it is only just to admit him to the business on more favourable terms than the rest. It is certain that a partnership may be formed on the terms that one partner shall contribute all the capital, and that the profits shall be divided equally, for a man’s services are often equivalent to capital. Indeed, the opinion of Quintus Mucius is now so generally rejected, that it is admitted to be a valid contract that a partner shall take a share of the profits, and bear no share in the loss, which indeed Servius, consistently with his opinion, maintained himself. This of course must be taken to mean that if there is a profit on one transaction, and a loss on another, a balance should be struck, and only the net profit be considered as profits. 3It is quite clear that if the shares are expressed in one event only, as for instance in the event of profit, but not in the event of loss, or vice versa, the same proportions must be observed, in the event of which no mention has been made, as in the other. 4The continuance of partnership depends on the continuing consent of the members; it is dissolved by notice of withdrawal from any one of them. But of course if the object of a partner in withdrawing from the partnership is to fraudulently keep for himself some accruing gain—for instance, if a partner in all goods succeeds to an inheritance, and withdraws from the partnership in order to have exclusive possession thereof—he will be compelled to divide this gain with his partners; but what he gains undesignedly after withdrawing he keeps to himself, and his partner always has the exclusive benefit of whatever accrues to him after such withdrawal. 5Again, a partnership is dissolved by the death of a partner, for when a man enters into a contract of partnership, he selects as his partner a definite person. Accordingly, a partnership based on the agreement of even several persons is dissolved by the death of one of them, even though several others survive, unless when the contract was made it was otherwise agreed. 6So too a partnership formed for the attainment of some particular object is terminated when that object is attained. 7It is clear too that a partnership is dissolved by the forfeiture of the property of one of the partners, for such an one, as he is replaced by a successor, is reckoned civilly dead. 8So again, if one of the partners is in such embarrassed circumstances as to surrender all his property to his creditors, and all that he possessed is sold to satisfy the public or private claims upon him, the partnership is dissolved, though if the members still agree to be partners, a new partnership would seem to have begun. 9It has been doubted whether one partner is answerable to another on the action of partnership for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partnership business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself.
OF AGENCY
Of the contract of agency there are five modes. A man gives you a commission either for his own exclusive benefit, or for his own and yours together, or for that of some third person, or for his own and the third person’s, or for the third person’s and yours. A commission given simply for the sake of the agent gives rise in reality to no relation of agency, and accordingly no obligation comes into existence, and therefore no action. 1A commission is given solely for the benefit of the principal when, for instance, the latter instructs you to manage his business, to buy him a piece of land, or to enter into a stipulation as surety for him. 2It is given for your benefit and for that of your principal together when he, for instance, commissions you to lend money at interest to a person who borrows it for your principal’s benefit; or where, on your wishing to sue him as surety for some one else, he commissions you to sue his principal, himself undertaking all risk: or where, at his risk, you stipulate for payment from a person whom he substitutes for himself as your debtor. 3It is given for the benefit of a third person when, for instance, some one commissions you to look after Titius’s affairs as general agent, or to buy Titius a piece of land, or to go surety for him. 4It is for the benefit of the principal and a third person when, for instance, some one instructs you to look after affairs common to himself and Titius, or to buy an estate for himself and Titius, or to go surety for them jointly. 5It is for the benefit of yourself and a third person when, for instance, some one instructs you to lend money at interest to Titius; if it were to lend money free of interest, it would be for the benefit of the third person only. 6It is for your benefit alone if, for instance, some one commissions you to invest your money in the purchase of land rather than to lend it at interest, or vice versa. But such a commission is not really so much a commission in the eye of the law as a mere piece of advice, and consequently will not give rise to an obligation, for the law holds no one responsible as on agency for mere advice given, even if it turns out ill for the person advised, for every one can find out for himself whether what he is advised to do is likely to turn out well or ill. Consequently, if you have money lying idle in your cashbox, and on so and so’s advice buy something with it, or put it out at interest, you cannot sue that person by the action on agency although your purchase or loan turns out a bad speculation; and it has even been questioned, on this principle, whether a man is suable on agency who commissions you to lend money to Titius; but the prevalent opinion is that of Sabinus, that so specific a recommendation is sufficient to support an action, because (without it) you would never have lent your money to Titius at all. 7So too instructions to commit an unlawful or immoral act do not create a legal obligation—as if Titius were to instigate you to steal, or to do an injury to the property or person of some one else; and even if you act on his instructions, and have to pay a penalty in consequence, you cannot recover its amount from Titius.
8An agent ought not to exceed the terms of his commission. Thus, if some one commissions you to purchase an estate for him, but not to exceed the price of a hundred aurei, or to go surety for Titius up to that amount, you ought not in either transaction to exceed the sum specified: for otherwise you will not be able to sue him on the agency. Sabinus and Cassius even thought that in such a case you could not successfully sue him even for a hundred aurei, though the leaders of the opposite school differed from them, and the latter opinion is undoubtedly less harsh. If you buy the estate for less, you will have a right of action against him, for a direction to buy an estate for a hundred aurei is regarded as an implied direction to buy, if possible, for a smaller sum.
9The authority given to an agent duly constituted can be annulled by revocation before he commences to act upon it. 10Similarly, the death of either the principal or the agent before the latter commences to act extinguishes the agent’s authority; but equity has so far modified this rule that if, after the death of a principal and without having notice of his decease, an agent executes his commission, he can sue on the agency: for otherwise the law would be penalizing a reasonable and unavoidable ignorance. Similar to this is the rule, that debtors who pay a manumitted steward, say, of Titius, without notice of his manumission, are discharged from liability, though by the strict letter of the law they are not discharged, because they have not paid the person whom they were bound to pay. 11It is open to every one to decline a commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the principal to carry out his purpose either personally or by the appointment of another agent. Unless the resignation is made in such time that the principal can attain his object without suffering any prejudice, an action will lie at his suit, in default of proof by the agent that he could not resign before, or that his resignation, though inconvenient, was justifiable.
12A commission of agency may be made to take effect from a specified future day, or may be subject to a condition. 13Finally, it should be observed that unless the agent’s services are gratuitous, the relation between him and the principal will not be agency proper, but some other kind of contract; for if a remuneration is fixed, the contract is one of hiring. And generally we may say that in all cases where, supposing a man’s services are gratuitous, there would be a contract of agency or deposit, there is held to be a contract of hiring if remuneration is agreed upon; consequently, if you give clothes to a fuller to clean or to finish, or to a tailor to mend, without agreeing upon or promising any remuneration, you can be sued by the action on agency.
OF QUASI-CONTRACTUAL OBLIGATION
Having enumerated the different kinds of contracts, let us now examine those obligations also which do not originate, properly speaking, in contract, but which, as they do not arise from a delict, seem to be quasi-contractual. 1Thus, if one man has managed the business of another during the latter’s absence, each can sue the other by the action on uncommissioned agency; the direct action being available to him whose business was managed, the contrary action to him who managed it. It is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obligation even though he knows nothing of what has taken place. The reason of this is the general convenience; otherwise people might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected: and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing. Conversely, as the uncommissioned agent, if his management is good, lays his principal under a legal obligation, so too he is himself answerable to the latter for an account of his management; and herein he must show that he has satisfied the highest standard of carefulness, for to have displayed such carefulness as he is wont to exercise in his own affairs is not enough, if only a more diligent person could have managed the business better. 2Guardians, again, who can be sued by the action on guardianship, cannot properly be said to be bound by contract, for there is no contract between guardian and ward: but their obligation, as it certainly does not originate in delict, may be said to be quasi-contractual. In this case too each party has a remedy against the other: not only can the ward sue the guardian directly on the guardianship, but the guardian can also sue the ward by the contrary action of the same name, if he has either incurred any outlay in managing the ward’s property, or bound himself on his behalf, or pledged his own property as security for the ward’s creditors. 3Again, where persons own property jointly without being partners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses: here the defendant cannot properly be said to be bound by contract, for there has been no contract made between the parties; but as his obligation is not based on delict, it may be said to be quasi-contractual. 4The case is exactly the same between joint heirs, one of whom is liable to be sued by the other on one of these grounds in an action for partition of the inheritance. 5So, too, the obligation of an heir to discharge legacies cannot properly be called contractual, for it cannot be said that the legatee has contracted at all with either the heir or the testator: yet, as the heir is not bound by a delict, his obligation would seem to be quasi-contractual. 6Again, a person to whom money not owed is paid by mistake is thereby laid under a quasi-contractual obligation; an obligation, indeed, which is so far from being contractual, that, logically, it may be said to arise from the extinction rather than from the formation of a contract; for when a man pays over money, intending thereby to discharge a debt, his purpose is clearly to loose a bond by which he is already bound, not to bind himself by a fresh one. Still, the person to whom money is thus paid is laid under an obligation exactly as if he had taken a loan for consumption, and therefore he is liable to a condiction. 7Under certain circumstances money which is not owed, and which is paid by mistake, is not recoverable; the rule of the older lawyers on this point being that wherever a defendant’s denial of his obligation is punished by duplication of the damages to be recovered—as in actions under the lex Aquilia, and for the recovery of a legacy—he cannot get the money back on this plea. The older lawyers, however, applied this rule only to such legacies of specific sums of money as were given by condemnation; but by our constitution, by which we have assimilated legacies and trust bequests, we have made this duplication of damages on denial an incident of all actions for their recovery, provided the legatee or beneficiary is a church, or other holy place honoured for its devotion to religion and piety. Such legacies, although paid when not due, cannot be reclaimed.
OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS
Having thus gone through the classes of contractual and quasi-contractual obligations, we must remark that rights can be acquired by you not only on your own contracts, but also on those of persons in your power—that is to say, your slaves and children. What is acquired by the contracts of your slaves becomes wholly yours; but the acquisitions of children in your power by obligations must be divided on the principle of ownership and usufruct laid down in our constitution: that is to say, of the material results of an action brought on an obligation made in favour of a son the father shall have the usufruct, though the ownership is reserved to the son himself: provided, of course, that the action is brought by the father, in accordance with the distinction drawn in our recent constitution.
1Freemen also, and the slaves of another person, acquire for you if you possess them in good faith, but only in two cases, namely, when they acquire by their own labour, or in dealing with your property.
2A usufructuary or usuary slave acquires under the same conditions for him who has the usufruct or use.
3It is settled law that a slave jointly owned acquires for all his owners in the proportion of their property in him, unless he names one exclusively in a stipulation, or in the delivery of property to himself, in which case he acquires for him alone; as in the stipulation do you promise to convey to Titius, my master?
If it was by the direction of one of his joint owners only that he entered into a stipulation, the effect was formerly doubted; but now it has been settled by our decision that (as is said above) under such circumstances he acquires for him only who gave him the order.
OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED
An obligation is always extinguished by performance of what is owed, or by performance of something else with the creditor’s assent. It is immaterial from whom the performance proceeds—be it the debtor himself, or some one else on his behalf: for on performance by a third person the debtor is released, whether he knows of it or not, and even when it is against his will. Performance by the debtor releases, besides himself, his sureties, and conversely performance by a surety releases, besides himself, the principal debtor.
1Acceptilation is another mode of extinguishing an obligation, and is, in its nature, an acknowledgement of a fictitious performance. For instance, if something is due to Titius under a verbal contract, and he wishes to release it, it can be done by his allowing the debtor to ask that which I promised thee has thou received?
and by his replying I have received it.
An acceptilation can be made in Greek, provided the form corresponds to that of the Latin words, as ἔχεις λαβὼν δηνάρια τόσα; ἔχω λαβών. This process, as we said, discharges only obligations which arise from verbal contract, and no others, for it seemed only natural that where words can bind words may also loose: but a debt due from any other cause may be transformed into a debt by stipulation, and then released by an imaginary verbal payment or acceptilation. So, too, as a debt can be lawfully discharged in part, so acceptilation may be made of part only.
2A stipulation has been invented, commonly called Aquilian, by which an obligation of any kind whatsoever can be clothed in stipulation form, and then extinguished by acceptilation; for by this process any kind of obligation may be novated. Its terms, as settled by Gallus Aquilius, are as follow: Whatever, and on whatsoever ground, you are or shall be compellable to convey to or do for me, either now or on a future specified day, and for whatsoever I have or shall have against you an action personal or real, or any extraordinary remedy, and whatsoever of mine you hold or possess naturally or civilly, or would possess, or now fail to possess through some wilful fault of your own—as the value of each and all of these claims Aulua Agerius stipulated for the payment of such and such a sum, and payment was formally promised by Numerius Negidius.
Then conversely, Numerius Negidius asked Aulus Agerius, hast thou received the whole of what I have today engaged, by the Aquilian stipulation, to pay thee?
to which Aulus Agerius replied I have it, and account it received.
3Novation is another mode of extinguishing an obligation, and takes place when you owe Seius a sum, and he stipulates for payment thereof from Titius; for the intervention of a new person gives birth to a new obligation, and the first obligation is transformed into the second, and ceases to exist. Sometimes indeed the first stipulation is avoided by novation even though the second is of no effect: for instance, if you owe Titius a sum, and he stipulates for payment thereof from a pupil without his guardian’s authority, he loses his claim altogether, for you, the original debtor, are discharged, and the second obligation is unenforceable. The same does not hold if one stipulate from a slave; for then the former debtor continues bound as fully as if one had stipulated from no one. But when the original debtor is the promisor, a second stipulation produces a novation only if it contains something new—if a condition, for instance, or a term, or a surety be added, or taken away—though, supposing the addition of a condition, we must be understood to mean that a novation is produced only if the condition is accomplished: if it fails, the prior obligation continues in force. Among the older lawyers it was an established rule, that a novation was effected only when it was with that intention that the parties entered into the second obligation; but as this still left it doubtful when the intention was present and when absent, various presumptions were established as to the matter by different persons in different cases. We therefore issued our constitution, enacting most clearly that no novation shall take place unless the contracting parties expressly state their intention to be the extinction of the prior obligation, and that in default of such statement, the first obligation shall subsist, and have the second also added to it: the result being two obligations resting each on its own independent ground, as is prescribed by the constitution, and as can be more fully ascertained by perusing the same.
4Moreover, those obligations which are contracted by consent alone are dissolved by a contrary agreement. For instance, if Titius and Seius agree that the latter shall buy an estate at Tusculum for a hundred aurei, and then before execution on either side by payment of the price or delivery of the estate they arrange to abandon the sale, they are both released. The case is the same with hire and the other contracts which are formed by consent alone.