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#C' ^a^^- J-rft^ e^. 3li 

p, Oman 








Sl^e f^tstotg of tj^e iBtoman HatD. 





ILoId )8oo)t8rIIm otOif ^t^Iui^ets, 





It is certainly a remarkable circumstance, that not- 
withstanding the many illustrious civilians which this 
country has produced, there should exist so few ele- 
mentary works on the subject of Civil Law in the 
English language (1). To supply this defect has been 
the author^s object throughout the following pages ; 
and for this purpose he has had recourse to the French 
Manual of Civil Law by Lagrange, which has already 
reached six editions, and is understood to be used by 
French students as their ordinary text^bobk. Perhaps 
the author might have contented himself with a mere 
transhition; but as he proceeded with his task he 
seemed to find occasional defects and obscurities which 
he hoped to remedy. Using, therefore, the Manual 
in question as a foimdation, and retaining the form of 
question and answer, he has diligently consulted the 
original Listitutes of Justroian and Gtdus, the Digest 
and Code, and particularly the Commentaries of Orto- 
lan and Ducaurroy — works which exhibit a precise 
elegance of language, a power of analysis, and a 
lucidity of arrangement probably unsurpassed. 

(1) BesideB Mr. Phmimore'i "Introduction to the Stady of 
Boman Law," we may mention, that Mr. Sandais, late Fellow-ef 
Orid, has pdblished an edition of the *' Institutes of Justinian," 
which is excellent, particularly the Translation and Introduction. 


Out of these materials he has constructed the fol- 
lowing work, which is intended as a Transhxtion of and 
Gtmmentary on the "Institutes of Justinian." The 
most ample use haa been made of G-aius and the 
other authorities ; but Justinian's arrangement has 
been strictly adhered to, so far at least as the Books 
and Titles are concerned, — though the Paragraphs 
have in some cases been altered, for the sake of 
clearer arrangement. The numbers prefixed to each 
answer indicate the paragraphs of the text which are 
the subject of explanation. Although, for the pur- 
pose of understanding these pages. It is by no means 
necessary to consult the original, — for the more re- 
markable Latin expressions have been carefully se- 
lected and embodied in the work,^ — ^nevertheless the 
student will probably find it convenient to do so. 

It remains only to add, that the Introduction is 
intended to fiimiah such information on the history 
of Boman law aa may be found useful; and that a 
Table of Contents has been thought superfluous, the 
Index being so ample. 


The law of a people is so completely the expression and 
result of its civilization, that to be studied with success it 
must be studied historically. This is especially true of 
Soman law : for the CorptM jwris cvvilis^ which must be 
regarded as a code, and studied as our text-book, is essen- 
tifuly an historical document ; nor can its contents be elu- 
cidated without recurring to the foundation of the city. In 
short, the law of Justinian's time is not a body of regula- 
tions drawn up by a philosophic legislator, but a heteroge- 
neous mass of positive niles and legal principles originatmg 
in custom and enactment, modified, no douot, by the spirit 
of ciyilization, and interpreted according to the Tnarinig of 
convenience, sanctioned by judicial authority. 

Obscure as we must admit the origin of Rome to be, 
thus much is clear, that it was a compoimd of various 
elements. The Boman state — Populus Momcmus Quirites 
— consisted of three tribes : the Komans, Felasgians, un- 
der Komulus, the Titles, Sabines, imder Tatius, and tiiie 
Luceres, probably Etruscans, imder Lucumo. These 
three tribes were divided each into ten curia ; each curia 
into several gentes or clans ; and each gens into several 
familuB or families. But the family was the primary 
element of the state. No one could be a full member of the 
state unless he was a member of a family ; and to maintain 
the purity of this exclusive family-BVBtem was an object of 
the most anxious solicitude. Each tamily, each gens, each 
curia had its own sacred rights (1), in which none but mem- 

(1) Each fknuly, and each gens, had its sacra privata ; each cnria 
ana each tribe, its sacra pubUca; but, besides these, there were 
certain sacred rights appropriate to almost every event, whether 
in public or private life ; whether, for instance, war was to be de- 
dared, or a treaty concluded, or a marriage celebrated, or a child 



bers could participate, and to which none could be 
admitted except by birth or by a special law : by birth, 
when a person was sprung from a marriage contracted 
between two members oi a gens, under the form of 
coftfarreatio ; by a law, when me assembly of the people 
allowed the member of one family to enter another, or, for 
the first time, introduced into the state one not already a 
citizen. Moreover, the property of the individual member 
of a gens was regarded as in some sort the property of the 
body — Whence the claim of iihe genHles to succeed in certain 
events, and the necessity for a special law in order to 
sanction a testament by which the ordinary niles of suc- 
cession would be altered. — The tribes met together in a 
pubUc assembly, the comUia curiaia, to which c3l members 
of the curuB, but none except members, were admitted. 
Here the king was elected and clothed with the imjMs- 
rium, the supreme judicial and military power : here lie 
brought forward his proposals (ferre legem), which, if sanc- 
tioned, became law (^) : here also adoptions and testa- 
ments were authorized. — ^The king, it may be observed, 
was assisted by his senate or council of the chief citizens. 
— ^Now these members of the cutub were the original Ta* 
iricians, the perfect citizens, cives optimojure. 

But beside this privileged caste there existed another 
body of citizens, uie Plebeians, who, though probabljr 
sprung from the same origin, were excluded from all poh- 
tical power. These men, who must not be confounded 
with the mere rabble, consisted of the inhabitants of the 
conquered districts around Rome, who had been trans- 
planted to thai city. But they belonged to no gens, to 
no family; they haa therefore no right to participate in the 
jus saerwn ; they could contract no lawful marria^ with 
a patrician ; they could claim no vote in the comitta. In 
short, they had no political rights, and no means of ac- 

adopted. Now, the whole body of rules on these sulgectB const!- 
tnted the^tM sacrum, which was admmistered by varioos oiBoen, 
poniifices, aftgw8,/€ciale8,flamines, vestals. But the remarkable 
thing is, that the priesthood at Borne was not confined to a parti- 
cular caste : it was open to all the members of the curuB (the 
patridans), and in later times to the plebeians also ; nor, indeed, 
&we consider the ip^ii^flfl of superstition and the power of a 
priesthood, is it difficult to understand the eagerness of the most 
eminent men of Rome to fill these offices.— The king, as Pontifex 
Masimus, published certaui leges regia, which were collected by 
Pbpirinfl, in the time of Tarquinius Superbus. 



qiiirtnf( them. Nerertheless ikej were citdzens (ciom), for 
tney had the^tM qtUritium, but civeg^^non opHmojure, 

The Eoman state (civiUu), therefore, was a body of per* 
sons enjoying priyileffes from whioh all except member8(l) 
were excluded, and these members were divided into two 
classes : thej were either cives optimo jure or cive9 nan 
opUmojwre. The former had the jus mffragii, the right 
to vote in the comitia ; the jus honorum, the right to fill 
public offices ; and the^tt^ connubU, the right of intermar- 
riage. The latter had none of these rights. But as early 
as B. c. 446 the lex Canuleia invested them with the jus 
connubii, and in course of time, or we may say after the 
lex Hortensia^ b. c. 286, the distinction between the ple- 
beians and the patricians ceased. 

From the earliest period, however, both classes of cives 
•—patricians as well as plebeians — shared the^M quiritiwau 
This right was twofold : it involved the power of the ma- 
fMM, and the right of acquiring property, vie jus commercU, 
— ^Amongst a predatory tribe like the early Itomans, no- 
thing would more vividly represent the right of property, 
than the right of a conqueror over the spoils of war ; 
hence the term for property mancipia (manu eapta), things 
taken by the hand of power. Now, tnese mafici^ia — and 
this is tne important point — included not merely manimate 
Things, but animate Tnings — ^the members of a man's family. 
A Eoman pater-familias, or head of a family, had absolute 
power over his wife and children, so that he might sell 
them, or even put them to death. They were in manu, in 
his band, and part of his property. But turther, as none but 
a Soman citizen could have any property at all, so there 
were certain things, viz., land, being part of the ager Bo- 
manus (Eoman territory), filii-f., and certain other specified 
chattels (p. 77), in which property could be acquired by 
mancipatio only — a solemn sale, before witnesses, with the 
brass and balance (2). These things were termed res man' 
dpi, from the mode of transfer used ; he who acquired 
was said to have the^W commercii ; and the property so ac- 
quired was property ex jure quiritium. Now such being 
tne only property recognised by the law, and the sons and 
daughters or a Eoman being regarded as Things, it is ob- 

^1) The rest of the world were hostes, peregrini. 

(2) When the art of writing is unknown, witnesses and elabo- 
rate ceremonies are the only means of commemorating important 
facts, sach as the ownership and transfer of property. 



yions how marriage came to be the sale of a daughter to 
her husband, how an adoption came to be the sale of a 
natural to an adopted father, and how a testament came 
to be the sale of an inheritance. 

But there was one species of property which the plebeians 
oould not acq|uire, and which the patricians reserved for 
themselves, viz., a share in the aaer puhlicus. This was 
the public domain land which had been acquired b^ con- 
quest, and for which the plebeians, as well as the patncians 
— for both served in the ranks of the army — ^had sacrificed 
their blood and treasure. But the patricians alone occu- 
pied it at a fixed annual rent which they paid to the state 
— ^the plebeians were totally excluded, and, we may add, 
that the great object of the various agrarian laws from 
the time of Spurius Cassius, b. c. 486 to that of Ceesar, was 
to remedy this gross injustice. 

These invidious distmctions, however, between the pa- 
trician and the plebeian could not be maintained for ever. 
Step by step the plebeians vindicated for themselves equal 
rights with their fellow citizens. 

To trace these changes would be to write the history of 
Some. Suffice it to say, that as £ome advanced her 
standard, equal rights were extended, first to the inhabi- 
tants of the city, then to certain municipia and colonies in 
Italy, and lastly to the provinces beyond. — Connected with 
this we cannot overlook the distinction between the^W lati- 
num and the jus italicvm. In Italy, before the social war 
(b. c. 90), there were certain munictj^ia and colonies which 
had no privileges, either political or civil : they were in fact 
peregrini ; but there were others, the inhabitants of which, 
like the Latini, enjoyed the jus commercU, and in some cases 
the 9'iM connubii, m other words, who had civil, not poli- 
tical, privileges (civitas absque suffraaio). These were said 
to have the jus latinum. But after the social war, and the 
Julian and JPlautian laws (b. o. 90 — 88), the inhabitants of 
the Italian colonies and municipia obtained full citizenship, 
and the ri^ht of voting ; Home became the mere capital of 
Italy, and the jus itcUicum was law throughout the penin- 
sula ; now 1Mb jus italicum implied, besides the jus com' 
mercii, municipal self-government and freedom from di- 
rect taxation (1). Beyond Italy specified places enjoyed 

(1) The importanoe of these disdnctions between citizenB ceased, 
of ootine, aftor the time of Justinian, when all free inhabitants of 
the empire became Roman dtizens. 


these privile^eB, bat ihej were not jet extended to the po- 
yinces generally, which in the mean time remained sabjeot 
to a pro*consal or pro-pr»tor, and paid taxes to the Eoman 

Under Diocletian and Constantine, however, the Eoman 
empire was re-organized. It was divided into profec- 
tnres, each under a praiorian pruned f each pneieetmre 
was divided into several dioceses under a vicarius, and 
eadi diocese was divided into various provinces under a 
president (prases, rector) . The cities in the provinces were 
governed by a senate, curia, or ardo decurionum ; besides 
which Yalentinian instituted the drfenscres ckntatis, whose 
duty it was to stand between the burghers and the opprea- 
sion of the imperial government. In some cases these de- 
Jensores had a jurisdiction up to 60 solidi, which Justinian 
raised to 300. An appeal lay to the prases. Moreover, 
the dtfensorhad power to nominate tutors, and to register 
certain solemn acts, danationes, and testcimenis. Lastly, 
they exercised a criminal jurisdiction over nunor offences. 

Having made these general observations, we have now 
to explam very briefly the various sources of law to be 
met with in tne Carpus juris eivilis, of which we shall 
notice seven, and to give a slight sketch of Justinian's legal 

1. Leges. The original assembly of citizens at Eome 
was the comitia euriata ; but this patrician assembly was 
soon replaced by the comitia centuriata of Servius TuUius, 
in which the patricians and plebeians met toffether, and in 
which the right of voting was allowed according to a pro- 
perty qualification. In this comiUa those leges, or laws, 
were passed which are mentioned as one of the sources of 
law; criminals were tried, and magistrates were nomi- 
nated. At first its enactments required the sanction of the 
comitia euriata : but when that necessity ceased, the curia 
were only summoned for the transaction of certain formal 
business, such as adoptions, adrogations, and the making 
of testaments. 

2. Plebiseita, This comitia centuriata wsa succeeded by 
the comitia tributa, in which the voter, instead of claiming 
his right by a property qualification, claimed it by*re- 
siding withm a particular district. The bills passed by 
the comitia tributa originally bound none but the ple- 
beians, hence their name Plebiscita ; but in the year 286 
B. 0. the lex Hortensia made them binding on aU Booian 

3. Senatus-eonsulta, The other legislative body was the 


senate. Under the kings this rojal conncil was composed 
of the wealthiest and most illnstnoos patricians. Until the 
dose of the republic, it does not appear to have had the di- 
rect power of enacting laws ; neyertheless, its orders issued 
to magistrates bound those subject to their jurisdiction. 
Moreover it exercised a dispensmg power with respect to 
individuals, and even made additions to certain laws ; but 
in general its functions were more administrative than 
legislative. But from the time of Augustus, the senatus- 
consulta, or ordinances of the senate, became a fruitM 
source of law: thenceforward, till the time of Severus, 
A.D. 222, they are numerous. After Hadrian's time it 
became usual to add to & So. the formula Auctore D, Hcu- 
driano, which shows the dependence of the senate on the 

4. The Twelve Tables, Just laws are vain unless thej 
are justly administered. At Rome the patricians, the 
avowed rivals and foiled oppressors of the plebeians, ad- 
ministered justice ; so that the motives and facilities for 
its perversion are obvious. Moreover, as the law consisted 
merely of a body of rules, embodied in tradition, and 
ascertained by custom, the urgent desire of the plebeians 
to have a written code {script<8 leges) is easUj appreciated. 
But besides this, it seems to be generally admitted that one, 
if not ^e chief, object of a new code was to amalgamate 
the orders of patricians and plebeians, by assimilatmg the 
legal rights of both. After various unsuccessful attempts, 
an embassy was at length dispatched to Greece, b. c. 454, 
to obtain whatever information it could as to the practical 
working of the laws of Solon, and, having returned, the 
commission called decemviri drew up ten tahula, which was 
followed next year by two more, all of which were engraved, 
and hung up in the forum for the public information. 
These laws, the Duodecim Tabula (a few fragments of 
which have descended to our times) formed the basis of 
Boman law till the times of Justinian ; and if we may at 
all regard the testimony of Cicero, it seems impossible to ex- 
aggerate their importance. They settled all the most im*- 
portant rights of a Koman citizen : the mode of suing ; 
the penalties for theft; the rate of interest, which was not to 
exceed/<eniM unciaHwm (8^ p. c. for 10 months) ; the rights 
of cremtors over Hieir debtors ; the power of a pater-fami- 
lias; the making of wills (p. 119) ; the rules as to succes- 
sion {Atereditas), guardianship (tutela), ownership (domi- 
num), and possession ; delicta ; breaches of trust ; pradia 
rustiea,' the common rights of the people, forbidding 


Special prmleges; the punishment of corrapt judlces; 
triiJs as to life, liberty, or status: the expenses of fune- 
rals, and the mode of interment; the^W saervm; and 
marriaf^e and divorce, prohibiting intermarriage between 
patricians and plebeians. 

5. Responsa Prudentum, But the Twelve Tables re« 

Suired an interpreter. Being the mere record of customs 
Lready known, and in living force at the time, they were 
laconic in expression and left much to construction. At 
first the patricians undertook this necessary office, because 
thej alone were instructed in the forms of the legis actiones, 
which were absolutely essential to set the law in motion, and 
the dies fasti and nefasti, or proper times for instituting 
proceedings. But, in the year B. c. 312, Cn. Flavins, a 
scribe, published a calendar in which all the dies fasti and 
nefasti were marked, and a collection of the formnlee of the 
legis actiones. Thenceforth the monopoly enjoyed by the 

Satricians declined : and this change was completed when 
*. Coruncanius, the first plebeian Fontifex Maximus, b. c. 
281, introduced the practice of giving legal advice. Others 
followed his example, and hence arose the jurisprudentes 
or Jurisperiti, who walked the forum and acted as advo-^ 
oates. They accompanied their clients to the magistrate^ 
and stated their opimons as to the law ; and these opinions, 
according to their soundness and ingenuity, naturally ob« 
tained the force of law. Such was the origin of that branch 
of Homan jurisprudence, which was sometimes called jtis 
receptum, or sententia recepta, or jus civile (1), because, no 
doubt, it was a development of the principles laid down in 
the Twelve Tables. 

Augustus, however, was the first who gave these opimons 
legal authority, though Hadrian afterwards defined that 
authority difierently (p. 6). Subsequently Theodosius II.,. 
by a Constitution dated a. d. 426, declared that a judge 
should decide according to the majority of the great jurists 
Gains, Papinian, Ulpian, Paul, Modestinus ; and that if 
ihere was an equal division of opinion Papinian should de- 
cide, but that if there was none, the judge should decide 
for himself. — Though there had always been difierences of 
opinion upon various points among Eoman jurists, it is not 
mitn the reign of Augustus that we find tnese differences. 

(1) Jus civile dsaotea : 1. The law of a, particular state, as op- 
posed to the^'fw gentium ; 2. All Roman law except the prtetoriau 
law; 3. The resptmsa prudentum alone. 


80 far deyeloped as to hare given rise to two ereat sohook 
of Soman law — ^the Sabinians and the Frocmeians. The 
former deriyed their name from Sabinus, a disciple of 
Ateins Capito, who flourished under Augustus ; the latter 
from Proculus, a disciple of Antistius Labeo, who lived 
about the same time. JJabeo, imbued with the principles 
of a liberal philosophy, endeavoured to enlarge the prin- 
ciples of Soman law, whilst !^roculus adhered with scrupu- 
lous fidelity to the legal doctrines as they had been handed 
down to hmi. These schools survived till the time of the 
Antonines, for Gains, who wrote under them, declares 
himself a Sabiman. From the beginning of the Empire, 
therefore, to the time of Justinian, may be taken as the most 
important period in the history of Koman law — a period 
during which that noble system was gradually moulded and 
matured by the sagacious ingenuity of such men as Gkdus, 
Papinian, "Paul, Ulpian, and Modestinus — ^the five great 
Soman jurists. — Gtiius was probably bom in Hadrian's 
reign, a. d. 117, and wrote under the Antonines. Besides 
his Commentary on the Twelve Tables and the edictum 
provindale, he wrote the Institutes. This work was lost 
until Niebuhr, in 1816, discovered it in the library of the 
chapter of Yerona, the manuscript having been written over 
with the letters of St. Jerome.— iEmilianus Papinianus was 
tiie praetorian prefect of Septimius Severus, a. d. 193 — ^211. 
He was executed by Caracalla. Papinian was the greatest 
of all theJnirists.---'Paul, Ulpian, and Modestinus were all 
pupils of Papinian. Julius Paulus was a member of the 
imperial council, and prsBtorian prefect under Alexander 
Severus (a. d. 222). — Domitius Ulpianus was from 1>^» 
in Phoemda. He wrote under Septimius Severus and 
Caracalla, and was slain (a. d. 228) by the soldiers before 
^e eyes of A. Severus. He was pmtorian prefect at his 
deatli, and the Digest is full of extracts from his works. 
— Herennius Modestinus, the pupil of Ulpian and Papi- 
nian, was a member of the imperial coimcil in the time of 
A. Severus, but very little is loiown of him. 

6. Edicta. Originally the judicial authority resided with 
the king; it was afterwards shared bv the consuls, and 
subsequently vested in the pr»tor. The law was that of 
the Twelve Tables ; but it was impossible that principles 
so narrow and rigorous could long maintain their ground, 
for they availed none but Soman citizens. With conquest 
and civilization came enlightenment ; and the rules of a 
barbarous and exclusive system proved inadequate to sa- 

urTBOPvonoN. zm 

tisfytliere(}iiirement8 of justice, increased as they were by 
the multiphed relations between man and man. The dis- 
pate was no longer between citizen and citizen, but be- 
tween citizens and strangers, who had come to reside, for 
purposes of commerce or recreation, within the Soman 
territory. The prcetor tirbanus might suffice for the people 
of Some, but some magistrate was required who should 
administer justice to foreigners : hence the prator jtere- 
grinu8, who was created b. c. 243. This magistrate, in- 
stead of confining himself to the strict law, which was 
totally inapnlicable to any but Soman citizens, adopted a 
broader ana more liberal basis, and administered justice 
according to those universal principles of law which are 
founded upon reason and admittea by all mankind. In 
jshort, he followed the^tM gentium. 

The superior wisdom of its principles soon became ob- 
yious even to the Soman citizen ; but still any direct in- 
terference with the hallowed decrees of the Twelve Tables 
was impossible. Nevertheless, it was possible to attain 
the same end by indirect means, and the plan was this :-^ 
The pr»tor on assuming office published an edictum, in 
which he defined the principles according to which he 
should administer justice. This edict were iascribed (in 
tctbulis, in alho) by successive prsetors ; but the authority 
of each expired with its author. Experience, however, 
often proved the utility of some regulations suggested by 
a prsBtor ; these were re-enacted by his successor, and not 
unfrequently became permanent. By this means the 
strict rules of the Twelve Tables were modified and its de- 
ficiencies supplied, till at last the prsetor's edict became, 
as Cicero tells us, the text-book ot the Soman student, 
even to the neglect of the Twelve Tables. It is impossible 
at present to explain the ingenious means by which the 
praetors managed to extend uieir iurisdiction, and to mo- 
dify and enlarge the principles of the Twelve Tables. The 
study of the civil law itseli can alone do this. 

We know, however, that the edict was the subject of 
most elaborate treatises by the most endneni Soman 
lawyers ; and, in Hadrian's time, Salvius Julianus was di- 
rected to draw up an edict which should be recognized by 
all future prsetors, and form ^permanent chapter of the 
iaw. This was called the edictum perpetuum—^erpetuttm, 
however, in a different sense from that ordinarily attached 
to the term — for it generally signified that the edict was to 
continue during the whole of the prwtor's year of office. — 
We may add mat the edictum pratoris, denotes that pub- 


lished by the two pneton ; edidum proifincia, that piib> 
fished in the provinces ; ediotum trataUiittm, ihe portion 
of the edict translerred from the old one to the new ; eduh 
turn novum, the new portion* 

Moreorer, the pnetors were not the only magiBtratee 
who published va edict, for the sdiles did &e same with 
regard to the police of the markets. Lastiy, we may men- 
tion that the edicts of the pnetors and the »diles were de- 
noted by the term jus honorarium, because the law so 
created was promulgated or created by magistrates^ mU 
honored gerebant ; honores signifying offices entitling tne 
possessors to certain external marks of dignity. 

7. Constitutions. After the destruction of the republic 
by Augustus, the power of the emperor, though at first 
nominal — ^for he was bM.q^ prvnceps r0ip«f6^tc<r-^gradually 
increased, till at lengw he became " the state." Indeed 
this result followed almost as a necessary consequence^ 
after the emperor had concentrated in himself all the 
chief offices. The supreme power, imperium, was vested 
in him by the lest regta (p. 5) passed at the beginning of 
each reign, by which the people ddegated to him their ab<> 
solute power. The emperor expressed his will in yarioua 
ways ; e. a,, by edieta, decreta, reseripta, explained p» 6» 
ana mancwta, oirections to officers. 

Such is a short summaiy of the sources of the Boman 
law; and, looking to the variety of the sources, the lapse of 
time, the many revolutions, and the extraordinary develop*' 
ment of the Koman state, we cannot be surj^ised that m 
Justinian's time the law should be volunnnous and per- 
plexed, or at the necessity felt for arrangement and codi- 
fication. It must not be supposed, however, that immedi- 
ately before Justinian's time direct reference was made by 
the judges to the text itself of the leges, the edieta, the 
senatus-consuUct, and the plebiseita. For the Commentaries 
of the great jurists upon the text had in fiict superseded 
the authority of text itself; hence we are justified m saying 
that horn the time of Constantino, the law consisted sub- 
stantially of these Commentaries and the imperial ConsO" 

Now, as early as the year a. d. 306, Gre^orianus, and 
A. D. 365, Hermo^enianus, had made collections of aU the 
imperial Constitutions ; these codes, however had nolefris- 
lative authority. But in the year a. d. 438, Theodosius ll. 
published a code for the eastern and western empire^ which 
embraced all tiie Constitutions of the emperors after Con- 
stantino, besides which he published certain NoveUs. 
In the year a. d. 528, Justinian appointed a commission 

of te& jvuvto, wit& I^boniati at the head, to drftw tip a liew 
eode, taking ^066 we have mentioned and the Norellie aa 
the basis. In the month of April 529, thei^ task wai com- 
pleted, and a code was published, by the efFect of whid!i 
all Oonstitutions, not incmded therein, were abolished, and 
erery Constitation it did include was made applicable to 
every subject of the empire. ^ 

H!ayinflr arranged the Constitutions, J'nstinian eommis^ 
sioned IMbonian, with sixteen others, to make select ei> 
tracts £rom the writings of the elder jurists, which they 
were authorised fto to alter and arrange as to make ihestk 
accord with the change of manners and the dictates of 
justice, the object beingto exhibit in a systematic form a 
complete exposition of JEtoman law. One difficulty, how* 
erw, at once became apparent. There were certain moot 
points upon which the schools of Salnnus and F^roculua 
neld contradictory opinions, to settle these, therefore, Ju6- 
tinian promulgated nis Fifty Decisions {Quinquaginta De* 
cisiones). BeBeved from this perplexity, Tribonian and hie 
colleagues applied themselves to their task, and in the ia4npe- 
dibly short space of three years (Dec. ▲. d. 630—633) ipjUb* 
lished the Digesta, or JPandectm (general collection), mto 
which, as the emperor said, onmejus antiquum coUatum est^ 
This Digest had the force of law (1). 

But it occurred to the emperor, that, for a student, the 
Code and the Digest would be too voluminous; he therefore 
directed Tribonian, with Theophilus, and Dorotheus, Profes- 
sors of Law, the one at Constantinople, the other at Beiytus 
to draw up an elementary work, or institutiones of Itoman 
law. This, which followed the well-known work of G^us, 
was not simply a book of instruction, for it was declared 
to have the uxcq of law. 

(1) It is divided into fifty books and seven parts, correspond- 
ing to the edict, for it followed Ulpian's work on the same sab* 
ject. Each book consists of titles, each title of extracts, and each 
extract of a principiMm (Pr.) and paragraphs. These extracts^ 
winch are headed by the name of the jnrist or legal author, are 
called Uw)8 (L.) or fragments (Fr.). The digest itself is denoted 
by D. or ff., and is referred to in various ways : thus, the reference 
to paragraph 6 of the 5th law of the title De Jure Dotium, wMch 
is title 8of the 23rd book, is this : L. 6, § 6,jf. De Jure Dot, or 
Pr. 5, § 6, D. De Jure Dot, (23, 3), or Pr. 5, § 6, D. 23, 3, or 
D. 23, 3, 5. § 6. So the Institutes, which are divided into four 
books, each di which contains several titles, and each title a prin- 
oipium (Pr.) and paragraphs, are referred to thus : Lib. 1, 18, § 1. 


Bat Jufltiniaii, Btill unsatisfied with his legal reforms^ 
directed Tribonian and four other jurists to revise the code 
jof 529, and to incorporate the fifty decisions. This revised 
;Oode (codex repeiita prmlectionis) was published, and db- 
tainea the force of law on the 17th I^oy. 634. lliis is the 
Code we now have, but it should be observed that the Code 
of 529 is the one referred to in the Institutes, so that there 
jare certain Constitutions referred to in it which are not to 
be found in the Code of 534 

Nor was Justinian satisfied even yet, for between the 
years 535 and 564 (a. d.), he published no fewer than 165 
NovelkB Constitutumes, or new Constitutions, which were 
generally written in Greek. 

. Till tbe reign of Basil the Macedonian, a. d. 867, these 
compilations were considered law; but he recons^cted 
the whole system, and embodied the law in the form of 
BcbsiUca, These, though modified by successive em|)erors, 
joontinued to be the basis of the law till the taking of 
Constantinople, in 1453. 

On the subject of this Introduction, see Kent's Com. vol. 1, and 
Gibbon, viii. 30. 






Q. The object of the just man is to render unto every 
one his own. Now, in order to attain this, what is requi- 

^r. A, Justieej or the fixed and continual will to render 
unto every one his own : and jurisprudefice, or a know- 
ledge of law (1). 

Q. Define law. 

Pr. A. The science of the just and the unjust ; the body 
of rules which enables one in everything, whether human 
or divine, to distinguish the lawAil from the unlawfid (2). 
I say " divine," because, in Pagan Some, the rules as 
to public worship,— the sacred or pontifical law, — ^was a 
branch of jurisprudence, and greatly afiected the rights 
of citizens. 

(1) Ju8, law; justitiaf the will to keep law; jurisprudential 
knowledge of law. 

(2) A special knowledge of law {sdentia) implies a general 
knowledge of every subject (res humanm et divina) ; for everything 
isjustum OTinJustum, Ulpian says, law is ars aqui et boni : that 
a jurist is a sort of priest and true philosopher. The Romans, 
however, did not confound law and morals— perfect and imperfect 
duties. Ulpian, therefore, must he understood to say only that 
law rests on morality, and that its precepts are binding more be- 
cause of the moral than the legal obligation involved. Jus (jus- 
sum, order). — 1 . Law, or body of rules ; 2. The right arising out 
of them, Bsjus ilineriSf right of way ; 3; Judgment seat, as in jus 

B ' 

2 EXAMINATION IN [B. 1, T. 1. 

Q. What are the three fundamental maxims of law P 

£3. A, 1. To live morally (horieste)* 2. To injure no one. 
3. To render unto every man his own. The whole system 
of law rests on these tnree moral bases, and it would be 
imperfect if any one of them were wanting. For there are 
some laws prohibiting certain acts, apart from any injury 
they may occasion, simply because they violate puolic mo- 
rality : thus, a man may not marry two wives, or within 
certain degrees, &c. These and such like are founded on 
the first maxim, honette vivere, 

Q. Does law include every duty comprehended in this 
maxim P 

A, No ; law rests upon, but is not co-extensive with 
morality. Vivere honeste involves many duties, as charity, 
temperance, &c., to which law attaches no obligation. Such 
mere moral duties are styled imperfect^ to distinguish them 
from perfect duties, which raise a legal obligation, and are 
enforced by law. This distinction is thus expressed : non 
omne qnod licet honestum est, 

Q. How is law divided P 

§ 4. A, Into two parts. For a man has duties to each 
of his fellow men, and to the state, of which he is a mem- 
ber. Hence, 1. Public law, regulating the constitution 
of the state, and its relations with its members (1). 2. 
Private law, regulating the interests of one individual in 
regard to those of another. The Institutes discuss only 
private law. 

Q, How is private law divided, as regards the sources 
from which it is derived P 

^ 4i. A. Into jtis naturale, jus gentmmt jus civile^ 


Q. Define the law of nature. 

Pr. A, This, or the law of living creatures, is the law 
taught by nature to all animals : for some laws are obeyed, 
not by numan intelligence, but' by natural instinct. In 
obedience to it the sexes unite, and the young are provided 
for. Though man and brute both obey it, man alone 
obeys with nis reason, and under a sense of duty. 

(1) Jv8 sacrum formed part. 


Q. Define the law of nations. 

§ 1. ^. This, or the law of the human race, is the law esta- 
blished by natural reason amongst all men ; and is so 
called because it is observed amongst all civilized nations. 
Its characteristic, however, consists, not in being recog- 
nized by, but in being applied to every person within a 
state, wnether foreigner or citizen. 

Q. How do commentators divide the lus gentium ? 

A. Into primanry and secondary, Tne primary law of 
nations contains those primordial principles which are ad- 
mitted by all men, and which, being derived from the very 
nature of man, were revealed to him from the very be- 
ginning, even ])rior to the existence of those larger com- 
munities of which he soon became a member. Thus, at 
no period of man's history could he have been ignorant of 
the right of self-defence, or of his duty to worship God 
and honour his parents. The secondaiy law of nations, on 
the contrary, contains those principles which were created 
by the wants of society, and were aeveloped as their neces- 
sity and convenience became apparent. Amongst such we 
include the notion of property, and almost all contracts, 
such as sale, hiring, &c., though some, as stipulation be- 
long to the civil law (§ 2). 

Q. Was the secondary ever practically inconsistent with 
the primary law of nations P 

§ 2. A, Yes. The necessities of society gave birth to 
institutions inconsistent with the genius and provisions of 
the primary law. Thus the Roman jurists held slavery, 
the nruit of international war, to be port of the secondary 
law, although they admitted its inconsistency with the law 
of nature, ». e. the primitive state of man ; for by nature all 
men are free. 

Q. What is the civil law P 

§1.-4. This, or the law of citizens, is that which a peo- 
ple sets up for itself {sihi constituit), and which applies to 
citizens alone. Amongst all civilized nations, jus pri- 
vatum consists of two parts : under the one, rights are 
claimed both by citizens and strangers ; under the other, 
by citizens only. This second part is the jus civile. 
Hence there is a civil law of the Athenians, of the Gauls, 
and of the Eomans. When the term " civil law" occurs, 
it is to be understood as the Eoman (§2). 

Q. How was the Eoman civil law divided P 

§ 3. ^. Into written and umoritten* The former was that 
promulgated or expressly declared to be law by the legis- 

B 2 

4 BXAMINATIOir Ilf [b. 1, T. 2. 

latnre. The latter was that introduced by castom and 
the tacit consent of the legislator (1). 

Q. Did not unwritten form a large branch of civil law P 

A, Yes. On the one hand, the law of the Twelve Tables, 
so far from abolishing all prior customs, referred to them 
as its necessary complement ; on the other hand, as civil- 
ization advanced, the Twelve Tables proved too narrow and 
technical: new customs were introduced, and doctrines 
and practices, originally invented by jurists, were sanc- 
tioned and admitted to possess an authority equal, if not 
superior, to written law. Such was the origin of the jus 
non scriptum : and the terms ^t^^ receptn/m, moribus intro- 
diMsium, sententia receptee, so common in the books, prove 
the imnortance and influence of custom on the develop- 
ment 01 Eoman law P 

Q, What are the sources of written law P 

§ 3. A, 1. Leges; 2. Plehiscita; 3. SeruUus-caTisuUa ; 
4i, Imperial ormnances ; 5. The edicts of magistrates ; 
6. Sesponsa Prudentum (2). 

Q. Define a Lex, 

§ 4. A, It was, properly, a resolution adopted by the 
whole Eoman populus (Patricians and Plebeians) in the 
comitia, on the motion of a magistrate of senatorial rank, 
as a consul, a preetor, or a dictator. 

Q. Define & plebiscitum, 

§ 4. ^. A resolution adopted by the flehs. alone, in the 
comitia tributa, on the motion of a plebeian magistrate, i, e. 
a tribune (3). 

Q. Had these Plebiscita the force of law P 

§ 4. ^. The Patricians long insisted that the Plebiscita 
were not generally binding without their sanction, and it 

(1) Section 10 puts the distinction between written and unwrit- 
ten law on the ground that Roman law was derived from Athens, 
where the law was written, and from Sparta, where it was com- 
mitted to memory : a double error ; for, even though the law 
of the Twelve Tables had been derived from unwritten law, it 
was written law at Rome, because its authority rested on its pub- 
lication ; moreover, the mere act of writing is nothing : so that 
the laws of Sparta, promulgated by Lycurgus, were written law, 
even although they were only committed to memory. 

(2) These refer to the several modes of legislation. Except 8 and 
4, the others are all spoken of in the past tenm {corutiiuebai, 
§ 4, &c.). So. are spoken of in the present : for though the senate 
was not actually abolished, its power was merely nominal. 

(3) The text is veluti, but tribunes were the only pleb. mag. 


was not until tlie Lex Hortensia (b. c. 286) that they 
bound all the citizens. 

Q. Define a senattiS'tronsuUum (1). 

§ 5. ^. A resolution of the senate. 

Q. Whence the right of the emperors to make ordi- 
nances having the force of laws P 

§ 6. A. By the Lex Eegia, which, whilst it inyested each 
emperor with his powers, clothed him with all public 
autnority. For long this law was expressly renewed on 
each accession, but, afterwards, the authority it conferred 
was held to be transmitted to the new emperor by the fact 
of election. 

Q. How many kinds of imperial ordinances (conHitu- 
tiones) were there P 

§ 6. i4. Three : 1. Bescripta, instructions or answers 
(j)er epistolam) given by the emperor to questions put to 
mm; 2. Decreta, decisions of the emperor as supreme 
judge (cognoscens decrevit) in cases brought before hmi by 
summons or appeal ; 3. Edicta, mles voluntarily made by 
the emperor to meet cases which might arise : Bescripta, 
observe, determined those which haaarisen. 

Q. Were all Constitutions general P 

§ 6. A, No. According to the imperial will, they were 
sometimes ^en^ra^, •'. e. binding upon every citizen ; some- 
times personal, t. e, applicable only to particular cases 
and persons. Edicts were always general, decreta and re- 
scripta often personal; e, g. the emperor sometimes allowed 
an individual to be legitimized, or adopted, or he pardoned 
a convict. Personal Constitutions were called privileges 
(privata Lex). 

Q. Define the edicts of magistrates. 

A. They were a sort of statement published by the 
ma^strates on assuming office, to define the principles on 
which they should act. 

Q. Which of the magistrates had the right to pub- 
lish them P (2) 

(1) The So. under the Bepublic were more connected with the 
execution of the law than with its creation and reform. Justinian 
allades to those passed after the senate had replaced the popular 
assemblies (oomitia). 

(2) The preetor had to declare the law (jvs dicer e). This he did 
fMYusp generally in his edict (edicere, edictwn) or particularly, 
when in a private suit he settled the question upon the determina- 
tion of which the decision of the judex, to whom the caufie was 
remitted, was to turn. In connection with the terms jue dicere 
we may mention addicere, addictio {ad attributive), meaning to 

6 EXAICIKATIOS TS [b. 1, T. 3. 

§ 7. ^. The macisiraius populi Somami, so caJkd to 
dutimnii^h tham mim the magistrates within cities and 
the plebeian magistrates ; this ii|^it» howerer, was chiefly 
exennsed at Kome by the pne t or a and the corole sediles, 
and in the proviDees bj the prtuide^ ijr goremors, who 
there filled the oiBce ofpr g t or s. 

Q. Did not these edicts, particoLirly those (^the pnetors, 
exert great inflaenee on Boman lawP 

§ 7. A, Tes. For the pnetors, as jndieial officers, in- 
troduced by means of them new rales and formuUd (1), 
which regulated and confirmed general customs, modi- 
fied t]ie rif^orous technicality of the Twelve Tables, and 
thus kept tne Uw on a lerel with the progress of ciTiliz- 
ation ; so that the Twelve Tables, having t&ir defects thus 
supplied, continued, down to the lower empire, the basis of 
the Boman Uw. The ehan^es thus introduced by suc- 
cessive prietors, when sanctioned by public opinion, were 
transferred year by year from one eoict to another, and 
finally became a part of the Boman law under the name of 
pnetorian or honorarium Jus, to distinguish it from the 
jtis civile orstricUtmJus, the law of the Twelve Tables. 

Q. Whence the name^W honorarium f 

§ 7. A, Those magistrates who published edicts were 
entitled gerere hoftores, u e, to certain external marks of 
dignity. This name, therefore, was given to law created by 
magistrates qui honores genmt, wheQier prstors or curule 

Q. What were the Besponsa Prudentum ? 

§ 8. il. The opinions and decisions of such jurists as the 
emperor allowed to lay down the law (coTidere), During 
the Bepublic, these opinions being merely private, formed 
part 01 unwritten law. Augustus first gave certain jurists 
authority to interpret the law. Adrian defined the extent 
of their authority by declaring, that if they were unani- 
mous (omnium), their opinion should be law, but that, if 
not, the judex should himself determine. 

Q. Was the civil law unalterable P 

§ 11. A, No ; it was altered according to the will of the 

transfer the property, by deoUriiig the law : whilst ae^udicare, 
adjudicatio, mean the transfer of the property by the judex, who 
was sometimes authorized so to do by his jadgment. So, we may 
observe, that ene injure means to be before the pnetor, injudicio, 
to be before the judex, who is charged to iuqnire into ibe evi- 
dence relative to the questioii submitted by the pr»tor, and to 
give judgment thereon, 
(l) B. 4 tt. 6, 13, 15. 



nation wlueh established it. Herein it differed from ike 
ju9 mUurale (in which we include Jus gentium), which, 
Deing based on the nature of man, was fixed and immu- 
table (1). 

Q. How was the civil Uw altered P 

§11.^. The text says, bja new law {aliapotiea lege data), 
or Dy tacit consent oiihepopuhju, L e. by disuse (z). 

Q, What are the subjects of civil law r 

§ 12. A. Persons, thmgs, and actions. Persons ; for a 
man's rights vary with the class to which he belongs, viz. 
whether ne is free, a slave, a citizen, or a stranger, a pa- 
ter"/'., or ^filius-f., &c. Things ; for rights vary with the 
subject-matter to which they apply, viz. whether they be 
moveables or immoveables, corporeal or incorporeal. &c. 
Actions ; for they are the legal modes of protecting and 
enforcing rights. 


Q. What is meant by person, in law? 

A, Persona is any being, regarded as capable of having 
rights and owing duties. u.encepersona includes not only 
physical men, but also certain abstract or metaphysical 
bemgs— Hsreatures of the law, deemed capable of rights and 
duties ; e,a, the state, a city, a corporation, &c. ^ Con- 
versely, all men are not persons ; for slaves, according to 
the old law, and in respect to their masters, had no rights 
and owed no duties. They were ree^^things in which ^>er- 
sons had rights (3). 

Q. Exp£n ike derivation of persona, and its original 

A, Persona is a mask used by actors on the stage. For 

(1) This is not strictly true. For the Jus gentium does change 
with the changes in civilization. Thns slavery, which was once 
part of the law of nations, is not so now. 

(2) This doctrine obviously refers to the old political constitu- 
tion of Home, where the popuhts had legislative power, and could 
therefcHre repeal a law. But that power being transferred to the 
emperors, Constantino was entitled to say that custom could not 
prevail against law. 

(S) Still skives had a personality. Thus they might be kteredes 
mstituti, and, sometimes, might bind thdr masters. Moreover, a 
slave might be punished for committing a wrong, and, in late 
times, his master could neither put him to death nor ill use him 
(T. 8, § 2). 

8 EXAlilNATION 19 [b. 1, T. 3. 

in Eoman law rights and duties were not attached to the 
physical thing man, but to certain qualities which invested 
pi"i ; €, a., that of being free, a citizen, a pater-f., &c. I^ow, 
it was the possession of these qualities which entitled a 
man to play a particular part in society, and constituted 
^e person (1). 

Q. What is the great distinction between one man and 
another P or how are persons divided P 

Pr. A, Into freemen and slaves. 

Q. What is freedom P 

§ 1. ^. The right to exercise our natural powers in any 
way not forbidden by law. Hence, law (jure), and phy- 
sical weakness (vi prohibitum), are the only restraints on 
our natural freedom ; any other restraint, though it may 
hinder the exercise, cannot destroy the right of freedom. 
Thus, a man locked up in a room, though he cannot exer- 
cise his freedom, still nas the right. 

Q. Upon what principle does the restraint of our liberty 
by law rest P 

A. On the necessity felt by every member of a society 
to alienate a portion of his freedom, m order to avoid bein^ 
himself oppressed by others exercising their uncontrolled 

Q. What is slavery P 

§ 2. A, It is an institution of the jus gentium, by which, 
in violation of nature, one man is subjected to the power 
of another ; stripped of that natural liberty, which permits 
a man to do whatever is not forbidden, tne slave may do 
only what he has permission to do. 

Q. How do men come to be slaves P 

§ 4 ^. By being bom such, or by becoming slaves. 

Q. When is a man born a slave P 

§ 4. A, When his mother is a slave ; for the child of a 
slave-woman is the slave of the mother's master, without 
regard to the father; and is called vevTui (born in the 
master's house). 

Q. How did a man become a slave P 

§ 4. ^. According to ihe jus gentium, by being taken cap- 
tive, which was the ohief cause of slavery ; according to the 
civil law, in cases where the loss of free^m was the punish- 
ment inflicted on those by law deemed unworthy or it. 

(1) Henoe, the same man is no longer the same pffrton when his 
status or condition is chang^ ; when, e, g., being free he becomes 
a slave, or, being a dtizen, he becomes a stranger, &c So the same 
man may be several persons, e, g., he may have the person of a 
dtizen, a father, a tutor, &c. 


Q, How did the Komans account for the origin of slavery 
according to the law of nations P 

^ 3. A. They held that a conqueror had the riffht of life 
and death over prisoners of war (manu captt), and that, by 
sparing their lives (servati), he aid not abandon the right, 
but merely postponed its exercise ; and, certainly, this ac- 
count corresponds with the etymology of the words servi 
(servaii) and maneipia (manu capti). 

Q. Did every species of captivity render a man a slave ? 

A, No captives became slaves except those taken in a 
war, waged oy one nation against anotner : those taken by 
robbers or pirates, though deprived of freedom in fact, were 
still free by right. 

Q. According to the civil law, when did a man become a 
slave P 

A. In the old law there were some causes of slavery, un- 
known in later times, and not found in the Institutes. Thus, 

1. By the Twelve Tables, the addictio made the in- 
solvent debtor a slave. When a debtor had judgment 
against him for a sum of money, he was adjudicatus ; if 
within thirty days thereafter he did not pay, or provide 
securi^, he was summoned before the magistrate (in jus), 
and, after the process of manus injectio (a sort of taking 
the body in execution), he was dehvered (addictus) to the 
creditor, and so became his slave. The effect of addictio 
was modified within 200 years after the promulgation of 
the decemviral law. The addictus was no longer a com- 
plete slave, but a labourer compelled to work for his creditor 
until the debt was discharged. (B. 3, 1. 12) (1). 

2. By the Twelve Tables a man guilty oifurtum mani- 
festum (B. 4, 1. 1) became a slave. But after the preetors 
had provided the party robbed with another sort of in- 
demnity, this ceased to be a cause of slavery. 

3. Another cause of slavery, which continued longer, 
was when a man, in order to avoid public burdens, ne- 
glected to have his name inscribed on the census lists. 

(1) It was probably the lex Petilia Paptria which modified the 
condition of the addictus, and assimilated him to the nexus. The 
nexus was one who traiiusferred himself and his property to his 
creditor, in pledge. This personal engagement, contracted under the 
form of sale, was at first, probably, an actual sale, making the nexus 
a slave. But after the Twelve Tables its character was changed. 
For, though the debtor was so &r subject to the creditor that he 
was bound to serve him till the debt was discharged, he retained 
his fireedom, and his status was unaltered. 

B 3 

10 BXAMINATION IN [b. 1, T. 3. 

This cause, of coarse, ceased when the censor's power was 
abolished, under the earlier emperors. 

In Justinian's time, the causes which might reduce a man 
to slavery were four : 

1. The ille^ commerce of a free woman with a slave. 
The Sc. Claudianum reduced an3r woman to slavery who 
had such commerce against the will of the slave's master : 
but this was repealed Iby Justinian (B. 3. 1. 12, § 1). 

2. Condemnation to certain punishments. A man con- 
demned to death immediately lost his freedom. So that, 
imtil his execution, (sometimes lon^ delayed, as when he 
was intended for the beasts of the circus,) he was deprived 
of all rights, both under the civil law and the law of nations. 
Again : condemnation to work in the mines, if for life at 
least, made the condemned man a slave of Punishment 
{servus pcancBy t. 16, § 1) ; but Justinian, by I^ov. 22, de- 
clared that the culprit should continue £ree notwithstand- 
ing the punishment. 

3. The ingratitude of a freeman to his patron. 

4. The fraud of one who got himself sold as a slave, in 
order to share his price. 

The two last Justinian retained. 

Q. Explain the last. 

§ 4. A, Freedom was inalienable (1). Therefore, although 
a man could not sell himself, this principle might be made 
the means of committing fraud. Thus, two freemen agreed 
together that the one should sell the other as a slave to a 
h^Ui fide purchaser, the price to be divided between the 
two accomplices. After the sale, the supposed slave 
claimed and recovered his freedom, for to such c)aim the 
sale was no bar : so that the purchaser lost both his money 
and his slave. This abuse was remedied probably by the 
Sc. Claudianum, which enacted that the fraudulent party, 
if above twenty, should continue a slave, provided that he 
had acted knowingly, t. e,, knowing his free condition 
{status), and that he nad actually received a share of the 

Q. Was there any legal difference between one slave 
and another ? 

(1) Probably this was not so under the old law. Niebnhr thinks 
that nexum was originally an actual sale, made by a man of him- 
self. A father was always entitled to sell his diiildren; and, at 
first, snch sale gave the pmrhaser rights differing Httle, if at all, 
from those of a master over his slave. 


§ 6. A. No. The mafiter had absolute rights over all (1), 
though the position of one might be better than that of 
another. Some slaves (loicaru) had a sort of aathoritj over 
others (ardmarii) ; and a master-slave had often the direc- 
tion of inferior slaves. Bat these were mere private ar- 
rangements — not legal differences — and might be pat an 
enato at any moment. 

Q. Was tnere anj legal difference between one freeman 
and another? 

§ 5. A. Yes : many (2). The legal division of them was 
into ingenui and libertM, 


Q, Define an ingentms, 

Pr, A, One bom free, who has never ceased to be free. 

Q. Who is bom free P 

jpr. A. 1. One bom of a lawful marriage, contracted be- 
tween two freebom, or two freed persons, or between a 
freebom and a freed person, for then the child followed 
the father's condition at the time of its conception ; and at 
that time the father most have been free, for unless per- 
sons are free there can be no civil marriage. 

2. One bom, not of a lawful marriage, but of a free 
mother, or of a slave mother, who was free at the time of 
conception, or daring any time of her pregnancy. 

^1) In the lower empire^ this was true only of slaves proper. 

(2) During the earlier empire, they were most nmnerous. Then 
there were several degrees between the Eoman citizen {dots ro^ 
mama) and the strimger (peregrinus), — a general name for the 
people of the various Roman provinces (gentes). There were two 
degrees oiperegrnUtaa* There were ordinary pereffrini, L e., pere- 
grim soeii, and peregrini dediticu, a lower grade. Throughout 
Italy, no doubt» the social war had put an end to the distinction 
between the ftill jus eimtatis and the/M Laiii, or law of the rest 
of Italy, jus italicum ; but it survived in the provinces, where 
some colonies or privileged dties enjoyed the Jus italicum, i. e., such 
privilege as the Italians had before they acquired faHl rights. (As 
toFreedmen, see next Title). After Caracalla gave the tit£ citizen to 
aH freebom subjects of the empire, and Justinian to sJl/reedmen, 
there were no classes of eives, and the only peregrini were the 
barbarians, who were altogether beyond the pale of the Koman 

12 EXAMINATION IN [b. 1, T. 5. 

Q. In the second case, is anj regard had to the father P 

A, No. When the condition of the child was deter- 
mined by that of the father, it was solely because there had 
been a lawfully-contracted marriage : under any other cir- 
cumstances the condition of the child followed that of the 
mother, in accordance with the jus gentium. Therefore it 
mattered not whether the father was free or a slave : nay, 
even though the father was known, it would be the same 
as if he was unknown (and the child therefore vuhfo coricep' 
ius), for it would follow the condition of its mother (1). 

Q. Suppose a man free bom, mistaken for a slave and 
freed by his supposed master, was he a freedman or t»- 
genuus ? 

§ 1. A, Ingenuus : birth, not enfranchisement, made him 
free, nor did he cease to be free because in fact he was 
treated as a slave (in servitute). But a freebom man, if he 
became a slave, did not by enfranchisement recover his 


Q. What is a freedman P 

A, One legally freed from real slavery (3). 

(1) The condition of the mother at the child's birth is the great 
point. Hence, if the mother is then (quo nascitur) free, though 
she may have been a slave (ancilla) at the time of conception, the 
child is free. On the other hand, if the mother had been free at 
the time of conception, or during the pregnancy, but is a slave at 
the time of the birth, the child ought properly to be a slave ; but 
from humanity, and in &vour of liberty, such child was considered 
free bom. It has been said, this followed from that fiction of law 
by which a child when conceived is regarded as bom, in any case 
where its interests are concerned, infans conceptuspro nato habetur 
quoties de commodis ejus agitur : but this is not so. Ortolan ob- 
serves, that when the status of the &ther determines that of the 
child, the time of conception is the point, because there the child's 
connection with the Mher ends ; but when the status of the mother 
is to determine, the matter, the time of birth must be the point, 
because, till then, the child is part of the mother. iV. 

(2) A freedman was libertinus, as opposed to ingenuus, and Ub^' 
tus, in relation to his patron. 

(3) The text says manumissi ; but as manumissio was not always 
requir^ in order to a slave being freed, our definition, or that at 
the end of the section (^t denerunt), viz. those who have ceased 
to be slaves, is moreaccmate. 


Q. How was a man legally freed P 

A. By enfranchisement (manumissio) (1), when a master, 
having lawfrd power, gave his slave freedom by means 
sanctioned by law : — ^not by enfranchisement, but oy some 
means allowed by the Constitntions, and described in the 
Digest, de his qui sine manum : ad lib, pervenerunt (2). 

Q. What are the legal modes of enfranchisement F 

§ 1. ui. In later times they were very many. The text 
enumerates — 1. Those made m churches, before the people, 
with the aid of the bishops, who signed the act of en- 
franchisement. This mode, introduced by Constantino, 
took the place of that by the census, which was when the 
master had the slave's name inscribed, as a Boman citizen, 
on the census lists, prepared once in five years — a custom 
long discontinued. 2. By the vmdicta, before the magis- 
trate, with solemn words and gestures. 3. By a de- 
claration made verbally, inter amicos, before friends. 
Justinian fixed five as the number of witnesses to sign the 
written document attesting tiiis declaration. 4. By letter, 
j)er epistolam, to be signed by five also. 5. By testament, 
or other act of last will ; i, e., codicil. 6. By various modes 
described in the Constitutions of Justinian and his pre- 
decessors (C. 7. 6, 3 — 12): as when a master pubucly 
called his slave ''son," or, in presence of five witnesses, 
delivered to the slave, or destroyed the documents, proving 
his slave condition. 

Q. Whence the term vindicta ? Explain its forms. 

A. It is now generally agreed that this mode, which 
dates back to the old actiones legis, consisted of a fictitious 
suit, in which freedom was the thing claimed. When a 
free man was unjustly enslaved, any citizen might become 
his champion, and sue his alleged master. Tim process 
was the assertio in liheratem ; and it was used in the fol- 
lowing way, as a mode of enfranchising a real slave. Any 
friend, or a lictor, became assertor lihertatis, maintaining 
before the magistrate that the slave was free : the alleged 
master did not deny the assertion, and the magistrate al- 

il) ManumisriOf a putting out of hand or out of onr power. 
2) Thus, an ecUct of Clandius declares free and without patron 
any slave abandoned by his master as diseased or infirm. A rescript 
of Marcus Aurelius declares, that any slave sold on the condition 
that he should be enfranchised after a period, should be free after 
the lapse thereof, even though the purchaser had taken no steps 
towards it, provided the seller, if still living, has expressed no inten- 
tion different from that expressed at the sale. 

14 EXAMINATION IN [b. 1, T. 5. 

lowed the plaintiff's claim, And declared the slave free (aio 
te liberum more quiritium). All this was done with solemn 
word and gesture ; a rod (vindictatfestuca) being also used, 
which the plaintiff held as the sign of dominion or pro- 

Eerty. Hence the name vindicta, for this mode of en» 

Q. What classes of freedmen were there P 

§ 3. A, Prior to Justinian they were divided into cive* 
JEtomanif Latini Juniani, and deditidi. 

Q, How did these distinctions arise P 

§ 3. A. At Eome, in early times, liberty was indivisible 
{una et simplex)^ and every freedman became a Eoman 
citizen. But no man was held to be legally enfranchised 
unless these conditions concurred : 1. The master must 
have had over the slave in question, ownership according to 
the civH law (dominus ex jure quiritium) (1). 2. The mas- 
ter must have used one of the three modes of enfranchise- 
ment recognised by the civil law : cetuu, vindicta, tetta- 
mento (2). If the enfranchisement wanted any one of 
these conditions, e. ff., if the master, instead of owning 
the slave ex jure quiritium, held him in bonis, or if an 
informal mode, as inter amicos or per epistolamwas used, 
the enfranchisement was void by the civil law, and the 
master might reclaim (revindicare) his slave. But the 

(1) At Borne there were two kinds of property : 1st. Q^iritarian 
property, which was acquired by a Boman, according to the 
conditions and forms of the dvil law {domi'niwn ex jure Quiri' 
timn), 2. JPrcBtorian property, a mere right of possession, which 
was protected by the prstors, and possessed most of the benefits 
peculiar to the former. This was the property, aooording to the 
jus genUum, and was expressed by in bonis habere or esse. Some 
commentators called it bowUcuria/n, as opposed to quiritoHan. An 
enfranchisement by one who had a slave in bonis, was void accord- 
ing to the dvil law : but though the slave was still a slave, he en- 
joyed, by aid of the praetor, lil^y in fact, which was afterwards 
rc^gulated by the L, Junia Norbana. 

(2) These three were the modi solemnes : the nbnsolemnes were 
originally part of prsstorian law, conferring only that temporary 
freedom which was possessed by the Latini Junutni : it was not 
till Justinian's time that they were incorporated into the general 
law. The dvil law doctrine of enfranchisement was based upon 
the prindple, that as a new dtizen was thus added to the state, 
the state ought to be represented in the ceremony of enfranchise- 
ment. Thus, when it was censu, the censor, when vindietit, the 
prsetor, when testamento (which was made catatis eomitOs) the 
populus respective y acted as representatives. 



prffitor, in obedience to the spirit of the times, protected 
the liberty of any slaye whom his master intended to en- 
franchise. This liberty de facto, however, was far from 
complete. The slave was only relieved fin>m service : in 
other respects he was still a slave : whatever he acauired 
was his master's, in whom it vested after the slave's aeath. 
Such was the law at the close of the Kepnblic. 

Bat at that period the right of enfranchisement was so 
grossly abused, and such a host of corrupt men had become 
citizens, that various laws were passed to remedy the evd, 
amongst them the ^lia Sentia. This law (passed a.d. 3, 
under Augustus) added several conditions (vide next Title) 
to those fdready required ; thus, the slave was required to 
be thirty years old,unless the enfranchisement was vindicta, 
and unless the grounds thereof were approved bj^ a special 
council (vide next Title) . Again, no slave enfranchisea after 
suffering an infamous punishment, as stigmata, could be- 
come a citizen ; he could have the rights on^ of the dediticii. 
These were neople who, having taken up arms against the 
Romans, had been vanquisheo, and surrendered at discre- 
tion. Amongst the subjects of the empire, their condition 
was the worst (§ 3). 

As for those slaves whose liberty (de facto) was pro- 
tected by the praetor, but who were not dejwre freedmen, 
the Ijcx Jwnia Norhana (a.d. 17) secured them in the 
same rights (1) as were formerly possessed by the old 
colonists of Latium ; hence their name Latini Juniani : 
Latini, for they had the jus Latii, Latinitatis; Juniani, 
for they were nreed by the lex Jwnia. • 

Thus, there were three classes of freedmen : 1. En- 
franchised citizens: — the three conditions concurring, 
(1). The slave thirty years of age; (2). His master quiri- 
tarian owner ; (3). One of the formal modes of enfran- 
chisement used. 2. Dediticii, who, during slavery, had 
suffered certain punishment. 3. Latini Juniani, whose 
characters were unblemished, but whose enfranchisement 
wanted one of the three conditions. 

Q. Did Justinian retain these distinctions P 

§3. A, No, The class of dediticii (practically unknown 
in Justinian's time), and the Latini Juniani he expressly 
abolished ; he then decreed that all freedmen should have 

(1) Or rather, the temporary enjoyment of such rights : for on 
the death of a Latinus his goods belonged to his former master, just 
88 if he had been a slave (B. 8, t. 7, § 4). Moreover, Latini Jun. 
might, under certain conditions, become Ml citizens, whilst dedu 
ticii never could. 

16 EXAMINATION IN [b. 1, T. 6. 

the name and rights of Eoman citizens, without regard to 
the age of the enfranchised, the nature of the enfranchiser's 
property, or the mode of enfranchisement adopted. 

Q. After Justinian's time, therefore, mig'ht a master en- 
franchise as he pleased, without any legal form P 

A. Ko. The effect of the new law was, that those 
modes of enfranchisement, inter amicos^ per epistolam, &c., 
which would formerly have given the freeoman only the 
rights of a Latinus, now gave him the full rights of a 
citizen, just as if he had been enfranchised by one of the 
civil law methods. A party was at liberty to choose any 
one of the numerous modes of enfranchisement allowed in 
Justinian's time, but one he must choose. 

Q. Did not Justinian afterwards abolish the distinction, 
to be found in the Institutes, between the Ingenui and 
the freedmen F 

A, Yes. By a novella he put an end to all difference, 
political and civil, between them ; and to the freedmen he 
granted the right of gold rings (1) and of regeneratio. But 
he left the rights of patronage. 

Q. Wherein consist the rights of patronage P 

A, 1. In dutiful respect (oosequia). The freedman hav- 
ing received civil life from his patron, owed the same re- 
spect to him as a son to his father. Thus, he could not 
summon the patron in jus without the leave of the ma^s- 
trate, or sue nim in an action involving infamia ; ana he 
was bound to supply his wants in case of need, &c. 2. In 
jv/ra in honis, i, e., the patron and his family sometimes 
succeeded to the property of the deceased freedman (B. 3, 
t. 7). 3. In service (operce) due by the freedman to his 
patron, according to the terms settled at the time of en- 
franchisement, under a contract of stipulatio, or by oath. 



Q. Had masters unlimited power of enfranchisement P 
A. No. It was defined by the laws alia sentia and 
fusia caninia. 

Q. Explain the sella sentia. 

A. 1. The slave enfranchised must be thirty years old. 

2. Masters must hot enfranchise in fraud of creditors ; jor, 

3. Until the age of twenty. 

(1) The right to wear riiigs, originally confined to senators, pa- 
tridans, and equUes, was afterward allowed to all tngenui. 


Q. How did the lex alia sentia preyent enfiranchisement 
in fraud of creditors P 

Pr. A. As ae^eneral role creditors mi^ht revoke aliena- 
tions made by oebtors in fraud of their rights ; but it was 
a principle that liberty once granted was irrevocable 
(B. 3, 1. 11, § 6). It was therefore necessarj that the lex 
islia should annul the enfranchisement ab initio ; hence it 
declared it null (nihil agit) as against those creditors who 
questioned it within ten years : for the debtor could not 
himself take advantage of nis own fraud, in order to annul 
his own act of enfranchisement. 

Q. When is an enfranchisement made in fraud of cre- 
ditors, and null P 

§ 3. A, Fraus means any damage ; and in this sense the 
lex alia sentia ought to have annuUed enfranchisements as 
fraudulent, provided the enfranchiser was insolvent already, 
or in consequence of the enfranchisement diTniniahing lug 
assets. Such, indeed, was the opinion of Gains ; but Julian 
thought, that besides the actual loss (evenius) there ought 
to be an intention on the part of the debtor to injure the 
creditor {concilium) ; this opinion prevailed, so that m order 
to prove an enfranchisement fraudulent there must be 
damage in fact, as well as intention to damage. 

Q. W'as there any exception to the rule that an en- 
frtmchisement in fraud of creditors was nullP 

§ 1. A. One : when an insolvent debtor appointed his 
slave hsres, and bequeathed him liberty (cum libertate) . For 
we must observe : 1. That on the death of a party insol- 
vent and without hares, the creditors were put mto posses- 
sion of the hareditas, and sold it in the name of the de- 
ceased, for he had no legal representative. 2. That a slave, 
when appointed hares^ was compelled to accept the haredi- 
tas; hence the name hares necessarius, A master, therefore, 
whose hareditas was so encumbered that he knew no one 
would accept it, appointed his slave hares necessarius, in 
order that, if there should be a sale of goods, it should be in 
the slave's name, who was his successor and legal repre- 
sentative. This was the case in which the lex alia allowed 
the enfranchisement. But then there must be no hares by 
testament, for, if there was one already, none other would 
be required ; again, the master can enfranchise only one 
(soliis) for this purpose ; and when he enfranchised more, 
the first alone was free and hares, 

Q. In appointing a slave hares, was it necessary to grant 
freedom expressly r 

§ 2. A. Originally and strictly it was : but Justinian, 

18 XXAJOKATIOK IK [b. 1, T. 6. 

thinking fliat tiie fiiet of tiie appointment implied an inten- 
tion to enfiranchise (for a lums instUuius must be free), 
held it not neceeeaij, as a general role, to grant freedom 
expreftly to a alaye appointed kigres by his master. 

Q. According to uie lex €Blia, could a master nnder 
twenty ewer en&anchise P 

J I 4. A, Tes : bat only by the vindicta, and after proof 
ore the council (1) of a legil ground for enfranchisement. 
He might, hower er, enfrancSuse by testament a slaye whom 
he intended to be his kigres neeestarius. 

Or What is meant by minor tfiffinti annorumf 
A. A person was said to be mtTtor, or major a particular 
a^e, when he was below or above it. Here, as the prohibit 
taon to enfranchise applies only to minores 20 aita., it does 
not affect one in the last day of his 20th year ; for, though 
not twenty years complete he is no longer under that age. 

Q. Wmit were le^ grounds {JusUb causal) of enmn- 

§ 5. X When, for instance, a person enfranchised his fbr 
ther (2), his mother, his instructor, his nurse, or his foster- 
brother. So, when a man enfranchised a female slave, that 
he might marry her, or a male slave, that he miffht act as 
his procurator. But in the case of the female, t£e natron 
must pledge his oath to marry in six months, ana must 
marry, in &ct, unless there be some legal impediment, i, «., 
something arising after the enfranchSement ; but a mar- 
riage, which the parties were not competent to contract, 
was not a good excuse : in the case of the male, he must be 

(1) At Borne it ooagigted of five senators and five knights ; in the 
provinces, of five Reeuperaiores, Boman citizens. It was in &ct a 
joiy, which, at the request of tiie prator or the president ci the 
province, determined whether the ground of enfranchisement 
alleged was tnie or false. This shows that the enfranchisement 
vindicta was in &ct a fictitious suit. In the provinces, the last 
day of the judicial sitting (conventus) was the day for proving these 
grounds ; and at Borne, on certain days, the prsetor and the council 
discussed enfranchisements of this sort. As to those, hy masters 
ahove twenty, of slaves ahove thirty, which required no investiga- 
tion, the vindicta was mere form, and might he gone through at 
any time. The magistrate need not even be on the judgment seat, 
he might be merely pasdng along (m transitu), at me bath or the 
theatre (t. 5, § 2). 

(2) A party might have his parent as his slave in many ways ; but 
it usually occurr^ to a slave, whom his master had appointed his 


seventeen, in order postulare, t. e., to state the plaintif[*'8 or 
defendant's case to the magistrate. These are given by 
Justinian only as examples justa causa. 

Q, The couQcil having approved the grotind, could it re- 
tract its decision P 

§ 6. A, No : It was final, whether the cause alleged 
were really true or false. 

Q Did Justinian continue the restriction of the Lex 
JSlia ? 

§ 7. A. By it, one under twenty could enfranchise onij by 
vindicta; therefore a master of full age (fourteen), who might 
by testament bequeath all his slaves, could not, until twenty, 
bequeath freedom to a single slave. This Justinian thouffnt 
absurd : not observing, like the authors of Uie Lex ^lia, 
that the enfranchisement of a slave is much more important 
than the transfer of him to somebody else : to the state 
it is of little moment whether A. or master : but it is 
of the greatest moment to take care that freedom and 
citizenship are not lightly bestowed. To remedy this sup- 
posed anomaly, Justmitm decreed (as a land of middle 
oouTse) that a master of seventeen mieht enfranchise ; and 
afterwards (Nov. 119, c. 2) he allowed any master to en* 
franchise when he could make a testament. As to enfran- 
chisements iftter vivos, the restriction of the Lex ^lia re- 


Q. State the object of the Lex Fusia Caninia. 

A» The same causes which occasioned the Lex ^Ua, oc- 
casioned the Lex Fusia, Many Soman citizens, in order 
to have a crowd of freedmen at their funerals, and to leave 
behind them a name for benevolence, enfranchised their 
slaves by testament, and filled the town with imworthy 
citizens. The Lex Fusia |>ut a stop to this, by fixing the 
number of slaves a man might enfranchise by testament, 
according to the number of his slaves, but in no case were 
they to exceed 100. If the testator did exceed, the pro- 

f>er number were enfranchised, according to priority on the 
ist ; and, if the names were written in a circle, none were 

Q. Did Justinian retain these provisions P 

A» No. He abolished this law, because he thought it 

unjust to give parties when living the right to enfranchise, 

and to deny it to them when dying ; as if, indeed, it is not 

frequently necessary to deny that power to a testator. 

20 EXAMINATION IV [b. 1, T. 8. 

which may be safely intrusted to one who cannot ezer* 
cise it without depriving himself of something during 
his life. 


Q. How were persons divided, as members of a Jh- 
milia ? 

Pr. A, Into those sui juris, dependent on themselves ; 
and alieni juris, dependent on others. Every person must 
be either the head, or subject to the head of a familia. The 
head, if male, w2A paterfamilias; if female, mater familias. 

Q. Did the title of pater-f, depend on the fact of pa- 
ternity P 

A* !No. a child might be a pater-f, at its birth ; for 
unless it belonged to a familia, it was itself Vk familia. 

Q. Are all persons subject to di, pater f under the same 
kind of subjection P 

A. No. The pater-f had over some the parental {parens 
tium), over others the master's power {dominorum poteS' 
tas) (1). 

Q. Who are subject to the potestas dominica ? 

§1. A, Slaves. 

Q. What was the effect of it P 

A. The master was owner (dominus) of them. His 
potestas affected the person of the slave, who might be 

(1) There were only two kinds of power (both denoted by 
potestas) in Justinian's time, but, in the old law, there were two 
other kinds, mawus, and mancipium. These last, though origi- 
nally applied to everything held by a Roman citizen, viz., slaves, 
wife, children^ &c., acquired, after the Twelve Tables, a technical 
meaning. Mcmus was the power which a husband, or an ancestor, 
to whom the husband was subject, had over the wife in certain 
cases; for every wife was not in the manus of her husband; she 
sometimes continued in the potestas of her father. This manus 
was acquired : 1. By cowfarreatio, accompanied by its owapactum, 
a religious ceremony, in which a meal-cake was used. 2. By eo- 
empUo, the solemn sale of a wife to her husband. 3. By usucapio 
i^Mu), wherein the husband acquired a title to bis wife by uninter* 
rupted possession for one year, which, however, was broken by the 
wife sleeping for three nights away from the husband's roof. A wife, 
in manu, was regarded as the husband's daughter. Mancipium 
was the power of a pater f, over a freeman, acquired by manoi» 
patio, or solemn sale. Justinian finally abolished it. 


disposed of, sold, abandoned, and eren put to death by the 
master: it affected the goods, for everything possessed 
or acquired by the slave was the master's. Such was the 
early law. iJuring the empire, however, it was modified ; 
for, though a master might still sell, give away, or be- 

aaeath a slave, he no longer had the power of life and 
eath. Antoninus Pius, by a Constitution, punished with 
death any master who, without lawful cause, hilled his own 
slave, just as if he had killed another man's ; and Justinian 
gives (§ 2) a rescript of the same emperor, by which mas- 
ters are forbidden to inflict excessive punishment on their 
slaves, and magistrates are authorizea to hear complaints 
of slaves, and to compel the master, if the complaint is 

S roved, to sell the slave bonis (xmditianibus, ». e,, on con- 
itions advantageous both to the slave and the master. 

Q, Give instances of such conditions. 

A, A master was not obliged to sell on credit, or under 
the value. On the other hand, he could not impose on 
the purchaser terms unfavourable to the slave ; e, g., that 
he snould never enfranchise him, or should transport him 
to a severe climate. 

Q. Did the emperor by this intend to dispute the mas- 
ter's right of property P 

§ 2. A. No. That right he declared to be unshaken 
(illibatum) : he merely confined it within proper limits ; 
for the right of property is not absolute, but subject to 
public interest. Expedit enim reijpuhlica, ne quis re sua 
male utatur, 

Q. Was the potestas dominorum as to the goods of 
slaves modified P 

A, No. The old law was strictly adhered to. The 
slave was part of his master's chattels {res), and every- 
thing he had was his master's. But sometimes he was 
allowed to manage and enjoy part of the master's ^oods. 
This was a peculium (separate, peculiar goods), but it was 
a mere indulgence, whicn might cease at any moment. 


Q. Define the patria potestas. 

A. The power possessed by a pater-f, over those child- 
ren who belong to his familia {^lii-a-fitmilias), or who 
have entered it by lawful marriage (justa nuptia), by 
Ugitimatio, or by adoptio. 

22 BXAMINATION IN [b. 1, T. 9. 

Q. Was not this patria potestas pecaliar to Some P 

§ 2. A. Yes. Grenerally, by the jtis gentium, & father's 
power over his children is a protecting power — a guardian- 
ship—expiring when the child reaches matority. But at 
Borne it was different. Hence the p. potestas was part 
of the civil law, and confined to Soman citizens ; whereas 
the master's power over slaves was part of the^iw gentium, 
and belonged to every owner, whether stranger or citi- 
zen. For by the old law a pcUer-f,, as proprietor both 
of his children and of his slaves, had the right of life and 
death over both. He conld sell them (mancipare) (1), 
expose, or abandon them, in satisfaction of any damage 
they had occasioned ;• or he might ptmish them as house- 
hold judge, even capitally. The Twelve Tables ordained 
that deformed infants snould be put to death. Every 
acquisition of the filius-f. went to the pater-f., who was 
sole prop rietor of the family goods. 

Q. Was this absolute patria potestas modified? 

A. Scarcely at all during the Bepublic. But the change 
in manners so relaxed its rigours, that the pater-f. came 
at last to be regarded rather as the chief ruler than pro- 
prietor of the members of the familia. Under the empe- 
rors, the patria potestas was more and more restricted, 
both over the person and the goods of the filius-f. (2). 

(1) A pater-f,, by the sale of his daughter, or any of his issue 
in the second degree, exhausted his potestas ; but if it was the sale 
of a son, and he was enfranchised after the first sale by the first 
purchaser, he became immediately again subject to his &.ther. The 
same happened on a second sale and second enfiranchisement. But 
on a third sale, if the son was enfiranchised by the third purchaser, 
he became sui juris. Hence the Twelve Tables : ^t pater fUum, 
ter venum dedit, JUius a patre Uber esto. This was for the son's 
benefit. Indeed, though the p, potestas may seem entirely for 
the pater fU benefit, still the films f, derived important benefits, 
e,g,, rights of succession, from it. Moreover, children sold {man- 
cipat%) were not, at least after the Twelve Tables, absolute slaves : 
they were subject to a special power called maneipium. Though 
the mandpaUo of childr^ existed in Gbtius* time, it was only psurt 
of the form used in the enfrandusement of children from iihe patria 
potestas, or in their adoption by third parties. It was not, how- 
ever, until later that children were no longer surrendered, as a 
kind of satisfaction, for damage done by them. A constitution of 
Diocletian declared that fathers should not sell, give away, or pledge 
their children. 

(2) Tnyan made a father, who had ill-treated his son, enfran- 
chise him. Adrian condemned a father to deportatio who had 


As to the person, tlie pater^f, had not, latterlj, the right 
of life and death, or of exposing his filius-f, : he could 
not sell him except at the moment of birth (sanguiTwlentos), 
and when compelled by extreme misery. If he desired to 
inflict extraordinary punishment, he nad to apply to the 
magistrate. As to the goods^ the p. potestas was restrict- 
ed by those peculia, over which the filius-f, had yarioos 
rights (B. 2, t. 9). 

Q. Over whom did the patria potestas, aa the result of 
a lawful marriage, extend r 

Jl 3. il. Over all the children of the pater-f,, and his 
e, over all the grand-children and other issue bom of a 
JiliuS'f,, and in lawful wedlock. But a daughter's children 
were not of her own familia : they were filii-f, of their 
father or grand&rther, in whose potestas the father was. 

Q. Did the mother never have her children, sprung 
from a lawful marriage, under her potestas F 

A, No. Hence U^ian says, that a.Jamilia, of which a 
woman gui juris is head, oegins and ends witiii her: 
familia sua et caput et finis. 


Q. Define nttptia justa or matrimoniutn justum. 

T. 9, § 1. ^. Marriage, generally, is the joining together 
of a man and woman for &e purpose of impartmg an ab- 
solute unity to their course of life {indivuhiam vita ccm* 
suetudinem coniinens) : laiqfkl (justum) marriage is a mar* 
riage contracted according to tne ciyiL law. 

Q. What is meant by tndividutim vita eonsuetudvnem ? 

A, Such unity as results from husband and wife haying 
the same home, and the same social position (1) : for the 
man, by taking a woman to wife» made her his companion, 
and shared with her his condition and rank ; and herein 
marriage differed from concubinattis, a species of lawful 
union, m which a man took a woman without intending to 
elevate her to his own rank (2). 

slain his inoestnous son. Alex. Severus gave the magistrate juris- 
diction to determine what pmiishment i^ould be inflicted by pa- 
rents. A Constitution of Constantine punished as a parricide a fa> 
ther who had killed his child; and by a Constitution of the same 
emperor, the right to sell new-bom diildren was confined to cases 
of extreme misery. 

fl) At Rome there was no community of goods, 

[2) Concubinage resembled theNorthem custom, marriage by the 


2i szAMniATiov nr [b. 1, t. 10. 

Q. How dSAjmtUt mipHm and eoncalniuige differ? 

A. JutUt nuptuB alone had ciYil eonaeqaenceB ; tiraa, the 
husband waa called vir^ the wife uxor; the cfaOdren had 
the statoB which their ikther had at the time of tiieir oon- 
oeption« and were of his famiUa. Bat oonedbinage was 
the lawful commerce of a man and woman, withoat mar- 
riage {Ucita eatuuetudo causa non matrimonii)', though 
contracted between Soman citizeiis, it had no ciril con- 
sequences. The woman was not tuor : the children fol- 
lowed the mother's status, and were not in their father's 
potestcLs, but gui juris. Moreover, thej had a known 
mther, and were therefore called ntiurales, to distrngmsh 
them from leaitimi, i. e., tiie issue of JusUe nupiimy and 
so members of their &ther's^fa»^fa. Again, natural chil- 
dren differed from spurii or vulgo amrepH, who had no 
recog^nised father, being sprung firom an unlawfiol and 
transitory union, stuprum. 

Q. Was any ceremony required forjusisB nuptise ? 

A. No; like ooncubmage, consent alone was neces- 
sary (1). Sometimes there was a writing, either as a 
record of the marriage (nuptiales tabula), or containing 

left hand. Unlike marriage, becanse it wanted the essential indiv. 
wUb, &c, it was still sanctioned and regolated by law, being quite 
district from the nnlawfbl nnion (stuprvm). The parties must 
both be free, and no one ooold have more thim one concubine. It 
might be dissolved at the will of either party, without any formal 
^vorce, or the act of renunciation (repudium) being sent. Con- 
cnUnage was adopted as a means of increasing population. Con- 
stantine discouraged it, and declared that a fitther should leave 
nothing to his natural children; and that no persons of rank 
(illustres, spectabilis, clarissiim) should have concubines. But 
Justinian allowed it. Leo, the philosopher, first abolished it in the 
East. In the West, it continued longer, and we find it in the 
laws of the Lombards and the Francs. 

(1) That is, the old confarreatio, or mancipaUo, was not neces- 
sary ; and a marriage, by consent of the jMurties, and approved 
by friends and neighbours, was good. But probably (Ch*tolan, 
t. 1, p. 195) consent alone did not complete the contract, for 
this seems to be one of those requiring delivery ; the woman 
must be brought to her husband's house — ^till then the marriage 
was only int^ded; the phrase uxorem ducere shows this. The 
marriage, however, was complete without cohabitation (noneon- 
oubitus sed consensus facif). Marriage by mere consult was pro- 
bably introduced when forms began to lose their importance in 
Boman law. One reason for the disuse of confarreatio — ^the only 
mode by which a wife did not come into the manus of her husband 




the agreement as to the dos (instruTnenta dotalia) ; bat this 
was mere matter of evidence, which might be obtained 
otherwise, and did not constitute marriage. Hence the 
question, whether it was a case of lawful marriage or con- 
cubinage, depended on this alone, whether the husband 
intended to take the woman as his wife or as his concubine : 
cojicubinam ex sola animi desti/natione astimari potest, 

Q. Was not the intention sometimes presumed P 

A. Tes. When the woman was free-born and of good 
reputation, it was presumed that she was uxor, and no- 
thmg less than a written declaration to the contrary would 
rebut this. But if the woman was of bad reputation, or 
incapable of becoming an uxor, it was presumed that she 
was intended for a concubine, 

Q. What conditions did the civil law require for justa 
nupti€B ? 

Pr, A, 1, The parties must be (puberes) of ftdl age. 

2. The parties themselves, and certain others, must con- 
sent. 3. The parties must have connubium, 

Q, What is the age of puberty P 

A, Justinian fixea it at fourteen for males, and twelve 
for females. Before puberty, a party could not of him- 
self contract ; nor could he perform the marriage duties : 
hence the necessity for the first condition. Ot impotent 
puberes, all but castrati might marry. 

Q. What persons should give consent P 

JPr, A. \, The intended husband and wife. 2. The an- 
cestor in whose power the ^ture husband and wife were. 

3. Those in whose ©ower the children of the proposed mar- 
riage might, some day, be. Thus, suppose son and grand- 
son both in the power of the grandfather, the grandson, 
though not in the father's oower, must get the consent 
both of the grandfather and of the father ; for, on the 
grandfather's death, the grandson and his issue must come 
under the power of the father ; and no one can become 
subject to another without his consent. But, in case of 
a daughter, the father's consent was not necessary, for 
her issue would be under their own, not her father's 

Q, The father's consent, then, was not necessary for 
children sui juris, e.g, when emancipated, and the mother's 
consent was never required P 

— was, becatise it could not be dissolved except by a tedious cere- 
mony, diffwrreatio, 


BXAMINATIOK IK [b. 1, T. 10. 

A» Not by the old law, for it looked only to the ^a^'a 
pot., and did not consider a child's natural du^ to its 
ancestor. But Yalentinian and Yalens, then Honorius 
and Theodosius, required women under twenty-five, though 
emancipated, to get their father's consent ; and, if he was 
dead, tneu: mother's and that of their next of kin. 

Q. When was consent to be given P 

Pr, A, It should precede (jpracedere) the marriage, for it 
was a condition precedent to it ; now, as you cannot ratiiy 
a nonentity, there could be no ratification here. 

Q. Must the consent be express P 

A, It might be tacit, as when an ancestor knew of a 
marriage and did not object ; but it must be a substantial 
consent — ^not given by mistake, or extorted by fraud or 

Q. Was not the presumption sometimes held sufiicient^ 
that consent would Izave been given by the ancestor had it 
been in his power P 

Pr. A. i es. Thus children of a captive, or of one ab- 
sent above three years, might contract a suitable marriage 
without consent. In like manner, Hadrian allowed the 
daughter of a lunatic to marry ; but the case of a son, by 
whose marriage children might be brought into the familia, 
difiered. On grounds, however, of pubfic convenience, and 
to facilitate marriage, Justinian laid down certain rules, 
on complying with which the son of a lunatic might marry 
without his father's consent. 

Q. Explain connubium. 

A, It IB the capacity, which must exist in the foture 
husband and wife, to be joined together in marriage. Any 
citizen of age, who has obtained the consent required^ has 
the general capacity to contract marriage, but not with 
every individual ; tins he cannot marry a stranger (pere- 
frina), or one related within the forbidden de^ees. But 
it is the particular capacity to marry the individual with 
whom we desire to form an union, which is denoted by 
connubitun (1). 

Q. Are tiiere not several kinds of relationship P 

A. Yes. CoffNatio is the general term, but there are 
two kinds : 1. Natural relationship, which is cognatio 
proper ; 2. Civil relationship, or agnatic. The first is the 

(1) Connuhium was only between citizens. The Emperor often 
granted it to a peregrinus or a latinus. After the title civis was 
extended to all the subjects of the empire, slaves were the only 
persons with whom there was no cowMihivm. 


tie of blood between a man and his descendants, or be- 
tween those spnmj^ from a common stock, cognati; tiie 
second is the legal tie between members of the ^assaefamiUa, 
whilst tliey are members (agnatic 1. 15). 

Q, What is meant by "line" and degree of relation- 

A. "line" means a series of relations: direct, when 
they are descended from each other, as father and son ; 
collateral, when they are not descended from each other, 
but have a common ancestor, as brother and sister. Eola- 
tions are like persons coming down a flight of steps, each 
of which is a degree, occupied by a generation. In the 
direct line there are as many degrees as generations. 
Thus, from grandfather to grandson there are two. In 
the collateral line each relation is descended from the 
common ancestor by a particular line, which has degrees. 
The sum of the two lines shows the distance between the 
collaterals ; thus the uncle in the first, and the nephew in 
the second degree from the common ancestor are to each 
other in the third. 

Q. Between two relations in the direct line, what are 
the impediments to connuhium and lawful marriage P 

§ 1. A, No two persons related in the direct line, either by 
blood or by adoption, 'can intermarry, for they occupy the 
place of parent and child : the effect of adoption in this 
case is to create such civil relationship as to prevent the 
parties manying, even after it is dissolved. He&ee you 
cannot many your adopted daughter or grand-daughter 
even after her emancipation. 

Q. Could a father, having his daughter in his potestas, 
adopt his son-in-law P 

%2, A. No ; for so the wife would become the hus- 
band's sister. A father who wishes (velit) to do so, must 
first emancipate his daughter ; for then the husband can 
enter thefamilia. 

Q, Between two collateral relations, are there any im- 
pediments to connubium and lawful marriage P 

§ 2. A, Yes ; but they are less numerous than in the 
direct line ; but when the impediment to intermarriage 
between collaterals is a mere civil relationshio, it ceases 
the moment such relationship is dissolved. Tnus, a bro- 
ther may not marry a sister, but (sed si) if either be merely 
adopted, they may intermarry on being emancipated. 

(J. Between two collaterals what are the impediments P 

§§ 3, 4. A, Two collaterals cannot intermarrv if eitiier 

28 EXAMINATION IN [b. 1, T. 10, 

is in the first degree from the common ancestor, for the 

Serson next to such ancestor represents him to all his 
escendants, and may not marry any of them^ quia loco 
parentis habeiur. Thus, you may not marry your brother 
or sister, or any of their issue (1). But (§ 4) cousins may, 
because both are two de^ees from the common ancestor. 

Q. Is it the same when the relationship is civil ? 

§ 3. A, Civil relationship, whilst it continues, has the same 
eflect as natural relationship ; but observe who are civil 
relations. I may marry the daughter of my adopted sister, 
for aXie family-tie between me and my sister does not ex- 
tend to her children, for they are in their father's ^mt^, 
not in their mother's. So I may marry the woman adopt- 
ed by my mother's father (matertera adcptiva), because 
I, heme of my father's family, am unconnected, civilly or 
naturally, with that woman. But I may not marry my 
father's sister (amita) even by adoption, she and I oeing 
of the same family (§ 5). 

Q. What is affinity P 

A. Affinitas is the tie between one of a married couple 
and the relations of the other, or between the relations of 
one and those of the other. 

Q. Does affinity give rise to any impediments to connu- 
hium and to lawful marriage P 

A, Yes; but observe, it is only after the dissolution 
of affinitas, — a dissolution coincident with that of mar- 
riage, — ^that it be^s to operate as a bar to a second 
marriage ; for durmg the first, the affinitas, which is the 
result of marriage, cannot increase the impossibility of 
either party marrjing again. The impediment to mar- 
riage, tnerefore, wsb not so much an existing affinitas, as 
the fact of its having existed. 

Q. What were these impediments P 

§S 6, 7, 8. A. Affinitas prevents marriage between a 
husband and any of the ancestors or issue of his wife ; and 
between a wife and any of the ancestors or issue of her 
husband; quia loco pa/rentum liherorumque hahentv/r. Thus, 
a man may not marry his stepdaughter (prti;i^na), or daugh- 
ter-in-law (nurwn), or mother-m-law (socrum), or step- 
mother (novercam^). But (§ 8) I might marry the daugh- 

(1) Clandins, in order to marry his niece Agrippina, daughter of 
Germanicus, authorised by So. an nnde to marry his brother's 
daughter ; bnt this exception, never extended to the daughter of a 
sister, was abolished by Constantine (t. 11, § 11). 


ter of mj stepmother by a former marriac|re, though her 
child, by my father, womd be the half-brother or sister of 
myself and my wife (1). 

Q. Did affinitas prevent husband or wife marryinp^ the 
collateral of the other P 

A. Not by th^ old law ; but the christian emperors for- 
bad a brother-in-law to marry his sister-in-law. 

Q. Were there any cases in which public decency for- 
bad marriage between those who never were in amnity 
to each other P 

§ 9. A. Yes. Kyour wife, after being divorced, had a 
daughter by another man, you could not marry the daugh- 
ter, though you had no affinitas with her. Neither could 
a father marry his son's betrothed, nor a mother the 
daughter's (2), nor a son the father's. 

Q. Did the union of slaves (contubemium) create such a 
mutual relationship and affinity as to be an impediment to 
connubium between freedmen related by blood P 

§ 10. A, Between slaves there was strictly neither rela- 
tionship nor affinity ; but the tie of blood created the same 
impediments to marriage between freedmen as between 
persons freeborn. 

Q. Were there any other impediments to connubium ? 

§ 11. A. Yes ; on civil and political grounds. Thus, a 
woman under twenty-six might not marry her tutor or 
curator, or their son or granason, lest the tutor or cu- 
rator might thus escape rendering proper accounts. A 
governor might not marry a woman domiciled in his pro- 
vince, for fear of his abusmg his authority ; nor might an 
ingenuu8 marry a prostitute or actress, nor a senator or his 
children, freedwomen. These restrictions (the violation of 
which, unlike those arising out of relationship or affinity. 

(1) This is not because I am unconnected with my stepmother's 
&imly« but because qffimtas was not always an objection to mar- 
riage. The relations of the husband and wife were allowed to in- 
termarry; the connection between them had merely social and 
iriendly results. 

(2) Sponaalia, or promises of marriage, were used by the 
Komans. No action was raised by them to compel a marriage, 
and either party might renounce by giving notice *. oonditione tud 
nontUor ; earnest-money was usually given to the woman be- 
trothed, and it was foreited by the paity making de&ult, unless 
the case came within certain exceptions made in favour of the 

30 EXAHI17ATION IV [B. 1, T. 10. 

did not constitate incest) merely prevented lawful mar- 
riage— -not concubinage (§ 1). 

Q, Sappose a marriage, in which one of the three con- 
ditions is wanting P 

§ 12. A. It was void. The husband was not vir nor 
the wife uMfr. The children were not under the potestas, 
and were regarded as spurii. There was neither dog 
nor donatio propter nuptias (B. 2, t. 7). Lastly, the guilty 
parties were severely punished if the marriage was tunted 
with bigamy or incest. 

Q. How were ^'tw^« nuptia dissolved? 

A. By the death of husband or wife ; by loss of liberty, 
or right of citizenship ; by captivity, or by divorce (1). 

Q. Might children, thougn not bom subject to their 
father's potestas, become so after birth P 

§ 13. A, Yes, legitimatio ; but only natwral children 
(t. «. those by a concubine), could be legitimised : spurii 
(the fruits of incest, adultery, or fornication) never could. 

Q. Define legitimatio. 

A, That act oy which a child, not being the issue of a 
lawful marriage, acquired the name and status of a legiti- 
mate child. 

Q. How was it effected P 

§ 13. A, 1. J9y suhsequewt marriage of father and 
mother — a mode introduced by Constantine. Three condi- 
tions were required for this : 1st. That at the time of the 
child's conception, the marriage of father and mother 
would have been legal (mira. inter,) ; 2nd. An instrument 
settling the terms as to the dos (dotalia), or to prove the 

(1) Persons, if married by cowfcMrreaiio, were divorced by diffa/T' 
reatio ; if hy ces et Hhram, the husband alone (bw/er) could 
renounce his wife by re-selling her ; the wife who had been sold to 
the husband, could leave hun only by his consent, but not without 
re-sale. Soon, however, the husband's right to renounce was 
restricted. He might be separated if she had been g^lty of adul- 
tery, or had poisoned her children, or made false keys. If he 
abandoDed her without cause, one-half his goods went to her, the 
other to the temple of Ceres, and he was devoted to the gods 
below. In marriage by consent, the divorce was by consent, or by 
repadiaUon on the part either of husband or wife. The divoroe 
must be before seven witnesses. Theododus and Valentinian 
fUed the grounds of repudiation. The one who dissolved the 
marriage without cause, incurred certain money penalties, as did 
the party who, by miicoadoct, gave the other good groond for 


marriage (nuptialia) ; 3rd. The children's ratification of 
the legitimatio ; for they could not without consent be* 
oome subject to the patria potestas, 

2. By the oblatio curia,— cnnA being the senate of the 
municipal towns. To be curialis, decurio (member of this 
senate) had ceased to be an object of ambition, because of 
the responsibility thus incurred to make up the proper 
amount of taxes out of the member's private purse. To 
overcome the reluctance which was felt to being inscribed 
amongst the decurions, Theodosius attached certain privi- 
leges to it ; for, 1st, natural children so inscribed were legi- 
timised ; and, 2nd, any wife of a decurio was legitimist. 
By this legitimatio a child became subject to the poteHas, 
and acquired the right to succeed to his father, but not to 
other members of the ^m^. 

3. By rescript of the emperor, — a mode introduced by 
Justinian. But it was not granted unless there were no 
legitimate children, and unless marriage had become im- 
possible, by the mother's death or other cause. The rescript 
might be obtained by the father, or, indeed, bv the chd- 
dren, if ys testament declared his wish that they should 
be legitimised. 


Q. Define adoption. 

A. That act by which a citizen acquired the Patria Po' 
iestas, through the mere effect of the civil law, apart from 
any tie of bk>od. Persons thus made subject to potestas 
were called adopted {adoptivi) (1), to distinguish them 
from legitimif and from legitimised children, who were 
then called natwral, because physically sprung from the 
paterfamilias; adopted children being generally sprung 
from a stranger. 

Q. How many kinds of adoption were there P 

§ 1. A, Two : 1. Adoptio (proper), by which filii-f. were 
transferred from the potestas of one to that of another. 

2. Adroaatio, by which persons sui jwris, i. e, patres-f., 
became subject to the potestas of another. 

Q. Describe the process of Adoptio. 

A, Prior to Justinian it was by Mancipatio and cessio in 
jure. Mancipatio, or solenm sale, when thrice repeated in 

(1) The adopted took the name of the adopter's fiunily (nomen) ; 
that of bis former fiunily being retained in an adjective form, e.g» 
Sdpio JEmiUcMUs. 

32 EXAMINATION IN [b. 1, T. 11; 

case of a male child of the first degree, had the effect of 
withdrawing the child from the patria potestas ; but it did 
not make him filius-f. of the purchaser : it put him only in 
mancipio. It was the eessio injure that made him filius-f. 
This was a kind of fictitious suit or feigned reoovery. The 
purchaser (the adopter) was supposed to claim the child : 
the pater-f. made no defence, and the magistrate declared 
the child the adopter's (§ 1). After the time of Justinian, 
who abolished these forms, adoption was {imperio magis* 
tratus) by a declaration of the natural father before the 
proper magistrate, in presence of, and uncontradicted by, 
the adopter and the aaopted (t. 12, § 8). 

Q. Did Justinian alter in any way the effects of adop- 

A, Yes : the chief effect of adoption was to take a filius- 
f. from under the potestas of his natural father, and to 
place him under that of an adopted father. Thus the 
filius-f. lost his rights in the successio of his natural 
father, without the certainty of retainmg his newly ac> 
auired rights in the successio of his adopted father ; for 
tney might be taken away by his adopted father eman- 
cipating or disinheriting him. To prevent this (§ 2), Jus- 
tinian declared that, if the adopter was an ex^aneus 
^t. e. not an ancestor), the adopted should still remain 
in the family, and under the fotoer q/*his natural father, 
so that he would still be entitled to succeed him; but 
that, at the same time, he should by adoption acquire 
the right to succeed his adopter, if he died intestate, 
though if he died testate, the adopted should not be al- 
lowed to question the testament. As a general rule, adop- 
tion did not produce its fiill effect, unless an ancestor waa 
adopter (1). 

Q. Describe the process of Adrogatio, 

§ 1. A, Formerly it was effected by a law (popuU 
auctoritate). It was so called, because the adrogator was 
asked (togatus) whether he was willing that the person 
about to be adopted should become his son ; the adrogatu^ 
whether he was willing to become such; the assembly 
(popultis), whether they agreed. Afterwards the imperial 
was substituted for the popular sanction ; and adrogatio 

(1) S. g,, a maternal grandfiither, or a paternal grandfiither, who 
has emancipated his son (si pater fiterit emancipatus) ; this is a 
necessary condition, for, if the son were not emancipated, the 
grandson woold bo in the power of the paternal grand&ther, and 
the adoption would be useless. 


was by imperial rescript iimperatoris auctoritate, principali 

Q. Explain the effect of adro^tio. 

§ 11, A. By it the adrogatus mmself, and all natural and 
adopted chilaren, then under his power, became subject 
to the nd/togntor : by whom, also, the ctdrogatus* goods 
were acquired (lib. 2, t. 9). 

Q. W as every one who was capable of being adopted, 
capable of being adrogated P 

A, By the Sd law, women and impuheres, who were 
always capable of bein^ adopted, could not be adrogated. 
But Justinian allowed it in case of women ; and Antoninus 
Pius allowed it in case of impuheres, under certain regu- 

Q. What were they P 

§ 3. A, After the usual inquiry as to the adopter's age, 
and the possible injury to the adopter's children (catisa 
coanita), and after ascertaining that the motives of the 
adopter were right (honesta), and that the pupillus would 
be benefited (expedUat), adrogaUo might proceed, subject, 
however, to these conditions : the adrogator was bound, 
1. To restore the goods received from the adro^attts, either 
to the cLdrogatusmmBelf, if he was emancipated for a 
good cause, or disinherited ; or, if the adrogatus died 
a pupillus (under age), to those who would have been enti- 
tled to the goods had there been no adrogatio. 2. To secure 
such restitution, by giving a security (cautio), the obligee 
of which should oe persona puhlica (1). 3. To leave a 
fourth of his own goods to the adro^atus, if he was emanci- 
pated without good cause, or disinherited. This is the 
Antoninian fourth — ^when an ad/rogatus was disinherited 
there was no inquiry as to the cause, for if an adrogator 
had any good cause, his duty was to emancipate at once, 
and not to reserve the punishment for an act of his last 

Q. Was any difference of age required between adopter 
and adopted P 

§ 4. A, Yes : the adopter should be plena pubertate, that 
is, eighteen years older than his adopted son, and thirty- 
six years older than his adopted grandson. The rules as 

(1) The servus publieus is often referred to in the Digest, be- 
cause formerly a public slave used to stipulate on behalf of the 
haredes of the impubes. After Arcadius and Honorius* time, 
freementpeiformed the duty. 

c 3 


to adoption bo far followed those of nature, that a man 
could not be an adopted son of an adopted father, nnlesB 
they conld naturally occupy that relation. 

Q. Might one be adopted either as son or as grandson P 

§ § 5, 6. A. Yes : for a man might adopt another as 
grandson eren though he had no son in potestate, nor need 
me adopted child occupy the same degree in the adopter's 
fiunily, as he did in his natural father s ; but, children of 
the adrogatus necessarily assumed in the adrogator's family 
a degree lower than that which they held in meir father's : 
if he became son, they became grandsons, &c, 

Q. Might not the adopter nominate one of his children 
as the faUier pf the adopted? 

§ 7. A. Yes : with that child's consent, for such child, 
as pater-f., would have the adopted in potesiate, when the 
adopter died ; and no one could be under the potestas of 
anomer unless that other consented. In the absence of 
consent, the person adopted as grandson was deemed 
nej^ew of ^ the adopter's sons. 

Q. Couid an adopter emancipate his adopted son, or 
give him in adoption P 

§ 8. A. Yes ; but an adopter could not reassume, by a 
second adoption, the potestas he had cast off; whereas a 
natural father mi^ht re-adopt the child he had emacipated 
or ^ren in adoptum. 

Q. Did impotence prevent a man adopting P 

§ 9. A, No; but castrati could no more adopt than con- 
tract lawftd marriage. 

Q. Could women adopt P 

§ 10. A. By the old law they were absolutely incapable 
of adopting, because they had no potestas, even oyer natural 
children ; nut the emperor sometimes permitted them to 
replace by adoption tne children they had lost. In such 
cases, however, the adopted remained m his natural family, 
though he had the same rights of succession as the adopter's 
chiliuen by lawful marriage. 

Q. Could a freedman or a slave be adopted P 

§ 12. A, A freedman could be adopted only b^ his patron, 
if the patron had no posterity. A slave being neither 
pater-f. nor fiUus-f. could not be adopted ; the effect of 
adopting was to enfranchise him. Moreover, Justinian 
hela that a master, by publicly calling a slave his " son," 
enfranchised him. 



Q. How was the Patria Potestas dissolved P 

^r, A. Involuntarily : by tlie death of the pater-f. or 
filios-f., by the loss of liberty or citizensljiip on the part of 
the pater-f. or filins-f., and by the elevalion of the mins-f. 
to certain dignities ; voluntarily : by consent of pater-f. 
and filius-f., by emancipation, and by adoption. 

Q. What effect had death on the Patria Potestas P 

IBt, a. The filius-f.'s death put an end to it as regarded 
himself, but the pater-f. 's deatn relieved from the notestas 
all the filii-f. £<ach of them became mijv/ns (nis own 
master) and head of a separate familia. But observe, on 
the death of the pater-i., the filii*f. of the first degree 
always became euiiwns, not those of a lower degree ; on 
the grandfather's death, his grandchildren became subject 
to t£eir father, if he had been sabject to the deceased. 
The grandfather's death, therefore, did notmaike the grand* 
children sni juris, unless their father was then dead, or had 
by some means ceased td be oiiuk'Q family, 

Q. Did loss of liberty or of citizensmp have the same 
effects on the patria potestas, as death P 

A, Yes : the patria potestas was a civil right, and the 
mere fact, that a pater-f. or filius-f. had lost the character 
of citizen, made him dead to ail civil rights. A fortiori, 
this was so on the k>s8 of liberty, which mvolved the loss 
of all rights. 

Q. How did a man cease to be a Soman citizen and be- 
come a stranger P 

A, 1. When he settled in a foreign country with no in- 
tention to return. 2. When fire and water were forbidden 
him, in order to compel him to expatriate himself; for it 
was a principle, that citizenship could not be forced from 
a Soman ; hence no violence was used, but, being deprived 
of the necessaries of life, he was obliged to leave* The 
prohibition of fire and water was replaced by deportatio to 
an island. 

Q. Could a deportatus recover his rights of citizenship P 

§ 1. ^. Yes : when the emperor recalled him ; but tnis 
restored him to civil rights for the future only, and did 
not reinstate him in those which he had lost by deportatio, 
unless, indeed, absolute restitution was granted {fer omnia) : 
for then he was reinstated in his original position, and m 
the patria potestas he had lost. 

Q. How do deportatio and relegatio differ P 

36 EXAICINATIOH IK [b. I, T. 12 

§ 2. ^. Relegatio (rarely a perpetual banishment) left 
the condemned the name of citizen, and all hie nghta as 
one of dk family, Ovid, who was relegatus, said — 

" Nee mihi jus dvis, nee xnihi nomen abest." 

Q. Captivity being one mode of losing liberty (t. S, 
ante), were any means invented for doing away wiUi its 

§ 5. A, Yes. There was a legal fiction, viz, the jus post' 
liminii (I), or right of return, by which a captive, if he 
escaped or was retaken from the enemy, was regarded as 
never having been in their power, and tnerefore, as having 
always had his civil rights. Ihmng the father's captivity, 
the status of the children was in suspense ; if he retomed, 
they had never been out of his power ; if he died, they 
became sui juris at the first moment of his captivity. 

Q. What dignities pat an end to the patria pot^tas ? 

A, Originally, none out that of flamen or vestal. Justi- 
nian attadbed the same efiect, first to the patriciatus (2), 
and then by Nov. to the dignity of bishop, consul, and, in 
short, to any which relieved a man from the duties of 
the curia. Moreover, by special privilege, filii-f. who be- 
came sui juris by dignities, retained iheirfamily rights, as 
was the general rule when filii-f. were emancipated before 
Uie pater-f.'s death (3). These dignitaries oontmued agnati, 
and, when the pater-f. died, succeeded him, and their 
children became their filii-f., just as if tliey had then for 
the first time become sui juris, 

Q, Define emancipatio. 

§6. A, A solemn act by which a pater-f. divests him- 
self of his power over his filius-f., so that &e filius-f. may 
become sui juris. 

Q. What are the forms of emaneipeitio f 

^6, A. Three. 1. The old emancipation, which was by 
several mancipatiofies (4) followed by several enfiranchise- 

(1) I 6. Limine post, becanse the firontier of the empire was a 
kind of threshold to which the captive came back. 

(2) This was conferred hy Constantine on eminent men chosen 
by him as privy cotmcillors. 

(8> When tike patria potestas was dissolved by the pater-f.'s 
deatli, or by his losing his dtizenship or liberty, the filii who 
became sui juris were still of the fimulia, which then consisted of 
several smaller famUue, the tie of agnaiio being still undissolved 
(t. 15, post), 

(4) Vtde t, 9. Hence emancipatio. 


ments. The maricipatio, or solemn sale, destroyed the 
patria potestcu ana pat the filius-f. in mancipio, which 
was a kind of slavery. The enfranchisement By the pur- 
chaser made the fihus-f. sui juris. As the eo&anchiser 
acquired aU rights of patronage (§ 6), the father, on occa- 
sion of the last manunpatio, added the trust-clause (fiducia 
eontrada), u e,, an express condition that the purchaser 
should remancipaie the filius-f. to the pater-f., so that, 
having ceased to be a pater-f., and bemg only an ordi- 
nary purchaser (1), he might himself enfranchise his child, 
and so acquire the rights of patronage. 

§ 6. 2. The Anastasian emancipation, introduced by 
Anastasius. It consisted in obtaining an imperial rescript, 
authorizing the emancipation, which was to be registered 
with the proper officer. In this way a filius-f might 
be emancipated in his absence, which could not be done 
by the ola form per tes et Ubram, since the purchaser 
had to lay hold of the thin^. 

3. The Justinian emancipation, a mere declaration of 
the pater-f. before the magistrate, no leave being required 
for the purpose (recta via), 

Q. Did the last have the same effect as the other 

§ 6, (et tunc). A, Yes. The pater-f. had the rights of a 
patron, just as in case of a mancipatio, contractaJiducia» 

Q. Could the emancipatus ever lose the benefits of 
emancipatio ? 

A. xes ; by ingratitude, as a freedman did those of en- 

Q. When might adoption be said to extinguish patria 
potestas ? 

A, Whenever it transferred the adopted from the po- 
testas of his pater-f. to that of the adopter : in case of 
adrogatio, this happened to the children of the adrogatus, 
and, in adoptio (proper), when the adopter was an ancestor 
of the adopted. 

Q. To whose familia did a child belong, if he was the 

(1) For the filius-f. was not then under patria potestcu; that 
expired by the first or third mancipatio ; he was in mancipio. 
The object of all the forms was to substitute for patria pot,, man- 
dpiwn, a species of potestas dissoluble by enfranchisement. 
Macnipatio had by this time become a fiction, and was only re- 
tained as a form in emancipation and adoption. Justinian pat an 
end to it, even as a form (ffide drd form). 

38 SXAMINATION IK [B. 1, T. 13. 

legitimate son of a filius-f. who had been emancipated or 
given for adoption? 

§ 9. A. To that of him who was his pater-f. at the time 
of conception. Therefore a filius-f. conceived before, but 
bom after emancipation, was of his grandfather's familia ; 
if conceived after emancipation, of his father's familia. 

Q. Could a pater-f., when he emancipated his son or 
gave him for adoption, retain his grandson in his potestas, 
and viae versd ? 

§ § 7, 8. A, Yes : nor did the grandfather need his son's 
consent in order to emancipate his grandson, or to ^ve 
him for adoption ; but there could be neither emancipa- 
tion nor adoption without the consent, express or tacit, of 
the person to be emancipated or adopted. 

Q. Could filii-f. compel the pater-f. to surrender his 
potestas P 

§ 9. A» iN'ot in general ; but there were exceptions. 1. 
One adrogatus unaer age might claim emancipation, if on 
reaching pubertv he showed that the adrogatio was not for 
his benefit. 2. So mifht children who had been ill-treated 
by their father ; and, 3. So might a daughter who had 
been prostituted by her father against her will. 


Q. How were persons sui juris divided P 

Pr, A. Into, 1. Those in tutela; 2. Those in cwr (stelae 
3. Those neither in tutela or in curatela. 

Q. Define tutela, 

§ 1. A. It is the power (vis ac potestas) over a liherum 
caput (free person), granted or permitted by the civil law 
for the protection of one who, because of his years, cannot 
protect nimself. 

Q. Explain liherum caput, 

A, A person not subject to potestcLs either dominica or 
patria, None but those impuheres and suijwris were sub- 
ject to tutela, and they were called j>i^t7^t. 

Q. Why granted or permitted ? 

A. To mark the distmction between tutela legitima con- 
ferred by the law, and tutela testamentaria, conferred by 
testament and permitted by law. Besides these two 
kinds, created by the Twelve Tables, there was a third, 
conferred by certain magistrates, called atiUana, or 


Q. Why gromted ot permitted hy the civil law f 

A, Because the ciyu law had its own rules as to goar- 
dianship, though in truth it was a doctrine of the jus 
gentium : for natural reason shows the ohvious oonyeni- 
ence of placing one, who cannot protect himself, under the 
guardianship of another (1). 

Q. Why 3^ the protection, &c.P 

A. To show that guardianship, unlike patria poteitas, 
existed only for the benefit of the person subject to it. The 
pat, potestas gave the father whatever the son acqiured, 
stripped the son of all rights, and made him, in some re- 
spects, part of his father's property : this power, therefore^ 
was chiefly for the father's benefit; but guardianship, 
though it conferred on the tutor a power to £rect and aa- 
minister, gave him no rights of property, either over the 
person or goods of the pupillus {tutores quasi tuitores, § 2). 

Q. Who might nommate tutors by testament P 

§ 3. A, None but patres-f., and they could do so onlj 
over such impuberes under their potestas, as on their 
death would become sui juris; for persons sui juris alone 
had tutors. Unless, therefore, my son is emancipated, 
I cannot nominate tutors for my grandchildren by him, 
though they are under mj potestas, for at my death they 
must be under their father's. 

Q. Could a pater-f. nominate by testament a tutor for 
postumi, i. e. filii-f. born after his death P 

§ 4. A. Yes. For though postumi were held to be un- 
certain persons, and therefore could not be the objects of 
a testamentary gifl (vide Hi, Legacies), children were often 
(complvribus) regarded as bom, although only conceived. 
Tlie pater-f. could therefore nominate a tutor by testament 
for &postumus, whenever he could do so for a horn child, 
i. e. where, had the postumus been born during the testa- 
tor's life, he would have been under the immediate potestas 
of the testator ; and this is what the text requires, when it 
says, that these postumi, supposing them to oe bor^,'must 
be sui hiBredes. 

Q. What was the effect of a pater-f. nominating by 
testament a tutor for his emancipated filius-f. P 

§ 5. ^. Of itself the nomination was null, but it was 
confirmed by the ma^strate, without inquiry. So it was, 
when the act of nomination was void for want of form. 

(1) Formerly the Romans had a peculiar tutela based on political 
grounds, viz. over women of full age and sui juris, — Gaius 1, 
§§ 149, 153. 

40 EXAMINATION IN [b. 1, T. 14. 

When the nomination was by any person, not the pater-f., 
it might be confirmed by the magistrate, but only after 
inquiry, and provided the testator had appointed the pupil- 
lus his hares. 



Q. Who might be testamentary tutors P 

JPr, A, None, except those with whom the testator 
had testamenti factio, i, e. persons to whom a testator 
might make a bequest, which they might acquire for them- 
selves or for others (1). Moreover, such persons must be 
capable of filling a public office, for tutela is one (2). 

Q. Might a mius-f. be tutor P 

A. Yes ; for there was testamenti factio with filii-f., 
though they acquired on behalf of their pater-f. ; and 
there tras capacity to fill public offices ; for as to that, 
they were sui juris, 

Q, Might a slave be tutor P 

§ 1. A. Not whilst he continued so : though there was 
testamenti factio with a slave, for he acquired on behalf of 
his master, yet he could fill no public office ; but a man 
might nominate his own slave tutor hj bequeathing to him 
his freedom. After Justinian's time, it was unnecessary to 
bequeath freedom expressly, for the act of nomination 
sufficiently proved the wish to enfranchise (3), since none 
but a freeman could be tutor. But the nomination was void, 
if the testator named one of his slaves under the belief 
that he was free, because no intention to enfranchise could 
be presumed, when the slave was supposed to be already 
free. So it was, if the terms were cum liber erit (when he 
shall be free), for this negatived any intention to enfran- 

Q. Might the slave of another be named tutor P 

§1.-4. Yes, if the terms were, when he shall be free; 
and this condition was impdied, unless it appeared that the 
testator intended the nomination to be absolute, for then 
it was void. 

(1) Tit. Legacies. 

(2) Hence women could not be tutors, though, sometimes, by 
permission of the Emperor, they acted as sadi. 

(3) Prior to Justinian, freedom could not have been directly 
given ; but there would have been a fiiei commissum, or trust, 
which would have bound the hares institutus to enfranchise. 


Q. Could &furiosug (lunatic) or one under 25 be a tutor P 

§ 2. ^. Yes ; afler the one had recoyered his reason, 
and the other attained 25. This condition was implied, 
until proof to the contrary was given. 

Q. In what terms might a tutor be nominated P 

§ 3. J[. Absolutely or conditionally, until {ad) or to begin 
from (ex) a limited period. 

Q. Might the nomination of the tutor precede the ap- 
pointment {institutio) of the hares ? 

A. Every valid testament must contain an tTM^t^tt^to. By 
the old law, all dispositions in the will prior to this were 
null ; the Sabinians, therefore, held, that the nomination 
could not precede the institutio, but the Froculeians 
allowed an exception here, on the ground that the nomina- 
tion of a tutor takes nothing from the hcereditas (estate) and 
puts no charge upon the TuBres ; and Justinian, adopting 
mis view, laid down the general rule that it did not matter 
whether a disposition in a testament occurred prior or sub- 
sequent to the institutio ktsredis. 

Q. Could the testator confine the guardianship to one 
article, or to a special business P 

§ 4. J[. No ; for that would have been at variance with 
the very essence of the tutorial power, which was attached 
to the person, not the property of the pupillus, for it was 
only as a necessary result of the tutor's protection over 
the person, that he extended his care over the property. 
But, if the pupillus had goods in different provinces, a tutor 
might be named for the property in each ; this, however, 
is rather a division of the management than of the tutela. 

Q. If a tutor was named by a testator for his sons or 
daughters, did that include postumi ? 

§ 5. ^. Yes ; but not grandchildren (nepotes) ; it would 
be different if the term had been liheri (issue) ; posteri 
(posterity), includes all the issue bom or posthumous. The 
meaning, however, of these terms, varies with circum- 



Q. When were the Agnati tutors P 

§ 2. A, The Twelve Tables made the Agnati tutors, when 
the pater-f. died intestate as to tutors, i. e, made no testa- 
tament at all, 6r none naming tutors ; or when the tutor 
named died before the testator. 

42 EXAMINATION IN [b. 1, T. 15. 

Q. When the testament named the tator for a fnture 
time (ex), or conditionally, did the Agnati, in the mean- 
time, assume the goardianship as tutores legitimi ? 

A. No : it passed to a tutor dativus, t. e., named by the 
magistrate. In general, as long as there might be a tutor 
by testament, there could be none by law {Sgitimus). If 
the testament named onefor a limited time (ad), there would 
be tutors legitimi at the close thereof; for the pater-f. died 
intestate, in fact, as to the remaining time, t. e., until the 
pupillus reached maturity. 

Q. Who were Agnati of a Pupillus P 

A, Those who on the death of the pater-f. were, to- 
gether with the pupillus, in the power of the deceased. 

Q. Was the tie uniting persons under the power of a 
pater-f. quite severed by his death P 

A, No. All who became sui juris by the death of a 
pater-f. became each the head of a separate family (c2o- 
mus) i but thej; continued to form one general family, the 
members of which were each and all Agnati (1). 

Q. Is this Justinian's definition of A^gnati P 

§1. A, No: he says they are persons related to each other 
through males. But this definition, though correct in so 
far as it excludes from the class of Agnati persons related 
through females (2), is too wide, since there may be persons 
related to me through males who are not my Agnati. For 
(§ 3) a man may cease to be agnatus without ceasing to be 

Q. Were all the Agnati tutores legitimi at once P 

(T. 16, § 7). A. No : Tutela (like succession) went to the 
agnatus or agnati nearest in degree. 

(1) Hence the double meaning offwmlia : nomen, the general 
fiimily, was divisible into paiticidar families, and these were again 
divisible. Thus the Cornelian iamily consisted of six particular 
families : that of the Sdpios, Lentulus, Sylla, &c That of the 
Sdpios was subdivided into four houses (domus), the heads of 
which were Scipio Africanus, Sdpio Ncisica, Scipio JBispanus, and 
Scvpio Asiaticus, The members of these particular fimulies were 
agnati to each other; for if the common ancestor had been alive, 
they would all have been subject to his power. 

(2) For the children of a woman, though she is a member of the 
same &mily with me, are not members of it. They belong to 
their other's fimiily (§ 1). Hence they are only my cognati. 



Q. Define diminutio capitis. 

Pr. A, It is the loss of one of the elements which con- 
stitute the status of a Soman citizen. Now, of these 
there were three : liberty, citizenship, and family (1) ; 
hence, three diminutiones capitis : maxima (greatest) ; 
media (middle) ; and minima (least). 

Q. In what cases was there maxima d. c. P 

§ 1. A, When a citizen lost his liberty. For the loss of 
that involved the other two, citizenship and family. 

Q. In what cases was there media a. c. P 

§ 2. A, When a citizen lost his citizenship but retained 
his liberty ; as when a man was forbidden fire and water, or 
deportatus in insulam. The loss of citizenship always in- 
volved that of family. 

Q. In what cases was there minima d. c. P 

§. 3. A, When a citizen changed his family, but retained 
his liberty and citizenship ; as when a pater-f. entered a 
family by adrogatio, or legitimatio, or when a filius-f. was 
emancipated or adopted (2). 

Q. Explain the phrase diminutio capitis. 

A, Whenever a change of status took place, the family, 
the state, or body of freemen was diminished by a head. 
Now, what might properly have been said of the state, 
was said of the individual, and the person causing the 
diminution was called capite minutus. 

Q. Did the enfranchisement of a slave create a diminutio 
capitis P 

§ 4. A, No : the slave having no family {nullum caput), 
ceased to be under his master's power without causing 
any dim. cap. 

Q. When a senator was deprived of his dignity, did 
that cause any dim. cap. P 

§ 5. A. No : dignities were mere accessories belonging 
to some persons and not to others, and were not essentitu 
to Boman citizenship. 

(1) No citizen without liberty, dtizenship, and fiunily, of which 
he must be either the chief or a member. 

(2) In cases of maxima or media d. c, the status of a Roman 
citizen was destroyed (amUtUtir, § 8) ; in minima d. c, it was 
continued, though modified by the family being changed {cornnrn- 
tatwr, § 3 t. 15). 

4ti EXAMIHATIOir IN [B. 1, T. 17. 

Q. What effect liad dim. cap. on the titles Agnati and 

^6, A. The title Agnatn8(l) was lost by any dim. cap.; for, 
being common to eyery member of the same family, it mnst 
cease to belong to any one who ceases to be a member, even 
by the minima d. c. Bat the title Oognatos being inde- 
pendent of family, did not cease to beloDg to one nnless 
ne suffered the maxima or media d. c. ; and then, only in 
this sense, that the tie of blood, which was strictly indis- 
solnble, ceased to produce those civil consequences which 
were its ordinary result. 


Q. On whom was this tutela legitima cast P 
A. The rules as to the legal guardianship of A^nati 
could not apply to a freedman pupillus ; for, having been 
a slave, he could have no Agnati, on being enfrancnised ; 
but, in accordance with the spirit of the Twelve Tables, 
the patron and his children became the Areedman's tutors. 
Q. Why the spirit of the law of the Twelve Tables P 
A, Because that law contained no express provision as 
to the guardianship to be exercised by patrons : but this 
guardianship called legitima was the effect of a con- 
struction founded on the spirit of the law, just as if it had 
been expressly ordained. For, in case of Agnati, the 
nearest of them, who was called to the guardianship, was 
also the successor of the Pupillus, when he died. From 
this the prudentes concluded that the intention of the law 
, was to impose the guardianship on him, who had hopes of 
succeeding to the property of the pupillus, since he had 
an obvious interest in protecting it. I^ow this same law 
cast upon the patron, and then upon his children, the right 
to succeed his freedman who died intestate ; therefore it 
was assumed to have the further intention of casting upon 
the same persons the guardianship. 

Q. Was the legal guardianship always cast on the pre- 
sumptive successor of the pupillus P 

(1) That is generally (plerumque, t. 15, § 3). This Tribonian 
added, because after Anastasius one emancipated was still the 
agnatus of his brothers and sisters, B. 8, t. 2. 

p. 1, T. 18, 19.] THE INSTITUTES OF JUSTINIAN, 45 

A, Yes ; unless he was incapable of exercising it, as in 
case of a woman, or a person under twenty-five. 



Q. On whom was the legal guardianship of a filius-f, 

A, On the pater-f., who emancipated the boy under 
fourteen, or girl under twelve, over each of whom he had 
idl the rights of a patron (p. 37). 


Q. When the emancipating ancestor died, leaving no 
tutor by his testament, who was tutor of the emancipated 
imuubes P 

§ A, The other filii-f. (males, and above twenty-five), 
who remained under the emancipator's power. This was 
the tutela fiduciaria. 

Q. Why was it not called legitima, as when the patron's 
children were tutors P 

A, The text says, because the patron transmitted to his 
children the legiUma tutela of the freedman, as he would 
have transmitted to them the dominica potestas over the 
same freedman, had he not been enfranchised ; whereas, 
had the filius-f. not been emancipated, the ancestor would 
not have transmitted the patria potestas to those to whom 
such ancestor, on death, did in fact transmit the tutela 
of the emancipated fihus-f. But this will not hold ; for 
though it is true that his brothers and uncles (who might 
be tutores) would not have had the patria potestas on 
the pater-f. 's death, still in the case where a grandfather 
emancipated his grandson and died, ^e father became 
tutor fiduciarius of his own child, and yet it is clear that, 
had there been no emancipation, this grandchild would 
have come under his father's potestas ; so that here, had 
the filius-f. not been emancipated, the ancestor, ». e., the 
grandfather, would have transmitted the potestas to the 
same person, viz. the father, to whom it was in fact 
transmitted. The true account is probably this : the term 
tutela legilima applied only to a guardianship directly 
created hy the law of the Twelve Tables, or derived t«- 
directly &om its rules as to the succession to property. 

46 EXAMINATION IN [b. 1^ T. 20. 

Tlins, although that law did not ezpresslj name the 
patron and his children tutors of the freedman, it did so 
impliedly by naming them successors to the freedman's 
property ; whereas it said nothing of the rights of eman- 
cipators generally, or of the issue of emancipating ances- 
tors, to succeed to or be guardians of emancipated filii-f. 
In short, a special name was given to tutela Jiduciaria, 
because it could not have been included under tutela 
le^itima (even in its widest sense), except by reason of the 
famt analogy existing between those rights of patronage, 
which were impliedly sanctioned by the express provisions 
of the law of the Twelve Tables as to succession, and the 
rights of an emancipating pater-f. and his familia, 

Q. Eecapitulate the four tutelse legitime. 

A, 1. If the pupillus was a freedman, his tutor was his 
patron, and after him his patron's children. 2. If the pu- 
pillus was a free-bom filius-f., and had become sui juris 
Dy the death of the pater-f,, without emancipation or 
diminutio capitis, his tutor was an agnatus; but, 3. If 
with emancipation and with diminutio capitis first, the 
emancipator was the tutor legitimus ; and, 4. After him 
there was a tutor fiduciarius. 

Q. Did Justinian introduce any change P 

A. Yes ; as he introduced by Nov. 118 a new system of 
succession, he of course introduced a new system of legal 



Q. In what cases did magistrates nominate tutors P In 
other words, when was it a case of tutela dativa ? 

Pr. A. 1. When there was no tutor, testamentary or 

2. When the Actions of a testamentary tutor were 
suspended. Thus, when he was to begin his duties after a 
certain period, or upon a certain event, a tutor dativus was 
named m the meantime. So when he was named abso- 
lutely, a tutor dativus was appointed till the hrores insti- 
tutus appeared. So, when a tutor was taken prisoner, a 
t. dativus was named, whilst it continued doubtful whe- 
ther hy postliminium the captive would resume his guar- 
diansmp or not. In all these cases the tutor dativus resigned 
whenever the testamentary tutor appeared, or whenever it 
became clear that he never woula appear, because, e, g.y 


the condition had become impossible ; and then the tatela 
vested in the agnati, or other legal tutors (§ 1, 2). . 

3. Wheik the testamentary tutor was excused or dis- 
missed. In this case, though there never could be a testa- 
mentary tutor, recourse was not had to a tutor legitimus, 
but to one dativus. 

Q. What magistrates had power b^ special laws (for it 
was not within their ordinary jurisdiction) to name tutors 
dativi P 

§ 4. A, At first, in Eome, the praetor urbanus and the 
majority of the tribunes (1), by virtue of the lex Atilia ; in 
the provinces, the governors, by virtue of the lex Julia and 
Titia, Later, Claudius conferred the same power on the 
consuls, and later still, Antoninus Pius on the prsetors. 
These magistrates named the tutor, after inquinng into 
his character and fortune. 

Q. Was there any change, even before Justinian, in this 
P9wer of nomination P 

§4. A, Yes : in Ulpian's time this power was exercised, 
at Kome, by the prsBfect of the city (2), or by the prsetor, 
{secundum suam jurisdictionem), each exercising it over 
those, subject, in this matter, to his jurisdiction. In the 
provinces it belonged to the governors ; or to the municipal 
magistrates, when the property of the pupillus was not 
large, and when the governor declined to nominate him- 
self, and directed these magistrates to do so. 

Q. What was Justinian's rule on this matter P 

A. It was this : when the property of the pupillus was 
less than 500 solidi (3), the mumcipal magistrates, or the 
defansores civitatis, might, without the governor's order, 
name a tutor without inquiry ; but in this case the tutor 
must give security, which was dispensed with when he was 
named by the governor after inquiry (t. xxiv. § 5). 

Q. Wnen were tutors required to render an account of 
their administration P 

§7.-4. When they ceased to be tutors, by reason of 
the pupillus attaining full age ; and there was an actio 
tutelse to compel an account. 

(1) The ten tribunes decided nothing, unless they were unani- 
mous; but in order that the impubes might not be left without 
a tutor, it was thought enough if six of them agreed with the 
praetor. Pr, 

(2) His jurisdiction extended 100 miles round Borne ; the city 
(strictly) was included within these limits. 

(3) About 480^. 

48 EXAMINATION IN [b. 1, T. 21. 


Q. What were the duties of a tutor P 

A. He either acted by himself without the pupillus, or 
he acted with the pupUIus for the purpose of validating 
the act by his presence and approbation (1). Tutores, says 
Ulpian, et negotia gerunt et auctoritatem interponunt, 

Q. In what cases did the pupillus require his tutor's 
authority P 

Pr. A. There were two periods in pupilage. Until 
seven years complete the pupillus was an infans : he un- 
derstood nothing ; he did, and could be a party to, no act ; 
the tutor represented him, and had sole management of 
his affairs. After infancy, the pupillus had a certain under- 
standing (intellectum), out no judgment (animi judicium) ; 
he might, therefore, alone, ana without his tutor's autho- 
rity, make his condition better; but he could not, without 
such authoritj, make it worse. 

Q. What IS meant by making his condition better or 
worse P 

A, It was made better when something was acquired 
by him, or when another had incurred an obligation to 
hmi ; it was made worse, when something was alienated, 
or when the pupillus had incurred an obligation. 

Q. Why was the tutor's authority requisite for a pupil- 
lus to make his condition worse P 

A. Not because every alienation or obligation incurred 
was of necessity disadvantageous; for, tnen, the tutor 
would never have allowed his pupillus either to alienate or 
bind himself, but because the bare alienation or incurring 
of an obligation implied a loss, and because the question 
whether such loss would be compensated by other advan- 
tages, was beyond the pupillus, for it required the exercise 
of judgment. 

(1) The tutor's co-operation in some acts of the pupiUns gave 
rise to the phrase, the tutor is given to the person of the pupillus. 
This co-operation completed the person of the pupillus by adding 
to bis will a power which it would not otherwise have had. It 
was therefore to his civil rather than to his physical person that 
the tutor was given. For his education was directed by the 
ma^trate, who decided everything respecting it, the tutor being 
chfffgeable with the expense. 


Q. What happened when the pupillns made, without 
authority, a contract involying mutual obligations, as sale, 
hiring and letting, &c. P 

Pr. A. The party contracting with the pupillus was 
bound, the pupiUus was not. For such contracts contain 
two acts (purchase and sale, hiring and letting) ; in the 
one the pupillus is the person to whom another is bound ; 
this act, therefore, whicn makes his condition better, and 
requires only apprehension, is valid: in the other the 
pupillus is the person to be bound; this act, therefore, 
which makes his condition worse, and requires judgment, 
is null. But the rule of law was, that no one shomd en- 
rich himself at the expense of another ; therefore, if the 
pupillus would not fulnl his part of the contract, he could 
not compel the other party to fulfil his. In a sale, e. g,, 
he could not claim the thing sold without paying the price. 
And if the other party had executed his pfurt of the con- 
tract, in whole or in part, and the pupillus had thereby 
derived a benefit, he would be liable to the extent of such 
benefit (B. 2, t. 7). 

Q. Can a pupillus, without the tutor's authority, accept 
an hsBreditas (adire huBreditatem), receive it as a trustee (ex 
fidei commisso) (1), or demand possession of goods f 

§ 1. A. No : because a man cannot acquire a succession, 
however valuable, without judgment, in order to estimate 
the burdens and benefits attached to it. 

Q. When and how was the tutor's authority to be 
given P 

§ 2. il. The tutor's authority consisted in his actively 
co«operating in the act, so as to augment and fill up the 
persona of the pupillus (augere, auotor fieri) ; hence it 
could be given neitner before nor after (statim in ipso tw- 
gotio), nor by an agent (prcBsens). 

Q, Did the capability which the pupillus, who was no 
longer an infant, had to join in any ace prevent the tutor 
actmg by himself if he thought fit P 

A. 1^0. Still there were cases, such as Adrogatio, the 

(1) The fKBreditas passed under the civil law. The honorum 
possessio was the right which the prtetor granted to a man to put 
himself in and to hold possession of an estate {successio), to which 
he was not entitled by the civil laW (B. 3, t. 9). HcsredUas fidei 
eommissaria was an estate (successio) received by a IHdei- 
commissaries (cestui que-tmst) from tifidueia/rius (trustee), whom 
the testator Imd charged to traofer it. 


50 EXAMINATION IK [b. 1, T. 22. 

enfranchisement of a slave, the acceptance of an hssreditas, 
when the pupillus must appear personally. 

Q. As a tutor could not give his autnority in his own 
cause, how could the pupillus maintain a suit against 

§ 3. ^. At £rst, the prstor used to appoint him a tutor 
(prcBtorian), Afterwards, they gave him a curator whose 
functions ended with the suit ; and this was more consis- 
tent with the rule that a tutor was never appointed for a 
special business (1). 


Q. How was tutela ended P 

jPr. A. 1. By the pupillus reaching puberty, i, e., twelve 
years complete in the case of women, and fourteen in the 
case of men. Prior to Justinian, opinions were divided as 
to males : the Sabinians determined puberty by the phy- 
sical development of the body ; the Prociueians by age 
alone ; Priscus insisted on both conditions. But Jus- 
tinian held with the Proculeians, as more consistent with 
decency. 2. (§ 4, § 1). By the death, or any, even the 
minima, diminutio capitis of the pupillus ; for a tutor was 
given only to one sui juris, and an mipubes sui juris, who 
suffered even the minima d. c, of course became alieni 
juris. 3. By the tutor's death (§ 3). 4. By the tutor's 
maxima or media d. c. (§ 4) ; for every tutor must be capable 
of holding a public office, and therefore must be a citizen. 
The only effect of a tutor suffering the minima d. c. was 
to put an end to a tutela legitima agnatorum (§ 4), for 
that was the only guardianship dependent on the family- 
tie, which, of course, was broken by the tutor leaving the 
family. 5. As to testamentary tutors, they ceased when 
the period expired, or the condition happened which 
limited their tutela (§ 5). As to tutores dativi, they 
ceased when the period expired or the condition happened 
which suspended the testamentary tutors (§ 2) entering 
into office. 6. (§ 6). By excuses, made by tutors and ad- 
mitted by the magistrate, or by a sentence of dismissal 
(t. 26, 26). 

(1) By Nov. 72, no creditor or debtor of thepupUlus, except the 
mother, could be a tutor ; and if a party after becoming tutor be< 
came hb creditor or debtor, a curator was to be added during the 
whole guardianship. Hence the special curator alluded to in the 
text could scarcely ever be required. 



Q. Amongst persons sui juris, who might be subject 
thereto P 

A. 1. Impnberes, whose tutors were unfit for their 
duty, or who had been excused for a time from the tutela ; 
for if a person had one tutor, he could not haye a second 
(§6). 2. Adolescentes (puberes and under twenty-five.) 
(]Pr.) 3. Furiosi and prodigi (spendthrifts) under interdict, 
though aboYe twenty-five (§ 3) ; lunatics and persons 
suffering under incurable disease (§ 4), or deaf or dumb. 

Q. What could a tutor do, if &om ill health or other 
cause he found himself unequal to manage his pupil's 
affairs P 

§ 6. J. Assuming that it was not a case for a curator, 
the prsetoT would appoint him an agent (actor em), who 
should manage at the risk of the tutor; but such agent 
was indispensable only when the pupillus was absent or an 
infant, for otherwise he might himself, with the tutor's 
authority, appoint a procurator. 

Q. Were adolescentes forced to have curators P 

A. No : generally, persons of age were deemed capable 
of managing themselves and their property, and therefore 
could not be compelled to have them; but they were 
granted, when applied for, to those who felt incapable by 
wemselves of managing their property. There were, how- 
ever, three cases in which curators were forced upon ado- 
lescentes : 1. When they were parties to a suit (§ 2). 
2. When they had a payment to receive. 3. When their 
tutors had to render tneir accounts. In any such cases the 
debtor or the tutor was entitled, if not to nominate, cer- 
tainly to refuse paying the adolescens until he nominated 
a special curator — the object being to bar any renewal of 
the suit, and to avoid any question as to the payment or the 
accuracy of the account (1). 

Q. Could a person under twenty-five, who had once ob- 
tained a curator, reassume the management of his property 
before twenty-five P 

A. No : unless the emperor granted him a dispensatio 

(1) The prsBtors introduced in favour of adolescentes the resti- 
tutio in integrvm, which avoided any act by which they were 
damaged. The lex Hoetoria, probably the first which divided the 
paberes into two daases, subjected to infamy any one who took 
fraudulent advantage d an aaaltus. Ferfecta ates was 25. 


52 EXAMINATION Ilf [b. 1, T, 24. 

Q. In whom did the curatela vest P 

§ 3. § 1. A, That of lunatics and spendthrifts was alone 
le^itima, bein^ vested by the Twelve Tables in the Ag- 
iiati (1) ; in other cases the curators were named by those 
magistrates who named the tutors ; though curators were 
not to be named by testament, still if so named they might 
be confirmed by the magistrates. 

Q. Were not the curators of lunatics and spendthrifts 
generally dativi, i. e., appointed by the magistrate P 

§ 3. ^. Yes (solent) : for not merely might such persons 
have no agnati, or none capable of acting as curators, but 
by the Twelve Tables the agnati were never curators, unless 
the lunatics or spendthrifts were the legal representatives 
of a pater-f. who had died intestate ; in all other cases they 
were dativi. 

Q. What were the duties of a curator? 

A. UnHlce the tutor, he was given, not to the person but 
to the goods, and often for a particular business ; for every 
one of full age was capable of acting and binding him- 
self (2) alone. Curators, however, as ^ardians of the 
property of adult lunatics, &c., were required to give their 
co-operation and sanction ; and, when the persons in cura- 
tela were totally incompjetent to act themselves, to appear 
for them as their attomies. 



Q. Was any security taken for the proper conduct of 
tutors and curators P 

A. Yes : amongst them we find, 1. The security to be 
furnished by them before beginning to act, without which 
no act of theirs was valid. 2. The inventory to be prepared 
before they took office. 3. The implied hypothecation or 
charge on all their goods. 4. The oath required by Jus- 
tinian (Nov. 78), to administer the goods, like a good 

(1) The curatela was not, like tutela legitima, bestowed on these 
because they might succeed to the property ; for the lunatic or 
spendthrift might have children who woidd exdude agnati, whereas 
impuberes could have none. And though the express provision as 
to agnati being tutors was by construction extended to the patron, 
this rule was not extended to the case of curators. 

(2) If not an absolute idiot, an adultus might many without 
the aid of the curator. 


Q. Were there not varioos kinds of cautiones P Which of 
them was required of a tutor or curator? 

Fr, A, Cautio (cavere) means any {([uarantee or seouritj. 
A promise hj word or by writing, or a pledge, are cau- 
tiones ; an oath is a cautio juratona. When a third party 
comes in and adds his personal obligation to that of the 
principal debtor, there is the cautio, called satisdaiio (1), 
and this was the one furnished by tutors and curators. 

Q. Were all tutors and curators compelled to gire 
security P 

Jpr. A. No: the exceptions were : 1. Testamentary tutors, 
for their fidelity and diligence were guaranteed by the 
testator's choice. 2. Tutors and curators named by their 
father's testament, when the nomination required con- 
firmation $ but there was no exception when they were not 
named by the fathers but by some one else. 3. Tutors and 
eurators datiri appointed after inquiry (2). 

Q. Were tutores legitimi always obliged to give security P 

A. Always, in strictness ; but the prsetor sometimes re- 
lieved the nither and patron. 

Q. Might it not happen that some tutors and eurators 
within these exceptions nad to provide securities ? 

§ 1. ^. It might, when several tutors or curators were 
appointed together ; for then there was only one, called 
imerariuSf who managed, the others being konorarii, with- 
out any active share, but still responsible to the pupillus. 
Any one of the tutors or curators might, by tendering 
security, compel his colleague to leave the management in 
his hands, or to furnish security himself, if he wished to 
undertake the management. 

Q, If no one offered security, who selected the ma- 

(1) It consisted in furnishing a fidejussor (B. 3, t. 20), t. e,, one 
bound by stipalatio to answer for the conduct of the tutor or 
curator. The form was this : — Firsts the tutor or curator was asked, 
PramUtesne rem pupUli aalvam fore? He answered, Fromitto» 
Again, the fid^ussor was asked, Mdejubetne rem pupiUi scUvam 

fore ? He answered, Itdejubeo* But who put these questions ? — 
The pupillus or the adultus. For the right of action (actio ex 
stiptUatu) belonged to the party who received the answer. If the 
pupillu^ could not speak, or was not present, one of his slaves put 
the questions, because they acquired for their masters. If he had no 
slaves, a public slave acted. These stnpulationes werecommunes, ». «., 
enfbreed either by the pnetor or judex (B. 3, 1. 18). 

(2) The superior magistrates idone did this (t. 20, prope fin). 

54 BXAHINATION IN [b. 1, T. 26. 

§ 1. A. Unless that had been done by the testament, 
the majority of the tutors or curators, and, if they disa- 
^eed, the magistrate. 

Q. Might the management be divided amongst the 
joint-tutors and joint-curators P 

A, Yes : either by the terms of the appointment or at 
their own request, each undertaking a particular district 
or distinct portion. In this case the responsibility was 
not joint but several. 

Q. How were tutors, wrongfully refusing, compelled to 
furnish security P^ 

§ 3. ^. By a seizure of their ^oods, which were kept as 
a pledge ; if they still refuse^ they were deemed sus- 
pecti (t. 26). 

Q. Who was responsible for the sufficiency of the 
security P 

§ 2. ^. The mi^istrate who accepted it ; a fortiori he 
was responsible when there was no security at all, for his 
duty was to have it provided. 

Q. Did this actio suhsidaria, which lay against the ma- 
gistrate, lie against his legal representatives r 

§ 2. § 4. A, According to the Besponsa Prudentum and 
the Imperial Constitutions it did, in case of gross negligence. 
However, it lay only against inferior and not against supe- 
rior magistrates ; for it was not part of their duty to see 
security provided. 


Q. Was there any means of being reHeved £rom guar- 
dianship or curatela except a lawful excuse P 

A, Is one : for they were public duties. 

Q. State the lawful excuses common to tutela and 

Pr. A, 1. The number of children : three at Borne ; four 
in Italy ; five in the provinces ; but all must be alive, or must 
have fallen in battle. Children in the womb or adopted 
were not reckoned ; those adopted or emancipated were 
reckoned by their natural father, for this excuse was in 
favour of population, and had no reference to the patria 
potestas. Grandchildren represented their deceased father. 

2. The management of the treasury. This was first allowed 
as an excuse by Marcus Aurelius in his Semenstria (1). 

(1) The earlier emperors devoted six months a year to the ad- 


discus was the private treasury of the emperor, and was 
distinct from ssrarinm, the public one ; but in later times 
they were united, and the excuse was avaiLible for a ma- 
nager of either (§ 1). 

3. Absence on the service of the republic. This was a 
permanent excuse, when the tutor or curator was appointed 
in his absence, or within the year after his return ; it was 
temporary only when he had been appointed previously, a 
curator being appointed till his return (§2^. 

4. The holding a magisterial office. This would relieve 
a man from undertaking a tutela, but would not avail him 
so far as to allow him to resign after accepting it (§ 3.) 

5. A suit between the tutor or curator and the pupil or 
minor, if the question affected nearly all the goods of either^ 
or a hereditas (§ 4). 

6. Three tutelse or curatelsB, or even one, if complicated. 
The difficultf rather than the number was the point ; but 
the party alleging the excuse must not have applied for 
the office (§ 5, 9). 

7. Foveriy ; for both the offices in question were filled 
gratis, and would have been too burdensome for a poor 
man. M. Aurelius and Lucius Yerus (divi fratres) intro- 
duced this provision (§ 6). 

6. Disease. Whether this excuse was to avail perma- 
nently or for the time, depended on the character of the 
complaint (§ 7). 

9. Want of education, if such as to incapacitate for 
business (§ 8). 

10. A nomination as tutor, from a spiteful desire to im- 
pose a burden: the being unknown to the testator was 
nothing (§9, 10). 

11. immidtia capitalis of tutor or curator against the 
father of the pupilli or adulti, or against the adulti them- 
selves, there having been no reconciliation (§ 11). 

12. A suit as to the status of the tutor by the pater-f. (§ 12). 

13. The age of seventy. The being under twenty-five 
was good for the tune. But Justinian made this last an 
absolute incapacity (§ 13). 

The same rule applied to idiots, to deaf and dumb. 

14. The military profes8ion( § 14). 

15. A liberal profession exercised in a man's native 
coimtry, or in Iiome, which was the common country, 

nunistimtion of justice and the making of laws. Their collected 
decisions were called semenstria. 

56 EXAUIKATIOK IK [b. 1, T. 26. 

Bnch as law, medicine or rhetoric. In proTincial towns 
the number of persons so exempt was limited (§ 15). 
Q. What excuses were peculiar to curatela r 
A, One who was tutor could not be compelled to be 
curator of the same person : nor a husband to be curator 
of his wife, even though he had interfered in the manage- 
ment of the property (1) (§ 18, 19). 

Q. When ana how were excuses brought forward P 
§ 16. A, Before the magistrate (2), within fifty running 
days, if the party dwelt less than one hundred miles from 
where the tutor or curator was appointed ; but if he dwelt 
beyond the hundred, there was a fixed period of thirty days 
plus onediiyfor every twenty miles beyond the one hundred; 
the time allowed, however, must never. be less than fifty 

as : for otherwise it might be that a person two hundred 
?s off would have ha^ only thirty-five days ; whereas 
one less than one himdred miles off would have had fifty. 

Q. When did the time begin to run P 

§ 16. A, The day on which the tutor or curator knew 
of his appointment or of its confirmation. 

Q. Tne first excuses being rejected, might others be 

§ 16. A, Yes : within the given time. 

Q. Were any excuses avaUable for part of a tutela or 
curatela P 

§ 17. A. No : the rule was, that the excuse must be for 
the whole : but in like manner as the management might 
be divided, so sometimes there might be a partial ex- 

Q. Was the tutor or curator whose excuse was false, 
discharged from responsibility P 

§ 20. A, No : the allowance of such excuses was abso- 
lutely void — an exception to the rule that a judgment 
founded on false grounds must be reversed. 


C2. When was a tutor or curator suspectus ? 
§§ 5, 12, 13. A, When he was unfaithful in performing 
his duties, or of bad character (t. 28, § 5). 

(1) An exoeptioQ to the principle that a party by interfering 
waived the excuse. Again, the excuse was waived by a previous 
promise to the pater-f., to the tutor, to his children, or by allow- 
ing the period to elapse within which the excuse must be pre- 

(2) The tutor dativus, instead of appealing to a superior magia- 


Q* Would the Bolvency of a suBpeKBtuB, or the security 
he mii^ht tender, stop any charge against him P 

J 12, 13. A, No : fidelity and good character are the 
^ things regarded in a tutor or curator. Hence, poverty 
ifl no ground of suspicio. 

Q. By what law was a tutor or curator suspectus sued P 
And what is the object of such suit P 

§ 8. A, By the Jaw of the Twelve Tables : the object 
being to remove them from office as unfaithful officers. 
Hence, when the duties of the suspectus ceased, e. g., by 
his death, the suit also ceased ; for its end was attained. 

Q. Before what magistrate was this suit P 

§ 1. ^. The prsstor at Bome, the governor or legate of 
the proconsuls m the provinces. 

Q. Might any class of tutor become chargeable as sus- 
pectus P 

§ 2. A^ Yes : but if the tutor was patron of, related to, 
or of affinity with the pupillus, his reputation was to be 
considered ; and instead of being removed, a curator was 
associated with him, and even when removed he was spared 
the infamy commonly attached to suspecti found guilty of 
fraudulent malversation. 

Q. Who might make the accusation P 

§ 3. A, Any citizen, for the accusation was public : even 
women, if they were moved by affection for the pupillus : 
for otherwise tiie magistrate would not have allowed them 
to lay aside the reserve which becomes the sex. 

Q. Might impuberes accuse their tutors P 

§ 4. A.. No : for they could not judge of their conduct. 

Q. Might puberes accuse their curators P 

§ 4. ^. Yes : by the advice of their relations. 

Q. Did the suspectus cease to manage during the suitp 

§ 7. ^. Yes. 

Q. What punishment attached to the suspectus when 
dismissed P 

§§ 6, 11. A, Infamy, when he was removed for fraud ; it 
was not so severe in case of mere negligence (1). If the 

trate against the nomination, appeared before the magistrate who 
nominated, reserving an appeal if he rejected his excuses. 

(1) ExisHnutiio was the whole set of qualities making up, by 
law and custom, the honourable citizen : dignitatis ilUesa status 
legibus ac moribus comprobtUus. This was entirely lost when 
a man ceased to be a dtizen ; and was greatly impaired if he 
suffered infiimy by reason of certain facta as judgments against 
him, to which the law and the pretor's edict attached this result. 


58 XXAMIKATIOK 15 [b. 1.' T. 26. 

BUBpectns waa a freedman conricted of haying acted frau- 
dolendy as tutor of his patron's children, he was delivered 
over to the prsBfectos nrbi, for punishment. The same 
thing was done with those who had bribed the clerks of the 
magistrate to get themselves named tutors (1). And they 
were sent berore the prsefectus, because it was his office 
to punish, and the praetor's to remove the suspectus. 

Q. If the tutor did not appear (copiam sui facere) in 
order to have alimony decreed to tiie pupillus, might he 
not be removed as suspectus P But first explain having 
alimony decreed. 

§ 9. A, The prsetor was bound, looking to the pupil's 
means, to fix the character and amount of his expenses : 
decemere alimenta. Fortius purpose, therefore, the tutor 
was bound to appear and declare tiie exact amount of 
the pupillus* property. The tutor not appearing, he might 
be removed as suspectus. The pupillus was put mto posses- 
sion of his tutor's goods, (2) ; and if any of tnem was likely 
to be depreciated, a curator was named to sell them (3). 

Q. TViiat if the tutor appeared and falsely alleged that 
the pupil's means would not allow alimony to be decreed? 

§ 10. A, He would be removed as suspectus, and de- 
livered to the prsefectus urbi for punishment. 

Infamous persons were sulgect to various disabilities, e,g,, they 
could fill no public office. 

(1) Qui tutelam corrupUs mimgteriis prcBtoris redemerii 
(D. 26, 10, 1. 3, § 15). This is not to region the tutela for 
money, but to purchase or obtain it by corruption, in order to 
abuse it. . 

(2) Vide B. 3, 1. 12, as a creditor was of the debtor's who disap' 
peared, and could not be brought before the magistrate. 

(3) Just as in all cases of forced sales of particular things. 
Probably this sale was to supply the pupil's immediate wants. 


BOOK 11. 



Q. Define Bes. 

A, All physical and metaphysical existences, in which 
persons may claim a right. 

Q. How are they divided P 

Pr, A, Into Mes within our pairimonium, and not 
within our pairimonium. The former are things be- 
longing to individuals {singuhrum), and are called bona 
OTpecunia, The latter are of four kinds : 1st. Common 
{omnium) ; 2nd. Public ; 3rd. Belonging to a corporation 
(universitatis) ; 4th. Belonging to nobody (nulliuJ). 

Q. Define things common. 

§ 1. A, Those, whereof the property belongs to nobody, 
but the right of using them to everybody, and whereof a 
portion may become uie property of the first occupant ; 
e.g,, air, running water, tne sea, and its shores (1). Thus 
the water drawn by me from the stream, the place occu- 
pied by my ship inthe sea, or by my tent on the shore, are 
mine so long as I retain possession, but no longer (§ 5.) 

Q. What does the sea-shore include P 

§ 3. A, All the land covered by the highest winter- 

Q. Define things public. 

^%. A, Things are public when the right to use them 
is m all, but the property is in the public, e.y., rivers and 
harbours (2). 

Q. Are the banks of a river public P 

§ 4. A. No : the use of them is in the public, but the 
property is in the riparian proprietor. Thus, any one 

!1) Wild beasts and fish are common. 
2) Thus, prsetorian or consular roads, public ^2ac6«, lakes, ponds, 
are things whereof the property is in the public Things pvhUc 
differ from things oofnmon, not as regards the use to be made of 
them, but merely in this, that no one can acquire property in a 
public thing by occupation ; for occupation confers prop^iy in such 
things only as belong to nobody. 

60 KTAimrATioH nr [b. 2, t. 1. 

may land on tiie bink, dischar]^ his fireight, or tie liia 
came to the trees there, bnt he does not beeome pro- 

Erietor of the plaee thus occupied for the time. Nor has 
e the right to cat roahes or graaa, or to take the firoit of 
the trees; for these belong to the riparian proprietor. 
In this respect river banks differ firom the sea-shore, for 
that is the property of nobody (1). 

Q. Define res unwersitatU, 

§ 6. A. Things whereof the propotjr is in a corpora- 
tion, and the right of nsine them in all its members ; e.^., 
theatres, and the stadia of a city. Bnt no corporation or 
association was recognized as a legal person, nnless it was 
lawftilly authorized fbr the purpose. 

Q. Were things wluch belonged to the public or to a 
corporation, bat which were not to be asea indiyidoally 
by each citizen or each member of a corporation, public, 
or res univerntatis f 

A. No. Thus, the funds, or the claims, or the slaTCS 
belonging to the public or to a corporation, not being at 
. the disposal of each individual, but of the whole Ixxly, 
considered as a legal person, were not public or res uiUver^ 
sitaiis ; such things were, properly, in natrimonio popuU^ 
vel umversitatis : though, to distrngmsn them from pri- 
vate property, they were sometimes said to be public 

Q. Explam res nullius, 

$ 7. A, Things common are sometimes said to be re* 
nuuius, because, until occupied, they belong to nobody ; 
but res nullius (proper) are things which do and can be- 
long to nobody, being things of divine right (dimni juris). 
They consist of, 1. Mes sacreB ; 2. ReligioseB ; 3. Sanda. 

Q. ^Tpi&m res sacra. 

§8. A* Things consecrated to Grod by the pontifices, 
wim the authority of the emperor (2). 

Q. Uould things sacra be alienated? 

(1) Its occupants, however, must not injure the landing or 
navigation. Now, as the magistrate was sole judge of any inoon- 
venienoe which might arise from any oocnpalion a£ the diore, no 
part of it could he appropriated without his authority ; and in this 
respect the sea shore was res pubUca. 

(2) Prior to Christaanity, sacra were things consecrated to the 
gods above, and religiosa things ahandoned to the gods helow. 
The authority of the legislature was always required to make a 
thing sacrum (§ 8). In Uljnan's time the emperor being supreme 
pontlil^ and hairing also legislative power, might himself consecrate 
a thing, or authorize its consecration. 

B^ 2, T. 1.] THE IK8TITUTE8 OF JUiBTIKIAN. • 61 

§ 8. A, No: they were withdrawn from commerce. 
Justinian^ however, allowed vases and other sacred fur- 
nirure to be alienated when captives were to be redeemed, 
or the poor to be fed in time of famine, or church-debts 
to be paid. 

Q. When a sacred edifice had been destroyed or gone 
to ruin, was the ground saleable } 

§ 8. A. No ; it continued sacred. 

Q. What are things religiosa ? 

§ 9. A. Burial places. Any person might, without 
authority make a piece of ground religiosmii by burying 
a body in it, proviaed that he was proprietor, or had the 
consent of all the co-proprietors, or of those having an 
usufruct or servitus therein (1) ; but, otherwise, the piece 
of ground continued ^tfrum (2) ; nor could it become relU 
ffiosum imtil the consent of the parties interested had been 

Q. What are res sancta f 

§ 10. A. Things protected by a penal sanctio from in- 
jury by man : the sanctio being that part of a law which 
miposes penalties on those who break it. The walls and 
gates of Some were sancta (de sancire), and it was death 
to him who injured them (3). 

Q. What IS the most absolute right we can have in 
things nostra patrimonio ? 

A, Dominium, or ownership; this gave the absolute 
power over a thing (plenam in, re potestatem, B. 2, t. 4, 
§ 4), and made it our own. Hence, by putting the 
effect for the cause, dominium and proper^ became syno- 

(1) A person had the right to bury in a common sepulchre, 
in spite of the proprietors (§ 9) ; but not to make a sepulchre in 
common land. It woold seem, therefore, that a locus religiosus 
might belong to an individual ; but this is true only so &r, that 
one or more might have an exclusive right to bury their dead in 
such plaee ; which right was transmissible by descent, or to the 
purchaser of the land where the locfM religiosus was. Still, such 
locus was not in commercio ; nor could it form the principal sub- 
ject-matter of a sale or contract; nor could the landlord, after the 
purposes for which a sepulchre was used, carry away the remains 
of the dead. 

(2) Locus pwus is a place neither sacrus, nor reUgiosus, nor 

(3) Res scmct€B were not strictly juris diviwi (§ 10), but were 
oonsidered so because they were not^in commercio, and were sur- 
rounded by a kind of legal sanctity. 

62 • ISXAKIKATIOK IK [b. 2, T. 1. 

Q. What elements are inyolved in Dominium P 
A. It involyes : 1. The right to occupy a thinfif» and to 
extract from it all its uses or services (ttsus), 2. The right 
to take all its fruits (fructus), 3. The right to dispose of it, 
either by alienating or destroying it (c&uswi) (1). 4. The 
right to claim it back from whosoever detains it {vindicatio). 
But the exercise of these several rights must be within 
the limits of law. Hence the definition, dominium est jus 
utendiffruendi, et abutendi, quatenus juris ratio patitur, 
Q, How WM dominium or property acquired f 
§ 11. A. By the law of nature (/i^ gentium), or by the 
dvil law. 
Q. How by the law of nature P 

A. In one of three ways. By occupatio, accessio, or 
irctditio. If the texts are caremlly examined, it will be 
foimd that accessio is not expressly classed as one of the 
modes of acquiring the dominium ; it is regarded rather 
as incident to property already acquired, than as a new 
acquisition (2U It has been ooserved also that occupatio 

(1) Ahwti does not mean to ill-use {male utC), bat it is opposed 
to uti, and means to make a specific use of a thing ; e,g., to eat an 
ox. Usu8 denotes a continuing use, for it allows the thing to 
exist, as when an ox is used to plough. 

(2) This is Ducaurroy's opinion. Laerange agrees that acoes- 
no does not transfer the property, for he says, that the thing 
added, instead of bdng tranrferred, is annihilated, or incorporated 
with ^e thing to which it is added. Thus, if I build a house on 
my land with another man's materials, the materials cease to have 
any separate existence : they are incorporated with the land ; but, 
the moment they resume their original condition, by bdng sepa- 
rated, they are recoverable by the original owner. Accessio is, as 
it were, one of the fruits of property. Hence he says property is 
acquired by occupatio, is increased by accessio, and transferred 
by traditio. Ortolan considers accesdo as a distinct mode of ac- 
quiring property, and as, in fiict, a mode of occupatio. He says it 
IS an addition made hy a thing itself. Now if the thing added has 
no owner, e, ^., if a wild pigeon comes to my dovecot, the dovecot 
has, without any e£Ebrt on my part, attracted, or occupied, or ap* 
propriated this animal ; or if the addition, as in case of <UUmo, 
has been so gradual, that it is impossible to distingpiish the origin 
of the several particles constituting the addition, such addition is 
suhstantially formed by things without an owner; but lastiy, if 
the addition consists of things belonging to another, as in caise of 
a house built of another man's materials, it will appear from the 
cases, that the property taken has either been so completely incor« 
porated with something else that it cannot be separated, and must 


and traditio (1) are only different names for possession ; 
the former being applied where possession is taken of 
things haying no owner ; the latter, where possession is 
transferred n*om an owner. Hence we conclude, that by 
iike jus ffentium there is only one mode of acquiring the 
ownership, i, e,, possessio, 

Q. What elements are inyolved iupossessio f 

A, It involves : 1. The physical hold of a thmg. 2. The 
will to hold it as proprietor. Thus, a hirer, a borrower, a 
mandataritiSt though they have physical hold of the thing 
(nuda detentio, natwalis, or corporalis possessio), have no 
possession (proper), {possessio, civilts or Jwris possessio), 
oecause they have no intention to hold as proprietora 
{animus possidendi or dominii). So limatics or mfants are 
not possessors, though they are holders, because, from 
wealmess of understanding, they cannot have the inten- 
tion o f po ssessing as proprietors (iniellecttM possidendi (2). 

Q. What things are acquired by occupatio, i.e., by 
simply taking possession P 

§ 12. A. Is one but things having no owner, i. e„ things 
common, as wild beasts, birds, fish. Every animal, in its 
natural, free condition, becomes the property of the first 
taker, whether he take it on his own or on another's land ; 
but, of course, the owner of the land may prohibit every- 
body from entering it, and may claim indemnity for any 
damage occasioned by his doing so. For wild <ininiii1 <a do 
not belong to the owner of the land in which they happen 
to be. 

Q. How long does a man retain his property in such 
animals P 

§§12,13. A. Whilst he continues in possession; when- 

be considered as destroyed, or that the law, firom views of public 
convenience, reftises to allow the separation. 

(1) Ih-aditio is a complex fact, and includes both the giving up 
and the taking possession. But still it is by the possession that the 
person to whom the delivery (traditio) is made acquires the 
property. If a thing have na owner, the mere taking possession 
vests the property in the possessor ; but if a thing has cm owner, 
the taking possession does not vest the property in the new pos- 
sessor, unless the owner gives his consent. To distinguish between 
these two cases, the terms occwpatio and traditio were invented. 

(2) Sometimes the texts contrast in possessions esse with possi- 
dere. The former denotes the bare possession (nuda possessio), and 
there is the same difference between them as between in libertate 
esse, in servitute esse, and liber or servus esse (vide B. 1, t. 4). 

64 BZAHIKATIOK IK [b. 2, T. 1. 

ever they escape they reanme their ori^final condition, and, 
if re-taken, belong to the new taker. They are held to be 
out of our po8Be88ion, when out of flight, or, even though 
within sight, when pursuit has become difficult. 

Q^ When does tne property in an animal wounded in 
the chace vest P 

§ 13. A, *Not until you have taken it ; for until then it 
is uncertain whether you ever will take it. Justinian 
rejected the opinion that a man continued proprietor so 
long as he pursued a wounded animaL 

Q. Are bees wild animals P 

A. § 14. Yes : both they and their honeycombs, therefore, 
belong, not to the owner of the tree where they have set- 
tled, but to him who first hiyes them. 

Q. How long did a man hold the property in bees thus 
hived, and, generslly, in animals, which, though naturally 
wild, as pigeons, peacocks, and stags, have been tamed and 
acquired habits ot going and returning P 

§ 15. A. Until they lost the animus revertendi ; and they 
were presumed to lose the intention when they lost the 

Q. Was it not by occupatio that property in prisoners 
of war was acquired P 

§ 17. A, Yes ; and a man kept his property in them just 
so long as he kept them in his possession. 

Q. May not tne effect produced by losing possession of 
things acquired 5»yoccu/>a^io be regarded as a consequence 
of the right oi postUmimum ? 

A, Yes : for the man who takes fish or game, or occu- 
pies the shore, is like an enemy making conquests over the 
original state of the world — conquests which disappear 
when the natural order of things is restored. 

Q. Did the above rules of law apply to fowls and other 
domestic animals P 

§ 16. A, No : being by nature subject to man, the right 
o{ postliminivm is not applicable to them ; hence, property 
in them is not lost with the possession, and he wno keeps 
a fowl which has escaped out of my court-yard is guilty of 

Q. Are inanimate things acquired by him who takes 
possession thereof P 

§ 18. A, Yes, if they have no owner. Thus, precious 
stones and such like, found on the seashore, belong to the 
first finder. 

Q. Define ctcceBsio, 

A, It is the enlargement of a thing by the union of some 


acoessarj. The proprietor of a tJiing acquires by aooessio 
all its miits, and whatever, without any act of his, becomes 
attached to and incorporated with it. Hence the role 
accestio cedat principati (1). 

Q. G-ive instances of accessio. 

§ 19. A. Thus, the production of a man's land, and the 
frmt of his trees, belong to him from the first moment of 
their existence. So, the young of an animal, and the child 
of a slave, belong to him who owns the animal or slave at 
the time of the birth ; for, until then, the fcetus is part of 
the mother. By ctccestio, also, a riparian proprietor ac- 
quires all accumulations formed by alluvial deposit. 

Q. Define alluvio, 

§ 20. A. The addition imperceptibly made to the bank : 
the quantity added at every instant being inappreciable. 

Q. Suppose a distinct mass of grouna carried away by 
flood, would that be acquired by the proprietor of the land 
on which it happened to settle ^ 

§ 21. ^. No : in alluvio the origin of the particles which 
have been imperceptibly collected must be undiscoverable ; 
but here the land, never having been disintegrated, is the 
same, and remains in the same proprietor. If the ground 
so removed in bulk carried along with it trees, the roots 
of which afterwards extended into the neighbouring land, 
such trees (2) became the property of the owner of that 
land ; for it is a principle that a tree belongs to the soil by 
which its roots are nourished (§ 31). 

Q. When an island rises in the sea, who is proprietor P 

§ 22. A. The first occupier : until occupation, no one, it 
is a res communis. 

Q. Suppose the island rises in a river P 

§ 22. A. It is an addition to the land of the nearest ri- 
parian proprietors : so that each of them is entitled to a 
share, proportional to the extent and proximity of his land 
along tne oank. 

Q. But suppose the river divided at a point, and united 
lower down, so as to transform a man's land into an island 
— what then P 

§ 22. A, The property in land so transformed is unal- 
tered. The sort of island, which vests in riparian proprie- 
tors, is one formed by the drying up of the channel, or the 
accumulation of sand. 

(1) Accessio denotes not the fact of addition, but the accessory, 
or thing united to the principal — ^the thing added. 

(2) Some read acquisiiay wliich may be referred to the land. 

66 EZAKINATIOK IK [b. 2, T. 1. 

Q. When a river clianges its cottrse, what of the two 
channels — the old, and the new P 

§ 23. A. The natore of a river is such, that it alters the 
character of the ground, which is either covered by it or 
left dry : the former it makes res puhlica; the latter res 
privata. The new bed, therefore, becomes pnblic; the 
old bed vests in the riparian proj)rietors, in precisely the 
same way as in the case of the island gradually formed 
in the river. 

Q. Suppose the river to resume, after a time, its original 
channel, what of the new one P 

§ 23. A, It vests in the riparian proprietors. 

Q. Did land covered by a flood cease to belong to the 
same owner P 

§ 24. ^. No : a flood does not alter the character or the 
property of land which is covered for a season. 

Q. Did the additions by allvmo, — the island in the river, 
the abandoned channel, — benefit all riparian owners with- 
out exception P 

A, No : They benefited none whose lands were limitati, 
f . tf ., set out by metes and bounds (1). But they did benefit 
the riparian proprietors of those lands, called agri arcifina-' 
les or occti^atorii, which were not confined within definite 
limits, but had the river as their natural boundary. For 
we may say that the river, by retiring, alters so far the 
boundary of the riparian properties. 

Q. Explain specificatio and its efiects on property. 

§ 25. A. It is the act of transforming an origmal or raw 
material into something quite new {novam speciem), e. g., a 
block of marble into a statue, wool into manufactured stufi". 
When the specificator (2) worked on his own material, of 
course he was proprietor of the new article, e. g,, of the 
statue cut from his own marble, and the vase cast from his 
own silver. 

Q. But if he used the material of another, did the new 

(1) Agri limitati, or tuaignati, were lands detached from the 
pablic domain, and converted into private property by a sale or 
grant, accompanied by peculiar rites and a formal setting out by 
metes and bounds. The owners of such land could claim nothing 
beyond the prescribed limits. Any addition made around or be« 
yond them was therefore public, and would vest in the first 

(2) /. e., he who makes, or causes to be made ; for the workman 
was not so much regarded as the person for whom he worked : 
cvjut nomine factum sit. 


article belong to the specificator, or to the proprietor of the 
raw material P 

§ 25, A, On this subject there was a great difference of 
opinion (1) . The Proculeians thought that the specification 
by changing the form of the raw material, changed its na- 
ture and replaced it by something quite new. They there- 
fore applied to the owner of the raw material the maxim, 
that you cannot claim back what has ceased to ejdst(extincta 
res vindicari nonposaunt (§ 26), and held that the new ar- 
ticle belonged to the maker of it ; viz. the specificator (2). 
But the Sabinians insisted that the material retained its ori- 
ginal nature, and continued to subsist, notwithstanding the 
change of form : they therefore held that the material 
after being manufactured, the marble block after being 
wrought, we piece of metal after being cast, continued to 
belong to the owner of the raw materiaL In the end, how- 
ever, a middle yiew was taken, which has been adopted by 
Justinian. According to it, if the material may resume its 
original state, it is considered not to have lost its nature, 
and still to exist, notwithstanding its change of form; hence, 
in accordance with the Sabinian view, the property in the 
new article belongs to the proprietor of the raw material (3). 
If, on the other hand, the thmg may not resume its origi- 
nal condition (4), the product of the specificatio must be 
considered a new creation, which has never had an owner ; 
and hence, in accordance with the Proculeian view, the 
property in the new article must be in the specificator. 

Q. In the last case, is the specificatio to be considered 
as a peculiar mode of acquiring property P 

A, No : it is only a sort of occupatio $ the specificator 

(1) All admitted the prmdple that the property m a thing, and 
the right to claim it back, continued so long as the thing existed. 
But it was in applying this principle, in order to determine 
whether the origin^ thing continued to exist notwithstanding the 
specificatio, that opinions differed. 

(2 ) Saving always an indemnity to the owner of the materiaL 

(3) Thus, the vase made out of my silver or my brass belongs to 
me, because it may be made to resmne the shape of a bar of ^ver 
or brass. 

(4) If, for instance, wine' has been made out of grapes, oil out of 
olives : Justinian tuMBfrumentum from spica. This last would not 
be a good instance, if it referred to the mere act of threshing the 
com ; for all the grains exist in the ears of com, and nothing new 
is formed by taking them out of the husks. But it would be dif- 
ferent if the oonveruon of the grain into flour, by means of grind- 
ing, is meant. 


becomes proprietor, because by his industry he has cre- 
ated and occupied something new {^ia quod factum est 
antea nulliusjfuerat). 

Q. What remedy had the proprietor of the material 
which was taken P 

§ 26. A. Not fdndicatio, the object of which is to esta- 
blish a right of property ; for you cannot proTe yourself 
proprietor of that which no longer exists (extincta res 
vindicari nonpossent) ; but the proprietor of the material 
might sue the person who took it, 1st, by cu:tio furti (ac- 
tion of theft), which is purely penal, and by which the 
thief is liable to a penalty of four times the value of the 
thing stolen, if he was taken in the act, and twice the 
value if he was not so taken (B. 4, 1. 1) ; 2nd, by condietio 
fiirtiva, or the actio ad exhibendum, both actiones eiviles, 
for the purpose of compelling the thief to restore the stolen 
article or to pay its value (1). 

Q. Was the thief the only person whom the owner of 
the raw material might sue r 

§ 26. A, No : he might have condietio against various 
other possessors (2), e, g,, the h»redes of the thief ; pos- 
sessors mal& fide, or even bona fide, if they had used the 
material, and so made away with the property of the 
owner thereof po«^ moram, t. e,, after being summoned to 
give it up. But if the person sued was not a thief, some 
condietio (not furtiva) must be used (3). 

(1) The term coTuUciio was applicable to all personal actions in 
which the demandant insisted that the other party {adversariut) was 
bound to give, or to do something (si pctret dare,facere oportere). 
There were several kinds of condictCones, of which the condietio 
fitrtioa was one. The actio ad sxkibsndwm was brought to compel 
the production of an article which had been put away or destroyed 
maU fide. If, on the day fixed by the judex, it was not produced, 
the defendant was condemned to indemnify the demandant against 
all damage caused by its non-produotion. Now, in a case of speci- 
ficatio, as a thief could not possibly produce that which had been so 
transformed as to be incapable of being brought back to its original 
condition, he was condemned to pay the full damages. Lastly, 
since the actio ad exhibendum and the condietio fitrtiva had the 
same o^ect^ a pUiintiff had to elect between them. 
> (2) We adopt the reading in the text (§ 26), quibusdam aliia 
posseasoribus, and not quibusque eUiia, which would mean against 
all other possessors. 

(3) The condietio sine cetusa, or the general condietio, called 
tritidaria, by which anything due, except cash, might be cltdmed. 


Q. When tlie specificator, besides his labonr, supplied 
part of the material, did the property in the new article 
always belong to him P 

§ 26. A. Justinian seems to answer in the affirmative 
(non dubitand/wm) ; but as this is at yariance with some 
passaefes in the Digest, and as the cases given by Justinian 
are aU cases in which the material is not reducible to its 
orio^al shape, it has been thought that, except in such 
cases, the new article would not. become the absolute pro- 
perty of the specificator ; so that where the raw material 
was reducible to its original condition, e.g.t a jar made of 
copper, partly the property of the specificator, and partly 
of another,, tne new article would be the joint property of 

Q. If a man embroider a dress with the purple of 
another, to whom does the whole thing belong P 

§ 26. A, To the owner of the dress, even though the 
purple be much more valuable than the dress itseu* ; fbr 
anything, however valuable, used to ornament or to finish 
a thing^s deemed an accessary. 

Q. What remedy had the owner of the purple P 

§26. A, If the purple had been stolen, the owner thereof 
had the actio furti ana the condictio furtiva againstthe thief, 
even though he was not the person who embroidered the 
dress with it. The owner had also condictio against other 
possessors, e, a., against one who, though not nimself the 
thief, had used the purple knowing it to be the property 
of another ; or the owner, instead of condictio, might have 
an actio ad exhibendum. 

Q. Did not the actio ad exhibendum sometimes enable 
a person to recover his property P 

A» Yes. The purple, on becoming an aocessio to the 
dress, ceased to be a distinct substance (1), and therefore 
it could not be recovered bv its former owner. But the 
purple became recoverable by him the moment it ceased 
to be incorporated with the dress, and became a distinct 
substance. Now the actio ad exhibendum was intended 
to bring about this result, by compelling the defendant to 
separate the purple from the dress, in order to its being 
produced, or exhibited, or put in such a condition as to be 
the subject-matter of a vinaicatio (2). 

(1) It was not then purple, but a dress embroidered with purple. 

(2) What is said of the purple applies to all other ornaments or 
finiahingB, as a diamond on the head of a sword, or a wheel pat on 

70 EXAMINATION IN [b. 2, T. 1. 

Q. When the materials belonging to two proprietors 
were mixed together (corifuseB) by their consent, to whom 
did the mixed product belong P 

§ 27. A, To the two jointly. Each of them was entitled 
to an action for partition, called commtmi divid/u/ndo 
(B. 4, t. 17). 

Q. Q;uidt if the mixing was by accident, by the consent 
of one proprietor only P 

§ 27. A. If the materials by being mixed lost their iden- 
tity, e,g.,\i wine and honey were mixed together, and so 
converted into muUum, the new product was loint pro- 
perty, just as if the mixture had been by mutual consent. 
DMt if the materials, although mixed (1), retained their 
identity and separate character, e. g,, if the com or cattle 
of one man were mixed with those of another, each pro- 
prietor retained the property in his own chattel ; so that 
each grain, each head of cattle, still belonged to the same 

Q. Suppose one of two proprietors kept possession of 
the whole heap of com or the whole herd, what action 
would the other have P 

§ 28. A. An actio in rem (for he continued proprietor), 
not indeed to recover back the identical grains, which it 
might be impossible to separate, but to obtain out of the 
mixed heap the quantity of wheat which properly belonged 
to him. And in such case it was the duty and within the 
jurisdiction of the judex to consider the quality of the 
grain, and to compel the owner of the inferior to allow 
more to the owner of the superior quality (2). 

another's carriage. Paul says expressly, qtuBcunque aUisjuncta woe 
ad^ecta accessionia loco cedunt, ea qua/mdiu coh<Brent dominus vin- 
dicare non potest : sed ad exhibendum agere potest ut separentwr 
et tunc vindicentur. Thus, in case of the junction of two tMngs, the 
one not being produced by the other, the accessio does not give 
the proprietor of the principal thing property in the accessary, it 
merely creates a temporary obstacle to its being recovered (vindi- 

(1) Strictly speaking, confusio is the mixing together of things 
liquid, or of things reduced to a liquid state, and commixtio the 
putting together of dry things, the particles of which do not 

(2) The actio in rem of vindicatio is an arhitrary actio, t. e., 
one which allows the judge to determine a mode of satisfaction to 
which the defendant mui^ either agree or submit to heavier da- 
mages (condemnatio). 


Q. Did a person who built on his own land with ano- 
ther man's materials become proprietor of them P 

§ 29. ^. The proprietor of the land acquired the house, 
for it was incident to the land (solo cedit) ; but it was the 
house as a house ; for the materials, as materials, continued 
to be the property of their former owner, since the bring- 
ing them together did not annihilate them. It should seem, 
therefore, that the owner of the materials ought to have an 
actio ad exhihendum, like the owner of the purple ; but 
the Twelve Tables, from views of public convenience, in- 
terfered to prevent the building being destroyed, so that 
the owner of the materials had neither an actio ad exhu 
hendum nor in rem, so long as the building stood ; he had, 
however, an actio de tignojuncto to recover back double the 
value of the materials ; but if the building was destroyed, 
the owner of the materials (provided that he had not re- 
ceived the double value, for that would have transferred 
his property in them), had an actio ad exhihendum, or an 
actio in rem (1). 

Q. Conversely, when a man built on another's land with 
his own materials, who was owner of the building P 

§ 30. A. The landowner : it was an accessio to his land. 

Q. What remedy had the owner of the materials P 

§ 30. ^. If it was a case of mala fides, ». e., if a man 
built upon land which he knew not to be his, he must be 
taken to have consented to the loss of his materials, and 
therefore, he had nothing to claim (2). If it was a case of 
bona fides, the builder, so long as he continued in possession, 
might set up in bar of any action brought by the landlord 
the exceptio dolimali (the plea of fraud), so that the builder 
escaped condemnatio, if the landlord refused to pay the 
value of the materials and workmanship (3). But after 

(1) If a builder acted maU fide, he was liable both to an actio 
ftirti, and either to a condictio fiirtiva or an actio ad exhibendum ; 
which last was brought, not because he was in possession of the 
materials, but because he had acted with such mala fides as no 
longer to have them in possession ; and the builder, as he could 
not produce the materials, was condemned to indemnify their 
former owner. 

(2^ In strictness at least; but practically it was not so. 

(3) This exception did not avaU, unless the builder was in pos- 
session, and, therefore, defendant. If the builder was not in pos- 
session, he had probably no action, unless perhaps the negotiorum 
gestorwn (B. 4, t. 13). 

72 EZAMIKATIOK IK [b. 2, T. 1. 

the btdldinf; was destroyed, the bon& fide bnilder might 
biiDg an action ad exhioendum and in rem for the former. 

Q. Who owned trees phmted or seeds sown in another 
man's land P(l). 

§§ 31, 32. A, The landlord, provided they have taken 
root. Till then, the plant continued to belong to its original 
owner ; but the moment it derived nourishment firom the 
new soil, it became a new plant, which never reverted to 
its original owner, even though it was afterwards torn up. 

Q. In deciding to which of two neighbouring proprie- 
tors a tree belonged, was regard had to the direction of 
the tnmkP 

A, No : the tree belonged to the owner of the land into 
which it had struck its roots ; if they were in the lands of 
both, it belonged to both. 

Q. K a man wrote upon another's paper, or painted 
on another's canvass, who was owner of the manuscript or 
the picture P 

§ 33. A. The manuscript belonged to the owner of the 
paper, because the writmg did not alter the material 
which contained it (2). For the same reason a picture 
should belong to the owner of the canvass ; but Justinian 
settled this controverted point by holding that the picture 
belonged to the painter, because it was absurd to consider 
the work of an Apelles or a Parrhasius as a mere incident 
to a wretched piece of canvass. 

Q. Was the artist entitled to bring an action in rem 
for the picture against the canvass-owner, who was in pos- 
session of it P 

§ 34. ^. Yes ; but then the latter had the exceptio doli 
for the purposes of indemnity ; nay, he had an actio utilis 
in rem against the artist, when he was in possession of the 
picture, and would not pay the value of the canvass (3). 

(1) If the owner of the plant was in possession, he might be in- 
demnified by the excepiio doU; or if he was not, by the actio ntilis 
in rem, or by a personal actio in factum. 

(2) The litemry property is not the point here, but the property 
in the writing. 

(3) Actiones utiles (as contradistinguished from actiones dArectm) 
were not raised directly by the law, but, being founded on public 
oonvenienoe and equitable considerations, were framed in imitation 
of actions so raised, by means, for instance, of investing persons 
with qualities which they cUd not possess, l^us the canvass-owner 
has an action in rem, t. e., claiming the property in the picture, 
as if he were in fiu^t its proprietor; hence {coneequens est) it was 
only an actio utilis. 

^ I 


Q. Did the property in fruits gathered vest in the bona 
fide possessor of land, as if he were the landlord P 

§ 35. ^. Such possessor had the same rights as the land- 
lord in all fruits severed from the soil; over these he 
might exercise the full right of property. But he had not 
the absolute property in them as against the landlord, to 
whom he was boimd to surrender whatever fruits were 
unconsumed; so that, in fact, he acquired none except 
those consumed before his mistaJce was discovered. As 
to a mala fide possessor, the gathering of the fruit vested 
in him no kind of property, so that he had to account both 
for those consumed and those not gathered (B. 4, t. 17). 

Q. What is a bona fide possessor P 

§ 35. A. One who has received from another, erroneously 
believed by him to be proprietor, a piece of land by sale, 
^ift, or other title importing, as between the parties, an 
mtention to transfer the property (just a causd). 

Q, Besides the bona fide possessor, was there any other 
in whom the property in fruits gathered on another's land 
vested P 

§ 36. A. Yes : the usufructuary and farmer (cohnus) , 
though neither proprietors nor possessors (for they did 
not claim to be so, p. 63), acquired the property in fruits ga- 
thered by themselves or in their name ; but fruits fallen, 
or severed by a thief, unless taken and collected by the usu- 
fructuary or farmer, did not vest in them. Between the 
right of a usufructuary and that of a farmer there was this 
distinction (eademfere) : the right of usufruct died with 
the usufructuary ; hence, fruits which were ripe, but un- 
gathered at his death, did not vest in his hceredes by their 
e^athering them ; but the right of the farmer descended to 
nis karedes, so that they might gather and acquire the 
fruits in his stead. 

Q. Does what you say of fruits apply to the productions 
and the young of animals P 

§ 37. A, Yes ; the property in such vested in the pos- 
sessor or usufructuary, according to the same distinctions. 
But the child of a slave was difierent : it was not consi- 
dered a fruit, for fruits are only those products of a Thing 
derived from using it for the particular purpose for which 
it is intended; now, as slaves are intended more for 
labourers than breeders of children, a slave's chUd is not 
acquired by the usufructuary, but by its mother's master. 

Q. Define traditio (delivery). 

A, It is the transfer of possession from one person to 

74 BXAMINATION IN [b. 2, T. 1. 

Q. That deliveiy may transfer the property, what con- 
ditions are necessary P 

§ 40. ^. He who delivers must have, 1st, the property ; 
and, 2nd, the capacity and intention to transfer it. He who 
receiyes must intend to acquire the property. 

Q. If the one party intend to transfer, and the other to 
acquire the property^ are the groirnds of their intention 
important P 

A, No. Thus, if I choose to transfer property to you, 
because I consider myself bound by a will, whilst you con- 
sider yourself entitled by a stipulcUio, you do, neverthe- 
less, become proprietor. 

Q. Does property in the thing sold and delivered vest in 
the purchaser inunediately P 

§ 41, ^. No : the vendor is considered not to intend to 
transfer the property, until he receives the price; the 
price, therefore, must be paid before the property is trans- 
ferred, unless the vendor is content with something else in 
satisfaction, e, g., a pledge or security (expromissor), or 
unless he relies on the purchaser's good {aith (sequificlem), 
i. €,, intends to transfer the property without regard to the 
price, trusting to the pui'chaser for the payment thereof; 
tor here the intention is everything, and the property is 
vested at the moment of the delivery, whenever the vendor 
so intended. 

Q. Does it signify whether delivery is made by the 
proprietor himself, or by another with his consent P 

§§ 42, 43. ^. No. When a proprietor charges another 
with the Ml right (libera) of managing his business, and 
that other sells or delivers any of the things within the 
limits of his charge, the property is transferred. 

Q. Was delivery a condition precedent to the transfer 
of property P 

§ 44. A, No : possession plus the proprietor's consent 
work the transfer; delivery is only a means of giving 
possession. If the proposed transferee of property is 
already in possession, dehvery is useless. Thus, if one who 
has let out or deposited a thing, sells it to the hirer or de- 
positee, these parties who thereby begin to possess (animo 
domvni) as proprietors, acquire the property by the proprie- 
tor's bare wiU, without delivery (1). 

(1) There is no need, therefore, of any fictitious delivery hrevi 
mauu, in which it is sappoied that my tenant re-delivers the thing 
to me, and that I deliver it back to him. The delivery brevi mcmu 


Q. When the property of a Thing wag to be transferred, 
was it necessary that it should be placed in the hands of 
the intended transferee P 

§ 45. ^. No ; for we are said to have possession when- 
ever we have the absolute control. Thus, in order to 
transfer the possession and property of the goods in a 
warehouse, we have only to transfer the keys thereof, for 
whoever has the keys of a place has all the plac^ con- 
tains (1). 

Q. Coidd property be transferred to a person unascer- 
tained {incertus) P 

§ 46. A. Yes, when such was the proprietor's intention; 
e. ^., when praetors or consuls threw money to the people, 
their intention was to transfer the property to whoever 
picked it up, so that the property in the money vested in 
the first occtipant thereof. 

Q. Did not the property in a Thing abandoned likewise 
vest in the first occupant r 

§ 47. A. Yes : Justinian held, that abandonment was 
like delivery to an incertus ; but it is more accurate to 
say, that the property in a Thing abandoned vested in the 
first occupant, because it had no owner ; for when a man 
throws a thing away he takes no heed what becomes of it, 
or who becomes owner thereof. 

Q. When is a Thing abandoned P 

§§ 47, 48. A, When the owner throws it away with the 
intention that it shall no longer be his. Without such 
intention, possession might be lost and the property re- 
tained. Tnus, if a man in a storm threw his goods into 

of the R. jurists was very different, for it was this : — Suppose I wish 
to transfer to Titius what you wish to transfer to me; I direct 
yon to make the transfer to Titius direct. Now here, though 
there are two deliveries in substance, there is also one in fact. 
The texts also speak of delivery Tonga maim^ as when a debtor, 
instead of paying his debt into my hands, put it down, by my di- 
rection, in my sight (in conspectu meo) : here possession was ac- 
quired longa manu, for the ancients referred all the senses to 
touch. But this is not a fictitious deliver}', for a thing may be 
said to be delivered to a man whenever he has it completely in 
his control. 

(1) They were, in fact, only means to get at the contents of the 
warehouse ; hence the delivery of them does not transfer the pro- 
perty, unless made near the door of the warehouse; and this 
shows that they are not the symhol of the com, as has been said, 
for then the pkce of delivery would be unimportant. 

E 2 

76 BXAMIHATIOir IK [b. 2, T. 1. 

the sea to li^liten his ship, he retained the properiy, because 
he did not intend to part with it ; and whoever finds snch 
goods floating about, or cast on shore, and takes them in 
order to derive a benefit therefrom, is gnilty of thefl. 
So it is with things lost, e. g,, dropped from a vehicle 
without the owner's knowledge. 

Q. Is it so also with things concealed in the ground, or 
in a building? 

§ 39. A. Yes : but when all remembrance of the deposit 
if gone, and no one can prove himself owner, the thmg 
concealed becomes treasure^ and, as such, vests in the first 
occupant, according to the following distinctions : — ^If a 
man finds treasure in his own land, or by accident in a 
Iwnis aacer or religiosuSf the whole belongs to the finder ; 
if a man finds treasure by accident in another's land, one 
half belongs to the finder, the other half to the land- 
owner ; lastly, if a man digs in another's land in order to 
find treasure, the whole belongs to the landowner. 

Q. Having discussed how property is acquired by the 
jus gentium, explain how it is acquired by the jtis civile, 

Pr. A. 1, by mandpatio ; 2, oy cetsio in jure ; 3, by 
traditio ; 4, by usucapio ; 5, by adjudicatio ; 6, lege, 
Q. Explain mancipatio. 

A, A solemn delivery, accompanied by solemn words 
and gestures, before a scalesman (lihripemt) and five wit- 
nesses, being Eoman citizens. The price was represented 
bv a piece of brass (ses). The purchaser laid hold of the 
tfcng to be sold, or some symbol thereof, saying, Hunc 
ego hominem — in case of a slave, JEx jure quiritium meum 
esse aio isque mihi ernptus est hoc cere ceneaque libra ; he 
then touched the scales with the money, and handed it to 
the seller as the price. This mode was confined to things 

Q. Explain cessio in jure. 

A. It was a feigned action in rem ; that is, the pur- 
chaser vindicahatf or claimed the property of th'e thing in 
question in proper form {hunc ego hominem ex jure quiri- 
tium meum esse aio) ; the seller acknowledged, or did not 
dispute his claim, and the magistrate (at Eome, the 
praetor, in the provinces the prases or governor) adjudged 
the thing (addicebat) to the claimant (1). 

(1) Mancipatio was more common, because it did not, like 
cessio i. j., require the magistrate's presence ; but as the former 
did not apply to res incorporates (except rural servitudes), the 
latter wau sometimes indispensable (t. 3, 4, post). 


Q. Explain usucapio. 

A, It 18 a mode of acquiring property by holding pos- 
session for one year, in case of moyeaoles, and for two 
years in case of immoveables (B. 2, t. 6). 

Q. Explain adjudicatio. 

A, Property was thus acquired when the judex in a suit 
brought for partition of an hereditas (familuB ercisctmcUs), 
or ot a thing held jointly (communi dividundo)^ or to fij: 
the boundaries of contiguous landowners (finium regundo- 
rum), settled the respective shares or boundaries ; and 
each party acquired the legal estate or civil ownership in 
that which was adjudged to him by the judex (B. 4, 1. 17). 

Q. When was a man said to acquire the property lege f 

A. In cases where the property was acquired by special 
provision of law. Thus, m case of legacies, the Twelve Ta- 
bles said : Uti legassU super pecunia tuteUwe sua rei, ita 
jus esto (1). 

Q. Did traditio (delivery), regarded as a civil law mode 
of acquiring property, apply to. all things (2) P 

A. No, not even to all corporeal things, at least prior to 
Justinian ; for on this point there was an important dis- 
tinction between res mancipi and res nee mancipi. 

Q., and the place it occupied in the history 
of law. 

A. The distinction is veiy ancient, and a passage in 
Gains (B. 2, § 47) seems to prove that it existed even 
prior to the Twelve Tables, when the Boman law, like that of 
other barbarous nations, was overlaid with forms and sym- 
bols. — During the earliest period of Roman history, we find 
only one kindof property {dominium ex jure quiritium) : a 
man must either have the civil law property or none at all. 
In general, this property could neither be transferred nor 
acquired by mere delivery : that could be done only by 
mancipaiio or cessio injure. There were, however, certain 
things of such trifling value, or in such general use, that 
the observance of these formal modes of transfer would 
have been impossible. Hence, no doubt, the distinction 
between things mancipi, which required mancipatio, and 
the other formal modes of transfer ; and things nee man- 
cipi, which were transferable by mere delivery. 

(1) So, by the lex papia poppaa bequests to cselibes or orbi 
lapsed {cadwid), and vested in those heeredes or l^atees who 
had children. 

(2) Generally, none but corporeal things could be delivered or 
ossessed. But a quasi-possessio was invented for things incor- 

79 icxiHTgAiToa rv jb. 2, t. 1. 

Aeeordin^ to Ulpiaiu res wuMmrijn indnded : 1- AH 1ie> 
reditaments in Itafy, eidier mnl, as land, or mfasii, as a 
home ; 2. Serriftiides attadied to ronl hcnditamaitB, as 
rights of wajy aatuedmctms, &e. ; 3. Slares, and dumcslic 
MimiaU used as beacts of drm^it or hforden, e.^^ aaEen, 
motes, horses, and aases. Ereij other thin^ (1) vas res 
nee wumdjn, partieolarlT hereditaments in the profinees, 
elej^iants, eamels* and other wild beasts ; lastfy* all serri- 
indfBBf e&eept rural ones in Italr. 

Atienstion, therefore, of a res sMsctpt by deUrerf, widi- 
oot the le^ f<Hins, wasnnU ; the alienor oontinned domi- 
niu ex Jure quiritiumt, and might reeorer the property by 
acikm in rem. The only remedy for this was nsaciqpio, 
whidi Tested the quintarian property in an alienee, who 
eontinned in possession for one year in case of moreables, 
or two yean m ease of immoTeabks. 

Sneh was the law of the Twelve Tables, from which it 
appears: L. That strangers (pereffrini) had no property 
aecording to the eivil law, since qmiritarian property be- 
longed to citizens almie, or to pere^ni who had obtained 
tiie eowimereium, for they alone could ntter the form (ex 
jure quirUium meum eue otio). 2. That eren citizens were 
eompeDed to use these solemnities. 

Bat this system of law, though it might satisfy the wants 
of earfy times, was foond fior too narrow and technical after 

(1) It u to be observed (Ortolan, t. 2, p. 16): 1. That the 
priimtive Bomans fixed the nmnber of res mandpi, and that this 
nnmher was never incteaBed ; for, after the oonqnest of Italy, the 
jus gentinm began to prevafl, and so traditio was sahstitnted fiar 
mandpatio as the general mode of transfer. 2. The res nuindpi 
^ not include thrngs which might be cons um ed by being used ; 
for things of that 8(»t were commonly in daily use, so that formal 
modes €^ transfer would have been practically imposnble. 3. The 
res mand^ were very distinguishable from each other; fer it was 
necessary that the witnesses at the mandpatio should easily re- 
cognize the thing mtmc^paied : lastly, the res mandjn were always 
valuable and usdFiil; for otherwise fermal modes of transfer woidd 
have been unnecessary. Hence it is dear why re* maneipi did not 
include certain thizigs : 1. Immoveables beyond Italy, though of 
great value ; for Ist, they arose after the number of res mandpi 
was fixed, and 2ndly, provindal lands were regarded as the property 
of the emperor, or the public, the holder thereof having a mere 
right of enjoyment. 2. Camels, &c, although beasts. of burden. 
3. Qold and silver and predous stones, though of great value; 
dogs, beasts, and wild aTiimals domesticated, though very distin- 
guishable, and not consumed by being used; for all these were 
mtrodnced afl«r the number of res mandpi was fixed. 


Some, by conquest and civilization, kad increased her 
wealth, had multiplied her relations with foreigners, and 
had so enlarged her commerce as to necessitate a more 
rapid transfer of property. Then it was the praetors under- 
took to enlarge the circle of Eoman law and to mitigate 
its harsher features — a task, moreover, which they accom- 

?li8hed without altering a letter of the text of the Twelve 
tables. — Their plan was this : Suppose a thing mancipi 
transferred by bare delivery ; if the seller, who of course 
continued quiritarian owner, brought an action in rem 
to recover it, the prsetors granted an exoeptio (1), which 
had the effect of repelling the claim ; for though it was 
valid according to the civil law, still it was contrary to 

food faith, Nor did they stop here. Though the exceptio 
arred the action of a proprietor ex jv/re quiritium, it did 
not protect a purchaser against third parties, if he hap- 
pened to lose possession of a res maticipi before having 
acquired title by nsucapio. "Now the prsetor Publicius, who 
lived about Cicero's time, invented the actio publiciana, 
which gave a purchaser, out of possession, the same right 
to an action in rem as he would have had if the time 
requisite to acquire title luucapio had elapsed before his 
dispossession. Moreover, the preetors invented various 
iiUerdieta (B. 4, 1. 15) to protect a possession fairly obtained 
{Tiee clam, nee vi, necprecario). 

Hence the position of one who had received a thing 
tnancipi, by bare delivery, was no longer precarious, for he 
had a real right of property without the name. This pro- 
perty is denoted by the phrase in bonis habere (2). Theo- 
philus and others call it natural or bonitarian dominium. 

Thus, property was of two kinds, quiritarian dominium 
(ex jure quiritium) and natural dominium {in bonis) ; the 
former being part of the civil law, capable of being held 
only by Roman citizens, and of being acquired only by the 

(1) Exceptio rei vendita et tradita, or the general exceptio 
doli. In this case the pwetor, by the terms of the formula con- 
taining the question for the decision of the judex, directed him not 
to give judgment for the pliuntiff (the quiritarian owner) if he 
had made a sale or delivery, or if there had been mala fides on 
the plaintiff's part. Now, as in the case supposed there had 
been both a delivery and mala fides, the defendant continued in 

(2) In bonis esse, to be amongst one's gooda, in fact : suum esse, 
to be amongst them, by riff hi. 

80 EXAMIKATIOir IS [B. 2, T. 1. 

modes admitted bj the ciyil law ; the latter being part of 
the jus gentiimi, capable of being held hypereffrini, and 
of being acquired hy bare deliTerj (1). nhen the quiri» 
tartan property in a thing belonged to one, and the boni- 
tartan property therein to another, the former was said to 
hare the nudum Jus quiriiium : for his rights were merely 

Q. Was not this natural (pneiorian) property found 
especially usefdl in the provinces ? 

A. Yes : not only were the inhabitants of the proyinces 
(peregrini), who had not yet obtained the commercium, in- 
capable of haying the quiritarian property (2) ; but the 
peculiar character of the proyincial luids prevented the 
tenants thereof, even though Itonums, firom having such 
property. For the provincial lands, unless they banged 
to a ci^ enjoying the priyilege called jus italicum, were 
deemea the property of the Eoman people {stipendarU), 
or the emperor {iributarii). In theory, therefore, the 
tenants could only have a right of enjoyment or possession. 
But as this possession was protected, by the praetors, it 
became a natural property, capable of being transmitted 
by delivery, and by other modes allowed by the jus 
gentium (3). 

Q. Did this state of things continue till Justinian's 
time P and what was his view of the subject P 

A, In theory, the distinction between the quiritarian 

(1) And by other modes allowed by the praetors, as honorum 
possessio, emptio honorum, Slc 

(2) This incapacity ceased when Caracalla made all the ingenui 

(3) The tenant, as against the state or the emperor, had only 
a bore possession — a bare occupation of no legal validity ; but, as 
against third parties, this possession amounted to a rect^nised 
legal property. This species of property was provided for in the 
edict, and might be sold, given, or transferred by testament or de- 
scent, and that by means far more ample than those applicable to 
qniritarian property. It sometimes happened that the state's 
right of paramount ownership over the offer publicua, which, though 
occupied, still continued public property, was enforced against the 
tenants thereof. This dispossesfflon of the tenants of the ager pub- 
licus was the result of the offrarian laws, which created so many 
tumults — ^not so much, however, because the rights of the state 
were doubted, as because it was thought hard that a tenant who 
had been in possession for years, and had spent much labour in im- 
proving his land, should be turned out without compensation. 



and the natural {in bonis) property existed even in Justi- 
nian's time; but the natural property having been in- 
vested with all the beneficial incidents attached to quiri- 
tarian property, the distinction had become practically 
unimportant. Justinian, however, abolished it in terms ; 
he also abolished the distinction between res mancipi and 
nee maneipi, and between italian and provincial lands. 
-In short, he laid it down that there should be only one 
kind of property, enjoying all the benefits created by the 
prsBtorian law, and capable of being transmitted by mere 
delivery, so long as tne subject-matter was a res eorpo* 
Talis (1). 


Q. Define things corporeal. 

§ 1. ^. Things recognised by the senses, qiKB tangipos" 
sunt, because the ancients reduced all the senses to touch. 

Q. Define things incorporeal. 

§ 2. A. Things having nothing physical about them, 
consisting in right (in jure consistunt), as a right of suc- 
cession (haredttas), of usufruct, of use, or an obligntion. 
These rights are always incorporeal, though they may be, 
and generally are, derived out of corporeal things. 

Q. It appears (p. 62) that dominium, or ownership, 
besides being recoverable by vindicatio, includes, 1. The 
right to use, tisus ,• 2. The right of enjoyment, fructus ; 
3. The right to dispose of a thing, ahusus ; now, coidd 
these be separated from each other P 

(1) Hence mancipatio and cessio in jure (except in case of certain 
servitudes) disappeared (t. 8). As to usucapion it would have dis- 
appeared also, if its sole purpose had been to vest the property 
in one to whom a res mancipi had been transferred firom the owner 
thereof by bare delivery ; but it had a Airther purpose, tor it some- 
times vested the prepay of a thing transferred by delivery firom 
one not heittg the owner. In such case, bare delivery was not 
enough, even by the jus gentium, to transfer the property of an- 
other; whereas the civil law, in certain cases, did attach the 
property to possession continued for a fixed time. So iar, there- 
fore, UBucapio did not depend on the distinction of things into 
mancipi and nee mancipi, and so far the doctrine of usucapio sur- 
vived that distinction (t. 6). 

B 3 

82 EXAICIXATIOK IN [b. 2, T. 3. 

A. Yes : the right to the use and to the enjoyment of 
the fruits might, either together or separately, belong for 
the time to a party not the proprietor. In snch case 
the thing from which such party is to derive the advantage 
or service is said to be subject to a servitus (res sermi)^ 
which is called personal, because it belongs directly to an 

Q* Were there any other special rights capable of be- 
ing carved out of the right of absolute proper^ P 

A. Yes : thus, one piece of land might be subjected, for 
the benefit of another piece of land, to certain services, 
e. g.j a right of passage. Now, this right exists for the 
purpose of adding to the advantages derivable from the 
lana, and therefore benefits the person only indirectly ; it 
is a right attached to the land itself, and runs or is trans- 
mitted with it. This, then, is the servitus proper, and it is 
called real, as opposed to personal. 



Q. How are real servitudes divided ? 

t. ij § 3. A. Into servitutes rusticorum and servitutes ur- 
hqnorum pradiorum, or rural and urban servitudes. 

Q. What is meant here (1) by prcedia rustica et urbana ? 

§ 1. d. Here pradium rusticum means the soil ; pr^- 
dium urhanum any structure whatever. S>ural servitudes, 
therefore, are all those connected with the soil {in solo 
consistunt) : urban, all those having a necessary connection 
with buildings {cedifieiis inhcerent). 

Q. Mention the chief rural servitudes. 

JPr. A. The servitudes of passage, of aqueduct (2). The 
right of drawing water (aqua haustus) ; of watering or 
depasturinff with cattle ; of burning lime ; of taking sand 
from a field. 

(1) " Sere" i, e., as regards servitudes, for generally pr{Bdium 
rusticum includes not merely the soil, but also the buildings 
erected for the purpose of profitably working it : so, pradia ur- 
bona include not merely biuldings in a town, but also the court- 
yards and gardens attadied to them. 

(2) Provided the water is to flow over another's land ; for if it 
was to flow over his building, it would be an urban servitus. 



Q. Explain the semtudes of passage. 

Pr. A. There were three : iter, actus, and via. 

Iter was the right to pass on foot, on horseback, or in a 
litter (jus eundi). 

Actus was the right to drive a beast of burden or a 
vehicle (jus agendi). He who had actus had iter ; at least, 
generally, for of course a man might have the right to pass 
with cattle, and not without them. 

Via was the right to use a way for any purpose, e. a., 
to pass along either alone or with cattle, or with a vehicle. 
Via was made up of iter and actus. It differed from anttis 
not only as to the breadth of the road (1) : but also, first, 
because whilst in actus the right to drive a vehicle did not 
involve the right to drive beasts of burden, via necessarily 
included both these rights ; second, because iter was not 
always included in actus, and because, even when included, 
it did not constitute an essential part of the servitude ; 
whereas iter was always included in via, and did consti- 
tute an essential part of the servitude. 

Q. Mention the chief urban servitudes. 

§1.-4. They concerned the right of one man to have his 
building supported by that of his neighbour (oneris fundi) ; 
the right to rest a beam for support (tiqni immittendi) ; 
the right to raise or not to raise a building to a certain 
height (altius aut non altius tollendi) ; to receive or not 
to receive the rain-drops from a roof (stillicidii veljluminis 
recipiendi vel non recipiendi) (2). 

Q. How can the right to receive, and the right not to 
receive the rain-droppings, both constitute a servitude P 

A, The essence or a servitude consists in there being an 
exception to the ordinary rights of property. Now it is ob- 
vious that land mav be subject to a servitude. by being com- 
?elled to receive tne rain-droppings off a neignbour*s roof, 
'his, then, is the servitus stillicidii recipiendi. But, further, 
it appears that there were certain local statutes or customs 
by wmch persons were bound to receive the rain-droppings 
off' their neighbours houses ; now, if a person acquired the 
right of not receiving the rain-droppings from such neigh- 
bour's houses, his land was subject to tne servitus stillicviii 
non recipiendi. Again, if certain local statutes ordained 
that persons should not build beyond a certain height, that 

(1) The •common width of via was fixed by the Twelve Tables : 
it was eight feet, and at the turns (uhijltbxum) sixteen. 

(2) SUllic., rain in drops. Mumen, rain collected. 

84 EXAMINATION IN [b. 2, T. 3. 

land would be subject to a servitude altius non tollendi, 
whereon persons might not build up to the statutable 
height ; and land would be subject to a servitus altius tot' 
lendi, whereon persons might build beyond the statutable 
height. The servitus stillicidii redpiendi and altius tollendi, 
however, are very uncommon. 

Q. Does a servitude ever bind a man to do an3rthing P 

-4. No. A servitude can only bind him to allow a thing to 
be done, or to abstam from doing it; for servitudes are 
simply fractions of the dominium, severed from it. Now, 
dominium never bound a man to do any positive act (1). 

Q. Was there any exception to this P 

A, Yes, one : in the servitude onerisferendi. This ser- 
vitude bound the proprietor of the servient tenement (2) 
so to keep his pillar or wall as to be capable of sustaining 
the neigh Dour's buildings which rest upon it, i. e., the pro- 
prietor had to do all the necessary repairs : whereas the 
general rule of law was, that the proprietor of the dominant 
tenement is bound to do everything necessary for the ex« 
ercise of his right. 

Q. "Why are real servitudes csHleA jierapradiorum? 

§ 3. ^. Because two pradia, a dominant and a servient, 
are essential to the existence of a servitude. A servitude 
(proper) can only be constituted over one prcedium (3) 
(the servient), for the more convenient use of another 
prisdium (the dominant). The right, granted by me to a 
neighbour, to walk in my garden, or to gather the fruit 
there, and others like it, may constitute a personal ser- 
vitude, like those of usus or usufruct, but not a servitude 
proper, t. e., in re. 

Q. Did a prsedial servitude require the dominant and 
servient preedium to be contiguous? 

A, They must be in the vicinity, i. e., near enough to 
allow of tne servitude being exercised. But contiguity is 
not essential, though in some servitudes, as the jus stilli^ 
eidii, the jtM tigni immittendi, it is required. In short, 

(1) But one man may contract with his neighbour to do some- 
thing ; e, g., to cultivate his garden ; this, however, is a personal 
obligation, not a servitude attached to the land and transferable 
with it. 

(2) A servient tenement is that upon which, a dominant tene- 
ment is that in favour of which, a servitus is imposed. 

(3) That is an immoveable. Moveables, not being fixtures, 
cannot play the part either of a dominant or servient tenement 


the only essential condition is, that the serritus shall be 
capable of being exercised in fact. 

Q. How were servitudes created or acquired P 

A. It may be said generally that, by the old law, servi- 
tudes, like the quiritarian ownership, were acquired by 
Mancipatio, Cessio in jure, Adjudicatio, Lege (including 
legacies, p. 76). 

Mancipatio, however, was applicable to rwral servitudes 
only ; for they only were res mancipi. Urban servitudes 
could not be created inter vivos, except by cessio in jure { 1) 
— usucapio, at least after the. Lex Scribonia (a.d. 37 P) 
did not apply to any servitus. Lastly, we may observe, 
that it was competent for a party, in transferring a thing 
by cessio in jure or mancipatio, to reserve to himself the 
usufruct, or a preedial servitude, and thereby to create a 
usufruct or servitus (usumfructum^ servitutem deducere 
detrahere, excipere), — l^o servitus — not even in things nee 
mancipi — could be created by Traditio, because servitudes 
were incorporeal, and therefore could not be the subject- 
matter either of actual delivery or o{ possession. 

Such was the law as to lands situate in Italy. To lands'in 
the provinces mancipatio and cessio in jure were totally 
inapplicable ; for a private person could not have the pro- 
perty (dominium) or any fraction of the property, such as 
a servitus, therein : he could only have a right of enjoy- 
ment. It was therefore necessary to have recourse to 
pacta and stipulafiones, t. e., the proprietor who intended 
to subject his land to the render of a certain service to his 
neighbour, first agreed {pactum) as to the nature of the 
servitus to which he was willing to subject himself, and 
then bound himself by stipulatio (2) to do nothing to 
hinder the other party in the exercise of. the right. This 
pact, and the stipulatio, which served to secure its fulfU- 
ment, gave the neighbour no right m re, caused no actual 
disintegialion of tne dominium, but created a personal 

(1) Nor usufruct, nor other personal servitudes; for none of 
them were res mancipi. 

(2) Observe the expression pactis JET stipulaMonibus, It will 
appear (B. 8, t. 15) that a hare agreement (pactum) did not raise 
any legal obligation : in order to this a stipulatio was necessary, 
t. e,, when a question solemnly put by the obligor and answered 
by the obligee created the contract. In obligations there was the 
same sort of distinction between a pa>ctwn and a stipulatio, as in 
property between delivery and mancipatio. 

86 EXAMIHATIOir IS [b. 2, T. 3. 

obligation, raised the actio ex stipulatu (1) against the 
party bonnd, and thus secured to the party to whom he was 
Dound benefits very similar to those attached to a servitus 

Such was the strict law (the jus civile). But here, as 
in case of acquiring property, the prstors introduced cer- 
tain practical changes founded on principles of equity. 
They held, that although a servitus, being a thing incorpo- 
real, was incapable of being literally deliyered and possessed, 
still, that the exercise of the servitus by one who was de- 
sirous of acquiring it, with the acquiescence of another who 
was desirous of creating it, should be equiyalent to deli- 
very. To this nondelivery, therefore, the praetors allowed 
the same sort of effect as they allowed in case of a delivery 
of corporeal property, i, e., they protected the ^iMui-pos- 
session, and tne actual enjoyment of the servitus, first, by 
possessory interdicts, and afterwards by a fictitious a^o 
in rem, called actio publiciana (p. 79). Again, when a 
transferor reserved to himself a right of usufruct or ser- 
vitus out of a Thing at the time of transfer by bare deli- 
very, the praetors allowed the same effect to such reser- 
vation, as they allowed under the old law, when a reserva- 
tion was made out of a Thing on its being transferred by 
mancipatio or a cessio injure. 

Lastly, as to urban servitudes, which are characterised 
by a continuous possession, and some rural servitudes, as 
the right of passage and of aquseductus, the prstors set up 
a prascripiio longi temporis, by which means they se- 
cured the permanent enjoyment of the servitude to those 
who had already enjoyed it for a length of time (2) (t. 6, 

(1) By means of this action a party, who did not fulfil his en- 
gagement, might be condemned to pay damages. The amount 
of them was often fixed by a supplementary stipulatio. Thus 
after, " Do you promise to be subject to such a servitus ? — I do 
promise," the parties added : " And if yo:u put any obstacle in my 
way, do you promise to pay one hundred solich by way of a 
penalty ? — I do promise." 

(2) Urban servitudes, excepting those, of course, which consist 
in abstaining, e. g., the jua altius nan tollendi, have certainly a 
cotUinmng character not generally discernible in the rural servi- 
tudes. Thus, the beam resting on a neighbour's wall, the water- 
pipe hanging over his land, the window overlooking his court, are 
always there ; but the right of passage, of drawing water, of de- 
pasturing, are used only for the time. 


Q. What was the law, under Justinian, as to creating 
servitudes P 

A, The changes introduced by the prsetors were incorpo- 
rated into the Taw. The preetorian and civil law had be- 
come one. Hence both manoipatio and cessio in jure had 
disappeared. Servitudes were created, 1. By agreements 
with quasi-delivery, or even without quasi-delivery, as 
when a proprietor on alienating a thing by delivery re- 
served out of it some servitude (1). 2. JBj testament 
{lege) (2). 3. By prescriptio or usucapio (3), in case of some 
servitudes. 4. By adjudicatio (4). 

Q. Then agreements and stipulations, without quasi- 
delivery, cannot of themselves create servitudes P 

A, No. Except where the servitude arises by the pro- 
prietor reserving it out of a thing on its alienation, no ser- 
vitude can be created by agreement without delivery. 
A^eements and stipulations create a personal obligation 
only. And it is inconsistent with the very nature of obliga- 
tions, which create a mere personal tie, that they sbould 
create absolute rights (jura in re), such as property and its 
fractional parts. Therefore delivery — ^not a mere agreement 
— is the ouij means by which the property can be acquired. 
These are mndamental principles or Boman law. Agree- 
ments {pacta) and stipulations may bind a party who 
enters into them, to grant or create a servitude, by per- 
mitting the exercise thereof : but the servitude does not 
exist as a right in re (a fraction of the dominium) until 
there has been quasi-delivery (5). 

Q. How are servitudes extinguished P 

A' 1. By the loss or destruction of the dominant or 
servient tenement ; e. g„ by the building being overturned. 

(1) For delivery works a transfer of property, according to the 
will of the transferor, and within the limits fixed by such will. 
Thus, if a proprietor intends to transfer a fraction only of the do- 
minit*m, a fraction only is transferred. 

(2) Prior to Justinian, it was only the legacy per vindica- 
tionem which directly created a sermtus ; that per damnationem 
and ainendi modo merely bound the hseres to create it. 

(3) Under Justinian they became one. 

(4) When in a suit for partition the judex encumbered the 
land of one with a servitude for the benefit of the land of another. 

(5) This point is much disputed by French and German jurists ; 
some holcUng that a mere agreement is sufficient to create servi- 
tudes, especially negative ones, i, e„ those which consist in abstain- 
ing, as aUiiis non toUendi — ^not building higher. 

88 SXAXIKATIOH IK [b. 2, T. 4. 

the land carried awaj err overwhelmed bj the floods. 2. 
Bj confiuio, when the same person becomes owner of 
both tenements {priBdia). 3. dj a release made by the 
owner of the dominant to the owner of the servient tene- 
ment (1), 4. Bj non-nser (2) for a period, which Jus- 
tinian fixed at ten years when the parties were present, 
and twenty when they were not (3). 


Q. Define the nsniract. 

Pr. A. It is the ri^ht of nsinf^ (ums) and of enjoyinfj^ 
{fructus) the Thing of another, without altering the sab- 
stance thereof (4). 

Q. Why do you say Thing of another ? 

§ 1. A. Because the use or enjotfment can be vested, as 
rignts, only in those who are not themselves proprietors ; 
for, in other cases, these rights would be merged in, or in- 
cidental to the property. Hence, nemini res sua servit, 
no one can have a servitude in his own property. 

(1) By the old law it must be by cessio in jure ; by the new 
law it might be done by a pactum. 

(2) By, not using at all, or not nging it in the proper manner. 
ThuB, if a person liAving the servitude to draw water, draws it at 
some place or time other than the place or time allowed, the ser- 
vitude is lost after the lapse of the same time as would have suf- 
flced to extinguish it in case no water had been drawn at all. 

(3) In case of nrban servitudes, the time began to run from the 
time when the owner of the servient tenement, in order to dis- 
charge his land (jUbertatem usucapere), did some act in violation 
of the servitude ; e, ^., raised his builcUng higher, blocked up the 
windows, removed the rain-water pipes. 

(4) Salva rerum substcmUa, some translate so long as the ««5- 
stance remains. This interpretation rests on the words which 
follow : for it is a right in a body {corpus), toMch being taken 
away, the right must also be taken awag. This seems to show 
that the author is discussing, not the right attached to the usu- 
fruct, but its duration. But, 1. This interpretation makes the 
author lav down a truism. 2. It is not correct, for a usufruct was 
extinguisned by the death of the usufructuary, whilst the sub- 
stance remained. 8. Because the true meaning appears from 
Ulpian, who says that you cannot bequeath the usufruct, except of 
those things which may be enjoyed salva substantia, i, e,, without 
being consumed. Hence we conclude that these words mean that 
a usufructuary has the usus koA fructus, but not the ahusus (p. 62). 


Q. What do the rights of using (ustM) and of enjoying 
(fructus) denote respectively P 

§ 2. A, The jus utendi denotes the right to make use of 
a tning, and to extract from it whatever services it can 
render, without taking any of its products, and especially 
without altering the thing itself (substantia) ; e. g., using 
beasts to plough, or such like, living in a house, &c. The 
jusfruendi denotes the right to gather all the fruits of a 
thing. Hence the usufructuarius (who has the right of 
use and the right of enjoyment) has more than the usuarius 
(who has the right of use), but less than the proprietor, 
who has the jus ahutendi besides. 

Q. Of the different products of a thing, how do you de- 
termine which are fruits P 

A. The purpose for which a thing is intended furnishes 
the means of determining which are fruits. Thus, the 
milk, wool, hair, and young of animals are fruits, because 
animals are kept for tne purpose of producing such things. 
An usufructuary is entitlea to all such products. iBut 
it is otherwise with the child of a slave (p. 73), and ge- 
nerally, with whatever is a mere accidental result of uie 
Thing out of which the usufruct issues (1). 

Q. How ought the usufructuary to exercise his right P 

A, He ought to enjoy the Thing like a good pater-f. ; 
*. c, he is, generally, bound to do whatsoever a proprietor, 
desirous of preserving his property, would do. Hence 
a usufructuary exceeded his right, if his enjoyment was 
such as to destroy the thing, for he has not the jus ahu- 

Q. Explain the rights and duties (obligations) of the 
usufructuary of a herd. 

A, Being bound to preserve the thing out of which the 
usufruct issues, the usufructuary cannot derive any benefit 
from the youri^ produced by the herd, except for the pur- 
nose of filling up (exfoBtu) the places of those beasts which 
nave died or become aged (2). So an usufructuary's en- 
joyment of a garden is subject to the duty of replacing 
the dead trees by others. 

(1) Thus alluvio, an island risen near land, a legacy to a slave, 
are not fruits. 

(2) A single beast is not intended to live for ever. If, therefore, 
it dies without the fault of the usufructuary, he is not bound to 
replace it. But a herd is intended to live for ever, because herein 
we do not regard the individual, but the body {universitas) ; and 
the body remains the same, though the individuals change. 

93 EXAMINATION IN [B. 2, T. 4. 

Q. Does a man, the moment he acquires the jus fru^ 
endi, thereby acquire the fruits P 

A. No. The usufruct confers the right to gather the 
fruits, and to acquire them by gathering or causing them 
to be gathered. But it is the gathering alone, i, e,, the 
taking possession thereof, which vests them in the pro- 
prietor : till then they belong to the landlord (1). 

Q. How was a usufruct created P 

§ 1. ^. Under the old law it was created by testament, 
by cessio injure, and by adjudicatio in suits for partition ; 
but it could not be created by mancipatio, for it was not a 
res inandpi ; nor by bare delivery, fcr things incorporeal, 
like usufruct, could not be delivered ; nor was there any 
method of creating a usufruct in provincial lands not 
having the^W italicum : to supply the place, however, of a 
usufruct in re in the provinces, recourse was had to agree- 
ments and stipulations ; in other words, as it was impos- 
sible to create a usufruct (proper), the person who was 
willing to grant a usufruct in his land, entered into a con- 
tract with another to allow him Jrui, and to do nothing 
to hinder the gathering of the fruits, or the actual enjoy- 
ment. Moreover, the preetors amended the strictness of 
the old law, by holding that the exercise of the right of 
usufruct was a quasi-possession, and by protecting this 
quasi-possession by possessory interdicts, and the actio 
publiciana in rem. In later times, after land in the pro- 
vinces had been put on the same footing with land in 
Italy, after the distinction between res mancipi and nee 
mancipi had ceased, and the modes of acquiring property 
allowed by the praetors were sanctioned by imperial law, 
a usufruct was created : — 1. By testament. 2. By pacts, 
followed by quasi-delivery ; or by reserving the usufruct of 
a thing when it was alienated by delivery. 3. By the ad- 
judication of a judex in suits for partition (2). 4. Directly 
oy the law, in certain cases (3). 

(1) Page 73. If fruits were stolen before the usufructuary had 
gathered them, he had neither actio in rem (used when the thing 
stolen still existed), nor the oondictio frirtiva (used when it had 
been consumed) ; for both were confined to the proprietor, which 
the usufructuary was not : but he had actio fitrti, which was open 
to any one who had an interest in the thing stolen (p. 68). 

(2) In such suits the judex might adjudge to one joint-hseres or 
joint-owner the usufrud;, to another the bare ownership in the 
same land. 

(3) t. 9, post. The pater-f. had the usufinct in the peculium 
adventicium of the filius-f. by the Constitutions. 


Q. Were there not various wajs of creating a usufruct 
b J testament P 

§ 1. A, Yes. 1. You might bequeath the usufruct to 
one, the bare property (proprietas) remaining in the pro- 
prietor. 2. You might oequeath the land, reserving the 
usufruct (deducto), which tnus vested in the hares. 3. 
You might bequeath the usufruct to one, and the land 
minus the usufruct {eo deducto), to another. 

Q. In the last case, is it necessary expressly to except 
the usufruct in a bequest of land, in order that the legatee 
of the usufruct may alone enioy it? 

A, Yes : for, otherwise, the right of enjoyment being 
naturally included in a bequest of land, the usufruct 
would vest in the legatee of the land by implication, and 
in the legatee of the usufruct by express words ; so that 
each would have a concurrent right to enjoy in common. 

Q. In what things may there be a usunruct P 

§ 2. ^. Unlike the case of servitudes (proper), there 
may be a usufruct not only in lands and buildings, but 
also in Wasts, slaves, and other moveables. The only 
things in which there cannot be a usufruct are those 
which cannot be used without being consumed (qu€e ipso 
usu consumunttur) (1), as wine, corn, cash> which are de- 
stroyed by the very using them. 

Q. It was quite useless, therefore, to grant a usufruct 
in Things whereof the usus involved the abusus (consump- 
tion P) 

§ 2. A. Certainly, under the old law. But a Sc, supposed 
to have been passed in the reign of Augustus, ordained 
that the effect of granting the usufruct of things which 
perish in the using, should be to transfer the property 
therein (ut ^usficU) to the usufructuary, if he undertook 
to restore, at the time when a usufruct (proper) (2) would 

(1) They are called res fangihiles, and include (B. 3, 1. 14), not 
everything which is actually consumed, but everything which the 
parties intend shall be replaced by things of the same species. — 
(B. 2, t. 4.) The text mentions vesiimenta amongst res fun- 
gibiles. But there are texts in the Digest where it is said that 
a man may have a usufruct in garments. The truth is, that they 
became res fungibiles if the parties intended that the property in 
them should be transferred, the transferee undertaking to replace 
them by others of the same sort ; but the mere use of them was 
transferred, if the parties' intended that they should be restored in 

(3) Viz.f the death of the quasi-usufructuarius or his diminutio 
ciuptis ; for these are only the two modes of extinction which can 

92 EXAMINATION IN [b. 2, T. 4. 

have terminated, an equal quantity of similar things, or the 
sum at which they were valued. — By this law the senate 
did not declare that it was possible to create a usufruct 
in things qTUS ipso usu consumuntur : that was an impos- 
sibility {non enimpoterat) ; but it substituted for the usu- 
fruct an equivalent, viz., a quasi-usufruct. 

Q. What kind of security did the Sc. require of the 
auasi-usufructuary, in order to insure restitution of the 
tning enjoyed P 

A, It required a satisdatio, i. e., the promise (1) of the 
quasi-usufructuary himself, together with that of a Jide- 
jussor, or surety. 

Q. Was the usufructuary (proper) bound to give any 
security P 

A, Yes. The praetorian law required him to give secu- 
rity hj Jldejtissor : — 1. To enjoy lite a bonus pater-f, 2, 
To restore, at the expiration of the usufruct, whatever 
remained of the thing enjoyed. 

Q. How does a usufruct end P ^ 

§ 3. A, 1. By the death of the usufructuary, or by his 
diminutio capitis, 2. By non-user (non utendo). 3. By 
assignment to the person having the bare property (2). 
4. By consolidatio. 5. By changes in the substance of 
the Thing (3). 

Q. Did the usufruct always cease on the death of the 
usufructuary P 

A, Aa it was a right attached to the person of the 

frantee, it ceased of course with such person. There is no 
ifficulty in applying this principle except where the usu- 
fruct is vestea in the person of a filius-f. or a slave. Jus- 
tinian, however, settled the matter by decreeing that after 
the death of the £ilius-f. or the slave, who held the usu- 

by possibility apply to the usufruct of things, the using of which 
necessarily destroys them. 

(1) By stipulatio, the quasi-usufructuarius, or his hesredes, 
were bound to give back either articles of the same species as the 
things delivered, or the value thereof according to the terms of the 

(2) In jure cedendo, said Gkdus (2, § 30), Justinian cedendo, 
because in his time the cessio injure had ceased. The assignment 
of a usufruct by mere agreement, which the praetors would have 
enforced indirectly by an exceptio, was enforced directly under the 
new law, where there were no exceptions. 

(3) When the usufructus was granted for a time certain, or on 
a certain condition, it was extinguished by the lapse of the time, 
or by the happening of the condition. 


fruct, it should survive for the benefit of the pater-f. or the 
master, during their hves. 

Q. Does the usufruct cease by every diminutio capitis ? 

A. It did hj the old law (1). But Justinian confined this 
result to maa^ma and media d. c, 

Q. How does usufruct cease by non-user P 

A. When the right has not been exercised for a certain 
time. Formerly this was one year, in case of moveables, 
two years in case of immoveables. Justinian made it three 
years in case of moveables, and in case of immoveables ten 
years, if the time ran against one who was present, and 
twenty years if it ran against one who was absent (post, 
tit. 6). 

Q. May the usufructuary assign the usufruct to any 
but the proprietor P 

§3.-4. No : the assignment to a third party (extraneo) 
is void. So that the usufructuary retains his right not- 
withstanding his assignment (Gains, 2, § 30). 

Q. What do you mean when you say that the usufruc- 
tuary cannot assign his right to a third party P 

A. I mean, that he cannot transfer to the person of a 
third party the rights and character of a usuiructuary so 
absolutely that it shall no longer be the death of the as- 
signor, but that of the assignee, which is to put an end to 
the usufruct : for, if he could, he would have the power to 
alter at his pleasure the contingencies on which depends 
the union of the enjoyment with the property. The usu- 
fructuary, however, may enjoy in person or by others: 
therefore he may sell or let out the benefits incident to his 
right ; and, if we look at the usufruct simply with reference 
to the fruits which it entitles us to gather, it may be said 
to be assignable (2). 

(1) Thus, when a person sni juris was adrogatus, all his goods 
passed with him to the adr(^tor. But the rights of usufruct 
being exclusively attached to his person, could not be transmitted, 
and were therefore extinguished. 

(2) The assignment which the usufructuary is here forbidden to 
maJte, is the cessio injure. The reason for this depends on the na- 
ture of that process, which was a fictitious suit, in wHch the pur- 
chaser did not seem so much to be acquiring the right of another, 
as to be recovering a right of his own. Now, suppose this proce- 
dure used in order to assign a usufructuary's right to a third party, 
the usufruct, so assigned, would have to be considered as a right 
vested in the person of the assignee, instead of remaining vested in 
the person of the assignor, as it would have done had it been 
merely sold. 

94 EXAMINATION IN [B. 2, T. 5. 

Q. What do yon mean when yon say that the nsnfrnct 
is extinguished by changes affecting the substance of the 

§ 3. ^. I mean, that it is extinguished not only by be- 
ing annihihited, but also by losing its characteristic form, 
so as to be incapable of fumUing the purpose of its exist- 
ence. Thus the usufruct of a house is extinguished by 
being pulled down : for the right continues neither in the 
soil nor in the materials. So the usufruct of a horse is 
extinguished by its death, and does not continue in the 

Q. Did the rebuilding of the house revive the usufruct P 

A. No : herein a usufruct differed from a praedial ser- 
vitude, which revived when the place to which it was at- 
tached was restored to its original condition. 

Q. Define consolidatio, 

-4. It is the acquisition of the bare property by the 
usufructuary. It extinguished the usufruct quia res sua 
nemini sermt, 

Q. When a usufruct was vested in joint-usufructua- 
ries, did the death of one of them dimimsh the rights of 
the survivors P 

§ 4. A, No : the whole benefit of the usufruct survived 
with the property, until the whole usufruct was extinguished. 
But, for this purpose, the usufruct must be granted to 
several jointly, ana not to each in separate shares. 


Q. Define the usus. 

§ 1. A, The bare use (nudiis usus) is the right to make 
use of a thing belonging to another : buk not to enjoy the 
fruits thereoi {sine frui^u), 

Q. Does the usus, then, give no right to the fruits P 

A. Not according to strict rule ; and this is its essen- 
tial difference from usufruct. Thus the party having the 
jus utendi is entitled to nothing in the progeny, the wool, 
or the milk of animals, whereof the usus has been be- 
queathed to him quia ea injructu sunt (§ 4). He can only 
use them to manure his land (ad stercorandum a-ffrum). 
This is expressly laid down (§ 4). But as the bare use 
often entitles a man to almost nothing, a certain latitude 
of interpretation is allowed in order to carry out the pre- 
sxuned mtentions of the grantor of the use. Thus the 


grantor of the use of a flock of sheep is allowed a little 
milk, because the presumption is that the testator intended 
to bequeath the bare uses, and something more. 

Q. What right has the grantee of the use of lands P 

§ 1. il. In strictness, he is entitled only to walk on the 
land, so that he does not hinder the cultivation thereof, or 
the gathering of the crops ; but he can claim none of the 
fruits, unless, by putting an interpretation on the inten- 
tions of the grantor of the use favourable to the grantee, 
he be aUowed to claim the wood, hay, and fruits required 
from day to day. But it must be carefully observed, that 
this is not the effect of the jus utendi, but a sort of 
appendix to it, arising from a presumption as to the boun- 
tiful intentions of the testator ; a presumption, however, 
which can hardly be made if the grant of the use is inter 
vivos, because agreements are less open to interpretation 
than wills. 

Q. Can the person having the use assign the exercise of 
his right P 

§ 2. ^. !No : thus, he cannot let the house of which he 
has the use (1) ; he can only inhabit it himself with his 
family (2). So he cannot let out or lend a slave or a 
beast of burden, for he is not entitled to employ them ex- 
cept on works in which he is personally concerned (§ 3). 

Q. How is a use created aad extinguished P In what 
things may a man have a usus P 

Tr, A. A use is created and extinguished like a usu- 
fruct, and in whatsoever things he may have the one, 
he may also have tbe other. Nevertheless, an use can be 
createa neither by adjudicatio, nor directly le^e. For 
though in actions for partition the judex lias power to 
confer the usufruct on one and the land on another, there 
is no authority for saying that they have power to deal 
with the use in the same way ; nor do we know of any case 
where the law directly confers on a man the use of a 
thing belonging to another. 

Q. Define habitatio, 

§5.-4. The nature of this personal servitude is not 
obvious. Some jurists confound it with the ri^ht to use a 
house ; but Justmian declares it to be quite distinct both 

(1) In strictness, at least, for he may sometimes let a room in a 
house whereof he inhabits only part, because this benefits him and 
iinureB no one ; for he who has the use may daim the whole use 
of the thmg, and not merely as much as will supply his wants, 

(2) (§ 2). But hardly with a gurat. 

96 EXAMINATION IN [b. 2, T. 6. 

from the Jus utendi and the jus fruendi. For whilst the 
jus utendt is one and entire, the hahitatio is a series of 
rights arising from daj to day, so that in bequeathing it 
you make a separate bequest, in fact, for each day : hence, 
also, it was not extinguished by non-user. Justinian added 
the further distinction, that it might be let. 



Q. Define usucapio, 

^. It is a method of acquiring property, according to 
the civil law, by holding possession for a certain period 
(usu capere). 

Q. Explain the object and consequences of usucapio, 
prior to Justinian's time. 

A. Its object was twofold: 1. To vest the guiritarian 
ownership in one who, having obtained a re* mancipi by 
delivery, held it only in bonis. 2. To vest the property 
of a Thing in the person to whom it had been delivered by 
another, not being the real proprietor, and without his 
consent. Underthe civil law, ailer one year in case of 
moveables, and two years in case of inmioveables, the 
property vested in the bon& fide possessor. 

Q- Did usucapio, then, apply to all goods P 

Pr. A. To moveables everywhere ; to immoveables si- 
tuate in Italy : for the paramount ownership of provincial 
lands being in the Eoman people or the emperor, private in- 
dividuals could not have in them any real right of property. 
But the praetors protected the l>ona fide possessors of 
immoveables in the provinces ; so that, after ten years' 
possession, in case the possessor and proprietor lived in 
the same province, or twenty years in case they lived in 
different provinces, the magistrate allowed such possessors 
i profscriptio Umgi temporis ; i. e.y an exception to repel 
both the actio in rem of the proprietor, and the action of 
any person claiming a right of serviius, or kypotkecoy or 
any other right in re (1). In this last respect the pro- 
seriptio longi temparit was to be preferred to usmcapioy 

(1) The prtBteripHo, therefore, *d not, like nsncaido, cuMse the 
ownefship, •.*., the domimimm ctriTc, to vest ; it amply kept the 
thingMftomt of thepossessisrhy buringtheactiQiiinremaf the 


which transferred, indeed, the property, but transferred it 
in the same plight [as when in the hands of the original 
proprietor ; t. e,, with all its incumbrances ; and in this 
respect there mieht be an advantage in praescriptio even 
when applied to lands in Italy. 

Q. What changes did Justmian introduce P 
JPr. A. Justinian having abolished all distinction be- 
tween immoveables in Italy and in the provinces, between 
the quiritarian and prsetorian {in bonis) ownership, usu- 
capio could have only one of the effects attributed to it ; 
». e., it vested the property in things delivered a non 
domino. XJsucapio, however, regarded even in this light, 
underwent important changes ; for the Emperor so amal- 
gamated the roles and effects peculiar to the old usucapio 
with those peculiar to the prascriptio longi temporis, that 
at last there came to be only one mode of acquiring pro- 
perty by continuing in possession, which was denoted by 
the term usucapio or by tne ieatmprtescriptio longi temporis. 

proprietor, provided the possession was of a character to satisfy 
the conditions as to time, &c But besides a prsescriptio to bur 
any action of the proprietor, or of creditors secured by hypo- 
theca, the possessor longi temporis had, if evicted, an actio utiUs 
in rem; and against third parties he had the actio publiciana, 
even before the period had elapsed for obtaining the prcMcripUo 
against the proprietor. As to the meaning of the word prcBscrip- 
Ho, it was originally synonymous with exceptio, Prasscriptio (prcB- 
^cribere) was a statement at the head of the formula directed to 
the judex by the prsetor, the object of which was to prevent the 
former from proceeding with the suit if the prsescriptio was 
proved. When a proprietor claimed a thing from one who had 
been in posseaslon for ten or twenty years, the formula sent to 
the judex began thus: — "JSa res agatwr, cujus non est longi 
temporis possessio" Hence, if it appeared that the defendant 
had been in possession for the longum tempus, the case was closed; 
for the judex was directed to examine the claim only in case there 
had been no such possession. Thus, between prsescriptio and eX' 
ceptio there was this difference : prcBscfiptio put an end to the case 
at once, if the &cts upon which it rested were true; exceptio 
made it requiedte to go into the whole matter, in order to see 
whether there had been fraud, violence, a release, &c. (p. 79). 
The one stood at the head, the other in the body of the formula. 
In later times, prsescriptiones became a species of exceptions, and 
in Gfdus's time, when pleaded by the defendant, they were always 
stated as exceptions, i^nally, the two words were used syno- 
nymously, as in the 1st title to the 44th book of the IHgest : De 
praseriptiombus sen exoepiiombns. 


98 SXAHINA'PIOK IN [b. 2, T. 6. 

and whicli required ten or twenty yearn' possession in case 
of immoYeables, and three years in ease of moveables (1). 

Q. Did usucapio or pr€Bscriptio apply to things inoor« 
poreal P 

A. It applied chiefly to things corporeal, for they alone 
could be pnysically possessed. Still, a man might discharge 
himself m)m servitudes, whether real or persontJ (2), and 
from hypothecdB by usucapio, i, e,, by holdmg possession of 
an immoveable, as if iree from incumbrances for the fixed 
time: so a man might acquire by prsDScriptio certain rural 
servitudes and those urban servitudes, the very exercising 
of which was a sort of continual possession (p. 86) : but a 
man could not by usucapio acquire the usufruct, or other 
personal servitudes (3). 

Q. What are the conditions precedent to a man acquir- 
ing property by usucapio (ustuiapere) P 

^^ 10, 11. A, l.He must have possession (proper), i.e., 
(mtmo possidendi (4i). 2. Such possession must have been 
taken or received bona fide, and by a rightful title ; or, at 
all events, under the reasonable belief that the property was 
thereby vested. 3. The possession must have lasted the 
proper time. 4. The thing possessed must be one whereof 
the property is capable of r>eing acquired by usucapio, i, 6., 
res non vitiosa (5). 

Q. What do you mean by rightful title ? 

§ 10. ^. Justa catisa, or Justus titulus, denotes a con- 
tract or factum^ which occasions the taking of the pos- 
session, i, e,, possessio animo domini. Thus, a sale, a gift, 
the dos -settlement, payment of a debt, the occupatio of a 

(1) The usucapio or new prescriptio, borrowed from the old 
prsBscriptio the ten or twenty years and its peculiar consequences, 
i. e,, it extinguished the rightsof creditors haying hgpoiheca, as well 
as those of the former proprietor. It borrowed from the old 
usucapio its peculiar consequences, i. e,, it caused the vesting of the 
civil property, the only properly then in existence. 

i2) Except Sahitatio, pp. 92, 95. 

(3) Before the lex Scriboniaf a person might acquire servitudes 
by usucapio ; and in the time of Graius, persons acquired a TuBredUas 
in this way (B. 2, § 54). Usucapio, when regfurded merely as |a 
mode of acquiring, ^d not have the effect of relieving from an 
ohUgctHo 5 nor did the prsetors extend the method of prescriptio 
longi temporia to the extmguishing of oiligationes. 

(4) Thus, a person having only nuda detenUo, or holding for 
another as a locaia/riua, or a depoatee, cannot acquire by usucapio. 

(6) Here vitium is any defect which renders a thing incapable 
of b^ng acquired by usucapio. 


thing abandoned or which never had an owner, or a legacy, 
are so manj justcs causa, lawful grounds or occasions on 
which the possession maj be acauired. The person whose 
possession is founded on one oi these contracts, or facta, 
or who holds possession, as it is said, j^o emptore, pro 
donato, pro dote, pro solute, pro dereltcto, pro suo, pro 
legato, holds it by a rightful title. 

Q. In order to acauire by usucapio, is it indispensable 
that the possession of the party acquiring should reetjusto 
titulo, i, e,, that there should exist one of those contracts, 
or sets of circumstances (facta) which are held to be a lawful 
ground of possession? Was the mistake of the party in 
possession, as to the existence of the titulus or causa, suffi- 
cient^ in any case, to found a title by usucapio P 

A, It is clear, that, generally, the titulus or causa w]uch. 
occasions the deliyery, or the taking of possession, must 
exist in truth, l^he Institutes (§ 11) saj expressly, 
that there is no usucapio when a party is mistaken as to 
the cause of his possession, as, e. g,, when a man be- 
lieves that he has bought, or received a thins as a gift, 
there having been in fact neither sale nor gift. So also 
it is laid down in a Constitution of Diocletian, that 
possession does not lead to usucapio without a rightful 
title (nullo Justo titulo pracedente). Nevertheless, m the 
Digest, we nnd many exceptions to this rule. 

Now the principle deduced by Ducaurroy and others, 
after much consideration, is this ; that bona fides andjiMtus 
titulus are not separate conditions, and that, wherever the 
title of the party in possession is discussed, it is discussed 
solely for the purpose of discovering whether his aUeged 
bona fides ana his mistake rest on fair grounds. Thus, 
why is it that there is no usucapio by a party who ima-. 
^nes that he has bought, or received a thing as a ^ifb, which 
m fact he received as a deposit? Because his mistake 
regards a fact in which he is personally concerned, and 
is therefore unpardonable. So, on the other hand, why 
is it that a man may acquire title by usucapio, if he 
hold possession bond fide, by a sale or a gift which he be- 
lieves to have been made to his slave or to his agent (pro' 
ctiratqr), or to the deceased, whom he has succeeded? 
Because his mistake regards a fact in which he took no 
personal share, and is tnerefore pardonable. So, if I did 
not know that the legacy had been revoked by which I 
assumed possession of its subject-matter, I might acquire 
title thereto by usucapio, though, in fact, there would be 
no titulus or causa; for a legacy revoked is no legacy. In 


100 EXAMIKATION IBT [B. 2, T.,6. 

filiort, the only essential condition reqnired is, that the 
alleged bona fides and the mistake of me person holding 
possession shall rest on reasonable grounds. 

Q. Was a mistake in law a good foundation for a title 
by nsucapio P 

A. No : ignorance of the law was no excuse ; becanse 
every one was presumed to know it (juris igiwrcmtiam m 
usucapione negatur prodesse, facti vero ignorantiam pro- 
desse constat). Thus, a man could not acquire title by 
usucapio of that which he received from a pupillus whose 
age he knew, but whom he supposed to be capaole of alien- 
ating without any authority, or with an informal authority, 
from his tutor. ISut it would be different if he erroneously 
believed the pupillus to be of age. 

Q. Is it necessary that the possession should be contmur- 
Otis ? How is it interrupted r 

A. The possession must be continuous during the whole 
of the required time. It may be interrupted, 1. natwralhf^ 
when a man ceases to hold actual possession by himself or 
by others ; 2. civilly, when an action in rem is brought 
against the possessor (1). 

Q. What is the interruption of the usucapio called P 

A . Usurpatio, from usurpare, which in law means to hold 
or keep b^ using ^ as usucapere means to acquire by using, 

Q. Is it necessary that the party in possession should 
continue to act horn fide ? 

A. No : it is enough if he acted bon& fide in taking pos- 

■ ■ I !■ ■■■ ■ ■■ — ■■ ■■ II III I M ■ ■! I I ■ ^ M 11 P« ■■ I ^1 

(1) Prior to Justinian, the prtescrvptio was broken or inter- 
rupted, not by the summons, but by what was called the liUs con- 
testatio. For it was required that the longum tempus of the 
prsescriptio should be completed when the praetor framed the 
formula for the judex ; and if it was not then completed, the prsB- 
scriptio ^d not prevent judgment (oondemnatio) being given 
agamst the defendant. But usucapio was not int^rupted by the 
action of the proprietor ; for although the required time was not 
completed till the suit was progressing, the ownership was never- 
theless acquired by the possessor. Nevertheless, as the judex had 
power to condemn the defendant to pay the value of the thing, if 
it appeared to have been the demandant's property when the 
praetor drew up the formula, he (the judex) was not prevented fi*om 
condemnmg the defendant, because the property had been acquired 
by him after the praetor had drawn up the formula. The judex 
therefore condemned the defendant, unless he restored the thing 
in obedience to an order of which the judex gave him previous no^ 
tioe. — Aa to Postliminium, D. 49. 15. 12. 2. 

aft. 2, T. 6.] THB INSTITCmSS OF JU8TIKIAN. 101 

Q. Is it necessaij that one and the same person should 
hold possession during the whole of the prescribed time P 

§§ 12, 13. A, No : as the Jueres and tne possessor bono^ 
rum continue the person of the deceased, they also continue 
his possession. Lidividual successors, like a purchaser, or 
donee, may add their possession to that or the person 
through whom they claim, in order to complete the time 
prescribed for usucapio. But it is to be observed that, in 
the first case, there is a continuation of the same posses- 
sion, whilst, in the second, there is a union of two sepa- 
rate possessions : hence it follows, that the bona or mala 
fides of the luBres is irrelevant ; because it is at the time 
of taking possession that bona fides in the possessor is 
required, and the hares has no possession in his own right. 
On the other hand, it follows that not only the purchaser 
or donee, but also the vendor or donor, must have been 
acting honk fide on their entry into possession, if it is in- 
tended that the two separate possessions shall be effectu- 
ally united. Finally, although the vendor or the donor 
may have acted mal& fide, stul the purchaser or the donee, 
who has acted bona fide, may himself originate a valid 
possession, which the hseres never could. 

Q. Define res vitiosm, i. e., things which cannot be ac- 
quired W usucapio. 

§§ 1, 2. A. Bes vitiastB include: 1st. Every thing not the 
subject-matter of commerce, and incapable of alienation, for 
usucapio is in fact a sort of tacit alienation. Thus, things 
sacrsB, religiossB, or publico, freemen held as slaves, im- 
moveables parcel of a marriage portion (fwndus dotalis) (1), 
could neither be acquired by usucapio nor alienated (2). 
2nd. Everything incapable of being acquired by usucapio, 
in consequence of some special enactment, e. g.^ things 
stolen, by reason of the law of the Twelve Tables, and 
the Lex Atinia (3), and things whereof possession had been 

(1) The fundus dotalis, which was inalienable (t. 8), could not 
be acquired by usucapio. But if the usucapio had begun to operate 
before the marriage, it was not interrupted by any settlement 
(eonstituiio dotis), 

(2) Probably the goods of pupilU, and of persons under twenty- 
five, should be included in this cat^ory. 

(3) The lex Atinia was a plebiscitum, passed on the motion of the 
tribune Atinius Labeo, b. c. 197. It seems to have carried out 
the provision of the Twelve Tables, and to have laid it down dis- 
tinctly, that things stolen should be capable of being acquired by 
nsucapio, if they had first been restored to the proprietor's hands. 

102 SZAHINATIOH IN [b. 2, T. 6. 

taken hv Tiolence, by reason of the laws Plautia and 
Julia (1). 3rd. Things belonging to the fiscus and to the 
emperor (§ 9). 

Q. Can a ftigitive slave be a^^qnired by nsncapio P 

§ 1. A, No ; because his flight is, in fact, a theft com- 
mitted by himself of his own person. 

Q. Does the prohibition against acquiring by nsncapio 
the property- in things taken by theft or violence apply 
exdnsively to the thief and the raptor P 

§ 3. A, No : as to them it is superfluous, for their mala 
fides is opte sufficient to prevent their acquiring b^ usu- 
capio. The prohibition, tnerefore, goes nirther : it ex- 
cludes from the benefit of nsncapio all possessors, however 
bonft fide, to whom the thing originally taken by theft or 
violence has been sold or delivered on perfectly rightful 

Q. It would seem, therefore, that there are very few 
cases in which usucapio can apply to moveables. 

§ 4. A. No doubt : but still tnere are some ; e,g,, if a 
hisres sells a fchin^ which has been deposited witli or hired 
by the deceased, in the belief that it is his, the purchaser 
may acquire title by usucapio, for here there is no theft. 
So if the usufruotaj^ of a slave, in the belief that the* off- 
spring is his, sells the slave's child, the purchaser may 
acquire title by usucapio, because there is no theft, for 
theft implies a fraudulent intent (§ 6). 

Q. Why are immoveables more commonly the subject 
of usucapio than moveables P 

§ 7. ul. Because, it being admitted, against the opinion 
of some older jurists, that immoveables cannot be stolen, 
inasmuch as theft presumes removal or ntbtrctctio, the 
bon4 fide possessor may acquire title by usucapio, even 
though the seller or the donor may have acted mal4 fide, 
provided only no violence wa£ used in taking possession 
of the immoveable. 

Q. Is the vitium or defect, arising from a thing being 
stolen or taken by violence, curable (2) P 

^_i^^ _ J ^mai- - - -- --| — --- -pi - J- • ■— • • ■ — - 

(1) The lex PI/twHa is a plebiscitum proposed by the tribune M. 
Plautius, B. c. 59. The lex Julia, attributed to Augustus, is again 
referred to (B. 4^ 1. 18). 

(2) Justinian requires, by Novella 119, c. 7, that the seller or 
donor should act bona fide, but if not, that the true owner should 
be cognizant of his right, <^d of the transfer of the possession to 
a third party. In other cases the possessor, notwithiBtanding his 
bona fides, would require thirty years to complete his title. 



§ 8. ^. Yes : it is cured by the real owner resuming 
possession of the res yitiosa as his own, and as having 
been stolen or forcibly taken from him ; and if this res 
is afterwards delivered, neither by thefb nor violence, to 
a bond, fide possessor, he may ac<juire it by usncapio. It 
is different, however, if the ori^mal owner bays it back, 
not knowing that it has been stolen from him. 

Q. Although bona vacantia, u e,, goods of persons dying 
without successors, devolve on the public treasury, are 
there no cases in which they are acquired 1^ usucapio P 

§ 9. il. Yes: they may be so acquired until the 
agents employed to discover the treasury claims, report 
such goods to the government. So Papinian held, and 
his view is adopted in several rescripts of Antoninus Pius, 
Severus, and Antoninus. \ 

Q. Is there any other prsscriptio, besides that of ten 
or twenty years {Umgi temporis) P 

A, Yes: the imperial Constitutions created a prescriptio 
of thirty or forty years, ». e., tongiasimi temporis ; which 
makes up by a prolonged possession for the want of some 
conditions required m the prsescriptio longi temporis. 
After thirty years' possession, when tne thing in auestion 
is res vitiosa, that is, when it has been taken tpom its 
owner by theft or violence, when the possession is not 
based on a righf/ul title, or* has not been obtained bonft 
fide : after forty years' possession, when the thing in ques- 
tion consists of goods belonging to the state, to the church, 
or to pupilli, the possessor may set up the pnescriptio 
longissimi temporis to an action brought by the pro- 

?rietor, or by a creditor claiming under a hypotheca. — 
!his prascriptio, though it protected the person in pos- 
session against all actions brought against him, did not 
invest him with the property (1) ; so that, if be lost pos- 
session, he had no action in rem against the new holder : 
that action was reserved for the proprietor alone. Jus- 
tinian, however, afterwards attached to the prascriptio 
longissimi temporis the privilege of transferring the pro- 
perty whenever the possessor, at the beginning of his 
possession, had acted oonS. fide. 

Q. Was there not a special prescriptio-^^ privilege 
introduced in favour of those who took from the Fiscus P 
§ 14. ii. Yes. By a Constitution of Marcus Aurelius, 

(1) This, perhaps, is the reason why Justmian does not mention 
it in the Institutes, tit. Usfucapio^ 

104 szAxnrATiov ni [b.2, t.7. 

any* eren a ma14 fide, parchMer from the Fiscni of tihe 
property of another, might, after fiye years' popaesaioii, 
r«pcl by a pnescriptio the action in rem of the proprietor. 
Zeno Screed that every purchaaer from the Fisc^ shoold, 
from the moment of deiiveTj, hold the property ^schiurged 
oi every kypoiheca, reserving always a right to the pro- 
prietor and the creditors secored by hypothecay to cUim 
against the Fiscus, provided the claim was made within 
four years. Justinian extended this privilege to any pur- 
chaser from the palace (dotMis) of the emperor or of the 


Q. Define a gift (donatio), 

A, Strictly, and etymologically, it is the giving or 
transferring of property from motives of liberality {dono 
datio) (1). The original meaning of donatio, therefore, was 
not tne promise or the obligation to give, but a gifl exe- 
cuted. The promise, foimded on the agreement to give, 
was not of itself binding ; and, unless put into the shape of 
a stipulatio, he who had made a bare promise to give a 
thing, could not be oomnelled to deliver it, or to transfer 
the property therein to tne donee. But the Christian em- 
perors, particularly Justinian, attached to the bare agree- 
ment to give, a binding force, apart from the stipulatio ; 
hence this agreement has acquired the same name as. a 
gift ezecutodT v»2;. donatio (2). 

(1) Dare, in law, means to transfer the property. When this 
traiisibr is made in order to discharge a debt, it is daHo solvendi 
ammo ; when in order to receive an equivalent, to create an obliga> 
tiou, it is datio contrahendi ammo ; lastly, when made doncmdi 
animo from mere liberality, it is a gift dono datio. 

(2) Observe the changes in the law. Originally the law attached 
no weight whatever to any gift, unless perfected by delivery, or by 
some other mode of transferring the property ; but if the promise 
to give was in the form of a stipulatio, there arose the obliga- 
tion implied in every stipulatio, and the donee could compel the 
donor to deliver that which had been gratuitously promised. 
Lastly, the stipulatio became unnecessary, the mere consent of 
the donor and donee being sufficient to compel the one to deliver 
to the other what had been gratuitously promised; but still it was 
necessary, as we shall find, that the gift ^ould be evidenced, some- 
times by writing, sometimes by witnesses, sometimes by insimuatio, 
i, 9., by registration amongst the public records. 


Q. Is donatio a special mode of acquiring the property? 

§ 1. ^. No ; for in a donatio the property is transferred 
by delivery, by mancipcUiOf &c., as in any other case of 
alienation. Hence donatio is not a mode of acquiring, but 
only a particular cause of property being acquired, t. e„ a 
gifi. is the cause of our acouiring by the ordinary methods 
any property transferred oy a person acting with liber- 
ality towards us. There is, however, one kind of donatio 
which does, in fact, amount to a special mode of acquiring 
property, viz,, donatio mortis causd, which can only be 
executed at the donor's death ; for on the donor dying, 
donatio transfers to the surviving donee the property 
in the thing given, without any delivery^ and oy mere 
operation of law. We may add, that after Constantine's 
tune donatio may be considered a particular mode of ac- 
quiring property ; for he decreed that delivery should not 
complete the donatio unless it was accompanied bv certain 
forms calculated to secure the genuineness and publicity of 
gifts. Thus it wa£ necessary that the consent of the parties 
should be proved bj writing ; and that the donor should 
divest himself of his properl^ in presence of his neigh- 
bours and several witnesses. Moreover, gifts exceeding a 
certain sum had to be registered, under the penalty of 
being held invalid, t . e», the writing proving the act of 
liberality had to be registered with me proper officer. 

Q. How many kinds of gifts were there r 

Pr. A, Two : 1. the gift, mortis causd; and 2, between 
living parties, non mortis causd. 

Q. Define the gift, or donatio mortis causd. 

§ 1. ^. A gift, which is not to take effect until the 
death either of the donor or of a third party (1). The 
•death on which the donatio mortis causd maybe made to 
depend, is either death generally, to which all are subject, 
€. g., I make a gift'to you if I die, i. e., if I die before you ; 
or death under certain circumstances, e. g., I make a gift 
to you, jfl die in such an encounter, on suck ajowmey. 

Q. "What is the peculiarilr^ of the donatio mortis causd? 

%\. A. Its being revocable at the will of the donor 

(1) Some hold this last to be a conditional gift inter vivos, and 
therefore not to be revocable at the will of the donor. In ordi- 
nary cases, certainly, the death of the donor is the condition 
upon which the donatio mortis causd depends ; hence the text says 
that, in it, the donor prefers himself to the donee, and prefers the 
donee to his h<sredes, 


106 EXAMINATION IN [b. 2, T, 7. 

(si eum donationis pctnituisset) : this is the real difference 
between it and any donatio inter vivos, even when made 
conditionally. Hence the donatio mortis causd, being un- 
executed until the death of the donor, the donee must at 
thatpenodbe capable of reoeiring, and the donor of giving; 
and if the donor suryiye the donee, the donatio is void. 

Q. How many kinds of donationes mortis causd are 
there P 

A, Two. 1. That which is dependent upon death, as 
a conditio suspensiva; i.e,, a condition which suspends 
the Testing of tbe gift ; e, g,, I^ive you this thing if I die on 
this expedition, 2. That which is made on a condition 
resolutoria ; i. e,, a condition defeating the gift which has 
vested; e. g,, I give you this thing, but on the condition tha$ 
you will give %t me back if I return from such an expedi" 
tion. In the first case, the donee does not, until the death 
of the donor, acquire any right to the gift ; but when tlie 
event specified happens, the thing given vests in the donee 
without any delivery, and by mere operation of law(l), 
In the second case, the donatio takes effect immediately, 
and the donee acquires the property at the moment of 
delivery; but when the event contemplated arrives, the 
donatio is defeated, and the donee is bound to restore 
what he received (2). This is the sort of gift which Tele- 
machus made to Piraeus, spoken of in the text. 

Q. Donations mortis causd being revocable and unexe- 
cuted till the donor's death, look very like legacies. 

§ 1. ^. No doubt ; but still there are differences, which 
make the donatio mortis causd very like a donatio inter 
vivos. Hence it was a question whether the donatio 
mortis causd partook more of the nature of a gift or of a 
legacy. Constantino seems to have thought it more analo- 
gous to a donatio (proper), for he required the same forms, 
particularly as to registration, to be observed as in the 
case of donatio inter vivos. Justinian decreed that a do- 
natio mortis causd should be assimilated to legacies in al- 
most every respect (per omnia fere), and that such donatio 
should be valid without registration, whether reduced to 

(1) The donatio mortis causd, under a conditio suspensiva, is 
the donatio mortis causd proper. 

(2) Strictly, the delivery having transferred the property to the 
donee, the donor can only resume it by a new deUvery, which the 
donee might be compelled to make by a personal action; but after 
a time the donor had an actio utilis in rem, as if, by the tact of 
surviving, he legally resumed the property in the thing given. 



writing or not, provided it was made in presence of five 

Q. In what respect does a gifl mortis causd resemble 
a leffacy, and in wnat respect does it differ therefrom P 

A. Lt resembles a legacy : 1. Because, like a legacji it is 
revocable, and is without effect if the donor survives the 
donee ; 2. Because it may be made by any person who 
can bequeath, and to any person who can receive a le-* 
gacy ; 3. Because, like a legacy, it is satisfied out of the 
donor's assets, aflber deducting his liabilities, so that it 
lapses (eaducum) by the insolvency of the donor ; 4. Be- 
cause the hares may make the same reduction of the 
Falcidian fourth (B. 2, t. 22), from the one as from the 
other ; 6. Because the jus accrescendi b applicable to 
both ; 6. Because in botii the property is transferred, on 
the testator's death, by mere operation of law. It 
differs from a legacy : 1. Because the donee is, by the gift 
mortis causd, required to accept during the donor's life ; 2. 
Because, not beinff dependent on the existence of a testa- 
ment and on the nasres institutus (1) accepting the hsere- 
ditas, the ^ft mortis causd takes effect by the mere fact of 
death before the h^reditas is accepted, and without regard 
to the fate of the donor's testament; 8. Because the capacity 
of the donee mortis causd to take, must exist at the time 
of the donor's death, and not, as in the case of legacies, 
at the time when Ihe disposition is made ; 4. Because the 
gift mortis causd sometimes transfers a defeasible property 
to the donee during the life of the donor, which never 
is the case in legacies. 

Q. Define the donatio inter vivos. 

§ 2. A, By this, the donatio (proper), a man irrevocably 
disposes of that which forms the subject-matter of his 
liberality. It is usually made sine ulla mortis cogitatione ; 
but still, a gift, though made in extremis, may be a gift inter 
vivos and irrevocable, if the donor had no intention of ever 
taking it back, in other words, if death was rather the 
motive which induced the donor to give, than a condition 
either suspendiag or defeating the gifl ; for the essence of 
a gift inter vivos is its irrevocability. 

Q. How was a donatio inter vivos made P 

§ 2. A, Erom the time of Justinian it was made by the 

(1) Observe, no man can die partly testate and partly intestate. 
No testament, or any disposition it contains, e, g., a legacy, can be 
valid, unless one or more haredes have been appointed to succeed 
the testator (inttitutt), and have accepted the succession (adire 

108 BZAMHTATIOll IK [b. 2, T, 7. 

mere (y erbal or wntten) conseiit of the iwrtieB : so tiiat the 
mere agreement to give, sufficed to oind the donor to 
transfer the property, as in case of sale ; for, observe, the 
property is never in fact transferred excejit hj delivery. 
Justinian did not entirely abolish registration in case of 
gifts inter vivos ; bat, instead of requiring it for ainr ^ift 
exceeding 200 solidi, he required it only in case of gifts 
exceeding 600 solidi : moreover, the want of registration 
did not annul the gift ; but in cases where that form was 
required, it merely reduced the gift ta such amount a9 
might pass without registration. Moreover, Justinian dis* 
pensed vrith the registration in some cases, e. g., in gift» 
made for the redemption of captives, for rebuilding houses 
burnt down, &c. 

Q. Is a gift inter vivos ever revocable P 

§ 2. A, Yes, for ingratitude : as when the donee has been 
guilty of maltreating or seriously injuring the donor, when 
he has done any considerable damage to the donor's goods, 
or has failed to perform the conditions imposed upon him. 
In such cases, the right to revoke belongs exclusively to 
the donor, who can exercise it only during the life of the 
donee ; nor does it descend to the donor's heeredes. G-ifts 
are not revoked by the birth of a child, except in one 
case, viz., where a childless patron has given his freedman 
the whole or a portion of his goods. 

Q. Is there not one donatio irUer vivos, which is always 
conditional, even though no condition is expressed? 

§ 3. il. Yes : the antenuptial donatio, which is made 
to the wife before marriage, and in which the celebration 
of the nuptials is always an implied condition. 

Q. What is the object of this donatio P 

A. Its object is to vest in the wife, ante nuptias, cer- 
tain ^oods as a security for her dos, i. e,, her marriage 
contribution. As the husband is bound to restore the 
dos on the dissolution of the marriage, so the wife is also 
bound to restore the goods constituting the antenuptial 
donation ; and when the husband is allowed any benefit 
by survivorship out of the dos, the wife is allowed a pro- 
portionate benefit out of the donatio (1). 

(1) Prior to Justinian, the proportion was relative, i. e., if the 
hoflband retained a quarter of the dos, the wife retained a quarter 
of the donatio, whatever the value of the dos or of the donatio. 
But Justinian required that the equality should be absolute, i. e., 
that husband and wife should stipulate for an equal, not a pro- 
portional share. The antenuptial donation was unknown in the 
old law (§ 8) ! it was only introduced by the emperors of Constan- 
" ' (ajumoribus principibus). 



Q. At what time is this donatio to be made P 

^3, A, As there can be no donatio* by a husband to a 
wife, or vice versd., a donor should make it before the 
marriage ; and hence the name donatio ante nuvtias. But 
Justin idlowed such donatio to be increased during mar- 
riage, wherever the dos might be increased. Justinian went 
farther { for he decreed that just as the dos might not 
merely be increased but created during marriage, a do- 
natio nuptialis might also be made after the celebration of 
nuptials. Hence ne introduced the name donatio propter 

Q. Was there not, under the old law, one mode of ac- 
quiring property which was the indirect result of a gift P 

§ 4. A. X ou mean, where a slave, the property of several 
owners, was enfranchised by one of them. Smce a man 
could nQt be partly free and partly a slave, it was decreed 
that the non- enfranchising masters should be absolute 
owners by accrual (1), so that they might not be forced to 
surrender their property. But Justinian, thinking that 
nothing could be worse tnan to see a slave defraud eoof his 
liberty, whilst his enfranchisement proved a loss to the more 
humane and a benefit to the more severe of his masters, 
abolished this jtts accrescendi, and decreed that the slave 
should continue free, but that his non-enfranchising mas- 
ters should receive a sum equal to their share in the slave, 
according to a scale fixed by the emperor. 



Q. Who have power to alienate P 

Pr. A. That power belongs in general to the proprietor 
and to bim alone. Still there are proprietors who cannot 
alienate, and there are persons who can alienate though they 
are not proprietors. 

Q. Mention those persons who, although proprietors, 
cannot alienate. 

§ 2. Pr. A. Amongst them Justinian mentions the hus- 
band, who cannot alienate the preedium dotale, sjid pupilli, 

Q. What rights had the husband in the pradium dotale? 

(1) Provided the enfranchisement would have rendered the slave 
a Roman citizen, if it had been effectual. 


A, He was proprietor of the goods constituting the 
dos : but b^ the let Julia he could not, without the wife's 
consent, ahenate the dotale prmdium in Italy, nor hjpa- 
thecate it, even with her consent (1). 

Justinian, by abolishing all distinction between Italy 
and the provinces, and between hypotheca and alienation, 
prohibited both, whether the wife aid or did not consent, 
and wherever the land might be situate. 

Q* What was the object of this prohibition P 

JPr. A, Its sole object was to secure the restitution of 
iheprcBdiwm dotale to the wife. Hence the alienation was 
null only as to the wife, and only in cases where she or 
her hares, on the dissolution of the marriage, was entitled 
to resume the prcedium, 

Q. How far is tLpupillus incapable of alienating P 

§ 2. A. He can alienate nothing without the i^uthority 
of nis tutor (p. 48). 

Q. What should you say, then, in the case of a pupil 
who, without the tutor's authority, makes a loan called 
mutuum (B. 3, 1. 14) P 

§ 2. A, That there is neither mutuum nor the action 
raised by it ; for there can be no mutuum unless the pro- 
perty is transferred to the borrower ; and that the pupil 
cannot do : for he cannot alienate. Therefore he conti- 
nues proprietor, and an action in rem is the only action he 
can have, so long as the thing lent exists in specie any<- 
where (sicubi extent), 

Q. But as there can be no action in rem if the thing 
lent is gone, how is the pupil in that ease to sue P 

§ 2. ^. If the thing lent has been consumed bona fide, 
the pupil has a condictio, i. e,, a personal action, in order 
to compel the defendant to give him an amount equal to 
the sum lent (2). If the sum of money has been spent 

(1) Hypotheca was not an alienation : it merely authorized the 
creditor, if his debt was not paid, to alienate the thing charged; 
but the very &ct that the hypptheca did not, like alienation, divest 
the property, rendered women even less unwilling to give their 
consent; and this was a reason why the lex Julia was more severe 
against hypotheca than against alienation itself. The prohibition 
of the lex Julia applied only to pradium dotale. The moveables 
dotaUa were always alienable. 

(2) Here the condictio is raised, not by the mutwum, for there is 
none; bat bv the fact, that a delivery has been made with an 
intention which it has been fomid impossible to effectuate, t. «., 
the consideration has failed; causd data, causd non secuia. 



iiial& fide, the papil has the action ad exMbendum, in 
which the defenoant, finding it impossible, becanse of hia 
own fraud, to produce the thin? claimed, will be condemned 
to indemnify the pupil for the wrong occasioned bj its 
non-production (1). 

Q. What effect had the incapacity of a pupillus, in case 
he received payment of a debt from his debtor, but with- 
out his tutor's authority? 

§ 2. A, The pupillus acquired the money, but the debtor 
was not discharged; for the pupillus, though he ooidd 
not alienate, could acquire without the tutor's authority. 
Hence he acquired the money, for it was delivered to him 
with the intention of transrorring the property ; but he 
could not discharge his debtor, for that would have been 
to alienate one of his claims. The debtor, therefore, re- 
mained bound, and might stiU be sued for the money a 
second time ; but if the pupillus retained the whole, or any 
of the money, or if, by judicious investment, the money 
turned out profitable to him, then the prsetor allowed the 
debtor the exceptio doli, so as to bar the action of the 
pupillus to the extent of the profit derived. 

Q. If the debtor paid with the tutor's authority, was he 
entirely exempt from liability? 

§ 2. A, No : when payment had been made to the tutor, 
or with his authority, the debt was in fact extinguished, 
and the pupillus had only an action against his tutor ; but 
if the tutor's insolvency rendered this action abortive, the 
prsetor relieved the pupillus in like manner as he relieved 
all under tweaty-five, who had suffered loss, viz., by re- 
storing them to their original position (restitutio in inte- 
grum). And thus the obligation, once extinguished, re- 
vived, and the debtor might be compelled to pay again. 

Q. Did Justinian allow the debtor no possible means 
of protecting himself from liability ? 

^ 2. A. Yes : he afforded absolute protection to a debtor, 
if he paid with the tutor's authority, and with the permis- 
sion of the judex. This permission was obtained without 
fee (sine omni damno). TS^or was it required when the 
payment consisted of rents or of small sums. 

Q. What is the effect of a pupil paying a debt, he being 
incapable to do so P 

(1) In the condictio the defendant was liable to pay a stun equiva- 
lent to the sum received; in the actio ad exMbendum, he was 
liable to pav the damages, sustained by the pkdntiif, who was him- 
self entitled to fix the amount by his oath. 

112 EZAKINXTION IN [B. 2, T. 9. 

§ 2. A, The payment is invalid ; for there can be no valid 
payment unless the property in the thing paid be trans- 
ferred to the creditor, and so alienated. The pupil, there- 
fore, retains the property, and may bring an action in rem 
to recover the tmng transferred, oat at the same time he 
continues bound by nis obligation (1) : if, however, the cre- 
ditor has consumed the tlung bon& fide, the pupil is dis- 
charged, but at the same time deprived of his property. 

Q. What persons, not being proprietors, may alienate P 

§ 1. A, A creditor may alienate a thing pledged for a 
debt. Tutors and curators may in some cases alienate the 
gooSs of those under their tutela or curatela ; but they 
cannot, as a general rule, alienate prtedia rustica without 
the magistrate's sanction. 

Q. Did a creditor's power to sell a pledge at all trench 
on the principle, that the proprietor alone can alienate ? 

§1.-4. No : for such power was derived solely from the 
wiU of the debtor, by whose express or tacit consent it was 
that the creditor had the right to seU the pledge in case of 
non-payment. So essential is this right to the very exist- 
ence of a contract of pledge, that any clause contravening 
it was held void : if there was such a clause, however, the 
sale was always preceded by three notices. The sale of 
pledges took place according to the forms settled by Jus- 
tinian, unless the parties had themselves arranged the 
course of proceeding. 


Q. Did a Eoman ever acquire through anybody but 

Pr, A, Yes : he acquired not only through himself, 
but through those imder his power (filii-f. and slaves) : 
through slaves in whom he had the usufruct; lastly, 

(1) The pupillns continuiiig liable, it is not obvious what can be 
the benefit to bim of the invalidity of the payment. For it may be 
said that the creditor, after restoring what he has recdved, may 
sue for a fresh payment. But it must be observed that the pupillus 
has often an interest in taking back what he has paid and continuing 
bound; as, for instance, when his obligation is dther to be executed 
after a time certain, or is a mere contract of surety ; for in the one 
case it is his interest to put off executing it till the proper period 
arrives ; in the other it is his interest to eigoy the benefit of dia- 
cuuio and divisio (B. 3, t. 20). 


throogh freemen and the slaves of others, being bon4 fide 
in his possession. 

Q. What things did the pater-f. acquire through the 
filii-f. P 

§ 1. A. Under the old law he acquired whatever was 
acquired by them. In each family there was only one 
patrimony, the property in which belonged to the pater-f. 
{qui in domo dominium hahet) ; all the goods acquired by 
tne filii-f. formed part of it (1). No doubt the pater-i. 
sometimes gave the filius-f. a portion of the patrimony as 
a peculittm; but he had the mere management of .such 
portion, and only so long as the pater-f. aflowed him. 

In course of time, the emperors allowed the filii-f. to have 
goods of their own, and thus arose the various peculia, 

Q. Define peculium. 

A, It is a portion of goods distinct from the common 
patrimony ; particular goods, bona peculiaria. 
. Q. How many kinds o( peculia are there P 

A, Four. 1. Peculium castrense, comprising everything 
acquired by a filius-f. on account of military service. 2. Pe- 
culium quasi castrense, comprising aU presents from the 
emperor or empress, and everythmg acquired in the ex- 
ercise of civil or ecclesiastical duties. 3. Peculium profec' 
tidum, comprising everything derived by the filius-f. out 
of the property of the pater-f. (ex repatris). 4. Peculium 
adventicium, comprising everything coming to the filius-f.» 
except from or through the pater-f. {ex alia catusd) ; and 
we may add, not acquired by him in military service, or in 
the exercise of public functions. 

Q. What rignts has a pater-f. over these peculia ? 

§ 1. A. The peculium profecticium is the only one in 
which the pater-f. acquires the absolute property according 
to the old rule. In the adventicium (2) he has merely the 
usufruct and management, the bare property being re- 

(1) So Qaius says (2, § 96) that neither filii-famiUas nor slaves 
could acquire by the oessio in jure,' because, being incapable of 
having anything of their own, they could not dsom to recover 
the property 

(2) Justinian, by thus including aU the bona advetUicia, 
simply generalized the rule originally adopted by Constantine, 
as to goods coming to the filius-f. from his mother, and which that 
emperor's successors extended to aU goods left to filii-f. by a 
maternal ancestor, by one of a married pair to the other, or by a 
betrothed man or woman to the other. 

114 SZAKINATIOV IK [B. 2, T. 9. 

served to the filius-f. ; so that when the pater-f. dies, the 
floods in it do not sink into the family property, to be di- 
vided amongst all the filii-f., but they continue in the 
filius-f. who nas hitherto had the bare property. Of the 
castrenge and quasi^castreTise, the pater-f. has not even 
the enjoyment ; they remain the absolute property of the 
filius-L (yidct however, tit. 12, post), 

Q. Did the right of the pater-f. over the c^dventidwm 
cease on the emancipation of the filius-f. P 

§.2. A, Yes. This right being a mere consequence of 
the patria potestas, ceased with it. But the Constitutions 
allowed the emancipating pater-f. to retain a third of the 
ad/oenticia (qtuisi pro prelio quodammodo emancipationis). 
Justinian, instead of a third in absolute property, allowed 
the usufruct of the half. 

Q. What does the master acquire through his slave P 

§ 3. A, As the slave can have nothing of his own, the 
master unconsciously, and in spite of himself, acquires what- 
soever is acquired by the slave by any title whatever. 

Q. Does the slave ever need his master's permission in 
order to acquire P 

§ 3. A. Never, except to acquire an hesreditas ; for, 
since the acceptance thereof exposes a man to the risk of 
being obliged to pay all the debts of the deceased, it was 
decreed that a slave, on being appointed hsres by a 
stranger, should not become hseres except by his master's 
command (1). 

Q. When a slave belonged to several masters, who was 
entitled to acquisitions miule by him P 

A. The several masters were entitled, not, however, in 
equal shares, but in proportion to the rights of each in 
the slave. 

Q. Is property the only right acquired through fiHi-f. 
and slaves P 

(1) § 3. This was not required in order to the akve's acoeptiog a 
legacyy becaase the legatee was not bomid to pay the debts. — Oar 
remarks as to the slave apply to the filius-f. under the old law ; 
but after peculia were introduced, the consent both of the pater-f. 
and filius-f. was required, in order to the aoquiration of a peculium 
adventidum, i. e., goods whereof the pater-f. has the usufruct and 
the filius-f. the bare property. Justinian decreed that the party 
refusing bis consent, in such case should not share in the goods 
acquired, but that the consenting party should claim the whole 
profit, and be liable to the whole risk. 


§ 3. A, "No : for through them a man may acquire the 
benefit of obligations incurred by others to them (B. 3, t. 
17, 18)i as well as possession, and the benefits incident to 
it, viz., usucapio and prsescriptio. 

Q. Does the master acquire the possession, as he does 
the property, unconsciously and agamst his will P 

A, No, I^ossession inyolyes two elements : 1. The phy- 
sical hold of a thing ; and, 2. The intention to possess. 
Now, although a man may possess corpore alieno, still, the 
intention is essentially a personal thing {animo nostro). A 
master, therefore, never possesses through his slaye and 
against his own will — ^nay, as a general rule, he does not 
possess unconsciously, lout where a master has intrusted 
his slave with the management of a portion of his goods 
as a peculium (which was not uncommon), then, to avoid 
the inconvenience of the master being obliged continually 
to interfere in the management, suon master is held to 
be the unconscious possessor of whatever comes into his 
slave's possession as a result of the peoulittm intrusted to 

Q. What things are acquired through a slave by one 
who has 01^ the usufruct m the slave P 

§ 4. A. mich things only as arise out of his industry 
(ex operibus suit), or out oi the goods placed in his hands 
for the purpose of fructifying {ex re fructuarii). Things 
acquirea through the slave from other sources, e, g„ from 
his appointment as hseres, from gifts or legacies made to 
the slave, benefit not the usufructuary of the slave, but his 
master, t. e., the bare-proprietor (1). 

Q. If a person had m his bona fide possession the slave 

(1) For an institvMo haredis (appointment as hssres), a legacy 
and a gift are not fructus : the purpose of a slave, as such, not 
being to acquire successions or l^ades. Nevertheless, any gift 
made to a slave, specifically for the usufructuary, would benefit 
the latter. Such gifts would be held to arise ex re fructuarii. 
So any gift ^ade to a slave in consideration of work done by him 
for the donor, provided such work cioncemed the slave's profession, 
went to the usufructuary. He who has the usue (of a slave) can 
only employ him m his (the employer's) own business, and cannot 
jnske him work for others, and so derive a profit ; hence he can- 
not derive any benefit by acquisitions arising out of the mere in- 
dustry of the slave {operibus)i he can claim no right except in 
those arising out of his own property, e. ff., out of the land which 
he gets cultivated, and the products of which he gets sold by the 
slave, or out of the business which is carried on by the slave. 

116 XXi.HINi.TION IN [b. 2, T. 9. 

of another, or a freeman, what things might such person 
acauire through that shtve or that freeman P 

§ 4. A. WCitsoever a usafructuarj might acquire. All 
other acquisitions belonged to the man himself, if he was 
a freeman, and to his master, if he was a slave. Observe, 
however, that another man's slave might be acquired by 
vsucapio, so that, after the prescribed time, every single 
thing acquired by the slave would belong to his bond, fide 
possessor; whereas property in a freeman could not be 
ac(j[uired by usucapio, nor could a usufructuary ever ac- 
auire by usucapio a slave in whom he had the usufruct, 
for, first, the usufructuary has not the possession (pro- 
per), he merely holds for another, thereby admitting he 
has not the property ; and, secondly, if he claimed the 
property he would be acting malA fide, each of which is a 
sumcient reason to prevent usucapio. 

Q. Did the usufructuary and the bond fide possessor 
acquire the possession as they did the property P 

§ 4. A. X es ; and according to the same rules. 

Q. Were the persons above mentioned the only ones 
through whom acquisitions might be made P 

§ 5. ^. Yes. They at least were the only persons who 
acquired for others the property, or the possession, which 
they acquired in their own name. What somebody else 
acquired in his own name could not become mine, except 
by a new transfer : and yet I might acquire possession 
through another (per extrcmeam personam), if he received 
a thing in my name, and by sucn possession I might be- 
come proprietor thereof (p. 74). 

Q. Suppose another takes possession of a thing in my 
name, when does the possession vest in me P 

§ 5. A. If he has done so at his own suggestion, the 
possession does not vest, until I am cognizant of and have 
ratified his act. But if a person has acted by my orders, 
and as my procurator, for instance, the possession vests 
without my knowledge ; /. c, without my knowing pre- 
cisely the act by which my mandatory has executed his 
commission (1), though not without my willing it; for 

(1) But here also the time for prescripUo and usiusapio begin 
to run from the time when a man first becomes aware of his pos- 
session, because usucapio and j7re«mp^to apply only to a bondflde 
possessor, ». «., one who believes himself to be proprietor ; but he 
who is in possession without knowing it, can have neither bona 
nor mala fides. 


anything done in execution of a power granted by me, 
must be done by my will. 

§ 6. Note. — Hitherto we have discussed the modes of aoquirmg 
particular things {res singulares). We ought now properly to pro- 
ceed to legacieg madifdei commMsa, which may he called modes of 
acquiring hy the law {lege). But, adhering to the text (§ 6), we 
shall postpone them to the twentieth and following titles, and 
proceed at once to the modes of acquiring per umverntatem, t. e., 
the aggregate, the whole hody of a person's rights and goods; 
in which a^regate every single thing must of course be included. 
The aggregate of a man's goods are included in, and therefore may he 
transmitted hy the hereditaa, the possesHo bonortCin, the adjudico' 
iio bonorum {to sustain enfranchisement) (B. 8, 1. 11), and hy adro- 
gatio, Sereditas and {hi^possessio bonorum, both denote succession 
tn all the claims and liahiHties of a man deceased, the former being 
regulated by the civil law, thelatter hy theedicts of the prsetors which 
modified that law. The hcBreditas was transferred either by testa- 
ment, or directly by operation of law : hereditas legitima occurring 
only when there was no hereditas testamentaria. Hence the In- 
stitutes discuss the latter first. It only remains to notice a curious 
principle of Roman law, \iz., that the hsereditas legitima, and the 
heereditas testamentaria so absolutely excluded each other, especially 
under the old law, that no man could dispose by testament of 
part of a succession {nemo pro parte testatus pro parte intestatus 
decedere potest) (B. 2, 1. 14), so that a valid testament of necessity 
disposed of the whole succession or estate, and therefore contained 
not merely particular legacies, but also the appointment of a suc- 
cessor {insHtutio haredis). 


Q- Define a testament. 

A, It is the evidence, in legal form, of that which we 
wish to be done after our death. Testamentum est volun- 
tatis nostra justa sententia, de eo quod quis post mortem 
suam fieri vult (1). 

Q* -^^ £ome, what were the original forms of testa- 

(1) So says Modestinus, from which it appears that the inten- 
tions of the deceased, however dear, were indSfectual, unless legally 
expressed {justa). After the introduction of codicils ( post, 25, tit.) 
the more accurate definition of a testament would be a solemn act 
of last will, appointing {instituting) a direct hares, for the instituHo 
haredis is the very essence of a testament, and distinguishes it 
fit)m a codicil, hy which a hareditas can neither he given nor taken 
away, though particular thingps may. 

118 EXAMINATION IN [B. 2, T. 10. 

§ 1. A. In the earliest times of Borne, testaments were 
made in the form of laws ; and we find two sorts : — 1. The 
testament calatis oomitiis, which was made in an assembly 
of the comitia cn/riata, convoked twice a year for this 
purpose. 2. The testament in procinctu — a military testa- 
ment — ^which was made just before an engagement, or be- 
fore setting out on an expedition, in presence of the troops 
in marching and fighting order; ioT,procinctus, says Gains, 
est expeditus et armatus exercitas. The people, or the army 
who represented it in war, on the motion of a citizen, 
sanctioned his selection of hcBredes, and their appointment. 
To these two was added a third, the testament per as et 
libram, which in principle was simply a mancipatio of the 
hareditas, i. e., a sale of it made according to the forms, 
with a reservation of the usufruct. The testator, in pre- 
sence of six persons, being of full age and Eoman citizens, 
of whom five acted as witnesses and one as scales-man 
(lihri/pens), declared that he sold and transferred yamtViom 
sfiamt that is, his Jusreditas — ^the aggregate of his rights — ^to 
the person whom he had selected as his hseres, and who, 
as purchaser {familia emptor), gave the seller, in token of 
ihe price, a piece of brass (tss), with which he had pre- 
viously touched the scales (libram) (1). 

These indirect modes of bequeathing clearly prove that 
citizens had not yet acquired the right to malce a testa- 
ment. In order to keep property in families, the will of 
one person was not allowed to interfere with the ordinary 
rules governing the descent of property : a law was neces- 
sary. And it is simply because there was no right to make 
a testament, that tne indirect mode, per <bs et libram, 
or solemn sale (mancipatio) was employed : in short, what 
could not be transferred to a hisres institutus was sold to 
a purchaser (2). 

(\\ The hareditas was therefore a res mancipi. 

[2) This, however, was bat an imperfect sabstitnte for a regular 
testament. The emptorfamUuB acquired, like any other purchaser 
by mancipatio, an indefeadble right over the haereditas. Hence 
the inconvenience of the ticstament per ses et libram ; for, 1st, it 
bound the testator irrevocably ; 2nd, yon oonld not appoint as hseres 
a child, or a deaf or dumb person, or one under interdict, because 
none of them could take part in tbe mancipatio. A pater-f. could 
not directly appoint as hares his filius-f., for between them con- 
trahi empUo non potest. Hence, in order to transmit a TuBreditas 
to one filius-f. in preference to the others, it was necessary to sell 
it by moMcipoHo to a third party, a firiend, who was charged with 


The law of the Twelve Tables was the first which gave 
a man the right tp make a testament; t. e., to appoint 
directly, and of his own will, a h€Br€s or a legatee. The 
foUowing are its terms : uti legassit super pecwnia tiUelave 
9WB reiitajus esto. 

Thenceforth, as might be expected, the testament ca^^M 
comitiis was disused. The testament in procinctu, which 
was only a corollary from the last, suryiyed the law of the 
Twelve Tables : but it was modified (1). As to the testa- 
ment, ^er as et libram, though apparently retained, it nn- 
derwent many changes. 

Q. Explain these changes. 

A, The forms of mancipatio remained. There were 
still the five witnesses the Uhripens and the JbmiluB emp- 
tor : bat the last was no longer the actual purchaser or 
transferee of the hsereditas. His presence was merely 
formal, and in imitation of the old law {propter veterisjuns 
imitationemfamili(B emptor adhibetur, Gaius, 2, § 103). 

In substance, therefore, the testator made a airect dis- 
position of his estate in favour of the haredes selected by 
nim, and of his legatees. According to Gaius the proceedings 
were these. The testator first wrote or caused to be written 
the proposed dispositions upon tablets. Then came the 
solemn forms of mancipatio, in which, however, the for- 
mula recited by the familia emptor was changed ; instead 
of saying, as in an actaal mancipatio, Sane ego rem ex jure 
qtUritiwn meam esse aio, he said, FamiUam pecuniamaue 
tuam endo mandatam tvielamcustodelamque meam {rectpio 
eaque) qw> tu jure testamerUum facere possis secundv/m 
legem publicam, hoc (ere (sneaque libra, esto mihi empta. 
By these words quo tu jure testamenUtm facere possis se- 
cwidum legem puhlicam, ^&f,'emptor clearly admitted that 

the trust of surrendering it to the proper party (B. 2, t. 23). The 
emptor famUia was certainly bound to execute some directions in 
the will, e, g,, to give certain persons specific articles ; for such di- 
rections were part of the conditions of sale. But the emptor-f, 
could not be charged to restore the whole hcBredittu, except by its 
being charged upon him as a trust; for such a condition was 
repugnant to the nature of a sale. 

(1) Cicero de nat. deor. 2, S, speaks of this kind of testament as 
exTBting in his time, and Velleius Paterculus, 2, 5, alludes to it. 
But the testament in procinctu was not and could not be any- 
thing more than a solemn declaration of last will; for the army 
had no legislative power ; the companions in arms of the soldier 
who made his will were mere witne^es (tit. 11, post). 

120 EXAMINATION IN [b. 2, T. 10. 

the sale was a mere fiction, and that the testator retained 
the right allowed by the Twelve Tables to dispose of his 
goods as he pleased. Moreover, after the emptor had pro- 
nounced the formnla, struck the balance, and given the 
brass to the testator, the latter said, showing the tablets. 
Sac ita, ut in Tahulis cerisque scripta sunt, ita do ita lego 
ita testor : itaque vos, quirites, testimonium mihi perni- 
hitote (1). The new testament per <b8 et libram, therefore, 
consisted of two parts, mancipatio, which was a mere fic- 
tion, and the solemn declaration of the testator, called 
nuncupatio ; for, says Gaias, nuncupare est palam nomi- 
naret to name aloud. The testator, by his declaration, 
proclaimed and confirmed generally, the several disposi- 
tions made by him in the tabula testamenti (2). 

Q. Was the testament per as et libram thus modified 
long retained P 

A, Yes : it survived to the time of Gains and Ulpian ; 
and it was retained as the testament of the civil law until 
the times of Theodosius II. and Yalentinian III., who re- 
placed it by the testamentum tripartitum, used in later 

Q. Why do you say that the testament per as et libram 
continued to be the testament of the civil lata ? 

§ 2. A. Because, from a very remote period, besides the 
testament of the civil law, there was another of the preeto- 
rian law (3). The praetor, in fact, dispensing with the formal 
parts of mancipatio and nuncupatio, ana converting the 
libripens and emptor familise into witnesses, (which had 
substantially been their only office,) held any testament to 
be valid made in the presence of seven witnesses, provided 
their seals were attached (4) ; a new formality not required 

(1) When the testament was not written, the formula was 

(2) Indeed we may say the whole testament was in the tabula 
testamenti confirmed by nuncupatio — the rest was mere show. 

(3) The prsetorian testament existed even in the time of Cicero 
(In Ver. c. 1, 45). Probably it was introduced to enable th&pere- 
grini to make a testament, for they were not entitled to use the 
one per <bs et Ubram, which was confined to Roman citizens. 

(4) The custom was inti'oduced otf sealing (signare) the testa- 
mentary tablets, so that it should be impossible to read them or 
to alter them without breaking the seaL The prsetorian edict 
confirmed this custom, and made it a regular form, by requiring 
that the seven witnesses should each affix his seal (signaculmm 


by the civil law. The testament thus made being void, 
aceording to the civil law, did not pass the htsredilas (pro- 
per) : but the prsetor gave it effect by granting to the 
neeredes appointed by it {instituti) possession of the goods 
of the deceased (1) {Bonorum possessio). 

Q, What was the form of a testament after the time of 
Theodosius IT. P 

§ 3. A. The emperors, in their Constitutions, following 
out the principles of the prsetors, abolished the mere forms 
and adopted a new sort of testament (2), for the validity 
of which three conditions were essential : 

1. Unity in the making (tmo contextu) : ». e., all the forma- 
lities, &om the presenting of the testament to the signing 
and sealing of the witnesses, were required to be completed 
at once, without the interposition of any act not bear- 
ing on the testament, unless it was an act demanded by 
nature, or by the bodily health of the testator. 

2. The presence of seven witnesses. It was required 
that they should be specially summoned for the purpose, 
testamenti celebrandi gratia, or, at least, informed as to 
the nature of the act in which they were to take a part. 
The testator produced to them his testament written be- 
fore-hand, or at the time, by himself or by his direction. 
If it was not written by the testator, he had to affix there- 
to, in. presence of the witnesses, his subscriptio, t. e., his 
name or signature. 

3. The signature of the witnesses (suhscriptiones), and 
their seals (siffnacula). When the testament was opened 
the witnesses affixed their signatures to it ; and after it was 
closed their seal (3). If a testator wished to make a secret 

(1) The poMessio honorum v/bs to the hareditat (proper) what 
the honitaHan was to the quiritarian ownership (B. 3, t. 9). 

(2) In later times, when every subject of the empire was a 
Boman citizen, when, therefore, the peculiarities of the old jvs 
civile had lost their significance, legislation, i, e,, the imperial Con- 
stitutions, showed a general tendency towards the principles of the 
Frsetorian law (§ 3). Faulatim cespit in unam consonantiam jus 
civile et prcBtoriwn jungi. The imperial legislation as to testa- 
ments is mentioned here as an instance of this ftision. 

(3) The witnesses might use each a different seal, or all the 
same (§ 5) (a). For further certainty, therefore, each witness, be- 

(a) The freedmen who, before Justinian's time, had no right to 
wear rings, could not have been witnesses, had every witness been 
required to use his own seaL 


122 BZAMIKATIOlf IN [b. 2, T. 10. 

testament, the contents of which should be unknown, he 
produced it sealed, tied, or rolled up, so as to conceal 
the writing, at the same time declaring it to be his testa- 
ment ; he then signed it, in presence of the witnesses, on 
the end left open ; or, if he could not write, from igno- 
rance or incapacity, an eighth witness subscribed for him. 
The witnesses then affixed their names to the testament ; 
and, having shut it up, attached their seals. 

Q. Did Justinian add any form besides P 

§ 4. A. To prevent fraud he required the name of the 
hares to be written hj the testator himself, or by one of 
the witnesses ; but this form was afterwards abolished by 
Novella. 119, c. 9. 

Q. What was this new form of testament called? 

§ 3. A, Tripartitum, For the conditions as to wio eon^ 
textu, and the presence of the witnesses, were derived 
from the civil, %. e,, the old law ; the number (1) seven, 
and the affixing of the seals from ike prtetorian law ; and, 
lastly, the necessity for signing, from tne imperial Constitu- 

Q. Who may be witnesses to a testament P 

§ 6. il. As a general rule, any person with whom the 
testator has testamenti /actio (2). The following were ex- 
cepted : — 

^ 6. 1. Women, who were not, if possible, to appear in 
civil matters. 2. Impuberes, lunatics, and persons deafer 
dumb; because such persons could not understand, or 

sides sealing the testament, wrote with his own hand, by whom 
and on whose testament the seal was affixed. 

(1) This rule is said to be derived from the Praetors, for of the 
seven persons required to be present by the civil law only five were 
witnesses; it was the Pnetors who converted the Ubripent, and 
the emptor famiUcB into the sixth and seventh. 

(2) Originally, t. e., whilst the testament was by a solemn sale 
(mandpatio), none had the tettamenti fadio, who were incapable 
of acquiring property in that form ; which included not only those 
who had not the commercium, as peregrini and prodigi under 
interdict, but all who were physi<»lly or morally incapable of 
taking part in the mandpatio. After the hseres institutue had 
ceased to be emptor fanUluB, or to concur personally in making the 
testament, the number of those having testamewti /actio was en- 
larged ; indeed, the only parties exduded were persons who ndther 
in their own nor in th&i master's right ei^oyed dvil rights, viz. 
peregrini (after Caracalla'* time, not a numerous daw) and depor- 
tati (tit. 14, posf). 


report) or hear, so as to bear witness. 3. Prodigi, de- 
barred from the'managemeDt of their own property by in« 
terdict (1). 4. Persons declared infamous, or mcapame of 
bearing witness in court. 5. Slaves, who in their own 
right £id no civil rights. 

Q. At what period was it necessary that a witness should 
be found capable P 

§ 7. A. At the making of the testament : incapacity before 
or subsequent to this was unimportant. 

Q* Suppose a slave believed to be free was summoned 
as a witness, was the testament valid P 

§ 7. A, Tes : if at that time he was by common repute 
free, and no one then disputed his stains, 

Q. Besides these cases of absolute incapacity, which ex- 
cluded a man from being a witness to any testament, were 
^ere no cases of relative incapacity which excluded a man 
from being a witness to particular testaments P 

§ 9. A, Yes. Amember of the same family with the tes* 
tator was not a competent witness to his testament. Thus 
a filius-f. could not attest the will of his pater-f : neither 
eould father nor brother of the testator attest the will of a 
filius-f., by which he disposed of his pecuUum castrense or 
qtiasi castrense, after leaving the army. 

Q* Might a pater-f. and his filius-f., or two brothers, 
attest the will of a person not of their &mily P 
. § 8. ui. Tes. Although attestation by members of the 
same family, domesticum testimonium (§ 9), was forbidden, 
that was only where the testament of one of the members 
was in question. 

Q- Were the hares institutus and the members of his 
fiuiuly competent witnesses P 

§ 10. u4. No : for a man could not bear witness for him- 
self (2). 


[1) Their testimony was rejected, not because they oould not 
le a testament, but because, having had the capacity to make, 
they had been foimd unworthy to retun it. 
. (2) In the old testament per as et Uhram, the hseres was pur* 
chaser, and as such excluded, with aU his famiUa. After he had 
ceased to be emptor famiUa, it was thought he might be consi- 
dered a stranger to an act between the emptor and the testator; 
but several jurists recommended that be should not appear as a 
witness. And Justinian veiy properly made this recommendation 
imperative, for in the tripartite testament the only parties really con- 
cerned were the testator and the heeres : the transaction was tfi^«r 

G 2 

124 EXAMINATION IN [b. 2, T. 10. 

Q* Mi^ht legatees, cestoi-que trusts, and testamentary 
tutors be witnesses P 

§ 11. A. Yes. As they did not succeed to the hareditas, 
which constitutes the real essence of the testament, it was 
not thought necessary to reject them as witnesses thereto, 
notwithstanding their interest in its validity, upon which 
of course depended whether its dispositions in their favour 
should take effect : indeed, Justinian settled this point by 
a special Constitution. Still less would any of the family 
of a legatee or of a cestui-que trust be deemed incompetent. 

Q. On what material might a testament be written? 

§ 12. A. On tablets, paper, parchment, or any other 

Q. Might several originals (codices) be made of the same 

§ 13. A. Yes : and it was often useful to do so ; for one 
of them might be lost. The production of one codex was 
enough, if framed according to the required forms. 

Q. Besides written testaments were there auy verbal 

§ 14. A. Yes. The testament per as et libram required 
no writing : for neither mancipatio nor nuncupatio required 
it. Instead of producing the written tablets, ana con- 
firming them by pronouncing the formula, the testator 
might verbally declare his intentions, and nominate his 
hares aloud. Probably, in old times, when writing was 
less common, most testaments were made in this form. 
This naming of the hcsres was properly called nwncupatiot 
(palam nominare), though that term was afterwards used 
to denote the declaration by which a man confirmed a 
written testament without pronouncing the name of the 

The imperial Constitutions, whilst they simplified testa- 
mentary forms, retained this verbal or nuncufative form, 
in which the testator declared his intentions oefore seven 
witnesses (1). 

testatwem et haredem, as formerly inter testatorem et fcimiluB 

(1) Such testament, when made una contextu and before seven wit- 
nesses, was valid by the civil la^? (peffecttssimum, § 14) ; of course, 
it could not be sealed as the pratorian law directed ; nevertheless, 
the pnetors, as executors of the civil law, gave effect to it by 
granting the possessio bonorum. 



Q. Was any class of persons relieved from compliance 
wit£ the above rules as to testaments P 

Ft, a. Yes. Soldiers in the field were relieved by the 
imperial Constitutions. Therefore, provided only a soldier, 
by some means or other manifested a clear intention to 
make a testament, his testament was valid. The form was 
nothing. It was enough to show his intention ; and this 
might be proved by any writing or {sine scriptura) by wit- 
nesses (1). 

Q. Why do you say that the soldier must manifest a 
clear intention f 

§ 1. ui. I mean that vague words used in conversation 
(ut sermonihiis fieri solet) would not suffice. It must be 
proved that the soldier verily intended to make a testa- 
ment (2). 

Q. Does the privilege of being exempt from the ordi- 
nary solemnities of testaments attach to soldiers at all 
times and in all places ? 

Pr. A, 1^0. It attaches to none but those in the field. 
Of testators in camp ; those who never were or have 
ceased to be soldiers, e, g,^ veterans ; of testators not in 
camp, all, whether soldiers or not, were bound to observe 
the regular forms. 

Q. Is the testament of a soldier valid after he has left 
the service (post missionem). 

J 3. A. It remains valid for one year only after he has 
(3). If the veteran, therefore, died witnin the year, 
his informal testament, made before leaving the service, 
continued valid, even when the appointment of the h-ceres 
was conditional, and when, consequently, the testament 
could not be executed till the condition was fulfilled. 

(1) Prior to the emperors of the lower empire, who introdaced 
the maxim testis mmts testis nullus, one witness was probably 

(2) In the case referred to (§ 1), the summomng of the wit- 
nesses to hear his last will is mentioned, not because witnesses 
were necessary to the validity of the will, but to show that the 
soldier really intended to make one. 

(3) J. e,, if his dismissal was honourable (honeste) ; bnt if he was 
^missed because of his unworthiness to serve, his testament, 
unless made in r^ular form, was nuU from the date of his dis- 
missal. — ^The privilege of a soldier attached when he was enrolled 
(in numeris). 

126 BZAHINATIOK IK [b. 2, T. 11. 

But if he did not die within the year, the veteran was 
bound to substitute for his military testament a formal 

Q. Did a testament, originally informal, become valid 
b^ the testator becoming a solcuer, and so acquiring the 
right to make an infbrmu testament (nonjure) r 

S 4. ^. No : but it might be held yalid ex nova militis 
voluntate, if the testator, after enlisting, either added to it 
or subtracted from it, or in some way manifested his in- 
tention to give validity to that which was originally void. 
In truth, such intention is itself a testament ; for a soldier 
who confirms a testament in fact remakes it. 

Q. When a soldier suffered diminutio ecmUU, did not 
his testament, though prior in date to his change of sta- 
tus, continue yalid just as if it had been made after such 

'^'a. Ye.. By. conm^onlaw. when a teetator «dr«ed 
dimtmUio capttu, his testament became void (vmtmn) and 
its validity was not restored by his resuming his fonner 
status (t. 17, post) ; though or course he nu^ht make a 
new testament, unless there was anything m his new 
status to prevent him. But, by privilege, soldiers on 
changing their status (1) did not require to remake their 
testaments. It was presumed that they adhered to that 
already made, so far as those goods were eoncemed, over 
which, notwithstanding^ their change of 9ta;ki9^ they con- 
tinued to have a disposing power (2). 

(1) Tbifl refers particularly to the minima^ or change of fiuxiily ; 
for if a testator lost his freedom or citizenship, he was no loAger 
a soldier, and had no more power to make a testament. A re- 
script of Hadrian, however, gave this power to soldiers condemned 
for a military offence ; from which Ulpian concludes, that the 
testament of a soldier, made before oraidenmatio, conthiued valid 
after it. 

(2) If, therefore, a military pator-f. had by testament disposed 
of all or even of a part of his goods — ^for soldiers might die partly 
testate and partly intestate-Hand he became ad/rog<Uu8, and so 
ceased to be tuijuris, his will, instead of being v(nd, as would have 
been the case at common law, took effect upon those goods which 
he still had in bus dispomtion ; viz., his pecuU»m ceutrense. So, 
if a military filius-f. had by testament disposed of InapecuUum 
castrense, and then was emancipated, h&ng still a soldier, his tes- 
tament was held to apply to hu new status, and took efibct, not 
merely upon his pecuUwn ceutrenae, but also upon all his goods, 
just as if it had been made after emandpaUon. 


Q* Were not certain persons, being soldiers, allowed 
to make wills, who would otherwise have been incapable 
to do so P 

§ 2. A. Yes : e. g,, filii-f., persons deaf and dumb (1). — 
§ 6. But afterwards filii-f. obtained the power of be- 
queathing bj an ordinary testament their peculium cas^ 
irense, even after they had left the army. In like manner, 
also, they might dispose of \ke\ipecuMwn quasi-ccutrense. 
As to those deaf and dumb, Justinian laid down cer- 
tain rules, on complying with which such persons, even 
though not in camp, were entitled to make a testament 
(p. 129). 



Q. In order to determine the validity of a testament, is 
it sufficient to ascertain that the necessary forms have 
been complied with H 

Pr. A, No. The essential point to be ascertained is, 
whether the testator had the testamcTUi'f actio , i, e., the 
capacity of making a testament (Gains, 2, § 114). Now 
this capacity belonged to those only on whom it had been 
conferred by law : for the incapacity to make a will is 
simply the non-permission to do so. 

Q. To whom was the testamerUi-factio aUowed P 

A. By the Twelve Tables it was confined to patres-f. (2). 
Pilii*f. could make no testament (§ Pr,), even with the 
pater-f.'s consent : for the testamentt-factio, which set aside 
the legal order of suceession, was a privilege of public law, 
and could be granted only b^ the law. 

Augustus, Nerva, and Trajan allowed filii-f. to bequeath 
their peculium castrense, but only whilst on active service. 
Adrian allowed the same privilege to filii-f. veterans (3). 

(1) Dectf and dnmb persotu. These must be soldiers who have 
met with some accident, and are about to leave the service. 

(2) J. e,, dtizens mii jnrit. Citizens alone could make a testa- 
ment, and of these, patres-f. alone could do so, for they were the 
only proprietors. The right afterwards obtained by filii-f. to have 
poperty of their own did not involve the right to dispose thereof 
by testunent ; that required the interference of the legislature. 

(3) Prior to Justinian^ if the filius-f. did not dispose St the pecu- 
lium ciutrenae, it belonged to the pater-f., not as hoires or sue* 

128 EXAMINATION IN [b. 2, T. 12. 

In course of time (Pr. prater) the right to beqaeath 
the peculium qucui castrense was allowed to some nlii-f. : 
Justinian allowed it to all. 

Q. Were filii-f. ever allowed to bequeath the p. (idvefUi' 
cium f 

Pr, A, No : the i>. castrense and quasi castrense were 
the only goods whicn they were allowed to bequeath. 

Q. Had all patres-f. power to make a testament P 

§§ 1> 2, 3. A, Lithe testamenti-factto we must distinguish 
the right itself from the exercise of the right. Now all 
patres-f. have the right to be testators, but all have not 
the power of exercising that right ; for the testametitt-factio 
implies a combination of qualities which the law does not 
bestow, but the absence of which debars a man from making 
a valid testament, though it does not debar him from re- 
taining a testament which has been once made either by 
him or for him (t. 16). Thus, impuberes, lunatics, spend- 
thrifts, deaf and dumb persons, even though sui juris, 
can make no testament. But if one has been regularly 
made, it is not annulled by lunacy or infirmity super- 
vening, or by the pronouncing of an interdict (1). 

Q. JDid the testament made by an impubes, a lunatic, 
(&c. continue null, after the testator hecajaepubes or sane P 

§ 1,A, Yes. Acts, originally null, never become valid 
by lapse of time, quod ao imtto nullum est, nulla lapsu 
temporis convalescere potest, 

Q. Why were lunatics and impuberes held incapable of 
exercising this right P 

§ 1. il. Lunatics, because they had no understanding ; 
impuberes, because, though not without understanding, 
they had no judgment {animi judicium) (2). 

Q. Were all deaf or dumb persons incapable of making 

§ 3. A, Prior to Justinian they were, unless the. usual 
forms were dispensed with, on the ground of their being 

oessor, but as proprietor, by virtue of his potestcu (jure commum). 
Justinian (Pr. si vero) decreed that the p, castrense should not go 
to the fiither if there were any children or brothers (B. 8, t. 3). 

(1) Because lunacy only puts an end to the possibility of exer- 
cising the right. It is different when the right itself is extin- 

(2) Impuberes might acquire the heereditas of another if they 
had the tutor's authority, but could not make a will even with his 
authority. The testament made by a lunatic (J^triosus) in a lucid 
interval was valid (§ 1). 


soldiers, or personally privileged by the emperor ; for per* 
sons either deaf or damb could make no testament by 
the common law (1) : the latter, because they could not 
summon ; the former, because they could not hear the wit- 
nesses ; for observe, the deaf person here is one absolutely 
deaf, not one who hears with difficulty ; and the dumb 
person is one who cannot speak a word, not one who 
speaks with difficulty. 

But Justinian decreed, that by observing certain forms, 

Eersons not bom deaf and dumb {certis casibus), should 
ave power to make a will, and to do any act for which, 
setting aside this infirmity, they had a legal capacity. 

Q. Were blind men ever incapable of making a will P 

§ 4. il. Never, because their infirmity did not prevent 
them summoning and hearing the witnesses : Justin, how- 
ev^, to prevent fraud, ordained the observance of certain 
formalities in this case (2). 

Q. Could a Soman citizen, in the hands of the enemy, 
have a testament P 

§ 6. ii. Slavery extinguished the right to make a tes- 
tament. His testament, therefore, made whilst in the 
hands of the enemy, was null, even in case of his re- 
turn {quamvis redierit). So his testament made before cap- 
tivity ought strictly to have been null, but its validity was 
sustained by means of two fictions : tiie one, which applied 
to the case of return, obliterated the term of his captivity, 
and considered him as one who had never quitted me So- 
man territory (jure postUminii) ; the other, introduced 
by the lex Cornelia, a. u. o. 686, assumed that the prisoner 
wlio died a captive died at the first moment of his capti- 
vity, whilst his rights were still complete. 


Q* When the testator had sons under his potestas, but 
wished to transmit his heredUas to a stranger, was it 

(1) Neither deaf nor dumb persons could make a testament 
per <Bt et libram ; the former, because they could not hear the 
words used by the famiUcB emptor ; the latter, because they could 
not pronounce the words of imncupatio, 

(2) Besides the seven witnesses, the t'Cstator was to be assisted 
by a notary (tabulctrius), or an eighth witness, whose duty it was 
to write the testament at the blind man's dictation, or to read it 
over to him, that he might declare whether it was lids last wiU. 

(3) We now proceed to explain those restrictions which were 


130 BXAKIKATIOH IK [b.2, T. 13. 

enouf^h for him to appoint (ituHtuere) rach stranger 

JPr, A» No : He was required to disinherit (exharedare) 
his sons expressly. 

Q. Whence arose the necessity for this P 

Pr, A. It seems to have followed from the principle, that 
members of the same family were in some sort jomt-pro* 

grietors of the family goods : so that, at the death of the 
ead of the family, its surriving members rather retained 
such goods than acquired them for the first time (1). Hence 
the prudente$ were of opinion that the hfereditas shoidd 
not pass to a third party, nnless the pater-f. took it away 
from those who already had it ; and so the role was esta- 
blished that whoerer had a son in his power should in 
express terms either appoint him h»res (instituere) or dis- 
inherit him (exharedare), on pain of the testament being 

Q. If the son omitted from the testament died before 
the pater-f., was the testament stiU void P 

Pr. A. Yes, because it was so in its origin. 

Q. Might the insHtutio, or exharedatio, be subject to a 
condition r 

A. Yes, if the condition was ^^efto^o, ». e., dependent 
for its fulfilment on the will of the son. As to in$Hhi* 
Hones and exhteredaUones subject to casual (2) condi* 
tions, they were valid only if the son survived the event ; 
for when the condition was not fulfilled till after the son's 
death, inasmuch as the son had not been insiUutus or ex 

gradually imposed on the teatator'g absolttte power of malriTig any 
oispodtioiis by testament they pleased, which was granted by the 
Twelve Tables : uH legaasU , , .Ua jus esto. These restrictioiis 
may be summed ap thus : 1. A testator was not permitted to 
pass over his children in silence ; if he meant to disinherit them, 
he must do so expressly, otherwise his testament was void (t. 18). 
2. But even though he did expressly disinherit them, he must 
leave them one-fourth (quarta le^iHma), i, 0., of the share they 
would have taken had he died intestate, otherwise his testament 
might he declared inoffioious and void (t. 18). 8. To prevent the 
pater-f. from evading the spirit of the law by appointing his chil- 
dren as his legal representatives (hseredes), but so encomhering 
them with legacies as to reduce their beneficial interest to some- 
thing merely nominal, the lex Ihlcidia secured the haredes t»- 
sMuti in one-fourth at least. The interests of the children were 
further secured by the j^OMMno bonorum (B. 8, 1. 1). 

il) Hence the name tui haredes, heirs of themiselves (t. 19, post). 
2) Dependent for their ftilfilment on a contingent event. 


karedatus during his life, he never could have been so at 
all, and therefore the testament was null (t. 14). So, when 
a son was institmted in case of the falfilment, and disinhe- 
rited in case of the non-fxdfilment, of a casual condition, 
e, ff.9 ** Jfsuck a skip returns my son shall be hares, \fnot 
he shall be disinherited :" then, if the son died before the 
Tessel returned, and before it was ascertained whether or 
not she would return, he had never been either instituted 
or disinherited, and therefore the testament was null. 

Q. If the person improperly omitted from the pater-f., 
testament was a daughter, or anymore remote descendant, 
did that avoid the testament, as when such person was 
a sonP 

Pr. A. No : but these omitted persons had the ftM ac- 
crescendi, i, e., were entitled to come in with the haredes 
instituti for a certain share. 

This share was a half when the haredes instituti 
were extranei, t. e., not of the familia ; and it was pars 
ffirilis, an equal share, when they were (sui haredes) mem- 
bers of i^e familia : in other words, the whole of those 
omitted increased the number of the sui haredes instituti 
by one, and thus took half the hareditas, if there was only 
one suus hares institutus, and a third or a fourth, according 
as there were two or three sui haredes instituti. 

Q. Did the jus aeerescendi attach to every one of the 
grandchildren and more remote issue P 

A, No : only to those grandchildren whose father had 
died previously, or suffered a diminutio cyntis ; for whilst 
the father was in the family of the grandntther the grand- 
children had no direct rignts over the family-goods, be- 
cause their rights were their father's : he, not they, was 
suus hares, or joint-proprietor of the hartditas ; hence it 
was not necessary to divest them of a title and rights which 
they never possessed, and therefore they were not, but 
their father was the person to be disinherited. 

Q. Was there not a further difference between the son 
and the other issue, as to the form of the exhtsredatio f 

Pr. A. Yes : tibe son was to be disinherited by name 
(naminatim) ; thus, Titius exhares esto : or if the testator 
had only one son, filius meus exhares esto. Daughters 
and grandchildren might be disinherited in the mass {inter 
ceteros), as when Hie testator, after appointing one or 
more children haredes, added ceteri exharedes sunto. 

Q. Was it necessary that posthumous children should 
be instituti or exheeredati ? 

§ 1. A, Yes : for the time of conception fixed the rights 

132 EXAlOKATIOir IN [b. 2, T« 13. 

of legitimate children, so that those conceived before the 
testator's death, though bom after it, were held to be his 
8ui haredes, and could not be divested of that title except 
by exharedatio. 

But a child though conceived acquired no rights, unless 
when bom it was likely to ]ive : hence a testament from 
which a posthumous child was omitted was not void, as 
in the case where a son already bom was omitted ; in its 
origin it was valid, and might be carried into effect, though 
a woman enceinte with a posthumous child miscarried, but 
it was avoided {rumpetur) hj^ offnatio, i. e,, by a new 
hsares being bom into the family. 

Q. Was the testament absolutely avoided by the birth 
of a posthumous child of any sex or any degree, who had 
been omitted by the testator P 

A. Yes : the birth of a posthumous male or female 
child or grandchild, absolutely avoided the testament: 
though it was not so if the person omitted was a daughter 
or granddaughter already bom (p. 131). 

Q. Had it always been possible to secure the non-avoid- 
ance of a testament by mstituting or disinheriting pos- 

A. No : for the rule of law was, that there could be no 
testamentary gift to a person unascertained {incerius), 
which a postumus certainly was : but the PrudefUea re- 
garded the postumus as bom before the testator's death, 
and even at the time of making the testament. Hence there 
were two kinds of postumi : those who, if bom before the 
testator's death, would have been sui hsredes of the tes- 
tator, who were called postumi sui; and those who would 
not have been sui higredes of the testator, though perhaps 
members of his family ; who were called postumi alieni. 
By the civil law, at Iea9t, these last still continued inca- 
pable of being instituted as lueredes (vidcy tit. LegcLcies :) 
but to postumi sui it was competent for the testator to 
make every sort of testamentary disposition. Thus, they 
might be mstituted or disinherited, or legatees or a tutor 
might be nominated for them (p. 39). 

Q. How were postumi disinherited P 

§ 1. A, Daughters and granddaughters postumsD might 
be disinherited in the mass, {intar ceteros) provided some- 
thing was bequeathed to them, to prove that they were 
not omitted because forgotten ; but it was necessary that 
all male postumi, whatever their degree of relationship, 
should be disinherited by name, thus: quicunque miki 
filius genitusfuerit exhares esto. 


Q. Did children who were bom or became sui heredet, 
after the making: of the testament, and before the death of 
the testator, resemble postumi, so far as to avoid (rum^ere) 
the testament from which there were omitted P 

^ 2. ^. Yes. The Prudentes did not allow such children 
to DC instituted or disinherited beforehand, because the 
testator might remake the testament which had been 
avoided. ^Nevertheless it was allowed by a special law, 
the JuniaYelleia (i..D. 10), which assimilated such children 
to postumi ; and hence they were called quasi-poHumi or 
postumi Velleiani (Gai. 2, 134). 

Q. How manv kinds of qucui-postumi were there P 

A. 1. Sui haredes, born alter the testament was 
made, and before the testator died. 2. Grandchildren, 
whose father had left the family after the testament was 
made, and before the testator died ; such grandchildren 
taking their father's place, became sui haredes of the 
grandfather : and, if omitted from his testament, avoided 
it just as postumi and quasi-postumi avoided it, by be- 
ing born {quasi agfUMcenao) (1). 3. Hceredes sui, who be- 
came so by adoption, or by legitvmatio after the testament 
was made. 4. Grandchildren who, on their grandfather's 
death, became sui hceredes of tbeir father, and, as such, 
avoided the testament which he had made, whilst a filius-f., 
in order to dispose of his peculium castrense, or quasi-cas' 

Q. Was it necessary to institute or to disinherit eman- 
cipated children P 

§ 3. A. Not by the civil law ; but the praetor, ignoring 
the emancipation, granted the possessio bonorum cofUra 
tabulas (in opposition to the will) to the emancipated chil- 
dren omitted from the testament. The testator, therefore, 
in order to make certain of having his last will carried 
into effect, instituted or disinherited emancipated chil- 
dren if males, by name, if females, by name or in the 

(1) The lex Velleia was required, not to enable the grandfather 
to institute this second class of Postumi, for, being in existence 
when the testament was made, they might be instituted like any 
body else, but it was required to enable the grandfather to disin- 
herit them beforehand, and in case they should become hseredes ; 
for, by common law, it was not competent for a testator, before 
the death or emancipation of the fietther, to divest persons of the 
title of MM hmredes ot the gprandfather, which as yet they did not 

134 EXAMINATION IN [b. 2, T, 13. 

Q. Did the praetor in like maimer grant the poffegsio 
bonorum cotUra tabulas to emancipated sons' children bom 
after emancipation, although thej had never been subject 
to the grandrather-testator r 

§ 3. il. Yes. As a general rule the prastor nranted such 
possesno to all who were sui hcsredes by the civil law, and to 
all who were excluded from that olaiss by the civil law, 
simply because they had suffered a minima diminutio co- 
pUu ; provided always that such possessio was claimed by 
the issue omitted from the testament ; for if it was not, 
the prffitor granted it secundum tabulas to the hceredes 
instituti, even when by the civil law the testament would 
have been held void, oecause a suns hares (proper) had 
been omitted. Thus, when the quasipostumus whose 
offnatio or quasi-agnatio had avoided the testament, died 
before the testator, the praetor gave effect to the testament 
by granting the possessio b<morum secundum tabulas to the 
Aoredes instituti. 

Q. Was it necessary to institute or to disinherit adopted 

§4. A. Whilstadoptedchildren wereintheadoptedfamily, 
they occupied the same position there as offspring of a law- 
ful marriage ; and it was necessary for the aaoptmg fatiber 
to institute or disinherit them, as if thev had l^en his 
legitimate offspring; but once emancipated by their adopted 
father, they ceased to be his children either oy the civil or 
the praetorian law. On the other hand, as to the natural 
father, his children, who had become members of an 
adoptedfamily, were stHmgers to him, because they could 
not belong to two families at once ; but as soon as eman- 
cipated by their adopted father tiiey became like children 
wno had been emancipated by their natural father ; and 
the praetorian law directed him to institute or disinherit 
them in express terms. 

Q. Did Justinian alter the law on this subject P 

§ 5. A. Yes : he abolished all distinction between the 
sons and other issue (L e. descendants), between posthu- 
mous males and posthumous females ; and he decreed that 
all the issue, whether sui haredes or emancipated (to be dis- 
inherited), must be so by name, whatever their degree of 
remoteness, and whatever their sex ; and that, if they were 
omitted from the testament, it should be absolutely null. 
As to adopted children, the changes made by Justinian as 
to adoption, rendered it unnecessary to disinherit any per- 
sons except those adrogati or filii-f. adopted by an ancestor ; 
for they alone (at least generally) contmued to pass under 
the power of their adopter (B. 1, t. II). 

B. 2, T. 14] THE lygT I TUTJM OV JUSTINIAN. 135 

Q. Were soldiers obliged to disinherit by express words 
those children whom they would not appoint {imtUuere) 

§ 6. A, No : the silence of a military testator was suffi- 
cient to ezdnde his children from the karediias, proTided 
he was aware of the existence of snch children, whether bora 
or only conceived ; for thoiigh the intention to disinherit 
need not be expressed, still it must be proved as a fact ; 
and therefore, as the existence of lueredes, forgotten by 
the testator, rendered a soldier's testament void ab initio, 
so the coming into existence of hsredes likewise forgotten 
rendered it uienceforth ineffectual. 

Q. Were the mother and the maternal ancestors obliged 
to institute or to disinherit their issue P 

§ 7. A. No : the only persons whom it was necessary to 
dismherit were the 9ui karedea, and those whom the prwtor 
regarded as such, notwithstanding their emancipation. 
Now, children were not sui haredes of their mother or of 
their maternal grandfather ; because they were not mem- 
bers of the family of eidier. The silence of the mother 
or of the maternal grandfather in their testament had 
therefore the same effect as when the father expressly 
disinherited ; and the only case in which a child could im- 
pu^ the mother's testament, from which it had been 
omitted, was the case in which it would have been com- 
petent for such child to impugn a father's testament, from 
which it had been excluded, viz, when the will was void* 
as inoffieiosum (t. 18, post). 



Q. Define the institutio haredis, 

A. It is the appointment of the person or persons whom 
the testator desires to be his hares, i. e,, to oe his general 
representative ; in other words, the individual or indivi- 
diuds who are to continue his legal person. — ^This appoint- 
ment was essential to the validity of all the particular dis- 
positions made by the testator : so that if it failed, either 
on account of the hsres refusing to accept, or otherwise, 
the legacies and other dispositions, which m&j be re- 
garded as so many laws imposed upon the hares mstitutus, 
and as incident to the institutio, also failed (1). 

— . " - - — ■ ■ ■ , 

(1) Originally, certain formal words were used for this purpose : 
TUkis hmres esto — Titium haredem esse jvheo (Gains, 2, 116 

136 EXAMINATION IN [b. 2, T. 14. 

Q. Who may be haredes instituti (appointed suc- 
cessors P) 

A, A testator may institute those with whom he has 
tesiamenti'factio (t. 19, posi)^ i, e,, any Eoman citizen (1). 
Hence, neitheT peregrini nor deportati could be insiu 

Q. Was every citizen capable of bein^ appointed hares f 

A. No, Thus, by the old law, and by the lex Voconia, 
JL. TJ. c. 585, women could not be appointed heredes by a 
testator bein^ in the first class or the census, i, «., pos- 
sessing 100,000 asses. Under Justinian this was repealed. 
But apostates and heretics remained incapable. Inces- 
tuous children could not be appointed by their father or 
mother ; nor the second husband or wife by his or her 
partner, if there were any children by a first marriage ; 
nor natural children by tneir father, if he had legitimate 

Q. May slaves be appointed hceredes ? 

Pr. A* Yes: a testator may appoint the slaves of an- 
other, if he have testamentif actio with their master or his 
own slaves, by bequeathing them liberty, so that they be- 
come citizens. 

Q. Is a master who institutes his own slave, bound to 
enfranchise him expressly P 

Pr, A, By the old law he was ; because the old forms 
of enfranchisement prevented its bein^ tacit. Justinian, 
however, decreed that the mere fact of being instituted by 
his master should be deemed a tacit enfrandiisement (2). 

& 117). But Constantine II., A. D. 889, decreed that any words 
should be sufficient. Moreover, this ingiiiuUo was originally re- 
quired to head the testament (caput testamentt) ; but vide t.20, § 34. 

(1) A testator had teatamenti f actio with municipalities and 
other corporations legally constituted. By the old law, no temples 
oould be hceredes instituti except such as were designated by a 
So. or an imperial Constitution. Prior to Justinian's time, 
Latini Juniani, who had the jus commercU, and were capable of 
i^pearing as emptores in the mancipaUo might be hceredes in* 
stituti ; hence there was testamentif actio with them. But they 
had not the jus eapiendi ; i. e,, they could not derive any benefit 
from the appointment imless after the making of the testa- 
ment and hefore accepting the hareditas, they became citizens 
(Gains, 1. 23, 24). So calibes (unmarried persons without chil- 
dren), and orhi (married persons without children), by the laws 
Jtdia and JPapia Poppaa had the testamenti-f., but not the jus 

(2) Vide B. 1, t. 6, § 2. Enfranchisement, express or implied, is 


Q. May a testator institnte the slave whereof he has 
only a hare property P 

Pr, A, Yes : a slave so instituted will hecome free, hut 
must remain in the service of the nsnfructuary daring the 
term of his nsufmct. For he who has the hare property 
in a slave is held to be the proprietor (1). 

Q. How does a slave, instituted by his master, become 
hares P 

A, When the appointed slave remains the slave of the 
testator till the testator's death, such slave becomes free and 
hieres necessarius at once (B. 1, t. 6, § 1 ; B. 2, t. 19, § 1). 

§ 1. But if he has been enfranchised during the testator's 
life, then, as the testament does not convey to him his free- 
dom and the Jueredita* at once, he cannot become heerea 
except volontarilv, and by accepting the hsnreditas ; lastly, 
if the appointed slave has been alienated after the making 
of the testament, he cannot become Jusres unless he accept 
the hareditas by command of his new master. 

Q. When another man's slave is instituted, how does he 
become hsres f 

§ 1. A, On accepting the htgreditcu by command of his 
master, if he continues subject to the same {in eadem 
causa) ; if he has changed his master, he must accept the 
hareditas by command of his new master (2) ; if he has been 
enfranchised during the testator's life, or after his death, 
but before the hareditas was accepted, he must accept and 
acquire the hareditas voluntarily and for his own benefit. 

Q. After the death of A., and before any one, by 
accepting his hareditas, assumed the place of A.'s succes- 
sor, might B. institute the slaves left by A. as part of his 
hareditas ? 

§ 2. A, Yes : even though there was no testamenti /actio 
with slaves except in right of their master: for until the hare- 

essential to the validity of the insUtutio : and if the enfranchiae' 
ment is impossible, the ingtiiutio is void. Hence, a woman aocnsed 
of adultery with her slave oould not appoint him heeres before 
judgment pronounced in the suit, because, till then, she could not 
enf&ttcbise him (Pr.). 

(1) For the ususfruetus is a right in the thing belonging to 

(2) The hareditas is acquired by the slave's owner at the time 
of acceptance. Until acceptance, the benefit of the institutio follows 
the slave, hared^teu ambulat cum domino. 

138 BXAMIKATION IM [b. 2. T. 14L 

ditas WBS accepted, it represented the deceased, and conti- 
nued his person (vicem persona defuneti tustinet). It waa 
competent, therefore, for a testator to institute slaves form- 
ing part of a hareditas until such hareditas was accepted, in 
any case where the testator had teatamenti-'factio with the 
deceased, even though he might not have it with the future 
hare*. Hence, though a testator might have no power to 
institute a posthumous child, he might have power to in- 
stitute the slaves which were about to belong to the pos- 
thumous child at its birth, as part of that hsareditas which 
was about to vest in him as postumus su/us of the deceased. 

Q. When a slave belonging to several masters was in- 
stituted, for whom did he acquire the hisreditiu f 

§ 3. A. For each of the masters with whom the testator 
had testamenti'factio, and who directed him to accept it for 
them : not, however, in equal shares, but in proportion to 
ihe shares held by each in the slave. 

Q. Suppose a slave, held as joint-property, was insti* 
tated by one of his masters, what thenP 

§ 3. ^. If freedom was expressly given by testament, 
the slave became free, providea the other joint-owners were 
indemnified. But if freedom was not expressly given, I 
question whether one of several masters, who institutes, 
must be taken to enfranchise. Where th&re is only one 
master, the slave must be enfranchised or the testament 
must be void ; but where the slave has several masters, 
he may accept the hasreditas for their benefit, and yet re- 
main a slave (B. 2, t. 7, § 4). 

Q. May a testator institute those whom he has never 
seen P 

§ 12. A, Yes : even under the old law, according to which 
there was no testametUi-factio with incerti, for a person 
who has not been seen is not ificertus, provided that a clear 
idea of him as an existing being has been formed. Thus I 
may institute my nephews bom abroad, though I have 
never seen them. 

Q. May a testator appoint several hsredes P 

§ 4. ^. As many as he pleases. All the vnstituti (ap- 
pomtees) are called to the whole kareditas ; in other words, 
the whole vests in them, either jointlv or successively, ». e., 
in some failing the others : for the rule of law is, that a man 
cannot die partly testate and partly intestate. The testa- 
tor's power, however, is confined to this, viz,, defining the 
share to be taken by each hseres institutus, in case several 
hsredes should come in jointly in fact. 


Q. Ho«r was the h»reditas usually divided P 

§ § 5, 8. A, The hiereditas called as (I), an expression 
wludi amongst the Bomans denotes unity or the dividend^ 
was usually divided into twelve equal parts, called uncia. 
And this division the testator is supposed to adopt» when 
there is nothing to indicate the contrary. 

Q- Suppose the testator has appointed one hares, and 
given him six wncim (semissem ?) 

§ 5. A. In this case the testator cannot be supposed to 
have divided the as into twelve uncise, luless you assume 
that he has disposed of only half his hiereditas, and con* 
sequendy intenaed to die partly testate and partly intes- 
tate. Inerefore it is assumed that he has divided the as 
into six uncisB, «. e., into sixths, not twelfths. But a soldier's 
testament is privileged, and therefore, if he has disposed 
only of six unciee, he will be taken to have disposed or only 
half his hiereditas, 

Q. What if the testator has distributed amongst the 
several instituti more or less than twelve unci» ; suppose, 
e. ff., three instituti and three uncise (ex quadrafite) to each, 
tft four instituti and four uncisB to each r 

§ 7. ^. In the first case the h»reditas must be divided 
into nine, in the second into sixteen unci»: eachhseres, 
therefore, wotAd in the first case have three-ninths or one- 
third, and in the second four-sixteenths or one-fourth. If 
the testator gave each of the instituti unequal shares, there 
must be a proportionate increase or decrease. Suppose 
two haredes appointed, the one to six, the oUier to tnree 
unci», the as must contain nine uncise, and the first must 
have six-ninths or two-thirds, and the second three-ninths 
or one third. 

Q. What if the testator assigned no specific share to 
any of the instituti f 

(1) The addition of several ^ or ounces makes ap the fractions 
to which particular names have been given ; thus : 
2 unciffi or -^ ss ^ sextrana 

8 „ A *" i quadrans 

6 „ -j^ a ^ semis 

^ » A '^ t ^^' Q^*** triens) 

9 „ A "" f dodrans (demOf quctdrans, 1 -— ^) 

10 „ i^ *" i dextcms (demo, sextrans 1 — ^) 

11 »» "H ~ 1 — iV deunx (demo uncia) 

6 „ A ^ qmncunx 

7 „ A "" septunx 

140 EXAMINATION IK [b. 2, T. 14. 

§ 6. A. Each is entitled to an equal share. But if seve- 
ral hasredes are appointed jointly, i. e,, by a single dispo- 
sition, they are regarded as one, and take one share; 
e. g., if the testator, after instituting Tiiius^ appoint MtB* 
vius and Paul, these two take one half (six uncus) and 2V- 
Uus the second half. 

Q. What if the testator assigned shares to some only of 
the instituti ? 

§ 6. il. The others take what remains of the twelve parts. 
If, therefore, Titius, Caius, and Cents are appointed h<s» 
redes, the first to three uncise, the second to four, no share 
beinir assigned to Cents, Caius takes five unci®. 

Q. If the shares assigned to some of the instituti make 
up the twelve unciee, how much did they take to whom 
nothing was assigned P 

§ 6. A, The half (dimidia). For as it cannot be sup- 
posed that the testator would appoint a hsores and give him 
nothing, we must assume that the hiereditas was first to 
be divided into two asses, of which one was to be distri- 
buted amongst those instituti whose shares were assigned 
by the testament, whilst the other was to be distributed 
amongst those instituti to whom no shares were so assigned ; 
in short, the as was divided into twenty-four instead of 
twelve uncisa. If the testator distributed twenty-four 
uncisB, but some of the instituti have no share assigned to 
them, the as must be divided into thirty-six uncia, and so 
on (1). But if the shares assigned do not exactly make 
up twelve, or twenty-four, or thirty-six shares, &c., 
then the instituti, to whom no share has been assigned, 
take such shares as will make up the dvpondius, the tri' 
pondius, Sfc, (§ 8). 

Q. How may the appointment of a hares be modified in 
its terms P 

§ 9. A, It may be absolute or conditional, but it can- 
not be made to take effect after (ex) or up to (ad) a 
fixed period; for if a testator appoint a Jueres for one period, 
and none for another, he must die partly testate and partly 
intestate — a privilege confined to soldiers : moreover, the 
maxim of law is, once an hsres always an hceres (semel ha^ 
res, semper Jueres), 

Q. Was an institutio, therefore, void when made for a 
fixed period P 

(1) Sareditas, cUvided into two asses, each equal to twelve 
imdsB, is called diupondius ; into three asses tripondUu, &c 


§ 9. A, No. From the importance attached by the Eo- 
mans to not dyin^ intestate, it was presumed that the chief 
object of any testator must be to have a valid testament, 
and that, whether made in this or that form, must be a 
matter of indifference. Therefore an institutio made for 
a fixed period was construed as absolute in its terms, such 
period being disregarded as surplusage. 

Q. How does a fixed period difier from a condition P 

A, The fixed period postpones the vesting of the testa- 
mentary gift, without diminishing the certainty of its ulti- 
mately vesting ; whereas a condition makes the bequest 
itself uncertain, by making it depend on some future event, 
which may or may not happen (1). 

Q. Are not conditions sometimes held void P 

§ 10. A. Yes : if phvsically impossible, e. g., that you 
shall touch the sky with your finp^er ; or if morally impos- 
sible, as violating law and morality. When the tnstiiutio 
was subject to such conditions, it was construed as absolute 
in its terms : the only reason for this being the importance 
which the Bomans attached to a testament. 

Q. If the vesting of the hareditag may be postponed for 
an indefinite period, viz., till the fulfilment of a condition 
on which the vesting depends, why may it not be equally 
postponed for a demdte period, viz., till the term fixed for 
the vesting has arrived P 

A. It has been thought that this difference arises from 
the retrospective effect attached to a condition when fid- 
fiUed, an effect which is not attached to the fixed period 

(1) An event which must happen at some time may constitute a 
condition, viz., when it is uncertain whether it will happen during 
the life of the person who is to be benefited when it does happen. 
Hence dies incertus conditionem in testamenio facit, a maxim, 
however, not applicable to contracts. Thus, an institutio h(jeredis, 
conditional on the death of a third party, is a conditional appoint- 
ment, because the death of this third party, though it must happen 
some time or other, may happen before or after the death of the 
institutus. Conditions arepotestativiB, dependant on the act of the 
institutus; casual, dependant on chance, or on the act of another; 
and mixed, dependant both on the act of the institutus and on 
chance or on the act of another. Conditions potestaHva, though 
not yet fulfilled in terms, are held to be fulfilled substantially when 
fulfilment by the institutus has become impossible. But the 
case of a mixed condition is different ; e, g,, that of marrying a 
particular woman ; for if she refusesi, the condition must be con- 
sidered as fulfilled, but it is otherwise if she dies. 

14i2 BXAMINATION IV [b. 2, t. 14 

when it arrives. No donbt the effect in queBtion exists in 
case of obligations : bat we have no authority to extend 
the doctrine to testamentary dispositions ; for the time 
when the rights of a hares conditionally appointed yests, 
is the time when the condition is fulfilled : till then, the 
hareditas itself, and not the institutus, continues and re* 
presents the person of the deceased (1). 

Hence (ana this is conclusiye on the point), when the 
institutus dies before the condition has been fulfilled, his 
appointment is void, which it would not be if the concUtion 
took effect from the day of the testator's death ; for then 
the institutus wovld succeed to the hareditas, and it would 
be transmitted to his own haredes. The true answier to 
the question is probably this: when the appointment is 
conditional, the succession of the hares leaitimus {i,e., 
designated by law) is set aside or suspendea, so long as 
the condition may possibly be fulfilled, because there is a 
possibility every moment that the institutus may acquire 
the right to come in, since he has an expectation of suc- 
ceeding at a period more or less remote, indefinite though 
it be, and since, from the favour shown to testaments, such 
expectation is a sufficient ground for excluding the haredes 
leefiUmi (t. «.. ah intestate) until the condition has utterly 
failed. But if an institutio haredes which is made to take 
effect only until (ad) or after (ex) a fixed time were held 
good, there would be a fixed period, during which it is 
absolutely certain that there can be no institutus. During 
this period, therefore, it is clear that there is an intestacy, 
and that the deceased has died partly testate and pai^ 
intestate, which is a violation of first principles (2). Ijo 
avoid this result, therefore, the condition attached to the 

(1) But stiQ the hares, when he has accepted the harediias, is 
in some lespects in the same position as if be had snooeeded the 
very moment the testator died. Hares quandoque euteundo 
hareditaiem, jam tunc d morte successisse de/uncto inteiUffitur. 
Bat this is always the effect of accepting an haredUas, whether 
bequeathed absolntely or conditionally. Therefbre it is not the 
pecohar effect of the folfOment of the condition. 

(2) Hence, when a soldier, who by privilege might appoint a 
hares for a fixed period, and die partly testate and partly intes- 
tate, nominated a hares, e.g,, for ten yean {ad certum tempus), 
the hareditas passed, on the expiration thereof, to the legal 
haredes ; but if his instOutus was. to snooeed ten years after 
testator's death {ex eerto tempore) tiie luereditas till that period de- 
scended db intestato to the heredes legitimi, i. e^ designated by law* 


appointment is expunged, and it is construed as an ab* 
somte appointment. 

Q, When the institutio was subjected to a number of 
conditions, was it necessary that eTery one of them should 

§ 11. A. If they were imposed jointly («. g., \f you do 
9uch and 9ueh a thin^) all must be fulfilled : but u they 
were in the disjunctive form (e. g,, ifvim do such or such 
a thing), it was enough if one was fulmled. But observe, 
this is a mere rule of construction, which must always 
yield to the testator's intention : the will of the deceased, 
rather than the literal meaning of the words, is the thing 
to be considered. 


Q. Define suhstitutio generally. 

A, It is an appointment of a hceres, subject to another 
appointment, on which it depends. 

Q. How many kinds of substitutiones are there P 

A, Three : 1. vulgaris ; 2. jm^Ilaris ; 3. exempla/ris, or 

Q. L)efine suhstitutio vulgaris, 

Pr. A, It is that disposition by which a testator, who has 
appointed a series of hceredes, calls to the hiBreditas the hares 
second in order, in case the first does not assume the 
hiereditas {si hcsres non erit) : the third, in case the second 
does not, and so on (1). Those ihstituti who come first in 
the series, are the hieredes proper : those who come second 
or third, are the substitutt. 

Q. What form of testament was adopted, when the 
testator wished to be certain of having a hceres ? 

Pr, A, He put his slave last on the list of instituti (2), 
who would thus become hares necessarius. And the reason 
for taking this precaution was to avoid the possibility of 
dying intestate. 

Q. Might substitutus come in along with institutus ? 

§ 4. ^. No : when the institutus assumed the hcereditas. 

(1) Example : Let mg son he my hares ; ff mg son is not mg 
hares, let Sempronius; if he is not, let Mavius, The order in 
which the hsBiedes suoo^ is determined by looking to the tes- 
tator's intention as expressed in his will. 

(2) The slave might come in higher in this list; but if the tes- 
tator was insolvent, the slave suooeeded to the hareditas last^ even 
though appointed first. 

144 EXAMINATION IN ^B, 2, T. 15. 

the ttihstitutio was null, as the condition on which it de» 
pended had failed. But Tiberius decreed that when a 
testator instituted a slave, believing him to be a freeman, 
with a substitutus to succeed him, the substitutus should 
come in with such slave (1). 

Q. How many modes of tuhatitutio were there P 

§ 1. ^. You might substitute several persons for one, or 
one for several, or a different person for each of the insti- 
tuti : or the instituti might be substituted for each other 
{i^si invicem). 

Q, What followed when the instituti were substituted 
for each other P 

A, The share of the insiituius who failed, went to those 
instituti who became haredes of the testator and were still 
livinff : to the exclusion of the haredes of an institutus 
who had died after accepting the hcereditas, but before the 
title of the substituti vested. In this respect there was a 
difference between the case where the instituti were sub- 
stituted for each other, and the case where the jus ac' 
crescendi applied, for it increased not merely the share of 
the survivmg hseredes, but also the share accepted by a 
deceased heeres, and transmitted to his successors. 

Q. When the instituti were substituted for each other, 
but the testator had not defined the mode in which the 
vacant share was to be divided amongst these instituti, 
how was it in fact divided amongst them, when their shares 
were unequal P 

§ 2. A, It was divided in proportion to each of their 
shares under the testament, thus *. Suppose a testator has 
appointed three hcsredes. Primus for two unciee, Secundus 
for seven, Tertiv^s for three, and has made each the suh' 
stitutus of the other. Tertius dies, or refuses to accept 
the hsereditas : his share will be divided into nine parts, 
two of which will go to Primus, and seven to Secttndus, 
For it is presumed that the shares given expressly by the 
institutio are repeated by implication in the substitutto. 

Q. When B., the second of two instituti, was substi- 
tuted for the first, A., and a third person, not institutus, 
C., was substituted for B., was Cf. thereby substituted 

(1) In partem admittitwr (§ 4), t. e, for a half, probably. The 
difficulty here was whether the condition {si hares non erit) on 
which the substitutto depended had been fnlfilled when the slave 
was his hteres, not for himself, but for his master. 


§ 3. A, Yes (1) : C, who was substituted for B., who 
again was substituted for A., was impliedly substituted for 
A. Hence the T\il»^9uh8tUuttM subsiituio oensetur substi- 
tutus instituto. 

Q. But would not the^W accrescendihave produced the 
same result P 

A. C, the substitute of B., by taking B.'s share, was 
entitled, by the jus aecrescendi, to the vacant share of A. 
But prior to Justinian the jus accrescendi was restricted 
by the caducaiy laws (the lex papia poppcea), which con- 
ferred either upon the haeres with children, or upon the 
public treasury, the shares caduca or quasi-caducce, i. e,, 
all that had become vacant, either before the testator's 
death, or between that and the opening of the testament 
(vide tit. Legacies), Now, substitutioipTeYeiited a bequest 
becoming caducum. Moreover, even after Justinian's 
time there was an advantage attached to substitution viz,, 
in case there were three instituti : thus, when for the first 
you substitute the second, and for the second a fourth, 
non-institutus, such fourth, in case the two first instituti 
failed, received together with the share of the second, the 
whole of the first : whereas, had there been no implied 
substitutio, the share of the first, when vacant, must nave 
been divided by the jus accrescendi, between the third insti- 
tutus and the fourth, viz., the substitutus of the second (2). 


Q. Define the substitutio pupillaris. 

Pr. A. It is the appointment of an hares made by a 
father for the son under his power (3), in case the son 
should die a pupillus. For as no impubes could make a 
will, and to prevent intestacies, a custom was introduced 
allowing a pater-f. to make a will for those children, 

(1) § 8. Sine distinctione, i, e., no difference was made in con- 
sequence of one substitution preceding the other; nor does it 
matter whether A. or B. w the first to die or to refiise to accept the 
hsereditas. Such distinctions were abolished by Severus and 

(2) Shortly : A, B., C, instituti ; D. non-institutus : B. for A., D. 
for B. suhstituti : then hy substitutio D. takes the share of A. and of 
B. ; by the jus accrescendi D. takes the share of B. and half the 
share of A., C. taking the other half, 

(3) At the time when the fietther makes the substitutio, or dies. 


146 EXAMINATION IK [b. 2, T. 16. 

whoy at hJB deatH, would be ptipilli, t. «., tui jutm, and 
impuheres (1). Bat no pater-f. nad this priyilege unless he 
himself had a testament (§ 5) or was a soldier. 

Q. The substitutio pupillaris, then, presupposed two 
testaments P 

§ 2. A, Yes : the father's and the son's, or at least a 
double testament operating on two subject-matters, since 
it disposed of two hareditates. If, however, the father 
used one instrument for himself and another for hijs son, 
the father's will was required to precede the son's, but 
when he used only one instrument for both, no order was 

Q. Was it only to children in the first degree that a 
pater-f. might appoint a suhstitutus ? 

§ 4. A, He might do so for the more remote issue, pro- 
vided that on his death they would be sui juris. Moreover, 
he might do so for pK>sthumous children. 

Q. What precaution might be taken by a pater-f. who 
apprehended danger to his son by publicly nominating a 
siwstitutus for him, whose interest it would be that the 
son should die a pupillus P 

§ 3. ^. He might leave open the first part of the will, 
disposing of his own hiereditas, and tie or seal up the other 
part, nominating the suhstitutus, desiring at the same time 
that the seals should not be broken before tiie death or 
full age of the pupillus, 

Q. Was a pater-f. bound to institute the filius-f. for 
whom he appomted a stthstitutua pupillaris ? 

§ 4. ^. ]No : he might appoint such a substitutus for his 
issue, whether he instituted or disinherited them. When 
the son was appointed hseres, his substitutus pupillaris was 
regarded as a substitutus vulgaris; and vice versd, the 
sw)stitutus vulgaris as his substitutus pupillaris, unless the 
testator expressed a difierent intention. 

Q. What goods devolved upon the substitutus pupiU 
laris ? 

§ 4. A, All the goods vested in the pupillus by suc- 
cession, gift, or otherwise. But if the father-adrogatoT 
made the substitution, it affected no goods but those re- 
ceived from or through him. The other goods of the 
adrogatus went to his legal successor or to the substitutus 
appointed by his natural father. 

(1) The pater-famUias may appoint a substitutus pupillaris, 
whenever he may nominate a testamentary tutor (B. 1, 1. 13). 


Q. Might the father appoint a substUutus papillaris for 
each of ma children P 

§ 6. A. Yes : and he might also appoint one for the 
la^ which should die a pupil. In the first case no child 
died intestate ; in Hie second the order of legal succession 
was retained ; and the child who died last a pupil was the 
only one which had a testamentary hseres. 

Q. What was the form of appointing substituti? 

Pr. § 7. A, They might be named, e, a,, TitiiMf he my 
son* 9 hsres : or, generafly, Whoever shall be my h€eres shall 
be my son's hteres. In this last case the hareditas of the 
pupu passed to those instituti of the father, who became in 
fact heredes : it passed to them, however, not in equal 
shiu%s, as it would have done if they had been individuallj 
named suhstituH, but according to the proportion of their 
shares in the father's htsreditas (1). 

Q. How was a substitutio pvpillaris ended P 

§8.-4. 1. By the pupil reaching puberty; for he could 
then make a testament for himself 2. Wnen the father's 
testament was annulled i for the substitutio pupillaris was 
incident to it. 3. When the child died before the father ; 
for then the ri^ht to make a will had never vested in it. 
4. By any dimmutio capitis suffered by the pupil, either 
before or after the testator's death ; because, in the first 
case, the testator was divested of the father's power ; and, 
in the second case, the pupil must either have ceased to 
be a citizen or to be sui juris, and therefore to have the 
right to make a will (2). 

Q. If a stranger or a son of full age was instituted by a 
testator, could he provide for the case of these parties 
becoming hsredesy and then dying within a certain period. 

(1) If a slave, ingtitnted by a fiither, and snbstltated for the son, 
became free after acquiring for his master the father's hcBreditas, 
bat before the son's death under age, such slave, and not his former 
master, was the svhstitu^us : for the benefit of the substitutio was 

(2) Observe, however, that in case the pupiUus was adrogaius, > 
and died under age, his goods were to be given back to those who 
would have had them if there had been no adrogatio, and con- 
sequently to the substitntus of the pupil appointed by his natural 
father. Bat then it was not directly by virtue of the substitution 
that the substitute sued, but utiliter by virtue of the stipulatio, 
by which the tidrogator was bound to restore the goods of the 
adrogoitus (p. 33). 


148 EXAMINATION IN [b. 2, T. 17. 

by means of a substitation, putting other parties in their 
place as htredes ? 

§ 9. A, No : the testator cotild only bind» by fideieonu 
missttm (trust), the stranger or the son of full age to ^ve 
the whole or part of his hcBreditas to a third party, oxxt 
there was this great difference between an institution "by 
means of a trust and the substitutio pwpillaris; in the 
former the testator disposed not of the hareditas of the 
institutus, but of his own hisreditas, and therefore the pro- 
posed transferee of the hareditas not being the hares of 
the trustee, succeeded to none of his goods, and received 
nothing more from him than he had received from the 

Q. Might not a testament be made for certain puheres ? 

§ 1. A, Yes : Justinian allowed ancestors of lunatics 
(jmberes) to appoint substiiuti, who should succeed them 
if fhey died before recovering their reason. This was the 
substitutio exemplaris or quasi-pupillaris, 

Q. How did substitutio pupillaris differ from substitutio 
exemplaris ? 

§ 1. A, 1. The substitutio exemplaris might be made 
by the pater-f. or by any ancestor m the male or female 
line. 2. In the substitutio exemplaris the substituii must 
be selected from certain persons (certas personas, § 1), t. e., 
from the children of the lunatic ; and, m default thereof, 
from his brothers ; so that the right of selection was not 
absolute, as in the substitutio pupillaris. 


Q. If a testament has been made with the required 
solemnity (t. 10), by one who had the right and the power 
to make it (t. 12) ; and if the sui hcsredes (t. 13) have not 
been omitted and a fit hseres (t. 14) has been instituted, did 
such a testament always take effect P 

Pr, A, No : it was valid in its creation (jure factum) ; 
but it might be avoided (rumpatur), or become ineffectual 

Q, Are not the words illegal (injustum), ruptum, and 
irritum used synonymously ? 

§ 5. A. Sometimes ; but as it is always better to dis- 
tinguish each thin^ by its own name (§ 5), a testament is 
injustum when void m its- creation ; ruptum when it is 
valid in its creation, but afterwards avoided through some 


cause unconnected with the status and capacity of the 
testator ; irritum when it is avoided bj some change oc- 
tmrring in the status and rights of the testator (§ 4). 

Q. How is a testament ruptum ? 

§ 1. ^. 1. Bj the unexpected addition or birth of any 
hiBres who has not been mstitnted or legally disinherit- 
ed (1). 2. By a subsequent testament, capable of giving a 
new n»res to the testator. 3. By the testator legally re- 
Tokingjone testament without making another. 

Q. Whj do you say that the testament was ruptum by 
a subsequent testament, capable of giving a hteres to the 
testator^ (§1). 

§ 2. A, Because, if the second testament was regularly 
made {jure facto), and valid in its creation, it avoiaed the 
first. If, therefore, causes arising after tiie date of the 
second testament made it ineffectual : if, e. g,, the kareg 
appointed by it refused, or died before the testator ; or if 
the condition on which his appointment as hares depended, 
was not ^Ifilled, the pater-f. in all such cases died intes- 
tate, for his first testament ceased the moment the second 
came into existence, and the second supplied no htsres, 

Q. Did the second testament destroy the first without 
express revocation P 

A. Yes : a person could not die with two testaments, 
because each must contain the appointment of a hares; but 
that disposed of the whole rights of a person, and therefore 
could no more be made twice, than tne same thing can be 
given twice. Now, as the intention of a testator might 
vary until he died, of two testaments, the later in date must 
destroy the other. 

Q. What if the second testament expressly confirmed 
the first? 

§ 3. A, Since it was impossible for the same person to have 
two testaments, the first was held to be extinguished. But 
in order to give the testator's will as much effect as possible, 
the first testament was held to be a codicil (t. 25), and the 
confirmation in the second was construed as a trust, bind- 

(1) T. 18, cmie. Observe that the breaking of the testament, 
by a child being adopted into the family, could not be prevented 
by an ezhseredatio, unless the child had been originally eman- 
cipated by his adopter, so that he was only returning to his 
original family ; but such breaking might be prevented by insti- 
tuting him, for though you could not take from a stranger the 
title of hcBreSy yY)u might bestow it on him by testament. 

160 EXAMINATION IN [B. 2, T. 17. 


ing the Jueres to restore the 1uBredito»ix> those insiitutijm' 
der the first, minus the fourth, which every hteres charged 
with a trust is entitled tahj the extended operation of the 
Falcidian Law (t. 23). 

Q. Was ^e first testament invalidated, when bj the 
second the institutio was confined to a particulw artiole 
(ex certis rebus) ? 

§ 3. A. Yes : because it was a rule to disregard that part 
of an institution which confined it to a particular -article. 

Q. Did a second testament, if imperfect, revoke the , 
first P 

§ 7. A, No : because though it certainly indicated a 
change of intention, still that was not enough to destroy 
an institution : there must be a legal revocation (1). 

Q. How might a testator revoke his testament without 
making a second? 

A, By tearing it np, or otherwise destroying it with the 
intention of dying intestate ; or by declaring his change 
of will publicly, or before three witnesses. Such dedara* 
tion, however, did not instantly revoke the testament, for 
the testament was required to oe ten years old. 

Q. When was a testament inefiectual (irritum) P 

§ 4 A. When the testator suffered a diminutio etyniis^ 

Q. Kthe testator regained his original status before his 
death, did the testament revive P 

§ 6. A. Not by the civil law (2) ; but if the testament 
was then sealed by seven witnesses, the prsetor granted to 
those instituted thereby the possession of goods secundum 

(1) The senate decreed this on the proposal of Pertanax. In 
the same Sc. he declared — 1. That he would not accept an h^ 
reditcu if it was given {litis causa) from hatred to those with 
whom the testator had had disputes, in ord^ that they might have 
a powerful adversary to contend with. 2. That he would not vali* 
date testaments to which he had been instituted, because they 
were null. 3. That he would not he heeres if that office had been 
conferred upon him by mere word of mouth {sx nuda voce), or 
even by writing, unless in the proper form. For, said the em- 
peror, though we are above the laws, we put ourselves willingly 
under them. 

(2) For the testator who changed his status lost his original 
person, his former patrimomum. If he again became sui juris 
he had a new person, a new patrimomum, to which his former tes- 
tament did not strictly apply. As to Postliminium^ B. 2, t. 12i 
as to soldiers, B. 2, t, 11, 


tahulas, provided the testator liad the iestamenti-faoHo, 
both when it was made and when he died, without regard 
to the intervening period (p. 134). 


Q. What is a testamentum inofficiosum 7 

Pr, A. An act is inofficiosum which violates any o^- 
dum or duty arising out of affection, blood, or gratitude. 
Hence, a testament was inofficiostm which, though made 
in legal form, violated natural duty. 

Q. How might children prevent an inofficious testament 
from depriving them of that hareditas to which natural 
affection woula have called them P 

Pr. A. To prevent testators from abusing that absolute 
power of selecting hceredes which the Twelve Tables al- 
lowed, the prud&nUs held that the pater-f. who disin- 
herited, and every other ancestor who omitted, without 
lawful cause, their issue, must be insane, and, under that 
pretext (hoc colore), they introduced the plaint or action 
of testamentum inofficiosum, by which children might 
claim the htsreditas against the insiituti (1), and thus set 
aside the testament in question. 

Q. Why do you say wider this pretext 7 

Pr, A, Because it was only a means of avoiding a valid 
testament ; for had there been actual imbecility, the testa- 
ment would have been void ab initio. 

Q. To whom was the plaint of inofficiositas open P 

§ 1. A, It was open to none, except those who would 
have succeeded, ana according to the same order in which 
they would have succeeded had there been no testament ; 
for they alone had an interest in avoiding it. But, again, 
it was not open to all of them ; it was, certainly, open to 
all the issue, whether subject or not to the testator, whe- 
ther natural or adopted (2) ; but in default of children, it 
was open to ancestors alone, and, in default of them, to 
brothers and sisters. 

(1) The plaint of inofficiositas is therefore an action by which 
a man dainus to be admitted as hares (leffitimus). It was brought 
before the oe§tiumcirs, as were all actions of petOio hareditatis. 
The action was also allowed against tbefldei-commissarii and other 


(2) Excepting, after the time of Justinian, the fiUus-famUias 
adopted by a stranger. 

152 EXAMINATION IN [B. 2, T. 18, 

Q. Was it open to aU the brothers and sisters of the 
testator P 

A. At first only to his brothers and sisters agnati; 
which excluded not merely uterine brothers, but also 
brothers and sisters consanguinei, not bein^ agnati. Jus- 
tinian allowed it to all the orothers consanguinei, without 
distinction : it was not till after 'Nov, 118, which abolished 
all distinction between relations through the father iand 
those through the mother, that the nterini might prefer 
this plaint. 

Q. Did this plaint lie against erery vnstitutus ? 

§ 1. A, Yes, at the suit of the testator's lineal kindred ; 
but it could not be preferred by brothers and sisters, ex- 
cept against instituti tttrpes (dishonourable). 

Q. Was this plaint allowed if the party preferring it 
had any other means of obtaining the whole or part of the 
succession P 

§ 2. A. No ; for it was an extraordinary remedy* Hence 
it was not open to the pupil adrogatus who was afterwards 
disinherited by the adrogator, because the Antoninian 
quarter (B. 1, 1. 11) was secured to him in such a case : nor 
to the emancipated son omitted from his father's testa- 
ment, because ne had the possession of the goods contra 
tahulas (p. 133). 

Q. Prior to Justinian's time, was not a testament some- 
times objected to as inofficious, by a person himself instil 
tuted by it P 

§ 3. A, Yes : such person objected if he was not insti- 
tuted to a fourth of what he would hare had ah intesta^to ; 
imless the testator had expressly directed that the fourth 
should be made up, in which case he was entitled to a per- 
sonal action for the fraction by which the fourth wad 
deficient (1). But, on the other hand, no plaint could be 
preferred by the institutus, if he had received from the 
testator his fourth, though not as hceres; e, g., as legatee, 

Q. What alteration was made by Justinian P 

§ 3. A, Out of regard (§ 6) for the testator, he decreed 
that if a man received anything as heeres or legatee, by way 
of fidei-commissum, or donation mortis causd, he should 

(1) An action to make np the proper Bum {vu^pte ad quartmn- 
legitimcB partis repleatur) is a p^rsonfd action, permanent and as- 
»gnable to the AtBredes, and does not avoid the testament. The 
plaint of inqfflciositas is a real action (a kind of petitio JuBredita^ 
■Ha), not asedgnable to htsredes, and by virtue of which» if brought 
within five years^ a testament is rescinded. 


not be allowed this plaint, but should have an action to 
make np the fourth, even though the testator had not ex- 
presslydirectedit to be made up. 

Q.. *How is this deficient miction of the fourth sup- 
plied P 

§ 3. A, Boni viri arbitratu, i. e,, according^ to the valua- 
tion of the ^oods made by a person of acknowledged fair- 
ness ; and this fraction must make up the fourth of that 
portion of the hareditas which the parly in question would 
nave received had there been an intestacy (1). This fourth 
was called the portio Ugitima, or simply legitima : he who 
claimed it was a legitimarius, 

Q. Was anything given inter vivos reckoned as part of 
the legitima quarta ? 

$ 6. A, Not in general, except indeed in certain cases 
denned by a Constitution referred to (§ 6). The grounds 
of the general rule are obvious ; a party was entitled to 
the plaint in question, unless he had received the fourth 
of tnat which he would have received had there been no 
testament. Now goods given away inter vivos formed no 
part of the successio of the deceased ; therefore they could 
not be included amongst those to which the htBredes legi- 
iimi, as such, laid claim. 

Q. How did the right to a plaint de inojfflcioso cease F 

A, This action being founded upon a kmd of injury al- 
leged by the legitimarii against the testator, who nas dis- 
inherited or omitted them from his will, was extinguished in 
the same manner as other actions for injuries (B. 4, t. 12). 
1. If the legitimarius died without having shown any in- 
tention to urge his claim. 2. If he allowed so much 
time to elapse that a tacit abandonment of the claim might 
be presumed : this period was originally two, and after- 
wards five years. 3. If he directly or indirectly sanctioned 
the testament ; e. g,, by contracting with the nseredes in- 
stituti, as such, or by claiming voluntarily as an advocate , 
or a mandatarius, as against me hseredes instituti, the exe- 
cution of a legacy. 

Q. Was the plaint de inofficioso denied to a tutor 
because, by his father's will, which disinherited him, he re- 
ceived a legacy for his pupil P 

(1) The several fourths, m reference to the testator, make toge- 
ther a sum equal to the fourth of all his goods, which is to he di- 
vided amongst the legUimarii, however many; the share of each 
being proportionate to what each would have taken, if the whole 
h€Breditas legitima had passed to them (§ 6). 


154 KXAHIKATION IN [b. 2, T. 19. 

§ 4. A, No : the tutor might still hATo the plaint on hb 
own behalf, because, unlike the advocate and the manda- 
tarius, he was compelled to claim and receiye his pupil's 

Q. What was the penalty if a man preferred an un- 
founded plaint P 

§ 5. A, He lost whatever the testator left him. 

Q. If a tutor as such preferred this plaint on behalf of 
his pupil» did he lose any legac^r bequeathed to himP 

A, rTo : though the" plaint failed, the tutor might claim 
his own legacy. He was not to be punished for what he 
did in pursuance of what he believea to be his duty. 


Q. After the publication of the Institutes, what altera- 
tions did Justinian make on this subject P 

A, He raised the legitima to half of the successio, when 
the children exceeded four, and to a third when they did 
not (Nov. 18, c. 1). Afterwards it was decreed (Nov. 115, 
c. 3) that the legttima must be left to the children and de- 
scendants as haredes, and that they must be always »««^ 
tuti, if only for a specific thing, which, if insufficient, might 
be made up to the proper amount by an action for the de- 
ficiency : and Justinian defined fourteen causes, hitherto 
undefined, in which a testator would be justified in dis- 
inheriting or in omitting his descendants or ancestors ; 
and he required such causes to be expressed in the testa- 
ment, and that the burden of proving them should be on 
the institutus. Failing these conditions, the testament 
might be rescinded (1), not absolutely, but so far as the 
ifistitutio kceredis went, the legacies and other dispositions 
remaining valid. 


Q. How many kinds of hceredes instituti were there P 

Pr, A. Three: 1. Necessarii; 2. Sui et necessarii; 
3. JSxtranei, 

Q. Define the hceredes necessarii, 

§ 1. A. They were slaves instituted by their master, on 
whom the testament conferred at once liberty and the 

(1) Provided the resdssion was demanded within the proper 
time, and according to proper form. 



htBieditas (1). They were called necessarii, because they 
became heeredes whether they would or not. They did 
not accept the heereditas, but it Tested in them imme- 
diately, on the testator's death, if the institution was 
absolute, and on the condition happening if it was con- 

Q. Were the hsDredes then liable, against their will, to 
be sued by the creditors of the deceased P 

S 1. A. Yes (p. 17) : the heeres was liable to all the 
deots of the deceased, eyen out of his personal goods. 
But the pr»tor relaxed the strictness of the civil law, and 
granted the benefit of separation qf goods to the hteres 
necessarius, who claimed it before meddling with the 
goods of the kareditas. By this means the creditors were 
confined to the ^oods of tne successio, and the hisres ne- 
eessoHus kept his own property free, including eyen what 
was due to hmi by the deceased (2). 

Q. Who were sui et necessarii hteredes ? 

§ 2. A, Those who at the death were subject to the 
power of the person whom they succeeded, either a5 intes- 
testa or by a testamentary appointment. — They are called 
sui because the filii-f., immediately under the power of the 
pater-f., were considered during his life as joint-proprietors 
of the goods of the family (vivo quo^ue patre Domini 
existimantur, § 2) ; so that, on becommg haredes of the 
pater-f., they succeeded to their own goods, and thus be- 
came their own luBredes or heeredes in their own right (sui 
lusredes (3). They are called necessarii, because the de- 

(1) For this purpose it was necessary that the slave should be- 
long to the testator, both when the testament was made and when 
the hareditas vested (§ 4). It mattered not what became of him 
between these two periods (p. 137). When the slave was insti- 
tuted conditionally, and enfranchised absolutely, his liberty was 
suspended until the condition was fulfilled, in order that the slave 
receiving liberty and the hareditas at once, might be hares neces' 
sarins. So, from the same desire to &vour the testator when the 
institution was absolute, and the enfranchisement conditional, the 
former was suspended until the slave acquired his liberty. 

(2) The separaOo was also granted to the creditors of a haredi- 
tiuj for where the hares was insolvent, it was important to sepa- 
rate the goods of the deceased from those of the hares, 

(3) This is the view of Ortolan, and it is supported by a passage 
from Gains (2, § 157). The other interpretation, adopted by Du- 
caurroy and Sandars (p. 312), refers the origin of the term to the 
common usage of suus as a person in the power of the pater-f. 
The sui haredes were those who united the characters of sui, t. e,. 

156 EXjUIIITATIOK IK [b. 2, T. 19^ 

ceased by His power compelled them like slaves to become 
hsredes without exercising any choice. Such at least was 
the civil law. 

Q. Was it so by the prsBtorian law P 

§ 2. A. "No : the prsetor did not regard the diildren a» 
hcBredes until they meddled with the goods of the de^ 
ceased ; till then he refused to the creditor of the hareditaa 
any actioh against the sui haredes who abstained. 

Q. How did the benefit of abstaining differ from the 
separation of ffoods granted to the slave r 

§ 2. A. The separation qf goods had to be claimed by the 
instituted hsres ; nor did that prevent his being liable to 
the creditors of the hsBreditas, so far as the goods left by 
the patron went ; whereas the heneficium abstinendi abso- 
lutely protected the suus hieres, who abandoned the A^ere- 
ditas of the ^ter-f., without the necessity for his claim- 
ing such privilege, and by the mere fact of not meddling, 
after pub erty, with the hareditas (1). 

Q. Who were the extranei or stranger hceredes ? 

§ 3. A, Those not under the testator's power, e, g,, th& 
testator's own children not being unaer his power, 
but instituted by his testament : so also children insti - 
tuted by their mother, because women had no power over 
their children, or slaves instituted by their master, who 
had become free or subject to some other person's power 
before the passing of the hareditas (p. 137). 

Q. Did tnese extranei become hceredes involuntarily and 
by operation of law P 

A. No : the hareditas was proffered (delata) to them at 
the death of the testator, if tne institution was absolute, 
and if it was conditional, on the happening of the condition ; 
but it was acquired by them by an act of will : hence they 
were called voluntary hseredes. 

Q. Were extranet instituti always capable of acquiring 
the hsereditas P 

§ 4. u^. No : it was necessary that the testator should 
have testamenti factio with them ; f . «., that they should 
be capable, if not of making a will, at least of ac- 
cepting a benefit under another's testament, either on their 
own behalf or on behalf of their pater-f. or master (2), 

in the power of the pator-f., and haredes, which no one could be 
unless he was suijwns at the pater-f.'s death. 

(1) Though an impubes did interfere, he retained the henefi- 
cium abstinendi, 

(2) This was the passive, as opposed to the active testamenti- 
factio, by which a man had power to make a will. 


Q. At what periods most the testamenti-factio exist P 

§ 4. ^. 1. When the testament is made. 2. When the 
hsreditas is proffered ; ». e., at the testator's death, if insti- 
tutio is absolute, and if it is conditional, on the condition 
being fulfilled. 3. When the heeres accepts the hsereditas. 

Q. Was it necessary that the htsres instiiutus should re- 
tain the capacity to talce the hareditas between these three 

§ 4. A, If he lost it for a time between the first and 
second, it was of no consequence ; but if he lost it between 
the second and third, his recovery thereof would not avail. 

Q. How did extranet substituti acquire a htsrediias, 
which was proffered to them P 

^. By an act of will, by showing an intention to acquire, 
either by words (verbis) or by acts (re). This was called 
doing the act of a hares, or entering upon the heereditas 
(aditio) (1). 

Q. When was the intention to become heeres shown by 

§ 7. ^. When the institutns acted as htres, i, e,, as 
master of the dead man's goods (veteres enim hceredes pro 
dominis appellabant), as when he sold or let out part of the 

Q. Could a deaf and dumb person accept an kmreditas ? 

§ 7. ^. Yes : by manifesting his intention so to do by 
his acts ; it was enough if he understood what he was 

Q. Might 2i, procurator accept a hsereditas for another? 

§ 7. A, As a general rule the institutns must accept in 
person. Hence no procurator, curator, tutor, pater-f. or 
master of the hares, whether institutus or legitimus, could 
accept or enter upon a hsereditas (3). For the same reason 
the institutus exiraneus who died before accepting the ha^ 
reditas did not transmit to his hsBredes tiie right to ac- 
quire it (4). 

(1) Strictly, pro hcerede gerere applies to the intention evi- 
denced by acts : adire, when the same is evidenced by words, 
Aditio ire ad hareditatem. 

(2) Observe that in every case the intention to be hares is that 
which causes a man to acquire the hareditas. Hence you might 
sell Of let out a part of the hssreditas without becoming bseres, if the 
sale or letting took place by mistake or for temporary purposes. 

(8) But there were exceptions ; «. g,, a'pater-f. might accept the 
httreditas proffered to his filins-f., if absent or an infans ; and the 
tutor might do the same if the pupil was an infant, p. 49. 

(4) But by aConstitution of Theodosius, the descendants instituted 

168 EXAMIKATIOK IN [b. 2. T. 19. 

Q. Was it requisite that the party accepting should 
know the circumstances of the hiereditas pronerea to him P 

§ 7. A. Yes; he must know whether the person he 
claimed to succeed was dead ; whether the condition (if the 
institutio was conditional) had been fulfilled ; and whether 
he succeeded ab intestato, or bj force of the testament. 

Q. Is it possible to acquire only part of a heereditas P 

A. JN^o : the hsBreditas must be accepted or refused as a 
whole ; and if a man accepted part, he was taken to haye 
accepted the whole (1). Tne acceptance could not be con- 
ditional or for a fixed time. 

Q. Explain the effects of accepting a hareditas, 

A, The h€eres on accepting was invested with all the 
rights of the deceased, and continued his legal person. He 
became proprietor of the goods of the hareaitas, and of 
whatever accrued to it (2) ; moreover, he was liable to all 
charges on the successio, i. e,, to the whole amount of them 
if he was the only hisres, and in proportion to his share in 
the luBreditas, incase there were joint-haredes, but the ex- 
tent of liability was quite independent of the value of the 

Q. How might a heeres extraneua renounce the hcereditas 
proffered to him P 

§ 7. A. By expressing his will to that effect. A hcpres, 
after refusing a sticcessio, could not resume it unless he was 
under twenty-five, for then he might obtain from the 
preetor restitutio in integrum, or unless the hEteditas had 
Deen proffered to him by another title ; thus, a person after 
renouncing the keBreditas as institutus, might accept it as 
tubstitutus or as Jkbtcs legitimus. 

Q. Might a person relinquish after accepting an hse- 

by an ancestor, to whose power they were not sabject, might, if 
they died before the opening of the testament, transmit to their pos- 
terity the share intended tot them. Jnstinian decreed that per- 
sons dying during the year allowed for deliberation might trans- 
mit to all their hseredes the right, proffered to them by testament 
or ah intestato f in the snooession of a deceased ancestor. 

(1) Even those portions, added to his own, in consequence of one 
of his co-haredes renouncing or becoming incapable. For each 
hares was called to the whole hcBreditas, and the division was the 
mere result of several hseredes coming in together. 

(2) In one sense, the hares succeeded at the moment of the 
death ; but in another sense, the hareditas of the dead man re- 
presented him tiU the aditio (p. 142). 


^§ 5, 6. A, IN'o : unless lie was under twenty-five. But 
Aonan allowed one above twenty-five to relinquish it if 
he discovered, after acceptance, a considerable amount of 
debt ; and in later times Gordian extended the same privi- 
lege to all soldiers. 

Q. Was any period fixed within which the hnreditas 
must be accepted or renounced P 

A, By the old law, unless the institutio waB accompanied 
with cretio (1), the institutus might take as lon^ as he 
pleased to decide. But on the demand of parties inte- 
rested, e. g., creditors, legatees, or substitutt, the preetor 
limited the time allowed to the hares for deliberation. 

Q. What changes did Justinian introduce, by which 
instituti were relieved from claiming time for delibera- 
tion P 

§ 6. A, The benefit of the inventory (C. vi. 30, 22), by 
wmch a hsBres might accept the hmreditas without being 
liable beyond such charges as the goods of the hareditaa 
would cover, and without having his own goods mixed up 
with those of the deceased ; for this purpose it was neces- 
sary, before meddling with the goods of the deceased, to 
have an inventory or them prepared within the time, and 
according to the form prescribed by the emperor. Justi- 
nian declared, that by this precaution any person might 
accept an h(Breditas without hesitation. "But it was still 
competent for a heeres to demand a period for deliberation: 
by taking that course, however, he could not have the 
benefit of the inventory ; and hence, to protect himself from 
liability to the charges upon the hareditas, he was obliged 
expressly to renounce it before the timb for deliberation 
had expired, which was nine months when granted by the 
magistrates, and one year when granted by the emperor 

(1) That was when the testator had himself fixed a period within 
which the institntus must formally declare his intention to accept. 
If he did not make such declaration within the time fixed, he was 
excluded (Gains, 2, § 164). The cretio was added to an institutio, 
in order to make the heeres accept within a certain period, and to 
prevent the hsereditas from continuing uncertain for an indefinite 
period. After the preetors had fixed a period for deliberation, 
cretio of course ceased ; and it was expressly abolished by a Consti- 
tution of Arcadius, Honorius, and Theodosius (a. d. 4i07). 

160 SXAMINATIOJr IK [b. 2, T. 20. 


Q. What is a le^y P 

§ 1. A. The andents defined it a sort of g^ift left hy 
testament to be discharged by the hares. We say sari of 
gift J because a gift strictly implies the concurrence of two 
wills, donor's and donee's, whereas the legacy is good 
withont the will or even the knowledge of the legatee : 
left hy testament, because there is no legacy unless by tes- 
tament, whereas A^deicommissum may be made without 
testament, by codicnl: to be discharged by the h/Bres, because 
the hieres alone can be charged with a legacy, whereas a 
Jideicommissum may be charged upon a legatee or a fidei 
commissary. — ^After Justinian allowed legacies like ^fidei-- 
commissa to be made by codicil (t. 25), a legacy may be 
defined to be a gift which a man makes by an iict of last 
will of a particular thing out of his successio. 

Q. How many kinds of legacy were there in ancient 
times P 

§ 2. A. Four. 1. per mndicatumem ; 2. per damna- 
iumem ; 3, sinendi mode ; 4. per pr<Bceptumem. Every 
one of these had its own particular formalities. 

Q. Define the legacy per vindieationem. 

A. That which transferred the property in the thing 
bequeathed directly, without imposing any obligation upon 
the hteres : it was so called because it gave the legatee a 
right to the vindicatio or action in rem possessed by every 
proprietor. In it the testator did not address the hseres, but 
the legatee: capito, swmitoj or he addressed no one : do 
lego (Gains, 2, § 196). 

Q. What might be bequeathed in this way ? 

A, Only such things as the testator owned when he 
made the testament, and when he died (2) : for in such 
only could the property be transferred by testament. A 
legacy per vindieationem of any other description of thing 

(1) Justinian, who ia discussiiig the modes of acquisition per 
umversitatem, having explained how the htereditas is transferred 
by testament, ought now properly to proceed to show how it is 
transferred ah intestato ; but he now proceeds to legacies and fida- 
oommissa — ^by which not res vnhersataiis but res singulares are 
aoqtiired — ^because they are the ordinary and most important inci- 
dents of testaments. 

(2) By the Catonian rule (p. 163). In case of res fungibiles 
it was enough if the testator owned them at his death (Gains, 2, 


was void, becaase the testator could not transfer, and the 
hseres was not charged to transfer the property therein. 

Q. What was the nature and form of the legacy per 
damTtationem ? 

A, It was that which bound the hares to give or to do 
something. This was its form : Scares metis damnas esto 
dare; dato, facito, &c. This command to the lueres did 
not directly transfer the property to the legatee : he could 
not, therefore, have vindicatio; but he had a personal 
action against the hares to compel him to transfer the 
property in the bequest, or to do that which the testator 
directed (Gains, 2, S 204). 

Q. What might be bequeathed in this way P 

A. Not only things belonging to the testator, but 
those belonging to the hares, or to any other person : for 
although a testator could not alienate the thmgs of an- 
other, ne might impose on himself or on his haredes obli- 
gations in respect to them. 

Q. What was the nature and form of the legacy sinendi 
modo ? 

A, It merely imnosed on the hceres the passive obliga- 
tion of allowing tne thing bequeathed to be done or 
taken by the legatee. The testator said, e. g. — Hceres 
metis damnas esto sinere Lucium Titium, Sominem Stichum 
sumere sihique habere (Gains, 2, § ^9). This did not 
directly transfer the property, and tnerefore gave no action 
in rem ; but the legatee might acquire the property by 
taking possession of the bequest : he had a personal action 
against the hseres. 

Q. What might be bequeathed in this form P 

A. Only such things as belonged to the testator himself 
or to his hceres. The obligation thus imposed on a hseres 
to allow the legatee to take the thing of another, is merely 
an obligation to suffer something to be done. 

Q. What was the nature and form of \&g^Gj per pra- 

A, By it the testator told the legatee not precisely to 
take the bequest, but to take it beforehand (pracipito), 

Q. What was its effect, and to whom might it be 

A, Opinions were divided. The Sabinians, adhering to 
the strict meaning of pracipere, to take before partition, 
held that the legacy was confined to the instttuii ; for 
they alone made partition, and therefore could take before 
partition; and hence the only action which the legatee 
had was the action for partition; yiz.,familia erciscunda 
(B. 4, 1. 17, § 4). 

162 EXAMIKATION IIT [b. 2, T. 20. 

The Proculeians, considering it unreasonable that the 
syllable pr<B shonld diminiali the force of capere, held that 
any legacy per pneeeptionem to persons not hteredes 
should be deemed to be the same as if made per vindi^ 
catumem ; and this opinion was sanctioned by a Constita- 
tion of Adrian (Gains, 2, § 213). 

Q. How did the differences between these yarioas sorts 
of legacies cease P 

§ 2. A. The Sc. Neronianum (a. d. 60) decreed that the 
legacy per vindicaUanemf if invalid, as snch« by the old law 
(f . e„ ifa testator had bequeathed the thing beloujging to an- 
other, or to his hsres), snould have the same eftect as if it 
had been made per damnationem, Gonstantine abolished 
the necessity of using particular forms ; but that did not 
preyent the distinction being still made between a legacy ^^er 
vindieationem, including all dispositions in which the tes- 
tator showed an intention to immediately transfer the pro- 
perty, and a legacy ^ler damjuUionem, including all in whicli 
Ids mtention was to impose an obligation on his hseres. 
The differences in question, howeyer, were absolutely 
abolished by Justinian ; for he, desiring to give full effed; 
to the intentions of testators, decreed that a legacy 
should be executed in any mode in. which execution was 
possible, and that, without regard to the form of the dis- 
position, the legatee should haye the personal action for- 
merly attached to a legacy per damnationem; and that if 
the tning belonged to ike testator, the legatee should haye 
the mndicaiio formerly attached to the legacy per vindi- 
cationem or per pneceptionem : finally, he allowed the 
legatees a rignt of hypotheca oyer all the goods of the de- 
ceased, and an action in rem, called hfpotheccma or quasi- 
terviana, to enforce it (B. 4, t. 6, § 7j. 

§ 3. But he went further ; for he abolished all distinc- 
tion between legacies and fidei'Commissa (1). 

Q. What things, generally, might be bequeathed P 

A. Only such as could be bought ana sold (in com- 
mercio)- JBut they might be in existence, or about to come 
into existence: they might be corporeal or incorporeal. 
Hence (§7), a person might bequeath the fruits to be 
produced firom certain land, and the children to be bom 
of a slaye. 

Q. Could the thing belonging to a third party be be- 

§ 4. A. Yes : such legacy bound the hares to purchase 

(1) For clearness these two suljects are treated separately. 


it, and to give it to the le^tee, or pay him its valae, if the 
proprietor would not sell it (1). But in such case the tes- 
tator must know that the thing bequeathed belongs to 
another ; and the fact of knowledge must be prored by the 
le^tee demandant. Eor the testator who oequeathed a 
thmg whereof he supposed himself owner, would not per- 
haps have done so nad he known that it belonged to a 
tlurd party, since it is less burdensome for Uie nsBres to 
give up a thing forming part of the suceessio, or his own 
goods, than to purchase the property of another. 

Q. On the other hand, suppose the testator bequeathed 
that which he supposed to belong to another, but which in 
fact belonged to nmiself P 

§ 11. A, Such legacy was valid ; for the burden on the 
hseres was thereby diminished, and the testator's will not 
exceeded (2). 

Q. If the thing bequeathed was subject to a hypotheca, 
was the hseres required to pay off the charge F 

§ 5. A, Yes, if the testator knew of the hypotheca; if 
he did not, it might be exceeding his will to compel the 
hseres to pay it off. But this is a question of intention, 
and therefore a hypotheca -would oe a charge on the 
legatee, if the testator knew of it, and if it was ms express 
intention that it should. 

Q. Suppose something, already the legatee's property, 
bequeathed to him P 

§ 10. A. Such legacy was void ; for no man can acquire 
wliat is already his. !E!yen though the thin^ ceased to be- 
long to the legatee, the legacy was still void ; for by the 
Catonian rule, dispositions which would not have been valid 
if the testator had died on the making of the testament, 
never became valid by his continuing alive (§ 32). 

Q. What if the testator erroneously supposed that the 
thing bequeathed belonged to the legatee P 

§ 11. A, The legacy was valid, because it was not im- 
possible to carry it into effect. 

(1) The thing so bequeathed must be in commercio^ (§ 4), e, ^., the 
legacy of a public building would be void, and the hseres would not 
bo bound to pay the value. For when the thing is tit commercio 
the hseres may possibly purchase, and therefore the obligation is not 
impossible ; but when the thing is not in commercio the hseres can- 
not purchase, and therefore the obligation is void. 

(2) Here, plus valet quod in veriteUe est quam quod in opimone 
(§ 11) ; but in the last oas^pliM est in opimone quam in veritcfte» 

164 EXAXUTATIOK IV [b. 2, T. 20. 

Q. Wliat if a testator bequeathed the property of an- 
oth^, and the legatee became proprietor thereof after the 
making of the testament (1) ? 

§ 6. A. The question would be, whether the legatee had 
acquired by a title importing clear gain, or b}r an onenmM 
title : if by the former, as by gift, he could claim nothing, 
because me law was that dtue caustB lucrativcB do not 
concur in favour of the same person and in respect to the 
same thing ; but if by the latter, t. e., by having given 
•money or money's worth, e.g., by purchase, he was en- 
titled to the price he had pai<L 

Q- What if the legatee received, not the thing be- 
queathed, but the value thereof by title importing dear 

§ 6. A, He might still demand the thing ; for though 
the value of the thing was transferred already, that £d 
not prevent the thing itself from being transferred. 

Or What demand on the hteres had the legatee of the 
land of a third party who hadfirst bought the bure property, 
and afterwards, by extinction of the usufruct, acquired the 
absolute property therein P 

§ 9. A. In stnctness, such legatee might demand the 
land ; but the judex would not condemn we hseres to pay 
more than the value of the land, minus the usufruct, for 
which the legatee had paid nothing. 

Q- Why did the legatee claim the land and not the 
value thereof? 

§ 9. ^. Because he sued on the testament iex testO' 
mento), and that bequeathed the land, not the value 
thereof; but as the judex could not direct the land to be 
transferred to the claimant, for he already had it, he con- 
demned the hseres to pay an equivalent, viz., the value of 
the land, minus the usufruct (B. 4, t. 6, § 31). 

Q. But in demanding the land itself, did not a legatee 
claim more than was Sie to him ; and was he not there- 
fore guilty of plus petitio ? 

t9. A. No : because the usufruct is a mere servitude ; 
a demandant of land was supposed to claim the pro- 
perty minus the servitudes attached to it. 

Q. Might a creditor bequeath to his debtor the debt he 

(1) The text says, oioo testcUore, § 6; but it was the same when 
the acquisition was made after his death. 


§ 13. A. Yes : to bequeath to a man what he owes is 
not to bequeath to him his own property ; for the subject- 
matter of a legacy of acquittance (liberationis) is not the 
property in the thmg due, but the release from a liability, 
and from the right which may be enforced against the 
legatee, in respect to that which is due. Hence, a man 
might either bequeath the acquittance expressly,, or he 
might bequeath to the debtor the thing due (nomen), or he 
might direct his hares not to enforce the claim (1). 

Q. Did the legacy of acquittance at once extinguish the 
debt P 

§ 13. A. No : it only gave the legatee an action where- 
by to compel the hisres to release him by acceptilatio 
(B. 3, t. 29), and an exceptio doli mali to repel any claim 
of the luBres made before the acceptilatio, 

Q. Could a debtor bequeath his dehitum to his creditor P 

§ 14. .^. Such legacy was void, if it included nothing 
more than the debt, because the creditor got nothing by 
it. But if it involved any benefit, the legatee might claim 
it, and the legacy was valid (2y. Thus, if a man bequeathed 
absolutely that which he owed at a certain date or on a 
certain condition, the legacy was valid, because it made 
the debt payable instantly (propter reprcBsentationem). 

Q. If a testator bequeathed that aosolutely which was 
due at a fixed time or on a condition, did such legacy con- 
tinue valid after the time had elapsed or the condition had 
been fulfilled in the testator's life P for thereby the advan- 
tage of the legacy over the oriffinal claim ceased. 

§ 14. A. Papinian held (ana his opinion was adopted) 
that the legacy was valid, because it was once good (quia 
semel constitit), and because the circumstances in quesnon, 
though they would have stopped the legacy in its inception 
had they then existed, ought not to put an end to it after 
it has come into existence, because the legacy is still 
capable of being carried into effect. 

Q. What if the husband bequeathed to his wife the dos ? 

§ 15. A. Such legacy (dos prrslegata) was valid, because 
it gave her a real advantage, inasmuch as the hceredes of 

(1) The testator, instead of an absolute acquittance, might 
direct his hseres not to demand the debt for a certain time; and 
then the exception would be only good for such time, § 13. 

(2) After Justinian's time the legacy implied a charge {hypO' 
theca) on the creditor's goods ; and so it could seldom happen t^at 
the legacy would involve no benefit. 

166 EXAMINATION IN [b. 2, T. 20. 

the husband could not set np against one claiming her 
dos ex testcbmento, i. e,, as legatee, the same exceptions as 
were open when she sned de dote; e.g., exceptions claim- 
ing delay (1), or reimbursement for sums necessarily ex- 
pended on her property (B. 4, t. 6). 

Q. What if the nusband had not received the dos ? 

§ 15. A. The legacy was void if the husband bequeathed 
the dos simply ; but if it was mentioned not as itself the 
subject-matter of the legacy, but as descriptive of a specific 
thing, or of a sum otherwise sufficiently defined ; e. g,, if 
the testator bequeathed to his wife 500 sohdi, or a parti- 
cular house, which he received as part of the dos, the 
legacy was valid. — In general, when a man says : I be- 
queath to A. B. such a sum or such a thing, which I owe 
him, the subject-matter of the legacy is the sum or the 
thing, and not the debt; which f owe him, are words of 
description, which, though not true, do not invalidate the 

Q. What if a testator bequeathed his claim upon a third 
party P 

§ zl, A. Such legacy did not directly transfer the claim 
to the legatee, but it obliged the hsereaes to assign to him 
their actions against the debtor. I say their actions (suas), 
because all the rights of action of the deceased vested in 
the hisredes, who were alone juris successoren. Moreover, 
after such assignment the heeredes were freed from all 
responsibility as to guaranteeing the payment of such 
claim, or as to the results of the action assigned. 

Q. What if, in the case iust put, the testator's claim has 
been extinguished, e.g., by payment to him during his 

A. The legacy perished with the claim, just as it did 
when the thing oequeathed perished ; so that the hceres 
had no action to assign. 

Q. Might not a legacy consist of an order given to the 
haredes to do or not to do some act, or to suffer an act to 
be done by the legatee P 

§ 21. ^. Yes : e.a., a testator might by legacy bind his 
haredes to repair, tne house of the legatee, or to pay his 
debts, and the legacy was valid if the thing was possible, 
and not contrary to the laws or contdi. bonos mores. 

(IJ Hence the dos (dowry) was said to be pralegata, given sooner 
(pro) than it would otherwise have been obtained. 


Q. Besides species (specific things), could a testator be* 
queath genera (classes), as a horse, two slares, without 
specifying them P 

§ 23. A, Yes: the selection, unless the testator ex- 
pressed a wish to the contrary^ belonged to the legatee 
when it was to be made out of things of the same class, and 
part of the heereditas : but when the selection was to be 
made out of things not within the haetreditas, since the 
legatee could not, dj merely selecting a thing belonging to 
a l^d party, acquire the right to the property therein, 
and so to an action in rem for it, he was entitled only to 
a personal action, from which the hssres, being a mere 
deotor, would be entitled to discharge himself by giving 
one thing or the other, according to his choice (1). 

Q. Was it the same to bequeath a class (gentis) and to 
bequeath a choice {optio) of thin^ of the same kind in- 
cluded in the succession P 

§ 23. A, No : to bequeath a horse, a slave, generally, is 
to bequeath a corporeal thing, however undemed ; but to 
bequeath the choice of a horse or of a slave out of those 
which I leave is the bequest of an incorporeal thing ; viz,, 
the right to select; a personal right which can be exercised 
only by the legatee, so that by the old law such legacy of 
an option was a conditional one, and void if the legatee 
died before having exercised it. But the legacy of a genus 
being unconditional, passed to the hseredes of the legatee, 
though he outlived the testator, never so short a time. 

Q. Did this distinction continue ? 

§ 23. A, No : Justinian decreed that the legatee who 
died before choosing might transmit to his hseredes the 
right' to' choose in his stead ; and that if there were either 
several co-legatees or several hsdredes of a single legatee 
who differed in opinion, the one to choose for all should 
be drawn by lot. 

Q. Could a testator bequeath an universiias 1 

T. 23. § 5. ^. Yes : he might bequeath a portion of the 
goods left by him (pms bonorum), or a portion of the suc- 
cession {pars hareditatis). This latter was called ^ar^^to, 
and the legatee legatarius partiarius, 

(1) Observe, the choice is not unlimited : the legatee could not 
take the best thing, nor could he be compelled to take the worst. 
Notwithstanding this limitation, the legacy of an immoveable is 
regarded as uncertain and void, when, from the testator not having 
anything of the same nature with that bequeathed, the choice 
must be in the hseres. 

168 EXAMINATION IN [b. 2, T. 20. 

Q. Was the legatee partiarius in the same position as 
a hcBres appointed (inatitutus) to a portion of the goods P 

A, No : for the legatee partiarius did not represent the 
person or succeed to the rights of action of ine testator 
{non est juris successor) ; he succeeded only to his goods 
{pars honorum legata videtu/r). Therefore he had nothing 
to do with the creditors or with the debtors of the de- 
ceased : they recognized only the Jueres, Hence, when 
the hceres was to share the succession with the legatee, as 
it was just that the latter should derive no benefit till the 
debts were all paid, a stipulxitio called partis et pro parte 
was made between them, by which tney uudertook to 
account for the sums received or paid by the hseres on 
account of the heereditas, of which the legatee had to bear 
his part. Another difference was, that the hseres might 
avoid partitioning the heereditas with the legatee, by de- 
livering to him the valire of the portion bequeathed. 

Q. To whom might a bequest be made P 

§ 24. A, To none except those with whom the testator 
had testamenti'f actio. Now, with certain exceptions (1), 
a person had testamenti-factio with all Boman citzens and 
their slaves. 

Q. Was there testamenti-f actio "^iih. uncertain persons P 

§ 25. A, Not by the old law, for nothing could be left 
to them either as a legacy or as a fidei-commissum (t. 23, 
post) (2), even though the testator was a soldier. Now, 
incerti are those of whom the testator has formed no 
definite idea. Thus, a legacy to kirn who shall give his 
daughter in marriage to my son, or to the first person who 
shall he nominated consul, was void, because made to an 
incertus. But a testator might make a bequest to those 
who were incerti, or unascertained, out of a specific number 
of persons {sub certa demonstratione) ; for instance, who- 
soever of my relations now living shall marry my daughter, 

Q. After a legacy or fidei-commissimi made in favour of 

(1) With certain exceptions, by the lex Voconia, (b. c. 169), 
women could receive only a certain sum. By the laws Julia and 
Papia Poppsea (a.d. 9) persons unmarried till a certain age, per- 
sons married, but without children, could take only a portion of 
bequests made in their favour. Although these restrictions were 
abolished, the Christian emperors still held apostates and heretics 
incapable of being legatees. 

(2) Adrian extended this prohibition to fidei-commissa. Liberty 
could not be left to an incertus, because the Lex Fusia Caninia de- 
creed that slaves should be enfranchised by name. 


an incertas had been paid bj mistake, conld it be reco- 
vered P 

§ 25. A, Ko : the Christian emperors put an end to the 
difference which formerly existed on this matter between 
legacies and fideicommissa. 

Q. What was the law as to incerii in Justinian's time P 

J 27. A, He allowed testators to appoint them hsBredes, 
to leave tiiem legacies and fideicommissa ; but he did 
not allow testators to appoint them testament^urj tutors. 

Q. Were posthumous children regarded as incerti ? 

§ 26. A, X es : but long before Justinian's time the only 
postumi to whom legacies could not be given, and who 
could not be instituti were postumi alieni, t. e , those 
who, had they been bom during the testator's life, would 
not have been subject to him or amongst his sui hceredes ; 
e, g*, a grandson conceived after the son's emancipation. 

Q. But Justinian says (§ 28), that a testator might even 
before his time {et ante jpoterat) institute a postumus 

A, This arises irom confounding civil and praetorian law ; 
for the praetor used to grant possession of goods secundum 
tahulus to any postumus alienus who was appointed 
haeres, though by the civil law such institutio was null. 
According to Justinian, however, it was declared to be 
valid by the civil law, so as to entitle the appointed haeres 
to the hsereditas. There was an exception, nowever, when 
the child was conceived by a woman qwB uxor non esse 
potest ; i, e,, who, though with child by a testator, could not 
nave been his wife. It was not thought right that a testator 
should, by merely instituting, legitimize the fruit of an 
illicit connection. 

Q. Was a legacy to the slave of the hseres valid P 

§ 32. A, Opinions were divided (Gains, 2, § 244), but 
ultmiately it was held to be void if absolute (pwre) in its 
terms, even although the slave-legatee had ceased to be 
subject to the haeres before the testator's death. For by 
the Catonian rule, all testamentary dispositions which 
would be null if the testator died the moment he made his 
testament, continued nuU notwithstanding his surviving. 
Now, in this case, if the testator had died the moment he 
made his will, the slave must have acquired the legacy for 
the haeres and for him alone, because slaves acquired for 
the master to whom they were subject when the legacy 
vested, which in case of an absolute legacy was the day 
of the testator's death; and so the same person would have 

170 EXAMINATION IK [b. 2, T. 20. 

been at once legatee and hseres, which is impossible, for no 
man can be deotor to himself. 

Q. What if the legacy to the slave of the hseres was 
conditional P 

§ 32. A. It was valid if the slave was not subject to the 
hsBres when the condition was fiilfilled, for that was the 
vesting-time of a conditional legacy. The Catonian role 
did not apply to conditional dispositions, or to any legacy 
vesting at any other time than the testator's death. 

Q. Suppose a slave appointed hseres, and a legacy given 
to his master, is that legacy null F 

§ 33. A. "No : even though absolute in its terms {etictm 
sine condiiione) ; but whenever the master acquires the hs- 
reditas through his slave, such legacy becomes null, be* 
cause a man cannot be debtor to himself. TiU then, how- 
ever, the legacy is valid, because the hsereditas may pos- 
sibly be acquired by some other than the legatee, and then 
there would be nothing to prevent the legacy being car- 
ried into effect ; for the naereditas is acquired by the person, 
to whom the institutus is subject when he accepts it, and 
by the order of whom he so accepts it ; or it is acquired by 
the hseres institutus himself, if free at the time of such ac- 
ceptance. Now, even supposing the testator's death to 
happen immediately after the date of his will, there must 
always elapse between such death, which is the vesting- 
time of an unconditional legacy, and the acceptance of the 
h»reditas, a certain period, auring which the instituted 
slave may alter his status, and the status being altered, the 
hsereditais is acquired either for himself or for his new 
master, in which case the legatee would retain his legacy. 
But, on the other hand, a legacy given absolutely to the 
slave of a hseres institutus, must merge in the haereditas ; 
for the institutus sui juris becoming a legatee through 
his slave on the testator's death, must acquire the hsere* 
ditas for himself, and for no other. 

Q. Was a legacy null if the testator made a mistake 
as to the namen, pr€Bnomen, or cognomen of the legatee (1) P 

(1) 2^omen was the general name of the family, or gens : cogno- 
men was the name of the branch or particular family to which a 
person belonged : prtsnomen was the name of the individnal. To 
these was often added the <iffnomen, derived &om some notable 
drcmnstance connected with the individnaL Adopted children, 
whilst they assumed the varioos names of their new fitmfly, re* 
ttdned that of the old one. Thus, PubUtu ComeHus Scipio 


§ 29. A. No. If there was no doubt as to the person 
intended to be designated legatee or hsBres, a mistake in 
the name was of no consequence. 

Q. Did the same rule apply to the misdescription of the 
subject-matter bequeathed r 

§ 30. A, Yes : it was enoughif the subject-matter of the 
legacy was ascertainable, llius, if the testator said : I 
hequeath the slave Stichus, which I bought qf'Seius, the 
legacy was valid though the slave had been bought from 
another, provided it appeared which slave the testator 
intended (1). 

Q. When a testator stated as a reason for giving a 
legacy something which had no existence in fact« was the 
legacy void P 

§ 31. A. No : a wrong reason is even less important 
than a wrong description, because the reason of giving a 
legacy need neither be stated or known, whereas it was 
necessary to point out somehow the thing bequeathed, and 
the person to whom it was to go. Thus, if the testator said : 
I give a legacy to Tititis, for having conducted my business 
in my absence, the legacy was valid, though the legatee 
had not managed the testator's business. 

Q. Was the result the same if the reason was stated as 
a condition ? 

§ 31. J. No : the legacy was invalid unless the reason 
existed. If, therefore, the testator said : I bequeath such 
a piece of land to IHiius, if he has managed my business, 
the legacy was void if Titius had not done so. 

Q. Quid, if the reason alleged for giving the legacy 
was this, that it might be applied to a particular purpose ; 
e. g,, suppose a legacy given that the legatee might build 
a tomb tor the testetor P 

Africanus JEmiUamu, PubUus was the prtBnomen, Cornelius the 
nomen, Seipio tho cognomen (the gens Cornelia having several 
branches) ; AJHcanus was the samame (agnomen) given to Seipio, 
on account (^ his expedition agaiusfc Carthage ; and JEmiliamur 
preserved the memory of his former family, the JSmiUan, which he 
left in order to be admitted to the family of the Sdpios (p. 42). 

(1) It is not the same with the detenninatio (the definition) as 
with the description (demonstratio) of a thing. The determinatio 
contains the characteristic, without which a thing is not the thing 
defined; e.g., if the testator said, I bequeath the horse in my 
stable, or, the 100 soHdi which I have in my coffers, the legacy was 
void if the testator bad no horse in his stable or no money in his 
cofiers ; for he did not bequeath a horse or a sum generally, but a 
thing certain, for which there could be no substitute. 


172 EXUCINATIOK IN [b. 2, T* 20. 

A. In BiLoli case the reason constituted the modus of the 
legacy*; the legatee was entitled to be paid his legacy 
before executing the purposes of the testator, but he had 
to give security that these purposes would be executed by 
him ; and in case they were not, he was bound to restore 
whatever he had received. 

Q. How does a modus differ from a condition P 

A. A. condition generally suspends the vesting of the 
legacy until the condition is actually or substantially (1) 
falfilled. But conditions which consist in the not doing 
something, e, g,, not ascending the capitol, must be 
excepted; for they cannot be fulfUled except by the 
deatn of him on whom they are imposed ; and therefore, 
in order that the legatee may derive some benefit during 
his life, he is held entitled to demand the legacy before 
the fulfilment of the condition ; but at the same time he is 
bound to give security that he will restore, in case of non- 
fulfilment, whatever he has received, together with its 
fruits, or interest. Such security is caHeS Mutiana, from 
the name of its author (B. 3, 1. 19). 

Q. Might a legacy precede the institutio haredis (pp. 
41, 136) F 

§ 34. ^. By the old law, legacies so placed were void, 
because the appointment of the hseres being the very 
foundation of the testament, any disposition prior thereto 
was held to be no part of the testament. So, also, a tes- 
tator could not give freedom to his slave before anpoint- 
ing the haeres. But Justinian, thinking it absura to at- 
tend more to the arrangement of the contents of the 
testament than to the wiliof the testator, allowed a legacy 
or an enfranchisement, even though it preceded the insti- 
tutio, to be valid. 

Q. Gould a testator bequeath a legacnr to take effect 
after the death of the institutus or of the legatee P - 

§ 36. A. By the old law he could not ; for it was re- 
quired that a legacy should be executed by the institutus 
{ab hcerede prtestanda, § 1) ; whereas the legacy supposed 
must have been executed by the b seres of tne institutus : 
and herein levies differed, from fideicommissa, the exe- 
cution of which might be intrusted to the hseredes of 
the institutus, and were therefore valid, though made to 
take effect after his death. A legacy to take effect after 
the death of the legatee was abo null, because it was in 

(1) J. e,, when its fulfilment no longer depended on the legate 
(p. 141). 


fact made to the hierecles of tHe le^tee, who were incerti. 
The same reason applied to fideioommissa of the same 
sort, which were therefore void after Adrian declared that 
they should not be made to incerti (t. 23). But Jus- 
tinian declared such legacies and ftdeieommiisa thence- 
forth vaUd (1). 

Q. Oonld a testator bequeath by way of penalQr 
{pcBHUB nomine) P 

§ 36. A. Not by the old law. Dispositions were made 
nomine pana, when their object was to compel the person 
chiA>||pea with carrying l^em into effect to dfo or not to do 
a particular thing ; as when a testator said, Jff* mv karet 
does not aive hie dcmghter in marriage to Titius, he shaU 
pay ten pieces of gold to Seius, Now, as these dispositions 
were made not so much out of kindness for the person 
who was to benefit by them^ as to punish the person who 
was charged to carry them into effect* they were not con- 
sidered m; subjects for legislative protection. ThereforOi 
whether a testator left a legacy or a fideicommissum-— 
whether he enfranchised a slave or added a h»res nomine 
pcnuB-'Hsadh dispositions were all void, even though the 
testament was that of a soldier, or made in the emperor's 

Q. Did Justinian retain this rule P 

§ 86. A, No. He allowed the testator to impose any 
penalty he pleased for the non-execution of his will, pro- 
vided ne imposed nothing impossible, or contrary to the 
laws or morality. 

Q. After a testament was complete, were there any 
other grounds upon which a legacy might become void 
besides the incapacity of the legatee or the testator P 

§16. A, Yes; it might be revoked* or transferred 
(t.^1) ; or the tiling bequeathed might cease to exist with- 
out the interference of tLe hiei^. 

Q. Suppose a thing ceased to be in commeroio» was 
that equiv^ent to its beine lost P 

§ 16. A. Yes : thus, wnen another man's slave, who 
was bequeathed by the testator, was enfranchised without 
the interfwence of the hsres, the legacy was null. 

(1) § 86. By the old law, a legacy to take effect the day before 
the death was as void as one made to take eflbot the day after the 
death ; bat it was good if made to take eflfiwt the very moment of 
the dentth (B. 8« 1. 19, § 18). After Justinian's time a legacy, to 
take efifect after the death of the hares, was oonditiona], bmaase it 
was uncertain whether such death would or would not happen 
during the legatee's life. 

174 EXAMINATION IN [B. 2, T. 20. 

Q. How if the testator bequeath a slave of his insti- 
tutos who has himself enfiranchised him, or giyen him to a 
third party who has enfranchiBed him ? 

§ 16. A, The hffires continues liable to discharge the 
legacy, and has to pay the value of the slave, even uiough 
the legacy was unknown to him ; for, notwithstanding t£e 
bon4 ndes of the hseres, his act of interference, by which 
it has become impossible to transfer the slave to the lega- 
tee, is sufficient to make the hrares chargeable. 

Q. When a testator bequeathed a feimde slave with her 
children, or a slave ordinarius with his vicarii (1), was 
such legacy nullified by the death of the mother or the 
ordinarius ? 

§ 17. A. Ko : the legacy was held to pass the surviving 
slaves, for each of them was a separate bequest; and 
when several thine^s are included in the same disposition, 
the loss of some does not invalidato the legacy as to the 

Q. How if a testator bequeath a slave with his peculium 
(cumpeculio), and the slave diesP 

§ ii. A. Here the slave is the only subject-matter ; 
the peculium is a mere accessory; so that the slave's 
death must put an end to the legacy altogether. So, if a 
testator bequeath a piece of land properly furnished, or 
land with the working tools belonging to it (fundus 
instructus vel cum insirumento) (2), if the land has been 
alienated, and so the legatee cannot claim it, the legacy 
of the instruments of culture is extinguished. 

Q. Suppose a flock bequeathed, and afterwards reduced 
to a single sheep, can the legatee bring an action in rem 

§ 18. A, Yes : he may sue for all that remains thereof 
{g^uod swoerfuerit) (3). 

Q. Was the legatee of a flock entitled to claim sheep 
added to the flock after the testament was made P 

§ 18. A» Yes : for when a man bequeaths a flock he 
does not bequeath the individual animals, so as to include 
none except those existing when the testament is made, 

(1) OrdMkxrii were those slaves who bad others^ vicarii, as part 
of thnr pecuUwn intrusted to thdr management. 

(2) Fund/us cwn instrumento includes only the things intended 
for the working of the land;/«9M2iw inatrudiis includes everything 
pnt on the land, to make the use and habitation thereof more 
agreeable or convenient. 

(3) Thus, the legatee of a house may, after its destruction, sue 
for the materials and the land. 


but the bequest is of a whole, wHicH may be added to or 
diminished without ceasing to be the same. It is with 
sheep as it is with materials, which may be added to or 
substituted for other materials, and yet the building may 
continue the same. 

Q. It follows, therefore, that although the legatee was 
entitled to nothing beyond what was bequeathed to him, 
still he was entitled to whatever was attached as incident 
to the thing bequeathed, after the making of the testa- 

§ 19. A, Yes : thus, he was entitled to columns or statues 
put up by the testator to ornament the house bequeathed. 
For it is a principle, that the thing bequeathed shall be 
delivered to the legatee in the state in which it is at tiie 
vesting period of the legacy, or, as it is technically ex- 
pressed, cum DIES legati cbdit (I) : so that any addition 
made to it, or deterioration sustained by it l)efore that 
time, was either to the profit or to the loss of the legatee. 
Of additions made after that time, the legatee was entitled 
to such only as arose out of the bequest itself; e. g., by 
alluvio : nor was the legatee charged with any deterio- 
rations except those arismg without the act of the heeres. 

Q. Explam when legacies vest. 

A, As a general nue, a legacy absolute in its terms 
vests {dies cedit) ; i, e., the interest in its subject-matter 
becomes fixed in a certain person when the testator dies. 
A legacy conditional in its terms vests when the con- 
dition is fulfilled. From either period the legatee has a 
vested expectation, transmissible to his hsredes, although 
the legacy does not become payable xmtil the hsreditas 
has been accepted, or until the period (if any is attached 
to the legacy) has expired (2). but there is an exception 
to this rule where the subject-matter of the.leg[acy is per- 
sonal to the legatee, and not transmissible to his hsredes. 
Here it would be idle that the legacy should vest before it 

(1) Dies cedit, "the day advances, or begins," means the vesting 
or fixing of the legacy ; dies venit ; " the day has come," means the 
day on which it is to be paid. 

(2) Property in a Thing bequeathed absolutely is not aoqwred by 
the legatee (p. l66) until the hsereditas has been accepted ; till then 
it is ]^urt of the hsreditas vacans. If therefore a testator bequeath 
a slave, the htereditas vacans, and not the legatee, is entitled to all 
acquisitions made by the slave before the haareditas has been ac- 
cepted. A thing bequeathed conditionallv is the property of the 
hseres until the condition has been fulfillecl. a 

176 SXAMINATIOK IK [B. 2, T. 20. 

becomes due ; and therefore it does not rest until the 
hsereditas is accepted, or the period on which the legacy 
is to take effect has arrived. Such is the case in a legacy 
of usufruct, of U8US, or of habitatio. Such also is the case 
when a legacy is made to the testator's own slave, along 
with a bequest of enfranchisement to him, or along with 
a gift of the slave himself to another legatee ; for such 
legacy, if it vested before the hsereditas was accepted, 
would vest at a time when the slave legatee still belonged 
to the hffireditas vacans, and would be merged in it. 
Hence it was necessary to postpone the vesting of such 
legacy until the hsreditas had been accepted, at which 
time the slave legatee must have become nree or subject 
tc^ another legatee. 

Q. Applying these principles to the legacy of a slave's 
peculium, who was entitled to the acquisitions made by 
such slave between the testator's death and the acceptance 
of the h»reditas P 

. § 20. ui. If the pecuUwn was becjueathed to the slave 
himself, the acauisitions would be his ; for, his legacy not 
vesting till the hesrectitas has been accepted, must include 
all accessions to the peculium till that period, in accord- 
ance with the principle that a Thing bequeathed must be 
delivered over m the condition in which it happens to be 
at the vesting period of the legacy. But if tne peculium 
was bequeathed to a third party, the testator's death 
would be the vesting period of the legacy, and would de- 
termine the contents of the peculium, so that acquisitions 
made by tiie slave after the death would belong to the 
hffires and not to the legatee ; provided always, such ac- 
quisitions did not originate in the peculium itself {ex rebus 
peculiarihus), as the progeny or slaves, the young of 
animals, or alluvio, &c., but were derived from the slave's 
industry or &om some other source. 

Q. When a testator enfranchises a slave, does he thereby 
beaueath to the slave his peculium P 

9 20. A. No : in case oi an enfranchisement inter vivos, 
the pecolium is included, simply because he is allowed to 
carry it away (d non cuiimatur) ; but in case of an enfran- 
chisement by testament, no such tacit gifl can bfipresumed. 
Hence the slave enfranchised by testament, cannot demand 
his peculium from the hsredes, unless it has been be- 
queathed along with his liberty. 

Q. Is the intention to bequeath the pecxdium to the en- 
franchised slave ever implied by circumstances, where it is 
not expressed P 


§ 20. A. It may be implied : as where a slave has been 
directed not simply to render his account, but to pay the 
balance or a fixed sum out of the peoulium ; for here the 
surplus is obviously left to him. 

Q. Is the slave, to whom a peculium has been be* 
queathed, entitled to recover what he has spent on ac- 
count of his master P 

§ 20. A, "No : although the peculium is an universitas, in- 
dudine things corporeal and incorporeal, and consequently 
debts due to the slave by a stranger or the master himself, 
st^l Severus and Antonmus held that the bequest of the 
peculium should give the slave no right to claim back any 
money spent on account of his master, though the peculium 
would be so far diminished ; unless ihe testator ezprefsly 
made this part of the bequest. But in every case the en- 
franchised slave may set off sums spent by him against 
those spent by the master on account of the peculium. 

Q. May not the same thing be bequeathed to several 
persons P 

§ 8. A, Yes : either jointly (conjwnctim), thus : I bequeath 
my house to Titius aiid Semprontus, or separately {dtsjunc* 
tim), thus : after saying, I bequeath my house to Titius. sup- 
pose I add, I bequeath the same house to Sempronius, In 
the first case the thing is bequeathed only once : in the 
second case, it is bequeathed as often as there are le- 

Q. What is the effect of bequeathing the same thing to 
several persons? 

§ 8. A. According to the old law, the thing bequeathed 
per dum/nationem was due by the hesres as orten as it was 
bec^ueathed. If, therefore, it was bequeathed separately to 
Titius, and then to Sempronius, the hteres was bound to 
giive the whole to both ; but this being physically impos- 
sible, he had to deliver the value thereof to one of them. But 
if the same thing was bequeathed once only to Titius and 
Sempronius jointly, the hffires was bound to give only a 
half to each of them ; and if the one could not or would not 
take his share, the heeres was discharged as to him, with- 
out his liability to the other being either increased or di- 
minished. Each co-legatee who took had his own share 
and nothing more (1). 

(1) A legacy per damnationem created a mere debt. Now it 
was a rule that ST debts doe to a creditor were assigned by him to 
several persons jointly, they were divisible of right. It was the same 
thing, then, as if each person had recdved his own share ; and there 


178 EXAMINATION IN [b. 2, T. 20. 


A thing bequeathed per mndiccUianem or perjprtBcep' 
tionem (which transferred the property) could not oe 
bequeathed more than once, for no man can alienate his 
property more than once. If, therefore, there were several 
legatees of the same thing, whether named jointly or 
separately, they could only come in jointly ; but ii one 
refused or was incapable of taking the legacy, the other, 
if there was no co-legatee, might bring his aption in rem 
for the whole. 

Justinian having abolished all distinction between the 
different legacies, laid down the general rule, that a thing 
bequeathea to several persons, whether conjointly or sepa- 
rately, should be divided if several came in together ; and 
that if any one of the legatees could not or would not take 
the legacy, the whole should belong to the others. 

Q. Under Justinian, then, was the condition of legatees, 
whether nominated ^o»»^^ or separately, alike P 
* A, No: when one Thmg was bequeathed to each of 
several legatees separately, the whole was in fact be- 
queathed to each. When a partition did take place, it was 
a matter subsequent, and the mere effect of the legatees 
coming in together. So that when the incapacity or re- 
fusal of one co-legatee left the other sole legatee, that 
other, in taking the whole, did not so much receive an ad- 
dition as avoid a diminution or decrement Hence he could 
not restrict himself to the portion he would have had if 
the co-legatee had come in with him, rejecting the por- 
tion of such co-legatee : but he was required to take the 
whole, without, however, being sul^ject to any of the 
charj^es imposed by the testator on the legatee who had 
dechned. On the other baud, when one Thing was be; 
queathed to several legatees jointly, one of them became 
entitled to the whole by addition or accruer (proper) in 
case the other proved incapable or renounced ; tor the one 
Thing had been given only once to co-legatees, and there- 
fore each of them originally had a part of this one Thing. 
He who remained sole legatee, therefore, might refuse the 
share of his co-legatee who failed to take, but he could 
not accept it, unless he accepted subject to the charges 
upon it (C. vi. 51, 11). 

was, therefore, no accruer or jus accrescendi. But it was difibrent 
with a right in re, which when granted to several persons con- 
tinued nncUvided, and gave rise to a necessary unity among the 
possessors of sach right until actual partition. Henoe, the legacy 
per vindicaHonem was the only one to which the jits cuxres- 
cendi attached, when one of several oo-legatees fidled. 


Q. Did the jus (icorescendi operate from person to per- 
son, or from portion to portion ? 

A, Portion accrued to portion. So that when one of 
seyeral co-legatees died after a legacy had vested in him, 
his portion, transmitted after death to his heeredes, was 
increased by all the other portions not accepted by his 
co-legatees (cadtica), p. 214. 

Q. How does the jtis accrescendi operate when there 
are several legatees, joint as between themselves, but 
separate in respect to one or more legatees P 

A, Co-legatees constitute a single person ; so that the 
portion conferred on them is subdivided between them 
alone, and does not pass to the other legatees, so long as 
any one of such joint legatees remain, if, therefore, a tes- 
tator bequeathed the same thing, 1st, to JPrimus and Se^ 
cundus jointly ; 2nd, to Tertius alone, 3rd, to Quartus and 
Qs^tn^tf^ jointly, the failure of Secundus would benefit Pr»- 
nms alone. Again, on the failure of Q,U€Mrtu8 and Quintus,^ 
one-half would go to Tertvuus, the other to JPrimus and ^- 
cundus, who would divide it between them. 

Q. You say, that collegetarii are joint or separate, ac- 
cording as they appear in the same or in different dispo- 
sitions ; now, is there not one point of view in which both 
these collegetarii are joint P 

A. Yes : legatees, to whom the same thing has been 
bequeathed, are said to be co-legatees in every case. 
They are co-legatees re et verbis when the same Thing 
has been bequeathed to several by a single disposition ; 
and co-legatees re or re tantum when the same Thing has 
been bequeathed to each of several separately. 

Q. Is there any third class of collegetarii ? 

A, Yes : those called joint verbis tantum when a Thing has 
been bequeathed by a single disposition, but a certain por- 
tion has been set apart for each, as thus : / bequeath such 
Apiece of land to Titius.and Sempronius, each to have half. 
Here each portion must be regarded as a separate bequest. 
Hence there is no unity of interest between joint legatees 
verbis tantum, and consequently no ground for applying 
the Jus accrescendi as between them ; the portion of the 
legatee who does not take must so to the hares. But it 
is different where the testator, by defining the portions, 
does not intend to make distinct legacies, but to regulate 
beforehand the mode in which a legacy to several shall be 
carried into effect in case the several co-legatees come 
in together. In order to ascertain, therefore, whether 
there is ground for the jus accrescendi, we have to see 

180 XXAMINATIOK IN [b. 2, T. 20* 

whether the testator, by defining the portions, intended to 
point out how the le^;acT should be oivided, in case the 
legatees divided it in met, or intended the division of 
the legacy into shares to be part of the disposition itself. 

Q. Was not the law as to the jus aecrescendi (p. 178) 
modified P 

A, The laws Julia and Fapia Fopp»a (passed in An- 
gnstos's reign), under the name of Laws as to eadhica, 
made great changes on this subject. In favour of marriage 
and the increase of children, they decreed that unmarried 
persons {cogl^es) should be incapable of receiving any 
thing by testament except from a near relation (1) ; and 
that married persons, without children (orln) should be 
incapable of receiving more than half of the dispositions 
made m their favour. Those goods which would otherwise 
have come by the civil law to the calibes and orbi were 
called caduca because they dropped (as it were) from the 
%ands of those who were called to take them (caducum wp^ 
pellatur, veluti cecidit ah eo, Ulp.). A^ain, as to testamen- 
tary dispositions, which, though valid in their creation, 
ultimately failed by the ndes of the civil law, e, g,, because 
the legatees had died before the testator or refused the gifb, 
the Lex Fapia Foppaea excluded such from the effects of 
the jus accrescendt, and subjected them to the same rules 
as applied to bona caduca ; they were said to be in causd 
cadud (2). The following were the persons to whom h<yMi 
caduca or dispositions in causd caduct passed. The lex papia 
poppesa assigned them to those instituti or to legatees in 
the same testament who had children (poises). oMt as the 
same wiU might contain several persons having children, 
the law Foppsea declared that bona caduca should go to, 1,, 
the co-legatees (of the failing legatees), not merely re et 
t^^^M, but also (singularly enough) verbis tantum{d) ; 2, the 
hares institutus ; 3, the legatees, though not joint ; 4, 
and lastly, failing any with children, the treasury. In 
later times Caracalla preferred the public treasury to any 

(1) The law Fftpia Poppsea did not apply to descendants or an- 
cestors, te the third degree at least. 

(2) Dispositions void in their creation {j^o non scripUs) were 
not affected by the law Papia Poppsea and continued to be go- 
verned by the old rules as to ihQJus aecrescendi, 

(3) Co-legatees re tantum, probably claimed goods c<tduea, not 
by the^ic^ caduca vindicandi, but by their own inherent right, and 
because there were no joint-daimants. 


The rights thus conferred on the hsredes, or legatees 
having children, b^ the special provisions of the Lex Fa- 
pia Foppsa, oonstitute a peculiar chapter of law known as 
jus caauca vindicandi, which was one mode of acquiring 
property ex leae. Lastly, we may observe that, to increase 
the chances of goods becoming caduca, the law F. Foppiea 
required the legatee to be alive, and capable of taking at 
the opening of me testament apertcu tabulas, which period* 
and not the testator's death, came to be the dies cedebat, 
i, e,, the vesting period of an unconditional legacy. 

Q. Had not the effect of the laws as to caduca ceased 
even prior to Justinian (p. 178) P 

A. Yes, the Constitution of Caracalla destroyed the privi« 
leges attached to parentage, by substituting confiscation 
for the jus caduca vindicandi. One of the sons of Con- 
stantine restored to ccBlibes and orbi their right to lega- 
cies, and Justinian expressly abolished the system of ca- 
duca, by a special Constitution, in which he re-established* 
the principles of the^'tw accresoendi, as above explained (1). 



Q. How are legacies revoked P 

A. By the mere will of the testator : whereas the ap- 
pointment of a h€dres can only be revoked according to 
legal forms (p. 150). Eevocation is express when the 
intention to revoke is stated in terms, or implied when 
proved by circumstances. 

Q. Is a legacy always revoked bv implication by a tes- 
tator selling the article bequeathed P 

A, The mere sale does not revoke a legacy, for a tes- 
tator may bequeath the property of another (2); besides 
the sale, there must be the intention to revoke (3). Thus, 

(1) I, e,, when solemnly unsealed and read to those interested. 
The terms eaducUas, and dispositioiis cadnca (lapsed), w^ gtill 
used, bat denoted every disposition which, valid at its creation, 
became void by subsequent events, e, g., the premature death of 
the legatee, or his refusal of the legacy. 

(2) It is dear that, by the old law, a legacy per vindicationem 
was null, if the thing bequeathed did not form pejrt of the testator's 
estate at his decease. 

(3) Hence a legacy would be revoked if such were the testator's 
intention, by alienation, although the alienation were void, and al- 
though the article aHenated were repurchased. 

183 SXAMUIATIOH DT [b. 2, T. 21. 

a legacy oontinnes yafid if the testator has sold, not 
Tohintaril J, bat firom neceesity. What is trae aa to tlie 
alienation of a Thing beq[iieamed is also tme of a Hung 
pledged : for there is no revocation, nnless snch be the 
'testator's intention. — Bat wheneyer part of a Thing 
beqaeathed has been alienated or pled^red, the I^acj 
holds ^od for the residue (B. ^ t. 20, §12). 

* Q. W as an implied reyocation yalid by the ciyil law 
(ipso jure) P 

A. No ; bat the action by the legatee was repeDed by 
the exeoftio doU allowed by the pnetor to the hseres. 

Q. How was an express reyooeddon madeP 

Pr. A, Either by the testament which contained the 
legacy, or by a saiMeqaent codiciL By the old law, the 
reyocation was reqaired (1) to be in terms the direct 
contradictory of those giving the legaiqr (do, lego; nan 
do, non lego) ; and in this respect legacies differed from 
fideicommissa, which might be revoked by any words. 
JostiniaD assimilated leeacies to fideicommissa, and so 
made a legacy revocable by any words. 

Q. Might the revocation be conditional? 

A, Yes : and then the legacy was, in fieu^ a conditional 
one — ^the condition being just the reverse of that on 
which the revocation depended. Bat the Catonian rule 
still applied (p. 163) ; for a revocation, though it might 
Gurtail, coold never increase the chances of the legatee. 

Q. Could a testator transfer a legacy from one person 
to another F 

§ 1. A. Yes ; thus : Ihequeatk the slave Stiehus, whom 
Ikave bequeathed to Titius, to Seius. Legacies were 
transferred either by the same testament or by a subse- 
quent codicil. 

Q. What was the effect of transferring a legacy P 

A. The first legacy was annulled, and a second was 
created — ^both effects bein^ independent of each other. 
Thus, although the revocation of the first legacy was void, 
e, g., by the premature death of the legatee, ithe second 
legacy might oe valid ; so also the invalimty of the second 
legacy did not prevent the revocation of the first. 

(1) At least by the dvil law ; for the pnetor allowed the httres 
the exceptio doU, though the revocation was not strictly formaL 



Q. By the Twelve Tables, could the testator exhaust the 
whole of his estate (patrvmonium) ia leg^aciesP 

Pr. A, Yes : In this respect he had absolute power, for 
the Twelve Tables. said, uti legassitstUB ret, itajus esto, 

Q. What inconvenience followed P — ^what remedies were 
attempted ? 

Pr. A, The heredes imtituti having no interest in 
accepting a hareditas if exhausted by legacies, ire- 
quently renounced it, so that the testator died intestate 
and the legacies were void. A remedy was therefore 
required, S>t the sake even of testators themselves. 
Hence tiie Lex Furia (1), which forbade almost every 
one to receive by legacy or donatio mortis causd more 
than 1000 asses. But tms law failed ; for a testator, by 
multiplying the number of legatees, might still exhaust 
the whole of his estate : hence the L^ Voconiat which 
prohibited the testator bequeathing to any one more than 
the sum left to the instituti. But this law also failed; 
for by distributing his goods amongst a great many lega- 
tees, none of whom received more than the institutus, uie 
testator had the means of indefinitely diminishing the 
benefit attached to a hesres institutus. Then came the 
Lex Falcidia (a. u. c. 714), by which a testator was prohi- 
bited from bequeathing in legacies more than three-fourths 
of the hsereditas, so that the hseredes together, whatever 
their number (sive unus hcs-res sit, siveplwres), should have 
one*fourth of the testator's goods. Tnis reserve-sum was 
called, after the law which created it, quarta falcidia, or 
the falcidian fourth. 

Q. When there were several instituti by testament was 
each entitled to one-fourthof his portion of the hsereditas, 
without regard to the legacies charged upon the other 
instituti P 

§ 1. .4. Yes : for suppose the testator appointed two hee- , 
redes, Titius and Seius, and exhausted or charged to excess 
the portion of Titius, without charging Seius at all, Titius 
was entitled to retain, out of the legacies with which he 
was personally charged, as much as would secure him in 

(1) The lex/«na testamewtaria, which must not be confonnded 
with the lex furia or fusia Ccminia, restrictiiig the freedom of tes- 
tamentary enfranchisement (B. 1, t. 7), was passed A. u. c. 571, 
and the lex Voconia a. u. c. 585, on the proposal of the tribune 
Voeonius Saxa, 

184 xxAMaAnon is [b. 2, t. 88. 

one-foiiiili of liis portion of tiieluereditas; nor did it matter 
tliat Seiiu had the fourth ot the whde hsrcdiCaa. for the 
nlimlatioii ci the Uridian law i^^ied to eadi hsrea 

Q. Hov ia it when two portiona of the iteredUtu, the 
one amrdiaiged with legaciea, the other not charged at aO, 
or charsed with leaa tuan one-fiDurth, are united hy the 
effect of the/«# aee r t t ee m dit 

A. There ia a diatinetion. If the portion charged with 
legadeaaocme to the portion not chained or undercharged* 
the foorth is dedncteafirom each portion, but if the portion 
not charged at alL or nndereharged, aocnie to the poriaon 
aurdliarged, the fourth ia deducted from the whc^, n>r thia 
is a clear benefit to the portion charged. — ^The ftlddian 
fourth ia deducted from the whole luereditaav when the 
different portiona axe united in the aame person by a sub- 

Q- How is the sum of the hsreditaa made up, in order 
to calculate whether the legaciea eoQwed three-fourths there* 
ofP HowiaitYaluedP 

§ 2. A, Thia sum total is made in> of erer^thing cor- 
pOTeal and incorporeal included in tne hsremtaa at the 
testator's death. Debts due to him are yalued as assets, 
according to the solyency of his debtor. Debts due on 
a condition are yalued at the sum for which they may 
be sold. To these are added all debts from which the 
hsres, as debtor to the deceased, is discharged by the oem- 
fusio arising from the hseres being also debtor. 

The yarious items of this sum total are to be reck<Hied 
at their fair yalue, taking as the basis their condition and 
price at the testator's d^th. 

Q. Is any account taken of the changes which may haye 
affected the hsereditas, by way either of increasing or di- 
minishing its yslue since the testator's death P 

§ 2. ^ . ^o. The legacies must be reduced if they were such 
as to exhaust the hsereditas at the testator's death, though 
it may be afterwards so much increased by acquisitions 
made through slaves of the luereditas, or by the increase 
of animals, £c., that the hasres might haye his fourth, eyen 
after deducting the whole of the legacies. On the other 
hand, the legacies must be paid in frdl unless they exceeded 
three-fourths of the hsDreditaa at the testator's death, what- 
eyer losses such hsDreditas may afterwards sustain (1). Ob- 

(VS Bat, if a apecifle ITUnff bequeathed to a legatee has been 
loft by aoddent» tiie hteretJB not bonnd to pay him its yalue. 


serve, however, that the hsres, by renouncing, annuls the 
testament and all the legacies incident to it, and thus the 
leeatees are interested in arranging with the institutus 
when the goods have been deteriorated before the here- 
ditas has been accepted, so as to prevent the hsres re-* 
nouncing the hsereditas (1) as unprofitable. 

Q. Before calculating the falcidian fourth, ought not 
certain deductions to be made from the sum total of the 
goods P 

§ 8. A. Yes, viz,t the debts of the deceased (2), the funeral 
expenses, and the value of the slaves enfranchised, and of 
those whom the heeres is bound to enfranchise. The re- 
sidue forms the net sum out of which the hesres retains 
one-fourth. If the legacies exceed this net sum we must 
first deduct the excess, and then make the falcidian 
reduction. Such reduction affects all the legatees indis* 
criminately, in proportion to the value bequeathed to each 
of them (3). 

Q. Are the sums received by the hsres institutus from 
the testator, except those received by him as hsreSf 
reckoned part of this falcidian fourth P 

A. No: it includes neither gifts made to the hares 
during the testator's life, nor legacies, nor trusts (fideioom- 
missa), made in favour of the heeres, so far at least as re- 
gards the sum to be contributed by his coh»redes; for as 
to the portion of the legacy with which the heeres has to 
supjply himself, such portion becomes part of the share to 
which he is entitled as heeres, and is received by him as 

Q. Does the lexfalcidiaredvuie the legacies directly P 

A. "No : it simply entitles the heeres, u in possession of 
the goods, to set up the exceptio doli against tne legatee, to 
the value of the fourth ; and in case the legatee detains 
the thing bequeathed, because, e, g,, the testator may have 
placed it in his hands as a deposit or commodaium (loan), 

' ■! I III I I ■ 

(1) When the instituti, being also haredes legUimi, renotmoed 
the appointment in order to take the saccession ab intestato, and 
to relieve themselves firom executing the intentions of the deot^EMedj, 
the prsetorian law allowed the legatees and fideioommissarii an 
action against them (B. 8, 1. 11, Nov. 1. c. 1). 

(2^ Bond ihUUiffwntiAr qua deducto ttre alieno tupersufd, 
(3) Bnt there are exceptions, as when the testator directs an 
addition to be made to a legacy of that by which it is reduced ; 
the whole reduction is, in such case, to be made from the other 

186 EXAMINATIOK IN [b. 2, T. 23. 

the hsdteB may demand it back, or even brms; an action in 
rem for that portion of it which he is entitled to deduct. 

Q. If a hseres dischared the legacies without claiming 
the benefit of the lexfalcidia, could he claim back the 
sum paid in excess of the three-fourths P 

A. By the old law the hseres could not by action claim 
back anything paid by mistake, even though it was not 
due ; but fideicommissa discharged by mistake, might be 
claimed back. After legacies were assimilated to fidei- 
commissa, it is probable that by the Constitution of Gor- 
dian (C. vi. 50, 9,), as to fideicommissa, the hseres claim 
back anything paid, through a mistake in fact, to the 
legatee if it was not due, but he could not claim back 
anything paid knowingly or through an error of law. 

Q. Was the falcidian law applicable to the testaments of 
solcUers P 

A. No. 

Q. Could the testator forbid, the fourth being retained P 

A. I? ot before the Novella of Justinian ; even renuncia- 
tion by the hseres, before the testator's death, of any benefit 
under the lexfalcidia was void ; but by Nov. 1, (c. 2, § 2), 
the falcidian fourth could not be retained when the tes- 
tator so expressed his intention; and even when the 
testator did not directly prohibit its being retained, 
the hseres could not retam it unless he had made an in- 
Tentory, because it was presumed that there would have 
been no necessity for applying the falcidian law unless 
something had been abstracted: Nav, in the absence of 
an inventory, it would seem that the hseres was bound to 
pay the legacies in full, although they exceeded the full 
yalue of the hsereditas. 


Q. What was the origin o{ fideicommissa ? 

Pr. A, It often happened that a Eoman citizen desired 
to benefit, by an act oi last will, some person with whom 
he had no testamenti-factio, or one who could receive only 
a part of what was left to him (I). In order to attain this 
end, a plan was adopted of appointing a hseres, or naming 
a legatee capable of succeeding, requesting him at the same 

a — 

(1) For instance, a pereffrinut, an unmarried person, and, before 
Hadrian, an incertus (p, 168). 

B. 2, T. 23.] THE INSTITUTBS OF J178TINIAN. 187 

time (1) to transfer to the party really to be benefited, the 
whole or a portion of the h^reaitas, or of the legacy. Such 
were the wnt Jideicommissa. Neither hseres nor legatee 
was bound by the civil law to carry such requests into ef- 
fect, which were thus intrusted to their sense of honour 
and good faith (Jideicommissa) ; but in course of time 
Augustus desired the consuls to see to the execution of 
fidetcommissa. The interference of these magistrates, 
which was both just and popular, gradually became a re- 
gular jurisdiction, and it was not long before a special 
prsetor, called prator fideicommissarius, was appointed to 
decide oasesjlcteicommissa extra ordinem (B. 4, t. 6). 

Q. Was the power retained of making dispositions, under 
the form o^ fideicommissa, in favour of persons incapable 
of being appointed hsredes, or of receiving legacies P 

A* No: such power was from time to time modified, 
until the principle was established; that the same capacity 
was required in order to receive the benefit of Skfideicom' 
mitsum, as to receive the benefit of a legacy (2). Never- 
theless, fideicommissa continued exempt from most of 
those strict rules of the civil law, to which legacies and 
institutiones haredum continued subject (3). 

Q. It being important to distinguish a legacy from a 
Jldeicommissum, explain the distinction. 

A. It lies in the terms used by the testator. A legacy 
must be given (legis modo et civilihua verbis (4) by the for- 
mulffi appropriate to the aurpose ; a disposition expressed 
in any other terms walR Jldeicommtssum. But when 
Constantine did away with the necessity of using tech- 
nical forms, it became difficult to draw the distinction. 

(1) Justmian says that, ongixiSLllj, fideicommissa were not ob- 
ligatory, because no one was bound to carry the request into 
effect. It is more accurate to say, that the t^tator made use of 
precatory words because he could not command the thing to be 

(2^ Such was the general rule in Ulpian's time. 

(3; Thus, whilst legacies could only be made by a testator, and 
charged only on the hares institutus, fideicommissa might be 
made even ab intestato, and charged on all those who, though not 
fuBredeSf had received something from the deceased (other <£stinc- 
tions, pp. 160, 168, 172). 'Hiefideicommissum did not immediately 
transfer the property, nor give an actio in rem : it only imposed 
an obligation and coiderred a right of actio in personam (condictio). 

(4) Ulp. (Reg. 25, 1) defines it : quod non civiUfms verbis sed 
pracative relinquitwr : nee ex ri^ore juris civiUs proficiscitur, sed 
ex voluntate datur relin^[uentis. 

188 bxjlmikation ik [b. 2, t. 23. 

This, of course, induced Jiutinian to put legacies on the 
same footing as fideioommissa, and to assimilate their re- 

Q. What things might be given by fideicommismm 
or trust (1) P 

A. Particular things (t. 24), or wnwersitates of rights 
and actions. 

Q. A trust might therefore include the whole or only 
a portion of the hesreditasP 

S 2. A, Yes : and such Jideicommisgum might be given 
eitner by testament or ab tntestato (by codicil)^ (vide t. 25, 
post) (2). If a person meant to dispose of the whole or 
of any portion of his htereditas in favour of a fideiconimis* 
sarins (cestui que trust) (3), his course was to appoint a 
h€Bres (4), and to direct him to make a transfer of it 
{restituere) to the person designated. Thus, after saying, 
LttciiM Titius htBres esto, he would add, Soffo te, Luci 
Titi, ut cum primumpoteris hareditatem meam adira earn 
Caio Seio readcu, restituas. Moreover, the fideicommis^ 
sum, though it included the whole hcereditas, might be left 
unconditionally or conditionally, or to take effect after a 
time certain (p. 140). 

Q. How was the restitutio of the res hareditaruB 
effected P 

A, It was completed before delivery ; for the h»res, by 
merely consenting, divested himself or his rights as hceres 
over the Things in question, in fasour of the cestui que trust. 

Q. Did the hcsres cease to bineiuch after the hsereditas 
was transferred to the cestui que trust P 

§ 3. A, No : he continued hares ; but the cestui que 

{VS I shall use these words as synonymous. 

(2) The power to impose a trust on hsredes ab iwtestato seems 
contrajy to the prindple that no one is boond to give up what he 
has received : for the haredes leffitimi may be said to receive no- 
thing from the deceased but from the law. Bnt observe, the de- 
ceased has in fact made a gift to the hsredes legitimi by not ex- 
dading them : tacitly, but really,^he makes them his haredes. 
Hence he who could not make a will could impose no trust on his 
JuBredes legitimi, for they succeeded by mere operation of law. 
Legacies, unlike fldeicammissa, required a testament {nisi ex tes- 
tamento, § 10) ; and though ffiven by a oodidl, such codicil had to 
be confirmed by a testament {vide, tit. 25, post). 

(S) L e,, he for whose benefit the trust is made (p. 49). 

(4) For if there was no hares institutus to the testament 
the trusts it contuned were null. Compare § 2 with § 10. 


trust, thoagh not a Tueres (proper) , was assimilated in some 
cases to the hseres by the Sc. IVebellianum, and in other 
cases to a legatee partiarius, by the Sc. Pegasianum. 
' Q. Explain the nistory of the law in this matter. 
A» Formerly, the hteres transferred the hsereditas to 
the cestui que trust by a fictitious sale; and then the 
cestui que trust was regarded neither as a hseres nor as a 
legatee paHiarvus, but as purchaser of the hsereditas 
(Gains, 2. 252J. Now the vendor of an hsereditas did not 
divest himselr of the character of hares, which was inde* 
libly stamped upon him ; he could do no more than trans- 
fer the benefits and burdens incident to him as hseres. 
Hence he alone continued liable to the actions brought by 
creditors and legatees, and was alone entitled to bring 
actions against debtors to the hsereditas ; but the hseres 
and the purchaser entered into mutual guarantees in the 
form of stipulations empta et vendita heereditatis, to 
secure to the cestui que trust all moneys received by the 
hseres, and to secure the hseres repayment of all moneys 
paid on account. Such were the stipulations between the 
hares fiduciarius (trustee) and the cestui que trust. 

Q. What inconvenience attached to tins mode of res" 
tUutio ? 

§ 4. A. It often happened that the hseredes, unwilling 
to continue liable to the creditors and legatees, and at the 
same time fearing lest the insolvency of the cestui que 
trust should defeat their right to be reimbursed, refused 
to accept the hsereditas, which refusal annuUed the tes* 
tament. Hence the Sc. TrebelHanum (a. d. 62), which 
decreed that after the transfer of the hsereditas, in obe- 
dience to the trust, all the actions which bv strict law 
[jure civili), lay by or against the hseres, shoula be brought 
by (1) or against the transferee or cestui que trust. 
idence, after this Sc, the cestui que trust took, in fact, 
the place of hseres. 

Q. Had this Sc. the effect of compelling the hseredes to 
accept the hsereditas P 

§ 6. A, No ; whilst it secured the hseredes Ifrom all risk, 
it gave them no benefit beyond that which was reserved to 

(1) These actions were called (§ 4) utiles, for the oestni que 
trust was not the hseres proper; though direct actions might 
still be brought against the resHttUor, who was the hseres proper, 
they' were barred by the excepUo resHtuta haredUatis aQowed 
by the Sc 

190 EXAMINATION IN [b. 2, T. 23. 

them by the testator. Hence those institnti who were 
bound by the testament to transfer the whole, or aknost 
the who^e hsBreditas, revised to accept it, since the benefit 
to them was nothing, or next to nothing : consequently 
they were authorised to retain a fourth out of the fidei- 
oommissa either of univerHtates or of specific articles, 
just as in case of legacies by the falcidian law. This was 
the leading provision of the Sc. Pegasianum (a. b. 73). 

Q. When the haredes retained a fourth by the Sc. Pe- 
gasianum, did the right to bring actions and the liability 
to answer the same, originally attached to the hseres, pass 
to the cestui que trust P 

§ 6. A. No ; this Sc, as it allowed the hseredes to 
retain a fourth, left them capable to sue and liable to be 
sued ; thence the cestui que trust was regarded not as a 
hffires, but as a legatee partiariua; and the stipulations 
between the hseres and the legatee partiarius were used 
as between the hseres and the cestui que trust, who re- 
ceived the hsereditas ; i. e., the hseres and the cestui que 
trust contracted mutual engagements, in the form of sti- 
pulations i^aWM et pro parte, to share the profit of sums 
received from debtors to the hsereditas, and the loss occa- 
sioned by sums paid to the creditors of the deceased. 

Q. Did the Sc. Pegasianum contain other provisions 
as to fideicommissa P 

§ 6. A. Yes ; by it, if the institutus refused (recuset) 
to accept the hsereditaus, alleging doubts as to the amount 
of the incumbrances on it, the preetor might, on the 
demand of the cestui que trust, compel him to accept and 
to transfer the hsereditas, without retaining anything ; 
but the actions were brought by or against the cestui que 
trust, as if the case had been under the Sc. Trebellianum. 
In this case the operation of both Sc. concurred. 

Q. Did the Sc. Pegasianum repeal the Sc. Trebel- 
lianum P 

A. No : but they applied to different cases. 

Q. When did the Sc. Trebellianum apply P 

§ 6. A. It applied, and consequenUy the cestui que 
trust occupied tne place of hesres; 1. When the amount 
which the institutus was bound to transfer did not exceed 
three-fourths of the hsereditas (1) ; 2. When the institutus, 

(1) Here actions were brought both by and against hares and 
certui que trust in respect of their separate portions, viz. against 
the hsres by the civil law, and against the cestui que trust by 
the Sc. Trebelliannm. 


not wishing to accept tbe hsBreditas for himself, accepted 
it by the praetor's direction, at the risk of the cestui que 
trust; 3. Lastly, when the hseres, not wishing to retain 
anything out of a hsereditas which he had voluntarily 
accepted, expressly declared that he transferred by the 
Sc. Trebellianum. 

Q. When did the Sc. Pegasianum apply P 
§ 6. A, When the trust included the whole, or more 
than three-fourths of an hsereditas, which the institutus 
voluntarily accepted and transferred, minus his fourth, 
or even without retaining the Pegasian fourth, unless, 
indeed, in such last case, he declared that he trans- 
ferred such hffireditas by the Sc. Trebellianum. If there 
was restitutio under the Sc. Pegasianum, of three-fourths ^ 
of the hsereditas, the cestui que trust was considered 
legatee ^ar<*arttt«, and the stipulatio partis et propc^te 
was used ; but if, instead of three-fourths of the hsere- 
ditas, there was restitutio of the whole, the cestui que 
trust was deemed a purchaser, and the stipulatio empta 
et venditcB hareditatis was used. 

Q. Did not the intricacy of these rules and the incon- 
venience arising from the stipulations (1) of the Sc. Pe- 
gasianum, induce Justiaian to simplify the restitutio . 
(transfer) to fideicommissarii P 

§ 7. A. Yes : he abolished the Sc. Pegasianum, or, rather, 
combined the provisions of both laws mto one, which con- 
tinued to be called Sc. Trebellianum. By this new law the 
hseres, who voluntarily accepted the hsereditas, might retain 
one-fourth thereof (2) without being made liable to any 
charges beyond those attaching to such portion of the 
hsereditas, the right to bring actions, and liability to answer 
the same, being transferred to the cestui que trust, in pro- 
portion to the value of the part of the hareditas claimed 
oy him. If the h€Bres refused to accept the hsereditas, he 
might be forced to do so, and to transfer it entire, at the 
risk of the cestui que trust. 

(1) Justinian says that the inconvenience of these stipnlations 
was felt by the ancients, and that Papinian declared them cap- 
Uoscu, For in the series of actions and aceounts to which they 
gave rise, each party was exposed to the danger of the other beii^ 

(2) Justinian allowed the hcsres to recover any sam beyond the 
three-fotirths paid through mistake (of fact) to the cestui que 
tniflt. — P. 184 applies here as to valuation and reduction. 

192 BZAMINJLTIOK IN [b. 2, T. 23. 

Q. Was the hseres appointed to a portion of an hffire- 
ditas entitled to deduct a proportional part thereof, as the 
h»refl appointed to the whole was entitled to deduct the 

§ 8. il. Yes : it mattered not in this respect whether 
the hseres appointed to the whole hereditas was requested 
to transfer the whole or a part thereof, or whether the 
heres appointed to a portion of an hereditas was requested 
to transfer the whole or a part of such portion. The same 
rule appli ed to both oases (p. 183). 

Q. When a testator, instead of leaving the fourth to 
the institutus, reserved to him one or more specific ar- 
ticles, e, g., a piece of land, a sum of money equal in yalue 
' to at least a fourth of the hsreditas, bj which of the Sc. 
was restitutio made ? 

§ 9. il. By the Trebellianum, just as if the fourth had been 
reserved ; m both cases the cestui ^ue trust was hco Iub- 
redisy and he might bring, and was liable to answer, all ac- 
tions incident to the hsemlitas. But there was this differ- 
ence : where the testator had reserved the fourth of ^e 
hereditas, the hseres and the cestui que trust were entitled 
to bring and liable to answer actions according to the share 
which each of them had in the hsereditas, just as if they 
had been no-higredes; but where the testator had reserved 
to the hffires certain specific things, the hseres held them 
as legacies (quasi ex legato), and not as a portion of the 
hsereditas, and therefore the right to bring and theliabiUty 
to answer actions, was with the cestui que trust alone. Since, 
therefore, these specific things might exceed in value the 
residue of the successio after payment of debts, it was 
for the cestui trust, who had alone to answer the charges 
on the hsereditas, to consider whether he should accept or 
refuse the proposed transfer (an expediai Mi restitui). This 
law was retained by Justinian. 

Q, If the specific things reserved for the hseres were less 
in value than the fourui, what was the position of the 
hseres P 

A. He might demand a sum to make up his fourth, by 
the Falcidian law applied to fideicommissa by the Sc. 
Pegasianum, the rules of which governed the case (p. 190). 
But aQ;er Justinian's time the actions were divided between 
the cestui que trust and the hseres, who took an aliquot 
part of the hsereditas (§7). 

Q. Were the hseredes ah intestato entitled to the same 
deduction as that allowed to the insiituti f 

§ 10. A. Though the Sc. Pegasianum did not authorize 


any deduction to be made out of the fidei-commissa, except 
in favour of the in^ituti, the same benefit was afterwards 
extended to the le^timi. 

Q. Could a cestui que trust be himself required to transfer 
to another cestui que trust P 

§ 11. A. Yes : and the hereditas might thus be trans- 
mitted by a series of transfers ; but the cestui que trust, 
charged to transfer the hsreditas to another, could not re- 
tain the fourth, eyen when the hseres had not retained it ; 
because, e, g., he had accepted in compliance with the pr»- 
tor's order, and at the risk of the cestui que trust. For 
the only object of allowing the hares to retain a fourth was 
to secure a hsres for the deceased ; hence this retention 
was allowed only to persons who were capable of being 
hseredes, and of continuing so. 

Q. Was a cestui que trust entitled to retain the falcidian 
fourth out of the Ugaciea ? 

A. Yes : because he was only liable to pay the legacies 
as hsres. 


Q. Upon whom m^ht the charge of executing a trust in 
respect to a specific thing be imposed P 

Pr. A. Upon any one of those who had received any- 
thing from the deceased, e. g., a legatee ; but hsBredes 
alone could be charged with legacies. This rule, like that 
which made it impossible that legacies should exist ab in- 
testato, continued after legacies were assimilated to fidei- 
commissa. Hence the disposition which a legatee was 
charged to execute, was not properly a legacy, but after 
Justinian's time it was consiaered as a fidei-commissum, 
and, as such, produced its peculiar results. 

Q. Mention the specific things which may be disposed 
of by way of trust. 

§ 1. w4. Whatever may be bequeathed by the legacy ^cr 
damTKttionem of the old law. Tnus, a person may dispose 
by way of trust, not merely of his own property, but of 
that belonging to the hseres, or to any other person. If a 
person dispose, by way trust, of the property of another, 
the trustee is bound to purchase and aeliver the thing, 
or to pay the value thereof. 

Q. Then a pei^on may be charged as trustee, to transfer 
something different from what he has received as legatee, 
or as the first in a series of cestui que trusts ? 

§ 1. ^. Yes : the only rule is this : — The legatee or the 


Id4 sxAXiiTATioir ur [b. 2, t. 24^ 

fint cestui qne tmgt miut not be charged to transfer more 
than he has reeeiyed, for a tmat would be null aa to 
the excef a {quod ampUus est inuiiUter reUnqmt'mr). But 
if the thing to be transferred belongs to the trustee, he 
cannot, after haying accepted the disposition made in his 
ikyonr, get rid of execatmg the whole trust, whateyer its 
extent, because he mnst oe taken to haye deliberatdy 
estimated his own goods as of less yahie than what hie 

Q. May freedom be giyen to a slaye bj means of a tmstP 

§ 2. A. Yes : by cmirging the hsres, a legatee;, or a 
cestui que trust, with his enfranchisement. ^Hie testator 
may thus enfranchise a slaye belonging to himself, or to 
the trustee, or to any other, but a testator cannot confer 
liberty directly on any slaye, unless the slaye belong to 
him, both at me time of mating his testament and at his 
death (1). 

Q. What was the effect of a trust by which the trustee 
was charged to enfranchise the slaye oi another? 

§ 2. A. The trustee was bound to buy (redimi) the 
slaye, and to enfranchise him. But as the master was not 
bound to sell (2), his refusal to do so at a fair price did 
not extinguish ^e trusty but simply put off the execution 
thereof until an opportunity occurred of purchasing tlie 
slaye and enfranchismg him. 

Q. Mention the most ordinary forms in which trusts 
were couched. 

§ 3. ^. J^eto, rogo, volOfmando,fidei tu4B oommiUo, The 
terms injungo, impero, were also used. 

Q. These expressions, eo^, mjv/nao, impero, areyeryim- 
peratiye, and yet the texts assert that trusts were couched 
m precatory, not in imperatiye terms^ like legacies. 

A. It is to be obsenred that the legacies expressed the 
imperative will of the testator, and uiat the yerbs used 
were also in the imperatiye mood. Thus legacies were in 
this form : — damnas esto, sumito, capito, &c. ; but in ease 
of a Jldei'eommiwum the indicatiye was used. The only 

(1) When the testator oonfened liberty directly on his slaye^he 
was freed by the testamoit itself; the testator, i. e., the deeeiMdy 
was his patron : benoe the name libertus oreimu. But whan the 
testator charged a trustee to grant freedom, the skve was freed 
not by virtue of the testament, bnt by manuaiission ezeeuted by 
the trustee. Hence this slave's paiaron was not the deoeMed, bat 
the trustee who manumitted (p. 96). 

(2) Unless he had received something from the deceased. 


ground, therefore, upon whioh the testator ooold be said 
to use the precatory form of exoression was this, — that he 
did not use the imperatiye mooa. 

Q. Were the forms mentioned by you peeoliarly ap- 
propriated to the creation of trusts P 

A, No : the testator had only to express his will by 
some' sign or other. Hence Justinian decreed that trusts 
might be created verbally or by writing, provided it was 
done, before five witnesses. 

Qi Was a trust created before less than five witnesses of 
any efieot P 

T. 23, § 12. A, Justinian allowed the cestui que trust 
in every case to tender the oath to the person whom he 
charged with the trust. If he refused to swear that no 
trust had been imposed upon him, his refosal was deemed 
an admission, ana involved his condemnation. But the 
defendant might first of all require the demandant to 
swear that he was acting bondHde, and not on mere fri- 
volous grounds ; and iMs is what Justinian calls de cd- 


Q. Define a codicil. 

A. A codicil is an act by which a man expresses his last 
will without using, and cfeliberately intend^g not to use, 
the solemnities peculiar to a testament (1). 

Q. What was the origin of codicils P 

fr. A, Certainly, prior to Augustus, codicils were not in 
use. Lucius Lentulus first introduced both fidei-commissa 
and codicils. For, djring in Africa, he wrote codicils, which 
were confirmed by a testament, and in them he requested 
Augustus to undertake the execution of a trust. The 
emperor fulfilled his will ; and, other nersons following 
his example, executed trusts with which tney were charged 
by codims, and the daughter of Lentulus herself paid 
legacies, though in strictness of law invalid. It is said 
that Augustus convoked the ^at jurists, and amongst 
them Trobatius, at that time m hiffn repute, in order to 
consult them whether codicils should be admitted, and that 
Trebatius convinced the emperor of their advantages, 
chiefly because it might often happen that a man on a 

(1) An intention to dispose by codicil must appear, so that an 
imperfect testament is not a valid dispomtion. 


196 BZAMINATIOir IS [b. 2, T. 25. 

journey would be able to make a codicil when it might be 
utterly impossible for him to make a testament. And 
afterwards, when the jurist Lubeo made codicils, no one 
hesitated to admit their validity. 

Q. Might the hsereditas be disposed of in a codicil P 

§ 2. ^. ^o : and herein codicils differed essentially from 
testaments. By codicil a person could neither give nor take 
away the hcBreditas, nor could he, by adding a condition 
or expunging it, change the mode in whidi the haereditas 
was oisnosea by testament. But we must be imderstood 
to speaK only of the hsereditas proper ; for the hareditas 
Jidei'commissaria, which conferred neither the name nor 
the rights of a hseres proper, might be left by codicil like 
any otiier trust. 

Q. Is any other person besides one who has made a tes- 
tament competent to make a codicil P 

§ 1. ^. Persons dying intestate may leave codicils. 
But no one can legally make a codicil who cannot legally 
make a testament. 

Q. Were codicils revoked by a subsequent testament 
wherein thev are not confirmed P 

§ 1. A. Papinian said that codicils anterior to the testa- 
ment were valid only so far as the testator expresidy con- 
firmed them. But the emperors Severus and Antoninus 
held it sufficient if the testator did not show any intention 
to revoke the dispositions contained in the codicils (1). 

Q. Did codicils confirmed by a testament subsequent or 
anterior thereto, enjoy any particular advantage P 

A, Yes : codicils confirmed by testament were deemed 
part of the testament. Hence a person by such codicils 
might revoke or transfer a legacy, or enfranchise a slave 
directly (2) ; whereas by codicils not confirmed, nothing 
but trusts could be created. 

Q. When there was a testament, did the fate of the co- 
dioils depend on it? 

A. Yes : the failure or nullity of the testament nullified 
the codicils. In this respect codicils, whether confirmed 
or not confirmed, were on the same footing. 

(1) CodicilB sabsequeat to the testament never required con- 
firmation. But it often happened that a testator confirmed be- 
forehand any codicils he might afterwards make ; this Lentnlus 

(2) But by them no dispositions oonld be made as to the hiBre- 


Q. Could one person leave sereral codicils P 
§ 3. A, Yes. A testament always indaded the whole 
hffiredLtas, and therefore oould not co-exist with any pre- 
ceding one. But if there were seyeral codicils, each miffht 
relate to different subject-matters, and the last revoked 
only such of the dispositions in the preceding codicils as 
were irreconcileable with those which it contamed. 
Q. In case of codicils was any solemn form requisite P 
§ 3. A, Originally none ; but under the emperors of Con- 
stantinople they were made subject to certain forms. Por 
(C. 6, 36y 8) a codicU was required to be made at one time, 
eitiier verbally or in writizie, before five witnesses sum- 
moned for the purpose, or Brought together by chance. 
If the codicils were m writing, the witnesses were required 
to put their marks thereto {subnotationem suam). 




Q. Whbk does the h»redita8 pass ah intestato ? 

Pr. A, A. person dies intestate, 1. When he has made 
no testament at all, or one which is iire^ar or void {rum 
jure factum) ; 2. When a testament yahd in its creation 
has become invalid {rwpUim irriiumve), or has been set 
aside as inofficious ; 3. When the testament is abandoned, 
because the htsres institutus has not appeared. 

Q. Explain the system of the Twelve Tables as to sac- 
cession ab intestato. 

§ 1. A, The Twelve Tables called as saccessors, 1st, the 
sut hisredes of the deceased ; 2nd, his a^nati (2). 

Q. Was this system continued until that of the No- 
velise P 

A. Yes : but bj that time the prsetoiian law, senatus 
oonsulta, and Constitutions had introduced into ihe orders 
of sui h€Bredes and asnati some who were originally ex- 
cluded from both. Moreover, the prsetorian law granted 
the possession of^oods to a third class, called cognati (3). 

Q. We shall discuss, therefore, 1. Bui hceredes pi^pei^ ; 
2. Those ranked with them bj the praetors; 3. Tnose 
ranked with them by the Constitutions. First, who were 
sui hisredes jpro^er P 

§2. A, Sui hcsredes were children (4) under the pa- 
ternal power of the deceased at his death, and first in 
degree m the family when the succession arose (5). Thus, 

(1) StsredUates which pass ah intestato are called legitinuB, 
beeiause they pass directly (lege) by the law. 

(2) 8rd, the gentiles, the members of a larger family than the 
agnati (Gai. 3, 17). Justinian omits them beoiiise they no longer 

S Perhaps the prsetor replaced the gentiles by the cognati. 
Children both natural and adopted, and, by the new law, 
legitimised children (§ 2). 

(5) /. e., who would have been mider the immediate power of 
the deceased when the succession arose, if the deceased had then 
been living. 


grandchildren, if they and their father wiere under the 
grandfather's powers were not his sui Juoredes, because 
mey would rank afber the father in the family, so that he 
would be the swus hares, 

Q. When does a successio ah itUestato arise P 

§ 2. il. Wheneyer it is ascertained that there will be 
no nesres by testament. Now it is certain firom the time 
of death tliere will be no such heres if there is no valid 
testament. There is no such Qertainty until after the 
death, if the deceased has left a valid testament which may 
call ahffires into existence ; in the latter case, ihen, a suc- 
cession does not arise until the existence of a testamentary 
hieres has become impossible, either by the h»res insti- 
tutus renouncing or for some other reason. 

Q. Might not the grandchildren, who became subject 
to their father on the grandfather's death, become sui 
haredes of the grandfather F 

§ 7. A, Yes : as where the grandfather disinherited by 
testament his son, and appointed a stranfi;er h»res in his 
stead. The grandchildren, on the deau of the grand- 
father in whose family they ranked after the father, be* 
came subject to the father ; but if their father afterwards 
died, and the hssres appointed by the grandfather was 
either unable or unwilhng to accept the hsereditas, it 
passed to grandchildren directly, because nobody ranked 
oefore them when the succession arose, and because, had 
the grandfather then been alive, they would have been 
under his immediate power. 

Q. Might such grandchildren be sui Jutredes of the 
grandfather, though not bom during his life P 

§ 2. 8. A, To be conceived during the grandfather's life 
was enough ; for grandchildren on being conceived became 
members of the grandfather's family, and thenceforth sub- 
ject to his power ; the being bom after his death was of 
no consequence. 

Q. Could a grandchild conceived after the grandfather's 
death ever be suus hares ? 

§ 8. A. Never: because he was never allied to his 
grandfather by any tie of relationship (1) ; and therefore 
the mere fact that the one is descended from the other 
did not connect him at all with the hareditas (non sunt 
quantum ad hareditatem liberi). As then a person, in 

(1) § 8. Hence he could not claim the possessio honorum (unde 
cognati) granted by the prsetor to the nearest coguati. 

200 EXAMINA.TIOK IH [b. 3, T. 1 

order to be a ktfres legiiimv* mast be in ezistenoe when it 
is ascertained that there will be no hieres by testament, so, 
on the other hand, he most have existed, t. «., been con- 
ceived before the death of the de a^tu. Hence the ktBres 
feneral of a man will always be a person livine at his 
ecease ; and his suiu hteres a person not only liying at 
his decease, but then nnder his power. 

Q, Bnt does not Justinian pnt a case in which a person, 
though not subject to the deceased at his death, was still 
tuu8 h(sre8 ? 

§ 4. ^. Yes : when a filius-f. returned from 6aptiyity, 
after the death of the pater-f., whose suns hseres he became, 
though not, in fact, subject to such pater-f. at his death. 
This, however, was no real exception to the general prin- 
ciple; for if the filius-f., without being subject to the 
pater-f. at his death, became his 9uus Xueres, it was by a 
legal fiction ; according to which the filius-f. was sup^ 
posed never to have been a captive, and therefore to have 
Deen subject to the pater-f. at the time of his death. 

Q. On the other nand, was it possible for children who 
were under the direct power of tne pater-f. at his death 
not to be sui haredes f 

§ 5. A, Yes : e, g., if the pater-f. was adjudged after 
death guilty of high treason (perduellio), by which his 
memory was condemned. For then his succession went 
to the public treasury ; he could have no suus luBres, or 
rather, sons already 9u% htsredes were divested of that 
character. These results followed from the fact that the 
charge of high treason took effect against deceased persons, 
and the judgment against the memory of the culprit dated 
back to the commission of the crime. Thencetbrth such 
culprit was considered civilly dead, and divested of the 
paternal power, so that his children then became sui 
juris, and could not at his death become sui haredes of their 
father, who, leaving neither haereditas nor h»res, coidd 
be succeeded only by the Jiscus (1). 

Q. Amongst descendants subject directly to the power 
of the deceased, did those of a nearer exclude those of a 
more remote degree from the succession P 

§ 6. A, No: they were all called to the hcBreditas. 
Thus the son or the daughter did not exclude the children 

(1) In general, those who suffered nuunma or media d. c. never 
had any hmredes. The goods of a pater-f., deportatus, or jpoNMS 
serous went to the flscas. As to slaves, (t. 12, post). As to Lex 
Cornelia, (p. 129). 


of a deceased son ; but these children stood in pkce of 
their father, 

Q. Was the diyision into equal portions P 
§ 6. A, No: the mndsons or the ^eat-grandsons 
shared between them me portion of the ancestor in whose 
place they stood. For a hsereditas may be divided among 
sui haredes in one of two ways : Ist. JPer daoita, or one 
share to each; i.e,, the property was diviaed into as 
many equal shares as there were sui haredes, if they 
were all of the first degree ; or, 2nd, if the sui haredes 
were of a lower degree, the heereditas was divided p&r 
stirpes ; i, «., descendants of a lower degree shared oe- 
tween them the share of the filius-f. whom they repre- 
sented, each child of the first degree being considered as 
a siirps or stem of the various branches of descend- 
ants. Thus, if one of two sons died leaving children, these 
children would succeed to half the hereditas ; the other 
son to the other half. So, if both sons died before the 
pater-f., and one left two children, the other four, the 
hfiBreditas was divided into two ; one for the two children 
of the first, the other for the four children of the second 

Q, How was the hareditas legitima acqidred by the 
sui haredes ? 

§ 3. A. It was acquired (1) at the moment the succes- 
sion arose {dekUa), independently of any will, consent, or 

Q. Who were reckoned sui haredes by the pratorian 

§ 9. A, Though by the civil law children who were not 
under the power of their deceased father at his death, 
and who were therefore not bound to him by any civil tie 
((MTtaiio), were not sui haredes -pro]^!, still the prsetor 
admitted such children to share in the successio if, on the 
death of the de cujus, they were still citizens, under no 
stranger's power, and not members of a stranger's fanuly. 
Thus ne admitted as successors of a pater-f. an emancipated 
SOD ; he admitted, as successors of tne grandfather, grand- 
children conceived after their father's emancipation (2) ; 
he admitted as successors of the emancipated son the 
grandson who was conceived before the father's emanci- 
pation, though he continued under the power of the 

(1) Like the hsereditas testamontaria (p. 156), 

(2) Provided their fiither was already dead; for grandchildren 
do not succeed their grandfather except in de&nlt of their father. 


202 EXAMINATION IN [b.3jT. 1. 

frrandfather ; and the same benefit was Becnred to the 
child who had sofifered the media or nuueima diminnUio 
capitis, when snch child was afterwards restored to its 
position as citizen. 

Q. Were such children called bj the pr»tor heeredes f 

6 9. A. No : for that title belongs to snch children only 
as have it by the civil law ; but the preetor granted them 
the possessio honorum unde liheri, as if they had been 
sui nesredes proper. Hence, then, sui haredes proper suot 
ceeded only to a portion (pro parte, § 9) of the haredifae, 
for they were obliged to share it with those whom ihe 
praetor appointed to the possession of the goods uride liberie 

Q. Were not the children who, by the prsdtorian law, 
were allowed to share in a succession from which the civil 
law would have excluded them, bound to make some con* 
tribution P 

A, Yes : by sharing in the goods of the family, as if 
Ihey had never ceased to be members thereof, thebe ohil* 
dren derived all the benefits of acquisitions which were 
made by the other children who continued under the 
power of the jpater-f., by which acquisitions, of course, 
the property or the faxnily, was increased ; it was therefore 
right that the children admitted by the prsetorian law 
should carry to the account of the family property such 
goods as thev had at the death of the pater-f., which 
goods would nave been acquired for him if they had never 
ceased to be under his power (1) ; and this was called the 
collatio bonorum (bringmg the goods into hotchpot) (D, 37, 
t. 6). 

Q. Did the pr»torian law, when it granted the posses- 
sion of goods unde liheri to the emancipated son ezdudo 
the grandchildren who continued under the power of the 
grandfather, and had taken the place of their father in 
the family P 

A, Yes : this necessarily followed from the fiction, ac- 
cording to which the emancipation was considered null* 
But by a provision which Salvius Julianus added to the 
edict, the grandsons who continued under the power of the 
grandfather were admitted to share equally with their eman- 
cipated father in the portion which, according to the old 

(1) They did not bring to the account peculiwn castrense or 
quasi ceu^enae, nor, according to the new law, snch goods 9tB would 
have formed ptut of the peculmm adventicium, because, if the chil- 
dren had never ceased to belong to the family, these goods would 
have continued their own property (p. 112). 


edict, would have gone entire to him ; and these grandsons, 
being the only persons in such case prejudiced by the pos- 
session of goods obtained by the father, were therefore the 
only persons with whom he made a oollatio honorum ;-^ 
this was the only case in which ^grandchildren came in 
along with the father as partakers in the succession of the 

r Q. Did children given to be adopted (qui in adoptionem 
se dederunt, § 10), or emancipated children who had become 
adrogati, obtain the possession of goods unde liheri in the 
succession of their natural father P 

§ 10. A. No : they were not considered bv the prsetor 
sm Aaredes, if still members of their adopted family at the 
time of the natural father's death ; for it the prsetor found 
them members of an adopted family, he was obliged to 
give them the same rights m the succession of the adopted 
father as natural chudren had therein: nor could he 
consider them as belonging to two families at once(l). 
But as it was onlv their being members of another familv 
at their father's death which nindered them from succeea- 
ing to him, the prstor admitted them as sui JuBredea of 
such natural father, in case their adopted father emanci- 
pated them before their natural father's death (2). 

Q. Why was it required that their emancipation should 
precede ilie death of their natural father ? 

§ 10. A, Because if their adopted father had had the 
power, by emancipating after the death of the natural 
father, to confer rights in the succession of the latter on 
the adopted children, he would have possessed the unjust 
power of leaving^ the hsoreditas to the agnati of such natural 
lather, or of taking it awav- from them at his pleasure. 

Q. Gould the person adopted, when emancipated by his 
adopter, claim in the succession of the adopter the posses- 
sion of goods unde liheri ? 

%\1, A. No : the child emancipated by its natural father 

(1) He could only grant them the posseadon of goods unde 
cognaii in the third degree ; that is, filing m hcsredes proper, 
or considered so by the prsBtor, and agnati (§ 18). 

(2) The emancipation of adopted children entitled them to be 
admitted by the prator to a share in the succession of their 
natural father, because it put them not only out of the power of 
the adopted father, but quite excluded them from the adopted 

204 EZAMIKATION IN [b. 3, T. 1. 

. was allowed to olaim in his suoceBsion the possession of 
goods unde liberi, because, notwithstanding the dissolution 
of the ciyil bond, he was still united with his natural father 
by ties of blood, — still the child of the person whose familj 
he had left ; but when an adopted child left the adopted 
family, he could no longer be considered in any respect as 
one of the children of his adopted parent, because emanci- 
pation depriyed him of that title, which was the mere legal 
couseouence of adoption. 

Q. jB^or certain reasons it seems that after emancipation 
the possession of goods unde liberi was refused to the adopt- 
ed cnild, but allowed to the natural child : now, were there 
similar reasons which made it necessary after emancipation 
to refuse possession of soods contra U&ulas to the aaopted 
child, whilst it was sllowed after emancipation to the 
natural child P 

§ 12. A. Yes : for the possession of goods contra tahulas 
and unde liberi were two new methc^s pursued by the 
prsBtor for the purpose of bestowing the legitima successio 
on the same persons and according to the same rules, but 
under different circumstances. The first was pursued 
when there was a testament in which a suus hares, or a 
person considered as such, according to the rules given 
above, was neither appointed nor disinherited according to 
the necessary forms ; the second was pursued when there 
was no testament at all. 

Q. According to what has just been said, it follows that 
an adopted child emancipated after the death of his father 
lost two successions : that of his natural father, on account 
of his position in the adopted familj at his natural father's 
death, and that of his adopted father, who by the emanci- 
pation deprived the adopted, child of all rights in the 
adopted family : now what did Justinian do to avoid this f 

§ 14. A, Justinian deprived adoption of its chief effect, 
by decreeing that the party adopted should continue a 
member of ms natural family, and should not pass into the 
adopted family unless the party adopting him were an an- 
cestor (p. 32). But as Justinian allowed the original 
effects of adoption to be thus curtailed for the sole pur- 

Sose of preserving the adopted party's right to the hsere- 
itas of his natural father, it followed, that if the per- 
son adopted had no possible rights in the hsereditas of 
such natural father, adoption must have its full effect. 
Thus, if the person adopted was a grandson, whose father 
was still a member of the family of the grandfather, he 


passed into the familj of his adopter, because, not being 
directly under the power of the natural pater-f., he was not 
his tuus Jusres, 

Q. Did Justinian ezdude one adopted by an extraneut 
from all rights in the succession of the adopter P 

A. Althot^h the person adopted, who did not become a 
member of the adopter's famuy, could not be considered 
his swaa hares (proper), still Justinian called him to the 
suecessio ah vntestato, in like manner as if he had been a 
natural child, and allowed him an equal share with the 
natural children. But such adoptea person never sue* 
oeeded to his adopter except ah intestato ; if excluded from 
the testament he could not claim, as against it, the posses- 
sion of goods contra tahulas, nor could he prefer any plaint 
of moMciosiias (1). 

Q, We hare seen who were the sui haredes (properly so 
called), who were considered sui haredes by the preetor. 
^ow explain who were considered such according to the 
Constitutions P 

§ 15. A. The children and grandchildren of the daughters 
of the deceased. These children, being members not of 
their mother's family but of their father's, could not be 
sui haredes (proper) of their maternal grandfather ; hence 
the prsBtorian law called them to the hereditas, but only in 
the third order as cognati. Under the emperors Theodosius, 
Yalentinian, and Arcadius (a.d. 389), however, the chil- 
dren of a daughter were permitted to represent their 
mother in the succession of their maternal grandfather 
(t. 4, §1). 

Q. Did the daughter's children or grandchildren abso- 
lutely exclude the agnati, and when they came in together 
with sui haredest did they take the whole portion which 
would hare come to their mother P 

§ 16. A, According to the Constitution of Theodosius, 
the daughter's children, who were preferred to the agnatic 
were boimd to leave a fourth of the hareditas to such 
agnati; hut Justinian abolished this provision, being un- 
willing that collaterals shoidd have any share in a succes- 
sion so long as there were any lineal descendants, even 
through daughters. 

According to a second provision of the same Constitu- 

(1) The adopter was not even bound to leave to the one of three 
male children {ex iribus maribus) eiven in adoption, the fourth, 
which was secared by the So. Sahimanmn, No reason is given for 
this provision. The date of the So. is A.TJ.C. 914 (circa). 

206 BXAHIKATION IH [b. 3, T. 2. 

tion, the dangliter'B children took only two-thirds of the 
portion which their mother, if alire, would haye had, when* 
ever such children came in along with sui haredet (proper). 
This proyision remained part orJ OBtinian's code, and when 
the daughter's children succeeded to the entire sluure of 
their mother, it was only by virtue of Novella 118 (which 
changed the order of succession laid down by the Twelve 

Q. Were persons who, though not Mwi haredes (proper)^ 
were called as such by the Constitutions, htsredea neces- 

A. The probability is, that they did not become haredes 
until they nad so expressed their intention. For on the 
one hand, not being under the power of the deceased, 
they could not be haredes necessarii, except on the autho- 
rity of some definite law : on the other luLnd, Justinian, 
in speaking of the daughter's children who excluded the 
agncUi, assumes that thej only acquired the hareditcu by 
accepting it (its adeunettbus § 15). 


Q. When are the Agnati called to a succession P 

JPr. A. AaiuUi are called in the second order, that is, 
in default oi sui luBredes. Such was the order settled by 
the Twelve Tables : and so it continued to be under the 
new law, the only efiect of which was to include within 
the 9ui haredea more persons than were included by the 
Twelve Tables. 

Q. What is meant by Agnati here P 

§ 1. ul. Generally, the term Agnati includes all the 
members of the same family ; that is, all the relations, 
who, if the common parent were still alive, would be 
under his power. In this sense the descendants, or sui 
heredes of an individual, are his agnati. But a special 
name and rank having been conferred upon them by reason 
of their dependence and joint interest with the deceased^ 
the term agnati must be taken to include only agnati in 
the collateral line-*only those who, though not members 
pf the particidar family of the de cujus, and not under 

(1) Agnati are called haredes, or legal Bucceasors, because the 
hisreditas passes to them by law (lege), as contradistiDguishedfrom 
cognati, who succeed only by the prstor's edict. 


his Special power, are still, like him, dependent on a 
general family, which the common ancestor, if stiU livings 
would have liad under his power (pp. 42, 156). Thus, two 
brothers, bom of the same father, are agnati (proper), 
provided neither of them has ceased to belong to his 
father's family, by emancipation or otherwise. Adopted 
children are also agnail (§ 2), not only with those who 
are subject to the adopter, but also with all collateral 
agnail of such adopter. 

Q. To which of the agnoH did the harediias pass by 
the law of the Twelve Tables P 

§ 5. Pr. A, It passed to that agnatic, or those agnaii 
who were nearest in degree, without any distinction of sex. 

Q. But was any distinction introduced? 

§ 3. A. The Prudentes, in order to keep the goods in 
the family of the deceased, divided the agnati into con* 
sanguinei and agnati (proper). The name consanguinei 
denotes agnati of the second degree; that is, brothers 
and sisters of the deceased, both natural and adopted : to 
these, first of all, the hsereditas passed. In default of 
consanguinei, the succession devolved on the agnati of 
lower degree, who were agnati (proper) ; amongst whom 
no women were included, for no woman beyond the second 
degree succeeded any member of her family. Hence 
Ulpian and Paul always limit agnati to males; and 
women, leaving no brotners or sisters ccmsanauinei, were 
succeeded by certain agnati, to whom they could not them- 
selves succeed except m the third order, as co^nati (t. 5). 

Q. Was this distmction retained by Justinian P 

§ 3. A, No : Justinian held that the hareditas should 
devolve on the aanati without distinction of sex. 

Q. Mention the various alterations which from time to 
time enlarged the number of persons included in the 
order of Agnati, 

§ 4. A, Anastasius (a. d. 498) at first confined the class 
Agnati to emancipated brothers and sisters, and they, not- 
withstanding their dimintUio capitis, succeeded along with 
the agnati (proper), with a deduction (a fourth, t. 5, § 1). 
This benefit was not extended to the children of an emanci- 
pated brother — they continued to be mere cognati, Jus- 
tinian (a.b. 528), included within the agnati, first, brothers 
and sisters uterini (1) : then (a.d. 532) the children of 

(1) Brothers and nsters germani are those bom of the same 
father and mother : consanguinei those who had the same &ther 

208 BXAMIKATION IN [b. 3, T. 2. 

Mien, and, no doubt, also the children of brothers uterini, 
but he did not include the descendants of inferior degree. 
Lastly, the enrperor, in a revised code, dated Id., Oct., 
A. D. 534, callecfto succeed as agruUi, emancipated brothers 
and sisters, without any deduction, as well as uterine 
brothers and sisters, nephews and nieces, being children 
either of an emancipated brother or sister, or of an 
uterine brother or sister. Hence every coffnatm in the 
second degree was included within the agruUi: and in 
the third degree, all were included except uncles and 
aunts of the deceased. 

Q. Was the doctrine of representation and division 
per stirpes applicable to successions passing to agnati P 

§ 4 A. ^o ; not before the Novella 118. Till then, 
each one succeeded personallv, and the nearest offnatue 
necessarily excluded the children of an aanatue of the 
same degree, who had died ; e, g,, the brother of the de- 
ceased necessarily excluded his own nephews bom of 
another brother. 

Q. At what period of time was it necessary, according 
to law, that a person claiming the hssreditas should be the 
nearest agnatus ? 

§ 6. A, At that period when it is ascertained the de- 
ceased will have no JuBres by the testament ; for it is then 
the succession ah intestato arises. It therefore often hap- 
pened, when the deceased left a testament, that an agna* 
tu8, though not the nearest at the time of the decease, 
became the hisree : for that purpose nothing further was 
reauired than that a person nearer in degree should die 
before the testamentary hseres renounced the hsereditas, 
or before anything happened to avoid the testament. 

Q. If the nearest agnaivs renounced the succession, or 
died before having accepted it, did the eucoessio legitima 
devolve on the agnatus next in degree P 

§ 7. A, The law of the TwelveTables did not sanction 
sudi devolution firom degree to degree ; in case the nearest 
agnatus did not take up the h^editas offered to him, 
no other agnatus coula, as such, take it up (1) ; but 

only : uterim those who have the same mother only. Brothers 
uterini oonld not he agnati, because the children do not heoome 
memben of their mother's family, but of their father's. 

(1) But the pnetors called as cognati those who could not take 
advantage of their rights as agnati. 

B. 3, T. 2.] THB IlfST I TUT E S OF JU8TINIAX. 209 

Jnstiman mitigated the seyerity of this rale, and allowed 
the hareditas to deyolve amoni^st agnati, in like manner 
as, by the praetorian law, it devolved amongst cognati. 
Thus the most distant cLgncUtu always took precedence of 
aU cognati, however near; for the priority of degree 

g'ves only preference to one person over another wnen 
>th are m the same order. 

Q. Who succeeded to emancipated children when there 
were no sui hteredes ? 

§ 8. ^. An emancipated person had no agnati. Their 
position was like that of freedmen, and accordingly, the 

Slace of the agnati was occupied by the patronus, who, in 
efault of 8ui heredes, succeeded in the second order. This 
patron was the pater- f., or the purchaser, according as the 
child had been emancipated, with or without a trust clause 
(B. 1, 1. 12, § 6) : but it was always the emancipating ances- 
tor when, as in Justinian's time, emancipation had come 
to be considered in its results, as made with the trust 
clause (quasi cowtractafiducia), — To this patron the succes- 
sion of tne emancipated person devolved, in default of sui 
haredeSf until Justinian postponed him to the brothers and 
sisters of the deceased. 

Q. Whilst the filii-f. had nothing of their own, it is 
dear that they could have no hceredes. But after the 
different peculta were introduced did they then become 
entitled to leave a hareditas ah intestato f 

A, No : and even when the filii-f. had obtained the right 
of disposing by testament of their peculium castrense or 
quasi castrense, they had no hareditas ah intestato. When 
the filius-f. died, having made no testament, the peculia 
reverted to the pater-f., not as an hareditas, but by virtue of 
his potestas, and as part of his property, ». e,, jure com' 
muni. Under the emperors of Constantinople all goods 
derived by a filius-f. firam the mother, or through any of 
the maternal line (in which, as in case of the peculium ad* 
venticium, he retained the bare property), formed a special 
hsreditas, which devolved ab intestato : 1. To his children 
or issue ; 2. To his brothers and sisters ; 3. To his father 
and his other ancestors, according to the degree in which 
they stood. Justinian subjected to the same course of de- 
volution the peculium castrense and quasi castrense: 1. To 
the children of the filii-f. ; 2. To his brothers and sisters ;. 
3. In default of issue and of brothers and sisters (nullia 
liheris velfratrihus superstitibus, B. 2, 1. 12, Pr.), the pater-f. 
was called to the -property jure communi (Ibid,), that is to 

210 XXAXIVATIOK IV [b. 3, T. 3. 

say, aooording to Theophilus, by the right of paternal au- 
thority, and not by rignt of suceession. 


Q. Could the mother succeed her children, or the chil- 
dren the mother P 

A, By the Twelre Tables, in which, not natural but civil 
relationship {aanatio) was the only thing regarded, neither 
mother nor children succeeded each other, except in one 
case, Tiz.» when a mother was subject to and a member of 
the family of her husband {in maim) (1). For the children 
beixig members of their father's family, and not of their 
mother's, were never her sui Jueredes; and the woman con- 
tinuing generally (and in later times always) a member of 
her father's family had no ogTiatio with her children, who 
were of their father's, that is, her husband's family. — The 
pr»tor, it is true, allowed the mother and her children to 
succeed each other, but only as the nearest cognati, by 
granting them possegsio honorum wide cognati; but the 
nearest cognatiu came in only in the third order in default 
of sui h(Brede8 and agnatu 

Q. How was the system relaxed? 

§ 1. Pt*. a. Claudius first offered the hareditas legiti- 
ma (i, e. the right to succeed acoordin§[ to the civil law aS 
agnata), not to all, but to one mother in order to console 
her for the loss of her children. Later (§ 2) a Sc. Ter' 
tttllianum passed in the reign of Antoninus Hus (a. d. 158), 
gave generally a mother the right to succeed to her tV 
testate child, provided that she had given birth to three 
children, and was a free bom woman, or to four if she was 
a freed woman. But the emperor sometimes sfranted the 
same privilege to mothers who had not had the required 
number. Theodosius (§ 4), and after him Justinian, made 
this privilege a general rule, and called the mother even 
of a single child to the succession. 

(1) A woman passed into her husband's mawus : usu, farreo, 
coemptione (p. 20), aad was classed as his daughter and sister of 
her children. — Observe, a woman might be mancvpated without 
oaempHo : a woman in manu by coempHo was not in loco aeroa 
to hor husband ; she merely changed her family ; bat a woman 
mancipata was in loco sertkB .**-the difference arising from this, 
that the same words were not used in the form of mancipatio as 
in thatof ooemptio (Qaius, 1, § 114, 188, 128, p. 284). 


Q. Was the grandmother called to enjoy the same 
benefit as the mother P 

§ 2. A, 1^0 : this benefit was confined to the mother. 

Q. Was not the mother sometimes deprived of the 
benefit of the Sc. Tertollianimi P 

A, Yes : she could not succeed her child if it died under 
age, and she had neglected to demand a tutor for it, or 
to have a tutor^ when excluded or excused, replaced within 
the year. 

Q. Who are preferred to the mother according to this 

§ 3. A. The mother was reckoned b^r it amongst the 
agnati ; consequently she came in only in default of sni 
luBredeSt or of persons filling that rank. The mother did 
not succeed her deceased daughter if she had any chil- 
dren, though they were not sui haredes ; for the Sc. Orphi- 
tiimum interfered (see next title). 

Q. Amongst the agnati, or ^ose ranked as such, did 
any come in before or jointly with the mother P 

§ 3. A, When the child nad become sui juHs by eman- 
cipation (1), the mother was excluded by the father, 
whether he succeeded by the civil law as emancipator, or by 
the prffitorian law as son of the emancipating grandfather. 
But the mother excluded the emancipating grandfather, if 
he was alone, that is, if the father was deiui : but if the 
fEUbher was alive, the grandfather succeeded, for if the mo- 
ther had been preferred to the grandfather, she would her- 
self have been excluded by the father, who would have 
been excluded by the grandfather ; and therefore, as the 
grandfather could not be excluded, it was simplest to say, 
that if the father was alive, the grandfather was preferred 
to the mother. ^ 

When the child had become suijwris without diminutia 
eapitis, there were no male ancestcurs by the father's side ; 
itmightseem, then, that the mother, as the nearest agnaUit 
should exclude all the o^&r agnati; nevertheless, she came 
in after brothers, and jointly with sisters of the deceased* 
by the same father. If there were a brother, and one 
or more sisters all by the same father, they divided the 
succession between them to the exclusion of the mother. 

The hsereditas devolved on the mother if those preferred 
to her refused ; devolution was always allowed in this case. 

(1) When the Sc. wag passed, iAiefiUifcmilias had no hareditas 
leffiHma, therefore the child must be assamed to he sui juris. 

tit VLAMOf^rUHS TS [b. 3, T. 4^ 

Q. Was ihe eEeet cfUhe Se. Tertanuanm erer 
pended in fkromr of eertain eognaiit 

A, Yet ; iriim there mw a ion or a das^ter of iJie de- 
«Mied i& aa wdoy^ed imdlj at Ina death, or niieii die sue- 
eeaaioa in mieatioii was that of a grandaoa who conthwed 
m the jm&d&ther^f finnilj after tl^ emancipation or adop- 
tun of Ilia ikther, tide Se. did not api^, 80 that the Biother* 
af co^fkMUt in the third order, anoeMded jotntlj with iHkB 
duldren in one eaae, and the father in the other; not, 
obterre, to the JUtredHiu^ bat to ihepostessio homormm, far 
thej were all <x)>^3ui^ of the firrt degree. But when there 
was an ogfudMs who would ezelnde all the eognaiij i. e, J^ 
^twofiippoaedea8ea),theeh]ldren and thenitiier,theSe;. 
iqjf^xed, beomae these last eonld not be injured, and tfe 
Biother was pr efer r e d to sodi amuOms, 

Q. Did the rights of the mother oontiniietill Jnatiniaii'a 
time the same as thej were bj the Se. Tertollianam? 

§§ 4,5* A, !No : Forbj certain Constitatioiis a third was 
filiated to mothers who had not the req ui re d nnmber of 
shOdren ; and a third was withdrawn from those who had 
the requisite number, and giren to certain agnaii (1). 
Justinian abolished these distmetioos, and dedared that 
the mother should succeed to the whole, in iKrefeienee to 
aO the agnaUf except those specified in the dc. TertuUk^^ 
nuMf viz, the father, and brouiers, and sisters bj the same 
ikther, to whom the emperor added brothers and sisters 
hj the same mother. If tbere were any brothers or sisters* 
whether hy the same fkther or not, Justinian admitted 
them along with the mother, and the succession was thna 
dirided : u thme were sisters only, the mother took half: 
but if there were one or more Drotiiav, either without 
or with sisters, the succession was divided Mr aqritOf and 
the mother had only an equal share with the others. 

Q* Did the mother suc^^ by iJie Sc. Tertullianum to 
children not bom in lawful wedlock P 

§ 7. A. She succeeded to all her children, eren though 
their father was uncertain (p. 24). 


Q. On ihe other hand, were not the children allowed to 
succeed their mother? 
Pr, A. Yes : by the Sc. OrpUtianum (a.d. 178), the sons 

(1) The ancle, bis sone, and grandsons. 


and daaghten, whether subject or not to another^ were 
preferrea to all the c(msa7tffuhiei and agnati of the de* 
ceased woman. 

Q. Were they also preferred to the mother of the de- 
ceased P 

§ 1. A, Not by the Sc. Orphitianum ; for it caDed children 
to the mother's succession only where the old law excluded 
them, on the ground of their not being^either sui htBvedes 
or agnaii of the deceased woman. Hence the children 
who succeeded by the Sc. Orphitianum, and the mother 
who succeeded by the Sc. TertuUianum, succeeded jointly. 
This joint succession was abolished by the emperors 
Gratian, Yalentinian, and Theodosius, who gave the pre- 
ference to the children of the deceased woman. 

Q. Did the grandchildren as well as the children sue* 
ceed by this Sc. Orphitianum? 

§ 1. A, No : it called only the sons and daughters and 
not the grandchildren. Later Constitutions, howeyer, al- 
lowed the grandchildren to succeed their grandmother 
(p. 205). 

Q. Were the rights of succession allowed by the Sc. 
TertuUianum and Orphitianum lost by the mimma dimi' 
nutio capitis (1) P 

§ 2. A, No ; but there was a difference between new 
InovcB) hareditates and those claimed under the Twelve 
Tables. The latter rested entirely on family rights, and 
were lost by the minima d. c; whereas the former, resting 
on ties of blood, suryived the loss of family rights. 

Q. Did the Sc. Orphitianum apply to children vulgo 
conoepti, called a^j^rii i 

§ 3. A, Yes : it allowed such children to succeed their 
mother, as it did those bom in concubinajge or lawful wed- 
lock. But Justinian allowed one exception in the case of 
9purii bom of a mother illustris, who had other children 
bom in lawful wedlock : such spurii were entitled to no- 
thing from their mother, either oy gift inter vivos, or by 
testament ab intestato (2). 

(1) They were lost by the maxima or media ; for no one could 
succeed even by these Sc. unless he was a dtizen, because the 
h^sreditas was a dvil light. 

(2) The father, not the mother, had legitimate and natural 
chil^n. When the bond of connection was civU, they were 
legitimate ; when by blood they were naiwral children. Hence 
emancipation transformed legitimate into natural children, f^ 
they Idt their father's family : those bom ex cancubinatu became 

214 EXAKIKATIOir IN [b. 3, T. 5. 

Q. If the hsreditaa legitima was proffered to several 
jointij, and some either refused it, or died, or became in- 
capal^e before they accepted it, what became of their 
portion P 

§ 4. A, Such portion accrued to the cohtsredes who ac» 
cepted, or to the Jueredes of such cohtBredea as died after 
acceptance of the luBreditaa, and before the accruer or 
iheju8 aocrescendi arose (p. 179). 


Q. When did the eognati succeed P 

Pr, A, In the third order, i, e,, after the sui haredes 
and those ranked as such, and after the aanati and those 
raiJced with them. This order was createdf by the prsetors, 
in order to include those relations who were excluded by 
the rigour of the civil law (t. 9, post), 

Q.. What persons were admitted by the praetor as 
eognati P 

A, The prffitor admitted all the relations, without any 
preference of one over the other, except what arose from 
nearness of degree to the deceased {proximitatis nomine), 
and without preference of one relation because of his being 
of the same family with the deceased : for the only thing re- 
garded in case of eognati was the tie of blooa. Hence 
uiose who by a minima d. c. were no longer agnati of the 
deceased, and therefore could not be caJled amongst the 
legitimi heeredes (1), might come in amongst the eognati. 
The same rule applied to collateraU (2) related through 

legitimate by legitimatio (p. 80). But the mother, whose chil- 
dren are connected with her only by blood, has only natwral 
children, who were all admitted by the prsetor to the posseuio 
honorum unde eognati ; but when the civil law admitted them to 
the hareditas, they were so fiur deemed legitimate. 

(1) The prsetor called those in the position of sui haredes who 
had suffered minima d, c. to succeed; but an agnatus who had 
goffered this d. c. could not remain in the second rank except hy 
a special law. Thus, Anastasius allowed emancipated brothers and 
sisters, and Justinian allowed nephews and nieces, to retain the 
place of agnati (B. 3, t. 2). 

(2) § 2 speaks only of collaterals, because ancestors and issue, 
through females, were provided for by 8c, TertulUanmn and Or- 


Q. Could children, members of an adopted family, snc- 
ceed their natural father as cognati ? 

A. Yes; because regard was had, not to the ties of 
blood but of family. 

Q. Might an adopted person succeed as a cognatua his 
adopted agnatus 7 

§ 3. A, Yes : so long as the agnatio arising out of the 
adoption continued, the person adopted was both agnatua 
and cognatus of the members of the adopted family ; for 
every agnatus must be a cogruUus, 

Q. But as this fictitious cognatio ceased with the ag- 
natio of which it was a mere result, what was the use of 
reserving a place in the third order for the adopted person, 
for he could not claim it after he had ceased to be a mem- 
ber of the family ; and whilst a member, he came in as 
agnatus in the second rank P 

A, The reason is this: before Justinian's time there 
was no devolution from one agnatus to another, so that in 
case the nearest agnatus to whom the succession de- 
scended, and who excluded all the others, would not or 
could not succeed, the other agnaii, to whom the successio 
did not devolve, had an interest to appear as cognati, 
Q. Could chUdren vulgo cancepti succeed each other? 

§ 4. A. Such children were not agnati to each other ; 
for, their father being unknown, their only relations were 
through females, and they were not members of the same 
family ; but they succeeded as cognati, 

Q. Did the prafor admit cognati of any degree to 
succeed P 

§ 5. A, No. The prstor admitted none beyond cog- 
nati of the sixth degree, and amongst those of tne sevenSi 
degree the children of the male and female second cousins. 
Herein the rank of cognati differs from that of the sui 
haredes, and the agnati who were called to the hareditas 
legitima or to the possessio bonorum wnde legitimi, though 
of the tenth or even lower degrees. 


Q. Explain the different degrees of relationship. 

JPr. A. There are two lines of relationship : tne direct 
line, subdivided into the upper, or ascending, and lower, 
or descending, and the collateral line. The direct Ihie 
contains both above and below relations of the first de- 

i^«*i ' 

216 SXAMIITATIOV IV [b. 3, T. 6- 

/• ihefirti degree: abore, fatiier and mother ; bdoir, son 
and daughter. 

1% the second degree : above, the grandfather (anu) and 
grandmother {ama) ; below, the grandson (nepot) and the 
granddaoghter (neptie) ; in the collateral line, the brother 

In the third degree : above, the great-grandfiUher (proa^ 
vug), the great-grandmother (proama) ; below, the great 
gnmdson {pnmepoe), and the great-granddaughter (pro- 
neptU) ; in the collateral line, the son and dangnter of the 
bn>ther and fitter, t . 0.,nephew and niece {JrairU tororimie 
JUiu9tJllia\ thennde by the fiither (pairuug), the nnde oy 
the mother {avunculus), the father's sister (awuia), the 
mother's sister {matertera), i, e., the annt. 

In the fourth degree are : above, the great-great-grand- 
father {abamis), the great-great-grandmother {ahavia) ; 
below, great-great-grandson and-aiaaghter {ahnepos, ab- 
neptis) I in tl^ collateral line, the grandson and grand- 
daughter of the brother or the sister, the great-uncle, and 
great-aunt by the father (patruus magnus, amita magna), 
i, e,, the brother and sister of the grandfather, the great 
uncle and great-aunt by the mother (avunculus magnus, 
matertera maana) t . «., the Inrother and sister of the grand- 
mother ; lastly, the cousins, male and female (1). 

In the fifth dearee are : above, the great-grandfather'a 
or-mother's grandfather (atavus), grandmother of the same 
(atama) : bdow, the grandson or-daughter of the great- 
grandson or-daughter [atnepos, atneptis) : in the coUa- 
Mral line, the great grandson and-daughter of a brother 
and sister, the ^eat-grandfather's brother or sister (pro 
pratuus, proamtta) ; the great-grandmother's brother or 
sister ( proavunculus, promatertera) ; the son and the 
daughter of the first cousin, male or female ; the cousin 
of the father or the mother, i. e., the son or daughter of the 
great*uncle or aunt by the father's side, or or the great- 
uncle or-aunt by the mother's side (2). 

(1) Consiiui, male and female, are called generally contobrimms, 
eonsobrina ; bat in strictneas this tenn applies to tiie children of 
two nBten; ^a^ft(«fef to the children of two brothers; andafftt^fMt 
to the children of a brother and of a sister, 

(2) The cousin of my fiither and of my mother (my cooan once 
removed) was called propior sobrino, because he was one degree 
nearer than his own son, my sobrinua. The children of oousns 
(oonsobrim) are second cousins to each other (sobrini). 



In the sixth degree are : aboYe, the great-grandfather's 
great-grandfather or-mother (trit<wus, tritavia); below, 
ihe great-grandson or-daughter of a great-grandson or- 
daughter {trenipos treniptis), in the collateral line the 
great -great -grandson or-danghter of the brother and 
sister; the brother and sister of the great-great-grand- 
father {cU^atruiis, abamita) ; the brother and sister of 
the great-ereat-grandmother (abavtmculue, abmatertera) ; 
the son and the daughter of the great-grand-uncle or aunt 
by the father's side ; of the great- ^and-unde or aunt by 
the mother's side ; also second cousins, t. e,, the children of 
brothers or sisters patrueles of consobrini or amitini (1). 

Q. Beyond the sixth degree, was there any particular 
name for each of the relations P 

§ 7. A, No : it was thought sufficient to count them by 
generations (p. 94). 

Q. Did the tie of blood between slayes entitle them to 
succeed each other after they had become £ree and 
eitizens P 

§ 10. ^. The relationship between slaves was disregarded 
by the civil and the praetorian law, or rather, no nght of 
succession was acquired by such relationship (p. 1 19) . But 
Justinian held it sufficient to entitle children to succeed 
their father and mother, and also to succeed each other 
(p. 219). 

Q. Was the nearest in degree always entitled to the 
succession P 

A, No. A relation more distant in degree sometimes 
came in jointly with another less distant, and sometimes 
even excluded nim. For it was only when there was no suus 
hares nor agnatus that nearness of degree entitled a man 
to the preference. Thus, grandchildren being swi haredes 
were preferred to brothers and sisters of the deceased, 
though they were both in the same degree, and even to the 
Eeither and mother, who were in the first degree. 


Q. Who succeeded freedmen by the Twelve Tables ^ 

(1) /. 0., the son and daughter of the father's or the mother's 
eoQsm {soMmts, solrina), the grandson or grand*daughter of the 
consin-german by the other's side, the grancbon or grand-daughter 
of the consin-german by the mother's side. 


218 EXAMINATION IN [b. 3, T. 7. 

'Pr. A. When the freedman died testate, the inHituti; 
when he died intestate, first, the aui hisredes, and in de-. 
fault of them, the patron and his children, who stood for 
the agnail ; hence the freedman, to exclude his patron, 
had only to appoint a hares, or to adopt a stranger who 
would become his suus hteres (1). 

Q. Did not the prsBtor's edict remedy this P 

§ 1. il. Yes ; for if a freedman died testate, leaving the 
patron nothing, or less than half his successio, the patron 
mi^ht have possessio honorum contra tabulae of the half ; 
unless, indeed, the institutus was the testator's natural 
child. If a freedman died intestate, leaving none but 
adopted children as his sui haredes, the patron might also 
hsLvepossessio honorum of half. — Natural children, although 
emancipated, excluded the patron ; unless, indeed, they 
were legally disinherited. 

Q. Had the patroness and the patron's children the 
same rights in tine freedman's successio as the patron P 

§ 2. ^. B^ the Twelve Tables, the patron's children, in 
default of their father, had the same rights as he had : the 
patroness had the same right to succeed her freedman as 
a patron had. But the praetorian edict, though it allowed 
the possessio honorum as above to the patron and his male 
children, did not allow it to the patroness and the patron's 
female children. The lex papia poppeea, however, made 
an exception in favour of such women as had a certain 
number of children. 

Q. Did not the lex papia voppcea entitle the patron 
sometimes to come in with the freedman's natursu chil- 
dren P 

§ 2. A, Yes : the patron took an equal share with such 
children when any freedman died either testate or intestate, 
leaving fewer than three children, and a sum of 100,000 ses- 
terces. A patroness, if freebom, and the mother of three 
children, had the same right. 

Q. What was Justinian's system P 

§ 3. ^. When a freedman aied testate, a distinction was 
made between him who was minor and him who was major 
centenariis{2). If minor, the patron had only the sum 

• — ■ — " • ^ — —— - -^ ■ ■ 

(1) By the oldh^ffceedwomeahadno sui hisredes; and women 
sui juris were under perpetual tutela, and required the authority 
of the tutor (who was the patron) to make a will. Hence, the 
patron was not likely to lose the freedwoman's sucoession (Gains 8> 
43 ; Ortolan, 1. 1, 286). 

(2) A centenarius is one who has 100 aurei,(Mff«if« ■- 100 sesterces* 


bequeathed to him : if major, the patron might have pos' 
sessio bonorum contra tabulas of a third, not of a half, as 
heretofore (1). When the £reedman died intestate, what- 
ever might be his fortune, the patron succeeded only in 
the second rank (ordo), as under the Twelve Tables, and 
never came in with any child of the deceased. 

Q. Do these rules of Justinian as to a ireedman and his 
diildren apply to a ireedwoman and her children? 

§ 3. A. X es : and to the patroness as well as the patron. 

Q. In default of patron or patroness, did their cnildren 
succeed the freedman P 

§ 3. il. Yes : Justinian admitted not only their children, 
but their collateral relations to the fifth degree, and that 
to the exclusion of all the collaterals of the n*eedman ; be- 
cause (p. 217) relationship through slaves benefited no 
one : except, indeed, after Justinian's time, the freedman's 
children, who, though conceived before the enfranchise- 
ment, succeeded their father, and excluded the patron. 

Q. When the patron's issue succeeded the freedman, 
did those more remote come in as representatives with 
l^iose less remote P 

§ 3. A. No : the nearest of the issue excluded the more 
remote, and those of equal degree came in jointly, and 
divided the succession equally — -per capita, and not per 

Q. Did the rules of the old law as to freedmen succeed- 
ing applv to all freedmen P 

§ 4. A* No : only to those being Soman citizens : Iiatvni 
Juniani had no haredes, because at death they were consi- 
dered as never having been free, and because all the goods 
acquired by them were acquired for the patron, and there- 
fore formed part of his succession, if he had died previous- 
ly (2). After Justinian abolished the distinction between 

Thus, the 1000 aurei of the lex papia (passed in the reign of Augus- 
tus) were reckoned by Justinian equal to 100 in his time. 

(1) But Justinian did not allow Ihe patron to daim the poBsesaio 
bonorum, so as to prejudice the freedman's natural children; for 
it was only in de&ult of them, or when it was impossible they 
could succeed by obtaining the possessio unde Uberi or contra 
tafias, or by preferring a pliunt of vnofficioHtas, that the patron 
could demand his third. This third was dear of all charges, even 
for the henefit of the children of the deceased ; legacies and trusts 
were to be paid by the other imbUuti (§ 3). 

(2) The goods of the freedmen Latinus did not therefore pass 
to the deceased patron's children, but to his haredes. Now, as his 


220 xxAXiir AnoN ur [b. 3, t. 9 

freedmeB, the ■jstem ettablighed by lum T9frdigUd the 
derolution of every freedman'f yroperty (B. 1, t. 5). 


Q. Althongh in general a freedman's goods devohred 
jointly on the deceased patron's children of equal degree, 
was not the patron entitled to assign the whole of the goods 
to one of his children P 

Pr, A. Yes : he was allowed, by a Sc. A.D. 45, to assign 
the frcedman to one of his children, who was to accept the 
hisreddtas alone, as if he were sole patron of the dee^ksed : 
nor did the other children recover tneir rights of successioii 
until the particular one died childless. 

Q. To whom might the freedman be thus a88k;ned P 

§ 1. ^. A man might assign any number otfreedmen 
or freedwomen to his son or grandson, to his daughter or 
grand- daughter, provided they still continued under his 
power : and that even though the grandchildren would of 
necessity become subject to their father. 

Q. Did the emancipation of the filius-f. to whom the 
freedman had been assi^ed annul the assignment P 

§ 2. A» Yes : an assignment could benefit none but a 
filtus f. But it continued valid when made jointly to a 
filius-f. afterwards emancipated, and to another filius-f. who 
continued subject to the patron. 

Q. Did this sort of assignment require any solemnity ? 

§ 3. A, No { it was enough for the patron to manifest 
somehow his intention to assign by parol, or by writing, or 
even by a sign ; moreover, it might be inter mvos, or by an 
act of last will. — Lastly, an assignment once made was 
revoked by the patron manifesting his intention so to do. 


Q. Define the possessio honorum. 

A. It is a ri^ht, granted by the preetor, to succeed to the 
aggregate of nghts (universttas) left by a deceased person, 
and to represent him (1). 

children were not of neoessitY his haredes, the Sc. Largianmn 
(a.1) 42^ decreed that they should be preferred to any haredes 
Bxtraim, to whom the patron's hsereditas woold have gone ; nnlesflj, 
indeed, the children had been formally disinherited. 

(1) It arose thus : It was the praetor's duty to deliver and secnre 
to the haretf in case of dispate, possesmon of the goods of the 
deceased. At first he nmply executed the law^ by giving the 


Q. For what purpose did the pr»tor create this pes- 

A, Not merely to amend, but to confirm and com- 
plete the old law. 

Q. Give instances- in which the pnetor amended it. 

Pr, A, Thus, when a man diea intestate, he granted 
the posgessio unde liheri to children who, in consequence 
of a diminutio capitis, were no longer sui haredes by the 
civil law (p. 201) ; when a man died testate, he granted the 
possessio, contra tabulas to an emancipated child, omitted 
Dy the pater-f. (B. 2, 1. 13), secundum tabulas to a postumus 
alienus, who, before Justinian's time, could not have been 
institutus (1). 

Q. Give instances in which he confirmed it. 

§ 1. A, When he granted the possessio to persons al- 
ready called to the hcn^ditas. Thus : possessio unde liheri 
was granted, not only to children who had ceased to be 
of the famil]^, but also to those who, continuing mem- 
bers, were still sui Jusredes; %o possessio unde legitimi was 
granted to agnati, and to those called to the heereditas by 
uie civil law in the second rank (ordo) ; so when there was 
a verbal testament, ^<m«6«Wo secundum tabulas was granted 
to those weU instituted according to civil law (B. 2, 1. 10, 
^n, n.)» 

Q. What was the use of granting the possessio when the 
hteres had been already called by tne civil law P 

A, He thus became entitled to the interdict quorum 
bonorum (B. 4, t. 16). 

Q. How did the prtetor complete (dilatare) the old law 
as to succession P 

S 2. A. By creating certain ranks of successors, espe- 
cially the Ihird {unde cognati), for the nearest blood-rela- 
tions. The right of succession, which by the Twelve 
Tables was too confined, was extended in order to prevent 
a man dying without a successor (p. 103). 

h(Bres the possession of such goods as came to him by law. After- 
wards he granted the possession to certain relations whom the 
civil law passed by ; and sometimes he even set aside the leeal 
htsres for other parties who had a prior daim, according to eqmty 
and natural law. After the conquest of Italy and the provinces, 
it was necessary that a new rule of succession should be created 
ton peregrimi who had no right to the hareditas (proper), ue,, 
the quirUtMian ownership ; and this was done by the possessio 

' (1) Observe, the prator did not admit to the haredUas any 
expressly excluded by the law; he only called certain persons 
whom it had neglected (D. 87, 1, 12, 1). 

222 BXAxarATioir nr [b. 3, r. 9. 

Q, Were the Maeoeaaon, aoooidiiig to tke pnetog ian 
hw, really iLiereieff / 

§ 2. il. No : no man eoald be atriody a i^enef except by 
a law, or aome legialadve proTUUMi, iniich, like a setuitms 
eatuuUum, or an imperial ConatitatiCMi, established a ri|^ht. 
Henee, p rae to rian anceeaaorB had not the qnalitieB <^ 
karedes, and were onlj called bomorum fouessoregs bomiiO' 
rian, not quiritanaa, owners ; as aoeh, however, they pKW- 
seased every right, and were liable to evefy obligalk^ 
peculiar to a Ju^'eg, in whose place they stood. 

Q. How did the pr»tor*a edict arrange the poaae99iome$ 

A. It followed tlie Twelve Tables ; for first came tJie 
pouessio honarwm, there being a testament ; and aecond, 
ihepossetdo, there being no testament. 

Q. Suppose a testament P 

§ 3. X There waa, 1. The potaesdo contra iabulaa^ 
granted to children omitted from the testament of their 
father or their paternal grandfather ; 2. The posw^aio 
secundum talnUas, granted to the ktBredes iauUtmU 

(p. 121). 

Q. Suppose no testament? 

§ 3. ^ Before Justinian's time there were eight po9- 
sesnones: 1. Possessio unde liberi (1), by which the sui 
higredes proper, and those ranked with them, were called ; 
2. Unde legitimi, hj which JuBredeM legitinU, i. e., by the 
civil law, in default of tui hieredes, were called, e. g. the 
patron and his children ; 3. Unde decern persofue, by whidi 
ten cognati were called in preference to the stranger-pur- 
chaser {extraneus manwmissor) who, having acquired the 
deceased (JUius-^,) by mancipatio, emancipated lum. and so 
became hia fictitious natron (B. 1, 1. 12). These ten cognati 
were related in the nrst and second degree, viz., father, 
mother, grandfather, and grandmother paternal and ma- 
ternal, son, daughter, grandison and granddaughter, brother 
and sister ( 2). 4. Poggessio unde cognati (3)rby which the 

(1^ J. «., par$ edicH unde Uberi voeaniur, &c 

(2) This kind of poaaeagio (a mere exception from the last) was 
seldom granted. GeneraUy, chUdren maneipated to a struiger- 
buyer were re-tnancipaied to thdr frther, and enfranehiaed by 
him; thus the frtber, aa patron, obtuned by the dvil law pos- 
aeasion unde legitimi before any of the cognati. After Justinian'a 
time, as emandpation was always considered to be made eontracta 
fiducia, the possesno unde decern ceased. 

(3) Generally, iloB poeeeetio came third; here it oomea fourth, 
becauae of the possestio decern, which was confined to a parti- 
cular caae. 


nearest blood relations were called ; 5. Possessio turn qtiem 
exfamilia (1), by which the nearest member of the patron's 
family, i. e., his aanati, were called ; 6. Possessio undepa* 
tronuspatronave, by which the patr(Hi or the patroness of the 
patron, and their descendants and ancestors were called (2) ; 
7. Possessio unde vir et uxor, by which the survivor of 
the husband and wife was callea, in case the marriage 
continued till the death of the de cujus ; 8. Possessio unde 
mgnati manumissoris, by which the cognati of the patron 
were called (3). 

Q. Did Justinian retain viRtlieBe possessianes 7 
§ 4. il. !No: he abolished 3, 5, 6, and 8; the trnde 
decern, because in his time the emancipation of a filius-f. 
was always made contractajiducia, and so the fictitioofl 
title of patron never belonged to a stranger : &, 6, and 8, 
because such possessio was useless, after the same rule had 
been laid down in regard to the succession of freedmen, as 
to that of freebom men, viz., that the patron's relations 
should succeed to the freedman as they would to the 
patron, and in the same order (4), so that each of them, 
as he was heeres le^itimus, or cognatus of the patron, 
tihould have possessio wnde legitimi, or wnde cognati, in 
the goods of the freedman. 

Q. After Justinian's changes how many possessumes 
bonorum remained P 

■ » ■! - ■ ■■ ■ ■—■■■ — ■PIMM I WW ■■■■■■^ II I ■■■■ .II^M^— ■ I ■ 1^^ 


(1) Others say turn qud, Jnstinian abolished this and the fol^ 
lowing, as being involved in inextricable confuaon (§ 5). 

(2) The patron is here presumed to be a freedman ; so that the 
pretor called as successor the agnati of the patron if he was born 
free, and the patron of the patron if he was a freedman. 

(3) The various possessiones bonornm may be arranged thus : — 
1st case. Deceased freebom and sui juris by birth, or by capitis di- 
fiUnmtio : (a) unde Uberi ; (ft) fmde legitimi (agnaU) ; (c) unde cog- 
-naU ; {d) unde vir et uxor. 2nd. Deceased freebom, emancipated 
sinefldueia : (a) unde Uberi ; (ft) unde decern persona ; (c) unde 
legi^mi {manumissor extraneus); (d) unde cognati: (e) unde 
vir et uxor. 3rd. Deceased freebom, emancipated cum Jlducia : 
(a) unde Uberi ; (ft) wnde legitimi (parens manumissor) ; (c) unde 
cognaU ; (d) unde vir et uxor, 4th. Deceased freedman emanci- 
pated by one freebom : (a) unde Uberi ; (ft) unde legitimi (patrowis 
et Uberi ejus) ; (c) turn quern ex faaniUaj (d) unde vir et uxor; 
(e) unde cognati manumissoris, 5th. Deceased freedman emanci- 
pated by another freedman: (a) unde Uberi; (b)unde legitimi 
ipatronus et Uberi ejus); (s\ unde patronus etpatrona, Sfc; 
\d) unde vir et uxor. 

(4) But not beyond the fifth degree {vide 219). 

224 BXAXIHATIOH IH [b. 3, T. 9. 

§ 4. X Six. Two, viz,f eonira and setmndrnm ioMeu, 
when there is a testament; and four when there is no 
testament, unde Uberi, unde legUimi, unde cognati et unde 
nir et uxor (§ 7). These six are the ardimary pouessiones, 
because thej are always granted to partunuar persons 
in particolar circomstanoes, and in a settled order ; there 
is, however, a seventh fKMMMto bonorum, uH ex legibus^ 
granted, both where t&re is and where there is not a 
testament, and which has no settled place among the 

Q. Who were called to this extraordinary pauesHo f 

A. To it the praetor called all those to whom a law, a 
So. or a Constitation directed that postessio should be given, 
and he adled them in the order specified by such law, Sc. 
or Constitation (1). 

Q. Was there devolution in the case of poseeuio 

§ 8. A. The succession devolved firom one rank to an- 
other (ordo), and from one degree to another in the same 
rank ; 0. y., when there were several cognati^ each was 
called, in default of one or more of them who preceded, 
and the most remote cognaius was always preferred to the 
surviving husband or wife. 

Q. Did not the inwtor fix a period within which the 
possessio must be claimed P 

§ 8. A. Yes : for thus the devolution of the JuBreditae 
was accelerated ; the creditors of the deceased knew t9 
whom they had to look ; the time within which they 
might bring their actions was limited, and it was therefore 
less easv for them to get put into possession of the goods 
of the deceased (vide t. 12). 

Q. What was the period P 

§ 8. A. One year, when the claimant was a descendant or 
ancestor, and 100 days when he was a collateral. The time 
was to consist only of dies utiles (§ 10), t . «., it was not to 
include days on which the person to whom the possessio 
bonorum was offered was prevented from actine, either 
because he did not know his right had accrued, or be- 
cause the magistrate was not sitting (dies ntfasti), 

(1) Observe, the possessio unde legitimi was granted in a certum 
order to those called to the hareditas by the civU law, and to the 
possessio by the prstor ; bat in the possessio uti ex legibus it 
was the possessio bonorum — not the hareditcu — ^which was offered 
by the civil law ; by sach possessio, e, g^ the patron came in with 
the children of the freedman, by virtue i^ lex papia popptea. 


Q. What if possessio was not claimed by the person 
entitled within the proper time P 

§ 9. A. The riffht to claim was lost, and it passed to 
those called jointly with him. If called alone, the right 
to demand the possessio passed to those in the next rank 
(ordo) : the same thing happened when, before the period 
elansed, the possessio was renounced. 

Q. What was the form of demanding the possessio f 

^ 10. A, Formerly the party appeared before thepraior 
ana made a formal demand : but even before Justinian the 
form was abolished. It was enough to show, somehow, 
the will to accept. 

Q. Did it not sometimes happen that those to whom 
possessio was offered according to the edict did not obtain 
the goods of the luBreditois ? 

A, Yes : that was possessio honorum sine re, PoS' 
sessio was 6requently offered to persons already called to 
the hareditasoj the civil law: if such persons were 
satisfied with their title according to the civil law, and 
accepted the hcereditcu without demanding the possessio, 
this right devolved, at the expiration of the time, on the 
next rank (ordo) : but if the person on whom the pos- 
sessio thus devolved, demanded it, he got it sine re, be- 
cause the legal h»res was entitled to the (res) hsereditas 
in preference to him. 

NOYELIJB 118 AND 127 (a.d. 543, 547). 

Some years after the Institutes (a.d. 540) were published, 
Justinian abolished the succession rules of the Twelve 
Tables, which, notwithstanding the changes made by the 
edict by Sc. and imperial Constitutions, remained. 

By fTovella 118, the distinctions between the possessio 
bonorum and the hcBreditas, and between agnati and cog- 
nati, were abolished ; thenceforth, there were only three 
ranks of successors : first, descendants ; second, ancestors ; 
third, collaterals. 

Q. Explain the new rules of successioP 

A. 1. All the descendants, whether emancipated or not, 
adoptive or natural, male or female, in the nrst or more 
remote degree : if they were in the first, they came in per 
capita, i. e„ each for an e^ual share : if in a more remote 
degree, they came in per stirpes (1) . 2. Failing descendants 

(1) Children did not snoceed their father and his relatives, un- 
less the relationship arose from a legal marriage (Justis nuptOs) ; 

226 XZAHINATION IN [b. 3» T. 10. 

came the ancestors ; but if there were brothers or sisters of 
the whole blood, each ancestor who had a claim, and such 
brothers and sisters, came in per capita: the ancestor 
nearest in degree always excluding the more remote. If 
there were no such brothers or sisters, but two or more 
ancestors in the same degree, some by the paternal, some 
by the maternal line, the ancestors of one line took half, 
and those of the other line the other half. 3. Failing 
ancestors, there came, first, brothers and sisters of the 
whole blood; and failing them, brothers and siBters by 
the half blood, whether consanguinei-a or uterinucs. The 
children of a deceased brother or sister represented their 
father or mother, and succeeded jointly witn the surviying 
brothers and sisters (1) ; but grandchildren did not repre- 
sent their parents. Failing brothers and sisters, or chil- 
dren of brothers and sisters, the blood relation nearest in 
degree succeeded ; if there were several in the same degree 
they succeeded joer cajn^. 

Q. Were any persons incapable of succeeding P 

A, Justinian still held heretics to be so. 

Q. Did these new rules of succession produce any change 
in the rules as to twtela legitima f 

A, Yes : in accordance with the principle that such tu* 
tela should belong to the presumptive hseres, it was decreed 
that if there was no testamentary tutor the tutela should 
belong to the nearest male relations, according to the new 
rules of succession : the women being still incapable of 
being guardians, except a mother and grandmother, who 
might be guardians it they did not marry again, and re- 
nounced .the benefit of the Sc. Yelleianum, ^niioh forbade 
women from binding themselves for others. 



Q. Define acquisition by adrogatio. 

A, It is a mode of acquiring an univerHtaSt whereby 
the adrogator becomes proprietor of everything corporeal 
and incorporeal belonging to the adrogaius, 

bastards succeeded their mother (except in case, B. 8, t. 4), and the 
relations through the mother. 

(1) It was only by Nov. 127 that children of a brother and sis- 
ter of full blood were allowed to come in jointly with the ancestors 
by representation. QtKBre — whether nephews and nieces, in default 
of brothers and sisters of the deceased, succeeded |7er«^if|7«t. Pro- 
bably tbey did. 


Q. Explain the ori^ of this mode of acqniringf. 
. Pr» A. It was introduced neither by the Twelve Tables 
nor by the praetor, bnt by that general assent which con- 
stituted the unwritten law, and it was a consequence of 
that patria potestcu vested in the adrogator by adrogatio 
(B. 1, t. 11). 

Q. Did adrofi^tio transfer every single right of the adro- 
gatus to the adrogator P 

§ 1. A. ISTo : it did not transfer those which, bein^ due 
to the patron personally, were extinguished by the mtnima 
d, e., vtz., the rights of agnatio (1) and obligationes opero' 
raw (2). 

Q. Were not the adrogator's rights over the goods of 
the adrogatus limited P 

§ 2. A. Yes : in consequence of the modified effect of 
thepatria potestas upon the goods acquired by filii-f. (B. 2, 
t. 9); for neither natural nor adoptive parents acquired 
more than the usufruct of the goods of the adro^tus. The 
adrogator, therefore, acquired no property therem unless the 
adrogatus died in the adopted family, leaving no descendant 
brother or sister ; for then the adopted father succeeded 
like the natural father (B. 3, t. 2, jyrop.fin.) 

Q. Did the liabilities of tlie adrogatus attach to the 
adrogator as his claims did P 

§ 3. A, No (3) : the creditors of the adrogatus could not 
sue the adrogator directly, but they might do so indirectly 
in the name of the adrogatus. Ajid if the adrogator re- 
fused to answer for the adrogatus, the creditors might 
seize on the goods of the adrogatus, in order to their being 
sold according to the forms of law. 


Q. Besides the three modes of acquiring per universita- 
tern, viz., kareditas, possessio btmorum, adrogation was there 
not a fourth P 

(1) For the adrogatus became agnatus to every member of the 
adrogator's family ; and as he could i^ot be agnatus to two fami- 
nes at once, he coised to be a member of his orif^al family. 

(2) J. e,, officiaUs, services of duty ; and fdbrilea, professional 
services for his patron's benefit. Most freedmen had a profession. 

(8) For though the pater-f. had the benefit of any liability in- 
curred by any person to his filius-f., the filius-f. could not hind 
his pater-f., but the prsetor allowed him to be sued if he had 
benefited by the contract (B. 4, t. 7). 

2SS SZAKIHATION IK [b. 3, T. 11. 

Pr. A. The adjudicatio of goods for the purpose of suS' 
UUninff e^fraitchisemetUs, introduced W a rescript of M. 
Aurelius. — When a testator in inyolved circumstances be- 
queathed freedom to his slaves, and the lusredes insHtuti 
refused to accept the hsDreditas, the en£ranchisement failed 
(cciduca) : if, moreover, there was no hsDres ab intestatOj and 
the treasury refused the succession, the creditors, as there 
was no successor, were allowed to sell the bona vacantia in 
the name of the deceased {vide tit. seq,) I^ow, by this re- 
script (1) either all or one of the slaves to whom the freedom 
was bequeathed, or even a third party, might have the 
eoods adjudged to them, so that they guaranteed the whole 
debt to uie creditors, and agreed to effectuate the enfran- 

Q. How did this adjudication affect creditors and freed- 

§ 2. A, The goods having been thus adjudged, could not 
be sold as bona vacantia, because the person to whom they 
had been adjudged {Mensor idoneus) was in the same posi- 
tion, with respect to them, as the debtor or his hnreoes. 

llie slaves whom the institutus was charged to enfran- 
chise, were enfranchised by the defensor, and those whom 
the testator enfranchised directly became free, just as if 
the hareditas had been accepted bv the institutus : so that 
their patron was the deceased (B. 2, t. 24) . But (§ 1) on de- 
mand of the defensor, and with the consent of the slaves 
whose condition was in question, the adjudication might 
be under the en>ress condition that the defensor should be 
the patron of all the slaves enfranchised. 

Q. Did this kind of adjudicatio take place when the de- 
ceased had not enfranchised any slave P 

§§ 2, 4, 6. A. No : it could only be made when it was 
ascertained that the deceased woufd not have a successor. 

(1) Tlus is the history of the rescript : Yirginins Yalens, by his 
testament, gave several slaves thdr freedom. The instHuti re- 
nounced, the testament was avoided, and the slaves remained 
slaves. Not only was there no institutus by the testament, bat 
there was no saooessor a5 intestato, and so the goods wonld 
have been sold by the creditors, had not one Popilius Rnfns re- 
quested that they might be conveyed to him, he undertaking to 
effectuate all the bequests of enfranchisement, whether the sUives 
were enfranchised directly or hy fidei-commissum. M. Aurelius al- 
lowed him to appear before the magistrate to have the goods ad- 
judged to him, on condition of his g^oaranteeing the creditors the 
whole amount of the debts due (§ 1). 


For the object of the rescript was, Ist, to promote enfran- 
cbisement ; 2nd, to protect the memory of a testator, by 

Preventing his property being sold m his own name, 
therefore it applied only when some slave was enfran- 
chised, or when there was no successor, because, if there 
was one, he would be answerable to the creditors, who 
would therefore no longer be allowed to sell in the name 
of the deceased. 

Q. When every body competent to succeed had re- 
nounced, could there be such an adjudication, though the 
renunciation might possibly be decreed null by a restitutio 
in integrumt wmch the preetor might see fit to grant to 
minors of twenty-five years (B. 2, t. 8) P 

§ 5. A. Yes : and in case sl successor {X) who had refused 
was restored, he was reinstated in the position he occupied 
before his refusal ; but though he mignt resume the h»re- 
ditas, stiU he was not allowed to reduce to slavery those 
who, by the adjudication, had become free ; for, liberty 
once granted could not be revoked. 

Q. Did the rescript of M . Aurelius apply, unless the de- 
ceased had enfranchised slaves by testament P 

§ 3. il. The rescript mentions only enfranchisement by 
testament ; but the same benefit was extended to cases in 
which the enfranchisement was by codicil. It was also 
extended to enfranchisements made mortis causd and inter 
vivos ; for then, the defensor being answerable for all debts, 
no question could arise as to whether such enfranchise- 
ments were void, as made in fraud of creditors (§ 6). 

Q. Did Justinian add to M. Aurelius' rescript P 

§ 7. A, Yes : by a Constitution to be found C. vii. 2, 
16, Pr. 1. 


Q. Formerly, were there any other modes of acquisition 
per universitatem ? 

Pr, A, Yes ; one was by purchasing a debtor's goods 
after the order directing a missio in possessionem^ i, e., a 
putting into possession for the benefit of creditors (bonorum 
emptio) ; the other took place under special circumstances, 
by virtue of the Sc. Glaudianum. 

Q. When and how did such sale take place P 

A, According to Gains (3, §§ 77—81) and Theophilus, 
the creditors might demand Uie sale of goods, either during 

(1) E, g,, a hseres ab intestate^ under twenty-five. 

230 BXAMIBTATION HT [b. 3, T. 12. 

the debtor's life, or after his death. During his life : 1. 
When he fraudulently concealed himself, so as to prevent 
the creditors from summoning him {in jus) before the ma- 
gistrate (1) ; or when he was absent, and had left no one to 
represent mm {nee aftsenies defenduntur) (2) ; orwhen, being 
before the magistrate, he refused to plead, and to become 
a party to the action. 2. When he was condemned, but did 
not comply with the iudgment within the proper time (3). 
3. When there had been a cessio bonorum by the lex Ju- 
lia (3). After his death, when no one appeared as his suC' 
eeMor. — ^In all these oases the creditor or creditors got from 
the unstor a decretum which put them into possession of 
all tne debtor's goods ; but this decretum did not vest the 
property in the creditors ; the missio was simply that the 
ffoods might be kept as a pledge, and be ready for sale (4), 
{missio in possessionem rei servand(B causa) ; it continued for 
thirty days when the debtor was aiiye, for fifteen when he 
was dead. Durmg that |>eriod the sale was advertised (^i- 
hellis) by placards, in this form : " A.t our debtor, is in- 

(1) A suit began by the in jus vocaHo, The plaintiff summoned 
the defendant before the magistrate. If the latter did not obey 
he might be forced. But as no one, even a creditor, could ent^ 
a citizen's house, which was his castle, the debtor had only to shut 
himself up to avoid the suit and the judgment. Hence the prestor 
decreed Ihat the plaintiff should be put into possession of the goods 
of him quifraudaiionis causa latitat (B. 4, t. 6). 

(2) When a vindex or defensor appeared for the defendant, un- 
dertaking to pay the judgment, the suit was against the new de- 
fendant. But the missio against an absent person was amiulled, 
on good reason being shown. 

(3) ride p. 9 as to addictio. Instead of the <iddietio, the lex 
Julia allowed the debtor to get rid of the personal constraint by 
snrrendering everything to his crecQtors. It would have been 
useless to add any execution on the goods in addition to the cmel 
treatment allowed to the creditor over the person of his debtor ; 
hence no such execution wasnsed in the early times, except in certain 
special cases, when the creditor was entitled to seize as a pledge the 
goods of the debtor. The prostors, however, to get rid of personal 
constraint, introduced the missio in possessionem, which allowed 
the goods of the debtor to be sdzed in satisfaction ; hence addictio 
became less common. 

(4) If the party put into possession was resisted, the pnetor 
would grant him an interdict, or he might call upon the officers of 
justice. Per viaiorem aut per officialem pnefecU, out per magis' 
trains introducendms in possessionem (L. 5, § 27 D, «^ in poss, 
legal), A certain infamy was attached, even after death, to a 
debtor against whom there had been immissio ; but the deceased 
debtor might avoid it by appointing a slave hteres. 


solvent; toe, the creditors, are sellina his property ; let any 
pwrchaser appear." Thus, the creditors who had not yet 
appeared had notice. After such period one of the cre- 
ditors was chosen by the rest magister ; and afler the lapse 
of another period, and further advertisements, describing 
the conditions of sale (lex bonorum vendendorum) in this 
form : ** The pttrchcuer will undertake half the debtor* s 
debts ; so that he to whom one hundred solidi are due, shall 
receive fifty , and he to whom two hundred are due shall re^ 
cei/ve one hundred" such a^ent (magister) adjudged the 
ffoods to the party who promised the creditors the largest 

Q. What was the effect of this sale P 

A, The purchaser (bonorum emptor) succeeded per wni" 
versitatem to the debtor, t. e,, he became entitled to all 
his rights, and liable for such a percentage of the debts as 
was fixed by the conditions of sale. He did not acquire 
guiritarian ownership of the goods sold, but had them t» 
bonis. He sued and was sued by an actio utilis (not civilis), 
like ^possessor bonorum, for both poM^Mor and emptor were 
successores bv the prsetor's edict. 

Q. Was tne bonorum emptioused in the later period of 
the law P 

A, "No : by the missio, parties were still put into posses- 
sion, but the goods were not sold in the mass as an univer- 
sitas ; nor did the purchaser succeed ^er universitatem to 
the debtor. The things were sold separately by a curator 
bonorum appointed by the magistrate with the creditors' 
sanction, ana the price received was divided among them(l). 
When the value of the goods exceeded the debt, the cre- 
ditor was not put into possession of the whole (universitas), 
but onlv of as many as would cover his claim (D. 27, 10). 

Q. When did the Sc. Claudianum (a. d. 52) applv P 

A, An universitas was transferred by virtue of this Sc. 
(Tac. Ann. B. 12, c. 63), when a freeborn woman insisted on 
cohabiting with a slave, notwithstanding the remonstrances 
of his master; the woman became a slave, a&d all her pro- 
perty vested in the master by virtue of the potestas aomi' 
nica, Justinian abolished tins, as unworthy of his age. 

(1) Jnstmian says, that the sale of goods, as a succession per 
universitatem, was part of the^Wtcia ordinaria, i. e,, when it was 
requisite to go to the prator in order to get an CKtio and a 4udex, 
and that such sale ceased when tHHLjudicia became extraord%naria, 
t. e., when the cause was not sent by the prtetor to the Judex, The 
missio was the effect of the praetor's imperium (B, 4, t. 6). 

232 BZIHINATION IN [B. 3, T. l3. 


Q. What is an ohligatio 1 

Pr, A, An ohligatio (1) is a legal tie binding a man per- 
sonal! j (2), by such means as tlie ciyil law (3) affords, to 
the necessity of furnishing some Thing (4). 

(1) An obligation, considered with reference to the passive sub- 
ject, tfiz., the person bound {debitor), is called ohligatio {ligo, I 
bind), and in the old law nexum : with reference to the active 
subject, viz,, the person duming a benefit under it, it is called 
nomen or ereditum. 

(2) The ohligatio creates a tie or relation between two indi- 
^dufds {vinculum speciale) ; it gives rise to a personal, as distinct 
from a real right ; and the importance of this distinction is ob- 
vious, if we consider that the difference in the right creates a 
difference in the action enfordng it. — ^The existence of every right 
implies a duty on the part of every individual to abstain from any 
act which can interfere with its exercise; and in this respect per- 
sonal rights or obligations (proper) do not differ from real rights, 
for a tlnrd party is no more entitled to interfere with me in the 
exercise of my rights against my dehtor, than to hinder me in the 
ei^oyment of my property. But the difference between real and 
personal rights lies h^ : the former bring us into contact with 
their subject-matter, hut do not bind any person to us — do not 
subject any other person to more than the general duty of non- 
interference, — whereas the latter consist essentially in the relation 
between the creditor and debtor personally. It is this personal 
tie of dependence which constitutes the obUgatio proper. Hence 
the commentators say a personal obligation \ajus ad rem (a right 
to a thing), for the claimant is not directly connected with the 
subject-matter of the obligation : a real ohligatio is Jus in re (a 
right in a thing), because the claimant is so connected. These ex- 
pressions, however, are not so used in the texts. Again, real rights 
are sometimes called ahsolute, because they have an actual exist- 
ence for everybody, and everybody is equally bound to recognise 
them, whilst personal rights are called reloHve, because of the 
personal ties which they create. Property and its integral parts — 
servitus, hypotheca, superficies, emphyteusis — are real rights ; to 
wh;ch we may add those constituting the status of persons. 

(3) Secundum nostra civitatis jura. This includes the jus 
honorarium. Civil law is here contrasted with the natural law 
(the law of nations), and the implication is that circumstances in- 
volving only a moral duty or natural obligation do not create an 
ohligatio proper, unless the law of the state makes it obligatory, 
by attaching to it an action. 

(4) Furnishing a certain thing, alicvjus rei solvenda, here denotes 
generally, discharging the obligation by which a man is bound. 


Q. What are the chief means b^ which the civil law 
compels the fulfilment of an obligation P 

A. An action, granted to him who desires to compel, 
against him who refuses to fulfil the same. It is this 
action, attached to particular /ac^a, e.g,, to an agreement, 
which constitutes the essential distinction between a civU 
and a ncUural obligation ; for the latter resting only on 
natural equity and the law of nations, is not emorceable 
by an action (1). 

Q. What is the leading division of obligations proper? 

§ 1. A. They are either civil or pratorian, according to 
the source of the action by which they are to be enforced. 
The civil are those created and sanctioned by a lex, or 
otherwise recognised by the civil law (2). The pratorian 
obligations, or konoraria, are those created and sanctioned 
by m e pr aetor's edict. 

Q. Whence do obligations arise P 

§ 2. A, 1. From contracts ; 2. from (delicto) wrongs ; 3. 
from other circumstances (ftieta), which, though neither 
contracts nor wrongs, produce, by special provision of law, 
efiects like those produced by contracts or wrongs (3). 

whether such obligation be to give (a<2 dand/um), or to do (a<2 
faciendMnC)y or to procure the enjoyment of something {ad pra- 
st€Mdum),'^PreBstare applies genex^y to everything which can be 
the subject'inatter of an obligatio, but more specifically it means 
a benefit to be procured, a thing to be procured without transfer- 
ence of property, as in the case of hiring and letting, or sale 
(B. 8, t. 23). 

(1) A natural obligation, however, was not without some effect 
by the civil law : thus, it gave rise to an exception, so that sums 
paid in pursuance thereof could not be recovered ; but it gave rise 
to no action, and this distinguished it from a civU obligation. 
The action being the essence of the obligation, they are naturally 
discussed together ; hence in the Digest we have (p. 44, t. 7), de 
ohUgaUonibua et acHonibus, 

(2) Legibus <mt certe jwre civUi, That is tenatuB-consulta» 
imperial constitutions, and customs, which included the opinions 
of the prudentes. 

(3) ObUgationet out em coutrtictu neucufUmr out ex maleficio 
out proprio quodamjwre ex varHs causarumflffuris, — Obligations 
are commonly said to arise from contracts, wrongs, quasi-con- 
tracts, and quasi-wrongs. Observe, however, Justinian does not 
say ex quasi contractu, ex quasi delicto, but quasi ex contractu, 
quasi ex delicto (subaud. nascerentw) ; that is, they exist as if 

234 SZAMINATIOir IK [b. 3, T. 13. 

Q. What ifl a contract P 

A, It is an agreement (conveniio) which the civil law 
makes obligatory, by attaching to it an action. 

Q, What is a conveniio, padio ? 

A. It is fche agreement ot the wills of two or more per- 
sons as to the same thing. 

Q. Were agreements generally obligatory of them- 
selves P 

A. No : in Soman law an agreement did not in general 
create a civil obligation which could be legally enforced (1). 

there had been a contract or a wrong, though in truth there has 
been neither. The results of ih&fcbcta resemble those of a contract 
or wrong, but the facta themselves remam facta still (t. 27, pott). 
(1) The history of Roman law in the matter of obligations is 
carious. The earUest form of a dvil obligation was by mancipa^, 
f. 0., solemn sale per €m et Ubram. By this form property was trans- 
ferred and agreements were made binding. But the words used 
on each particular occasion determined the object of the parties, and 
defined the condition on which the piece of brass (sob) was given» — 
in short, constituted the law of the mancipatio (legem mancipii di- 
cere). The Twelve Tables said qwtm neaom faxit mancipwrnque 
uti Ungua tutncupavit, itajiu esto, " Generally," as Qallus ^Uus 
says, " nexum is everything transacted by the piece of brass and the 
bdbnce;" but particularly it applied to the obligation contracted 
per cu et Ubram (*). But, as in testaments (p. 120), the outward 

(*) The following is a short account of the distinction between 
nexwn and addictio (p. 9) according to Savigny. — Grote^s Greece, 
voL iii. p. 211 : — 

The primitive Roman law distinguished between a debt arising 
from money lent (pecwnia certa credita), and a debt arising from a 
contract, wrong, or any other source. As to money lent, the creditor 
had an easy remedy against the person and the property of the 
debtor. For the debt was proved before a magistrate ; i£ within 
thirtv days thereafter it was not paid, the debtor, by mamu iwfectio, 
(p. 9) was taken before the magistrate again, and if he neither paid 
nor provided a surety (vindex), the creditor took him home and 
confined him in chains for two months : if within the two months 
the debt was not paid, the sentence of addictio was pronounced, 
whereby the debtor might either be put to death or sold as a slave, 
and his property seized. 

Now this process, which continued to be the law for more than 
a century after the Twelve Tables, applied only to debts arinng 
from loatu — and then only to the principal, not to the interest — 


In most cases, besides the mutual consent, something had 
to be transferred, certain words to be uttered, or written 
documents used, before an a^preement became obligatory 
and a contract arose (1). Without these incidents, an 

form was disused, and the nwncup<Uio, i. e,, certain solemn words, 
spoken or written, alone remained, so it was with obligations. 
Hence the siipulatio, a contract created by a formal question and 
answer (spondes? spondeo), and the expensilatio, a contract creat- 
ed by a formal entry in the private books of the parties (t. 16, 21), — 
both forms of contiact derived from the itexum, and both reserved 
at first for citizens, but afterwards so modified as to be used even 
by peregrini, — Agam, in some very simple contracts, c. g., a mere 
Icmn or deposit, the obligation was created by mere dehvery : re 
perflcUwr (t. 14). Lastly, four contracts, all very common, were 
transferred from the jus gentium and became part of the civil 
law, oir., sale, hiring and letting, partnership, mandatum; these 
arose and acquired Innding force by the bare consent of parties 
(t. 22). — Notwithstandixig these changes, the nextun long sur- 
vived in theory, and Qaius (3, § 173) mentions it as existing 
in his time, si quid eo nomine debeatur quod per eu et lihram 
gestum sit, observing that the effect of mancipatio might be dis- 
solved by the same solemnity which created it (solutio per <bs et 
libram), — We may add, that besides the obligation per cm et 
lihram, there was another solemn mode of contracting, viz,, by 
oath, as Cicero observes in his Offices, Nullum vinculum ad adstrin' 
gendamfidem jur^urando ma^ores arctius esse voluerunt, ut in- 
dica/nt leges in Xll. TdbuUs, this obligation was applied to the 
engagements of a freedman to his patron (p. 16). 

(1) Without the consent of the parties, i, e,, without an agree- 
ment, there can be no contract ; but, vice versd there may be 
an agreement without a contract : obligations and contracts are 
not properly synonymous. Contracts are causes, sources of obliga- 
tions ; but not the only ones, for these may arise from delicta 
(wrongs) and from various (arcumstances to which special enact- 

the interest being claimed by a gentler process, which gave no 
remedy against the person of the debtor. 

The creditor, therefore, in oinler to bring his claim for interest 
within the stringent process applicable to the principal, gave such 
daim the form of an action for money lent : and the nexum or 
nexi obligatio was a fictitious loan, by which this object was at- 
tained. In this way the process of addictio was made to apply 
not merely to claims for the principal of money lent but fi:>r the 
interest, or to any other claims, to enforce which the creditors had 
only a remedy against the property, and not the person of the 
debtor. Thus it was that the debtor became nexus, and so 8nl]gect 
to addictio. 

236 EXAMINATIOK IN [b. 3, T. 13. 

agreement by which one promised to ^ye or to do some- 
tmng continued a bare agreement (nuda pactio) without 
any action attaching, ^erertheless, there were certain 
agreements obligatory of themselres (1). 

Q. How were contracts divided, as to their mode of 
creation P 

A, Into fonr : for they arose by the delivery of some 
Thing (re) ; by solemn words (verbis) ; by writing (literiay, 
or by mere consent (consensu) ; hence contracts were real, 
verbal, written, and consensual. 

Q. Were not contracts also divided into named and 
unnamed ? 

A, There were some contracts defined by the civil law, 
to which a special name (proprium nomeri) and a special 
action were attached. Thus, we find sale, mandatum, lo- 
catio, commodatum, each raising a special action, venditif 
empti, mafidati, locati, commodati, &o. These are named 
contracts. Others had no particular name, and raised no 
special action, but were enforced by a general action, called 
preescripHs verbis. These are the unnamed contracts. 

Q. Explain the origin of unnamed contracts, and the 
jjome presscriptis verbis? 

A, As the science of law advanced, the named contracts 
were analysed and accurately defined, and to each a spe- 
cial formula of action was attached (2), in which the contract 
creating the action was specified by name. Hence the 
judex, whose powers were defined by the formula, had to 
see whether the legal incidents of the contract named ex- 
isted, nor could he pronounce judgment unless the facts 
proved in the case involved such incidents (3). ^ow there 

ments have attached consequenoes, aimilar in some cases to those 
of a contract, in others to those of a wrong. 

(1) Some agreements, not binding of themselves by the old law, 
became so either by legislHtive provisions, or by the praetor's edict. 
Thus, the pactum donatioms was valid under the Christian em- 
perors by mere consent of parties (p. 104). Such agreements 
(after they became contracts consensual) were called pactiones 
legitimts, or pratorian pacts, to distingnish them both from the 
contracts of the old law and from the ordinary nuda pacta, which 
raised no action and had no binding force. 

(2) There were ten contracts with names, mutuum, eommodatum, 
depositum, pignus, stipulatio, conti'acts made Uteris, sale, locatio, 
partnership, and mandatum. Afterwards emphyteusis was added. 

(3) For instance, when the question concerned an alleged sale 
by the demandant, the part of the formula which set forth the &ct 
on which the suit was raised (demonstratio) was thus : Quod Aulus 


were very many agreements, which, although somewhat 
analogous to some of the named contracts, still did not 
include every necessary constituent of any one of them, 
and therefore could not be enforced by any action appro- 
priate to them. Thus, an agreement by which two neigh- 
bours agree to lend each other their bullocks to plough is 
something like a letting and hiring (locatio), but still it is not 
one, because the price of a locatio must always be a sum of 
money, which is not the case here. Were such agree- 
ments, therefore, never binding P Was there no cation at- 
tached to them P Certainly there was. True, they were 
never of themselves binding (t. 15) ; but sometimes the 
fact that one of the parties had executed his part of the 
agreement, was held to be a legal ground of obligation, so 
as to bind the other party {suhsit causa), and a general 
formula was invented embracing all such cases. Hence, as 
no specific name had been attached to the contract alleged 
by the demandant, the circumstances constituting the «n- 
named contract were explained at the head oi the for- 
mula (prdBscHptis verbis). Such was the origin of the 
wnnamed contracts ; and such the reason for denominat- 
ing the action to enforce them, actio in factum prascriptis 
verbis (1). 

Q. When did performance by one of the parties consti- 
tute a legal ground of obligation P 

A, Although it is difficult to lay down any definite rule, 
it is clear that such legal ground existed, and that the 6mn 
tio prascriptis verbis was raised whenever one of the 

A^erius Numerio Negidio hominem VINDIDIT, Then: Qua 
de re agHur, quicquid ob earn rem N, Negidium, A, Agerio dare, 
facere, oportet , . . id Judex N, Negidium A, Agerio con- 
demnato, si non paret ahsoloito. Hence the judex could not 
condemn the defendant {N. Negidium), unless the incidents of a 
sale were shown to exist by the facts proved in the course of the 
investigation before him. 

(1) Ttaa action was first used by the jurists. Hence it is an cuftio 
dvUis, as distinct from an action of the praetorian law. This 
action (in which i^e factum occurs only m the demonstratio of the 
formula) must not be confounded with another action, called in 
factum, to distinguish it from the action in jus, wherein the fact 
on which the defendant's condemnation depends occurs in the 
intentio of the formula. The action in factum proBscripiis verbis 
is not in factum but in jus concepta, hecause the question for the 
judge is not whether a particular fact is proved, but whether the 
&cts stated and proved amount to the legal idea of the contract 
or obligation alleged. 

238 EXAMINATION IN [b. 3, T. 13. 

parties had, in consequence of an a^eement, transferred 
the property of a thing, either that the other party mieht 
transfer the property in another thing {do ut des) (1), or that 
such other party might do something {do ut facias), ca,, 
construct or repair a building, or paint a picture. Again, 
when one of the parties had done something in order to 

§et property transferred (facio ut des), or in order that 
le other party might do something {facio ut facias), the 
question whether such an agreement, followed by part 
performance, produced the actio prtescriptis verbis, seems 
to depend on whether any analogy can be traced between 
such agreement and the contracts of depositum, commodity 
turn, sale, hcaiio, mandatum, and partnership {2), 

Q. Was a nerson who had transferred certain property 
(datio), in order to his receiving a donatio in return, or in 
order to his having that performed which the transferee 
refused to perform, entitled to any other than the actio 
pnsscrwtis verbis ? 

A, X es : in place of having recourse to that action, which 
was for indemnity (3), he might claim back his property 
by the eondictio causd data, causd non secuta, wnich was 
open whenever a person had aliened a thing, intending 
another party to do something which he did not do (4). 

Q. Were there not other divisions of contracts P 

A. Yes: Thus, contracts were divided into s^fTialktffmixtic 
or bilateral, giving rise to reciprocal obligations, and ac- 

(1) This is tbe case of exchange — an unnamed contract, which 
was not obligatory and raised no action, except when one party 
to the exchange had delivered the Thing. The agreement, how- 
ever, appears to have had a name, though the word permutatio 
denoted rather the fact of exchange when completed than the 
agreement to do so. An exchange, therefore, raised no special 
action hut only an actio prcBseriptis verbis, which was common 
to all utMomed contracts. 

(2) But when one party, after having done something, had fiiiled 
to receive the consideration agreed upon, and was not entitled 
to the civU action prcRscriptis verbis, his might still have t^pratO' 
rian action, viz,, de dolo malo, in order to repair any damage 
caused by fraud, i, e,, with intention to injure him. 

(8) By the actio prtBscriptis verbis the oefendant who had not 
fulfilled his obligation was compelled to indemnify the demandant 
by paying a sum equal to the damage incurred, as the amount was 
not fixed by the formula, but left to the discretion of the judex 
(auicquid dare faeere oportet id eondemnato); it was an €ictio 
tncerti, and in the texts it is often so designated. 

(4) The eondictio causd dattt, &c, is a eondictio proper (p. 68). 


tions for the benefit of each of the contracting parties (1), 
and unilateral, in which an obligation was contracted by- 
one only of the parties (2). There was another division, 
into those oi good faith, in which the extent of each party's 
obligation was determined by equity and good faith (ex ttquo 
et bono) ; and contracts of strict law (stricti juris), in which 
the extent of a party's obligation was invariably determined 
by the terms of the agreement (3). Unilateral contracts 
are contracts of strict law. 


Q. Which are the contracts real, i, e,, created re ? 

A, All the unnamed contracts are real : for in all of them, 
imless one of the parties has given or done something in 
part performance of the agreement or pactum, it is nudtim- 
pactum, and raises no action. Of the named contracts 
four are real : 1. Mutuum, loan for consumption ; 2. Com- 
modatttm, loan for use ; 3. Depositum ; 4. Pignus, or 
pledge. The agreement to lend, to deposit, or to pledge 
IS nudvm pactum ; until delivery it is not a contract, and 
raises no action. 

Q. Define mutuum, 

Pr. ^. It is the contract by which one contractor gives to 
the other a certain quantity of things, estimated in weight, 
number, or measure, such other party being bound to re- 

(1) As sale, locatio, partnership. — D^ositum, commodatvm, 
pledge, and mandatum are sometimes called tmper/%c^ fiynallag- 
matic contracts, because they do not of necessity raise mutual obli- 
gations, and because it was only by something subsequent to the 
agreement that they rtused a contrary action in favour of the 
depodtee, the commoditarius (to whom the loan was made), the 
pledgee and mandatariMSf whereas they always raised a direct 
action in favour of the depositor, the lender of the res oommodata 
mandator and the pledger. 

(2) The only contracts really unilateral are mutttimm, sHpulatio, 
and the contract Uteris, 

(8) So actions of good faith give the judex (then called arbiter) 
power to fix the value, which was not permitted in actions stricti 

(4) By ihs thing, or perhaps by a factum, viz., the delivery of 
the thing ; this seems to be the meaning of re, as contrasted with 
verbis and Uteris. 

240 BXAICINATIOK IK [b. 3, T. 14. 

torn an equal quantity of the same species and quality 
{cduB efusdem natures et gualitatis) (1). 

Q. What name is given to Things valaed according to 
weight, number, or measure P 

A. Ites fiingihiles, because, according to the intention 
of the parties, they are substituted for and represent each 
other (in suo generefunctumem recipiunt : quatenus mutua 
vicejunguntur) (2). Bes fungibiles are sometimes defined. 
Things consumed in the using them (qua ipso usu eonsu* 
muniur) ; but this is inaccurate, first, because the things 
usually consumed by use, as money, are not resfungihiUss 
if borrowed adpompam et ostentationem ; e. g,, when pieces 
of money are borrowed to mark points in a game, and 
are to be restored in the same identical shape, or when a 
money-changer borrows certain coins, not to exchange, but 
to ornament his collection (3) : secondly, because many 
things not consumed by using may be fUfiaibiles : thus, a 
copy of a work may be sent by one bookseller to another, 
in consideration that the latter shall send back, not the 
identical copy, but another of the same sort. It is, there- 
fore, the intention of the contracting parties that makes a 
Thing resjungibilis, 

Q. Whence the name mutuum ? 

Pr. A. From ex meo tuum : for this contract assumes 
that there has been a transference of property from the 
lender to the borrower. 

Q. If the property in a thing delivered, in order to oon-^ 
stitute a mutuumt was by some means prevented from 
vesting in the borrower, was that enough to extinguish the 

§ 1. A. Yes : there was then no mutuum ; e. g,, when a 

(1) In case of mutnnm, the borrower is bound to return only the 
quantity received. If the borrower bound himself to give back 
more, e, g,, interest, it was necessary to superadd a nova ohUgatio 
by way A sHpulaiio, 

(2) I. e,, genera (classes of things), which can represent eachother, 
are distinguished from species (specific things), which cannot re- 
present each other. 

(3) In these cases there is no nueiuum, but a commodoiium. It is 
often said that brute aTiimals and other thmgs, which though of 
the same species are yet individually different, cannot be the sub- 
ject-matter of a mutuum: nevertheless if a horse-dealer give two 
horses, on condition of receiving two others of the same quality, 
this is clearly a mwtuum, and the horses are resfitngibiles. 


pupillus lent a sum of money without his tutor's autho- 
rity, the property in the money was not transferred to 
the borrower, because the pupillus was incapable {non con- 
trahit ohligationemt B. 2, t. 8, § 2). The pupillus, there- 
fore, instead of a personal action raised by the mutuwm, 
was driven to his vindicaiiodisdiuiBi the person to whomhd 
gave his money, so Ions at least as it continued in exist- 
ence, that is, had not oeen consumed by the borrower 
. Q. What action was raised by a mtiiwiim ? 

A. The condictio proper. — GeneraUy condictio denotes 
any action where the claim is, that the defendant is 
bound by the civil law, either to give or to do some- 
thing {dare facere oportere) ; but particularly condictio 
(proper), as defined by the formula si paret dare oportere, 
denotes an action in which the demandant insists that 
the defendant is bound to transfer the property to him 
(dare) — an action in which the defendant must be con- 
demned, if it appears that he is liable to make the transfer 
which the demandant claims. In the condictio proper, 
the sum or thing forming the subject-matter of the de- 
mandant's claim is pointed out and defined (2). Hence 
the name condictio certi (3) ; and this was the action raised 
by the nmtuum (4). 

Q. Define commodatum. 

§ 2. A, It is a contract in which one party lends another 
a thing, to be used by him gratis, the borrower under- 
taking to restore it after it has served his purpose. 

Q. Distinguish the commodatum from tne mutuum. 

§ 2. ^. In case of mutuum, the property in the thing 
was transferred to the borrower ; in case of commodatum, 

(1) So he who by mistake received money not due to him, was 
bound (§ 1) to pay it back, and might be compelled so to do by 
condicUo, just as if there had been a mutuum, though his lia- 
bility did not arise out of any contract ; for he who gives with the 
intention 6f paying {aolvendi ammo), means rather to extinguish 
than to create a liability. 

(2) E. g,, Si paret . . . sestertium decern nUlUa, or Jkmdum 
Thtaculanwn, or hominem Stichum . . . dare oportere. 

(3) When the subject-matter of the obllgatio is not defined, it is 
called condictio, or actio incerti, 

. (4) As the terms condictio and condictio certi apply to every 
action by which the liability to transfer a thing definite is en- 
forced, we use the term condictio certi ex muttio, or actio mutui, 
in case of a mutuum, 


242 IZAXINATION IK [b. 3, T. 14. 

the deliyery of the thin^ to the borrower rested neithei: 
the whole property, nor even such part thereof as the ri^ht 
of use sometimes implied : the borrower had a mere licence, 
an authority to use it (1). Hence, whOst in case of nmtuumf 
the borrower might give back one thing for another, in case 
of commodatiim,he was bound to give oack the Tery same 
thing he had receiyed. 
Q. What if the thing delirered was lost by accident P 
^2, A. In case of mutuum, accidents, such as shipwreck, 
fire, robbers, though thev steipt the borrower of his pro- 
perty, did not free him from his liability, not merely be- 
cause he was proprietor of the thing lost (2), but because 
the thing lost was not the thing which he was liable to 
restore ; but in case of a commodatum, such accidents dis- 
charged the borrower, because he was liable to restore 
the thin^ borrowed, and its loss rendered his ohUgatio or 
liability impossible, there being no subject-matter to which 
it could attach. 

Q. Is the commoditarius liable for any accidents ?' 
§ 2. A. Yes : when occasioned by any negligence of his ; 
for the commoditariu9 who has the use of the thing gratis, 
is liable for every sort of negligence : nor is it enough for 
him to apply the same diligence in respect to the thing lost, 
as is usual with him in respect to property of his own, pro- 
vided that another person by the exercise of greater care 
(dUigentior alius) would have been able to preserve it (3). 
Thus, a commodUarius is responsible if ^ings lent to him 
have been stolen, but not if forcibly carried away, and he is 
responsible for things fordbly carried away, if he has ex- 
posed them to such danger by taking them on a journey. 
Q. Was the oommodaium always gratuitous? 
A, Essentially (4) so ; for when the borrower promised 
to pay a consideration, it was a locatio, 

(1) The eommodUairiuB had no akgolute right of qae mi 4V, but a 
mere relaUve right of vue, daimed nnder an AUgaUo, whidh bound 
the lender to albw hhn sueh use (p. 282^ n. 2). 

(2) The rule is resperit domino; now in case of a oommod(Uum 
the borrower, t. «., tlie holder, is diixdiarged; but in case of sale, 
if a thing sold has not been delivered, bat has perished by accident, 
the seller is discharged from any liability to transfer the property, 
though he is certainly entitled to the pnoe (t. 23). 

(8) The req)onsihQity of i^e oommodiiariw is less extemdve, 
when the loan is an advantage to the lender also. 

(4) In (Kmtraota a distinotian is made between what is ecMii^Mi^ 
what is natural, and what is accidental. That is enentitU to a 


Q. What actions are raised by a dommodatum ? 

A. Two : the actio diteeta and the actio contraria com' 
moda ti. 

Q. Who might be plaintiff and who defendant in the 
actio directa commodati ? 

A, The lender of the Thing might sue the borrower, to 
compel him either to restore the thing after he had made 
such use of it as the terms of the loan allowed (for the 
lender oonld not claim it before), or to pay the damage 
occasioned by his neglect. 

Q. Who might be plaintiff and who defendant in the 
actio contraria commodati 7 

A, The borrower of the Thing might sue the lender for 
the indemnity due to him ; for the contract, though it did 
not directly raise a liability on the lender's part, might 
do so ; e. g,i the lender would be liable to inaemnify the 
borrower for any extraordinary expenses required to pre- 
serye the thing, or for any damage occasioned in using it, 
by reason of defects whicn the lender did know of, but the 
bcNTOwer did not. The action thus allowed to the borrower 
was called contraria, to distinguish it from the lender's 
action, which was called directa, because it flowed directly 
from ^e contract, inasmuch as the thing received must of 
necessity be restored to the lender ; whereas the actio con- 
iraria, though a result of the contract, arose out of cir- 
cumstances subsequent to it, and which might or might 
not come to pass. 

Q. Define a deposttum. 

§ 3. A, It is a contract in which one man (depositarius) 
receives the Thing belonging to another, whicn he is to 
keep gratis, and to restore at the will of the depositor. 

Q. When a thing was deposited for a certain period, 
could it be demanded back before the lapse of such period P 

A, Yes: in this respect a depositum differed from a 
eommodatum, and the reason is, that since the depositee had 
no object in prolonging his seryices, which were purely gra- 
tuitous, the period was considered to have been fixed for 
the sole benent of the depositor, in order to prevent the 
depositee frt>m restoring the thing at an inconvenient mo- 

oontract, without which it cannot exist. That is natural to a 
contract, which is generally implied in it, but which may be sub- 
tracted from it without destroying it. That is accidental to a 
contract which is not naturally included in it, and does not form 
part of It, except by special agreement ; e, g,, when a considera- 
tion is stipulated for in a mwtmMn, 


241 SXAMIVATIOV IN [b. 3, T. 14. 

ment : but tlie depositee was not entitled to offer to restore 
it before the expiration of the fixed period, unless he had 
strong reasons tor so doinfi^. 

Q. ' Was the depositee responsible for negligence ; e. g.^ 
if the deposit was stolen P 

A. No (1) : he was not liable unless he had acted frau- 
dulently and with gross negligence, which was deemed 
fraud ; unless, indeed, he had offered to take the deposit, 
in which case he was responsible for slight negliji^ence ; for 
in general the fact of offering to incur an obhgation in- 
creases its stringency. 

Q. What actions were raised by a deposittwi ? 

A, Two : the actio directa depositit which was allowed 
to the depositor, in order to enforce the restitution of the 
thing deposited {2), and the payment of damages arising^ 
from the fraud or the gross negligence of the depositee : 
the (ictio contraria depositi, which was allowed to the de- 
positee, in order to compel the depositor to reimburse 
nim the sums expended (3) by the depositee on the deposit, 
and to indemnify him against any damage which the depo- 
sit might have caused (4). 

Q. What is a pignus ? 

§ 4. ^. A contract by which something (5) is deliyered 
to a creditor to secure nis debt, to be returned in specie 
after the debt has been paid. 

Q. What actions were raised by a pignus ? 
. A, The debtor had the actio directa pigneratiti a against 
the creditor, to compel him to restore theThing itself^ after 
the debt was discharged for which the pledge was given (6), 

(1) He who employs a negligent depositee has himself to blame 
for the Aelection (§ 3). 

(2) The depositum necessariitm, or the deposit fWmi neoessity, 
was a deposit which a man was compelled to make in conseqiienoe 
of some accident, such as a fire, &c. A sequeHratio was when two 
parties deposited something with a sequester, to abide a oertiun 
event ; e, g., the event of a suit, the deposit to be restored to the 
snooessfid party. 

rs) Even ordinary ones, as for nourishment of the depositum. 

(4) The depositor was liable for every kind of neglect. 

(6) Moveable or immoveable (p. 110). A hgpotheca was a mere 
charge, and there was no deposit. The word pigwus (pledge) de-. 
notes, Ist, the contract of pledge ; 2nd, the right in re acquired 
by the creditor by means of the contract, when the debtor was ca- 
pable of disposing of the thing pledged ; 8rd, the thing pledged. 

(6) But the emperor GorcUan. decreed that the creditor might 


or to compel the creditor to pay tlie surplus ia his hands 
in case the thing had been sold and the debt paid (p. 112) ; 
and in aQ cases the creditor had to pay damages even for 
slight neglect (1). Secondly, the actio contraria pignera* 
titia, allowed to the creditor, to reimburse himself for 
expenses (2) incurred in preserving the thing pledged, and 
for any damage occasioned to him through the pledge, by 
the debtor's negligence ; or, lastly, by me creditor being 
dispossessed by the true ov^ner, where the debtor had 
pledged something not his own. 

Q. Could a person who gave the property of another as 
a commodatum, a deposit, or a pignus, bring the direct ac- 
tions peculiar to these several contracts, in order to recover 
the Tning so lent, deposited, or pledged P 

A, Yes: for the contract, though the subject-matter 
thereof was property belon^png to another, was still a valid 
contract between tne parties, and raised mutual obliga- 
tions, particularly that of restoring the thing to him from 
whom it came ; unless, indeed, the person who received it 
was himself proprietor : for no man can hold his own 
property as a commodatum, a deposit, or a pledge. 
. Q. From what you have said, it seems that delivery 
might, according to the intention of the parties, transfer 
or not transfer the property, and so create a mutuum, a 
commodatum, a deposit, or a pledge : was it the same with 
mancioatio and cessio injure f 

A, No : they always transferred the property ; but there 
might be an agreement called fiduda, hj which the new 
proprietor would be obliged to re-mancipate and to re? 
assign (recedere) the thing. Thus the pater-familias, in 
order to dissolve his authority, generally maricipated can' 
tractafiducia (p. 37). So, also, m depositing a thing with 
a friend, or pledging it with a creditor, the ownership was 
transferred to them, to be afterwards revested, accord- 
retain the pledge after payment of the debt to secure which it was 
given, in order to cover other debts due by the same debtor. 

(1) The responsibility of a creditor holding a pledge is the same 
as that of a commoditctriug ; but it is greater than that of a depo- 
sitee, because the depositor is the only party benefited, whereas the 
pledge both gives the debtor increased means of credit, and secures 
the creditor in the payment of his debt. 

(2) Even ordinary ones, because the creditor, holding a pledge 
like the depositor, and unlike the commoditariua, could not make 
use of such pledge. Where he agreed to take the fruits of the 
pledge in the plaice of interest i\i&pign%i9 became cmtichresis. 

246 SXAMIKATION IN X.'^ 3, T. 15. 

ing to the a^eements which acoompaoied the manciptiiio 
and cessio injure. These agreements created a contract 
of fiducia, wnich raised the actio directa and the actio 
contrariafiducuB (1). 



Q. Define obligations created verbis. 

A, They are those arising from a sttpulatio (2). 

Q. Denne stipulatio, 

Pr, A. It consists of a question, by which one of the 
contracting parties asks the other whetiier he will promise 
to gire or to do something, and of the answer by the other 
party that he does so promise. The stipulatio is not strictly 
a contract, but a mode of contracting, a form for giving 
agreements a solemnity which they would not otherwise 
possess. And this appears from the etymology of the 
word; for stipulttm denotes something nrm, solid, from 
stipes, a stem. 

Q. What actions were raised by a stipulatio ? 

Pr. A. Two : each of them allowed to the stipulator (pro- 
misee) (3)^ but yarying with the nature of the stipidatio-* 
■ ■■ ■ ■ 

(1) MancvpoHo and cessio iniure,fiducuB catua, did not apply to 
provincial lands (pp. 76, 78). Hence ^epignoris datio was intro- 
duced, which transferr^ the possesion without the property, and 
might take place between ^cre^^rmt. Though Gaius (2, § 60) and 
Paul speak of fnancipaUo and cessio in ji¥re, fid/wist causa as exut- 
ing in their time, it had entirely dlsappeorod in that of Justi- 
nian. Observe the history of law as to pledging : 1. ManeipaHo 
flducuB causa, transferring the property to the creditor ; 2. JPi^* 
noris daUo, transferring the possession, but not the property; 
3. Sypotheca (an invention of tiie praetors), giving a mere right of 
action, and leaving both the property and the possession in the 

(2) Beddes this, there were two other verbal obligations ; for, 
1. A freedman bound himself by oath to do certain services for 
his patron (pp. 16, 235). And, 2. A wife and her paternal an- 
cestors bound themselves by dictio dotis to give the dos to the 
husband. But under Theodosius, the mere agreement to give* the 
dos was binding, and dicHo dotis ceased; obligations by oath 
being confined to a particular case, stipulatio is the only verbal 
obligation discussed by Justinian. 

(3) SHpulari is properly to have a promise made to one by 
the person questioned ; but in a wider sense, stipulantes denot^ 
both contracting parties, that is, he who puts the question and he 
who answers it (uterque stipulantium, § 1). 

B. 3« T. 15.] THE IVflTITUTBS OF ITTSTIiriAir. 247 

vie,, Ist. The e(mdioH0 proper, or eondiaiio eerii (t. 13), 
when the etipalatio ia oertam ; 2nd. The action ex stipu- 
latu, or condiciio incertit when the atipttklio k oncer- 
tain (1). 

Q. When was the stipidatio certain P 

A, When a man bj it became liable to me (p. 241) a 
thing certain ; if not a apeeific article, at all omenta one 
whereof the apeoiea, quality* and quantity were aaceitained 
(^id, qudUt tpunUumqu^ sit) ; e. g,^ the alave Stichua, ten 
pieces of giMt lOOmnphores of wine, of the best quality, 
and pf a particular distriot. 

Q. When was the stipuktio uncertain P 

A. Whenever its subject-matter was something which 
a man had promised to do^ or which he had promised not 
to do ; or when the thing due was indeterminate in its 
quantity or qnalitv (2)* 

Qfi Why was the stipulatio for something to be done 
always uneertainP 

J 7. A, Because it was impossible to compel one, who 
PKMnised ta do a thiug, to do it spedfioally, e, ^., to 
buila a house, or to paint a picture $ and because the action 
raised by such an MigaUo could result only in a pecu- 
niary condemnatiOi the amount of which (being left in- 
definite in the formula had to be regulated by &e judex, 
according to the interest which the demandant had m the 
exeoatioii of the promise by the defendant. This interest 
was indefinite, and varied with circumstances ; but it lay 
on the demandant to prove it. Hence, in order to be 
relieved jfrom the necessity of making euoh proof, and to 
prevent a stipulatio continuing uncertain (ne quantiias in- 
eerta sit, § 7), tiie creditor often took the precaution of 
fixing, by a supplemental stipulatio, the sum which the 
debtor should pay, in case the obligation to do the particular 
thing was not performed (3). For, then, when tne debtor 

(1) The ucHo ex eiipulatu, wluch, as opposed, to cofidicHo 
certi, denotes an action raised by a stipulation the si^bject-matter 
of which is incertum, was sometimes used as a general term for 
any action nused by a stipulatio. 

(2) JS.ff,, the stipulatio rem pupilli salvam fore (p. 53), or 
donmn (BdiflocMfi are uncertain ; so also when a slave was stipu- 
lated fbr, but no particular one was mentioned ; or when a quan- 
tity of wine was stipulated for, but no quality was mentioned. The 
stipulatio for a usufruct or other servitude was conadered uncer- 
tain. All such stipulations raised the eondicHo imcerH, 

(3) Thus, «f Ua factum non erU tunc pcnuB nomine decern aureos 
dare spondee ? This was call|| the penal clause. 

248 EXAMINATIOK IK [b. 3, T. 16. 

failed to perform his promise, the creditor claimed not by 
the condictio incerti id quod interest^ but by the condictto 
proper, the sum fixed by the supplemental stipulatio. 

Q. Did a stipulatio, in order to its validity, require par- 
ticular words P 

§1.-4. Before the reign of Leo, certain special words 
were required, c.^r., Spondes? 8pondeo: Promittis? Promit- 
to: Dabis? Dabo : Fades? Faciam: Fidejubes? Fideju- 
beo : Fidepromittis ? Fidepromitto, A stipulatio not in the 
regular words, e.g,^ Polliceris? Polliceor, would not have 
created any obligation. Moreover, the special words might 
be translated into Greek, or any other language (1), pro- 
vided the parties understood each other ; for the question 
and answer might be in different languages. Accord- 
ing to Leo's Constitution (a. d. 469), there could be no valid 
stipulatio, unless the parties gave their consent by some 
words or other ; and there could be no verbal obligation 
without a stipulatio, i. e,, a direct question and answer. 

Q. How might a stipulatio be made P 

§ 2. A. It might be unconditional or conditional, or for 
a particular period {in diem). 

Q. What was its effect if imconditional P 

^2, A. The result was, that the obligation might be re- 
quired to be executed immediately ; so far, at least, that 
the creditor (stipulator) who sued immediately would not 
be liable to the charge of plus-petitio (B. 4, t. 6) ; for a 
debtor was, of course, entitled to a reasonable time for 
the performance of his promise (t. 19, § 27). 

Q. 'When was a stipulatio said to be for a particular 
period, and what was its effect P 

§ 2. A, When the contracting parties fixed upon the 
period when the obligatio was to be executed — thus, Decern 
aureos primis calendis Martiis dare spondes ? By annexing 
a period, the time for payment was postponed until such 
period had expired (2), so that the stipulator lost his ac- 
tion if he brought it before. Observe, however, that 
although the period suspended the action of the creditor. 

(1) Except spondes ? spondeo, which was peculiar to Roman 
citizens, and therefore part of the civil law, whereas the other 
forms were open to peregrvni (Gaius 3, § 93). 

(2) The stipulator (promisee) must not b^n his action on the 
day fixed ; for if the debtor paid the last minute of that day he 
would still be within the period, for he was entitled (§ 3) to the 


it did not affect the existence of the debt ; in other words, 
though the debt was not demandable {dies venit) until the 
period had expired, still the liability arose {dies cedit) 
whenever the ttipulatw was made (statim quidem dehetur; 
peti . . . non potest) ; and in this respect a fixed period 
differed essentially from a condition. 

Q. When the stipulatio indicated a particular day on 
which t^ic obligation was to cease (1), did the arrival of 
such day instantly determine the obligation P 

§ 3. J[. No. The modes of determining obligations were 
fixed by the civil law (t. 29, post), and lapse of time was 
not one {ad tempus deheri non potest). If a man, therefore, 
agreed by stipulatio to pay every year a particular sum, 
until the deatn of his creditor, the obligation, although its 
term was fixed, continued after the decease of the creditor, 

i'ust as if it bad been an unconditional stipulatio, and his 
laeredes had the action raised by the stipulatio ; but the 
debtor might bar it, and avoid the condemnation by the 
exceptio, or ^\e&,pacti conventi, or doli malt, 

Q. When no fixed period was expressed, but some place 
for payment was fixed, other than that at which the par- 
ties contracted ; e, a,, when a stipulatio was made at 
Eome to pay at Carthage, was such stipulatio absolute P 

§ 5. A, "No : a fixed period was implied. It was pre- 
sumed that as the execution of the contract was referred 
to another place, the parties also referred to another 
time, viz., such a period of time as the distance required ; 
otherwise, the obhgation, being impossible, would be null. 
Hence, a promise made at Eome to pay the same day at 
Carthage is declared by the text to be void. 

Q. When was a stipulatio conditional P and what was 
its effect P 

§4. A, It was conditional when the promise was made sub- 
ject to an uncertain event, as, Do you promise to give such 
a sum, if Titius is appointed consul ? Such stipulatio raised 
no obligation, unless the case provided for happened, and 
when it did, then, as the text says, committitur stipulatio. 
Till then there was no debt : iJie stipulator had a bare ex- 
pectation (spes est debitum iri), transmissible (2), however, 

(1) This was a stipulatio ad diem (ad quern) ; it was ex die 
(a quo) when the day upon which it was to be executed was 

(2) But (B. 2, 1. 14, § 10) in a will neither the htsres institutus 
nor the legatee could transmit anything to their hseredes if they 
died before the condition happened. The reason is this : in obli- 


260 sxAxnrAXiov nr [b. 3, t. 15. 

to hi« lueredes, and wliich the promiMor could not take 
from him (1). 

Q. According to that, what is the effect of this : Do ytm 
promise to ffive me so much, ff I do not go tip to the 
capitol 7 

§ 4. A, It cannot pOBsibly raise anj obli^tion or any 
action nntil the death of tne party stipnlatmg for it (2). 
For then only can it be certain that the stipnlator has not 
^one up to the eapitol, and that the ne^tiye (3) condition 
has been fulfilled. In case of obligations, a man cannot 
offer the cautio muciana, so as to enable him to demand 
the execution of the contract whilst the condition is in 
suspense (p. 172). 

Q. Is a stipulatio subject to a condition proper, when 
made subject to an eyent past or present ; e. g,, If THht* 
has been consul^ or if Mavius is aUve, do you promise to 

§ 6. A, No : for, either the fiftct is not true, and tfaim 
the obligation which does not now exist neyer will : or tiie 
fact is true, and then the existence of the fact giyes instant 
effect to the contract. It matters not whether a fact is or 
is not known to the parties ; if the fact is really so, that 
is enough to preyent the obligation being soapended. 

gationsy the two parties contract for themselves and for thdr 
heredet ; whereas testamentain^ dispodtions are supposed to be 
made on considerations personal to the legatee or hares insHtutus. 
Nothing being due b^ore the condition was fbMlled, it follows 
that if a man received anything promised under an uniTiliUled 
condition, an action would Ue against him for its recovery ; but if 
a person stipulated for a thing after the lapse of a fixed period, the 
debtor would have no right to recover what he voluntaxily pud 
before the lapse thereof, because he was then imder an obH^tioa, 
though it could not be immediatdy enfonsed. 

(1) The promiasoT must do nothing to hinder the fulfilment of 
the condition ; if he does, he will lose the benefit of such con- 

(2) (§ 4). Therefore the gtipolator cannot bring the action ; it 
must belong to his hseredes. In this respect the clause if I go vp 
to the capUol is equivalent to when I die. But in other respects 
these two clauses materially difler. For as the stipulator must 
die at some time, cwn moriar is not a condition, but a fixed 
period ; but as he may or may not go up to the eapitol, the stipa'* 
latio is sulject to this uneertain &ct, and is therefore conditioikaL 

(3) A negaMve condition is not folfilled imtil the fiut involved 
has become imposnble. 

B. 8, T!. 16.] THE imtsTfrm of trrwnsiixt. 261 



Q. May there not be more than two parties (m) (1) to 
one fltipulatio f 

Pr, A. Yes : there may be in the same obligation 
seyeral joint stipnlators or joint promissorfl. 

There were several joint Btipmators, when the promis- 
Bor was questioned by several persona whether he would 
undertake to give or to do the same thing, and he an- 
swered all at t£e same iime, that he would. Suppose, for 
instance, that Titius and Msvius questioned Sempronius 
whether he would promise to give ten pieces of gold, 
and he answered, utrique vesirum dare spondeo. If l^e 
promissor answered successively first one question and 
then another, there would be as many different obligations, 
and not a joint stipulatio, for that expression appBed ex 
duisvely to the oononrrenoe of several stipulators in one 

l£ere were several joint promissors when several per- 
sons answered the stipulator after they had all (2) been 
questioned on the same subject {eosdem decern), 

Q. What was the effect of a stipulatio in which there 
were several joint stipulators, or several joint promissors P 

§ 1. u4. Its effect was to make each loint stipulator a 
creditor for the whole {eolidwm etngulis debeiur), and each 
joint promissor a debtor for the whole {singuli in solidum 
tenentur). But as the same thin^ was due only once, the 
p^ment made by one joint promissor discharged all the 
others, in like manner as the payment to one loint stipu- 
lator discharged the promissor m regard to all the other 

Q/ May the debtor pay any one of the joint stipulators 
he pleases P 

(1) Setu properly denotes the debtor to whom the question is 
pat ; but generally the name rei signifies the parties. 

(2) If, affcer having questioned one and noeived a direct answer, 
the stipnlator qnflst J oned another and reodved another answer, 
there wonld be two different tti^pulaHoneg, not two joint promissors 
in the one stipulatio. But it was of no moment whether the qnes* 
tion was put to the promissors, and they answered together in the 
plural number (tpondeiis ? tpondemua) cat separately, in the sin- 
gnlar {tptmde* f tpondeo). Hence, it was the form of the con- 
tract, ». e., the mode in which the questions and answers followed 
each other, which nude each of the jomt promisEKxrs liable for the 

252 EXAHIKATIOK IK [B. 3« T. 17. 

A, Yes: unless one of the stipulators has already 
broaf^rht an action on the contract ; for then such stipulator 
is the person to be paid. So, after action brought against 
one of the joint debtors, it would seem that the rest ought 
not to be liable ; but Justinian allo^v^ed the creditor to sue 
each joint debtor successively until the debt was paid. 

Q. Of co-promissors might some be bound uncondition- 
ally, and others for a fixea period, or conditionally P 

§ 2. A, Yes : the persons answering the stipulator be- 
came oo-promisBors from the mere fact, that the same 
thing was promised by all of them at once : it mattered 
not whether some promised unconditionally and others for 
a fixed period, or conditionally ; nor did the fixed period, 
or condition attached to the obligation of the one, preyent 
those being sued who were unconditionally liable. 

Q. In case of a commodatum or depositum, or other 
contract created without solemn words, might there be 
several creditors entitled to claim, or several debtors liable 
for the whole P 

A, Yes : in such contracts, as in a stipulatio, the con- 
tracting parties might, if they so intended, impose on se- 
veral a common obligation, and make each liable for the 
whole amount (D. 45, 2, 9). 


Q. Could a slave make a stipulatio ? 

Pr, A, Yes : he might stipulari (1) ; t. e,, have a promise 
made to him in right of his master ; in fact, he had the 
same capacity stipulari as the person on whom he was 

The slave who belonged to a h»reditas not yet ac- 
cepted (adita) might have a promise made to him m right 
of the deceased, just as if he were living, because the 
hsreditas represented the person of the deceased (2). 

(1) Siipulari to have a promiBe made to him, but not to bind 
himself or his master, unleBs the slave was acting hy his master's 
oommand, or in the management of his own pecuUum ; in these 
cases, however, the matter ooiild be sued only by pnetorian action 
(B. 4, t. 7). 

(2) There were exceptions (»i» plerisqtie). Thus, in order to ac- 
qmre an hiereditas, of which the slave was h€Bres insHtutue, he 
required an order (p. 114) ; to obtain which he had to wait nntU the 
haim the new master had accepted the hnreditas of the slave's 
deceased master. 


Q, To whom did the benefit of the promiBe made to a 
slave belong? 

§ 1. A. Whether the promise was made to the slave ex- 
pressly for his master, or for himself, or for another slave 
of the same master, or whether it was made to him, with- 
out specifying any one, the benefit of the obligation always 
belonged to the master ^1). 

Q. When the slave stipulated for somethinf^ personal to 
himself; e, ff., that he should have a right of passage, 
did the master acquire the right promised to the slave P 

§ 2. u4. No: the licence was to the person of the stipula- 
tor himself (ut sibi (2) liceat) ; and the promissor, who was 
not bound to allow any one but the slave to pass, might 
refuse a passage to any other, even to the master. Never- 
theless, the master obtained the benefit of the stipulatio in 
this way, that he might insist upon having his slave past, 
and might sue ex itipulatu to compel the promissor to 
fulfil his obligation. 

Q. When the slave-stipulator belonged to several mas- 
ters, which of them was entitled to the benefit of the 
stipulatio P 

§ 3. A, Each was entitled according to the share which 
he had in the slave, unless the stipulatio was made by 
direction of one only, or on behalf of one of them by 
name ; for he alone was then entitled to the benefit of 
such stipulatio. So, also, we except the case where one of 
the masters was incapable of taking advantage of the sti- 
pulatio ; as, e,g„ when he was already owner of that whi^ 
the promissor had bound himself to give. Lastly, if the 
slave named his master, as bv saying, Do you promise to 
give IHtius and Seius 1 the oenefit of the stipulatio was 
divided, not according to the amount of each master's 
property in the slave, but equally between them. 


Q. How are stipulations divided P 
JPr. A, Into conventional, judicial, prtstorian, and com" 
mon, t. e,, those both judicial and pnetorian. 
Q. Explain the conventional, 

(1) So it was with filii fiunilias (B. 2, t. 9). 

(2) But the slave might stipulate for his master to pass, whereby 
a servitude would vest in the master. The case in the text is a 
personal lioenoe, and does not attach to the land. 

864 mKAMSMATiom nr [b.3^t. 18. 

%Z. A, Tbis nmie apvliea to tiKwe Tolmftiiilf emfted 
hj ihe parties, wzthoat tbe interfeieiiee of ft judex or the 

Q. What are/M&toZ fttqnilatione ? 

A. Those wluak a judex (2) alone had power to direet 
to be eonehided. Siieh are sttpnlatioiia de dolo earnHo^ de 
persequetido wervo qui infuaa eit^ resUtmemdove prHitK 

Q. Explain the nae of the itipalatio de dole eamHo. 

§ 1. A, It was directed by the judex, in ocderto providb 
demandant with a aeeoritf (eamUo) that the judgment 
giren in hie faroor should be executed without frand on 
the defendant's part. Thoa the judex, whilst condemn* 
ing Titios to gire me a slaye, thee p roper ty in whidi he 
hiS onjiist] J refused to transfer to me, would direct him 
to gtre security bj slqndatio, that he had done no finudii^ 
lent act to lessen the ralne of the slare; for Tithis, 
though he gare me the slave, might eive him in a de- 
teriorated condition, e.g», poisoned. The same security 
was required of a defendant condemned to transfer a 
Thing to a proprietor who had brought a real action for 
it p. 6, 1, 20, 45). 

Or Ibrplain the purpose of iJie Hipmlaiio depenequendo 
servo, ifc, 

A. Suppose vindieatio brought for the property in a 
shire, the property in which hu, during the suit, vested 
fay ueueapio in the holder ; and suppKMW the slave escape 
before judgment, not by any complicity of the defendant, 
but by some act of negligence on his part, it is dear he 
cannot be compelled to dc^ver what he has not got ; bat 
being proprietor, and, as such, alone capable of Allowing 
the shive, and claiming him back, the judex directs him 
to become bound by stipnlatio to pursue the slave in order 
to recover the same {de pereequendo eervo), and to deliver 
him over or to pay his value (retiituendove pretio). If the 
defendant has not even been guilty of negligence, he is 
only bound to promise that the slave shall be delivered 
up when he again comes under his control, and to assi^ 
his rights of action to the demandant, who will exercise 
them at his own risk (D. 4, 2, 14, 11). 

(1) Of such itipnlatioDS there were as many as there were tlungs 
to be contracted for (§ 3) ; the others were decreed only under 
certain drcumstooces. 

(2) Before a judex the parties were injudicio, before the prwtor 
injure (p. 6). 

B. 3, T. 18.] TBB IlfSTITUTBS OF JU6TIKIAK. 265 

Q. What were ^epraiorian stipulationB P 

§ 2. A. Thoee whioh oould be ooncladed only by order 
of the prator, and not of iixe judex s e, y., those damni in^ 
fecti and legtUorum, Under the praiarian we indlade the 
(BdiUtian stipulationg, vis., those contracted by order of 
the sdiles ; for thejr, like those ordained by tne prsstor, 
emanate from a jrMf>}atr&te jusdicens (a jurismctione) (1). 

Q. Explain the object of the stipulatio damni iirfheH 
(imminent danger). 

A. It was used when the proprietor of something dan<* 

Seroosly defeotiTe, e.g., an insecure house, was obliged by 
he prator to guarantee his neighbour against the damage 
wherewith he was threatened (2). If the proprietor 
refused to undertake this liability, the pr»tor put the 
demandant in possession of the house. 

Q. Explain the cautio legatorum, 

§ 2. il. The stipulatio decreed by the prstor, on de- 
mand of the legatees, by which the neeres guaranteed the 
execution of those legacies which were not to be immedi- 
ately executed ; for without this guarantee the h€ere8 might 
squander the whole estate and become insolyent, whilst 
the legatees were incapable of suing before the term ex* 
pured or the condition was fulfilled. 

Q. What are common stipulations ? 

§ 4. ^. Those which may be decreed either by the 
prffitor [in jure) or by the judex (in judieio) : such as 
stipulations rem ealvamfore jntpilli and de rato, 

Q. Explain the former. 

A, That by which the tutor and the fidefuasores (tu* 
tor's sureties) guaranteed the preservation of the pu- 
pil's fortune («fS^ p. 63). This guarantee was given oe- 
fore the tutor entered on his functions, and it was the 
prffitor's duty to see it provided. But it sometimes hap- 
pened that a tutor sued the debtor of a pupillus, and 
Drought him, in course of the actio, before a judex, such 
tutor having neglected to furnish this cautio : now, if the 

(1) It was an ediUtian stipulation, by which the vendor was 
compelled to guarantee that uie article sold was free from a par- 
ticukr defect. 

(2) Observe, injury to another by property of mine does not 
r^se a direct daim ag^nst me, for nothing can be demanded from 
me if I abandon the cause of the damage (B. 4, t. 8, 9). Thus, if 
my house faHl on my neighbour's lancC he has no direct action 
against me. And this is why the pretor compels me bcdRtrehand 
to promise him an indemnity. 

256 BXAUINATIOH IK {b. 3, T. 19. 

defendant took this objection, the suit conld not proceed ; 
but to remove the difficulty (si aliter res expediri non 
potest), the judex mi^ht direct the tutor to enter into a 
stipulatio rem pupilli, &c. 

Q. Explain the stipulatio de rato or ratam rem kaberi, 
A. 1^ was requirea from a procurator, who conducted 
A suit in another's name ; by it tne procurator was bound to 
obtain the ratification of mm whose cause he had taken in 
hand. Properly, it was directed to be ^iven by the 
praetor before the litis contestatio ; but if this had been 
nof^lected, and there was reason to doubt the existence 
of the authority (procuratio) which the demandant 
<;lainied, the jiidex in the case might direct the security 
to be given (B. 4, t. 11). 


Q. On what grounds were stipulations void P 

A» 1. On account of their subject-matter (Pr. §§ 1, 2, 
22, 21). 2. On account of the persons by whom (§§ 7, 8, 
.9, 10, and 12), or for whom (§§ 3, 4, 19, 20, 21), or be- 
tween whom (§ 6) they were made. 3. On account of the 
manner in which they were created (§§ 5, 18, 23). 4. On 
account of the time (S§ 13, 14, 15, 16, 26, 27), or the condi- 
tion (§§ 11, 25) attacned to them. 

Q. When was a stipulatio void by reason of its subject- 
matter P 

§§ 1, 22. A. It was void when a man stipulated : 1, for 
some nonentity; e* g,, a centaur, or for something which 
had ceased to be; e.g., a slave already dead(l); or 
2, for something not the subject of commerce ; e. g., 
a thing sacnwi, religiosum, or publicum, or for a free- 
man ; or 3, for something which, though the subject 
of commerce, could not be acquired by the stipulator (2) ; 
e:g,, for something of his own, which, therefore, could not 
be acquired by him again ; or 4, for the doing of an im- 
possible act, or one contrary to the laws, or contra honos 
mores; e. a., a parricidal or sacrilegious act (§ 24). 

Q. In these cases did the stipulatio continue void after 
the obstacle to its inception had ceased P 

§ 2. -^. Yes. Thus, even though a thing publicum or 
sacrum became the subject of commerce, though the free- 

(Vi Bnt a man might stipulate for a thing about to be. 
(2) Thus, a Christian slave could not belong to a Jewish 


man became a slave, thougli the tning stipulated for 
ceased to belong to the stipulator, the stipulatio continued 
Toid, at least when it was unconditional. 

Q. Suppose the stipulatio was conditional and made 
under the presumption that the thing stipulatod for might 
become capable of being transferred to the stipulator? 

§ 2. A, The stipulatio was still void as to thin^^s which by 
their nature were excluded from commerce ; e. g., a freeman, 
a thing sacrum or puhHcum, But when the stipulatio was 
stopped in its inception by a personal and temporary 
obstacle, the stipulatio was valid, if, on the condition being 
fulfilled, the obstacle was removed, because it was only 
then that the obligation began to exist (p. 249). Thus 
there is nothing to prevent me stipiilating for what is now 
part of my property, in case it shall cease to be mine. 

Q. Dia a stipulatio, originally valid, become null by its 
becoming impossible for the stipulator to acquire the thing 
stipulated for P • 

§ 2. A. Yes : for, as a general rule, an obligation is 
extinguished when such a state of things arrives as would 
have prevented the obligatio arising. If, then, the thing 
originally promised ceased to be in commercio, and perished 
absolutely, the debtor was discharged, provided that this 
state of things came to pass without anj neglect or any 
act on his part (sine facto ejus), and providea he was not 
behindhand; i.e., after his time in delivering the thing 

Q. Had a stipulatio any effect if the stipulator after- 
wards acquired the subject-matter thereof? 

A, It was not absolutely void unless the promissor had 
become liable from mere love and affection ; and unless 
the stipulator had acquired the thing without valuable 
consideration ; e.g,, by becoming hseres of its owner ; for 
in this case the stipulatio was void because diLCB causes 
lucrativcB (p. 164) cannot concur in respect to the same 
thin^, and m favour of the same person. But if valuable 
consideration had passed, and the debtor could not give 
the thing promised, he had to pay the value of it. 

Q. When was a stipulatio void on account of the con- 
tracting parties P 

§ 7. A. When one of them was a lunatic, an infant, 
d^af or dumb, or when it was made between absent per- 
sons, or one party was subject to the other. 

Q. Why was a lunatic incapable P 

§ 8. A, Because there was no valid stipulatio without 

258 BXAMIKATIOir ut [b. 3, T. 19. 

consent, whieh a Ibnatic, except in lacid uiterTala» could 
not give. 

Q. Was an impubes, above the age of mSeaicj, always 
capable of Contracting a verbal obligation P 

I 9. A, He might stiptUari, i.e,, have a promise made 
to nim ; and he might it sui juris promise on obtaining his 
tatOT's anthority (1). But a filius-f. under fourteen could 
not bind himself even with the pater-f.'s authority (§ 10). 

Q. Why were persons deaf and dumb incapable P 

§ 7. A» The latter, because they could neither put a 
question nor give an answer : the former, because the 
stipulator (questioner) and promissor were required to hear 
each otiier (p. 129). The same reason applies to persons 
absent (§ 12) ; for by absent we mean those who are so 
distant nrom each other as not to be able to hear each 
other (^ 

Q. Why was a stioulatio void when one of the parties 
was subject to the otner P 

§ 0. Jl. Because unity of interest so confounded the 
persons as to make them one. For, suppose a stipulatio 
made by a slave for his master's benefit, the master beine 
promissor, this was as if he had made a promise to himseli 
(t. 17, ante). So it was when the filius-f. stipulated with 
the pater-f. (§ 4), unless the obligatio related to the peca- 
lium, of which tiie stipulator was owner. 

Q. When was a stipulatio void by reason of the person 
for whom it was made P 

(1) Aceording to the text (§ 10), pupilli were: 1, infcmtes; 2, 
it^anHa proanmiy both bdng under seven years; 3, pubertaM 
prowifiU, above seven (p. 50). At first the third class alone were 
capable of contracting (on obtaining the tutor's authority, when 
necessary), because during the two former periods the impubes^ 
as to inteHigence, non multwn afwrioso distcmt; but afterwards 
the hhfamiuB proximus had the same capacity to contract as the 
pubertaH proximus (p. 48). Hence the division into two periods 
(B. 1, t. 21, B. 4, 1. 1). 

(2) To avoid all firaud Justinian declared (§ 12), that when there 
was a writing (instrumen^wn) proving that a stipulatio had been 
made between two persons present at a particular phioe and time, 
such document should be condoaive until one of the contracting 
parties was proved to have possed the whole day in question else- 
where. And in order to prove this writings were necessary, be- 
cause the general rule was, that parol was not admitted against 
written proof. The emperor, however, admitted witnesses if 
worthy of credit (idoneos). 


§§ 3, 21. A. Wlien the promissor answered that a third 
party would give or do something ; for this promise ob- 
viously did not bind the third par^ : and as the promissor 
did not promise to give or do anywing himself, the stipu- 
lator haa no action against him (1). On the other hana, a 
stipulatio made for Uie benefit of a third party was nully 
unless the party making it had some interest in it (2). 

Q. Was it impossible to stipulate for any third person 
whatever P 

A, No : though a man could not stipulate for those not 
of his family {extranet, § 4), he might do so for those on 
whose behalf he might acquire. Thus a filius-f. or a slave 
might have a promise made to them for the pater-f. ; the 
pater-f. might have a promise made to him for his slave, 
and so might his filii-f. as to anything, at least, which he 
might acquire through them. 

Q. Cite cases in wnich a stipulatio made hj another was 
valid because the stipulator had an interest m it. 

§ 20. A, Suppose I have an agent to manage my busi- 
ness, or a creditor who, not being paid, is about to avail 
himself of a penal clause in his favour, or to sell what I 
have pledgea with him, and I have a promise made to me 
(stipulatio) by a promissor by which ne binds himself to 

give a certain sum to my agent or my creditor,-^6uch stipu* 
ttio is valid because I am interested that mv agent shall 
not want money, and that my creditor shall oe paid. S<l^ 
again when a tutor resifi^ned his tutela to his co-tutor, 
"mio promised along with a surety rem vupilli aaham 
fore (p. 53), the retiring tutor might avail himself of such 
stipulatio, for though discharged from the active duties 
of tutor, he continued responsiole, and was therefore inte* 
rested in the security obtained for the pupillus (3). 

Q. In stipulating for or on behalf of a third party, may 

(1) But if one promised to make another give or do something 
(§ 3), or if one became bound to pay a penalty or an indemnity, in 
case another should fail to give or to do something, the promise 
was seod. 

(2) If the stipulatio were made for the Btipnlator and for a 
third person (nbi et aUi, § 4), ttie stipulator could chum the bene- 
fit of the half only (Gaius, 3, § 113). 

(3) Henoe generally a tutor could not have a promise made to 
him (stipulari) for the pupil, though in some cases a pupil ac- 
quired an actio utilis by a contract made by the tutor. Properly 
the stipulator was the pupil himself, but sometimes his own, or a 
public slave (pp, 33, n., 63, n.), acted. 

260 EXAMINATION IN [b. 3, T. 19. 

I not stipulate for a penalty to myself; t. e„ a sum to be 
paid by the promissor if he does not perform the stipulatio 

to the third Varty ? 

§ 19. A. Tes. As stipulator I have a clear interest, and 
therefore an action, not indeed for what has been promised 
for the third party, but for the penalty promised to me (1). 
Thus, a stipulatio to this effect : Do you promise to give 
your house to Titius? is null; but add. And tf you do 
•not give it, do you promise to give me 100 pieces of gold ? 
and it becomes valid. 

Q. Thoug^h I cannot name a third person as the person 
to be benefited by a stipulatio, may I not name him as the 
person to receive payment ; e. or., may I not stipulate for a 
thing to be i^iven to me or to Titius r 

§ 4. A. Yes ; still the stipulator is the sole creditor ; 
the third party named to receive the thing promised, is 
only a mandatory, an assistant allowed to the stipulator 
by the agreement, not to reap any beneUt from the stipu- 
latio, but to facilitate its execution. This assistant is 
sometimes called adjectus solutionis gratid, and payment to 
him, though against the stipulator's will (etiam eo invito)^ 
discharges the debtor; but then there is the actio man- 
dati open to the stipulator against the adjectus, to compel 
him to refund what he has received. 

Q. When was a stipulatio void on account of the mode 
in which it was created P 

§ 5. A. When the answer did not agree with the ques- 
tion ; as when the stipulator made his proposal absolutely, 
and the promissor promised conditionally (2). 

Q. Wnat if one party stipulated for ten sesterces, and 
the other party in his answer promised five P 

§ 5. A. Justinian, following Gains (B. 3, § 102), held 
such stipulatio void. But Paul and Ulpian (D. 45, 1, 1, 

(1) The penal clause does not represent the interest of the plain- 
tiff in the first stipulatio ; for the penalty is incurred, although 
the plaintiff have no interest in it {etiam ei cujus nihil interest, 
§ 19). Kor is it so connected with the promise to which it is at- 
tached, that the promise being null, the penal clause is null ; for, 
as is said in § 19, such clause might be attached for the very pur- 
pose of .indirectly compelling the promissor in a stipulatio to ftilfil 
a promise not binding upon him. In truth, the penalty stipulated 
for is the subiect-matter of a distinct conditional contract, liability 
under which is to accrue if an anterior promise is not performed. 

(2) It was not necessary to repeat, in the answer, all the words 
of the stipulator's question. 

|!. 3, T. 19.] THB IK8TITUTB8 OF JUSTIKIAX. 261 

3, 4 ; D. 45, 1, 134, 1), held the inequality of the Bums 
not to be a difference in the subject-matter of the contract, 
but a mere difference in quantity ; so that, according to 
them, the answer souared with the Question, and the 
stipulatio was a valid agreement for the smaller of the 
two sums, because omne majus in se continet minus, 

Q- What if the question embraced seyeral things, and 
the party answering promised only some of them P 

§ 18. k. The stipulatio was good as to every thing in- 
cluded in the answer, and yoid for the rest. For each 
thing constituted the subject-matter of a separate stipu- 
latio ; if the question, therefore, included several stipula- 
tions coupled together, but yet distinct, one of them 
might be good, though the other might be void from the 
want of a fit answer of the promissor. 

Q. When the thing promised is not the thing asked 
for. is the stipulatio voiaP 

§ 23. A* Yes : even when the parties use the same name 
to s'gnify different things. If, e. ^., a party stipulate for 
the slave Stichus from me, and if by my answer promising 
him the slave, I intend Pamphilus, whose name I suppose 
to be Stichus, the stipulatio is void ; but if the parties 
use different names to mean the same thing, it is vslid. 

Q. When is a stipulatio void on account of the condition 
attached to it P 

§ 11. A. When the obligation is subject to a condition 
either impossible or cwiUra honos mores s e,g,, that a man 
shall touch the stars, or commit murder. 

Q. What if the condition is the not doing an impossible 
thing ; e, a., the not touching the stars P 

§ 11. A. This condition made the obligation absolute 

Q. What is a stipulatio prteposiere concepta / Is it valid P 

§ 14. A, One in which the time fixed for its execution 
precedes the happening of the conditiou, as thus: {f 
such a vessel returns to-morrow from Asia, do you promise 
to give me so and so to-day f Now this is a contradiction 
in terms, for an obligatio must exist before one can be 
bound by it. Till Leo's reign suoh stipulatio was void : 
he held it binding in agreements as to dotes (dowrieB), and 
Justinian gave it the same effect as one simply conditional, 
and as if no period were attached to the promise. 

(1) But when the thing not to be done was unlawful the obli- 
gation was void, for it would arise ex turpi causa (§ 24). 

262 EXAMUrATIOB IK [b. 8, T. 19. 

Q. When was a stipnlatio roid on account of the period 
fixed for its execution P 

§§ 13, 16. A, Prior to Justinian it was Toid when its terms 
showed that it was not to be carried into effect until after 
the death of the psrties interested ; t. «., the promissor, or 
the stipulator, or the pater-f., who, having tne stipulator 
under his power, would acquire through nim the oenefit 
of the obligatio. To stipulate for or to promise a thing for 
a period when either party will not be in existence, is the 
same as to stipulate tor or to promise a thing on behalf 
of a man's hseredes. Now, although a claim or a liability 
might be transmitted to the hnredes of the contracting 
parties, still it could not take its origin in the person of 
such (1). Nevertheless, Justinian allowed the stipulatio 
in question all the effect which the parties intended. 

Q. Prior to Justinian, could the moment of death be 
taken as a fixed period (cum mortar vef cum marieris) P 

6 15. A. Yes : the moment of death is the last moment 
of life (2) ; for persons alive are the only persons who die. 
Therefore, when this was the period taxen, the obligatio, 
or the right to enforce it against the debtor, originated or 
▼ested in the creditor. 

Q. When the stipulator or promissor died before the 
condition was fulfilled, was the stipulatio void P 

§ 25. A. No : the rights of parties descended to their 
hiipredes (p. 250). 

Q. When a writing showed merely that some person had 
promised, but not tnat any onestion had been put, was 
that sufficient to prove a stipulatio P 

§ 17. A, Yes : to say that some one had promised im- 
plied that the promise had been made with tne solemnity 
required to make it valid and binding, viz,, by answer to a 

(1) But a man might stipulate for a thing, poti mortem twtm, 
thus : bendes the stipulator and promiSBor, a third party, called 
ttditipulator, was add^ to whom, on his own behalf the promissor 
made a promise, and who, after ^e stipulator's death, was to re* 
oeive the thing promised, for which, however, he was acoomitable 
as cuMectus solutionU gratia ; for, ohserve, the acUtipulator was 
a crecutor of the promissor, but at the same time a mere mandates- 
rku, or agent, of the stipulator and his h€Bredes, 

(2) A fortiori, he was alive on the day previous ; hut yet, prior 
to Justinian, the day before the death could not be taken as the 
fixed period (§ 13). The reason was» that the day before was not 
known until the day after the death ; but the same is true of the 
moment of the death. This is a mere subtlety. 

B. 3, T. 20.] THE IK8TITUTX8 OF lUVnVlJLS, 268 

previous anettion. It lay on him who denied thit to prove 
that the forms had not been used. 


Q. What is 9^ fidejussor f 

Pr, A, One who by stipnlatio (1) guarantees that an* 
other will perform his undertaking (2). The object of a 
fideftissio was to secure the creditor [ut diliaentihus cautum 
sit) so that its value as such was increasea by the number 
of the sureties. 

Q. What sort of obligations might be secured by fide- 
jussio P 

§ 1. A, Every sort : t. e,, all obligations oontraoted re 
verbis, Uteris or consensu (3). Nor aid it matter whether 
the obligatio, secured by a fidejussor, was a civil or a no- 
tural one ; in this sense, at least, that a fidejussor might 
become security for the (natural) liability of a slave to nis 
master or to a stranger. 

Q. Did the liability of a fidejussor pass to his haredes f 

f 2. A, Yes (4). 

Q. Might a fidejussor make himself liable for a fiitore 

§ 3. A, Yes : the fidejussio might be created either prior 
or subseauent to the principal luibility. But in the first 
case the liability of the fidejussor was suspended until tiie 
principal obligation arose. 

Q. Could the liability of the ^dejussor exeeed that of 
the principal debtor? 

§ 0. ^. No : for that of the former is merely that of the 
latter, and the aocessorv can never exceed the prmci^al. But 
his liability mi^ht be less extensive than the principal one. 
Tlius, if the prmcipal debtor owed 10, the fidejussor might 
promise 5, but not vice versd. So the fidejussor might 

n.) A eontUMmn was when a man gave the same guarantee 
without stipnlatio. 

(2) Prior to Jostiniaii, sciietiea warefldeiussores, or ^onsores, or 
fldepromissores. The last two scarcely differed except in name, but 
bo^ were distinct ftom ftdefussores, A man was sponsor, fide- 
pronUttor or fidejussor aoooraing as his answer to the creditor was 
spondeOffidepromiUo, arftdefu£so : bat Justinian abolished these 
differences, which may be studied in Chdns, 8, § 127. 

(8) In tiie old law the only obligatio to which sponsores or fide- 
pramissores oonld be added was the stipnlatio. 

(4) But not that of the sponsor orfldepromissor (Qaios, 8, § 120.) 

264 vxAjasATiojf nr [b. 3, t. 20. 

Ifhre A fonditioDal ^rnaxmntee. or one for a limited period^ 
OB behalf of a debtor wbo was liable absolntel j, bat he 
could not jrrre an abw^te guarantee for a Habilitj which 
was either conditional oifor a limited period. 

Q. When there are fereral snretiea for the same debt, 
to what extent was each liable P 

§ 4. w<l. The old law held each liable for the wh<de debt, 
nor had he anj claim for contribntion against the others ; 
so that the creditor mifrht choose any one of the sureties, 
and might sue him for the whole, ^at the strictness of 
the old law was relaxed bj Tarions priyOeges (henefieia) 
in fayoor of sureties. 

Q. What were these priyileges P 

A. I}ivisio, cessio artumum eedwndarwmj ordo, and du' 

Q. What was tftvino / 

§ 4. A, It was a priyilege introduced bj Hadrian, bj 
wmch the snretj, against whom the creditor sought an. 
action, micht require the pnetor in granting one against 
hhn, not to grant it for the whole debt, but only for a 
portion (1), so as to compel the creditor to sue each of the 
sureties for their portions respectiyelj. 

Q. Did such divisio affect all the sureties equaHj P 

A. No : it affected onlj those solyent at the time of the 
IUm coniesiatio (2).. The shares due bj those insolyent 
were charged on the others {eeteros onerai). 

Q. Suppose one surety neglected to claim the divino 
and paid the whole debt, had he any claim on his co- 
sureties P 

A, No: unless he had obtained the cessio actuymum 

Q. WhatisthatP 

A, By that the surety might before paying (3) requite 

(1) Ut pro parte in se defwr actio (§ 4). Thus the pnetor pn)> 
tected suretieB firom contriboting more than thorshar^ not only by 
an exceptiOf bat by refbang to grant the original action for mofe 
than apart, provided, the sinrety daimed the privlege (B. 4^ 1. 13). 

(2) This took jdaoe imjure not injvdicio, i. e,, bdbre the praior 
when the action was granted ; for, since the action was to be 
^▼ided according to the number of solvent fidgnasores, the sol* 
vency of each mnst have been determined before granting the 
action, or at least at the moment of ddng so. 

(3) Strictly the assignment was required to be made before 
payment, for payment eztingaiahed the ohUgatio, and with it the 
action attadied to it. 


the creditor to assi^ to him his actioDB, either for the 
purpose of compeUinf his co-sureties to refund to him 
the shares respectiyefy due by them, or to enforce pay- 
ment from the principal debtor. 

Q. When the surety neglected to set the creditor's 
action assigned to him, had he no reme^ against the prin- 
cipal debtor P 

§ 6. A. Observe : if the surety became bound at the 
request of the debtor, he had an action (judicium) mandati 
against the debtor ; if he became bound unknown to the 
debtor, he had an action neaotiorum gesiorwn (t. 27, poH)'t 
if, lastdy, he became bound against the will of the debtor, 
or from motives of kindness {animo danandi), he had no 
action. But even where the surety had his action against 
his co-sureties to recover sums overpaid, he might still 
benefit by the cessio actionum, because the assi^ee of the 
actions could alone avail himself of pledges given to the 
creditors, or hjrpothcsB charged in their favour, in order to 
secure the original debt, ana of any other advantages in- 
cident thereto. 

Q. Explain ordo or discussio, 

A, By this privilege, created or rather re-established by 
Justinian, sureties might require the creditor first of all to 
break up and sue the principal debtor when present, so 
that the sureties might oe obliged to pay for him only such 
sum as he could not pay himseJ ' 

Note, — Intercedere, to become bound for another's debt ; 
scUisdare, to guarantee the obligation of the principal. 


Q. What is an obligation made Uteris f 

A, That which arises out of a writing. As by uttering 
certain words, a man gave an agreement the effect of a 
civil obligatio ; so, b^ the use of certain writings, a man 
gave solemnity to his consent, and made it binding ; in 
zbiB way a contract was created Uteris or scriptura, as, in 
the former case, verbis. 

Q. How was an obligatio contracted Uteris by the 

Pr, A, Justinian says it used to be nominibus, but adds 
that these nomina were not used in his time. 

The following account has been collected from Gaius 
(3, 129), Cicero, and other writers : — From very early 
times tiie Eomans kept family ledgers (tabula, codex), in 
which the pater-f. entered his assets and liabilities. Ids 


266 EZAMIKATIOK IK [b. 3, T. 21. 

expenses and receipts (1). Now, all entries on the codex 
or tabula against the name of a specified debtor went by 
the general name of nomina : but between these various 
entries there was an important distinction. Some, indeed 
the larger proportion, were intended not to create, but 
merely to prove the existence of an obligatio : thus, an 
entry was made to the name or account of a person, that 
there had been lent or deposited with him such a sum ; 
this entry did not of itself create an obligatio : it merely 
went to show that there had been a mutuum or a deposit. 
Such entries were called nomina arcaria(2). But there were 
other entries made in terms which of themselves created 
an obligatio, a contract Uteris. They were called nomina 
transcrvptitia, and constituted what was called expen- 
silatio. — ^This sort of contract seems to be derived from 
the nexum, that is, from the contract created per €bs et 
Z»5ram|(p. 234). Without any actual weighing, &c., these 
reliminaries were assumed to have taken place, and when 
y express and written agreement one of the parties made 
an entry in his ledger (3), viz,, that a certain sum had 

(1) In Older to secare the accuracy of this ledger, which was in 
fact a perpetual record of the family estate, a note was taken of 
the various transactions of the day in a waste-book, called (id^ 
veraaria, which was destroyed once in every three months (vide 
Cicero, pro Bosdo, 3, § 2). Whilst the adveraaria, therefore, were 
of no authority in a court of law, the tabula constituted one of the 
most satisfactory modes of proof. 

(2) Credits out of the chest (area), which shows that it was the 
delivery of the thing, not the entry on the books, that created the 

(3) Whilst the creditor entered in his ledger the sum. as weired 
and delivered to his debtor {expenswmferr^, the debtor entered it 
in his as weighed &nd rec^ved by him ((icceptum referre, pecvma 
(Kcepta relata). Though it does not diistinctly appear whether the 
agreement of both ledgers was a condition precedent to the exist- 
ence of a contract Utens, still we think that the consent of the per- 
son so bound was reqmred to be given in writing. In a oontoict 
Uteris the following was probably the mode of procedure : — ^First, 
there was an ezchimge of written documents between the parties^ 
as there was an exchange of words in a stipulatio : the person who 
intended to become creator wrote to the other thus : The 100 
soUdi wMchtfou owe me for the loeatio, I have entered against you : 
** centum soHdos quos mihi ex causa locaHoms dehes expensos tibi 
tuli" The other party wrote, saying, ** 1 consent that you should 
enteragainst me these hundred BoUdi, expensos wnM tulisH" Then 
came the transcriptio or entry of the operation in the creditor's 


been carried to the debit of the other, as a sum weighed 
and delivered to him {expensum ferre, pecunia expensa 
lata, expensi latio), such entry created an obligaUo Uteris, 
jnst as the stipolatio, had it beenoaed, would have created 
one verhu, 

JExpensilatio applied only when the subject-matter of 
the contract was a definite quantity, a sum of money 
(pecunia certa), and it raised the condietio eerti. — Grains 
(3, 128) tells us that expensilatio was twofold, ». e», that a 
creditor carried as eay>ensum to the debtor's account, either 
a debt already due by the latter on some other account, 
viz., a sale, a mutuum, or a locatio (a re in personam), or 
a debt due by a third party to the debtor, so that a new 
debtor was put in place of the old one [a persona in per- 
sonam). Hence it appears that expensilatio or transcrwtio 
nominis was generally used to work a novatio by substi- 
tuting one obligatio for another (1), or one debtor for 
another (t. 29). 

Q. Was not this expensilatio peculiar to Eomiui 

A, Yes, it was, and part of the civil law (Gains, 3, 133). 
Soon, however, besides the civil law, they began to recog- 
nize the law of nations. The provincials (peregrini) bound 
themselves by a species of recognizance called syngrapha 
and chirographvm (2), in which the debtor, without statiug 
the real ground of liability, merely declared it (dehere se), 
bT that he would pay aparticular sum (daturum se scri" 
hehat, G-aius, 3, 134). These writings, wliich must not be 
confounded with mere instruments of evidence (3), consti- 
tuted a contract Uteris, and raised a condietio certi. 

codex. Hence the difference between the expensilatio, which 
might be between parties at a distance, and the sHpuhUio, which 
oo^d not. For Meriting might be transmitted, but the formal 
words must be within hearing of the parties (Gkdns, 8, 138). 

(1) The mutuum bound a person to give back only the smn lent, 
neither more nor less; nor could interest be claimed unless the 
contract re was changed into one Uteris, including the interest. 
But, further, a creditor suing on the contract Uteris had only to 
prove that the forms of the transcrvptio nominis had been com- 
pleted; but a creditor suing on a mutuum had to prove that the 
money had been actually paid. 

(2) Chirographa are writings emanating from a single party, 
the debtor, and syngrapluB {cum scripta) writings emanating from 
both parties, and in duplicate. 

(8) Writings intended as mere proo& were called generally 


268 EXAMINATIOK IN [b. 3, T. 21. 

Q. If a person bound himself by a written contract 
Uteris m consideration of money paid, which, however, was 
not paid in fact, had he any equitable means of relief P 

A, Yes. The transcriptio nominis or chirographum wa9 
often prepared before the money was paid to the person 
who became bound. Hence, the money-lenders used to 
take advantage of this custom to relieve themselves from 
paying the whole or some portion of what they had pro- 
mised ; so that, the debtor being bound, however unjustly, 
by the writing obligatory, was liable to pay money^ never 
received. To remedy this abuse, which arose tcom an 
over-strict attention to the rules of the civil law, the 
praetors invented the exceptio non nwnerat(B, by which 
the creditor was compelled to prove that he had famished 
the full consideration for the obligation (1). But this ex- 
ceptio was only temporary, and af^r the lapse of a certain 
time, extended from one to five years by Marcus Aure- 
lius, the obligatio Uteris resumed its original effect, and 
the creditor was no longer required to prove that he 
had paid the sum for which the chirographum was sub- 
scribed (2). 

Q. What was the law as to the contract Uteris in Jus- 
tinian's time P 

A. At that time the ea^ensiliatio, the nomina transcript 
titia, were never used, for the chirographum had become 

feneral : the law of nations had replaced the civil law. 
lut as no particular form was required, the chirojgraphum 
was used in the same sense as cautio ; i. e,, a written pro- 
mise to pay a fixed sum. Hence Justinian, following 

cawtio, caitttiones, which, in its widest sense, denotes every kind of 
86c^^ given to the creditor (p. 53), but more specially a written 
proof, a probatory docnment, and is synonymous with instru' 

(1) Bnt generally, the defendant who pleaded the exceptio was 
the party who had to prove its truth : so that this was a violation of 
ordinary rules. This same exceptio was open to the promissor in a 
stipulatio, to the borrower of a mwiuum who had given a cautio s 
and he who had given a written recognizance of his having bor- 
rowed a sum of money was allowed to set up against the holder of 
the recognizance this exceptio, in order to compel him to prove his 
payment of the sum claimed. 

(2) During the time so allowed by law, if the creditor sued he 
was met by the exceptio non numerata pecuma ; if he should not 
sue, the debtor might protest publicly against the writing, or might 
himself sue the creditor in order to recover It (C. 4, 80, 7, 14, 4). 


GiuuB, in describing a chirofraplitim, tells us that if any 
one has acknowledged himself by writing a debtor (debere 
se scripserit) for a sum not paid to him (qiwd sihi nume- 
ratumnon e«^),-such writing raises an obligation {scriptura 
ohligatus), and a condictio, which is snspended for a time by 
the exceptio non numerata pecunia (1). 

Q. Did not Justinian diminish the time during which a 
person might set up the exceptio non numeratce pecunuB 7 

A, Yes : he reduced the time from five to two years (2). 


Q. How many of such contracts are there P 

A, Four. £}mpt%0'Venditio (purchase and sale) ; locatio' 
conductio (letting and hiring) ; societas (partnership) ; 

Q. Why are they called consensual ? 

A. All contracts are consensual, inasmuch as in all the 
consent of the parties is required, though in general mere 
consent is not sufficient to make tibem perfect (B. 3, 1. 13). 
But these four are in a peculiar sense consensual, because 
raised by mere consent of the parties (consensu), and cre- 
ated by a mere agreement {conventio), without any deli- 
very, writiQg, or stipulatio. Moreover, they may be created 
even between parties not present, by letter, or by an 
agent (nuncium), whereas verbal obligations can be created 
only between parties present (p. 258). 

Q. Are there not other dinerences between consensual 
contracts and verbal obligations P 

A. Yes. Consensual contracts are bilateral or synaU 
fagmatic; i. e,, both parties become bound to each others 
whereas a stipulatio, like mutu^m, is unilateral; i, e,, only 
one party is bound. The consensual, like the other bu 
Za^^a/ contracts, are contracts eo; cequo etbono (B. 3,«t. 13, 
fin,), whereas the stipulatio and mutvAim are contracts 
stricti juris. 

(1) There was, therefore, even in Justinian's time, a contract 
Uteris, ance the written acknowledgment of a debt created an ob- 
ligation apart from any actual payment or stipulatio (cessante 
scilicet verhorum ohligatione), 

(2) Instead of the exoeptio, the debtor might set up, even after 
two years, the ezceptio doU; but then the defendant had to prove 
the fraud. 

270 BXUOKATIOK 19 [b. 3, T. 23. 

Q. Did an J agreement besidea these four bind of itaelf, 
apart from delivery or stipnlatio P 

A» Originally none ; for, excepting agreements of sale, 
locixtio, pirtnership, or mandatum, all others were nmda 
pacta; I e„ raised no action, and therefore no liability. 
ISut afterwards the pnetors attached actions to certain 
pacta, which thns became obligatory, and were called 
pratarian pacta; e.g,, the pactum congtituti (B. 3, t. 20), 
BSidi hypothecs (B. 3, t. 14, ^».). Moreover, the civil law 
made certain ^a^a binding, which were called pacta Icffi- 
tima, to distinguish them &om those which did not bind, 
and raised no actions. Thus, the pacta dotudionis (B. 2, 
t. 7), and the dotis canstitutio (B. 3, 1. 15, n.)» were bind- 
ing by mere consent of parties, by the imperial Constita- 
tions. Lastly, pacta, or agreements appended to con- 
tracts ex aquo et bono, at the time they were concluded 
{ex continenti) (1), were held to partake of the obligatory 
nature of the contract, and to be part of it, so as to 
be capable of being enforced by the action attached 
thereto (2). 

Q. Did niida pacta, ». e., not pratorian, nor legitima, 
nor adhmcta, have any effect P 

A. They raised no action ; but if not contrary to the 
laws, or contra bonas mores, they produced an exceptio 
against the plaintiff who had brougnt an action, which it 
was the object of the pactum to take away (B.4, 1. 13, p. 233). 


Q. WhatissaleP 

Pr. A. A contract, by which one parW binds himself 
to another to deliver, or to cause to be delivered, a 
Thing to such other, who binds himself to pay for it. It 
raises two direct actions, the one, venditi, or ex vendito, 
allowed to the vendor ; the other, empti, or ex empto, al- 
lowed to the purchaser. 

Q. When is this contract complete P 

(1) If the pactum were subfleqnent in date to the contract to 
which it was appended, it remained wudnm pactum, and raised only 
an exceptio (p. 233). 

(2) One instance of such an incorporated agreement was the 
pcictum de retrovendendo for redemption, by which the seller re- 
served to himself for aoertain time the right to buy the thing back 
{fit, seq.). 


A, Whenever the partieB have agreed as to the Thing 
and the price, though the Thinff hM not been delivered, 
or the price paid. But after Jastinian's time, if, during 
the treaty for sale, it was intended that the terms of sale 
should be drawn up in writing, the contract was not com- 
plete until such instrument was regularly prepared. Till 
then there was no sale; either party might change his 
mind and withdraw with impunity. 

Q. Suppose an earnest (arra) given P 

Pr, A, Dj the old law earnests were only a sign or 
proof of a contract bein^ completed (argwnent/um emp- 
thnis-venditianis), and neither contracting party could, 
even by sacrificing the earnest or its value, retire from a 
sale to which he had consented. By a Constitution of 
Justinian, earnest-money assumed the nature of a forfeit^; 
so that either party might withdraw : the buyer by sacri- 
ficing the earnest, the seller by returning the double 
of it. 

Q. In a sale, might the price be left to the arbitration of 
a t^d party P 

, § 1. JL. X es. The price must be fixed ; for an agreement 
would not bind if one party was free to determine the 
sum to be paid or received. But an obligatio is not the 
less an obhgatio when the price is left to the arbitration of 
a third par^, thoug^h it is a conditional one ; for the sale 
is complete if the third party makes his award ; it is void 
if he cannot or will not do so. So held the Froculeians 
and Justinian. 

Q. What should the price consist of P 

§ 2. A. Cash. When one thing is given for another, it 
is not a sale but an exchange. 

Q. Was not this a disputed point P 

§ 2. ^. Yes. After much discussion between the Sabi- 
nians and the Proculeians (1), the opinion of the latter 
prevailed. Froculus ar^ed that when one thing is given 
for another, it is impossible to tell which is the price, and 
and therefore who is the buyer and who the seller: a matter. 

(1) The two great schools of Boman law. In Augustus's time, 
Antistius Labeo (of whom Froculus was afterwards the illustrious 
disciple) was distinguished for his attempts to enlarge the princi- 
ples of strict Boman law ; whereas Ateius Capito (whom Sabinus and 
Gaius acknowledged as their master) adhered with scrupulous fidelity 
to the legal doctrines as they had been handed down to him (D. 1, 
2, 2, 47). 

272 SXAMIKATION IK [b. 3, T. 23* 

however, which mnst be known, since the liabilities 
differ. The buyer must transfer the property in the price 
to the seller ; but the seller is not exactly bound to trans- 
fer the property- (1) in the thin^ sold to the purchaser ; 
he is bound to aeUver it on receiving the price, and if he 
is ptroprietor, such delivery transfers the property ; but if 
he is not the proprietor, his liability is only to cause the 
purchaser (2) to have the thing (ut Kahere hceat) ; i, e,, to 

Srocure him peaceable possession thereof, and to secure 
im from being dispossessed (3). 

Q. The property in a Thing sold by its real owner is 
not, then, transferred to the purchaser by the mere sale P 

A, No. The things must be delivered and the price 
paid, or some satisfaction given to the seller (p. 74). 
JPossession is what vests the property ; the sale merely 
entitles a man to require that he shall be put into pos- 
session (4). 

Q. At whose risk does the thing sold stand P 

§ 3. A, At the purchaser's, from the completion of the 
sale, even though he has not been put into possession, and 
so is not yet proprietor. The purchaser, therefore, 
must bear the loss arising from any accidents, as he may 
claim the benefit of allumo and such accretions. If the 
thing perish, the purchaser loses, and must therefore pay 
the price, though ne has received nothing (5). 

(1) Hence provincial land might be sold, for the qniritarian 
property (p. 14) was not reqnir^ to be transferred ; hence sale 
was part oijus gewHum, 

(2) To cause the pr<BstaHo thereof (B. 8, 1. 13, p. 238). 

(3) Bat, m case of exchange, 1, the one party is bound to transfer 
the property to the other ; 2, until the former has executed his 
part of the agreement for exchange, it is nudum pactum : but after 
execution on the one part, it becomes an unnamed contract (B. 3, 
1. 13). The party deJiyering, however, cannot require the other to 
make delivery on his part : he can only claim back the thing deli* 
yered by oondicHo (p. 68), or he may sae for damages by an actio 
prcBscriptis verbis. 

(4) If A. sells a thing to B., and then sells and delivers the same 
to C, C. is proprietor ; but B. may sue A. for indemnity. 

(5) For the loss of the thing sold destroys the liability to de- 
liver, by rendering delivery impossible; but the liability to pay 
the price remains, for its subject-matter, not being specific, cannot 
perish. The maxim is, resperit domino s here, however, the pro- 
prietor, »'. e,, the seller in possession, is discharged^ but the pur- 
chaser, who, before loss of the thing sold, might have sued in order 
to have it delivered, loses his action (p. 242). 


, Q. Are yonr observations confined to loss by accident? 

§ 3. A. Yes ; for the vendor is bound to preserve the 

thing, and therefore to bestow all the care of a good 

Sater-f. on it. He is therefore responsible for any loss or 
amage occasioned by his neglect, and even for accidents, 
if he nas taken the risk on himself (si custodiam suscep- 
erit), or if the time fixed for delivery has expired, or he 
has been summoned to deliver and has not delivered {mora, 
Ortolan, 2, 319). But the vendor, even when exempt 
from aU responsibility, still continues owner until deli- 
very, and must assign to the purchaser all his rights of 
action over or relating to the Thing ; such as his actio in 
rem, condictio fwrtina (p. 68), his actiones fwrii, against 
the thief, and damni injwritB, against the authors of cer- 
tain daxnage (B. 4, t. 1 & 4). 

Q. Might a sale be conditional P 

§ 4. A, Yes : e,g,, it might be agreed that there should 
be no sale of a Thing, unless it proved suitable to the pur- 
chaser, within a fixed period (1). The sale was not com- 
plete, nor did the subiect-matter thereof stand at the risk 
of the purchaser till the condition was fulfilled. 
' Q. Were not certain pacta often added to contracts of 

A, Yes (p. 85, B. 3, t. 22) : e, g,, the pactum in diem 
addictio, an agreement by which the vendor reserves to 
himself the power of annulling the sale, if, within a certain 
time, he meets with a better ofier ; or the lex commissoria, 
by which the vendor ma^r consider the sale nuU if the price 
is not paid within a certain time (2). But in both cases the 
sale was absolute, its defeazance conditional. 

Q. What things maj be the subject-matter of sale P 

§ 5. A, Whatever is the. subject-matter of commerce, 
whether it be or not the property of the vendor (3). A 
person may sell a thing in prospect, and even an expecta- 
tion, as the cast of a net (4). 

* (1) Certum ; for otherwise the ezecation of the agreement would 
depoid on the purchaser's will, and there would be no liability. 

(2) If the time is not fixed, the buyer, by tendering the price, 
may daim the thing at any time. 

(8^ A sale of another's property is good between the contracting 
parties. Hence the purdiaser on eviction may daim indemnity 
from the seller : but the real owner may also sue in rem for hiis 

{i) This is epei emptio : ret eperattB emptio was, e, g., where 
the price was so much a head for the fish caught. 

N 3 

274 EXAMIKATIOH TM [b. 3, T. 24. 

A, Was the sale of a tliiiig not t» commereio, e.g., a 
free man, a loeu* saeer, always Toid P 

§ 6. ^. Not abaoluiely, mdeM the purchaser knew 
that the thinir was not in co mm ereio. It he did not, tlie 
sale was valid to this extent, that it entitled the purchaser 
as against the seller to an action ex empio : not, indeed, to 
compel the delirery of the thing, bat to obtain indemnity 
for any damage he might have sustained. 



Q. What is locatio ? 

Pr, A. A contract by which one of the parties binds 
himself to procure for another the use or enjoyment of 
something, for a time agreed upon, or to do something for 
that other, for a certain consideration {merces). 

Locator (letter) is the person who binds himself to fur* 
nish the thing, or his own labour (1) : conductor (hirer) is 
he who binds himself to pay the consideration (2). 

Pr, This contract, like sale, raised two direct actions, 
the actio loeati or ex locate allowed to the locator, and the 
actio conducti or ex conducto allowed to the conductor. 

Q. When was the contract of locatio complete P 

Pr, A, Bv the mere consent of the parties, whenever 
the sum to oe paid was fixed (3) ; as in a sale, this sum 
had to be fixed either by the contracting parties them- 
selves or by a chosen arbitrator (t. 23). 

Q. Was it not a case of locatio when a dress was sent to 
the tailor to be mended, leaving the consideration to be 
paid for future agreement P 

§ 1. ul. After much discussion it was held not to be a 
locatio ; nor was it a mandatum : for that must be gratui- 
tous. It was only an unnamed contract, raising an action 
pr<Bscrvpt%8 verbis (B. 3, 1. 13). 

Q. Xs it a locatio when two persons agree that each shall 
enjov or use the property or the other, e, g,y that two 
neignbours shall lend each other their oxen to plough P 

§ 2. A, No ; for the recompense in a locatio must, hke the 

(1) A person, however, who undertakes to execute any work, 
e. g,, to construct a building, is called conductor, and the person 
who commissions him locator i the hirer of a house inquiUwut, 
(2^ When land is the subject-matter, the hirer is called colomu, 
(3) Unless the agreement was to be in writing (p. 271). 


price in a sale, consist of mon^j. Nor is such an agree- 
inent a commodatum, for that must be gratnitons ; whereas 
here there is a mutual loan. Hence there can neither 
be the actio locati or commodati. Therefore the lender 
has an actio prtsscriptis verbis to recover an indemnity for 
the wron^ suffered by non-fulfilment of the a^ement. 

Q. Is it not ofben difficult to say whether it is a case of 
sale or locatio P 

§ 3. A, Yes. Thus, when one has received land to be 
enjoyed in perpetuity, in consideration of an annual pay- 
ment to the proprietor (pensio, canon), so that, as long as 
the rent is paid, the land shall not be taken from the tenant 
or his hseredes, or the assignee of the tenant or his hssredes. 
To put an end, however, to all doubts as to the nature of 
SDch an agreement, Zeno erected it into a special contract, 
emphyteusis {l)i which differed both from a sale and a 
locatio, and the nature of which was defined by the terms 
a^eed upon. In default of any agreement as to accidents, 
Zeno decreed that a total destruction should be at the 
charge of the proprietor, and that a partial loss should be 
at the charge of the emphyteuta (2). 

Q. Is it a sale or locatio if Titius has agreed with a 
goldsmith that he shall make him rings of a particular 
weight and pattern, and shall procure me gold necessary 
for the purpose, and receive, say, 200 aurei r 

§ 4. A, Cassius considered it a sale of the material and 

(1) From iVf <pvTfiai, dther because a new ownership was 
grafted on the real dominMMny or because under this contract 
tenants obtained part of the uncultivated demesne lands in order 
to dear them, firom the republic or municipia. Such lands were 
called agri veotigales, but afterwards, like those let by the emperor 
on simihur terms, they were called emphyteuticcerii (C. 11, 58, 61). 
The tenant in possession (emphyteuta) acquired a kmd of servitude 
in the land (Jus emphytewticum), which gave him, subject to the 
payment of rent, the right to dispose of the land Itself and its 
fruits ; and he had a vindAcatio (utilis, for he was not domirms, 
p. 72) to recover it. The^W superfioicmwm exactly corresponded 
to emphyteusis, except that it was confined to things on the swrface 
of the land (p. 82). 

(2) In the former case, the emphyteuta ceased to pay rent, 
whereas the purchaser of a thing sold had to pay the price. In 
the latter, the emphyteuta, whatever might be the loss incurred, 
had to pay the rent due, provided the land subsisted; whereas a 
colowus had not to pay rent when the crop had been destroyed, 
by a blight, &c. The former case shows how emphyteusis differs 
from sale, the latter, how it differs from locatio. 

276 BZAXIKATIOK IK [b. 8« T. 25. 

a locatio of the handiwork. But it was ultimately held to 
be only a sale : though it was never doubted that if Titina 
had ftunished the matenal and fixed the price for the han- 
diwork the contract would have been a locatio. 

Q. What is the extent of the liability of the locator and 
of the conductor P 

§ 6. A. The extent of their respective obligations is de- 
termined by the terms appended to the contract; in de- 
fault thereof es aquo et bono (t. 22, p. 270). 

The locator is boxmd to deliver the thing let, and to keep 
it in such condition that the conductor may make use of it 
during the whole period of the hiring. If, by any acci- 
dent, ne cannot deliver the thing or maintain tne hirer in 
the enjoyment thereof, the contract is annulled, or the 
rent released. The locator must make good all damage to 
the conductor occasioned by the thing let, if such damage 
has arisen even from slight negligence of such locator. 

The conductor must pay the sum agreed upon ; he must 
act like a good pater-f.| bestowing the greatest diligence in 
preserving the thing, and he must restore it at the end of 
the hiring. Moreover, he is answerable for any loss or 
damage to the thing by his neglect ; but otherwise the 
thing let stands at the risk of the proprietor. 

Q. Does a luring end with the death of the hirer? 

§ 6. A. No : it continues for the benefit of his hsBredes 
during the residue of the time fixed by the contract; the 
general rule being that contracts bind, not merely the par* 
ties but their h»redes (1). 


Q. Define partnership. 

A, Partnership is a contract (2) by which the parties 

^— — ^— ^— — ^— »i^ ^^p^— — »— ^^— ^-^— 1— ^»— — ^— ^^^^— ^^— ^1^— — ^— ^— ^— i— 

(1) Not 80 the usufract (p. 92). An nsafracfciiary has a right 
in re (p. 88), bat a conductor has no snch right ; he haa only a 
personal right {ohliffatio) to compel the locatw to sapplv the en- 
joyment (B. 8, 1. 18, n.). Hence, if a locator alienate the thJbg 
le^ the alienee (nnlem tiiere be an agreement to the contrary) may 
evict the oondnctor, to whom he is not personally liable^ thongh 
the conductor may sue the locator for any damage sustained; 
whereas the bare proprietor cannot evict the owner of the usu- 
firuct (B. 2, t. 2) who has a right in re, 

(2) Therefore it requires consent of all parties. Hence, where 
several persons, without mutual consent, have an undivided share 
in a thing held In common, 0. ff,, a legacy, they are joint-ownen» 
not partners, and have the action for partition, but not pro iooio. 

B. 3, T. 25.] THB INSttTtJTEd OV JlTStlKIAK. 277 

Rgtee to pat their sooda or indnstrr into a common fnnd» 
in order to share the resulting pronts and losses. 

Q. How many kinds of pairtnership are there P 

Pr, A, The text mentions two : the societas alicujus 
negotiationis, confined to the sale and purchase of par-' 
ticular merchandise, as slaves or wine, and involying no 
profits or losses except such as result therefrom; the 
other, totorum himorum, including all the goods, present 
and ^ture, of the partners. There was a third, alicnjus 
rei (§ 6), confined to one or more definite subject-matters : 
a fourth, of acquisitions (unwersom^m qu€B ex miestu venU 
unt), including whatever the partners acquired oy their in- 
dustry or their economy, and therefore not including succes- 
sions, legacies, and gifts. The parties are presumed to have 
entered into this last kind, ir nothing has been said ez- 
presslv as to the particular one intenoed. There was also 
a fifth, the societas vectigalis, for farming the public 

Q. How was each partner's share in the profit and loss 

§ 1. ^. If the partners aepreed as to the share of each, 
the agreement was the standEird (1). If the share in the 
profits was fixed, and nothing was said of the loss, or vice 
versd, the amount fixed for the one determined that of the 
other (§3). If there was no agreement, each of the 
partners had an equal share in the profits and the losses (2). 

Q. Might it be a^eed that one of the partners shoidd 
have a larger share m the profits than in tne losses ? 

§ 2. A, xhis was a question : Mucins held such an 
agreement inconsistent with the nature of a partnership ; 
but Sulpicius, whose opinion prevaQed, held a contract of 
partnership valid, even though it provided that one of the 
parties should share in the profits without being liable to 
the losses, inasmuch as the industry of one partner might be 
80 valuable as to entitle him in equitv to a better position 
as partner than the rest ; for the ability and experience 
of one partner may be of such importance to the others as 
to entitle him to be relieved from any further contribution 
(s(Bpe opera pro pecunia valet)* Sucn an agreement, how- 

(1) It was competent for the partners to agree that one shoold 
have two-thirds in the profits and losses. 

(2) An absolute equality : not one proportional to the contribu- 
tion of each partner, because the industry of a poor partner may be 
allowed to stand instead of ca|ntal« 

278 BXAMIITATIOK IH [B. 3. T. 25. 

eyer, as this was not valid unless it applied to the profits 
and losses arising from the whole partnership transactions. 
For if the profits of one only were to be calculated, with- 
out taking into account the losses sustained on another, 
one of the partners might reap the profits, whilst another 
would sustain the losses. Such an agreement made the 
partnership societas Leonina, and it was void CD, zviL 2, 
§9, 1). 

Q. How was a partnership dissolved? 

§ 4. A. Ist. By an express intention, on the part of one 
or more o£ the partners, to cease being partners. But if 
the act of retirmg was unseasonable, or done maid fide, 
viz,t in order to derive the exclusive benefit from any profit 
about to accrue to .the partnership — if, e.y., in the partner- 
ship totorum honorum, one partner retired in order to reap 
the sole benefit from a hsereditas profiered to him, the 
party retiring was obliged to put into the common stock 
the profit which he fraudulently intended to appropriate ; 
but he was entitled to retain, for his own use, anything he 
did not so .fraudulently attempt to obtain. As to the co- 
partner to whom the frauaulent renunciation (rentm* 
ttatio) had been sent, any profit acquired thereafter was 
acquired by him for his sole benefit. 

2nd. Bif the death of one of the partners, — This dissolved 
the contract, even as regarded the others, unless there was 
an agreement to the contrary (§ 6) ; because, though a man 
might be willing to form a partnership with all the copart- 
ners, he might possibly not be willing to form it with some 
only. The partnership did not contmue with the hueres of 
a deceased partner (1), for this contract was made with 
individuals, in consideration of personal qualities. 

§ 7. 3rd. Btf the confiscation (publicatione) of a partner's 

goods for a crime (B. 4, 1. 18) ; or b^ the maxima or media 
iminutio capitis, of which confiscation was a result (B. 3, 
1. 1 ; Gains 4, 146 ; Ortolan, II., 513). 

4th. By cessio (§ 8) (assignment), or by the compulsory 
sale of the goods of one of the partners (B, 3, 1. 12) (2). 

(1) Ko agreement was good by which a partnership was conti- 
nued between a surviving partner and the hseredes of one de- 
ceased, because a hseres could not be bound against his will in a 
contract founded on mutual confidence and personal considerations. 
Although the partnership was dissolved for the fiiture, the hseres 
succeeded to the profits and the losses arising out of transactions 
prior to the dissolution. 

(2) If the parties agreed to continue partners notwithstanding 


5th. By the close cf the bwiness-iransaction (§ 6) in re- 
spect to which the partneTship was formed, or by the loss 
of the particular subject-matter thereof. 

6th. B^f the expiration of the term limiting the partner- 
ship (§6). 

Q. ^Vliat action was raised^by the oontraot of partner- 

^9. A, The actio socio at pro socio, by which each partner 
miffht compel his copartner — 1, to supply the partnership 
wiuL whatsoever he had bound himself to supply ; 2. to 
account for all profits he had made on its behalf ;t 3. to con- 
tribute to the expenses required for the safe keeping of 
the partnership property; and, lastly, to repair any 
damage caused by his own fraud or gross negligence ; i, e,, 
by his not bringing to the partnership afiairs the same 
diligence as a person applies to his own affairs ; for nothing 
more could be required. For if one man forms a connec- 
tion with another who is indolent and negligent, he has 
himself to blame for having made a bad selection (1). 

the diminutio capitis or cessio honorum of one of them, that would 
be the beginning of a new partnership (Ghuus, 3, § 158). 

(1) Damage may be occasioned by accident (casus), by superior 
force, fix)m which no man can escape (vis mctfor), or by the lawful 
or unlawful act of another. — ^Now, unlawM acts alone raise a 
liability. These, t. e., acts contrary to law (it^ria), causing 
damage, and raising liability, are : 1. Dolus, firaud, which always 
implies an intent to injure, and always raises a liability. 2. Culpa, 
an act of neglect, causing damage, but not implying an intent to 
ii^ure. Now as to culpa it is dear, that though a man may be 
bound to do no positive act ii^urious to another, he is not equally 
bound to exert such diligence as to prevent damage to another. 
Hence culpa, if it was a positive act of neglect — an act of commis- 
sion — ^raised a liability in most cases ; but culpa, if it was a nega* 
tive act of neglect — an act of omission — ^raised a liability only in 
certain cases*. Moreover, it is clear that negligence — ^want of 
diligence — admits of degrees, of which the Roman jurists recog- 
nised two : 1. Culpa lata, culpa latior, magna culpa, gross neg- 
lect — ^treated very much like fraud ; culpa magna dolus est, dolo 
proxima. 2. Culpa, without any epithet, or omnis culpa, culpa 
levis, levior, or levissima, slight neglect. 

But the question arises, by what standard are these degrees of 

* The technical term for the diligence in question is dUigentia; 
when applied to a thing corporeal, custodia; negUgentia, or 
omissio dUigentia, the want of it ; dohim or cuJpam prastare, to 
be reeponmhle for fraud or neglect. 

280 BXlMIKATIOir IH [b. 3, T. 26. 


Q. What is a mandatum ? 

A, A contract, by which a person undertakes gratoi- 

culpa to be measured ? Two obviously suggest themselyes — ^both 
being adopted by the Roman jurists. For yon may take mther an 
ttbsolute standard, viz., mankind in general, or a relative standard, 
viz,, the character of the individual whose acts are in question ; in 
other words^ as the commentators say, culpa may be considered 
other in dhatraeto or in eonereto. By the abiolmte standard a man 
will be guilty of gross neglect ^ta culpa) if he has acted in such a 
way as no man of common sense would act» non intelUgere quod 
omnet iwtelUgutU; or yon may test slight neglect {Iffois culpa) 
by the conduct of the most cared^ (dm^entiinmus) pater-fiunilias. 
iaid we may observe, with the Digest^ that no man k to be held 
responsible who has applied such ezlxeme diligence (exacta, ex^ 
acHinnM), By the concrete standard the measure of diligence is 
the individual whose acts are in question ; so that a man is bound 
to apply diligence either equal to or greater than that which he 
QBually applies to his own affiiirs. Talem diUgenUam adkibere 
qualem auis rebus adkibere soJeL 

Lastly, we have to determine the principles according to which 
parties bound ex cotUractu^ or qaaai ex contractu, are liable for the 
first or second degree of neglect as tested by the first or second 
standard respectively. These principles are various; but the fol- 
lowing may serve as a summary :— of parties responsible for slight 
.neglect, i. e., bound to bestow the same diligence as the most care- 
ful pater-familias, we haye, 1. The commodUariue and the depo^ 
•9Uor, because the thing is lent or deposited for their sole benefit 
respectively. 2. The giver and receiver in the contract o^pigmu, 
,the seller and purchaser in that of entptio-^enditio, the hirer and 
letter in that of loctUiO'Conduetio, beotuse their several contracts 
confer a mutual benefit. 3. The mandcUarius (agent) and the 
mandator, because, though the latter is the only party benefited, 
still the contract of mandatum is undertaken from friendship 
(mamt datum), and is held to imply a promise of diligence. 4. The 
neffotiorum geetor, because his interference in the matter is vo- 
luntary. Of parties responrable for gross neglect^ *. 0., such 
as no man m his senses would commit, or which a man would 
not commit in the ordinary management of his own afiaJrs, we 
have^ 1. The commodane and depositee, because they render gra- 
tuitous services, and because the depositor ought not to trc^ a 
negligent depositee. 2. Partners, joint owners, or ooheeredes in 
the management of their joint property, and the husband in that 
of his wife^s dot, because they ore managing their own property, 
and must suffer for their own neglect, — and this is properly re- 


totuly and from motires of kindness (I) an honourable and 
lawful commission. We say gratuitously, because a man* 
datum was essentiallj ^tuitous (2) ; if a definite recom- 
pense were agreed for, it became a locatio (§ 13) ; and if 
the recompense were indefinite, it became an unnamed 
contract (p. 274, t. 24) ; we say from motives of kindness, 
because Uiere was no mandatum unless the person com- 
missioned waj9 free to refuse it ; for if he was not, it was 
a command or Jussus ; we say an honourable and lawfkl 
commission, because a mandatum was not obli^tory when 
contrary to the laws and ^ood morals, as, e. g,, if I gare you 
commission to rob or to injure Titius ; for if you executed 
it, you would have no action against me, although you 
might hare incurred penalties (§7). 

Q. What actions are raised by a mandatum P 
A, Two : 1. The actio directa mandati allowed to the 
mandator, whereby he gets indemnified for damage suffered 
by the non-ezecution or by the imperfect execution of the 
mandatum (3), and by which he compels the mandatarius 
to transfer everything acquired or received on occasion of 
the mandatum, and to assign his rights of action against 
third parties ; «.^., those to whom he has been commis- 
sioned to make loans ; 2. The actio contraria allowed to 
the mandatarius, by which he compels the mandator to 
repay the sums expended and losses incurred by him on 
account of the mandatum, and in course of its execution, 
and secures himself against the actions of creditors, to 
whom he has become liable by reason of the same. 

Q. How many ways are there of contracting man- 

garded as a security for their diligence. 8. Tutors and curators, 
because their duties are imposed upon them; but some texts in 
the Digest make them responsible even for slight negligence. The 
rules given apply only to culpa when there has been no special 
agreement : as to doUts, every person was bound doUim prcMtare, 
and an agreement to the oontruy was void. 

(1) The form described in Ilautus (Captiv. ii. 3) shows this : 
onginem ex officio atque amicitia traMt, 

(2) But it would still be a mandatum, though the mandatarius 
(person commissioned) received some honorarium; thus, an advo- 
cate might receive his fee without ceasing to be a mandatntrius : 
though he would have no action to compel pavment ; but the 
preetor or prsBses fixed the amount extra ordinem (§ 18, B. ^ t. 6). 

(3) The mandatarius was responsible for slight negligence; the 
effect of his oondemnatio was infamy (B. 4^ 1. 16)* 

282 BXAKIKATION IH [b. 3, T. 26-. 

Pr. ^. Fire : I. For the sole benefit of the mandator ; 

2. For the mutual benefit of mandator and mandatarius ; 

3. For the benefit of a third party ; 4. For the benefit of 
the mandator and a third party ; 5. For the benefit of the 
mandatarius and a third party« A mandatom, for the sole 
benefit of a mandatarius is void. 

. Q. Give instances of a mandatum for the mandator's 
sole benefit. 

§ 1. ^. When one person charged another to transact 
his business, to buy a piece of land, or to be answerable 
for him (B. 3, t. 20, § 6). 

Q. Give instances of a mandatum for the mutual benefit 
of mandator and mandatarius. 

§ 2. ul. If I commission you to lend money to my procu- 
rator ; for here there is a benefit to you, your funds being 
lent at interest, and to me, because I am enabled to carry 
on my business (B. 3, t. 19, § 20) $ so there is a mutual be- 
nefit when your debtor commissions you to get a promise 
made ix>jou{stipulari) at his risk by nis debtor, whom he 
assigns to you as debtor {delegef), iot the obligatio in- 
curred by the assigned debtor works a novatio of the 
mandator's original obligation, and so he is discharged 
from it (t. 29, post), which is so far a benefit to him, for if 
sued at all it must be by virtue of the maTidatam, in case the 
delegatus fails to pay ; on the other hand, you are benefited 
by being entitled to sue first the dslegatus, and then the 
mandator. The same benefit exists when a surety, whom 
you are about to sue, commissions you to sue the principal 
debtor at the risk of such mandator. 

Q. In this last case the surety has a clear interest ia 
commissioning the creditor to sue the principal debtor, for 
80 he postpones his own liability ; but what benefit does 
the creditor derive P 

A, The reason will appear from the old law, by which 
the creditor might elect oetween the surety and the prin- 
cipal debtor ; but having elected and brought an action 
d£;ainst one, he could brmg none against the other. IN'ow, 
though by the mandatum from the surety (fid^ussor) to 
sue, and by suing the principal debtor, the creditor of 
course lost the action, raisea by the fidejusaiot still he 
had the actio mandati against me surety if the princi- 
pal debtor failed to fulfil his obligatio ; so that he had 
an action against two persons successively. In later 
times, such a mandatum was never used. Justinian 
allowed the creditor to sue the debtor and the surety, the 
one after the other (B. 3, t. 20, § 4). 

B. 3, 1!. 26.] THB IKBTITirrBS OF JUSTUTLLK. 283 

Q. When is a mandatain contraoted for the excloBiye 
benefit of a third party P 

§ 3. A, When, e.g,, some one was commissioned to 
transact the business of Titins, to purchase a piece of 
ground, or to appear for him. Such a mandatum raised 
no obligatio directly, because the mandator had no in- 
terest in its being executed. But if the mandatarius did 
execute it, the mandator was bound to indemnify him ; it 
might also happen that a mandator who had commissioned 
another to transact the business of a third party was 
responsible to the latter for the mode in which the bu- 
siness wasidone (t. 27), and might, therefore, be interested 
in the execution of the mandatum ; so that there might 
be ground for the ttctio directa and contraria mandatu 

Q. When was the mandatum contracted for the benefit 
of the mandator and a third party P 

§ 4. A. When, e, ff,, some one commissioned another to 
conduct business common to himself and to Titius. 

Q. When was the mandatum for the benefit of the 
mandatarius and a third party P 

§ 5. ul. When, e. ^., a person commissioned one to 
lend at interest to Titius ; it the mandatum had been to 
lend it without interest, the benefit would have been for 
the third party alone. 

Q. When is a mandatum for the sole benefit of the 
mandatarius P 

§ 6. A. When, e,g,, I commission you to spend your 
money on an immoreable thing, rather than in laying it 
out at interest. Now, this is not so much a mandatum as 
an advice which, if given bond fide, does not make me 
liable in any way to you, even though the advice should 
turn out badlv. There was a question whether a person 
who commissioned Sempronius to lend lus money at in- 
terest to Titius was liable to an actio mandati, and it was 
held that he was ; it was thought that such a mandatum 
was more than mere advice, and that it bound the Inan- 
dator, because, without the guarantee implied in the man- 
datum, the mandatarius would not have lent his money. 

Q, What is the duty of the mandatarius in executing 
his commission P 

§ 8. ul. He must confine himself within its limits ; for 
if he exceed, then he does something which he is not com- 
missioned to do ; therefore he does not execute the commis- 
sion, and is liable to the actio directa mandati, but has 
no actio contraria against the mandator. If a person, 
therefore, commissioned to buy a piece of land lor 100 

284 BXA]aKA.Tioy ik [b. 3, t. 27. 

sesterces, buys it for 160, he lias no remedy against the 
mandator for the 150, and it was even doubted idiether he 
could sue for the 100. The Sabinians allowed him no 
action whatever; but the Froculeians allowed him one 
for the sum stated in his commission, and their opinion 
preyailed. A mandatarius, who bought the land for a 
sum less than that fixed, had his action ; for a commission 
to purchase for 100, includes one to purchase for less if 

Q. How was a mandatum put an end to P x 

' § d. ul. 1. By a revocation on the part of the mandator 
before the commission was executed. 2. By the death of 
mandator or mandatarius, before the execution of the con* 
tract had been begun. If it had been begun, the mandatum 
was put an end to only for the future : the obligatio, and 
therefore the actio mandati, continued as to eyerything 
done either before the revocation or before the death. It 
was also held on grounds of utility, that anything done by 
the mandatarius whilst ignorant of the mandatum being 
revoked, or of the death of the mandator should be valid(l). 

^ 11. 3. By the renunciation of the mandatarius, pro* 
Tided it was not made at an xmseasonable time. For when 
the mandator was not informed in such time as to enable 
him personally or by agent to do that which the mandata- 
rius was commissioned to do, he was prejudiced. Liability, 
therefore, continued {actio mcmdati locum hahet), unless 
the mandatarius had a good excuse, as iUness, or the insol* 
vency of the mandator, for the mandatarius was not bound 
to sacrifice his own interests for those of the mandator. 


Q% When do obligations arise quasi ex contractu P 

A. When they arise, without any agreement in fact, 

out of certain circumstances, for the existence of which no 

one is to blame, and to which special provisions of law 

have attached such an effect as to make them bind the 

(1) § 10. E, ff., Suppose my debtor, in ignorance that I have 
enfranchised the slave who had charge of my receipts, pays him 
money, the debtor is discharged, although the enfranchisement of 
that slave involves the tacit revocation of the mandatum to my 
debtors to pay the money to that flave* 


parties, in the same way as if there had been a contract 
between them (1). 

Such are the obligations arising out of the conduct of a 
business {neffotiorum ffestorum), or tutela, or the joint-own* 
ership in a particular thing, or a h»reditas not partitioned, 
or the existence of a legacy, or the receipt of that which is 
not due. 

Q. ^Tplsm the negotiomm gestortun. What obligations 
and actions arise out of it P 

§ 1. A, This was when a person mixed himself up rolun- 
tanly with the business of others, by managing or acting 
for them without their knowledge (2). The business being 
carried on in fact, the manager {gestor) and the principal, 
although no contract existed between them, were bouna to 
each other. This doctrine was foimded on public conveni* 
-ence, so that the business of absent persons might not be left 
uncared for when xmforeseen necessity compelled them to 
leave in such haste that they had no time to commission an 
agent. For no man would undertake another's business 
unless monies advanced by him could be recovered. 

The manager was bound to complete the business he had 
begun, to brmg to the conduct of it all the care and pm* 
dence of a good pater-f. (p. 279), to render an account 

(1) Obligations arise chiefly out of contracts and wrongs, and 
produce different effects m either case. But there are others aris- 
ing out of neither contracts nor wrongs, which nevertheless are 
assimilated sometimes to those arising out of a contract, sometimes 
to those arising out of a wrong. When neglect is imputed, the 
party is bound quasi ex delicto (suband. teneretwr) : and in other 
drcmnstances he is bound quctn ex contmctu. An obligation there- 
fore is said to arise asifout of a contract, not because it arisesout 
of an assumed consent attributed to the i>arty liable, but because it 
involves the same consequences as if it arose out of a contract. 
Thus, how can it be presumed that the hasres who is bound by the 
mere existence of a legacy, has consented to any liability, when he 
IS hceres necessarius ? Therefore it is not the set of circumstances 
(facta) out of which the obligation arises which is assimilated to a 
contract, but the obligation itself and its effects which are asauni- 
lated to those arising out of such contract (p. 288). 

(2) Without their Jcnowledge, If the master knew of the in- 
terference in the buaness and did not object, there was a tacit 
mamdatum. If the master knew and forbad the party's interfe- 
rence, such party had no action for anything done after such 
notice: nor could he recover any sum spent by him ammo 

286 BXAUIKATION IV [b. 3, T. 27. 

and to paj over the excess of receipts oyer expenses, 
with interest for the remainder which he ought to have 
laid out. All this he was bound to do by the actio directa 
negotiorum gestorum. On the other hand, the dominus (he 
whose business is carried on), was bound, even without his 
knowledge or consent, to repay the manager, not indeed all 
sums expended, but all expended for purposes really use- 
ful at the time ; to recover which the manager had the 
actio eontraria negotiorum gestorum against his principal. 

Q. Mention the obligations and actions raised by a 
giuurdianslup (tutela), 

§ 8. il. Ijie tutor was liable for everything done and 
omitted to be done by him ; and generally for even a slight 
neglect (D. 26, 7, 33. & 26, 7, 7, § 2). An actio directa 
tuUla Iblj against the tutor when the guardianship was 
closed, either by the pupillus reaching fiul age, or other- 
wise (pp. 48, 50). Again, the tutor had an adiio cofUraria 
tutela against the pupillus, in order to indemnify himself 
against all expenses incurred and engagements contracted 
by reason of the guardianship (1). 

Q. Was not the curator entitled to an action to recover 
expenses incurred by him as curator? 

§ 2. A, He had the actio negotiorum gestorum utilis to 
recover all his reasonable expenses on account of the cura- 

Q. what obligations and actions were raised by the 
non-partition or joint-proprietorship of any Thing, e, g,, an 

§ § 3, 4. A, When a thing belonged in joint property to 
several not being partners (B. 3, t. 26), he who took the 
fruits thereof was bound to account for them to the others, 
who, on their parts, were bound in proportion to their re- 
spective shares to indemnify him for any money spent on 
tne joint property. Such obligations raised, as between 
the joint proprietors, the action communi dividundo; as 
between co-nceredes the action familia erciscunda (B. 4, 
t. 17). 

Q. For what degree of negligence was the managing 
joint-proprietor liable P 

A. For lata culpa ; i, e., he was bound to bestow the 
same diligence as is usually bestowed by a man on his own 
business. Observe, however, that the negotiorum gestor 

(1) Here the pupil is bound without the tutor's oMotoritas, 
wludihe cannot g^ye in his own cause. 

B. 3, T. 27.] THE IN8TITITTBS OF JTJSTiyiAir. 287 

was responsible for slififlit neglect, because the manager 
(ffestor) had no joint interest in the property (t. 26, p. 280). 

Q. What obligations and actions were raised by a 

^ 5. A. The hfleres was bound to pay the legacy be- 
aueathed by the deceased, by the action ex testamewto (1). 
Since his liability to the legatee arose neither from an 
agreement nor a wrong, and yet resembled the former in 
its effects, it is said to be an obligatio quasi ex con* 
tractu (2). 

Q. What obligation and action were raised by the 
receipt of somethm^ not due P 

§ 6. A, Thereceirer of a payment erroneously (3) made 
was boxmd to restore it by a personal action condictio 
indehiti (4). 

Q. Suppose a man should pay with knowledge that 
noising was due, had he condicbio P 

A, "No : he was assumed to have made a gift. 

Q. Suppose the man who pays is only morally bound 
to pay, is ne entitled to the condictio indehiti ? 

A, ^o : it is not allowed, except where the purpose for 
which the payment was made has failed ; but here the 
man discharges an obligation to which he is bound by 
natural justice, so that the payment attains its object 
(B. 3, 1. 13). 

(1) This obligation does not arise by aditio, for there are some 
hffiredes, viz., necestarii without aditio (B. 2, 1. 18). Even though 
the legacy be per vindicaiionem, the legatee may bring either a 
personal action ex teetamento against tiie hseres, or an action f» 
rem for the property (p. 160). 

(2) But as to creditors of the hsereditas, the hseres was liable to 
them, not by any new action, but by the same obligatio which 
bound the deceased ; for the action against the deceased passed by 
operation of law to the person of the hseres; bbserve, therefore, 
it was identically the same cause of action (p. 158). 

(S) By mistake of iact at least. 

(4) This is the condictio (proper) (p. 68), by which one claims 
that another shall transfer to him the property in a thing (dare 
oportere). Hence the delivery of a thing, thongh not due, clearly 
transferred the property, subject to the liability on the receiver's 
part to restore it. Condictio always lay when property had been 
transferred on a consideration which had failed (eine causa or 
causa data, causa non secuta) (B. 8, t. 18, FernmtaUo; vide 
p. 238, n. 1). 

288 BXAUIKATIOK IN [b. 3, T. 28« 

Q. Was the c<mdictio indebiti allowed to one incapable 
of idienatingP 

A, No : The object of the condictio being to transfer 
the property to the plaintiff, the defendant must be as- 
sumed to be proprietor. But one incapable of alienation 
oould not vest the property of a thing in him to whom it 
was delivered: the property remained in the alienor; 
hence the proper form of action was not the condictio 
but vindicatio (which assumed the property to be in the 
plaintiff), so long at least as the things continued in esse; 
for after they were consumed bond fide, the incapable alienor 
had the condictio indebiti against the receiver (p. 110). 

Q. Does a payment of that which is not due to a person 
incapable of binding himself raise a condictio ? 

A. No : thus the pupil who receives without his tutor's 
authority that which is not due to him is not liable to the 
condictio, except for the amount of profit derived at the 
time of the litis contestatio (p. 111). 

Q, Are there not cases where payment of that which 
is not due raises no action P 

§ 7. A, Yes : when the payment is made in order to 
avoid a suit, however irivolous ; for the payment has in 
such case a purposet Thus, there are some obligations 
which the defendant cannot deny without making himself 
liable to the condemnatio dtmli (B. 4, t. 6) ; for instance, 
legacies per damnatumem before Justinian's time, and after 
his time legacies for pious purposes, t. «., made on behalf 
of churches and other places of devotion. Now, if from 
the fear of being made to pay double by reason of the 
uncertainty of human iudgment, the hseres pays such 
legacies, even though they be not due, he cannot claim 
anytiiing back, because he has not paid without some 
reason, the ground being to avoid the chance of a suit, 
and for peace. 



Note, — The same persons who acquire property for us ac- 
quire for us also obligationes ; t. e., the rignt to brmg actions 
to enforce the claims ; in short, throng them we become 
creditors. It is unnecessary, therefore, to apply to the acqui- 
sition of obligationes what nas been already said (B. 2, t. 9) 
as to the acquisition of corporeal Things through our filii-f. 
and slaves, or through tno slave, of whom we have the 


usufiruct, or the tmus ; or, laatly, through a freeman or a 
slave, of whom we hare the bond fide possession (p. 116). 
In applying, howerer, the doctrine of a pater-f. acquiring 
ohligationes, through his filins-f., to the varioas pecvlia 
(p. 113), we must observe, that Justinian bestows upon the 
pater-f. the usufruct, and upon the filius-f. the bare pro- 
perty in the Thing to be recovered utider a claim for the 
peculium ctdventictum; nevertheless, the pater-f. alone is 
entitled to sue {actionem movet) for such^ecu^mm; and it 
is the Thing recovered, not the^tM crediti, which is to be 
divided into bare property and usufruct. Moreover, a man 
cannot acquire any ohligatio by procurator, as he may pos- 
session (p. 116), nor can one contract for any person who 
is a stranger to his family (B. 3, 1. 19, § 4, p. 259). • 



Q. In how many ways may an obligation be extinguished P 
A. There is a distinction between those recofi^nised by 
the civil law, which dissolve the obligation direcify and ab- 
solutely, so that there is no longer a right of action ; and 
those which dissolve it only indirectly, by means of an ex- 
ceptio, which the debtor is entitled to demand of the prae- 
tor in order to repel the creditor's action (B. 4, t. 13). In 
the first case, the obligation is dissolved ipso jure : in the 
second, exdeptionis ope. This title is confined to the former. 
Q. How are obligations extinguished ipso jure ? 
A. Justinian mentions four ways : 1. Solutio ; 2. Nova- 
tio; Z, Acceptilatio ; ^. Mutual consent (1). There are, be- 
sides, 5. CoTifusio; 6. Compensaiio ; 7. Tender (oblatio), 
followed by payment into court {ohsignatio, depositio) ; 8. 
Accidental loss of the Thing due (B. 3, 1. 14, § 2, p. 257). 
Q. Explain solutio (loosening the tie or ohUgatio), 
jpr. A. Solutio generally oenotes every kind of dis- 
charge ; but it is used here in a restricted sense, to denote 
the performance of that to which a person is bound. 
Q. By whom may solutio or payment be made P 
JPr. A, It must be by one capable of alienating that 
which he eives (p. 112) ; but it matters not wheuier it 
be made oy the debtor or by another in his name, at 
his request, without his knowledge, or even against his 

(1) The two first dissolve any obligation: acceptUaUo only 
verbal obligations : mutual consent only consensual obligations. 


290 SZAMIirATION IN [b.3, T.29. 

will (1). The pajnuent so made not only dischargeB the 
debtor, but auo the debtor's sureties. 

Q. To whom must payment be made P 

Pr. A. Either to the creditor who is capable or duly 
authorised (p. Ill) ; or to a person authorised by the con* 
tract itself (B. 3, 1. 19, § 4), by a mandcutum, or by vir* 
tue of his position as tutor or curator. It may be made 
without the will of the creditor, provided the whole debt 
be paid ; for a man can neither pay one thing in place 
of another (2), or part of a demand, ¥rithout the creditor's 

Q. Explain novaiio. 

§ 3.^. Navatio consists in substituting a new obliga- 
tion, either natural (3) or civil, for an original liability. It 
operates by means of a stipulatio, concluded to the intent 
that it shall be substituted for an existing obligatio ; and 
since the fact of this intention is a matter to be proved 
by presumptions more or less conclusive, Justinian decreed 
that such intention should be formally expressed, and that, 
if not, the stipulatio should create a new obligatio without 
extinguishing the original one. 

Q. How might novatio be effected? 

§ 3. A. 1. By substituting a new debtor for the old one 
who was discharged. This was effected by a stipulatio con- 
cluded between the creditor and the new debtor, either 
without the knowledge, and even against the will of the 
original debtor (4), or by a dele^atio, i, e,, a mandatum 
(commission) given by the original to the new debtor 
to pay the debt (B. 3, t. 26, § 2). 2. By the substi- 

(1) He who pays against the debtor's will, cannot dahn back 
the money paid, imless the creditor has assigned to him his right 
of action. 

(2) Justinian, however, allowed a debtor who could not find 
money to give his goods. 

(8) A natural obligatio may be snbstitated by novaUo for an 
original obligatio. ^e text (§ 8) mentions the case of a pupil 
operating a novatio without his tutor's authority ; but we must pre- 
sume that the pupil bas been benefited by the change, for without 
authority he cannot bind himself naturally. A Wave's promise, 
though it raises a natural obligatio, cannot work a novatio : for 
though a slave may have a promise made to him for his master's 
benefit {stvpulcm), he cannot himself promise so as to bind his 
master (B. 8, 1. 17, t. 19). 

(4) When the original debtor did not consent, the new debtor 
was called expromusor. 


tntion of a new creditor for the old one, which took 
place when the original creditor assigned (del egar e) the 
debtor, who became liable to a third party. 3. Withont 
the interference of any third party, viz,, by a stipnlatio 
concluded between the same creditor and d!ebtor. Such 
stipulatio worked a novatio only where it contained some- 
thing new (aliquid novi) ; e.g,, the addition or the omission 
of a condition (1), or of a surety (2), or of a fixed period : 
if nothing was added, the original obligation was merely 

Q. Was there any other mode of producing a novatio 
except by stipulatio P 

A, Yes : by nominibtuf tremscrtptitiis (B. 3, t. 21), and 
by the litis contestatio, at least when the nroceeding was 
in legititno judioio (B. 4i, 1. 13) ; for after uie formula was 
settled, and the direction to award condemnatio delivered 
to the judex by the preetor, the demandant could not sue for 
the performance of the obligatio {dare opartere), but only 
for condemnatio, which, observe, was always a sum of 
money {condemnari oportere, Gai. 3, 1 80). But the novatio 
produced by the litis contestatio difiered from that produced 
by agreement, in this : that the pledges, h;^pothectt, and 
other incidents to the original obligation, continued incident 
to the new obligation produced by the litis contestatio. 

Q. What was acceptilatio ? 

§ 1. ^. A stipulatio by which, to a question of the 
deotor, the creditor answered that he considered himself 

n' 1. Justinian gives the formula : Quod ego tibipromisi 
esne acceptum ? Habeo. This fictitious payment (»ma- 
ginaria solutio) had the same efiect as an actual payment, 
and, like that, it might be for the whole or even a part of 
the debt when made with the creditor's consent ; but it 
could not be for a fixed time, or subject to a condition. 

(1) If the new engagement was subject to a condition, the no- 
vatio was suspended till the condition was fblfilled. 

(2) 8% fidejussor odAiciatwr (§ 8). t. e,, according to some, 
not if a surety be added in fact ; for that could be done at any 
time without changing the contract ; but if a contract be made 
with the additional dause that the debtor shall provide a surety. 
Sponsor is the word in the corresponding passage in Gidus, 3, 177. 
In Justinian's time sponsores were obsolete; but by the old law 
they were required to be parties to the same contract as the 
principal, so that, when sponsores were added, a new contract 
was produced, and therefore a novatio. 


292 SXAKINATION IX [b. 3^ T. 29. 

Q. Did diis method of diuolution apj^y to everj obli- 

§ 2. A, No : it applied only to oblig;atioii8 made verbis. 
But, to meet the case of other obbgations, a method 
was introduced by Aquilius Qalhu (pnetor, b. c. 65), 
which consisted in suMtituting for the obligation to be 
dissolved a verbal obligation, and then extin^ushing the 
latter b^ an acceptilatio. The following was the form of 
the Aquilian stipulatio, according to the text : — " What- 
ever, for any cause (1), you are or shall be bound (2) to 
give or to do for me, either now or at a future day (3), 
everything for which I have or shall have ajprainst you, 
actions personal (actio) or real (petitio), or right to nave 
recourse to the extrofyrdinaria judicia (persecutio) of the 
magistrate, everything of mine which you have, hold, or 
possess (4), or which you only do not possess through 
some wilful neglect of your own (5), whatever shall be the 
value of all these things," — so much A. Agerius stipulated 
should be given him in money, and N. Negidius engaged 
to give it : on the other hand, N. Negidius put to Agenus 
the question, " All that I have promised you to-day by 
the Aquilian stipulation, do you acknowledge it as re- 
ceived Y" and A. Agerius answered that he did. 

Q. Explain dissolution by mutual agreement (contraria 
voluntas). What obligations may be extinguished by itP 
- § 4. A, Contraria vohmtas is the agreement of the 
parties to dissolve an obligation which they have con- 
tracted. It dissolves none but obligations consensu ; the 
rule of the civil law being, that an engagement is dissolved 
in the same way as it has been created. Moreover, obliga- 
tions are dissolved by mutual consent, only when things 
are still in their original state (re nondum secuta) : for u, 
e, g,, the thing sold has been delivered, an agreement to 
restore it would create a new contract, but would not ex- 
tinguish the original one. 

Q. Explain confusio. 

(1) Causa, generic expression. 
{2) Present and fnture. 
(8^ Modes of a contract. 

(4) Hahes referring to vindicaiio ; teviea to physical detention ; 
possides to dvil possession. 

(5) Dolove malo feeisti quominus possideas, referring to the 
liability raised by the fraudulent destruction of a Thing, in order 
to prevent the owner reclaiming it. Thus it appears the formula 
applied to every possible case. 


A, It occurred when tHe character of creditor and debtor 
united in the same person ; as, e, ^., when a debtor became 
hares of the creditor, or vice versd. 

Q. Explain eompensatio (set-off). 

A, It occurred where one had a debtor and creditor ac- 
count with another, and set off the items on one side 
against those on the other. By the old law set-off did not 
extinguish mutual debts ipso jure, except in actions botue 
fidei : in contracts stricti juris it i*aised only an exceptio. 

Q. Explain ohkUio followed bj consianatio. 

A, An obligation was thus dissolved when the debtor 
deposited, by permission of the judex, the whole debt after 
an ineffectual tender thereof to the creditor at a fitting 
time and place (C. iv. 32, 19 ; C. viii. 43, 9). 



title i. — of obligations baiasd bt a wbokg 


Q. Dbfiite a delictum, 

A. An injarious and unlawful act, to which the law has 
attached a peculiar action (1). 

Q. How are delicta divided P 

A. Into public or private. Public, where the wrong- 
doer may be prosecuted by any citizen, the result being a 
judicium pubUcum (t. 18, ^o^^): private, when the wrong- 
doer may be prosecuted by certain parties only, in whose 
favour the wrong raises an obligatio and an action for 
money damages. 

Q. Are obligations raised by wrongs divided like those 
raised by contracts P 

Pr, A, "No : they are all real, ». e., raised (ex re) by some 
wrong^ act (malejicium) constituting a delictum, — An 
intention to commit a wrony, whether proved by words or 
writing, cannot raise an obligation or an action. 

Q. Mention the private wrongs. 

Fr, A, 1. Theft (furtum) ; 2. Theft with violence (ro- 
pina) ; 3. Damage committed wrongfully (damni injuria); 
and 4. Injuria, Justinian devotes this and the three fol- 
lowingtitles to the discussion of them. 

Q. Define theft (furtum) (2). 

(1) It has been said that a delictum, as distinct from a qu€ui 
delictum, implies/rofK^, or the intention to injure. But we shall 
find that damage, caused by negligence, may amount to a delictum, 
though there be no formal intention to injure (t. 8, post), and that 
sometimes the obligatio and right of action arise not ex delicto, 
but quasi ex delicto, even in cases of fraud (t. 5). The reason is, 
because in Romau hiw it is the same with deUcta (wrongs) as with 
contracts : no obligation can aiise from a wrong (ex delicto) unless 
the ii^ury has been spedfically declared a wrong by law, and unless 
a partictdar action has been attached to it. 

(2) § 2. Iktrtum osfwrown, black, from being done secretly ; or 
hfrausferre, to carry away ; or a ^p, a Thief, ^ipuv. 


§ 1. ^. It is the fraudulent (1) dealing or handling: {con' 
trectaUo) (2) either of the thing itself; or of the use or 

Eossession of the thing, for the purpose of deriving there- 
7 a benefit (hbcrifaciendi gratia) (3). 

Q. To constitute theft, then, it is not required that one 
should take a thing belonging to another and appropriate 

§ 6. A, IN'o : it is enough if a man misapply a thing 
without the consent of its proprietor, in oraer to derive 
some advantage thereby. Thus, a depositee (depositarius) 
Gt a creditor holding a pledge, who makes use of such de- 
posit or pledge, is guilty of a theft, viz., of the use. So 
it is with the borrower of a res commodaia, who has re- 
ceived a thing for one purpose and uses it for another ; 
€, g,, if a man borrows plate, on pretence of inviting his 
friends to supper, and carries it on ; or if a man borrows 
a horse as for a ride, and rides him further, or takes him 
to the wars. — As to the borrower of the res commodata^ 
however, it is no theft, unless he misapplies it knowingly 
against the will of the proprietor : thus it is no theft if a 
man thinks himself sure of the proprietor's sanction, be- 
cause the essence of thethingis wantmg, viz,, an intention 
to steal (affectufurandit § 7). 

Q. Even though a man thinks he is acting against the 
roprietor's will, is it theft if the proprietor consent in 

§ 8. A. No. Hence this question : Titius engages the 
slave of MsBvius to rob his master, and to bring the stolen 
things to him (Titius). The slave tells Msevius : Mnvius, 
in order to take Titius in the very act, allows his slave to 
carry the things to Titius : is Titius liable to the action 
(juaicium) for theft (fwrti), or to the action for corrupting 
a slave (servi corrupU), or to neither? Clearly he is not 
liable to an action for corruption, because the wrong-— the 
corruption — has not been committed. Some held him 

(1) Page 102. Theft implies a removal, and therefore «»ow(id2«« 
alone can be stolen. 

(2) Theft, therefore, presumes intention : so that a person under 
age cannot be prosecuted for theft unless he is very near full age 
(]proximus pubertaH, § 18), because until then he is not deemed to 
have discretion (B. 3, 1. 19. p, 258). 

(3) He who takes a thing not to benefit himself, but to injure 
another, or to damage it, does not commit a theft, but damage 
{damnmn) or ii^ury {injuria). 


296 exaxisahos iv ~b. 4, t. 1. 

UaUe to an acdoa of theft* olhen hdd him nol^ because 
tbe taking waa not against the will of the master (Gains, 
3, S VdS). Bat Jostiman hdd him liable to an action 
botn for theft and for eormpting a dare : he punished 
the attempt to commit the wrong, as if the wnnig had been 
committed {iamquaM reipsa/kistet eorrmptuSf § 8). 

Q- Maj a man commit theft bj nusappropnating his 
own property ? 

§ 10. A. xes : where another is in the possessiim or 
the use thereof; as when a debtor steals his property 
pledged with his creditor. 

Q- Can a freeman be stolen ? 

§ 9. A. Yes : it is theft frandnlenUy to take a freeman, 
bemg alieni jurm : far the right ot pateEnal anthorit^ 
makes JUU-famUias in some respects the property of their 

Q. How manj kinds of theft are there ? 

§ 3. A, Two : fuHwm mam^ettum and nec-manifhsium. 
As to those recognised bjthe old law— ^/krfvm eoneepium, 
oblaium, prohibitum, and mm exhtbUwrn — Uiey are not 
so much pecoliar kinds of theft as accidental circomstances 
snperrenmg upon theft, and raising particular actions. 

Q. When is theft said to be ma$dfetiMm? — when n^ 
manifettum 1 

§ 3. A, Notwithstanding a difference of opinion among 
the old jurists, it was nlt^iately settled that if a thief was 
caught in the act, or in the place where the theft was 
committed, or before he had reached the spot to which he in- 
tended to conyey the stolen property, the theft was mam- 
festum : under any other circumstances nee manifestum, 

Q. £xplain theykr^m concaotum (1) of the old law. 

§ 4. ^. It denoted that the thing stolen had been found 
in the house of a receiyer. But there was a distinction 
between fwrtwm simply coneepiwm and lance licioaue con- 
eeptum; when the thmg stolen was accidentally found in 
possession of the receiyer, or during a friendly search in his 
nouse, made by consent, it ivaafin^um conceptum; which 
raised the action fwrti concepti, by which a condemnalio 
equal to thrice the yalue of the thing stolen was awarded 
against the receiyer ; but it -wtisfiirtum lance licioque con- 
ceptum when the search was not friendly, but proceedings 
were had according to the solemn form of the law (legis 
actio). Now it was a principle of the old procedure, that 

(1) J!rVfr^iim8ometiines denoted the thing stoleD, as here. 


the demandant should himself perform all acts of legal 
execution (1). A person then, making a legal search, was 
required to enter the house of the deiendant with nothing 
on (nudus) hut a linen girdle (linteo cinctua), to show that 
the thing stolen was not about him, and holding a dish 
(laticem habefu, Gains 3, 192), upon which the thing 
stolen, if found, was to be carried. If found, the receiver 
was punished as if he had been convicted oifarium mani- 
festum, — ^Now, by the Twelve Tables, one ffuilty oifurtum 
manifestum, if a- freeman, was beaten with roas, and then 
assigned by law (addictus) to the person he had robbed, 
if a slave, he was cast headlong from the Tarpeian rock. — 
But the formal search, and the actio fwrti tance licioque 
concepti annexed to it were abolished, with the other leffU 
actiones, by the lex ^hutia. Thenceforth the action yiw'^t 
concepti alone remained, for which the penalty was the 
threefold value, and a search with witnesses (§ 4) was sub- 
stituted for that with dish and girdle, 

Q. Explain i^ejki/rtum ohlatum. 

§ 4. A, By the Twelve Tables, the fitrtum was ohlatum 
when the possessor of stolen property (furtiva), anticipating 
a search lor it, and wishing to make a third party respon- 
sible> brought and ofi'ered it to him, so that it might be 
found in &is third party's house rather than in his own. 
This person in whose house the property was seized was 
entitled, as against him who had brought it, to the actio 
furti oblati, and to recover condemnatio amounting to the 
threefold value. 

Q. Explain furtum prohibitum and furtum non exhi- 

§ 4. A. These refer to two actions introduced by the 
prsBtors : the first (Jkrti prohibiti) was for the fourfold 
■value (Gains, 8, 192) against him who resisted a lawful 
search ; the second (furti non exkibitt), also probably for 
the fourfold value, lay against him who, though reauired, 
did not produce certain stolen property discoverea by a 
subsequent search of his house. 

Q. i)id the civil actions furti concepti and oblati, the 

SrsBtorian wstiGus furti prohibiti and non exhibiti, continue 
uring the later period of the law P 

(1) Ori^nally the Romans got justice for themselves ; next, 
the law regulated the acts of private execution; next, symbols 
were used; next, the symbols became obsolete; lastly, public 
authority took upon itself to carry all executions into effect. 


20S MJUMUiMom jx [b.4,t. 1. 

§ 4. X No. Jnttiiiuui wajB, ihat in kifl tone ihej had 
become obeolefte, beesnse the old practiee of searchini^had 
eeMed(l). Dvanng Liter times, therefore/a penon reoeiT- 
ing and knowinglj concealing a thing stolen was liaUe to 
the aetion.^ffit nee manifetU. 

Q. What obligations were raised bj theft? 

§ 19. A, Two : one to recover a penaLty* the other to 
reeorer the Thing stolen. 

Q- What was the penally for Theft? 

§§ 6, 19. A. The twofold rafaie (dmpU) for n(m-iiumifest 
Theft, the fourfold {^^uadrupH) for manifest Theft; the 
penalty was claimed (apart firom the Thing itself) bj the 

Q. How were the dvpU and quadrupU calculated ? 

A, Not bj the yaloe of the Thing stolen* bat generally 
by the demandant's interest in its preserration. 

Q. Besides the thief, who was liable to the penalty ? 

§ 11. A, The penalty of non*manifest theft was incurred 
not only by the guilty receivers tiiemselres, but also by 
those who gave coonsel {eaneUio) and assistance (et ope) 
toward the wrong ', e, g,, a person who upset another's 
money that a third might sense it, or who dispersed an- 
other 8 cattle that a third might make away witn them, or 
who put a herd of oxen to flight by shaking a scarlet 
doth. If, however, the wron^-doer m such cases acted 
from mere foUy (Uisewia)» but with no intention to facilitate 
the theft, no actio fnrii was allowed against him, though 
there might be an action in factum for damages. 

Q* Suppose a person, subject to a father or a master 
(p. 20), nraudulently took something from either of them« 
was that theft? 

§ 12. A, Yes : for though neither fiither nor master could 
have an action against the thief, because of the unity of in- 
terest between the father and son, the master and his slaye> 
still it was an act of theft and involved all its consequences, 
both as to the acquisition of the thing stolen by utucapio 
(pp. 101-2), and as to the penalty incurred by the thiers 

Q. Who might bring the actio fwrU ? 

§ 13. A, Any one who had an interest in the preserva- 
tion of the thing, even though he were not pro]prietor ; nor 
was the proprietor allowed it, unless he had an mterest that 

(1) In later timefl, the search was made by public officers. 

B. 4, T. I.] THB nrSTITUTlS OF /X7STIKIAN. 299 

the thing should not perish. § 15. Thus, if clothes sent to 
the fuller to be cleansed, or to the tailor to be mended for 
a certain sum, were stolen, the fuller or the tailor, not the 
proprietor, was entitled to the action ; for the ftdler and the 
tailor, if solvent, might be compelled to indemnify the pro- 
prietor for the loss of the thing in an actio locaii ; but 
if they were insolvent and could not indemnify the pro- 
prietor, he was allowed the actio furti^ for then it was his 
mterest that the thing should not perish. 

Q. Did the same rule apply to the commoditarius' (bor- 
rower paying nothing) ? 

§ 16. A, By the old law it did ; for snch gratis-borrower 
was bound to bestow the same care as the fuller and the 
tailor who are paid. But Justinian allowed the proprietor 
to bring either an actio commodati against the borrower, 
or an actio fwrti against the thief. If the proprietor, with 
knowledge of the theft, sued the borrower, the borrower 
had the action^l^f^t; but if the proprietor sued the l^ief, 
the borrower was discharged. 

Q. Suppose a thing given in pledge stolen, who had the 
actio forti P 

§ 14.. A, The creditor to whom the pledge was given, 
even though the debtor were solvent ; for it was better for 
the creditor to have the pledge, than to bring a personal 
action against his debtor. And the creditor had tne actio 
furti, even when the pledge had been stolen by the pro- 
prietor himself — ois., me debtor. 

Q. Suppose a thing originally stolen again stolen from 
the possession of a hcmdfide purchaser, who had the actio 

§ 15. A, The hoTid fide possessor, whether solvent or 
not (omnimodo), because he had an interest in its preser- 
vation, e. g.f to perfect his title by uswca^ (p. 103). The 
mai-d fide possessor had also an interest in preserving the 
thing, but ne was not allowed to take advantage of his own 
wrong, by being allowed the actio furti, 
^Q. In case ofa thiDjg deposited, who had the actio furti ? 

§ 17. A, The proprietor and not the depositee, for the 
latter had no interest in its preservation, unless, indeed, 
such depositee had expressly taken upon himself the care 
of it ; he was responsible only for nis own fraud, and 
therefore not liable by l^e actio depositi to return the 
thing if it was stolen (p. 244). 

Q. In case of a thing sold but not yet delivered being 
stolen, who had the actio furti? 


300 BXAMIKATIOir IK [b. 4i, t. 2. 

A. If the vendor was guilty neither of fraud nor neg- 
ligence, no obligation arose between vendor and pur- 
chaser (p. 272). It should seem, therefore, that the pur- 
chaser was the only person interested, and that he should 
have been entitled to the actio fitrii, Sut the Digest (D. 
47, 14) allowed it to the vendor, on the ground that 
in order to maintain the actio furti the phuntiff must 
either be proprietor or holder (D. 47, 2, 80, 7), whereas 
the purchaser, in this case, was neither. Hence, the 
puroiaser had not the actio furti until such action had been 
assigned to him by the vendor, who nught be compelled 
thus to authorize tne purchaser to sue in his name« 

Q. How was the thing stolen recovered P 

§ 19. A. The actio furti (action of theft) was purely 
penal {ad pcena persecutiotiem) ; but the proprietor (1), 
m order to recover the thing itself, had either an action in 
rem (pindicatio), or ad exUhendum, or condictiofurtiva (2). 
The actions vn rem and ad exhibendum lay against every 
possessor or against every individual who hn^ ceased to 
oe possessor uj fraud (pp. 71, 111). The eondictio fwr^ 
tiva lay only against the thief and his hisredes; but they 
continued liable though they had ceased to be in posses- 
sion of the thing, and though it had been lost by acci- 
dent (3). 

Q. Did the actio furti lie against the haredes of the 
thief P 

§ 19. A, 1^0 : like other penal actions, it died with the 
wrong-doer (t. 12, post). 


Q. To what action is a person liable who has taken a 
thing by violence P 

Pr. A, To an action of theft, for rc^na is only theft 

(1) Page 68. The creditor holding a pledge was the only non- 
proprietor who could sae. 

(2) These three actions are cumulative remedies with the actio 
furti for the penalty; but a plaintiff had to dect between these 
three persecutoria, 

(3) The eondictio proper (the object of which was to transfer the 
property) was not generally allowed to a proprietor ; hut there 
was an exception, from hatred to thieves (t. 6, § 14). 


committed with violence ; but, besides, the pretors, con- 
sidering rapina more criminal than mere theft, allowed a 
special action against raptores, called v» bonorum raptorum, 
the condemnatio attached to which was quadruplum (the 
fourfold value) for the first year after the act, and simplum 
(the single value) afterwards, whether the culprit was taken 
in the act or not (1). 

Q. Are persons who forcibly possess themselves of 
things, ana who are or believe themselves to be pro- 
prietors, liable to the action vi bonorum raptorum 1 

§ 1. A, No : neither to it nor to the actio /itr^t ; for there 
is no dolus malus. But, lest raptores should make this 
a pretext for violence, and in order to prevent men taking 
the law into their own hands, the imperial Constitutions 
decreed that any one taking possession by force of goods 
should lose his property in them if they belonged to him- 
self ; and if they belonged to another, though he might 
believe himself to be proprietor, that he should not only 
restore such goods, but also pay their value (2). 

(1) AVhen, therefore, the culprit was not taken in the act, the 
action vi bonorum raptorum increased the penalty, since the con- 
demnatio for furtum nee mamfestum was only dwplum. But sap- 
pose the raptor caught in the act, and guilty of /wr^ttm m<i,nifeatum, 
had there been no other actio except that of vi bonorum raptorum, 
the penalty would have been less than in an ordinary case of 
fwrtwm manifestum — 1. Because the actio vi, ^o. was mixed, t. e. 

the quadruple value included both the penalty, which was really 
only the triple value, and the restitution of the Thing, which last 
was not included in the action offiirtum manifestum. 2. Because 
the actio vi bonorum raptorum lay for one year only for the qu€td* 
ruple value, whereas the actio furtimanifestiwaa perpetual (t. 12). 
8* Because the quadruple value was not calculated, as in the actio 
furti, upon the interest of the demandant, but upon the actual 
value or the article. Therefore it should be observed, that though 
the prsetor allowed a special action against the raptor, he did not 
revise the ordinary actio fiirti. The plainti£f had his option : and 
he of course chose the actio furti, if the case against the raptor 
amounted to Afwrtum mantfestum, 

(2) These Constitutions apply both to moveables and to forcible 
entries on immoveables {res soli). The actio vi bonorum rap* 
torum, like the actio^r^, applied only to moveables ; but, accord- 
ing to the old law, whoever made a fordble entry on land was 
liable to the interdict unde vi (t. 15), or to the Lex Julia^ for vio- 
lence public or private (t. 18, pos£). 

302 srixnrAnov tm [b. 4» t. 3. 

Q. Who nmy^ bring the aetio vi homorum r a piorum i 
§ 2. ^. Any one hanng an interest in the preservation 
of the thing, whether he has it in hornit or ex bomu (1). 
Thus it may be brooght br a person to whom a thing has 
been let» lent» or pledgee!, or with whom it has been de- 
posited, and who has undertaken the eharge thereof or 
Dj a nsafiroctnarj, or by the band fide possessor, Ac And 
generally, whererer an aeiio Jkrii wonld be raised by a 
tiieft committed secretly, an aetio vt, 4^c^ would be raised 
by a theft committed widi violence. 


Q. What was the Aqnilian law P 

A. A plebiscitnm passed (a. u. c. 468) on the motion 
of the Tribune Aqnilins, which establidied the actio 
called Legit AquUuB, or damm injuria^ because it awarded 
ponishment for damage wrongrally caused {daimnmm in- 
jtiriafaetum, D. 9, 2, 3). 

Q. State the provisions of this law. 

jPr. A. It contained three heads. 1. That any one 
who wrongfuUy {infuria) killed another's slave, or a four- 
footed beast amongst those called "cattle" (pecudmm 
numero) should be condemned to pay to the proprietor a 
sum equal to the highest price which the thing nad reached 
durin g th e year preceding. 

Q- what are mduded under the word pecus ? 

§ 1. A, All fouifooted beasts which feed in herds — ^as 
bmes, mules, asses, sheep, oxen, goats, and swine. 

Q. Why do you say wrongfidly hilled? 

§ 2. A. Because a person was not liable to the actio 
legis AquiluB unless he had not merely caused some 
damage— had not merely injuriously affected the estate 
of another — ^but had caused it whilst doing an act he had 
no right to do (nullo jwre, § 2). Thus, a {>er8on was not 
liable if he killed a robber only to protect himself. 

Q. What if a man killed a slave by accident? 

§ 3. A, He was not liable to the actio leais Aquilia unless 
he had been guilty of some neglect (nulpa) ; but neglect, 
however slight, would make him liable, though he might 

■ - - ■ --- j_ , III J II ■! 

(1) A thing 18 in hofU» when a man holds as proprietor; ex 
bonii, when a man has certain rights, or is nnder certain lialnlities 
as to the thing which wonld be affected by its loss. 

B.4, T.3.] THE IirSTITtrTBS 09 JUSTINIAK. 303 

have had no intention to injure. If, therefore (§ 4), a man 
practising with a lance pierced a slave who was passing by, 
the question of his liability would depend on circumstances: 
if the person who threw the lance was a soldier, and if 
he was in a place set apart for practice, he would not be 
guilty of negligence, and therefore not liable : but if the per* 
son in question was not a soldier, or in a place not set apart 
for practice, he would be guilty of negligence, and there- 
fore liable to the action and penalty of the lex Aquilia. 
3o (§ 5), if a man pruning let a branch fall and killed a slave 
passing near the ^ee, the question would be, whether this 
nappened near a road ; for if it did, and the man pruning 
dia not call out and warn the persons below, he would be 
guilty of negligence and liable to the actio in question ; but 
if he did call out, and the slave took no heed, ne would not 
be held negligent or liable. Nor, again, was the man 
pruning liable if he was working away from the road or in 
the middle of a field, inasmuch as a stranger could have no 
right to come that way. So (§ 6), a medical man who 
operated upon a slave, but did not finish his cure, and 
thereby caused the slave's death, was liable to an actio 
leffis Aquilia, — ^Unskilfulness, or even weakness, might 
amount to such neglect as to make a man liable to mis 
action, where a person undertook soiAething beyond his 
powers ; when, e. y., a surgeon performed an operation so 
unskilfully as to cause the death of a slave, or when a man 
mounted a horse which he could not manage (§S 7 & 8). 

Q. Explain the efiect of these words in the law : " the 
greatest value the thing possessed at any time during the 

§ 9. A. Suppose a person killed a one-eyed or drunken 
slave: now if, during any part of the year before his 
death he had been sound, sudi person would have to pay, 
not his last price, but his higliest price during that year. 
Hence this actio is said to be penal, because me condem- 
natio is sometimes greater than the amount of damage 
inflicted. Hence also, it did not lie against the heeredes 
of the delinquent (1), as it would have done if its single 
object had been to indemnify the demandant. 

Q. In applying the lex Aquilia was the owner of the Thing 
entitled to more than the value of the Thing by itself P 

(1) Except so far as they might have been enriched by reason of 
the wrong (D. 9, 2, 28, 8, 1. 12, post)* 

304 EXAXiVATiov nr [b.4 t.3 

§ 10. A, There was no express proTisioii <m the point, 
bat by oonstroction it wss hmd that regard was to be had 
not merely to the absolute or abstract ^ne of the chattel, 
bat to its relative yaloe. Thas, if yoor slaye was killed 
after having been apoointed haesre^ and before acceptance, 
regard was to be had to the yaloe of the hsereditas, which, 
hi^ the slaye lived, would have come to the master. So, 
if a mule was one of a team of four, the diminished value 
of what remained was taken into consideration. 

Q- When a slave was killed, could the murderer be sued 
otherwise than by the actio leffis AqutUtB ? 

§ 11. J[. Yes : the master might eiUier sue for the pecu- 
niary penalty under that law, or he might prefer a capital 
charge (C. 3, 35, 3) (1). 

Q. Explain the second head of the lexAquilia, 

§ 12. A. Gains (3. 215) teUs us it gave an action against 
the adttipulator (p. 262) who, in order to defraud the 
person to whom the promise had been made (stipulator)^ 
released the debt to the promissor, discharging him by 
accoftilatio. This second nead was practically unknown 
in Justinian's time, who rendered adstipulationes useless 
(B. 3, t. 19, propejin). 

Q. Explam tne third head of the lex Aqvilia. 

§ 13. il. It gavean action for all kinds of damage other 
than those specified in the two first heads. Thus, if a slave 
or a beast of the class pecut was wounded, or if any 
four-footed beast, not being of the class pecus, as a dog 
or a wild beast, or a bear or a lion, was wounded or killed, 
it was this third head that gave an action. It also nrovided 
a penal remedy for all damage wrongfully causea to any 
other animal or any inanimate thing. In short, it gave an 
action a^pinst any one who broke, burnt, or destroyed, or 
injured m any way Things belonging to any other person. 

Q. Was the action under this tnird head allowea where 
there was no fraud P 

§ 14. il. As under the first head, so under this, an action 
lay not only where there had been fraud, but where there 
had been neglect. 

Q. What was the condemnatio under this third headP 

§ 14. A, The highest value which the article had reached 
during any of the thirty days preceding the damage. The 

(1) By the lex Cornelia de sicariit (t. 18, pas^, a thief might 
also be prosecuted both civilly and criminally. 


law did not expressly say the highest value, but merely 
valtbe (§ 15) ; bat it was held, in accordance with the opi- 
nion of Sabinus, that plurimi, expressed in the first chapter, 
was to be understood in the third. 

Q. Did the lex Aquilia allow an actio directa a(3^ainst 
those who had caused damage except by some sort of 
physical contact P 

§ 16. A. No: the damage must have been caused by 
one body striking another (corpore corpus lasum, § 16 in 
Jin) : the damage to a body oy other means raised an 
actio utilis. For the lex Aq^uUia punished the damage 
done {damnum factum), that is, strictly speaking, damage 
caused, not indirectly, but by a person suo corpore, i, «., 
by actual contact, either by means of his body or some in- 
s&ument used by him. It was only by analogy, there- 
fore, and by construction, that the lex Aquilia was held to 
apply to one who had caused damage otherwise than by 
actual contact (1), e, g., by confining another's slave or 
cattle till they perished of nunger. Thus the actio directa 
legis Aquilus was raised if A. pushed B.'s slave from the 
top of a bridge or bank into the river, so that he was 
drowned ; but an actio lUilis only was raised if the slave 
had been persuaded to go down mto a well, or to get up 
into a tree, from which he fell. 

If a body was neither the active nor the passive instru- 
ment in the damage ; if, e, g,, a man touched with compas- 
sion unbound a slave so that he might escape his master's 
wrath, no actio, either directa or utilis, was raised by the 
lex Aquilia, but an actio in factum, which the prsetor 
allowed to one who had wrongMly suffered damage under 
circumstances other than those provided for by the lex 
Aquilia (t. 5, post). 


Q. Explain t;^'t«r»a. 

Pr, A, Iniurta denotes generally everything done con- 
trary to right {quod non jv/re Jit) : specifically, anything 
prejudicial to another, as in the lex Aquilia {damnum in^ 
juruB or injuria datum) ; or injustice done by a magistrateor 
a Judex {iniquitous et injustitia) ; or an insult {contumelia, 
vppic), AS in this title. 

Q. How do injwruB arise P 

• (1) Caiiuam pnBstitU : indirectly caused damage. 

306 SXAMINATIOK IN [b. 4, T. 4. 

§ 1. ^. From any act, by which one man intentionall}'^ 
(dolo malo) offends another either by word (1) or act» as by 
slandering^ his honour or reputation ; or by defjeimatory 
libels against him ; or by causing the ^oods of another to be 
attached for a debt known to be fictitious ; or by attempt- 
ing the chastitr of an honourable woman (matrem-familuu, 
D. 50, 46), or Dy soliciting a boy still wearing the togapree- 

Q. Is it only in person that we may receive injuris F 

§ 2. il. We may receive an injuria not only m person, 
but also through those whom the delinquent knows to be 
under our power or protection. Thus, when a filius-familias 
is injured, the pater-familias has two actions : one in his 
own right for the injuria done to himself, the other in right 
of his son for the injuria done to him. By injuring a 
woman you may injure both the ancestor, to whose power 
she is subject, and her husband; the same injuria may 
therefore raise three actions, or even four, if the woman 
injured is the wife of a lilius-familias : for tiien the inj^uria 
would also affect the father of the husband. An injuria to 
the husband does not affect the wife : for the husband is 
not properljr under her protection, but she is under his. 

Q. Who is the sufferer in the case of injuriee to slaves P 

§ 3. ^. A slave cannot receive a personal injuria (3) : 
the injuria is to his master ; but an act which would be an 
injuria to him if inflicted on his filius-familia is not neces- 
sarily so if inflicted on his slave : the alleged injuria to the 
slave must clearly involve an insult to the master. If, 
therefore, offensive language has been addressed to the 
slave, or he has even been struck with a flst, no action 
is allowed to the master ; but if the slave has been beaten 
to excess, the master will be considered injured and have 
his action (§ 4). 

Q. If the slave who suffered injuria had several masters^ 
did each master have an actio in proportion to his share in 
the slave P 

§ 4. A. "No: each master might bring a separate actio in 
respect of the injury to himself, and each might recover 
damages (condemnatio) in proportion to his personal con- 
sideration [ex dominorum persona quia ipsis Jit injuria). 


(1) Cowdcium (D. 47, 10, 15, 4), anything which publicly in- 
sults another. 

(2) Boys and ^1b left off wearing that dress at the time of 
marriage, or afl;er sixteen. 

(3) At least strictly ; but there were certain ezoeptioxis. 


Q. When the bare property of a slave belongs to one, 
and the usufruct to another, who is the party injured ? 

S o. A, The bare proprietor, at least generally (mc^) : 
although the usufructuary would be entitled to the actio 
injuriarum if he was the person intended to be injured. 

Q. Did the same rule apply to the hondjide possessor? 

J 6. A, Yes : the possessor could not sue for an injuria 
ess the delinquent intended to injure him by injuring 
a free man or the slare of another in his hondjide posses- 
sion ; but generally, the actio injuriarum belonged to none 
but the man himself if a freeman was injured, or to the 
slave's master if he was a slave. 

Q. How might one sue for an injuria P 

§ 10. A, Crmiinally or civilly : criminally, for corporal 
punishment (1) ; civilly, for condemnatio (damages) by bring- 
mg either the actio injuriarum invented by the prcBtor. 
and therefore called honoraria (2), or the action allowed in 
certain cases by the Cornelian law (§S 7, 8). 

Q. Whe9 the actio honoraria was brought, how was the 
amount of the condemnatio regulated P 

§ 7. i^. According to the sum fixed by the demandant 
himself ; and though the judex could not exceed this, he 
might award less, having regard to the rank and considera* 
tion of the party injured. 

Q. In what cases was the actio legis Cornelice allowed P 

§ 8. A. When a man was beaten or maltreated, or his 
house (domum) violated. But in such cases the amount of 
the condemnatio was left to the judex. 

Q, When was an injuria said to be atrox ? 

§ 9. A, Either because of the act itself, as when it 
arose from wounds or blows ; or because of the place where 
it was committed, as, for instance, the theatre or the 
forum, or in presence of the pwetor ; or because of the 
person injured ; e. g», when a magistrate or a senator was 


(1) In criminal process, a person could neither prosecute nor 
defend himself by procurator (attorney) ; but Zeno, in actions in* 

jwriarwut allowed an exception in favour of persons iUustres 

(§ 10). 

(2) According to the Twelve Tables (§ 7) the penalty for in. 
juriee was a limb for a limb ; for a bone firaictured or bruised, 800 
asses in the case of a freeman, and 150 asses in the case of a slave. 
The penalty for all other i]\juries was only 25 asses. Pecuniary 
penalties, says Gkdus (8, § 28) seem to have been thought suffi- 
cient when the people were very poor; but all such provisions 
ceased when the preetors introduced their actio ii:\juri8etf 

308 EXAMINATION IN [b. 4, T. 5. 

injured by a man of low condition, or when the person 
injured was an ancestor or a patron ; lastly, because of the 
part of the body injured, as, for instance, the eye. But it 
mattered not whether the person injured was a pater- 
familias or filius-familias ; that neither increased nor dimi- 
nished the nature of the injury (1). 

Q. Was the man who committed the injury the only one 
liable to the actio injwnarwn ? 

§ 11. ^. No : he was also liable at whose instigation or 
under whose orders the injury had been committed. 

Q. How was the custio trijwriarum extinguished P 

§ 12. A, By a release, though tacit (dissimulaiio), e. a., 
by the person injured neglecting to sue either within tne 
tune fixed, i. e,, within the year, or before his death (t. 12, 

The action for injury never arose at all if there was no 
feeling of resentment on the part of the person injured ; 
so that if a man once treated an injury with contempt, 
or seemed not to feel it, he could not afterwards revive 
a ground of offence which had been abandoned. 


Q. When do obligations arise qtiasi ex delicto ? 

A, Whenever unlawful and injurious circumstances, rais- 
ing obligations, have not been specifically provided for by 
law, and have had no action attached to tnem. For besides 
delicta actionable either by an actio furti, an actio legis 
AquilicBt or other special actions, there are certain culpable 
facta^ the penalty for which may be sued for by a general 
and common action, actio in factum. The obligation is 
therefore said to arise qwasi ex delicto^ because the fact 
which raises it, though not declared by law delictum^ and 

(1) Justinian does not explain how the atrocity of antn;«rta be- 
came important. Gains (3, § 224) notices a difference in the pro- 
cedure, which probably had ceased to exist in Justinian's time, for 
he does not allude to it; but though he has pointed out those cir- 
cumstances of aggravation, he did so probably only to explain what 
oonsiderations were to enter into the mind of the judex in settling 
the condemnatio ; and this seems to follow from the words of the 
text : alvter emm aenatoris et parentis patronique, aliter extranei 
et humilis personm it^uria esstimatur. It is clear that a freed* 
man could not sue lus patron, nor the child the ancestor under 
whose power he was, except for severe injuries (atroces). 


though no special action is attached to it, produces results 
similar to those which would be produced by a delictum 
(B.4, 1. 1). 

Q. Give examples of obligations raised qtiasi ex delicto, 

Pr, A. The Institutes mention as such the casein which 
a judex acts at his own peril («» judex litem suamfecerit) ; 
tne case of one throwmg or spilling something from a 
house abutting on the public way (defectum effiuunwe 
alimiid est, § 1) ; or of something so hung or placed that its 
faluug on the public way would be dangerous to the passers 
by (posittim aut suspensum kabet, § 1) ; and the case of a 
theft or damage committed on board ship or in a tayem 

Q. When does a judex cuit at his oton peril ? 

A, When he gives an unjust sentence, either fraudulently 
(dolo malo D. 5, 1, 15, 1), L e., firom malice, favour, or cor- 
ruption, or even by ignorance (imprudentiam){l). — ^A man is 
said^c^e litem stiam, to make tne cause affect himself, be- 
cause, being responsible for his decision, he takes upon his 
own head the risk of the suit. The party mjured by the un- 
just sentence may have against the judex an actio in factum, 
by which he will be condemned to pay an indemnity, the 
amount of which must be determined by the judex before 
whom such action is tried (in quantum de ea re cequum re- 
ligionijudicantis videbitu/r) (2). 

Q. Does not the action against the judex interfere with 
the conclusive effect of the res adjudicata ? 

A. No : for that which has been adjudged binds none, 
except the parties to the suit ; now the judex who is de- 
fendant in tne new suit was no party to the first. 

(1) J. «., by a mistake of the law (D. 49, t. 8). 

(2) Under the Empire, the party cast in a suit might generally 
app^ against the decision within a certain time. Sometimes this 
was unnecessary, as when the decision involved an absolute viola- 
tion of the law (D 49, 1, 5, 19) ; the decision was then considered 
null, and a fresh suit might be begun (causa de novo induct potest), 
that is, in the process \iy formula, a new action might be required 
from the magistrate, and without the necessity of any appeal (sine 
appellatione) or even after an appeal had been entered, if such 
appeal was quashed by lapse of tioje (et prcescriptione summoius 
sit). It was the same in case of a venal decision obtained from a 
judex by corruption. The party entitled either to an appeal, or to 
consider the judgment null, might also sue the corrupt or ignorant 
judex, if he preferred so to do, instead of a second suit against the 

310 EXAMINATION IN [b. 4, T. 5. 

Q. Why was such seyerity adopted against a jadez who 
mistook tke law P 

A. Because he might consnlt the prudentes, who were 
officially authorised to answer questions of law (^. 6), or 
the magistrate who had referred the action to him, and 
thus avoid the responsibility arising^ from an error in law. 

Q. Why did damage occasionedlby want of skill or im- 
prudence on the part of a surgeon, constitute a delictum, 
whilst the wrong occasioned by the decision of an unjust 
judex raised only an obligatio quasi ex delicto ? 

A. Because (p. 302) the culpable intention, the deceit, 
was not essential to the delictum in Itoman law, and be* 
cause the ground upon which the damage caused by an un- 
skilful surgeon constituted a delictum, even when he was 
chargeable with no evil intention, was that the damage 
arose from an injury inflicted on a body (corpus lasum), 
which came within the provisions of the lex Aquilia, 
whereas the iniquity of the judex neither destroyed nor 
deteriorated any physical or corporeal thing ; so that the 
lex Aquilia could not apply, and therefore an actio in fou:^ 
turn was the only remedy for such injustice. 

Q. Explain the obligation raised by throwing or spilling 
things on the public road, and the action enforcing it. 

§ 1. A, When anything was thrown or spilt from a room 
upon the public road, ana any one thereby suffered damage, 
the head of the family inhaoiting the room, either as pro- 
prietor or as tenant, at a rent or gratuitously, was bound to 
pay double the amount of the damage : if the falling ob- 
ject caused the death of a freeman, the penalty was fifty 
aurei ; if the person was only wounded the penalty was left 
to the discretion of the judex, who took into consideration 
both the expenses necessarily occasioned by the accident, 
and the disaoility to work involved The penalty was re- 
coverable by an actio in factum (1). 

Q. What obligatio was raised from something having 
been placed outside or suspended over the puluic road, 
which might cause iojury by falling? 

§ 1. A. He who so placed or suspended the thing, or 

(1) This action, observe, is based not upon the fact that the 
master of the room has himself thrown or spilt anything, for that 
would be a delictv/m hy the Lex Aquilia, and he would be liable in 
the actio leffis Aquilia, but upon the fact that he is to blame for 
not having exerdsed a proper surveillance over his household. 


allowed it to be so placed or suspended, was bounds even 
though it did not tumble, and though no damage occurred, 
to pay ten aurei. Here the actio in factum was populari* 
(public), »*. e.y any citizen might bring it. 

Q. Suppose a filius familias had a separate dwelling from 
his father, aud he threw or spilt things from his aparbnent, 
or had anything placed or suspended over the public way— - 
what then P 

§ 2. il. No action could be brought against the father, 
because he was not to blame : but the filius-f. was liable to 
an action in factiwi. Not even an action de peculio lay 
against the father, because such action was never given in 
case of penal obligations (t. 6, post). So if the filius-fa» 
milias, from ignorance, gave a wrong judgment, the father 
was not liable, but the son alone. 

Q. What obligatio was raised by a theft or damage com- 
mitted on board ship, or in a tavern, or stable F 

§ 3. A, The master of the ship (exercitor), or the tavern, 
or stable, was liable in an action %n factum to pay the double 
value, though he himself had not committed the theft or 
damage, provided they were committed by one in his esta- 
bHshment(l), for he was to blame for having taken into his 
service dishonest persons. 

Q. Did this action in factum pass to the hsBredes P 

§3. A, It passed to the hsereaes of the person who had 
sunered the damage, but the hseredes of the person liable 
were not themselves liable. And this is the chief point of 
similarity between the obligations arising qwisi ex delicto, 
and those arising ex delicto. 


Q. How wasjustice administered at Eome P 
A, Three di£&rent systems of procedure succeeded each 
other : — Ist. The actions of law (teais actioTies), which were 
aboUshed, at least partly (2), by the Lex jSbutia, and the 

(1) If the theft was committed, or the damage caused by one 
not in his service, another action lay for indemnity, bat the obliga- 
tion of the captahi or of the tavern-keeper then arose rather quasi 
em contractu than quasi ex delicto, for the action was not penal, 
and lay against their h^Bredes, 

(2) Partly. The Lex £batia and the two Julian laws allowed 
the Legis actiones, where the snit was before the oewtumvirs, and 

312 EXAMINATION IN [b. 4, T. 6. 

two Julian laws (1). 2nd. The procedure hjformulay which 
was introduced by the laws just mentioned and continued 
till tiie time of Diocletian. 3rd. The extraordinaria JU' 
dicta used after the time of that emneror. These three 
systems, however, did not succeed eacn other rapidly, but 
by gradual transitions ; and as the influence or the flrst 
upon the second is constantly observable, so it would be im- 
possible to explain the extrcuyrdinary mode of procedure, 
excep t by reference to that hjformuta or ordinaria judicia. 

Q, What common features had the procedure by legis 
actio with that by formulce ? 

A. That whicn distinguishes the judicia ordinaria from 
the jtidicia extraordinaria is this, that the former re- 
cognized what we should call decision by juries, in other 
words, the magistrate did not finally decide the matter, but 
after determinmg, as the organ of the law, the legal conse- 
quences of the facts alleged by the demandant, or by the 
defendant, and after defining the question, on whicn the 
condemnation or the discharge of the defendant should de- 
pend (jus dicere), he referred the solution of such question, 
the verification of the contradictory averments of the dis- 
putants, to one or more judges, or Juries (judex, arbiter, 
recuperatores), who were selected from the citizens, and 
whose duty it was to pronounce sentence (judicare) ; hence 
the procedure was divided into two portions, the proceed- 
ing before the magistrate (in jure), and proceeding before 
the judge (in judicio) (2). 

Q. Explain the legis actiones, 

A, The legis actiones were solemn forms of proceeding, 

in cafles damni infecti (pide Gaius, 4, 84). Till the time of the 
Cimstian Emperors the legis actiones were used in acts of volmitary 
juTifldictiou, such as enfranclusement by the vindicta, cessio injure 
adoption, emandpatiou, &c 

(1) The Lex Mbutia is earlier than Cicero (a. u. c. 578). The 
Julian laws date from the reign of Augustus. 

(2) This division between the magistrate, and the judge or jury 
is of very ancient date ; it is certainly older than the Law of the 
Twelve Tables, ibr the object of one of the actions sanctioned by 
that law was the judicis postulatio (demand of 2k judex). Whe- 
ther it was in use under the earlier kings is a moot point. But it 
is clear that the very earliest ideas we have as to the Roman pro- 
cedure suppose the existence of this institution. Ohserve, the ma- 
gistrate h&d jurisdictio, power to declare the law, and the imperium 
the power of command and constraint, — the right to use the public 
force to enforce his orders. 


consisting of acts and words fixed with such rigorons pre- 
cision, that the least mistake or alteration in them inyolved 
the loss of the suit. There were five : 1. Sacramentum ; 
2. Judicis postulatio; 3. Condictio; 4. Manus injectio; 
and 5. Pignoris capio, 

Q. Give some details as to each. 

A. 1. As to the sacramentum, the thing in dispute was 
brought before the magistrate {injure) ; each of the claim- 
ants men touched it with a rod (vindicta, festuca), whidh was 
the vindicatio, and said, " JETunc ego haminem (in case of a 
slave), ex jure quiritium meum esse aio secundum suam cau- 
sam, sicut dixi. Ecce tihi vindietam imposui" At the same 
time each party seized the Thing in question, which was 
called manuum consertio. If the whole Thing oould not be 
brought into court, a portion of it was, e,g,y& turf, twig, &c. 
After the consertio the magistrate said, "Mittite ambo homi" 
nem" l^ext came the wager, or sacram^nUwrn, by which each 
party challenged his adversary to deposit a certain sum, 
which the loser was to forfeit to the treasury of the people 
(cBrarium), to be applied to the expense of sacrifices (1). 
The wager was this: — He who first went through the vin- 
dicaiio asked his adversary why he claimed the thing. 
Postuh anne dicas qua ex causa vindicaveris. The other 
answered, Jus pereg^ sicut vindietam imposui. The former 
replied, Quando tu injuria vindicasti D,L. oris Sacra- 
mento te provoco, ** I cnallenge you to a deposit of 500 
pounds of brass :*' the other accepted, saying, similiter ego 
te. — But afterwards, instead of actually paying the sacra- 
mentum, the prsetor allowed the parties to furnish sureties 
(prcedes) in order to secure payment of the sacramentum to 
the public treasury (pradesque eo nomine pratori daban- 
tur, Gains, 4, 13). — The action by sacramentum was 
general, t. e,, it was the form adopted when no particular 
course was pointed out by the law : it was applicable, not 
only when a real right (in rem) was sought to be reco- 
vered, but also when the claim arose out of an obligation 
(in personam); though, in each case, the accompanying cere- 
monies differed (2). — ^The formalities of the sacramentum 

(1) The amount of the sacramenitHn was fixed by the Twelve 
Tables : it was 500 asses when the value in dispute was 1000 asses 
or more : 50 asses when the value was under that sum, or when it 
was a question of liberty (Gkuus, 4, 14). 

(2) In suits as to immoveables, the vindicatio was in the form 
of a feigned duel on the spot, the two parties pretending to fight 
for the thing in dispute till one of them expelled the other and 


314 XZAMINATIOV IN [b. 4, T. 6. 

hemfjf completed, the parties demanded Ajudex^ wliich the 
ma^trate allowed, but not till after a lapse of thirty days. 
When the question concerned the property in a Thing, the 
magistrate, before appointing the judex, decided whether 
the plaintiff or the defendant should have provisional pos* 
session of the Thing in dispute ; this was called vindicicis 
dicere, and he to whom possession was granted, was bound 
to guarantee to the other party the restitution of the Thing 
and its fruits (prtBdes litis et vindiciarum) if he should 
succeed — lis denoting the Thing, vindicicB the fruits. 

2. As to the jvdicis postulatio, all we know is that in 
this action of law each party addressed the magistrate 
thus : " Judtcem (arbitremve) postulo uti des" Probably 
it was invented to enable the parties, in certain cases, par- 
ticularly in enforcing obliffations, to demand directly a 
Judex, without being required to make any deposit, as in 
the sacr amentum, 

3. The condictio — ^this action of law, as it was less ancient 
than the others, so it bore less similarity to the primi- 
tive and general form of procedure. Orainarily the pro- 
cedure began with the in Jus vocatio, that is, the demand- 
ant summoned the defendant (adversarius) by formal 
words, and if necessary dragged him before the magistrate 
(B. 3, 1. 12). There he solemnly set forth his demand, 
and completed, as did also the defendant, the forms pecu- 
liar either to the sacramentttm, or, in some few cases, to the 
simple Judicis postulatio. The magistrate then adjourned 
the matter, desiring the parties to appear again before him 
in thirty days, for the purpose of nominating a judex ; and 
the parties mutually bound themselves not to make default 
on the day fixed (vadimonium) (1). Now, in order to avoid 
the first appearance before the magistrate, and its forma- 
lities, the demandant was allowed to inform the defendant 
out of court as to the nature of his claim, summoning him, 
at the same time, to appear on the thirtieth day before the 
magistrate, to receive Vi. Judex {actor aduersario denuntiahat 
ut ad Judicem capiendum die xxx. adesset. Gains, 4, 18). 
This information was no doubt given according to a regular 
form ', and it was probably followed by mutuaJ guarantees, 

brought him before the magistrate (deductio) The litigant par- 
ties tiien challenged each other, in reg^ilar terms, to d^)08it the 
sacramentum, and the suit pursued its ordinary course. 

(1) Fades were the persons who presented themselves as secu- 
rity for the due execution of the vadimomvm. 


which the parties exchanged privatvm that each would 
present himself in jus on the day named. This, in fact, 
seems to have given rise to that summ^ form of pro- 
ceeding called condtctio (1), which exclusiyely applied to 
those personal actions in which the plaintiff maintained 
that the defendant was bound to give a Thing certain (qtid 
intendimus dare nobis oportere. Gains, 4, 18) (2)-. 

4 and 5. As to the manus injentio and the pignoris 
capio, they were modes of execution, the former on the 
person, the latter on the goods of the debtor. The manus 
injectio was originally used as the ordinary way of having 
compulsory execution of judgments (judicati) (3). But it 
was extended to various other cases m which the creditor 
was authorized to act as if he had obtained a judgment 
(pro judicata). Its effect was to reduce the debtor (ad- 
judicaius ; addictus) to a kind of slavery, which continued 
until the debt was paid (p. 9, 230). — The pignoris capio 
consisted in actual seizure of a Thing belonging to the 
debtor — a seizure made by private authority, and ac- 
companied with formal words and gestures — and took 
place only in a few defined cases (4) : and the debtor could 

(1) Condicere, says Festus, is dicendo denunticre. Condicere 
also means to agree (D. 18. 1, 66). The term condictio, there- 
fore, is derived from this, that the parties agreed, in the absence 
of the magistrate, to appear before him on the thirtieth day to 
receive ti judex. 

(2) The condictio introduced, subsequently to the Twelve 
Tables, by the Lex Silia (a. tj. c. 510), applied only to those ac- 
tions in which a fixed sum of money (certa pecunia) was sued 
for : it was extended by the Lex Calpurnia (a. tj. c. 521) to every 
personal action in which anything certain was claimed (de omni 
certa re, Gains, 4. 19). Condictio was iriticaria (triticum, wheat) 
when anything certiun except money was claimed- In the pro- 
cedure by formula the name condictio continued to be given to 
that action, the formula of which was couched in the words, " Si 
paret dare (^ortere ; which were suggested by those used in the 
old condictio (B. 8, 1. 14). 

(3) In ancient times, and except in those few cases in which 
the pignoris capio was allowed, the creditor had no right of direct 
execution against the goods. But the debtor was indirectly 
compelled to sell his goods to avoid the mawus ir^ectio. It was 
not till a later period that the praetors introduced the nUssio in 
possessionem honorum (B. 8, 1. 12). 

(4) The privilege of pignoris capio attached only to certain 
cliums whieh were favoured on public grounds. Thus, for the 
sake of public worship, it was allowed against one who bought a 
victim but did not pay for it. For the wke of the military service 

F 2 

316 xxAxnrATiov nr [b. 4 t. 6. 

not leoorer the Thing bo taken bb a pledge until he had 
latiafied the creditor. 

Q. Explain the procedure b^ firmmLB, and how it dif- 
fered from that of the le^ aettones. 

A. The leading characteristic of the procedure bj^br- 
muUe oonaiated not aimplj and solely in sending the 
matter to a judex or jnrj, for, as we haye seen, that 
was done nnder the legis adiones; Imt it consisted, 1st, in 
this, that by the formnla-system the parties had no formal 
acts to perrorm, and no formal words to utter injure ; 2nd, 
in this, thatyormic/^ or written instructions were drawn up, 
containing the appointment of the judex, fizinc the limits 
of his powers, and defining the questions he nad to de- 
cide (1). — ^In fact, under the system introduced hj the lex 
^butia, the formula became the important pomt in the 
procedure. For by means of it — ^by combining and rary- 
mg with exhaustless ingenuity the terms of this order of 
reference, the praetors and the jurists managed to carry 
into practice the changes and developments which Soman 
law underwent during the most brilliant period of its 

Q. JDoes it not become very important, then, to under- 
stand the procedure hj formula f 

A. Yes : this procedure is in truth the key to the 
Boman law ; it la that system of law to which the writings 

it was allowed to soldiers against one who, by direction of the tri- 
bane of the ararium, was boond to inmish them with pay, or the 
▼aloe of a horse or forage {obs mUUare, as equeHre, as kordea- 
rium). Gains tells ns (IV. § 26 to 29), that it was allowed to the 
publicans for the purpose dT recovering the taxes. 

(1) In ancient time, t. e,, when the legis actiones were in full 
force, the magistrate did not generally settle in writing the ques- 
tion for the judex ; bat the parties took care to have witnesses, 
who should inform the judex as to the terms and the nature of the 
question intmsted to hun. Now, Utis contestatio was the appro- 
priate term for the formal Touching of these witnesses at the time 
when the judex was appranted, and when the matter to be inyes- 
tigated by him was settled by the magistrate. Conteatari litem, 
says Festns, dicutUur duo autphures quod ordinato judicio, utra- 
que pars dicere solet : Testes estote — The cnstom of calling wit- 
nesses was discontinued as useless, when the powers of the judex 
were defined by a written ybrm«2a,* but the name litis cotUestaiio 
was still used to denote that stage of the suit at which such vouch- 
ing formerly took place. Hence the litis contestatio took place 
when the formula was delivered containing the result of the dis- 
cussion (controversia) before the magistrate {injure, pp. 820, 865). 


of the daiisical jurists from which the Difi^est and the Insti- 
tutes were compiled, refer : and without a knowledge of 
which it is impossible to understand rightly the texts them- 
selves, especially the doctrines they contain as to obligch 
tiones, actiones, and excepiianes. 

Q. Explain briefly the course of procedure according to 
ihejhnnula system, 

A, 1. The proceeding commenced by the in jus vocatio, 
that is, by the summons ^ven by the demandant to the 
defendant to accompany him to the presence of the ma- 
gistrate appointed to exercise jurisdiction, viz,, the praetor 
at Home, the prseses in the provinces, and Uie duumvir 
in the Italian cities. If the defendant refused, the de- 
mandant mi^ht then compel him by force ; but the ri- 
gorous exercise of this right was relaxed either in favour 
of certain persons whose dignity and consideration 
seemed to entitle them to be protected from such vio- 
lence (I), or in favour of certain periods of time (2). But 
the direct use of violence, though always recognised by 
the law, became useless after the preetor adopted the 
plan of a fine and an action in factum (3) against a person 
who had been summoned inju^ and had refused to attend. 
But the defendant might relieve himself for the time 
from attending before the magistrate by giving security 
(cautio)^^i he would attend on the day fi[xed (4). — ISow in 


(1) Ndther magistrates in the exerdae of their duties, nor 
priests perfonmng a sacrifice, ooald be summoned in jus. The child 
who d^red to summon his ancestor, the freedman who desired to 
summon his patron, were each required to obtain the sanction of 
the prsBtor ; and in case of noncompliance with this rule, each of 
them was liable to an action in f actum, the effect of which was to 
charge the child or the freedman with a fine to the amount of 
10,000 sesterces (according to Qaius, 4, 46), or 50 aurei in the time 
of Ulpian. 

^2^ As the time of harvest or the vintage. 

(8) 1, e., an action in which the amount of the defendant's con- 
demnoHo was made to depend on the proof of a material fact, which 
in this case was whether the defendant had refused to come in jus, 
and had offisred no security (Gains, iv. 46). 

(4) This security or hail was at first a vindex, who became himself 
defendant (B. 3, t. 12) ; in later times, it waa a mere JUUjussor 
(surety) who became bound for the defendant's appearance on the 
day fiixed. This kind of ./2cfe;Wmo was a vadimonium precisely 
similar to that which was given in re, when, upon the first ap- 
pearance, the parties bound themselves to appear on a day fixed. 
When the defendant was absent or so careAilly concealed that he 

318 BXAMINATIUN IN [b. 4, T. 6. 

summoning an adversarius (defendant) in jus^ the de- 
mandant was not bonnd to inform him of the object of the 
suit nntil he was before the magistrate. Bat the custom of 
explaininfiT to the defendant the nature and the object of the 
demand QUis denuntiatio), and of mutually undertaking to 
appear on a day fixed in jus, became more and more usual 
tul at last it became universal, and the summons by mere 
denuntiatio (announcement) seems in the time of Marcus 
Aurelius to have replaced the old in jus vocatio, 

2. The parties being before the magistrate, the de- 
mandant proceeded to explain the object of the suit, and 
pointed out to the opposite party the particular ybrmu/a of 
action he intended to bring (edictio actionis) (1), and which 
he prayed the magistrate to allow {postulatio actionis). 
The defendant was not allowed to object to an action being 
granted on any grounds derived from the truth of the facte 
alleged, because the question in dispute before the magis- 
trate was not as to whether the allegations of the demand- 
ant were true, but simply whether, supposing them to be 
.true, they were of such a character as to involve the con- 
demnatio claimed b^ him. The defendant therefore could 
only maintein that; m law, the action wotild not lie. But if 
it was admitted that the action would lie, or if the preetor 
held, after discussion, that it would, the defendant might 
then pray him to insert in the formula the exceptumes to 
which the facte of the case might give rise (t. 13). — The 
praetor, however, refused the action or the exception pro- 
posed if they had no foundation in law (2) ; nor was there 
any ground for granting an action when the allegations up- 
on which a legal demand rested were admitted by the de- 

» I I I I ■■ I ^^^^— ■ I I I ■ ■—■ ■ - ■ I I ■■ M^ ■■ I w ■ ■ I I » ■ ■ ^ ■■■■■■■■.■, ^ 

ootild not be summoned, the preter decreed the missio in posses- 
sionem bonorum (B. 3, t. 12.) 

(1) Theformulse were set out in order of subject, in the prseter's 
album ; that is, they were mscribed m black characters on a white 
ground. The demandant was said edere aciionemf when he 
pointed out on the album the one which he wished to make use of: 
but he might select another, so long as the litis contestaHo had 
not taken place. The choice of the formul^i was very important ; 
for by employing one which did not suit the facts of the case : 
for instance, the actio venditi, when the facts did not show a sale, 
the demandant risked the loss of his claim. 

(2) Law, either civil or prsetorian. It was this prerogative of 
settling the question of law, and of laying down the law (juris- 
dictio), which gave the prsetors the means of modifying and en- 
larging the law on the various subjects — substantially of creating 


fendant. Such admission was equivalent to a verdict of the 
judex, and the prsetor thereupon allowed the same com* 
pulsory process as he would have allowed had there been 
& judicium (verdict) pronounced (1^. 

3. The action beine held to lie^-^tne question of law being 
defined — ^the only thing which remained to be done was 
to investigate the allegations of the parties ; for this pur- 
pose it was necessary to nominate ike judex or jury (2); 

(1) Hence the nuudm, confessor IN jtjbe pro judicato hdberi 
placet. If, admitting a debt, the defendant disputed its amount, 
an actio confessoria was granted, requiring i^Q judex not to exa- 
mine into the question as to the existence of an obligation, but 
simply to estimate the amount of the debt : judex non rei judi- 
eanda, sed (BstimandtB datus. 

(2) It was necessary that the judex should be agreed upon by 
the parties, and they might either select 6ne themselves (judicem 
sumere), or reject the person proposed by the magistrate {^judicem 
recusare, rejicere). When the parties could not agree as to the 
judex, he was appointed by lot. But in all cases it was the 
magistrate who invested the judex, whether appointed by consent 
of the parties or by lot, with the authority to act as judge (judi- 
eem addicere), — ^Moreover, the judex was not selected from the 
whole body of citizens indiscriminately, but from certain lists 
which bore some resemblance to our jury lists. Till towards the 
dose of the Republic senators were the only class entitled to appear 
on these lists, which were prepared every year hy the dty praetor. 
In A. V. c. 631, the lex Sempronia transrerred the judicia from 
the senate to the knights (equites) ; and during the remainder of 
the seventh century the right of being on the list of judices was 
a matter in dispute between the two orders, and was successively 
transferred from one to the other, a. v. c. 684, the lex Awrelxa 
established three decuries of judices, composed — the first of sena- 
tors, the second of knights, the third of the tribunes of the (Bra- 
rvum, Augustus added a fourth decury, ex inferiori censu — that is 
to say, composed of citizens who were only rated at a small sum 
(census), and to whom was intrusted the decision of less important 
matters (levioribus summis), Caligula raised the number of de- 
curies to five. This was the latest law until the abolition of the 
ordo judiciorum. — ^The annual lists of iihe judices selecti contained 
at first only 300 names ; afterwards they were much increased. 
Cicero ad Ait. VIIL 16, reckons the judices at 850 in numher ; 
and Pliny, Hist, Nat, 33, 7, teUs us that in his time the Usts 
contained 4000 names. — The judex taken from the decurial lists 
was the judex, properly speaking, who was called a/rhiter in cer- 
tain cases — ot2., in actions of hona Jides — a name derived from 
the peculiar extent of his duties in actions of that sort. But 
sometimes the prsetor remitted the matter, not to a single judex. 

320 BXAMiHAHOK nr [b. 4 t. 6. 

lienoe ^he formula drawn up by the magistrate, whicli 
nominated the index, determined the points to be ^Toved 
before him, and defined the extent of his aathonty (1). 
At this stage the phrase wbs, judicium conatitutum^ ac' 
eeptum; lis tnchoata; lis contestata (2). 

bat to wevextl judice$, called reeuperatores. These were not of 
neceadty dioien from the fists cf jndices proper. The ma^- 
trate named the first perKms whom he oodM find to fblfil the 
duties: "JTom ut in reeuperettoriis judiciit" says Plin. Epist. 
III. 20, " tie nos in Aw comiiUs, quasi repenie apprehenti sinceri 
judices JkUmiu** This (arcmnstanoe, together with some other 
fkcts, has given rise to the conjectmre that the recuperatoreM 
were principally employed to decide urgent matters, especially 
claims as to poasesnon. Thdr name seems to show that it was 
part of thdr duty not merely to dedde the dispute, but also to 
see the decinon carried into effect^ by putting the complainant 
affain into possession of what had been fordbly taken from him. 
To complete this view of the judidnl organization of the Romans^ 
we may add that^ beades these judges or juries (Judex, arbiter, 
reouperatares) specially named ror each business, there was a per- 
manent tribunal, viz., the centumvirs, composed of something 
more than 100 members, who were elected probably by the tribes 
and divided into four sections or councils. Some kinds of bun- 
ness were transacted by two of the councils, some by the four. 
The prsBtor referred to the centumvirs certain causes — questions 
of prm)erty and haereditas, and some questions of status, which re- 
quired to be determined ex jure quiritium. No formula was 
drawn up for them, for they were judges of law as well as fiict^ 
and the proceedings before them were according to the old form 
of sacramenium, 

(1) The following is the formula, according to Gains, iv. 40 — 
48: — "If. . . . judex esto. Quod Aulus Agerius Numeric 
Neffidio hominem vendidit, si paret Numerium Negidium Aulo 
Agerio sestertUtm XmiUia dare oportere, judex Numerium Ne- 
gidium Aulo Agerio sestertium X. milUa condemna : si non paret, 
absolve" ** Let N. ... be the judge. Whereas Aulus Agerius 
has sold a slave to Numerius Negidius, if it appears that N. N. 
ought to g^ve A. A. ten thousand sesterces, condemn N. N., judex, 
to pay the ten thousand to A. A. : if it does not so appear, acquit 

(2) One of the effects of the Utis contestatio was to produce a 
novatio in the rights of the parties to the suit, by substituting for 
the original liaUUty {obligatio) a liabDity to submit to thejudi" 
eium, and to obey the decision of the judex. But this novatto did 
not arise ipso jure, except when the action brought was — 1. 
personal; 2. in jus; 3. a judicium legitimum. For as to 
1. the obligatio, raised by the litis contestatio, was personal. 


4. The formtila bein^ delivered, the parties had to ^o 
before the judex ; and, except in some special cases, where 
time was allowed bj the prsBtor to obtain proofs, or for 
some other reason, they adjourned till the third day 
(comperendirMtiOt die cotnperendinalis) . It does not appear 
wheuier any securities were given by the parties for their 
appearance then(l) : but there were certain definite cases in 
wmch security (cautio) was required to insure the fulfil- 
ment of the judicatum ; and, no doubt, such security in- 
cluded the obligation to appear injudicio (t. 11, post). 

6. Before the judex the case was shortly explained: 
and this was called causa con/ectio, or causa collectio : a 
sort of statement of the leaaing points. Then came the 
production of proofs (2) and the pleadings {causa perora- 
tio (3). Sometimes the judex gave interlocutory or pre- 
paratory judgments {inierlocutiones,jussus,mandata). The 
final judgment was called sententia. 

6. Judgment (4) being pronounced, the duty of the 

and so oould be substituted only for a personal obligatio ; as to 
2. it is clear that an obligatio can never be substituted for a 
facty though of course one obligatio may replace another by nova^ 
tio : hence if the action was to decide a fact {j,n factum), and not 
a right (in jits) there could be no obligatio upon which that raised 
by the I, contestaiio could operate : as to 3. the action must not 
be imperio continens, i, e,, binding only during the term of the 
judge*s power (p. 369), but leffitimitm, i, e,, binding absolutely. 
It is obvious why an obligatio binding for a time i^ould not ex- 
tinguish one binding for ever (p. 316). 

(1) None of the parties had any interest in failing to appear 
before the judex : the demandant, of course, had none : and, as to 
the defendant, his presence was not required in order to the judex 
pronoundng sentence. For if the defendant did not appear he wa» 
cited once or oftener, according to certain forms, before the judex 
pronounced judgment; but after these formalities the jud^ent 
had the same effect as if it had been obtained after a hearing. 

(2) The means of proof were witnesses, written documents, 
oaths, and cuhnissions. Torture was sometimes used against 
slaves ; e. g., when the question concerned the goods forming part 
of a successio. 

(3) The judex was often assisted by persons called counsellors, 
whose knowledge might inspire him wiUi confidence. Cicero, ad- 
dressing them, says: **Vo8que qui in concilio adestis,** (Pro. 

(4) The judgment was pronounced aloud to the audience (pro- 
nuntiare). But it might be written beforehand (ex tdbella pro- 
nuntiare). In course of time the drawing it up in writing be- 
came compulsory (expericuto recitare), 


322 BXAMINATIOV IK [b. 4, T. 6. 

judex ceased (judex qui semel sententiam dicit, judex esse 
dennitt D. 42, t. 1. 14, 55). For the ezecation of the judg- 
ment it was necessaij again to come before the magistrate, 
whether the object was to proceed by manus injeetio, or 
for the misno in possessionem of the goods of the defend- 
ant (B. 3, t. 12). 

Q. What were the chief parts of the formula ? 

A. There were four, besides the nomination of the judex, 
viz. : the demonstraiio, the intentio, the condemnatio, and 
the adjudicatio (1). 

The demonstratio is that part of a formula which points 
out the fact raising the action ; e. g.. Quod Aulus Agerius 
Numerio Negidio hominem vindtdit — Qttod A, Agerius 
apud N. Negidium mensam argenteam deposuit. 

The intentio is that part of the formuhi which states the 
claim of the demandant, the matter upon which the judex 
will have to see whether it is well or ul founded ; e. g,. Si 
paret N. Negidium A, Agerio sestertium decern millia dare 
oportere — Quicquid paret JV. Numerium A, Agerio dare 
Jhcere oportere — S% paret hominem ex jture Quiritium 
A. Ageni esse (2). 

The condemnatio is that part of the formula which gives 
the judex authority to condemn or acquit the defendant ; 
e.g.. Judex N, Negidium A, Agerio sesteHium decern millia 
condemna si non paret, absolve — Quicquid oh earn rem N, 
Negidium A. Agerio dare facere oportet ex bond fide ejus 
id judex N. Negidium A. Agerio condemnato : si non paret 
ahsolvito — Quanti ea res erit tamtam pecuniam. Judex 
N. Negidium A. Agerio condemnato: si non paret ab' 
solvito (3). 

The adjudicatio is that part of the formula which gives 

(1) Besides these principal parts, so called because they were 
essential to every claim, there were several accessory or additional 
parts which sometimes formed port of a formula ; e. g., except 
iiones, replicationes, daplicationes (t. 13 and 14, post), and pree- 
tcriptiones, of whictt we have said something (p. 97). 

(2) The intentio is the essence of the formula. There can be 
no formula without one, whereas the other parts are not essential 
to it. It is chiefly a difference in the intentio, which gives rise to 
the various divisions of actions, to be explained presently, espe- 
cially the division into those in rem and in personam, and into 
those in jus and in factum, 

(3) It appears, from these formulae, that in some actions the sum 
to be award^ against the defendant (condemnatio) was fixed/or the 
judex, in case the question proposed in the intentio was given against 
such defendant (sestertium decern millia condemna) ; the condem- 


the judex authority to give judranent, t. e,, to transfer the 
property in the subject-matter ot the suit to the party who, 
in his opinion, ought to have it. The adjudicatio does 
not occur except in the netiona famili€B erciscunda (for par- 
titioning a htereditas), communi dividundo (for dividing a 
Thing held in joint property), and Jinium regvmdorum (for 
the settlement of boundaries) ; the following is the form : 
Qucmtum adjudicari oportet judex Titio adjudicato (1). 

natio waa then certa pecunus. The condemnaiio incertts pecunia 
was sometimes cum taxatione, when a maximmu was fixed for the 
judex, which he would exceed at his peril {judex duntaxat de- 
cern milUa condemna) ; sometimes it was infinita, when mili- 
mited power was left to the judex to fix the condemnatio {quawti 
ea ret erit — quicquid oh earn rem), — The decision, moreover, 
of the judex was always required to be a fixed sum, even when 
the condemnatio in the formula did not state a sum certain 
(Gaius, 4, 52). — And here we may observe, that the condemnatio 
was always pecuniary ; so that, in claiming even a certain corpus, 
as this or that piece of land, this or that slave, the judex had 
no power to condemn the defendant to give or restore the 
Thing in specie, nan iptam rem condemnat (Gaius, 4, 48) ; but 
he was required to value in money the subject-matter in dis- 
pute, and to condemn the defendant in the amoimt of such va- 
luation (aed (Bstimata re pecunia/m earn condemnat). It seems 
to have been otherwise in the time of the legis actiones, and 
that then the condemnatio might have constituted a direct 
means of recovering the thing claimed in specie (sicut olim Jieri 
solehat, Gaius, Ibid), This rule, by which the condemnatio 
was always required to be pecuniary in its character, did not, 
however, involve the inconvenient consequences which might be 
anticipated; because the harsh method of execution, affecting 
all the 'goods and even the person of the damnat'us, often deter- 
mined the wrongful holder, who had lost or was about to lose his 
suit, to restore the Thing sued for. In fact, we shall find that in 
case of actiones arbitraria, among which we include vindicatio 
and the actio ad exkibdndum, the judex had the power, by a clause 
•modifying the condemnatio, to suspend its effect agdinst the 
defendant in case he obeyed the order of the judex to restore 
the article in dispute. And as the judex might increase the pe- 
cuniary condemnatio to any extent {sine ulla taxatione, in infini- 
tum) in case the defendant did not comply with such order {jussus 
arbitrium), it was the defendant's interest to obey. — ^More- 
over, it appears probable that in the time of Ulpian, at all events, 
these prmciples had been modified, and that the defendant who 
refused to obey the jussus of the judex, might be compelled to 
obey the judex manu militari, 

(1) The adjudicatio gives these three actions a special dia- 
racter j hence their name, mixta. 

324 BXAMINATIOK IK [B. 4, T. & 

Q. Did these four parts necessarily occur together in 
eveiT formula? 

A, 1^0 : they were to be found together onl^ in the 
three actions for partition ; for, as we have just said^ it was 
only in these that adjudicaiio occurred. 

In most cases the formula contained the demontircUio, 
the intentio, and the cofidemnatio. 

In some cases the formula contained nothing but the tit- 
teniio ; it was then called a prtefudicium or actio prcBJudi- 
cialis. The duty of the judex was then confined to that of 
determining the question stated in the intention without pro- 
nouncing either a condemnatio or adjudicatio (1). 

In very many actions the formuia contained nothing 
but the intentio and condemnatio. This was the case in the 
a>ctio in rem ; and even in the actio in personam, where it 
was brought for a thing, or, at all events, a sum certain 
(eerta pecuTiia) (2) : so it was in actions inf<tetum (3). 

Q. Explain the origin and nature of the difference be- 
tween actions injtis and in factum, 

A. This difference concerns the mode in which the f«- 
tentio of the formula is framed: for the intentio some- 
times proposes a question of law for solution ; implying 
that it is not enough for the judex to see that certain ma- 
terial facts are proved, but that he must consider the legal 
consequences of such faets, in order to come to a con- 
clusion as to whether they are such as to raise an obh- 
gatio, or a right in favour of the demandant {siparet dare 
oportere) ; in this case, then, the action is in Jus concepta. 
At other times the intentio, in which the demonstratio is 
involved, contains, so far at least as the language goes, 
nr thing but a mere fact to be proved {Siparet A, Age- 
rtum apud iV. Negidium mensam ' argenteam deposuisse, 
cam que dolo mulo N. Negidio A, Agerio reddiiam non 

(1) The form of pratfudidum was used when it was neoessaiy 
to determine prelimiiiarj questions, or even principal questions* 
wherein the consequences involved formed no part of the suit. 
The actio praijudKialis lay as to questions of right, of sttttus 
(whether such a one was fre^', h fieedv.^u, a fllius-f., &c); and 
as to mere questions of fact, as the amoimt of a dos (dowry) 
or a security (Gains 3, § 123 ; 4 § 44). ^ 

(2) For the formula si paret dare oportere does not necessarily 
require that the ground of the obligation — the fact raising it--- 
sbould be pointed out. 

(3) In tiie actio in factum the fkct, in place of forming part of 
the (demonstratio, becomes part of the intentio, so that it is made 
part of the question. 


esse, Gains 4, 47), and in this case the action is in factum 
concepta (1). 

Q. In the formula procedure were not the YrotdiAformula, 
actio, ajid jtidinium synonymous? 

A, Yes : the formula given by the praetor was the 
authority to the judex (judicium), and gave the demandant 
the right to sue before such judex for condemnatio against 
the defendant (actionem). Taking the effect for the cause, 
the words judicium and actio became synonymous with 
formuJ-a (2). 

Q. How was the proceeding by formula abolished P 

A, Even during the existence of the formula-system there 
were certain cases, e. q.^Jideicommissa, in which the magis- 
trate, instead of sending the matter to a judex, himself de- 
termined it. This was called a judicium extram^dinarium, 
extra ordinem co^noscebat; but the number of such 
cases increased, and it became more and more common to 
have matters determined finally in the officium of the im- 
perial magistrate without a judex. This exception Dio- 
cletian converted into a general rule. Thenceforth all 
judgments became extraordinary {extra ordinem jus did- 
tur qualia sunt hodie omnia judtcia {^ S, t. 16) (3). 

Q. Such being the general idea of the judicial organiza- 
tion of E^me, what is an Actio ? 

Pr, A, Thelnstitutes define it as the right to sue before a 
judex for that which is due, ju^ persequandi injudicio quod 
sibi dehetur; but this definition, borrowed from the jurist 
Celsus, is not correct, except with respect to the for- 

(1) Actions in factum originated with theprsetors, who made the 
liabihty of a man depend on any fiict they pleased ; thus they 
created new rights or sanctioned those not recognised by the 
civil law, or allowed persons to be parties in suits who were 
incapable by the civil law ; e. g,, filii-f. : who, before the introduc- 
tion of the peculvum castrewte, and even after trtat, as to an^'thing 
not immediately connected therewith, could bring no actio in jus 
concepta, because by the civil law they could not claim personaUy 
to be either proprietors or creditors (G^us II. 96). 

(2) In his edict the prsetor used the QX^YG&&vanA actionem or judi- 
cium, dabo indifferently. In arbitrary actions the actio was some- 
times called arbitritMn, as in the expression arbitrium tutelcB, 

(3) The superior ma^trates, in case of necessity, could always 
send parties before the judices pedanei; but this i/vas done without 
any formula. These judices were not juries, but inferior magis- 
tratee, who determined both the law and the fact. 

326 BXAMINATION IN [b. 4, T. 6. 

mala-sjstem, by which no one could bring an actio in 
judicio without having obtained the right to do so, f. e., 
without a formula ; but even under the formula-Bystem 
this definition seems applicable only to a personal action. 
During the latest period of the law an action would be 
more properly defined : the right to sue at law for that 
which IS due or belongs to a man (1). 


FiEST DiyisioN.-— Q. "What is the leading division, 
summa divisio, of actions P 

A. They are divided into real actions (in rem) and per- 
sonal actions (in personam) (2). 

(1) The term actio had varions significations, which may be 
smnmed np thus : 1. Under the earliest system, legis actio is the 
formal procedure by which the law is set in motion to enforce a 
right. 2. Under the formula or ordinary system actio signifies : 
(a) the right allowed by the ma^strate Qaa.vm^ jwrisdictio and »m> 
perium) to sue for that which is due ; (h) \^q formula defining this 
right ; (c) the suit before the judex appointed by the formula (ju- 
dMiwn), 3. Under the extraordinary system actio signifies: 
(a) the right derived directly from lihe law ; (b) the act of suing ; 
(c) the mode of suing. 

(2) The text (§ 1), says expressly, omutctm cusiionum summa 
divisio IN duo obneba deducitw. And yet in § 20 we find, Qtue« 
dam actionem mixtam cawsam ohtinere mdentur, tam in rem quam 
in personam. Hence we sometimes find it said that there is 
a third class called mixed, i. e,, both real and personal; but we 
shall see that the action is personal when the demandant insists 
that the defendant is bound to him, and that it is so called be- 
cause the defendant is of necessity named in the intentio. Whereas 
the action is real when the demandant sues without averring any 
obligation, and when the defendant is not named in the intentio. 
Hence it is clear that an action cannot be both real and personal, 
for it is impossible in the same action to aver and not to aver an obli- 
gatio — ^to name and not to name the defendant. It would seem, 
therefore, that when actions are regarded as mixed they are not 
regarded in the same point of view as when they are regarded as 
real aadpersonal ; the distinction is on a different principle. For it 
is the intentio which determines whether an action is real ot per- 
sonal ; but it is the effect produced by the exercise of that double 


Q. What is a personal action P 

§ 1. A. It is an action in which the demandant main- 
tains that the other party is bound to him by a personal 
obligation (per quas intendit adversarium ei dare aut 
facere oportere et aliis quibusdam modis) (1). 

Q. What is a real action P 

§ 1. ^. An action in which a man sues another without 
averring any obligation on his part (cum eo agit, qui nullo 
jure ohligatus est) ; e, g,, where the demandant claims the 
property of a Thing as his own (si Titius suam esse inten- 
dit, in rem actio est (2). 

authority which the judex has, either to adjudge the thmg or to 
oondemn the person, that determines whether the action is mixed ; 
and hence in the three mixed actions (t. 17) the formula contains 
both an adjudicatio and a condemnaUo, 

(1) Et aliis quibusdam modis alludes to the personal actions 
whose intentio, according to the formula-system, was different from 
oondictio (whereof the formula was 8i paret dare oportere, or 
quioquid paret dare facere oportere), e. g., actions infactum con-_ 
ceptcB, in which the formula, though apparently proposing a ques- 
tion of fiEict, in substance required the judex to determine whether 
the defendant was bound. 

(2) To understand this we must remember (p. 232) that there 
are certain rights which are absolute, affecting dl, jura in re, and 
certain others which are relative, affecting certain persons, jura ad 
rem. Now a real action is one in which a man asserts bis claim 
to jus in re against every individual who disputes that right : an 
action in whidi a man requires to be acknowledged as proprietor, 
usufructuarg or free man, A personal action is one in which a 
man asserts his claim to something quite personal as between him 
and the party sued, in which the pluntiff insists that t\aA particular 
man is bound to him. — Observe, that though an obligatio about to 
be enforced against the defendant may imply 2. jus in re in the person 
of the demandant ; still, if thisytw is not disputed by the opposite 
party, if the question arises merely as to the obligatio, and nothing 
more, the action is personal. Thus, where a man sues another 
who has been guilty of waste (devastatio), if the proprietorship 
of the thing wasted is not disputed the action will be personal ; but 
recourse must be had to a real action if the defendant claim to he 
himself the proprietor of the thing. — Care must be taken not to 
confound actions for moveables (transitory) and actions for immove- 
ables (local) with actions real and personal. The former of these 
distinctions applies when the question is, whether the object of 
the actioh be to claim a moveable or an immoveable thing ; either 
on the ground that the property is ours, or on the ground that we are 
entitled to have the property transferred to us. But actions are 

328 szAiaNATioir iv [b. 4, t. 6. 

Q. Whence the names (tctio in rem and in personam ? 

A. These names are usually derived from the fact that 
the real action attaches to the Thin^, and may be brought 
against its possessor, whoever he may be ; whereas the 
personal action attaches to the person of the debtor, and 
can be brought against him alone. But this statement is 
too vague ; for there are some personal actions, e. g., the 
actio ad exhihendum, which may be brought against the 

rBessor, simplv because he is the possessor (D. 10, t. 4, 
3, § 13), and which in this respect resembles a real 
action (1). — The meaning of the words in rem and in per- 
sonam, as applied to actions, must be determinea by 
that which these words bear when applied to the edicts of 
the praetor, to pacts, and to exceptions. In all these cases 
in rem denotes a declaration framed in general terms, in 
which no particular individual is pointed out ; in personam 
denotes a declaration in which reference is made to a defi- 
nite individual (2). In short, there are some claims which 
may be made without naming the other party ; as, when 
I maintain that I am the proprietor of such a piece of 
ground, or that I have a right of usufruct or of servitude 
over such a piece of ground : there are, on the contrary, 
other claims, which cannot be stated vrithout naming ttie 
other party, which is the case in obligationes ; for it is not 
sufficient mr me to show generally that I am a creditor: it 

real at personal^ not becaiue of the nature of the Thing to be re- 
covered, but because of the character of the intentio; for the ac- 
tion is real if by iAieintentio the demandant claims a right in re : 
it is personal if he cUdms an ohUgoHo m his favour. 

(1) Almost the same may be said of the actio noxalis, which 
lies against every proprietor of a slave who has committed da- 
mage (post, t. 8). On the other hand, there are some real actions 
which do not lie against every holder; for instance, the actio 
Pa/vUana (of which presently) does not lie against a purchaser 
for valuable oonaderation, unless he has acted maid fide, though 
it does lie against a purchaser mala fide, even though he is no 
longer in possession. 

(2) Thus, Ulpian says, that the rule laid down in an edict is tfi 
rem, when it is general and points out no specific person, generoHter 
et IN BEM loquitur, neo adjicit, a quo gestum est. So an instru- 
ment is in personam when its operation will benefit only one in- 
dividual, and not his hcsredes; it is in rem when framed in such 
g^eneral terms as to be capable of being called in aid even by other 
persons than those who have concurred in it (L. 7, § 8 ; L. 13, 
§5; D. 2, 1. 14). 


must be further shown that the defendant is my debtor. 
The action is therefore in rem when the ri^ht asserted by 
the demandant is stated in general terms without the name 
of any defendant beiag given, (e,g,, siparetfundumcapen' 
atem ex jure Quiritium Titii esse) ; it is in personam when 
the defendant is individually pointed out {e.g,,siparet Nvme^ 
rium Negidium Aulo Agerio sestertium decern millia dare 

Q. But it seems impossible to avoid naming in the for- 
mula all the parties to the suit : and it is laid down (D. 6, 
1. 1, § 27) that a real action can only lie against him who 
has been named defendant by the prsetor {injure) : so that 
if the thing whereof the property is claimed happen to 
change hands, a fresh action must be begun before con- 
demnatio can be awarded against the new possessor. 

A. True : but what we have said applies not to every 
part of the formula, but merely to the inientio; to it 
alone we refer when we say that the action is framed 
(concepta) in rem or in personam (1). And the reason why 
the intentio, in a real action, points out no individual, is 
because it would be useless to do so ; for it is enough for me 
if I show that I have an absolute right, e, g,, that I am 
proprietor of the thing claimed, to enable me to succeed 
against any defendant whatever; whereas it can be of 
no use for me to show that an ohligatio (liability) has been 
incurred in my favour, if at the same time I do not show 
that the individual liable is the individual sued. 

Q. Have real and j^er^onaZ actions any other nameP 

§ 15. A. Real actions are called vindicationes or petitions 
(petitiones) ; and the name condirtiones is given, if not to 
all personal actions, at least to all those in which the de- 
mandant maintains that the opposite party is bound to 
give or do something (2). 

Q. Whence the name condiciio ? 

A, It is derived from the old legis actio, called condictio. 

(1) In the real, as well as the personal action, the defendant 
18 of necessity named in the condemnatio, 

(2) Condictiones were actions in which the form of the intentio 
was this ; Si paret dare oportere — si paret dare facere oportere. 
Bat personal actions, in which the intentio was differently framed ; 
e, g,, actions in factum, the action of theft (the intentio of which 
was this : Si paret damnum decidere oportere Gains, 4, 87), were 
not included among condictiones. 

330 EXAUINATIOV IN [b. 4, T. 6. 

which was used for the special purpose of claiming the 
execution or fulfilment or a liability (ohligatio) to give 
sometning^. Under the formula-system the name condictio 
denoted that action whose m^e^t^to, using the same terms as 
the old condictio, alleged, however indirectly, that the de- 
mandant claimed under an obligcUio incurred by the defen- 
dant to give or to do something (siparet . . . dare . . . siparet 
dare facere oportere). Hence the two condictiones : one 
certi when the inteniio was dare, to give a thing definite ; 
the other incerti when the intentio was quicquid dare 
facere, " to give or to do whatever is proper * (p. 287). 

Q. Are real actions, or vindicatumes, applicable only to 
Things corporeal P 

§ 2. ^. No : they apply also to Things incorporeal. By 
means of a real action a man may claim the rights of usu- 
fruct, of tisiM, and prsedifll servitudes. 

Q. How do you divide real actions with reference to 
servitudes, personal or real P 

§ 2. i4. Tney are either confessoria or 7iegatori(B, The 
actio confessoria, or affirmative, is one in which a man 
claims to have a servitude over a corporeal hereditament : 
as when he claims a usufruct in the land, a right of pas- 
sage, or of view, &c. The actio negatoria, or negative, is 
one in which a landlord contends that the individual who 
claims to have a right of passage or usufruct over his 
land has no such right (1). 

Q. Is there not something peculiar in the actio nega- 
toria ? 

§ 2. A. Yes : in it the proof lies on the defendant, who 
thus occupies the position of plaintiff, pa/rtes actoris stm- 
tinet; whereas generally it is for the demandant to prove 
his case, for usimly he affirms. But in this case he de- 
nies, and it is the defendant who insists that he is entitled 

(1) Ortolan II. 530, after observing that servitudes are tng- 
ments of property (p. 82), so that property in the same thing may 
belong to different persons, says : " Hence two cases — either I may 
claim to have a servitude over that thing of which another is pos- 
sessor, in wbich case my claim is this : Siparetjus tttendi fruendi 
mihi esse ; or, being myself possessor and proprietor of a thing, 
another may exercise over it some right of servitude, and I may 
wish to put a stop to such unfounded claim, in which cajse my 
claim is this : 8i paret jus utendi fruendi adversario non esse. 
In the former case the actio is confessoria, in the latter nega- 


to the servitude. Therefore it is for him to prove his 
case (1). 

Q. In suits as to Things corporeal, is there any action 
negatoria as in suits for servitudes f 

§ 2. A, No : it is idle for me to prove that A. B. is 
not proprietor of a Thing, since it would not therefore 
follow that I am the proprietor thereof. In short, as to 
a part]^ in possession, the right to claim property (vindi- 
catio) is not open to him ; for he has no claim to make, 
and if he is assailed, he has nothing to prove (2) : as to 
the party n,ot in possession, his action is of necessity af- 
firmative or confessoria in form; for he must prove his 
right (3). 

Second division. — Q. How are actions divided in re- 
gard to their origin. 

§ 3. ijt. Into civil and prcetorian. Civil actions are those 
derived from the civil law {ex legitimis et civilihus causis); 
pTiBtoriaah actions are those created by the prators^ and 
forming part of the Jus honorarium : ooth classes are di- 
vided into real and personal. 

Q. Mention the principal real praetorian actions. 

§ 3. A. Justinian mentionsi five : the actio publictana, 
the actio quasi-publiciana (§ 5), the actio pauliana, the 
actio serviana, and the actio quasi-s&rviana, or hypothec 

Q. In what case did the actio puhliciana arise P 

§ 4. A, Suppose a Thing delivered for a good cause (ex 
justd causd), i, e. with an intention to transfer the property 

(1) Wlien the demandant has proved the ground of his claim-— 
when, for inbtance, he has proved the ohligatio — it is for the de- 
fendant who pleads an exception, i, e,, who, hot satisfied with 
denying the demandant's allegation, asserts a fkct — ^to prove it; 
fbr instance, that he has paid, or that the demandant is acting 
maid fide. In the exceptio, therefore, the defendant does what 
the demandant is bound to do in case of the intentio. Hence the 
maxim : Sens in exceptione actor est, 

(2) A possessor, in order to sustain his possession, had more- 
over the interdictum uti possidetis or utrubi, whidi will be dis- 
cussed t. 15, post, 

(3) There is, however, one case, says the text (§ 2), in which the 
possessor is bound to prove his right of property (sane uno casu, 
qui possidet, nihilominus is ctctoris partes obtinet) : this passage 
has given rise to much discussion. But it may be a mere sum- 
mary of what precedes : " There is one case of a possessor being 
plaintiff, viz., the possessor of an incorporeal thing.' 


332 BXAMINATIOV IK [b. 4, T. 6. 

therein (as in case of a sale, or a legacy, &c.) to one who, 
not having become quiritarian owner, lost possession of 
the Thing, before having acquired title by usucapio {1), 
Now, although such transferee could have no right to claim 
the property by vindication (for that belongs to the quvri' 
tarian owner alone,) still the prsetor allowed him an action, 
in which the condemna;tio of the defendant was made to 
depend, not on the actual right of property in the demand* 
ant, but on such right of property as he would have had if 
the time of uaucapio had elapsed ; which action so granted 
by the praetor had substantially the same effect as an ordi- 
nary vindicatio claiming the property. Such was the effect 
of the actio called publiciana, after the preetor Publicius, 
who introduced it m order to mitigate the rigour of the 
civil law (p. 79) (2). 

Q. Was the actio publiciana of any use to the proprietor 
himself P 

A. Yes : it relieved him from proving that he was owner 
ex jure quiritium, i, e,, absolute legal owner : often a diffi- 
cult matter ; for, in order to do so, it was necessary to 
show that the Thing had been transmitted d> domino, by 
ascending from delivery to delivery to the original owner ; 
whereas in the actio publiciana it was enough to show 
that the thing had come into your possession bond fide. ' 

(1) Observe, the delivery of thmgg mancipi did not transfer the 
property ex Jure quiritium, even though the delivery was made by 
the true proprietor (pp. 96, 77) ; and that the delivery of things nee 
mancipi made a non domino d^d not transfer the property in them, 
bat laid the foundation for usucapio, 

(2) Qaius (4, § 36) gives the formula of this action judex esto. 
Si quern hominem Aulue Ageriue emit quique ei traditua eet 
anno potndieeet, turn ei eum hominem de quo agitur ejus ex jure 
QuiriHum esse oporteret, &c. From which it appears that the 
actio publiciana was of no avail unless the plaintiff wto in such a 
position as to aoqiiire title by uaucapio, and fiedled to do so only 
because of too short a time having elapsed. Thus the thing 
claimed must have been received bond Jlde, and must not be 
res vitioaa, e, g^ stolen (p. 98). If the possessor of the article, 
against whom the a,etio publiciana was brought, was himself 
bond fide possessor and in a position to acquire title by ueucapio^ 
he could effectually defend himself by an exceptio founded on the 
maxim in pari ccmea, meUor est causa possidentis. If the pos- 
sessor insisted that he was the real proprietor of the Thing claimed 
by the actio publiciana he might defend himself by the exceptio 
justi donUnii, and if he proved to be the real proprietor, he gained 
the suit, and kept possession. 


Q. In wliat circmnBtances was the action quasipublici' 
ana allowed P 

§ 5. A, The actio publiciana assumed that a party had 
acquired title by usucapio, when in fact he had not ; here, 
on the contrary^ it was assumed that the possessor had not 
acquired title by usuc<ipio, though in fact he had : and this 
assumption was made : Ist. When a party being ab- 
sent (1), or in the power of the enemy (against iraom, 
therefore, no action could be brought), acquired title by 
usucapio (2) to the property of a person who was present. 
2nd. when title by vsucapio had oeen acquired as against, 
and during the absence of, a man who was absent for good 

In both cases the prrotor mitigated the rigour of the strict 
law, which would nave deprived the proprietor of that 
which he had no opportumty of defending, by gri^iting 
him a real action, whereby he might reclaim the property, 
just as if there had been no prescription {rescissa usuect^ 
pioTie), and as if, therefore, he had continued in possession 
of the property. This action, which was called the action 
contrary to the publician or quasp-publiciana (B), could 
be brought only during one utilis annus (p. 224), after the 
return of the absent party (4). 

Q. Did not Justinian introduce some change as to this 
action P 

A. He allowed the usucapio, or prescription, to be in- 
terrupted by the effect of a petition to. the magistrate (C. 
vii. 40, 2). So that this action was no longer required to 
prevent an absent party from acquiring by ustecapio. 
Moreover, he extended to four years the time during^ which 
the action might be brought. 

(1) Whatever might be the reason ; for it was not only when the 
absent party was fulfilling a public office (reipubHcce causa) that 
such action lay. 

(2) A man might possess, and therefore acquire title by usucapio 
through another (B. 2, t. 9). When the absent party was in the 
power of the enemy we must suppose that his slave, or his filius- 
familias, acquired ex causa peculii the property of another, for the 
prisoner coidd not in any other way have a possesaon even through 
his own filius-familias, or his own slave. 

^3^ Or rescissoria, for the usuccipio was rescinded. 

(4) The action quasi-publiciana was for one year, for it cur- 
tailed the operation of usucapio, according to the civil law, whereas 
the actio publiciana was perpetual, for it enlarged the effects of 
the dvil law (p. 365). 

334 EZAMINATIOV IN [b. 4, T. 6. 

Q. Explain the actio Pauliana. 

§ 6. A, This action was allowed to creditors, for the 
purpose of claiming back property which the debtor had 
alienated in fraud of his creditor's rights (1), as though 
such property had never ceased to belong- to the debtor. 
This action rested upon a fiction : for the prator assiuned 
that the Things in question never had been delivered, 
and that, therefore, they had always continued amongst 
the goods of the debtor, into possession of v hich the cre- 
ditors had been put (p. 229). The actio Pauliana was 
open only for a year. 

Q. Against whom does this action lie P 

A. Against every purchaser by a title importing clear 
gain (lucrativa) ; but it does not lie against the purchaser 
for valuable consideration, except so far as he has been 
mixed up in the fraud (2). 

Q. Explain the actio Serviana, 

§ 7. ^. This is an action introduced by the praetor Ser- 
vitts, and allowed to the proprietor of a prcsdium rvsticum, 
by virtue of which he may sue any one holding posses- 
sion of those Things which the farmer (colanua) has made 
chargeable for his rent {qua pignofng jure tenentur{S). 

(1) In fraud, i, e., in pr^udice of the creditors, and with an 
intention to ii^ure them (vide p. 17). 

(2) It is a great question whether the actio Paulicma is real or 
personaL The truth probably is, that the creditors might bring 
either a real or a personal action ; for just as a man had either a 
personal action quod metus causa, or a real action to claim back 
that which he had alienated from fear; or, as a minor under 
twenty-five, ix\jured by an alienation, had either a personal action 
against the purchaser, or a real action, reacissa aUenatione ; so 
the creditors were allowed either a personal or a real action, accord- 
ing to the question submitted to the judex; for if the /ormuZa was 
thus — If U apfeart that A. B. U bound to give the land which 
he has bought by fraud, S^c. — the action was personal. But if, 
as the text presumes, the prsetor directed the judex to inquire 
whether the land does not belong to the debtor, the delivery being 
assumed to be null {reecisea traditione), the action would clearly 
be real, for this question regards tijue in re, 

(3) In case of a pradium rusticum, only things by express 
agreement made liable to the payment of rent constitute the 
pledge (pignus) to the proprietor: the fVuits, however, of the land 
are tacitly included in such pledge (pignus). But in case of a 
hired house everything brought into it is considered tacitly charged 


Q. Explain the actio quasi Serviana or hfpothecaria. 

§ 7. A. It is an action framed in imitation of the action 
Serviana, by which the creditor claims from the possessor 
that which has been mortgaged to sach creditor as a 
pignus or hypotheca (1). 

Q. What difference is there between a pignus and a 
hypotheca ? 

§ 7. A, A pignus (proper) is that which a debtor de- 
livers over to his creditor as a security : hjfpoiheca is that 
which is charged as a security for the benefit of the cre- 
ditor, but is not delivered over to him (sine traditione). 
The hypotheca is created by a mere agreement recognised 
bv the prsBtor (p. 270). The pignus is usually a move- 
able {maxime sit mobilis), but it may be an immoveable. 
So also one may hypothecate either a moveable or an im- 

Q. Suppose a thing hypothecated to several creditors 
one after the other, by difiTerent agreements, which of 
the creditors had priority? 

A. He whose hypotheca was earliest in date, according 
to the maxim prior tempore potior jure. So that if the 
action quasi Serviana were brought by one creditor whose 
hypotheca was later in date against another whose hypo- 
theca was earlier, the latter had an exceptio in bar of the 
action of the former. 

Q. ^ame the personal praetorian actions. 

§8.-4. They were very numerous [et aluzs complwres) ; 
the text instances the actions constitutes pecuniee, de pecu- 
lio, exjureiurando, 

Q. Explain the actio pecunia c<mstitut<B, 

A» It is an action created by the praetor, for the purpose 
of obtaining the fulfilment of a constitutum. Now coTisti- 
tutum signifies a prcetorian pactum (p. 270), whereby a 

as security for the rent. The action Serviana only applies to the 
case of pradia rustica; but the landlord of a house may claim an 
action quasi Serviana. 

. (1) This action is real; for the question is, whether the thing 
belonged to the debtor when it was given as a pignus or hypo- 
theca ; for if that was not so, the creditor could have no right in re 
(p. 245). Observe, the creditor was not bonnd to prove that the 
thing was in dominio, but merely in bonis of his debtor, »'. e., that 
such debtor was possessor for a good cause and bond fide, for such 
possession had, in the eyes of the prsetor, all the effects of pro- 

336 EXAMINATIOir IN [b. 4, T. 6. 

man makes a fresh promise in regard to something 
already due by himself or by another, either by virtue of 
the civil or natural law (1). The promise creating the con- 
stitutum we must presume to be a nttdum pactum (nulla 
stipulatume) ; for if the promise were by a stipulatio, it 
would raise the civil action incident to a stipulatio (B. 3, 
t 15). 

Q. What Things may one constituere ? In other words, 
for what Things may the action constitutce pecuniae be 

A, Formerly this action was available for such things 
only as might oe the subject-matter of a mutuum, i. e, for 
things valued in nimiber, weight, and measure (p. 240). 
But Justinian decreed that it should be available for all 
kinds of things : this was the effect of a ConStitutio (C. iv. 
18, 2), whereby he abolished, or rather amalgamated with 
the actio constitutes pecunicB, another civil action, called 
receptitia (2), which was somewhat analogous to it. Hence 
the word pecunia in this case signifies not merely a 
sum of money, but every article of commerce (D. 60, 178, 
B. 2, 1. 1). 

Q. What is the actio depeculio ? 
10. A. It is an action whereby a pater-familias is com- 

led to discharge the obligations contracted [ex contractu) 
by his filius-familias, or his slave, to the extent of their 
peculium. By the civil law (ipso jure), the pater-familiar 
was not bound by such obligations (B. 1, t. 9) ; but it 
seemed to the preetor just (eequum) that the pater-familias 
should be bound to the extent of the peculium of the filiuS'* 
familias, or of the slave, who had respectively bound them- 
selves ; for the peculium was considered as in some sort 

(1) The consHtutum given for the debt of another, is a sort of 
guarantee, but it produces no novatio : the only result to the cre- 
ditor is ft power of making his demand for another thing, or in 
another place, or at another time, or against another person. 

(2) It seems that in early iimes money-dealers (aa'gentarit) 
were employed to transact a man's business, and, indeed, creditors 
preferred to be paid by them, because their coin was not so likely 
to be false. Thus the bare promise of an argentarius to pay for 
his client came to be enforced by the civil actio called receptitia. 
But this actio, at first confined to argevUaHi, was afterwards al- 
lowed, under the name coiMtituttB pectmuSf to any person who, 
without stipulatio, undertook to pay a debt (p. 263). The term 
constituere replaced the term recipere, — ^both signifying to settle 
a day upon wMch something is to be done. 



the patrimony of him to whom the pater-familias intrusted 
the management thereof (1). 

Q. Is it merely in respect of obligations arising out of 
contracts that the action de peculio is granted P 

A. 'No : it is also granted in respect of obligations arising 
qtuisi ex contractu, but not in respect of obligations arising 
quasi ex delicto (B. 4. t. 5, | 2) (2). 

Q. Is the action depeculw properly a special action P 

§ 10. A, No : it is a mere modification of the several 
actions arisin g o ut of obligations contracted by a person 
alieni juris. vV^hen, therefore, a filius^f. or a slave sold 
anything, or received anything in deposit, the magistrate 
always granted against the pater-f. an action ex vendito, 
depositi, &c., but not for a greater amount than the pecu- 
lium (de peculio), 

Q. Explain the action ex jurejurando, 

§ 11. A, When one of the parties tendered an oath to the 
otQer at his request (postulante adversario), there arose a 
species of arrangement, by which the parties undertook to 
aoide by the statement made upon oath ds«to the existence 
or non-existence of a debt ; so that if the demandant, at 
the defendant's request, swore that a debt was due to 
him (3), the defendant had to pay. This, however, was no- 
thing more than an obligation arising out of a nudum pac" 
turn, which the civil law did not recognise : but which the 
prsetor did, by creating the action ex jurefttrando, in which 

(1) The peculUim here alluded to Is obviously that whereof tlie 
fiither is proprietor, and consequently, in the new law, the pecu- 
Uum profecticium alone ; the pater. -f. cannot be bound in respect 
to the pecuUwn castrense or quasi castrense, nor even as to the 
pecuUum adventicium, which belongs to the 61ius-f. (p. 113). But 
the filius-f. himself must be sued, for be is bound by the dvil law. 
So that, if the whole debt cannot be recovered from the pater>f., 
because it exceeds the peculium, the filius-f. may, in any case, be 
sued for such excess. So also the slave is a debtor but naturaUter 
tawtum for the debt which be has contracted. 

(2) But against the master there was the action noxalis (t. viii.) 
Obsorve also, that when the filius-f. was condemned fi)r a deltc- 
turn, the pater-fiimilias was bound by the actio judicati de pe- 
eulio (D. 15, 1, 3, § 11), for the sentenka (judgment) raised a new 
obligation which worked a novatio of the old debt ; and by virtue of 
this obUgatio, resembling that raised by a sHpulatio, the pater-f. 
was sued de peculio. 

(8) It would be the same thing if the defendant relieved the de- 
mandant from taking the oath, when the demandant was prepared 
to take it. 

338 EXAMINATION IN [b. 4f, T. 6. 

the condefunatio of the defendant was made to depend, not 
upon whether there had or had not been an obligation, bat 
upon whether or not an oath had been regnlarly taken (1). 

Q- The persohal praetorian actions which have engaged 
ns till now are for the purpose of giving effect to, or con- 
firming certain agreements : but did not the prsBtors also 
introduce certain penal actions P 

§ 12. A, Yes : such as the actions de aZbo corrupto: de 
peUrono aut parents in jus vocato ; de in jus voccUo vi ex- 
empto : the actions de d^ectis vel ejffusis ; de suspensis vel 
positis (t. 5, ante), and many others. 

Q. Against whom was the action de alho corrupto 

^ 12. A, Against those who damaged or caused damage 
to De done to the praetor's Albums or white board, on which 
the edict was inscribed in black characters, and which was 
exhibited in the Forum for public information. 

Q. Against whom was the action de patrono autparente 
in jus vocato granted? 

§ 12. A, Agtfinst any of the issue, or the freedman 
who had summoned an ancestor or patron in jus without 
the praetor's permission. The penalty was fifty pieces of 

Q. Under what circumstances was the action de vn jus 
vocato vi exempto ? 

§ 12. ^. The law was, that a defendant having received 
a summons to appear before the magistrate {in jus), and 
having disobeyed it, might be compelled to appear by fbrce. 
I^ow, to prevent the defendant's friends from attempting 
to resist such compulsion, the praetor invented this action, 
which lay against those who used, or caused to be used, 
any violence for the purpose of preventing the defendant 
bemg brought in jus. It gave the plaintiff who was 
bringing the defendant before the magistrate a right to 
receive from the party using violence a sum equal to the 
subject-matter of the suit, without prejudice to the plain- 
tiff^ claim against the original defendant. 

Q. May not the acdons prt^udiciales be included under 
the class of real actions P 

§ 13. A, Yes : {prcB^'udioicdes actiones in rem esse viden^ 
tur, § 13). For the question in the prtxjudidum was framed 
in general terms : the judex was commissioned to inquire 

whether a man was free, or whether a man was a freedman, 

- . ■ 

(1) The jndex, therefore, had only one fact to inqtdre into, viz», 
the taking of the oath, and bo the action ex jwr^wrcmdo was m» 


or whether a man was the son of such an one (partu agn<h- 
scendo). Consequently the defendant was not named in the 
intentio, which in this case constituted iy fact the whole 
formula. — ^To determine questions of status, however, was 
not the sole object of the actiones prajtidddales ; for 
sometimes their object was to determine the amount of 
a debt, and even then the^ would not be considered per- 
sonal, unless the obligation itself was disputed. — The 
majority of the custumes prc^vdiciales were of prsetorian 
origin. Justinian tells us that the pra^judicium m respect 
of liberty {an liber sit) was almost the only one derived 
from the civil law. 

Q. Might a man claim back a Thing, belonging to him, 
by condictio (proper) P (p. 241). 

§ 14. A. No : for the formula of that action proves that 
the defendant was not to be condemned uidess he was bound 
to transfer the property {si paret dare oportere), Now the 
person holding my property cannot be bound by any such 
obligation ; for I cannot be made proprietor of that which 
is a&eady mine. — But, from the hatred shown to thieves, 
and in order to make them liable to a ^eater number of 
actions, it was held that, besides the actio furti, by which 
a person was bound to pay the double or quadruple value^ 
they should be liable to condictio, though the proprietor 
was also entitled to a real action against them (B. 4, t. 1). 

Thibd Division. — Q. How are actions divided in re- 
ference to the purpose for which thejr are brought P 

§ 16. A, Into three classes : actions rei persequenda 
gratia comparata, i. e., actions by which a man claims back 
that of which he has been deprived, either by something 
belonging to him having been carried off, or by his not 
having received sometung due to him : penal actions 
{poente persequendis), by which a man sues for a pecuniary 
condemnatio as for a penalty : and actiones mixta (mixed)', 
by which a man sues both for the Thing itself and for a 

Q. What actions were rei persequer^cB gratia f 

§ 17. A. All real, and the majority of personal actions, 
arising out of contracts. But the actio depositi ex quibusdam 
casibtis (§ 23), i, e., for a deposit made m case of fire, dis- 
turbance, destruction of a building, or shipwreck, was 
mixed if brought against the party with whom the Thing 
had been deposited {depositarius), or against his hmres, 
who had proved guilty of fraud (1) ; for the condemnatio 

(1) If the hsres was not saed for his perBOxml frmA{de dole 


340 SZAMIKATIOK IN [b. 4, T. 6. 

was raised to tlie double value, in order to punish a faith- 
less depogitarius who took advantage of the distress of a 
depositor (p. 24^. 

Q. Were all actions arising from a wrong (ex delicto) 
merely penal P 

§ 18. il. "No: some were merely penal, others mixed. 
Amongst the former we include the actio Jkrti, for its 
only object, whether brought for the double or the 
quadruple value (p. 298), was to obtain the penalty for the 
wrong. For, besides this action, the proprietor who 
had been robbed might have an actio in rem, to claim 
back his property in the Thin^ ; or, as we have said, a 
condictio lor the purpose of obtaming, in any case, the value 
thereof in money (p. 339). On the other hand, the ac- 
tion vi honorum raptorum waR mixed, because the quadru- 
51e value included not merely the penalty, but also the 
'hing itself (B. 4, t. 2). So the action of the lex Aquilia, for 
damage wrongfully caused (injuria), was mixed, not merely 
when a person brought an action for the double value 
against another who denied the damage (adversus infician' 
tern), but sometimes also, though the action was brought 
only for the single value (1) \e, g., when a man had killed a 
slave who was blind of one eye, or lame, and who was, 
within the year, of great value, and without blemish, the 
master was entitled to demand the highest price which 
ihe slave reached during the year, and consequently 
something more than he had lost. A mixed act-ion was 
also allowed against those who waited to be summoned, in 
ju9, before delivering up to churches and other religious 
establishments what had been left to them as legacies, or 
by way of trust (fidei-commissum) ; for in such cases, 
persons were compelled to give the thing or sum be- 

ipsius § 17), but for that of his predecessor, the action against the 
hares was for the single value only, because the penalty was daimed 
only from the actual wrong-doer, and not from his haredes, in 
which cajBe it was simplj persequendcB rei gratia. 

(1) At first sight it would seem that the actio legis AquiUte 
cannot be granted for the single value ; for either the person causing 
the damage disavows it, and then the action is for the double value, 
or he avows it, and then no action is granted, according to the 
maxim, confessus in jure pro judicato habetur. But it should 
be observed that the action in question may be allowed ad asti- 
mandum; the parties agreeing as to the fact of damage may dis- 
agree as to its amount, and then the action for the single value 
is granted t in hoc acUone judex non rei judicandee sed cutimanda 


qaeathed, and as mach more, by way of a penalty, so as 
to make up the condemnatio to tne double value (§. 19). 

Q. Are there not some actions called mixed, m a dif- 
ferent sense from that which has been explained, but still 
in a sense derived from the result which tney involve P^ 

§ 20. ^. Yes ; some actions are called mixed, because 
they have a double effect, and confer on Hie judex a double 
power, viz.t as to the Things and as to the persoTis {tarn in 
rem qnam in personam) ; as to the Things which he may 
adjudicate upon, and as to the persons whom he may con* 
demn. Such are the three actionB familia erciscundts (for 
partitioning the hsereditas), communi dividundo (for di- 
viding a Thing held in joint property), asid Jlnium regun* 
dorum (to settle the boundaries), for in them the judex 
may adjudge, according to equitable principles, the Ijiings 
to either party, and may condemn the one whose portion 
is too large, to make up to the other the deficiency in 
money ; moreover, he has power to condemn either party, 
by reason of the obligations by which each may be re- 
spectively bound, eitner to restore the fruits or to give 
any other indemnity (post, 1. 17). 

FouBTH Division. — Q. How are actions divided as to 
the amount of the condemnatio ? 

§ 21. A, Into actions for the single, the double, the 
triple, or the cjuadruple value (1) ; i. e., actions for the 
purpose of obtaming a condemnatio equal to, or the double^ 
or the triple, or tbe quadruple of that which is stated in 
the intentio, — ^in other words, of that which the demandant 
insists has been taken from him. 

Q. When was the action for the single value granted 
by the pr»tor P 

§ 22. A, Whenever it was ret persequenda gratia ; 
amongst the penal actions some were granted for the single 
value ; such as the actio de in jus vocato vi exempto, 

Q. When was the double value sued for P 

§ 23. A, In case of theft nec-mantfestwn ; in case of 
damage under the lex Aquilia; in case of deposit ex 
quibusdam casibus ; in case of corrupting a slave (2) ; in 
case of legacies bequeathed to religious establishments. 

(1) In simphtm, in duphtm, &c. There is no action fbr the JieS' 
fold value (§ 21). It is probable that in actions granted for the 
single valne, the condemnatio in the tormoia amounted to a sum 
.equal to that stated in the intentio {si paret X millia dare oportere 

Xmillia condemna), and that in actions for the double, triple value, 
Ac, the condemnatio was a multiple of the sum in the intenHo, 

(2) The action for corrupting a slave (servi eorruptt), is granted 


342 BZAMIKATION IK [B. 4, T. 6. 

Q. Was there no dutinction between the various actions 
for the double value which yon have enumerated P 

§ 26. A, Yes : some of tliem were in eyery case granted 
by the prstor for the double value, as actions '£r theft 
nec-jnanifestum, and for corrupting a slave ; others were 
granted for the double value only in case there had been, 
a denial (infidatio), as in the action of the Ux Aquilia and 
the deposit ex fuihutdam casihusj or in case of delay, as 
in the payment of legacies bequeathed to religious esta- 
blishments (§ 19). 

Q. When was an action brought in triplum ? 

§ 24. A, Justinian allowed such action against any one, 
who, in setting forth his demand {in libello), demanded 
more than his due, in order that the officers {viatoresidesi 
executores litiwrn, § 24), might require of the defendant a 
larger sum in fees {sporiuiarwn nomine), for these bore a 
certain proportion to the stun demanded. The defendant 
was entitled to three times the estimated damage suffe^d 
in this way ; but the amount of damage stood for one, so 
that t he p enalty was only double (1). 

Q. When was an action brought in guctd/ruplum f 

§ 25. A. In actions, for instance, fitrh tnanifestij 
quod metus causa ; in actions againstsoien bribed to make 
a false charge against another {calumnia catcsa), or to 
abstain from so aoing. Moreover, Justinian allowed an 
action for the fourfold value against such officers as de- 
manded higher fees than those to which the law entitled 
them. — It should be observed, that the action quod metus 
causa differed from the other actions for the recovery of 
the fourfold value, in this, that its nature was such as to 
allow the judex to acquit the defendant, if, in compliance 
with an order (jussu) of the judex, he restored to the 
demandant that which had been obtained from him by 
fear ; whereas in the actio furti manifesti, for instance, the 
defendant was in every case condemned to pay the fourfold 
value (§ 27). 

agamst any person who has excited the slave of another to with* 
draw himself by flight from the power of his master, or to rebel, 
or to fall into loose habits; in short, against any person who has made 
him vicions in any way. In this action the amoant of the condem- 
natio includes the value of the things the slave may have carried 
off in his flight. 

(1) Und^ Justinian an action was brought, by the plaintiff 
presenting a petition signed by him (libelhu oowoentioms), which 
contained a statement of his daim. This libelUu the magistrate 
directed to be delivered to the defendant by an officer of the court* 
This method replaced the old injua vocaHo, 


Fifth Diyision. — Q. How are actioiui dhided in re- 
gard to the extent of the powers of the judex P 

§ 28. A, Into actions of good faith (bowBjidei), actions 
of strict law (stricii jt^ris), and arbitrary actions (arbi' 

Q. What do you understand by actions of good faith P 

§ 28. A, This term was applied to those in which the 
juaex had power to determine, not simply according to 
the strict civil law, but according to equity or good 
faith (1). Such are tilie actions raised by sale and purohase, 
letting and hiring, negotiorwn gestio, mandatum, deposit 
turn, partnership, tutela, commodatum, pledge: actions 
familuB erciscunda, cammuni dividundo, and the action 
priBscriptis verbis, raised by exchange or the unnamed 
contract called de (sstimato {2) ; and lastly, the petitio 
JuBreditaiis (3). 

Q. Which are the actions stricti juris f 

A, Those in which the judex is not autiliorized to decide 
according to equity, but must decide according to the civil 
law, adhering strictly to the terms of the contract. Such 
are actions ex stiputatu and ex testamento, the condictio 
raised by a fnutwum (4), and actions raised by wrongs. 

Q. What is the dinerence of result as to compensatio 
or set-ofif between actions bomB fidei and 9tricii juris ? 
(vide p. 293). 

(1) The term bonm fldei is derived from the mode in which the 
judex was clothed with authority to take into consideration those 
drcumstanoes, which in eqmty would modify the obligation of the 
defendant, the mode adopted h&ng to add to the intentio of the 
formula the words ex fide bona (vide Ckdus, 4, § 47; Cic 3, Offic. 17). 
The creation of actions bona fldei and of exceptions (t, 13 post% 
the purpose of both being to meet fraud and to mitigate the strict- 
ness of the primitive law of the Twelve Tables, marks the transition 
from the jus civile to the jus gentium. In actions bonte Jidei, ob- 
serve, the judex was called arbiter, in opposition to the judex in 
actions of strict law. 

(2) This contract arises when a thing has been delivered to an 
agent to be sold at a particular price, so that, if sold above such 
price, the excess shall go to the agent ; and if not sold at all, it 
shall be restored. As there was a doubt whether it amounted to 
a sale, a hiring and letting, a partnership, or a mandeUum, the actio 
priBscripUs verbis was allowed (p. 237). 

(3) It is a question whether these actions include all those bonm 
fldei. But probably they are mere examples. 

(4) It may be observed that the actions of strict law (stricti 
juris), were the proper means of enforcing unilateral contracts and 


344 sximirATiOH m [b. 4» t. 6. 

§§ 30, 39. A. The power possessed bj the judex, in 
actions hanajideii to estimate the good or bad faith of the 
parties, imphcitlj authorized him to fix the amount of the 
rondemnatto on equitable principles {ex (i^J^to ei bono) ; and 
therefore, if the demandant was hunself bound bj some 
obligation to the defendant, the judex would estimate the 
engagement of each party, and would condemn the defend- 
ant to paj the sum due by him, after proper deductions for 
turns due to him by the demandant ; nay, would not con- 
demn the defendant to pay anything if he was creditor 
for a larger sum than that for which he was prored to be 

Indeed this is the only way in which a set-off could 
operate. For the co-existence of two obligations, one on. 
either side, did not preTcnt each of them existing in the eye 
of the civil law ; in other words, set-off was not a mode of 
extinguishing obligations by that law. I^or again, by that 
law, niEid the judex power to gire the benefit of a set-olF; he 
was requireato condemn the defendant to pay the entire 
debt raised bj a stipulatio or by a testament, &c., without 
making any inquiry as to whether the defendant was not 
himself a creditor of the demandant on other accounts (1). 

But this doctrine of the old law was chan^red, for Justi- 
nian decreed, that a set-off of things clearly ascertained 
{qua jure aperto nituntwr, C. lY., 31, 14, 1), should be ad-> 
mitted as a matter of right {ipso jure) in ail actions what- 
ever, both real and personal, except in the actio d^ositi, or 
in an action against one who had laid violent hands on 
the property of another (2). 

quan oontiacts, whereas actions bona Jidei were the means of en- 
forcing those contracts or quaa. contracts, which ^ve rise to sy- 
nallagmatic or mntnal obligations. 

(1) A judex required a special authority by the formnla to 
enter upon such an inquiry — an anthority which was conferred 
when the prsstor, in accordance with the rescript of M. Anrelina, 
added to a formnia in jus eoncepta, the excepUo doU. For this 
exception excluded from the general order to condemn the case of 
firand ; no that the judex was directed to acquit the defendant if the 
plaintiiTowedhim a ram equal to the claim, or at least not to con- 
demn the defendant without subtracting the sum due by the 
pl^ntiff; for it is clearly a fraud in a plaintiff to demand a snm 
from another to whom he owes an equal snm (tit. Exceptiones). 

(2) This would lead us to suppose, that in Justinian's time there 
still existed actions and exceptions ; but these words were no longer 
used in th^ proper and ori^nal sense. Under Justinian the 
magistrate was held to receive from the law the action and ear- 
ception, which the judex fbrmerly received from the prsstor. 



Q. Was not the action rei uxoria one of the actions 
bonajidei ? 

§ 29. A, Yes : the foUowinsf were the changes intro- 
duced by Justinian. Formerly a woman had two actions 
to recoyer her dowry (dos), the action rei uxaria and the 
fiction ex stkmlatu (1). The latter could arise only 
from a formal stipulaiio ; but it was the more advan- 
tageous of the two chiefly for the woman : 1st. Because, 
from the very fact of its being stricti juris, the husband 
was obliged to give back the dowry entire, without any such 
deductions (e. g,, on account of the necessary expense 
of preserving the dos) as were allowed in the acito rei 
uxoruB (§ 37). 2nd. Because it obliged him to restore 
the dowry forthwith, whereas, in the <intio rei uxoria there 
was a certain delay, at all events, when the dos consisted 
of consumable articles (p. 240). But Justinian abolished 
the action reiuxoruB, and allowed the wife in all cases, even 
when there was no stipulatio, the action ex stipulatu ; cu- 
riously enough, however, he declared that the action ex sti- 
pulatu should become (in this case alone), an action bona 
fidei. This action accordingly allowed the husband the 
benefit of competence, and the space of a year for restoring 
the res dotales, not being immoveables, for these had to 
be restored forthwith (§ 37, p. 350). 

(1) In order to ascertain whether the dowry was to be restored, 
and to whom it was to be restored, a distinction was made in 
the old law as to its origm, and the mode in which the marriage 
was dissolved. The dowry {dos) was prqfecticia when it came 
from a paternal ancestor of the wife, advetUicia when it came from 
any other source. — When the marriage was dissolved by the pre- 
decease of the woman, the hnsband was not bomid to give bock 
the dos profecHcia except to that ancestor, if still living, who 
granted it ; nor was the husband bound to restore the dos adoen- 
ticia to him who granted it, or to his hseredes, except where such 
restitution had been promised bv a stipulatio, — In case of divorce, 
or the pre-deoease of the husband, the dov^Ty {dos) profecticia or 
ctdventicia was to be restored to the femme sole, if she was sui 
juris, but if she was not. then jointly to the woman and the an- 
cestor, to whom she was subject. This restitution was enforced by 
the action rei uxoria, which, howi^ver, did not always descend to 
her hseredes. But Justinian allowed the action ex stipulatu (even 
though there was no express stipulatio) to the woman and her 
hseredes, without distinguishing whether the dos was (idventicia 
or prof ecticict, or whether the marriage was dissolved by the death 
of the wife or of the husband. 


^i^^^i^^^"^^ 'm ■^--^^^ 

3i6 SXAMIHATIOll IV [b. 4, T. 6. 

Q. Did not Jnstimui f^naA the wife anotiier advantage P 
€ 29* A» Yes : he allowed her an implied hypothecs, or 
nther a prior cihaife over the goods of the husband; 
for the wife was nreferred to the creditors who had kg* 
fHtikecm^ even although prior in date, which is contrarj 
of conrse to the genmd principle. This right of prefer- 
Miee, however, onlj attached when the wiro herself (cum 
^Mo muUer) sued far dot (§ 29) : for it did not pass 
to her hnredes, at least not to all of them, and it is 
doubtful whether it always passed to the children. 
Q. What are the actions orbUraritB 7 
§ 31. A. Those whidi anthorize the judex to determine 
the satisfaction to be given hj the defendant to the de- 
mandant, and to acquit the defendant in case he gives 
the satisfaction decreed. In this spedes of action the 
rondemnaUo takes effect, provided not onlj the fact or 
the right set forth in the mtentio is proved, but ])rovided 
also the d^endant feils to give the satisfiiction imposed 
on him bj the judex (iitn arbitnojudieisaetarisati^aeiat 
condemmEiri deoeat) (1). 
•Q. Are these arbitrary actions both real and personal P 
§ 31. A. Yes. All the real actions are arbitrary ex- 
cept ihepetitio k^gredUaiis, which is the only real action 
bciuBjidei, Amongst the pergonal actions which are ar- 
bitrary we may mention the action quod metus causa ; the 
action de dolo mala; the action whereW a man claims 
Bometiiing promised in a fixed place (ae eo quod certo 
loco promissum est) ; and the action ad exMbendum, For 
in them the judex is allowed to arbitrate, having regard 
to the principles of equity and the nature of the misi- 
ne88(2), as to how the demandant shall be satisfied. 

(1) The order of the judex, detenmnmg the satis&ction, is bind- 
ing upon hoth the demandant and the defendant. The demandant 
cannot refbse the satisfiidion fixed by the judex ; and the defend- 
ant may be compelled, mamu mUitari, by public force to do what 
Iftie judex has ordered, e,ff., to restore the Thing claimed, if in the 
defendant's possession. Heron the Justus or arhitrimm of the 
judex, who fixes the satis&ction to be ftimished by the defendant, 
differs from the condemnatio, which is always to the eflfect that a 
certain sum shall be paid (Gains, 4^ § 48). 

(2) VeluU rem restituat vel exhibeat vel solotd vet exnoxaU eausa 
servum dedat, § 31. — ^In real actions the satisfaction prescribed by 
the judex was always to restore the thing. But in the action ser- 
viana faidLquasi-sermana, the defendant was left to choose whether 
he would give up the thing pledged by hypotheca or pay the debt. 


and to acquit the defendant if be prodnoes the Batisfaction 

Q. May the sententia (judgment) of the judex be for 
sum? of money or Things indeterminate P 

§ 32. A, No : not even when an action is brought for 
Things or sums which are indeterminate, as in the action 
ex teatamento. Where the claim is guicquid ex testamento 
dare vel faoere oportet, the judex ought, as far as pos- 
sible (1), to decree the restitution, or to condemn the de- 
fendant to the payment of Things or sums of money 
which are determmate : for without that the sententia 
(judgment) is null. 

Q. When is there a plus-petitio ? 

§ 33. Ai When the demandant includes in his demand 
(in the iatentio of the formula) more than his due : and 
this happens in four ways. 1. In regard to the Thing 
(re) : when a man demands a larger sum than is due, or 
daims the whole when he is entitled only to a portion of 
a Thing, 2. Jn regard to the time (tempore) : when a man 
demands absolutely that which is due at a particular 
tune, or subject to a condition ; it is obvious that 100 
crowns paid to-day are more valuable than 100 crowns 
paid in a year. 3. In regard to the place (loco) : when a 
man demands in one place that which the debtor has pro- 
mised to pay in anotner place, no allusion being made to 
the place agreed upon for payment; e.g., when a man 
demands absolutely at Eome that which ne has stipulated 
should be paid to him at Ephesus : for such aemand 
goes to deprive the promissor of the advantage of pay- 
mg at Epheau6(2). 4. Jn regard to the cause of ac- 

When the Thing claimed bock was restored, voluntarily or by force, 
to the demandant, the oondenmatio might also indude fruits and 
other acoeasories thereof. If the defendant found it impossibl/e to 
restore it, and that from his own fraud, his eandemnatio was fixed 
at an amount settled by the oath of the demandant. 

(1) In some cases it is impossible for the judex to determine the 
predse subject-matter of the aententia, as when one out of several 
things is due, or when a thing is d\m generally ; for the selection 
belongs to the debtor, and so the judex cannot, without curtailing 
the debtor's right, determine the precise Thing to be paid. 

(2) This may be a great advantage; for parUcular merchandise 
may be much more valuable in one place than in another. When, 
therefore, a man demands at Rome tha,t which the debtor has pro- 
mised to pay elsewhere^ he should not state absolutely that there 

348 sxAmvinoii ni [b. 4^ t. 6. 

ii4m : wheiiy in the Mentio of the aetioii in wliidiilie sab- 
ject-matter of the obligation is defined, we depRre the 
debtor of the right of selection belonging to him ; as idicn 
a man, having stipnhUed for 10,000 sesterces or ike slave 
Stiehus, limits his demand to one of these two things : 
for in soch case, eren thongh the tiling demanded maj be 
of less Taloe (licet ffiUssimvm) than tl^ other, still, as it 
msj be more convenient for the debtor to give the thing 
which is not demanded of him, the demand is considered 
oxorbitaot. So also, if a man having stinnlated for a 
Thing in general, a slave, for instance, shomd fix nnon a 
particnlar slave, the slave Stichus, and shonld demana him, 
there would be pluS'petUio. 

Q. What is the effect of plus-petitio ? 

§ 33. A, Bj the old law, he who demanded more 
thim his due lost his canse ; that is, was deprived of his 
rights (rem amittebaC) (1) ; and the onlj means of relief 
was bj a restitutio in integrum; but unless a person 
was under twenty-five it was difficult to prevail on the 
pnetor to grant restitutio in integrum (B. 1, t. 23). But 
if the demandant's mistake was such as the most }>rudent 
man might well commit, the prsDtor extended his pro- 
tection to one above twenty-five, as he did to one under 
that age : for instance, where a man demanded a legacy 
entire, and the defendant produced codicils of which no- 
thing was known before, revoking the legacy in part, or 
containing legacies to other legatees, so as to make the 
first legacy subject to be reduced to three-fourths of its 
amount by virtue of the Lex Jf alcidia. 

But the old law on this point was abolished by Zeno 

18 nn obligatio (pura intentione), but shonld add that there is an 
obligatio to pay in a partioulitr place (certo loco) (p. 346) ; the ac- 
tion thus becomes arbitrarv ; so that in the condemtuxHo, the judex, 
if the debtor does not satisfy the creditor, may take into account 
the advantage to the debtor from his right to pay in the place 
Agreed upon, as he may also take into account the advantage to 
the creditor from his right to be paid there, if the place has been 
fixed with a view to the creditor's advantage. 

(1) For the oondemnatio was made ooncUtional on proof of the 
intetiUo (si paret X nUlUa dare opertere), Kow if the defendant 
owed less than the sum stated in the intentio, this condition, 
which could alone justify the oondemnatiot was not fulfilled, and 
the defendant was necessarily acquitted. This followed from the 
formula system, and therefore oeiued with it. 

B. 4, T. 6.] THE INfiTITtrTBS OF JUSTINIAN. 349 

(G. 3, 10, 1. 2.) and by Justinian. The Constitntion of Zeno 
* provides only for a plus^petitiot by reason of Time : the 
result being that the delay (t. ^., the time to elapse before 
the period arrives for performing the contract) is to be 
doubled in favour of the defendant, and that, after the lapse 
of that time, the demandant shall not be entitled to brin^ a 
fresh action until he has paid the expenses occasioned Dy 
his premature demand. The Constitution of Justinian de- 
clares, that any person who has demanded too much in any 
other way than m respect of time, shaU be condemned to 
pay the defendant three times the damage caused by such 

Q. Does a person who demands less than is due to him 
run any risk P 

J 34. A, No (sine periculo agit) ; but, according to the 
law, not only was it necessary to bring a fresh action 
to demand what remained due, but such action could not 
successfully be brought during the same prsetorship (Gains, 
4, § 56). Zeno, however, dispensed with the necessity of 
a fresh action ; for he authorized the judex to award com- 
demnatio for the whole, even though the original demand 
had only been for part. 

Q. Does a person who demands one thing instead of 
another incur any loss F 

§ 35. A, No {nihil eum periclitari, § 36). Formerly, a 
man who did so, e, g,, a man who demanded the slave 
Eros, when it was the slave Stinhus to which be was 
entitled, or a man who demanded a Thing by virtue of a 
testament, when it was due to him by virtue of a sUpula- 
tio, might bring a fre^h action (Gains, 4, § 55) ; because 
the res judicata could not be set up against tne demandant, 
since the fresh action did not arise m regard to the same 
subject-matter, or was not founded on the same claim. In 
course of time, however, the demandant was allowed to 
amend his onginal demand (in eodemjudicio^, so that it was 
no longer necessary to bring a fresh action, i,e,, nihil 

Sixth Division. — Q. Does a person always in an action 
get all that is due to him P 

§ 36. A. No. There are some actions in which persons 
may get sometimes the who7e, sometimes less than the 
whole; e.g,, the action depeculio, which is granted against 
the paterfamilias to recover a sum equal to the peculium, 
and no more ; so that, if the obligation incurred by the 
iilius-f. or slave exceed the peculium, the demandant does 
not get the whole. In like manner a man recovers less 

360 BXUOHATIOH iv [b. 4> T. 7. 

tkan the whole wlien there is ground for a setoff, or when 
the defendant enjojB the ben^cium campetentuB, 

Q- What is the beneficium competentuB ? 

§ 37. A. It is that peculiar right granted to certain 
persona, which sayes them being condemned to an amount 
oeyond what their means allow (quatenus facere possunt), 
i. e,, beyond such an amount as thej can paj without de- 
priving themselyes of the necessaries of life (1). 50, 17, 173). 

Q. To whom was this benefit allowed P 

§ 37. A. To a husband sued for the reoovery of a 
dowry (1) ; to sncestors or patrons sued by their descend- 
ants or their freedmen; to the partner sued by his co^ 
partner ; to the donor sued by reason of a gift (§ 38) ; 
lastly, to the debtor sued by the creditors, to whom he had 
made a cestio banorum (an assignment of all his goods), in 
respect to property acquired after tiie oessio (§ 40) (2). 


Seventh Division. — Q. Was a person bound only by 

Pr. A, By the strict civil law, no person could bind him- 
self except by his own act : the mandator was not even 
bound to him who had negotiated with his mcmdeUarius 
(person commisBioned). But the prstors thought it equita- 
ble that in certain cases a party should be bound by the act 
of another, and hence the distinction between direct and i«- 
di/rect actions. Direct actions are tiiose granted against a 
person on account of his own act (8) : vl^irect actions are 

I ^^^1^1 I ■ Jll .111! I 11 1 ■»— ^— ^ I 

(1) Jnstsiuan, after taying doUt repetitio nUimUur, adds, that 
the neoeasary expenses dunimsh the dowry ipsojmre, that is, with- 
out the need of any exeepOo* An exeepHo was required, aoeording 
to the old law, in the actio rei uxorite alone, bat the deductions 
made from the sum of the dowry were not merely the necessary 
(impensa necessoriai), hut also the usefiil expenses, t. e,, the sums 
laid out in improving the property (impenstB uUlet). 

(2) Observe, that the beneficium competenHa is a personal privi- 
lege, and therefore does not advantage the h^Bredes or the Jidei 

jusaorea {auretiea), 

rs) Actions are called directcB in a different sense when opposed to 
actions cowtraria (p. 243). Again, actions are called directts when 
brought under the precise circumstances for which they were 
created, in which case they are opposed to actiones uHlea, which 

B. 4, T. 7.] THB IirSTITUTBS OF JUSTINIiJr. 361 

those which do not arise from the act of the party an^ainst 
whom they are eranted» but from an enf^^ajs^ement con- 
tracted, or a misfeasance committed bj some person under 
the defendant's power, or from damage caused bj some 
animal belonging to him (t. 9, fost). 

Q. Mention the indirect actions granted by the praeto- 
rian law against the pater'familias m respect to contracts 
made with his filius-f. or skre. 

A, There are six: the actions quod jussu, exerciloria, 
institoria, tributoria, depeculio, and de in rem verso, 

Q. Explain the action quodjussu. 

§ 1 . ^. It is an action granted against the pater'familias 
or the master, to compel him to discharge eutirelj (in 
"^oUdum) such obligations as his filius*f. or his slave may 
hare incurred by ms order (nissu). The pnetor, in intro- 
ducing this action, followed the principles of equity ; for he 
who, under such circumstances, treated with the nlius-f. or 
the slave must have relied on the credit of thepater-familias. 

Q, Explain the action exercitorial 

§ 2. A. This is an action granted against the master who 
nut forward his slave, or against the pater-f. who put 
forward his filius-f., as commander of a vessel, by reason 
of contracts made by such commander in regard to the 
business intrusted to each of them. Such contracts being 
made in seeming conformity with the wish of the master 
or the pater-f., the prsBtor held it equitable to grant, as 
against the master or the pater-f., an action for the whole 
debt. ^ This action is called exercitoria, because the exer^ 
citor is the name for the person to whom the ship's daily 
profits (quotidianus navis qutsstus) belong. 

Q. Explain the action institoria. 

§ 2. A, This is an action granted against a master or a 
pater-f., who have respectively given a slave or a filius- 
familias of theirs charge of a certain business, to enforce 
liabilities incurred by such slave or filius-f. in reference to 
the business which each has been appointed to conduct. 
The action is called institoria, because the person charged 
with the management (propositus) is called institor; and 
it is granted for the recovery of the whole claim. 

Q, Are the actions exercitoria and institoria granted 

are granted on prindples of amdogy, — ^the right to bring them 
being extended to caaes similar to those for which they were ori- 
ginally created (p. 72). 

352 SXAKIHATION 19 [b. 4, T. 7. 

except when a slave or a filins-familias is the penon to 
whom the management is ffiven P 

§ 2. A, They are allowed also when the person to whom 
management is given is a freeman, or a slave not nnder 
the power of the person who gives him the management, 
becanse the same principle of equity applies. 

Q. Explain the action trihuioria. 

§ 3. A. When a filius-familias or a slave employed the 
whole or part of his peculium (peculiari merce) to carry on 
a business of which nis pater-f. or master had notice, and 
when a person contracted with either of them in regard to 
such business, the prsetor held that the whole business^ 
Jknd (quicquid in his mercibus erit) and the bi^nefits arising 
therefrom, should be distributed proportionally between 
the master, if anything was due to nim, and the other 
creditors who should demand payment. And since the 
prsetor authorized the pater-f. or the master to make such 
distribution, if any of the creditors complained that the 
proper portion had not been assigned to him, the prsetor 
granted to such plaintiff this actio tributoria. 

Q. Explain the action de peculio, 

§ 4. A, This is an action granted to those who have 
made contracts with the filius-f. or the slave, against the 
pater-f. or the master, in order to compel either of these 
fast to pay a sum equal to the peculium, though neither 
pater-f. nor master have given their consent to the obliga- 
tion (sine volumiate domini) (1). In order to estimate (cum 
autem) the value of the peculium, you must first deduct the 
sum which the slave or the iilius-f. owes to his master or 
pater-f., or to the person subject to the power (potestcu) 
of the latter, and the remainder is the peculium. Some- 
times, however, you do not deduct from the peculium 
that which the filius-f. or the slave owes to a person subject 
to the power of the pater-f. or the master : viz., when such 
person himself constitutes a portion of the peculium, e. g,, 
a vicariu8 serous : for in that case any sum which might 
be paid to such servus would become part of the peculium ; 
there would be confusio, 

Q. Explain the action de in rem verso. 

§ 4. A. It is an action granted by the prsetor to those 
who have made contracts with the filius-f. or the slave, 
against the pater-f. or the master, on account of, and up to 

(1) If the obUgation was contracted with the consent of pater-f. 
or master, there was an action guod jussu. 


the value of, the profit which has accraed to the pater-f. or 
the master (si quid in rem ejus versum fuerit). As profit 
accruing for their benefit, we reckon all sums expended 
necessarily or profitably on behalf of the pater-f. or master 
by the filius-f. or the slave ; e, g,, money borrowed by them 
to pay creditors, or to support a dilnpidated building, &c. 

Q. Was it possible to claim de peculio and de in rem 
verso in one and the same action P 

§ 4. A, Yes : and such was the common course (1) ; 
because the creditor might often by such means recover 
the whole debt, where a part only would be recover- 
able by one of these actions. When such was the course 
the formula contained two condemnations (duos condem* 
ndtiones)f and the judex had first to examine whether an^ 
benefit had accrued to the master or the pater-f. : and if 
he determined that none had, or that they had not profited 
by the whole amount, he had then to estimate the value 
01 the peculium. Thus, suppo8e the slave of Sempronius 
borrowed of Titius ten sesterces, suppose he paid five to 
the creditors of his master, and expended the other five in 
any way he pleased, a condemnatio would be pronounced 
against Sempronius for the whole five sesterces, of which 
he had reaped the benefit; and as to the five others, 
condemnatio would be pronounced against him to the ex- 
tent of the peculium. 

Q. May the same transaction raise the action quod 
jussu, or the action institoria, or exerciioria, and also the 
action depeculio, or de in rem verso ? 

§ 6. J[. les : and it is for the creditor to select which he 
pleases. Hence, as the text says (§ 5), it would be absurd to 
abandon the action quod jussu, or the action institoria, or 
exercitorial by means of which we may easily recover the 
whole of our debt, and subject ourselves to the difficulty 
of proving that the master or the pater-f. has derived a 
profit, or that the slave has a peculium, and that sufficient 
to pay the whole. Again, he wno may bring the actio tribu^ 
toria may also bring the actio de peculio and de in rem 

(1) This seems to be the meaning of § 4 : not that actions de pe- 
culio and de in rem verso constitute only one action, for each of 
them may be enforced separately, one after the other. In tlie 
Digest the title de peculio is dutinct from the title de in rem 
verso (D. 15, t. 2, and 3). The action de in rem verso is perpetual, 
whereas the action de peculio is open only for one year after the 
death of the slave, or after any other event putting an end to the 

354 BXAHINATIOV IN [b. 4, T. 7. 

verso, and the creditor may select wHcheyer he thinks best. 
When a large sum is due to the master or to the pater-f. 
out of the peculium, it is generally best for the creditor to 
bring an action tributoria, because by it neither master nor 
pater-f. has any priyilege, ». e., no deduction is made for any 
sum due to either of them, and they are in the same position 
as the other creditors ; whereas in the action depeculio you 
begin by deducting the sum due to the master or pater-f., 
and the condemnatio in favour of the creditors is only for 
the surplus of the peoulium after such deduction. On the 
other hand, and especially where a small sum is due to the 
master or to the pater-f., it may be the better course for 
the creditor to bring an action depeculio, because it affects 
the whole of the pecuUum; whereas the action tributoria 
affects only such part of the peculium as may be included 
in the business-fund Uantum quo negotiatur) : there is yet 
a further reason for oringing an action de peculio where 
some profit has accrued from the obligation to the pater-f. 
or the master, because then you may bring an action de pe* 
culio and de in rem verso at the same time. 

Q. As to these actions of which you have spoken, was 
it the same whether the obligation was contracted by a 
filius-f. or by a slave P 

§ 6. A, !No : not always (eadem fere jwra pr,). There 
were cases in which the slave could not bind his master 
even depeculio, but in which the filius-f. could bind his 
pater-f. (1). On the other hand, there was one obligation 
which when contracted by the slave, bound the master 
depeculio, but which when contracted by the filius-f. did 
not bind the pater-f., viz,, the obligation arising from a 
loan of money. For the So. Maceaonianum, passed with 
the view of putting down usury and preventmg the dan- 
gerous abuses caused by loans, made to filii-f, decreed 
tnat any person who lent money to a filius-f. (2) without 
the consent of the pater-f. of the borrower, should have 
no right of action either against the pater-f. or against 
the mius-f., even though the latter should become sui 

Q. You say that actions quod jtissu and de in rem verso 

(1) A filii2s-f. might become surety for another, but a slave 
might not. 

(2) Acoording to Theophilus this Sc. was passed in regard to 
one Macedo, who, being encumbered with debts, in oonsequenoo of 
sums borrowed by him when a filiuS'f., made an attempt upon the 
life of his £a.ther, in order to procure his patrimony. D. 14, 6, 1. 


are indirect pratorian actions ; but Justinian says (§ 8) 
that a man may bring a civil and direct action, viz., condiC' 
tio, against any pater-f. or master who has directed a con- 
tract to be maide, or has derived any benefit from a 
contract, just as if such pater-f. or master had himself 
contracted: now, these direct actions ahi^ady existing, 
why introduce indirect actions P 

A, Probably by direct actions Justinian alludes to the 
new law ; for it seems that the indirect prtstorian actions 
were not abolished, but that certain direct actions were 
added — being admitted in practice and sanctioned by the 
jurists (condici placet). Obserye, however, that the only 
direct action was the candictio, and that it was confined 
to two cases : 1. When a person contracted with a filius-f. 
or slave, by direction of tne pater-f. or master ; for then 
the credit was given to them. 2. When profit accrued to 
the pater-f. or master by the contract. Now condictio 
(originaliy confined to the recovery oipecunia certa) never 
applied except to enforce unilateral contracts, or where 
credit had been given (D. 12, 1, 9, 2), or profit derived 
{D. 12, 1, 23, 32) ; hence the necessity for these indirect 
pratorian actions, for they were reauired to enforce bila- 
teral contracts — involving mutual obligations— such as 
emptio'Venditio, locatio-conductio, &c., which might be 
made by a slave for his master, and to enforce which the 
condictio was inapplicable (p. 356 n). 


Q. Might the master be sued for wrongs (delicfa) com- 
mitted by his slave P 

Pr. A. Not directly : but leave was given to sue him 
indirectly by an actio noxalis (1). An action is called 
noxalis which arises ex delicto^ or qtMiH ex delicto, and by 
which the defendant is allowed eitner to pay the amount 
of the condemnatio (litis cBstimationem) or to abandon the 
cause of damage to the demandant. — Noxa (§ 1) means the 

(1) A master cannot be sued de pecuUo on account of wrongs 
committed by his slave ; for when a man intrusts his slave with a 
peculiwn, though he authorizes him to make contracts in regard 
to it, he cannot he considered as authorizing the commission of 
wrongs. An actio noxalis cannot be brought unless the wrong 
conmiitted by a slave ie a private wrong (privatum delictum), for 
as to public wrongs (crimes), the slave himself is the person to be 
accused and punished. 

356 EXAMINATION IN [b. 4, T. 8. 

cause of the iDJurious act, viz., the slave, and noxia the act 
itself, as theft, theft with violence (rapina), injuria, Slc. 

Q. Upon what ground was the master allowed to dis- 
charfre himself by abandoning the noxa ? 

§ 2. A, Because it would have been unjust that the 
wrongful act of tbe slave should expose the master to lose 
more than the slave himself who did the wrong. 
Q. Whence are actianea noxales derived P 
§ 4. A. Either from the civil or ihepratorian law : from 
the civil law we have the actio ywW» mamfeHi which is 
derived from the Twelve Tables ; the action for diunage 
wrongfully caused {damni injuria), which is derived from 
the lex Afuilia; from the prtetorian law we have the 
actio injunarum ; and that for thefl with violence (rapina). 
Observe, the avtio noxalis is not a distinct and separate 
right of action : it is the ordinary action raised by a par* 
ticular delictum, but so modified as to allow the master 
to discharge himself by abandoning the noxa. Hence an 
action does not cease to be an actio furti, legisAquiluB (1), 
&c., though it is noxalis. 

Q. What was the effect of abandoning the noxa f 
§ 3. A. The master, who discharged himself by so 
doing, alienated for ever his property in the slave. The 
person to whom the thing was abandoned, became pro* 
prietor ; but the praetor compelled him to enfranchise the 
slave, if such slave obtained money and made compensa* 
tion forthe wrontr (damnum resarcierit), t. e„ by producing 
a sum equal to the condemnatio awarded for the same. The 
reason of which must be that, the damage being thus re- 
paired, there was no ground upon which the master could 
retain a power acquired only by reason of such damage. 
Q. Aeainst whom is the actio noxalis granted P 
§ 5. A. Againsc the person in possession of the slave at 
the time of uie litis contestatio : for the actio noxalis fol^ 
lows the guilty caput (2). If, therefore, your slave has 
committed a wrong, the action is against you so long as 
he continues under your power (potestas), but the mo* 
ment he comes under the power of another, that other is 

(1) For the whole difference is, that the condemnatio is in the 
alternative either to pay or to abandon the slave, instead of simply 
to pay. So the actions quodjussu, de peculio are the ordinary ac- 
tions empti-venditi, looati-oonducti, but modified by the praetor. 

(2) Here is a personal action, qtuB caput sequihir, a proof that 
the characteristic of real actions does not consist in the fact that 
they are granted i^tunst every possessor. 


the person against whom the action should he hronght. 
When the Save is a freedman, he is himself directly 
liable, and the action is no longer noxalis (extinguitur 
noxiB deditio). Vice versd, a direct action may become 
noxalis: for suppose a free man commits a wrong and 
then becomes a slave (B. 1, t. 3), his master will then be 
liable in an actio noxalis, whereas before such change of 
status the action must have been directa. 

Q. Does the wrong committed by a slave against his 
master raise any action against such slave P 

§ 6. A, No : for there can be no oblii^ation (1) between 
the master and the slave subject to nis power. Thus, 
even when the slave becomes free, or comes under ttie 
power of another, no suit can be brought, either directly 
against the slave or by actio noxalis against his new master. 
Therefore, if the slave of another man, after being guilty 
of a wrong to me, happens to come under my power, the 
action is eztinguishea (intercidit), because the circum- 
stances are such as to negative the possibility of an action 
existing. In like manner, if a master do any wrong to his 
slave, such slave, even though enfranchised or alienated, 
can bring no action. 

Q. Is a pater-f. subject to an actio noxalis on accotmt 
of wrongs committed by his son P 

§ 7. ^. Formerly he was : but the pater-f. 's right to 
abandon his son, and especially his daughter, to the person 
who had suffered damage, ceased with the progress of 
civilisation, so that under the later law aciumes noxales 
were used only in case of slaves. Permission, however, 
was given to sue directly the filius-f. who committed the 
wrong : and when condemned, an action de peculio was 
allowed against the father, for the condemnatio decreed 
against the son (B. 1, t. 9 ; B. 4, t. 6, p. 337). 


Q. Does damage occasioned by an animal give rise to 
any action P 

I^r. A, When any four-footed animal, contrary to the 
natural habits of its species (2), causes damage without 

(1) Nulla ohligatiot i. e,, no civil obligation. 
(2} S. g, (Pr.), when a reitive horse kicks, or when an ox in- 
flicts an injury with its horns. The law of the Twelve Tables 

868 sxAMiNAnov iv [b. 4, t. 9. 

hftTing been urged on hy tokj person (1), the law of the 
Twelve Tables allows the aeUo noxalU depamperie against 
the owner of the animal, by which he is bbiind to pay the 
amount of the damage or to deliver up the animal, in sa- 
tisfaction of the damage (n nora dedamtur). — Pavperie* 
denotes the damage caused without any wrong on the 
part of that which occasioned it {sine injuria). Now 
there can be no wrong on the part of an anmial which is 
devoid of intelligence. 

Q. Does not the edict of the ^diles contain certain 
provisions intended to prevent damage by dangerous 

€ 1. A, Yes : that edict forbids any person having on the 
public way a dog, a wild boar, a bear, or any other animal 
ukely to do injury, whether from being left free, or from 
being so tied up as not to be incapable of causing damage. 
If tluit edict was disobeyed, and a free man was killed, uie 
proprietor was condemned to pay 200 solidi ; but if such 
uree man was only wounded, the amount of the eandem' 
natio was settLed by the judex; in all other cases of 
damage the penalty was double the injury. This nenalty 
might be sued for independently of the action ae jheu" 
perie; for, says Justinian, when several different actions, 
especially penal actions, may be brought on account of the 
same thmg, the employment of one does not ezdude the 
employment of another (alia aliam cojuumit) (2). 

allowed no action de pauperie when the animal inflicted the 
damage from the natural ferocity of its natnre, e, g,, when the 
damage was caused by a lion or a bear. Neverthless there was 
an actio utilu, which was also granted in case any animal not being 
a quadruped occasioned the damiage. Moieover, when damage was 
done by a fierce animal which had escaped firom its master, there 
was another reason why he should not be held liable to an (tctio 
noxaUs de pauperie, viz., because he was no longer proprietor of 
the animal. 

(1) If the animal had been urged on by any one, the person who 
•0 u^^ed it on would be liable to the actio Zcryw AquiluB. 

(2) This proposition, limited though it be, is not accurate. We 
have seen, for instance, that one who is entitled to the action vi 
honorum raptorum is also entitled to an actio furti, but he must 
elept between them. The ground upon which the right exists to 
bring both the action de pa/uperie and the dsdiUHan action is this, 
that they do not both arise out of one and the same fisMst ; the first 
arises out of the damage, the second out of disobedience to the 



Q. By whom may an action be carried onP 

Tt, a. Either by the person whose rights are injured, 
or by another in his name ; e. y., a tutor, a curator, or a 

Q. Did this power to sue in the name of another always 
exist P 

Fr, A, No. Formerly, that is, in the times of the legU 
aationes, a citizen was not allowed to sue in the name of 
another except in three cMeE ; pro populo, when & popular 
action (one open to any of the people), (p. 311), was 
brought ; pro libertate, when a person constituted him- 
self assertor libertatis, and brought an action against one 
who claimed to keep as a slave another, alleged to be 
free (1) ; pro tutela, (apparently) where from the pu^ 
pillus being incapable of acting himself, even with the 
auctoritas of the tutor, the tutor was authorized to brinr 
the action tutorio nomine. Moreover, the lex hostilia aC 
lowed an actio Jhirti to be brought, in the name of those 
who were prisoners in the hands of the enemy, or absent 
in the service of the Eepublic, as also in tne name of 
those under tutela. Lastly, we find that a person ad- 
mitted as mndex of a citizen summoned in jus (B. 3, t. 
12), pleaded in such citizen's name. 

Under the formula system, the right of being repre- 
sented in jwre became general, and besides tutors and 
curators, we find successively, cognitores, procuratores, 
and dtfensoreSf admitted as such representatives. 

The cognitor was a representative appointed by foimal 
words pronounced before the magistrate {injure), in pre* 
sence of the opposite party, ^fiiis representative was 
identified with the demandant or the defendant {dominua 
litis) (2), so that the sententia (judgment) given for or 

(1) It was not thought decorous for a slave to have a dispute with 
his master ; an assertor was therefore authorized to make the claim 
for him. This interferenoe of the assertor continued till the time 
of Justiniaxi (p. 13). 

(2) The cognitor did not appear in the intentio, but in the con- 
demnaUo of the formula. If, for example, Titius sued as cognitor 
of Mffivius, the intentio would have the nameitfavnw, si paret Ne- 
gidAwm Mtsvio sestertium XmiUia dare oportere, but thecogpiitor 
would appear in the condemnaiio, judex Negidium Titio sestertium 
X mUHa condemna (Qaius, 4^ § 86). 

360 EXAMINATION IN [b. 4, T. 10. 

againet the cognitor had the same effect as if given for or 
against the person who appointed him. Hence the de- 
mandant represented by a cognitor cotdd not again bring 
the same action, or if he did, it was repelled by the excep- 
tion rei judicata (t. 13). Lastly, the cognitor was bonnd 
to account to the person who had appointed him, to whom 
in this respect he was as a tnandatarius to a mandator. 

The appointment of a cognitor, however, was trouble- 
some ; for it was necessary that both plaintiff and de- 
fendant should appear before the magistrate. This 
led to the introduction of procuratores ad litem. The 

r curator did not require to be named either injure or 
formal words : indeed he might be appointed by an 
aSsent person : he was, in fact, a mere m^ndatarius com- 
missioned to carry on a suit for the mandator. Now, by 
the strict principles of the civil law, the mandatarius was 
not identified with the mandator; and, when he acted in 
the execution of a mandaium, he bound himself, saving 
such recourse as he might have against the mandator (p. 
350). Accordingly, the procurator ad litem was himself 
the person condemned or acquitted, and the judgment 
(sententia) had no direct effect against the party whom he 
represented (1), so that such party might, in strictness, 
have brought a fresh action, without its being possible for 
the prffitor to refuse to grant such action, or for a defendant 
to set up successfully the exceptio reijudicatce. Hence the 
procurator was required, if he represented the demandant, 
to give the cautio rem ratam dominum hahitwrum : if he 
represented the defendant, the cautio judicaium solvi. But 
this formal strictness was gradually relaxed. First of all, 
tutors and curators were admitted to sue in respect of the 
rights of their pupils, and in such case the judicaium was 
a direct advantage or the contrary to the minor. After- 
wards a procurator presented to the magistrate (without 
formal words) by the party appointing him (procurator 
prcBsentis), and a procurator nominated by a public act, 
apud acta, were both assimilated to the cognitor. 

llie defensor was one who appeared to plead instead of 
another, without having received any mandatum. He was, 
in fact, negotiorum gestor. Generally the defensor could 

(1) The formula, when a procurator pleaded was the same as in 
case of a cognitor, i. e., the intentio was framed in the name of the 
domiwM of the procurator, and the condemnatio in the name of 
the procurator. 

B. 4, T. 11.] THB INSTITTmS 07 JUSTINIAN. 361 

represent none but the defendant (1). The sevUentia 
(judgment) given directlj, affected the defensor alone ; he 
was Dound to give iihe cautiojudieatum solvi; and when, 
out of the usual course, he represented the demandant, 
the eautio rem ratam dominum kabiturum. 

Q. In the latest period of the law were there still coff* 

A, No : after the old forms were disused, there were no 
coffTiitores (2). The jprocwirator preesentis was not bound 
to give eautio (security), nor was the procurator ahsentis, 
if hd received his manoatum by a pubuc act ; the drfensor 
alone was bound to give the eautio de rato or judieatum 
solri, A judgment passed for or against Hie procurator 
prasentis nad the same effect as if it had been passed fov 
or against the person represented by him : the same oc* 
eurred when the procurator ahsentis was appointed apud 
acta, or when the dominus (principal) confirmed the 
interference either of a procurator or even of a mere 

III I 4 


Q. Were not certain securities required of the litigant 
parties P 

Pr. A. Yes ; but they were different under the new 
law {nomtaa) from those under the old law (antiquitatt), 
i, e„ under the formula system. 

Q. Mention the cautiones (securities) furnished under the 
old law bythe litigant parties, in a real action. 

Pr. ^. The defendant who continued inpossession during 
the suit, was required to give the eautio iudieatum solvt. 
This eautio had a threefold purpose : the surety {fidc' 
jussor) guaranteed, 1. That the amount of the condem- 
natio should be paid, in case the defendant should be 
condemned and should not restore the thing (de re Judi' 
cata,pro litis astimatione) ; 2. That the defenaant should 
appear before the judex, and should continue before the 
court imtil the conclusion of the suit (de re dd^endenda 
pro 8ua persona^ p. 363) ; 3. That the defendant should use 
no fraud {de dolo malo, D. 46, 7 6), (3). — If the defendant 

(1) He undertook the defence of a party attached, hence the 

(2) In the Pandects, interpolations were made in the old jurists, 
by substituting throughout procuratoreg for cogmtores. 

(8) By this third dause in the security, the surety was respon- 


363 lOjjaskTSffs nr [b. 4, t. 11; 

did not fonusli the aawHojitdieatwn sohi, the demanda^fc 
was pnt into posaeaaion of the gnbjeot-matter of the suit* 
proT^ed that he agiM»ed himself to furnish snch cantio.** 
If the defendant a^d in the name of another, h fortiori, 
the cantio judicatum sohi was Teqnired of him; for it 
was a general principle that a man could never have his 
defence conducted hj another, without a cautio being 
giren (see next question). 

The demandant was not bound to gire an^ eauiio, at 
least when suing in his own name or as cogmtor (1) ; but 
if he was suing as jpro^nra^or, he was required to give a 
cautio de rata, because, inasmuch aa the judgment (aeo- 
tentia) against the procurator did not directly bind the 
dominug litit, the cautio raiam rem dominum hahiturmm 
became indispensable as a guarantee fbr the defendaot, 
since it gare him the means of indemnifying himself, in 
ease the dominus Utis, instead of oonfirming the acts of his 
mumdatariutt began a frmh action (B. 4, t. 10). 

Q. Mention the cautiones formerly furnished by Hie 
litigant parties in a personid action. 

§^1. J[. In a personal action the same course was fol« 
lowed as to the demandant, as we have described in case 
of a real action ; that is, he was not required to give any 
cautio when he sued in his own name, or as coanitor, but 
he was required to give the ccnttio de rata when ne sued as 
jproevra^or.-^ As to the defendant, he was not required to 
give an^r cautio when he appeared in his own name : but 
3ie eexitxo judicatum sohi was required when he appeared 
in the name of anotiier : for it was a general rule that 
nemo defensdr in aliena re sine satisdatione idoneus esse 
ereditur. So strict, indeed, was this role, that it applied* 
even when the representative of the defendant was a 
eoffnitoT; in that ease, however, the cautio was furnished 
not by the eognitor, but by the person whom he repre- 
sented (Gains, 4, 101) (2). 

Q, Was it not the same with tutors and curators aa 
with procurators P 

I^r, A. Yes : they were bound to give the same secu* 

sible, if, for instance, the defendant, on being condemned, restored 
the chattel in a condition deteriorated by any act of his. 

(1) We have dready seen that a eognitor was identified with the 
person he represented in conrt, so that the action carried on by him 
was considered as the action of the domiwus litis (his prindpal). 
It was therefbre useless to subject him to the cautio de rato, 

(2) At least generally <Oaius, 4, 102). 


riiies; though in some eases they were relieved from 

S'ying eautio when they were demandants {his cigentihus), 
at when they were defendants, they were of course sub- 
ject to the roie nemo defensor, &c. 

Q. What cantiones were required under the new law P 
§ d. A, Under it, whatever the nature of the action, the 
demandant was never required to eive eautio when he sued 
in his own name ; but when he sued as procwrator, he had 
to give the eautio de rate, unless appointed in presence of 
the judge, or by a public act (mandatum actis iminuatum) 


§ 2. The defendant who appeared in his own name was 
not bound, even in a real acticm, to give the full security 
implied in the eautio judicatum solvi : he was not botmd 
to ^ve eautio for the value of the thing in dispute (pro 
litis astimatione, § 2), but he was bound in every case 
to give eautio to appear in person, and to continue in court 
till the end of the suit {pro suapersona, quod in judicio 
permaneat usque ad terminum litis, 6 2) (1). This gua- 
rantee, moreover, was not always in tne form of a eautio 
(proper), f. e,,hj fidejussor : for sometimes, having regard 
to the rank and fortune of the person, it was thought 
enough to have either a eautio juratoria (B. 1, t. 24), that 
is, an oath, or a mere promise. 

. § 4. When the defendant was represented by proeuro" 
tor, or by a mere defensor, it was always necessary that 
the cskuiioiudieatum solvi should be given to the demand- 
ant; for tne old rule, nemo aliena rei sine satisdatione 
drfensQT idoneus inteUi^itur (§ 5), continued in force. 
But if the defendant {ahquis eonvenUttr) was present and 
desired to appoint a procurator^ he might himself, either 
before the juage {injudieio) or elsewhere {ejstra judicium), 
eonstitnte himself fidejussor of his attorney {mandata' 
rius ad litem), undertaking all the liabilities included in 
the stipulatio judicatum solvi {pro omnibus satisdationis 
clausutis) : in which case, moreover, he subjected all his 
coods to a hypotheca. Lastly, such defendant gave eautio 
tnat he would appear in person when judgnient {serUenticB) 
was pronounced {quod tempore sententicB recitandce, injudi' 
cio invenietur). A judgment delivered against Amandatarius 
thus guaranteed (procu/ratorprasentis) had the same effect 

^ (1) This goanntee was called eautio in judieio sisti : its object 
bemg to indemmfy the demandant for any loss he might incor by 
being compelled to have recourse, in case of the defendant's nan- 
appearance, to the fonns of procedure for contnnuM^. 


364 xzAXiirATioir nr [b. 4, t. 12« 

M if delirered affainst the mandaiar himself. — ^If the 
person sued was absent it was the duty of the person act-* 
mff as his d^eitsor to fiumish the cantio judieatum solm. 
The judgment had then no direet effect, accept against 
the official representative, saving alwajs the rignt of sach 
representatire against the person represented, eitiier by 
means of an actio mandoH at hj the actio negoHortHm ge9^ 


Eighth Division. — Q> How are actions as to their 
duration divided? 

Pr. A, Into perpetual and temporary. Civil actions, t . e. 
created by a Law, a Senatus Consnltum, or Constitntion, 
might be brought at any time (I), until certain imperial 
Constitutions laid down a fixed period within which 
actions, whether real or personal, must be brought (2) ; 
but actions derived from the pr»torian law did not con* 
tinue beyond one year, for that was the limit of the prstor's 
authority (impertum). Sometimes, however, prsetorian 
actions were assimilated as to the period during which 
thev might be brought, to actions leffitima, as was the case 
with actions granted to the possessores honorum, and to 

(1) Observe, however, as to vmdicatio which daimed the pro* 
perty, that this right of action was extingidflhed when the pro* 
perty was eztrngniBned by uaucapio, 

(2) In A.D. 424^ Theodonns II. decreed that no action, whether 
veal or pereoiiai, should be brought after thirty years (C. vii. 39, 3)» 
His successors, particularly Anastasius and Justin, confirmed this 
rul^ extending, however, the period of time, in some cases, to forty 
years. So that in the new law actions are called perpetual which 
may be brought for thirty or forty years, and temporary which 
must be brought sooner.---Ob8erve that this Hmitation d thirty 
or forty years in case of real actions, though it limited the time 
during which the proprietor might claim back the property, did 
not usually transfer the property, for it was not a mode c^ acquisi- 
tion like ueucapio, or the prescriptio of ten and twenty years 
created by Justinian (p. 103). Henoe the proprietor, though he 
could not sue a person who bad been in possession for thirty or fbrty 
years, and who bad not acquired title by utueapio, might still daim 
back the property from a third party who had obtained possession, 
and who could not avail himself of a poneeeio longieeimi temporU^ 

B. 4» T. 12.] THB IireTITUTXS 09 JUBTIKIAK. 365 

other parties occupying the place of the hffires {loco htere- 
dis) i and wii^ the a/ctio/ktr ti man^€sti{l), 

Q, Were all the actions, which were capable of bein||r 
brought by or against a person, according either to the 
eivil or the pnetorian law, also capable <x being brought 
by or against the hffires of such person P 
' %l.A, No. Actions arising oat of contracts were granted 
to the hieredes of the parties, as well as ctgamst them (2). 
As to penal actions arising out of a delictum, or qucui^ 
deUctvm, it is an xiniyersai rule in law that thev do not lie 
o^atfM^ tiie heeres of the person committing the dehctum 
(pp. 303, 311), Imt that they may be brought by the hseres 
of the party interested ; indeed the only actions which do 
not descend to him are actions for injuria^ and such like ; 
for death extinguishes ail rancour (pp. 153, 308). Never- 
theless, penal actions descend to the hares, who may be 
either plaintiff or defendant, provided only the suit has 
been already begun, and the question already settled by 
the protor K>r the judex between the original parties ; be- 
cause in truth the litis cwUeetatiq works a novatio (3), and 
because the defendant is thereafter no longer to be bound 

>(1) Most of the prsBtorian penal actioiiB miglit be brouglit for 
one year only (the period of the pnetorship) ; the aetion/WriM ma-- 
t^fetH was perpetual, because deorived from the Twelve Tables, the 
prffitor haviog merely substitated a peooniary for a captal penalty 
(Qaiufl, 4, § 111). Most of the praetorian actions rei persecutorim, 
espedaUy those which aimed at carrying out the principles of the 
civil law, were perpetual (p. 333). . 

. (2) Sometimes, however, says Jnsiaman (§ 1\ an action, though 
arising out of a contract, does not lie against the hsBres; e, ff,, when 
tiie deceased has committed a fraud, but no advantage has thereby ac- 
emedtohishsBres. Butthis is too general : fbr there was in &ct only 
one case in which the fraud of one of the contracting parties did 
not make Ins hieredes liable to the same action for whidi he himself 
was liable : viz., where there was an action tn duplwnfor a deposit 
made from necessity (t. 6, ante). For it is dear law that, in con- 
tracts, an action founded upon the fraud of one of the parties, also lies 
against his hflsredes. Justinian took his proposition fixmi Gains 
(i, § 111) : but in the time of Ghuus, there were several actions ; e. g^ 
those against iponsom and Jidepromuioret (p. 263), whidi, 
though arising ftom contracts, were not allowed against the 
hieredes; but in Justinian's time they were obsolete. 

(3) The Romans marked the suooesmve modifications of the 
defendant's obligation thus : before action he was said to be bound 
dof^ s after the lUii eowUHatio eondemnari; after condemnatio 
pronoaxMxdJudicatumfacere (oportere) p. 316. 

306 jDLunvAXioH ir [b. 4» t. IB. 

hj ruioB of the deUdum, but hj the olilv[«iian nktd hj 
UtU contetiaHo (p. 380) : nererthelew* ^e hsiea of the 
party eommittiiig the wionff would be bound bj the penal 
action, if he haa deriTed aaj benefit firom the delictum of 
the deceaeed, and that to an extent equal to the benefit 
derived (D. 4, 3, § 26). 

Q. Suppose the defendant, before judgment* satiafied the 
demandant, waa it the duty of the judex to acquit P 

§ 2. A. Yes. Formerly so held the Salnnianfl, who said 
that all actiona were abioMory (Gaiua, 4, § 114) : and 
their opinion waa aaactioned bj Justinian (omma judieia 
ah9olutoria)i but the Ph>culeiansai«ued that the question 
on which tne eondemnaiio depended was, whether a par- 
ticular ohligatio or facbmn existed at the time when the 
action was granted, and maintained that the judex could 
not avoid pronouncing the e(mdewiuUiot if the defendant 
at that time waa liable to be ctrndemMi^ 



Q. What is an exception ? 

Pr. A. It is an equitable restriction introduced by the 
pnetor, upon the general order to condemn given to the 
judex by the action. It was called ewe^Mo, because it 
excepted or took away from the effect of the action. 

Q. Explain the origin and use of exceptions. 

^ 1. A. It often happened that the demand of the plain- 
though joit in strict civil law (jusia), was unjust iis 
equity (iniqua). For instance, by the civil law, no question 
was made as to how a sUpulaiio arose : its existence 
was enough to create an obligation on the part of the re- 
spondent, even though his promise had been extorted 
by violence {metus causa) or oy fraud (1). But, to decree 
execution of such promise would have been to violate 
equity; and therefore, to prevent this, theprsBtors adopted 
the plan of giving the judext not a gemeral order, directing 
him to decree according to the principles of strict law« 
whereby the defendant would have suffered an unjust 
(iniqua) oondemnatio, but a tonditioTud order^ in these; 
terms : You shall pronounce condemnatiot unless there hag 
been fraud or violence, or. You shall pronounce condemnation 

(1) For fear, or mistake on the part of the proxnisaor, are not 
amongst the causes nollifying stipulationss : it is otherwise in caaei 
of a promise made by a person imbecild or a pupillns. 


jfikere is nofiraudt ^e, {ti inea re nihil doU maiofiui6wm 
sit nequefiat^ Gbius, 4, § 119). This restrictive order to 
condemn, this equitable condition subjoined to an action 
founded on principles of the strict law, was called an 
emeeptio (1). 

Q. It would seem, then, that an exception is unnecessary 
whiui the grounds of defence are admissible by the strict 
dvil law, and therefore such as the judex is bound to re* 
oognise (p. 381) P 

A. Yes (2) : and that this is so may be proved by many 
texts (D. 2, 1. 14, 7, § 4 ; and 17, § 1, Gaius, 4, § 106-7). 
Fr(»n which, also, we conchide, IJiat the exceptions, or, at 
least, the euceptio doli, is unnecessary in actions of bona 
fides ; because the y&cj nature of such actions permits the 
judex to look to the various circumstances showing fraud, 
which however, in actions sfricH juris, he could only re- 
gard by virtue of an exoeptio (3). 

Q. Exceptions are of prsotorian origin: but Justinian 
tdls us (§ 7) that there are certain exceptions founded on 
the law. 

§ 7. A. Yes ; because the prntorian law was often adopted 
as part of the civil law, which jpraduaUy became, in fact» 
one with it, in mutm eonsonanHam. Thus laws or other 
legislative acts {legibus veliis qute legisvicem obtineiU) con* 
finned the exceptiona introduced by the nrsstors, or created 
new ones similar to them, but always lor the purpose of 
mitigating the rigour of tlie origmal law, the law of the 
Tw^ve Tables (4). Thus a rescript of Marcus Aurelius 

. (1) Observe^ the defendant by his exespUa did not admit the 
truth of the iiUentio : it had to be proved. 

(2) The exoeptio was only required when the defendant could 
not avail himself of his defence i^o jure (that is, by the civU 
lam, and not, as it is sometimes translated, as of right), Thu^ tiie 
exoeptio paeti convewH, raised by a pact of release, was useless in 
case of a consensual obligation, because mere consent dissolved 
such obligations ipso jwre (p. 289). Hence § 8, which mentions 
the exoeptio pacti eonwrnti, must be understood to refer to a sH^ 
pulaHo t which is not extinguished ipso jwre by mutual consent. 

(3) llierefore Ulpian says, that in actions oonm fidei, the exr 
ceptions are implied (excepUones insuni) (D. 2, t. 1^ 7, § 5.) 
And Ci:gas (3 Ohn. 17) maiiit4uns that if an exoeptio doU was 
added to an actio stricii juris, it was changed Into an actio homm 

(4^ The law of the Twelve Tables^ notwithstanding the many 
modifications successively introduced into it, notwithstanding the 

368 XZAHINATIOK. IK [S. 4, T« 13. 

allowed an exceptio doli in an action strieti juris to anj 
person who desired to avail himself of a set-off {compensti* 
tio), p. 344 Thus also, after the h^BredUoi fideicommissaria 
was transferred (restituta), the hieres, if sued by the cre» 
ditors ofthehiereditas, hadHieexceiptiojirestUuta haredi* 
tatis, by virtue of the So. Trebellianum : because, according 
tostricc law, {ifsumjua)^ condemnaiio must have been 
pronounced agamst him (p. 186). 

Q. Were exceptions, like actions, framed (concepta) in 
jus and vn factum 1 

§ 1. ^. Yes : an exception was in jus when it raised a 
Question of law ; in factum when it raised a question of 
fact. The exception doli mali, or quod metus causa, was 
framed inius, because it required ihe judex not merely to 
examine the facts, but also to come to a oondusion upon 
them ; for it is not any set of facts which constitutes fraud 
or violence. Nevertheless the praetor, instead of decreeing 
that the judex should condemn, unless there vsa^ fraud or 
fear, mie ht instruct him to condemn, unless a particular 
fact had taken place ; e. a,, unless the demandant hctd 
threatened the dtfendant with a dagger , in which case the 
exception was infactwm concepta (§ 1, in fine) (1). 

Q. Under wliat circumstances could a man claim an 
exceptio ? 

§ 6. A, They are too many for enumeration. Having 
already mentioned the exceptions doU rnali, quod metus 
eausop and pacti conventi, we shall follow the Institutes, by 
confining ourselves to the exceptions non numeratis pecunia 
(consideration unpaid), jurisjurandi (oath tendered), rei 
judicat<B (thing aojudged). 

Q. Explain the use of the exceptio non numerata pe^ 

§ 2. A, When a person, before lending a sum of money 
or other resfimgibtlis (p. 240), stipulated with a promissor 
for the sum of money or res (2), but afterwards refused to 
make delivery to the borrower, such promissor was bound 
by the stipulatio, even though no payment had in fact 

fiotians with which it wag encumbered by the prsetora and jurists^ 
continued to be the basis of Roman Law. 

(1) The exceptio doli made the person against whom It was 
proved infttmous. Hence it was more common to grant an exceptio 
in factum against the patron than one doU mali : for it was a 
freedman's duty to have a care for the reputation of his patron. 

(2) Quasi credendi causa, i,e., made the defendant promise 
as if he, the plaintiff, were going to lend the sum of money. 


been made by the stipulator (1) ; but, as it would bare 
been unfair (iniqua) that a promissor should be condemned 
in such a case, the prsetor allowed him the exception in 

Siestion. The time during which this exeeptio might be 
eaded was reduced by Ju^mian to two years (B. 3, t. 21). 
' Q. When was the exceptiojwriajurcmai granted F 

§ 4. ^. When a debtor, on oath tendered to him by 
the creditor, swore that he owed nothing, he continued 
bound ; for an oath .was not one of the causes whereby an 
obligation could be extinguished by the civil law. But 
the defendant was entitled to the exceptio jurisjurandi to 
get rid of the condemnatio (2). 

Q. Did the res judicata give rise only to an exceptio P 
Did it never prevent a fresh action being brought? 

§ 5. A, Under the system of the legUactiones no second 
action could be brou^nt for the same cause. But under 
the fonnula-system it was different, for, according to 
Gains (B. 4, § 103, et seq,), all judicia were useiTiiCA or 
iMPSBio CONTINBITTIA. When the action was at Borne, 
or within the first milestone, between Soman citizens and 
before a single judex, also a Boman citizen, the action or 
judicium was legitimum ; but when the action was in the 
provinces, or between suitors, one of whom was not a 
Koman citizen, or before a judex, not a Boman citizen, 
^e judicium was imperio eontinens. Now, thejudicium U' 
ffitimum, like the ola le^is actio, being once begun, and the 
judex once appointed, went on till judgment; but the 
judicium imperio continent, which derived its whole effect 
from the magistrate who granted it, expired with his term 
of power : imperio cojttinetur. Thus it was, that in the 

frovinces all suits ceased with the change of governor, 
urther, as to their effects : ihe judicium imperio eontinens 
never extinguished the original right of action, so that if 
a second action was brought for the same cause, it had 
to be repelled by the exceptio rei judicata ; but as to the 
judicium legitimum^ there was a aistinction : if it was in 
rem or in factum, the right of action was uot extinguished, 

(1) It would be the same if there had been an obligation Uteris 
constitated by the chirographwin, and sabscribed before the money 
was paid (p. 26€0* 

(2) Exceptions were granted, not merely in personal, but also in 
real actions. When, therefore, on oath tendered by the de- 
mandant, the possessor swore that the thing belonged to him, he 
was entitled to the exceptio jwrw/itraiMJf (§ 4), in case the demand- 
ant bronght vindieatio, 


t70 mxAMXKJOiom ur [b. 4» t. Id. 

for« as time were not brooi^ to enforee an oUigatio, 
there wm none upon which the oUigatio raised by the 
litis eotUe$tatio eoiOd operate 00 ae to eartmgnidi the eenae 
of action by nowMtio^ vad hence the neeeasity for an emr 
eeptio if a second action wcie broogfat for the same canses 
but if ihejudieium UgiUumm was imjus, the licht of action 
was extingmshed, for the obligalio raised by the UHb 
eanteitaUo operated by naoatio to extmgnish the original 
obligwfcioy so that no exoeptio rei jutfu^ii^ was necessary 
if a second action were brought for the same cause. Bui 
these distinctions ceased when Borne became one with the 
provinces, and when all £reenisii of the empire became 
Koman citieens : tJliudieia were assimilated to these im* 
perio eonUnenUa, and hence Justinian's general proposi- 
tion, that retjudicaia gires rise to an eapeepUo (I.) 

Q. How are exceptions diiided ? 

§ 8. A. Some $are perpetual and perempiory, othsn are 
ienyporary and dikUaiy, 

Q. D^nejpMv^^iMi/andiMremp^of^f exoeptiims. 

§§ 8, 9. A. Those always allowed to the defendant 
whenever the demandant sued (». e,, demanded his aeti<Mi 
from the magisiiirate) ; e. g,, the exception of fraud {doli^ 
or pacti convenii, where it had bemi a^preed that the ereditor 
should never make his demand (osnm^io). 
. Q. Define temporary excepticms. 

§ 10. A. Those allowed only during a jBxed time» after 
the lapse of which they could not be introduced into the 
formula. For instance, if the creditor, instead of agreeing 
that he should make no demand at all, ^mised to make 
no demand iarfioe years (2), the exception |»ac^ eonvenU 
would be tempoiary y for, after that limited period, the 
exception woula no longer be available. Temporary ex- 
ceptions were also call^ dilatory, because they did not 
absolutely put an end (perimwnt) to the rights oi the 
demandanty like perpetual exceptions, but mere^ compelled 
him, if he wished to avoid the penalties oi plus-peUtio, to 
postpone the exercise of his rights {qua ad tempue noeent)* 

(1) The exceptio reijtuUcatiB had to be pleaded in actions bofUB 
fidei, bdng allowed more on pounds of pablic policy, ut mt finis 
Utium than upon those of eqmty. 

(2) Observe that this refers to a period allot^ed by a pactum 
subsequent to the obligation, and not to one allowed by the obli- 
gation raised by the original contract and embodied in it ; for, in 
this last case, if a person sued before the time, his claim was re- 
pelled ipso jure, aooording to the principles of pluspetUio, 

•A. 4; T.' 13.] THB UrSTItlTTSd Ot ItTSTINIAK. 971 

Finall J, a<soording to th* old law, the temporaary excep- 
tion was daring the period of suspennon quite as efficient, 
•*^idt8 Bsperemptoi^ ae tiie perfeiual ezceptio. For if the 
demandant bronrbt an action beiore the judex at any time 
prior to the exp&ation of the proper period, the defendant 
was acqnitted, and the sentenUa (judgment), which wu 
always nnal, gare rise to 9^ perpetual exeeptio barring any 
future action : so that the demandant lost his right {rem 
nmittdtant, § 10). But after the time of Zeno (t. 6, § 38), 
the phu-petUio no longer involved a loss of rights ; but 
the period during which the ri^ht of enforcing the contract 
was suspended (indttdke) was doubled in favour of the de- 
fendant, and the creditor was not allowed to bring a new 
action until he had paid the expenses of the first. 
- Q^ Were there no dilatory exceptions except those by 
reason of ^^wdf 

§ 11. A. There were also dilatory exceptions by reaaoA 
of the person : e. ^., exceptions jt)focttra/orM8, because, for 
instance, an action had been brought by a military man, 
or a woman as procurator; for military men could not 
sue as procurators eren for their fathers, mothers, or wires, 
nor even by virtue of a rescript of the Emperor. But mill, 
tary discipline did not prevent them from managing their 
own affairs (1). 

Q. Is there any other divlBion of exceptions P 

T. 14, §4,' A. Yes: some are eone^ta in rem, some 
eoneepta »» perwiUM^ {2) (p. 826) : tiie rarmer are available 
for every person sued ov reason of the same thing, the 
latter are available only tor one individual. Thus excep* 
tions granted to debtors are generally available for the 
Jide;ue9oree ; and properly so, mr to make a demand on a 
surety is in some sort to make a demand on the debtor 
himself, for he will be compelled bv actio mandati to 
restore whatever the suretjr has paia for him. Hence, 
where it has been agreed with a debtcnr not to demand a 
debt from him, the exception raised by such pactum is 
available for those who have bound themselves on his 

(1) The infamia ineorred by the person appointing a proctinitor, 
or m tiie procarator himself, formerly gave rise to exceptions,. 
whidL were afterwards disnsed, asidi which Justiman espreaaly 
abolished, lest the matters connected with them might deUiy the 
^scnssion of substantial questions. 

(2) Rei cohareiUes, inddent to the thing; persona to the 

372 XXAXINATIOH IK [B. A, T. 14. 

behalf, jjoBt as if the agreement not to sue had been made 
with them. But there are certain exceptions which are 
not available for the sureties ; e, ff,, if * debtor has made 
an assignment of aU his goods (oeano bonorum), and the 
creditor snes him, the debtor may defend himself by the 
exception si bonis cesserit {unless he hcts made an assigf^ 
ment of his goods) s but the fideijussores may not, because 
the benefit from the cessio bonorum is personal to the 
assignor, and because, moreover, if it were available for 
the surety, the object of the creditor in requiring the 
addition of a JidefussoVf viz., the obtaining payment from 
the fideijussor, should the debtor prove insolvent, would 
be defeated. 

Q. When should the exception be demanded P 

A. Before the formula is delivered,— before the suit is 
constituted {litis contestatio) ; for the question before the 
judex being ascertained, the judex can take no cognizance 
of any ground of defence not stated in the formula. 

Q. Might there be several exceptions to repel the same 
cause of action P 

A. Yes (D. 44, 1. 1, 6). 
. Q. In the latest period of the law, had not the term «r- 
eeptio lost its original meaning P 

A. Yes : the system of exceptions depended on that of 
the formula s after these were abolished, the exception, 
which then became synonymous with defence, seems to 
include aU the means of repelling a claim (1). 


Q. What is a repliaxtio f 

Pr. A, It is an allegation introduced by way of addition 
into the formula for the purpose of repelling and destroy- 
ing the effect of an exceptio. The replication is to the ex- 
ceptio what the exceptio is to the action. 

Q. Explain the use of the replication. 

Pr. A, It may happen that the exceptio, though appa- 
rently just^ is really unjust as regards the demandant ; 
e, g,, suppose a creditor has agreed with his debtor that he 
shall not demand his debt, ana it is afterwards agreed that 

(1) Or, at least, all those by which a daim is repelled, not by 
denying the facts on which it is based, but by alleging dream- 
stances to qualify the demandant's ri^ht. 


the creditor shall demand it : now if the ma^strate allow 
the debtor merely an exceptio peufti oonvenii, the debtor 
most be acquitted, since the judge cannot pronounce 
ctmdemncUio against him, except so far as there has been 
no agreement of release from the debt, and since the mere 
existence of a subsequent agreement contradicting that of 
release does not anninilate mefetct of such a release (verwm 
manet). Hence the demandant is allowed a replicatio ex 
pacto pagterioref framed in these terms : " J^aflerwofriM 
there has been no convention, whereby I may claim my 
debt " (GaiuB, 4, § 126) ; and this replicatio destroys the 
effect of the exceptio. 

Q. What if subsequently to the second pactum (em* 
bodied in the replicatio) tuiere was a fresh agreement 
negativing the second pactum P 

§§ 1, 2. A, The defendant would have a ditplicatio to 
repel the replicatio. In like manner the demandant would 
have a triplicatio to repel the duplicatio, the defendant a 
"^guiidruplicatio to rex>el the triplicatio, and so on, according 
to the requirements of tJie smt. 

Q. Dia the demandant need a replicatio to repel the 
exceptio doli mali 7 

A, No: for the very nature of that exceptio authorizes 
the judex to consider till the facts, both of early and recent 
date, from which the fraud or ^ood faith of the parties 
may be gathered. If, therefore, m the example above, in* 
stead of the exceptio pacti conventi, which is an exceptio in 
factum, and which therefore leaves nothing but one mate- 
rial fact to be proved, the magistrate had allowed the ex" 
ceptio doli mali, then, since the mere existence of an agree- 
ment of release cannot negative the possibility of a deman- 
dant having to complain of fraud, inasmuch as the effect 
of such release must be morally nullified by the existence 
of a contradictory agreement, it follows that the defendant 
wiQ be condemned under a mere exceptio doli, without the 
plaintiff being compelled to put in a replicatio. 


Q. What are interdicts P 

Pr. A. Under certain circumstances, when it was required 
to prevent conflicts, and to repress acts of violence, and 
especially in disputes as to the possession of tlungs cor* 
poreal, or the guasi-possesno of things inoorporeal, .the 

874 wXAunfAXiov nr [b. 4, t^ 15. 

protbr, instead of fpmnting an action, L e., instead of re>- 
feninp^ the matter to rjucSx to be examined and adjndi*- 
cated upon, made an order of command or prohibttum, 
which tne parties were reqiured to obey. This order^ 
fi!«med like the formula in actions {firma aique concept 
Hones verborum), was called an interdict {inierdtctnm), 

Q, What happened if one of the parties did not obej 
the interdict f 

Pr, A, The opposite party got an action anthorizing the 
judex to inirestigato whether or not there had been disobe^ 
dience of the interdict $ and, in case it was proved that 
there had, to condemn ^e disobedient party (Grains, §§ 4» 
141, 106). 

Q. It seems, therefore, thac interdicts were simply a 
means of obtaining condemnoHo against those who Tio«> 
lated a role which had been laid down by the praetor, appa- 
rency because such rule was not within the scope of the 
common or civil law. 

A, Such appears to have been substantially the use and 
origin of interdicts (1). Interdicts differed nom edicts in 
this, that the latter were general, whereas the former ap- 
plied only to a particular dispute, and to the parties thereto. 
Interdicts were special and personal edicts, renewed each 
time a similar matter presented itself. Indeed, the Insti- 
tutes derive the term from this very circumstance : quia 
inter duos dicuntur : so that Interdtdum signifies dictum 
inter duosi in opposition to edictum, by which the pnetor 
lays down general rules binding on all (2). 

(1) It seems that an interdict was seldom granted except in oises 
where the pnblic interest was concerned : as, where danger waa 
apprehended to pnblic roads or waters, or in private casea^ where 
i^ere might be a violation of the public peace. According to 
Niebuhr (II. 149), and Savigny (Poss,, B. 4, 44), the private 
occupancy of the a^er pubUcus was probably one of the earliest 
interests which claimed the protection of the interdict. 

(2) Such, at least, was the common opinion as to the etymology 
(§ 1). Some, however, derived the t^m firam interdicere, ** to 
rorUd," "prohiUt;" insisting that mterdicta applied only to pro- 
hibitory oiders : wh3st dsereta applied to positive orders. But 
this view has not been adopted. — Probably interdicts paved the 
way for ed^ts. For the prsetors, we may suppose, began by lay- 
ing down mles inter duos, in private disputes ; the same rule would 
naturally be adopted un(ler similar drcumstances, and this soon 
ledtothecreationof tiie general mks of the edict. Wbeaedieis 
were in use^ tibe preUns naed them for tfa« porpose of settling 

B. 4, T. 15.] THE IireTITUTBfl OT JUBTIKIAK. 875 

Q« Wliat is the general division of interdi<ite P 
§ 1. A* Interdicts are. prohihitoria, restitutorieii and ex*- 
hioitaria (1). ProhibUory are those by which the prstor 
forbids a man to do something t such as the interdict for^ 
bidding violence to be done against one who has rightful 
possession (non vidosa), or against one who is carrying 
A dead bod^ to a place where he is entitled to bury it t 
such also IS the interdict vrbich forbids the erecting an 
edifice in a sacred place (sacrum), — Restitutory interaiets 
are those by which the pr»tor directs the giving up. of a 
Thing : such is tilie interdict by which the preetor com- 
mands a person in possession j>ro harede ov piro possessore 
of the goods . of an heereditas (2), to give tne possession 
thereof to those entitled by the posssssio bonortm : such 
also Is the interdict commanding the restitution of a chattel 
carried away by {oree^-^JExhibitory interdicts are those by 
which the prsstor commands the production of some Thing 
or persons e» </., a person whose liberty is in question; 
a freedman who conceals himself to avoid rendering his 
patron the services to which he is entitled ; a son wnom 

posseBgion and other matters, by laying down certain mlei, and 
]^miniig an action in faetum against thuse who Tiolated them 
[D, 48, t. 4» § 1). Nevertheless, interdicts continued to be 
granted in all cases in which it had been nqnal to grant them; 
but the preetor, in order to render his rale of action as condstent in 
its character as possible^ promised by the edict to pronounce a 
particular interdict, whenever particidar drcumstanoes occurred. 
In the end, however, it became unnecessary actually to obtun an 
interdict, the custom being to sue just as if such interdict had been 
in fact obtained. Hence, under the Lower Empire we hear very 
little of interdicts, 

(1) This division was important in regard to the procedure to 
be adopted in case the interdict wbb unexecuted (Qaius, 4, § 141, et 
seq.) When the interdict alleged to be violated was r0«M^Of^, 
or ewhibitory, the demandant had an arbitrary action, i, e,^ one 
authorizing the judex to decree that the thing should be given 
up or. produced. If the defendant obeyed this order he was ac- 
quitted : if he did not, he might be compelled to obey it by public 

(2) He who believes himself, or at least claims to be hseres, by any 
title whatever, either by the jus civile, or the Jus honorarium, is 
possessor pro harede : a possessor pro possessore is a possessor ut 
prado s i. e,, who claims no right of property, and has no other title 
thui the mere iact of his possesdon. 

376 SXAMIKATIOK IK [b. 4 T. 15. 

a pater-familias clainui as subject to lus power, bat whom a 
third party detains (1). « 

Q. It appears, then, that jpossessian was the principal 
tabject-matter regulated by interdicts s how were they 
divided as to possession? 

§ 2. A, Into three classes. They were granted in order 
to obtain tiie possession (adipiscenaa possessionis), in order 
to retain it (retinenda), or in order to recover it {recupC' 

Q* Mention those adi]nscend€B possessionis, 

§ 3. A. The text mentions the mterdictom ^^uorum bono' 
rum and the interdictom Sahnanum. 

Q. Explain the interdict quorum bonorum, 

§ 3. A. It derived its name from the first words of the 
formula appropriate to it, and was allowed to the possessores 
bonorum {o, 3, t. 9), in order that they might get the goods 
of a kasreditas out of the hands of one in possession thereof 
pro harede or pro possessore. The use of this interdict is 
obvious, when we consider that the petitio h€Breditas was 
available only for the Jueredes (proper), t. «., hseredes of the 
civil law : hence the preetor found it necessary to create 
this interdict as a means of putting the goods of the harC" 
ditas into the hands of those whom he had nominated 
bonorum possessores, — The interdict quorum bonorum wsa 
ffranted only to those claiming a possession which they 
Had never had (2). 

Q. But you say that this interdict was restUutoria f 

A, Yes: because the word restituere does not mean 
simply to restore, but to put another in possession, whether 
su(m other acquires a thmg for the first time or recovers it 

Q. Explain the interdictum Salvianum, 

§ 3. A, This interdict, called after Salviua, its author, 
was allowed to the proprietor of country-land {fundus ru* 
ralis), in order to his obtaining possession of every thing 
charged by the farmer as a security for the payment of 
his rent, ^^uas (colonus) pro mercedibus fundi ptgnorifutU' 
r<u pepigtsset (3). 

(1) As to the formulsB of interdicts — ^prohibitory (D. 48, 8, 2, 
20) ; restitutory (D. 48, 18, 11} ; exhiWtory (D. 48, 29, 1). 

J 2) Those- who lost possession had recourse to the interact 
le vi. 

(8) Probably the actio Servicma (p. 385) was a mere extension 
of the interdictum Salviamtm, In like manner, the p ra&tom seem 


Q. In what cases did the prsetor grant (comparata sunt) 
interdicts retinendis possessianis ? 

A. In three cases, viz,, when the possessor was disturbed 
and annoyed ; when he had reason to fear disturbance ; 
lastly, when he demanded possession during a suit affecting 
the property (1). 

. Q- Cfould an action claiming the property be framed 
{actio petitoria institui) until it was known to whom the 
possession did or ought to belong P 

§ 4. il. No r for the vindicatio was required to be brought 
against the possessor by a person not in possession, but 
claiming to oe pronrietor. First, therefore^ the question of 
possession had to oe settled. And this question was very 
important ; for on it depended another, viz., who shall l>e 
demandant, and who shall prove the case : for the person 
allowed to hold possession being defendant in an action of 
mndicatio, had nothing to prore, and was secured in the 
possession by the mere fact that the demandant had shown 
no right to the property. 

Q. Mention the interdicta retinenda possessionis, 

§ 4. A, In case of immoreables, the interdictum uHpos* 
sidetis, and in case of moveables, the interdict utrubi (2). 

Q. To whom did the prsetor grant the interdictum uti 
possidetis f 

§ 4. A. To the suitor who, at the time of granting 
the interdict, had, as against the other {ah adversario), 
possession non viciosa (3). Possession is viciosa as to the 
opposite party, when obtained from him by violent or clan« 

to have paved the way for the actio PauUana (p. 834), by the 
interdict Qs!l\eidifraudatoriwm, the object of both bdng the same. 
The use of exhibitory interdicts will probably aoooont for the origin 
4)f the action ad exMbendum, 

> (1) Theophilus points ont all three ca^es {ad princ, h, t»); 
Gains, (4s § 158) and the text (§ 4), mentions only the last : pro- 
bably beoause it was the principal one. 

(2) Gains (4, § 160) has preserved theformnlsB of the interdicts 
ti^ possidetis «ad utrubi, the names of which, like all the others, 
are derived from the first words of the formula. The former was 
thus framed : uti nunc possidetis, quonUnus ita possideatis vim 
fieri veto : " I forbid violence being used, so as to prevent you 
still possessing as you now possess." 

(8) It mattered not whether the possesalon was viciosa, as to 
any other than the opposite party. Thus, I should not be refused 
an interdict against JHtius, because I had taken the possession by 
violence from Mavkts, 

978 XXXXINATIOV IN [b. 4> T. 15. 

destine mesQB» or precario (1) (nee tfi, nee elam nee pre* 


. Q. To whom waa the interdiot utrubi eranted P 

S ^ ^. By the old law it was granted to one who had 
haa, dnrinfi^ the greater part of a year, quiet, public, 
and non-precoHotu posseBsion as against the opposite 

§arty (2). By the new law it was granted, like the inter- 
iot uti poestdetiSi to one holding rightful {non vieiaaa) 
possession at the time of action brought. 

Q. In order that a man might obtain these interdicts, 
was it required that he should personally be holder P 

J 5. A. No: for a man was deemed a possessor not 
y when he was in personal possession, but also when 
another held in his name, as in case of a farmer, or a 
depo8itariug{3). Possession may even be retained with* 
out actual holding, by mere intention, as where a man, 
though he ceases to hold a Thing, retains an intention to 
return {animus revertendi), and tiie ?nll not to abandon 
his possession. But it is clear that intention is never suf* 
ficient to transfer or invest a man with possession : there 
must always be an actual taking of possession, either by a 
man himself or by another for him (B. 2, 1. 1). 

Q. Mention the interdicts reouperandiB poseeseionis, 
§ 6. A. The text mentions the mterdict tmde vi, granted 

<■— ***— — H ' I I I. - I I I I I ■ ■ I li— -»— 

(1) The precarium was a contract whereby, on request, a grant 
was made to a man of the right of ei\joyment of a thing, snch grant 
hang revocable at the grantor's pleasure. The grant being re* 
yoked, the holder of the thing was required to restore it, and he 
might be compelled so to do by the interdict recupercMda posses' 
sionis, called de precario. 

(2) The interdict utrtiH was thus framed : utrtdn (with which* 
^ver of the two) Mo homo, de quo agitw, apud quern majore parte 
hujus atmi fuit, quominus is ewn ducat, vim fieri veto (Ghiiufl^ 
4, 160). Bat how could the interdict utruH he considered as one 
retinenda possessionis, when he to whom it was granted was not 
in possession at the time of action brought ? Probahly, because he 
who had been in possession during the larger portion of the year 
waai, by a legal fiction, deemed in possession, even after having 
lost it hy the acts of violence oompUuned of. 

(3) He who holds for another is in possessione, and "not pos^ 
sessor; for a possessor must possess animo domini* Possessio is 
threefold: 1. Civil, t. e, recognized by the Twelve Tables, and 
Reading to usueapio. The possefeor must have the ammus dowUni 
(p. 63). 2. Prsstorian, i. e. recogpuzed by the prsBtors, and not lead- 
ing to usueapio, but protected by interdict, e, g, a gift of a wife to a 
husband (D. 2^ 1> 26). 3. Natural, t. e. mere physical holding. 

^.4t»18.] the institutes ot jitstikian. 879 

to a man when dispossessed by violence (1). In 6rder to 
obtain this interdict the oonditions were these : — 1. The de- 
mandant most hare been in possession at the time of the 
Tiolenoe committed (ex possessione), 2. He must have lost 
such possession by an act of violence (2) (deieotus), com* 
mitted by the opposite party himself or under his direc- 
tion. 3. The thing possessed must have been an immoveable 
i^ndi vel <Bdmm) ; but after the Constitution of Yalen* 
tinian I. (C. viii. 4, 7), which decreed that he, who had 
used violence to obtain possession of a Thing moveable 
or immoveable, should give it up, and should lose his pro* 
perty therein if he had acquired it, or pay liie value thereof, 
the mterdict in question was extended to moveables (§ 6). 

Q. Was the man who used violence to dispossess an<* 
other esposed to further penalty P 

§ 6. A, He was subject to the lex Julia (t 18, 8, post), 
as to public and private violence. — It was private violence 
when committed without arms ; public violence when com<* 
mitted with arms: under arms we include not merely 
shields, swords, helmets, &c., but sticks and stones. 

Q. If the person expelled had a mere viciosa passesno 
was he entitled to the interdict unde vi ? 
' § 6. ^. Yes : although a man who obtained possession t^ 
elam or precario was not entitled to the interdict reUhendU' 
poMesHonU (p. 377). Formerly, where there had been or-,, 
dinary violence {vis quotidiana), the interdict unde vi was 
not granted unless the possession had been obtained vi 
clam OT precario from the opposite party ; but where there 
had been vis artnata, the mterdict was always granted. 
But this distinction was abolished. 

Q. What interdicts were allowed to secure the quasi 
possessio f 

A, The party molested in the exercise of a personal or 
real eervitus had the interdicts uti possidetis^ utrubi, unde 
vi J or special interdicts, e, g,, de itinere actuque privaio 
and de fonte, which corresponded with the interaict uti 
possidetis — ^the first as to the right of way, the second as 
to the light of drawing water. 

Q. Mention the third division of interdicts. 

§ 7. ^. Simple interdicts and double interdicts. 

Q. Explain the term simple interdicts, 

(1) The formula began thus : unde tu iUum vi dejecisH (Gkdofl^ 
4, § 154). 

(2) Either physical or moral, as the threatemng of serious and 
imminent danger. 

380 XXAmNATIOK IV [b. 4, 9. 16« 

§ 7. J. By simple interdicts I understand those in which 
one only of the parties is demandant and the other defend- 
ant ; e. g,9 the interdicts restitutoria and exhihitoria : for in 
them he who demands that the thin^ shall be given up or 
produced is alone the demandant. 

Q. Explain double interdicts. 

§ 7. A, By double interdicts I understand those in which 
each partv to the suit is both demandant and defend- 
ant (1). Among prohibitory interdicts, some are eimpUt 
otiiers double, Amoogst the former we find those inter- 
dicts whereby the preetor forbids anything to be done in a 
sacred (sacrum) place, in a public rirer, or on the bank (B. 2, 
1. 1). Amongst the latter we find the interdicts utiposndeiii 
and ui/rubi. For he who opposes the grant of such inter- 
dict, contending that the demandant luts no right to keep 
possession, or, indeed, that he has no such possession as he 
claims, of necessity implies a demand to be himself put into 
or kept in possession. 

Q. Was the proceeding by interdict used during the 
later times of the law P 

§ 8. 2I. No. Interdicts were abolished by the new organ- 
izalionof the judicial powers under theLowerEmpire. After 
the magistrates, instead of remitting questions to the ju- 
dex, themselves went into the whole case and pronounced 
judgment — ^in short, after all judicia became extrajor<^ 
dinaria — the parties were entitled to judgment to re- 
cover possession, or generally to any other remedy obtain-* 
able by interdict or otherwise. 


Q« How was the rashness of suitors restrained P 
jpr. A, By oaths, by a pecuniary penalty, and by infa- 
mia (2). 

(1) Such interdicts are called doMs^ just as some actions are 
called «iM;e J. 

(2) To prevent dtizens bringing suits too hastily, there had 
always existed penalties. In the time of the legis cieHones, the 
stiorcMnefUum effected this (t. 6). Under the formula system the 
eaorameTUum was replaced by the sponaio and restipulatio, — con- 
tracts by which one party bound himself to pay the other a fixed 
sum in case he did not succeed. In the end, however, these stipu- 
lationes became mere forms. But a custom was introduced of re- 
qmring firom the opposite party, Jwamentum caUtmnUB, and even 


' Q. What oaths were required of the snitors P 

§ 1. ^. By a Constiti^tion of Justinian, the suitors had 
to swear that thej believed the^had good cause of action : 
and their advocates had to do likewise. 

Q. What pecuniary penalty was imposed on a rash 
suitor P 

§ 1. A, He who lost his suit was condemned to pay the 
other the damages and the costs (impeiucts litis) incurred. 
Moreover, in some cases an obstinate defendant was con- 
demned to the double or triple value {duplum aut triplum) : 
as where a man denied (infieiantem) the fact of a deposit 
having been made ex quibusdam casibus, or denied a dam' 
num vnjwriaj or delayed paying legacies made to religious 
houses until he was sued (p. 342) (1). 

Q. When was vnfarny incurred by a rash suitor P 
§ 2. ^. When, for mstance, the defendant was con- 
demned in an actio fitrti, or vi bonorum raptorum, or »n* 
juria, or de doh, or when he was condemned in direct (2) 
actions of tutela, mandatum, depositum, and partnership. 
Observe, however, that in these last cases infamy was in- 
curred only by judgment of condemnatio having been pro- 
nounced : whereas, if the action arose out of theft, ra- 
pina or injuria, the vnfamy which in such cases resulted, 
rather irom the wrongnil act than from the judgment, was 
incurred by the mere agreement {paeti) to commit the of- 
fence : for as the text says, there is a great difference be- 
tween the case of a man who is a debtor by a contract and 
him who is a debtor by a delict. 

Q. State the principal effects of infamia, 
A. An infamous person could neither be a witness, nor 
receive public honours, nor bring forward a public accu- 

of having recourse to a special 2Jci\on, judicium calumnia, by which, 
if a man could prove that a suit had been brought merely for 
vexatious purposes^ he was entitled to condemnaito for damages 
equal to a tenth, or a fourth, of the subject of dispute. Tim 
action was disused, but the juramentum became general, and Jus- 
tinian made it, as we shall see (§ 1), the necessary preliminary to 
every suit (C. ii. 69, 2). 

(1) That which a plaintiff was boxmd to give in case of plus* 
peHHo, was a kind of pecuniary penalty against the demandcmt. 

(2) Actiones contraria of tutela, mandatum, and depositum, (t. e» 
acbons by the tutor against the pupillus, by the mandatarius 
against the mandator, by the depositarius against the depositor), 
were not punished with infamy. 

388 BXAXIVATIOK IIT [b. 4» T. 17. 

eation, nor, before Justinian's time, postulare injure, for 
another (t 18, § 11) (1). 

Q. May we not consider, as one means of restraining 
rash suits, the fact that the pnetor prohibited certain per- 
sons beinffsued {in jut) without his permission P 

§ 3. A. X es : thus, under a penalty of fifW solidi, be 
forbad children to sue their ancestors, and medmen to 
suffimmi their patrons without his permission (B. 4, t. 6). 


Q. What is the first duty of the Judex f 

Pr» A, To give judgment according to the Law, the 
Senatus-consulta, thie Constitutions, and the unwritten Law 
(moribus) (3). 

Q. Had a judgment in direct violation of the civil law 
any effect? 

A, No : it was ipso facto null, without any appeal (p. 
S09). It was different if a judex merely committed a mis- 
take ; e.g,, by taking an alleged fact to be true which was 
false, for then the judgment was valid, but subject to ap- 
peal (4). 

(1) Page 67. When exUHmaUo was very serionsly impaired, the 
offender was said to inoar- infcMona, in oases of less gravity, Uurpi' 
tudo ; if the offending person was in an inferior grade, he was 
branded with a letia nota. 

(2) Offleiwm, nnder the formula system^ means the aggregate of 
the power and obligations of the judex. 

(8) That is, according to the dvil law, as contrasted with the 
prsetorian law. For whatever might be the authority of the pne- 
torian edicts, it was not incumbent on the judex (directly, at least) 
to pay any regard to them. A judex could not take into considera- 
tion any groimds resting on tibe praetorian law, or equity, unlesa 
he was speoally authorized to do so by the terms of the formula. 
But he might apply the civil law without any such formal autho- 
rity. Hence, when the formula merely contained these words, si 
paret, dare oportere . , , si paret hone rem etse Sempronii, tha 
qnestian was to be dedded by the principles of the civil law. When 
it was to be decided on other prind^es, the prsstor drew up the 
fotmula kkfoKjHtm, or inserted an exception. 

(4) The appeal had to be brought within the two days after 
the judgment given, or after the time when the party condemned 
knew OTthe judgment by de&ult : and within three days if the party 


Q. What fonn of judgment was the judex required to 
l^ve in actiones noxales, when he was of opinion that the 
master should be condemned P 

§ 1. A, The condemnatio was in the altematire either to 
pay the condemnaUo or to give up the slave or animal 
which had caused the damage ; e, g,, ** I condemn Puhlius 
McBvius to pay Imciim Tvtiua ten golden solidi, or to 
ahandon the noza." 
. Q. What was the duty of the judex in the action in rem 
(for the property) P 

. § 2. ^. If he pronounced against the demandant, he 
acquitted the possessor : if he pronounced against the pos^* 
sessor, it was nis duty, before stating the condemnatio, to 
order hun to restore the Thing formwith (1), along witJi 
the fruits thereof, and other incidents (accessorid), u e^ 
with whatever the demandant would hare had, if the thing 
had been given to him at the UUa contestaUo, But if the 
possessor alleged his inability to give up the thing imme- 
diately, and demanded time, the judex, provided the de- 
mand appeared bond fide {sine frustratume), might grant 
the time, on receiving security Joy fid^ussor (sureiy) suffi- 
cient to cover the value of the Tmng in dispute, in case it 
should not be given up within the time limited. 

Q. Wliat were the fruits (fruetfui) to be accounted for 
by the possessor who had amdemnaiio awarded against 

A. A distinction must be taken between the bond fide 
and the maid fide possessor. The latter (prado) was bound 
to account for all muts gathered, and all that he had &iled 
from negligence to gather. The former was bound to are* 
store only such fruits as had not been consumed : he was 
not bound to account for fruits which had been gathered 
and consumed (2), nor for fruits which he had failed to 

oondemned had pleaded by proouraior. By Kov. 28, Justinian al- 
lowed ten days. It seems that the appeal 1^ from the judex to 
the pmtor ; thenoe to the senate, or, in later times, to the ootmdl 
of theemperar, with the pratorian prefect as head judge ; finally to 
the emperor. 

(1) In personal acdoDS four months were generally allowed to 
tiie debtor to pay the amonnt of the oondemnatlo. Tlie action of 
viMcaUo is an actio arlitraria (B. 4, t. 6, § 31-2). 

^2) Observe, it is not correct to say that the bond fide possessor 
gained the fruits; that would be at variance with many torts, par- 
ticularly D. 12, t. 6, 15, by which it seems that a person who bond 
fide received a Thing not due was bound to aoooimt for all fruits 

884 XXAICIVATIOK t9 [b. 4, T. 17» 

ffather, at least before the liHs eonteitoHo ; for, after action 
Droughty all posBessors are equals that is to say, guilty of 

Q. In case of peiitio hareditaiU, was it not the duty of 
the judex to see that the eondemnatio against the possessor 
included a return of the goods of the hareditas and its 

§ 2. A. Yes. Justinian says that, in regard to the bond 
fi£e possessor of an hssreditas, the same rules as to account- 
ing ror the fruits must be followed as in case of a claim 
by vindicatio for a particular Thing ; but this was not so, 
at least after the passing of a Sc. on the proposal of Adrian: 
(po9t senatus consultum, D. T. 3, 20, 6) ; for after it, the 
bond fide possessor of an htgreditas was bound to account 
for the fruits, even though consumed, so far, at least, as 
such possessor had deriyed profit thereby (1). 

Q. W as the maid fide possessor of an karedittu, like the 
maid Jide possessor of a f*e« eingularist bound to account 
for fruits consumed, or which such possessor had neglected 
to gather P 

§ 2. A, Yes : Justinian says that in the petitio hareditae 
the fruits are to be accounted for by the maid fide pos* 
sessor, on rery nearly (pene) the same principles as in the 
vindieatio of Ares sinaularis. The Emperor does not ex- 
plain the di£ference aUuded to by the pene ; but it appears 
to be this : in the petitio hareaitatie the fruits gatnered, 
or which the possessor had failed to gather, even before 
the litis eonteetatio, were necessarily comprehended in the 
daim, as constituting part of the hiereditas {firuetus augent 
hareditatem, D. 5, 3, 20, 31), and therefore formed part 

gathered, and consequently for aU fruits consumed. But the ao* 
quisition by the bond fide possessor of fruits consumed was a conse* 
quence of the particular action brought against him. For when 
the only postdble action was a vindicaOo it was only the fruits not 
consumed, which could be recovered quia res exHncta vindi* 
oari non possunt. Whereas by the condicHo indebiti the demandant 
might recover the value of the fruits consumed, because though non- 
existent things could not be churned by vindicatio, they might b& 
claimed by a personal action : condici iamenposstmt (p. 68). Thus» 
the reason why the moMflde possessor was hound to aocoimt for 
fruits consumed, or for those which he hud neglected to gather* 
was because he was liable in a personal action — an action, however, 
which was not allowed against the bond fide possessor, 

(1) It may be that this passage of Justinian (§ 2) is extracted 
from the writings of some jurist anterior to Adrian. 

B. 4^ T. 17.] THB UrSTEFUTBS OF JirBTiiriAir. 389 

and parcel of the daim (1) ; whereas in vindieaiiitg a ret 
wnmLla/ris the froits gathered, or which the possessor had 
failed to gather before the UtU contestatio, were not neces- 
sarilj comprehended in the demand, and conld onhr be 
reooyared by a special action, which was real, if the muts 
were still in existence ; and personal* if they had been 
oonsmned by the mcddHde possessor. 

Q. What was the duty of the judex when an action 
md exhtbendum was brongntP 

*§ 3. A. If the judex pronounced against the ddTendaaty 
he was to command him instantly to 'produce the Thing, 
with everything belon^g to it [etiam rei eausam) ; ». e., 
to put the demandant m possession of whaterer he would 
hare had if the thing nad been produced at the vei^ 
moment when the demand was inade (2). It was his 
dulT also to order the production of the fruits (fntetus) 
garnered after the litis conteataiio {post aceeptum judu 
otttfii). But if the defendant made a bond fide demand 
for a reasonable delay, in order to enable him to produce 
it, it was the duty of the judex to grant such delay, pro- 
vided the restitution of the thing was guaranteed. If 
the defendant did not produce the thing on the instant, 
according to the order of the judex, or u he did not give 
security (cauOo) to |nroduce it within tiie time allowea for 
that purpose, it became the duty of tiie judex to pro- 
nounce eondemmuHo against him for aU the damage suf- 
fered by the demandant in consequence of the thmg not 
having been produced at once. 

Q. What was the duty of the judex in the actionyamt/up 
erdsewndm (for partitioiiing the n»reditas) P 

(1) For the hBareditas was a vmoertitae, which might be added 
to or dimixuBhed withont ceasing to be the same. Hence, the maid 
fide possessor was bound to keep acooont, not merely of the price 
cS the finuts consumed before the litis contestatio, but also of the 
interest of such price ; for the price is quid principale, whereas in 
Alymmg a res singularis by vindicaHo, the mcUdfide possessor 
was not liable for the interest accruing on the price of fruits 

Sthered either before or after the lUis eowtestaUo, tat such 
lits are themselyes accessories, and tmcessioms aecessio non est. 

(2) So. that, says the text, if title by usncapio was perfected 
during the suit, the defendant would not the less be bound to re- 
stxnre the thing, fat ilie title by uswsapio was rescinded \x7 the 
judgment. Thus, by the old law, at leasfc, usuoapio was not mter- 
rupted by the demand, whereas the preseripUo longi temporis 
ceased from the time, and by the mere effect of the draumd being 

386 XXAKIKATIOK IK [b. 4, T. 17. 

§ 4. A. To adjudf^e to each hseres the separate thin^ ; 
and if any one hsres had more than his share adjudged to 
him, the judex was bound to condemn him to pay a cer- 
tain sum to his cohares. Again, it was the duty of the 
Judex to pronounce condemnatio against that heeres who 
had fathered the fruits of the conmion undivided ffoods, or 
who had changed or destroyed the character of the things 
held in common, thus compelling such hasres to indem- 
nify his cohsres. Again, it was the duty of the judex to 
condemn one hsres to indemnify his coheres &r sums 
expended by the latiSer on account of the common property 
of the hffireditas. 

Q. Was it not the same in the action eommuni divi* 
dundo (for partitioning a Thing held in joint property) P 

§ 5. A, X es : at least when there were seyeral distinct 
things, or a single thing which might be conyeniently 
divided between the coproprietors : but when there was 
only a single thing which could not be divided wit^ ad- 
vantage — e. ^., a horse, or a slave held in joint property — 
the judex might adjudge it entire to one of the coproprie- 
tors, at the same time condemning him to pay to the 
others a certain sum by way of balancing the account (1). 

Q. What was the duty of the judex in the action 
fihium regwndoTum (fixing the boundaries) P 

§ 6. A» To examine whether the adjudication was im- 
peratively required; which was only m one case, ffiz»y 
when it was found requisite to mark out the lands by more 
definite boundaries : m such case the judex had to adjudge 
to the proprietor of one of the (heritages) estates a portion 
of the land belonging to the other (2), condemning the 
person to whom uie land was adjudged to pay to his 
neighbour a certain sum as compensation. By the same 
action a party was condemned who had fraudulently in- 
terfered with the boimdaries; e, g,, by the removal of. 
stones or the cutting down of trees which served as boun- 
daries. By the same action a man might be condemned 
for unlawful resistance {contumada), as where, in spite of 

. (1) The same held good in a case of petiHo h^treditoHi, if, as 
was not very often the case, the hsereditas comprised only one in- 
divisible thing. 

(2) Thus, for instance, the judex might a^'udge to me a portion of 
my neighbour's land, in order that my land might extend to a stream 
or pubUe road, so as to form a clearer or more natural boundaiy. 

}^- B.4, T.18.] THE INBTITUTES OF JtrSTINUK. 387 

^} the order of the judex, he refused to allow the land to 
ijHf be measured or surveyed. 

Q. What was the effect of adjudiocUiones or judg- 
ments pronounced by the judices in the three actions 
familuB erdscv/ndce, commwni dividundo, finiwm regun- 

A. The effect was to transfer immediately the pro- 
perty to the person in whose favour the adjudication was 
made (1). 


Q. Wmat do jouxmdeniMJidhjjudiciapublioaf 

^ 1. A, They are criminal prosecutions, which every 

citizen (2) is allowed by law to institute against any person 

who has been guilty of a wrongful act, m order that the 

enalty fixed by the law to such act may be inflicted upon 

Q. Are the proceedings in judicia publica conducted 
like ordinary suits P 

A. No : tne procedure is not by action, but by accusa- 
tion and inscriptio (3). 

Q. "B-ow were judicia jmblica d^Yided? 

§ 2. A. Into capital and non^capitaL The first were 

(1) These three actions must therefore be personal, not real, for 
the demandant claims to have certain property trcmrferr^ to 
him, which rests on the hypothesis that he is not proprietor. In 
troth the claimant exchanges his undivided share in the whole for 
a specific and definite porfion. 

(2) Flerumque datur, t. e., miless excluded by some law ; e, ffi, 
women, unless the ixjury was done to themselves, or their neair 
relations; persons under age, or (famous, or not possessing fifty 

(3) The prosecutor of a public wrong {delictum) sent to the 
magistrate, who had cognizance thereof, a written document, in 
which he named himself accuser, and declared his readiness to 
submit to the penalty of the Ux taUonis, if he should be convicted 
of caUtmnia (fidse accusation). The cognizance of judicia publica 
did not belong to the prsetors : by the pandects it devolved on the 
prafeotus wrhi and the governors of the provinces. Under the 
Republic it passed into the hands of different magistrates : but 
the people themselves took cognizance when the life of a citizen 
was in question. — Observe,^'fMito(ajn(62toa were properly the trials 
conducted under the provisions of spedal laws, wluch prescribed 
the mode of trying a crime and the penalty attached to it. 


988 vuMxsjunos ht [b. 4, t. 18. 

those inrolying BBtoral or ciyil deaUi (B. 1, t. 3) ; the 
second those which, besides infamia, involyed only a peoa- 
niaiy and corporeal jfi^nsltj, without depriyation of the 
rights of libeily or citizmiship. 

Q. Mention the hiws Biaiikoirmngjudiciajmblica. 

A, 1. Lex Julia Majestatis; 2. Lex Julia de Adul' 
ieriisf 8. Lex Cornelia de Sieanisf 4. Lex Pempeia de 
JParfioidiis ; 5. Lex ComeUa de FdUis: 6. Lex Julia de 
vi Publica vel Prvoata ; 7. Lex Julia Peculaius ; 8. Lex 
Fahia de Plaaiariis; 9. Lex Julia de Amhitu; 10. Lex 
JuUa Repeiunaarum ; 11. Lex Julia de Annona; 12. Lex 
Julia de Besiduis. 

Q, What crimes were punished by the Lex Julia Mioh 

§ 3. A. Crimes of high ireason and Umcb majestatie, A 
person convicted of haying eontriyed anght against the 
emperor or against the state was pmiished wim death : 
his memoiy was condemned even after his death. 

Q. What crimes were punished by the Lex Julia de 

§ 4. A. This hiw, passed B.C. 167, pnnished with death 
not merely those who defiled the bed of another, but those 
who committed abominable crimes. Moreoy^, it punished 
stu^MnMn, when a girl or honourable widow was seduced 
witftout yiolenoe. The penalty was confiscation of half 
the goods of seducers in the higher ranks, and in those of 
the lower ranks corporal punishment, accompanied with 
relegatio (B. 1, 1. 16). 

Q. What punishments were inflicted by the Lex Cor* 
sielia de Sicariis ? 

§ 6. A. This law, ^sed B.C. 80, pnnished with death 
4UBsassins {siea; dagaer), and those who carried any weapon 
for the purpose of yenffeanoe. The same law^unisned 
with death poisoners, who, by their horrid macmnation», 
put men to death either by poison or by magic charms* 
or who publicly yended dangerous drugs (§ 5). 

Q. Explain the Lex Pompeia de Parricidiis, 

§ 6. A, This law, passed b. c. 52, inflicted a noyel punish- 
ment upon him who, either clandestinely or openly, put to 
death his father or mother, his son, or any relation (affec' 

tionis), whose murder would be parriciae (c. ix. 17) (1). 

— ^ 

(1) J. e,, the mwder of any ftDoestor of husband or wife^ of opn^ 
€obrini, of a st^father or-mothfec, father-in-law, &c., of a patroi^ 
«id of a child if killed by the mother or grandfather^ bat not by 
the father (D. 48^ 9, 1). 

B. 4» T. 18;] THB iKsssrunB OS nrSTZSIAH. 

Moreover, the penalty denotinoed against parrioadea waa 
inflicted on him hy wnose fraud tiie crime had been com*' 
mitted, or who had taken part in it, though not a relatioit; 
of the deceased. The pnnufamoit consisted in the cnlpritr 
being inclosed in a leathern sack with a dog, a cook, m 
^per, and a monkey, and thus thrown in liiB sea, or into 
the nearest river. If the sea or riyer waa too &r off, ihob 
parricide was burnt idiye^ or abandoned to the fury of 
wild beasts (D. 48, 0, 0); 

Q. What Climes wore punidied by the Leas GomeHa <la 
FaisU^ or Tesiam^ntaria i 

§ 7. A* It denounoad punishment agaisit vxj one who 
wrote, sealed, read, or suostitated a fiilse testament, or any 
other instrument, or who made, cut, or impressed a fakio 
aeal knowingly and wilfully. In case of slayea, the extreme 
penalty was incurred ; in case of freemen, cie^orfo^ (1). 

Q. What punishments were inflicted by the Ztf^JwAwt (2a 
vi Publica seupriffaia? 

§ 8.^. By it public violence was punished by denaricUio ; 
prwate violence by the confiscation of a third of me goods. 
Justinian decreed that persons convicted of having violated 
a maid, a widow, a mm, or any other woman, should be 
punished with death, as well as their accomplices. 

Q. Explain the Lex Julim Peeulatus. 

§ 9. A» It denounced departatio, and sometimes thecoma 
quadrupU (D, 48, 13, 1, 3), against those who stole public 
money, or anything saertcm or religiosum of which they had 
the control. Capital punishment was denounced againat 
public officers ana their accomplices who were found guilty 
of such peculation (0. 0, 28). 

Q. What punishment was inflicted by the Lex Fahia de 
Plagiariis f 

§ 10. A, AxLj pliiffiarius, t. e., any man who knowingly 


(1) This Iaw (b. c. 80) save rise to the fietdon, that a man who 
had died in captivity, died at the very moment he was taken cap- 
tive (p. 129). For tiie law attached the same penalty to forging 
the testament of a man dying in captivity, as to forging the testa- 
ment of a man dying in his own eomitry. Hence it was sud that 
the law clearly oODadered a captive's testament valid : bat that 
could only be so by sappomag the testator to have died at the 
moment of his captivity, for no testament was valid miless the tes- 
tator had power to make it, both at the date when he did so in 
fkct, and at the date of his death. Therefore he must be sap- 
posed to have died when he was taken captive : and this was called 
the benendum legii Cornelia (D. 4fi(, 15« 18.) 

990 SXAMIKATIOK, BTO. [b. 4, T. 18. 

k«pt in ironi , or confined, Bold, gare away, or bought a 
eitusen (whether freeman or freeman), or the Blare of 
another, waa by thiB law condemned to pay a money penalty, 
which the Conatitation afterwarda aumged into capitel 
poniBhrnent. ^ 

Q. Explain the laws Julia de JmbUu, BepeUtndarwit, de 
amuma, and de residuis f 

§ 11. A. The first puniahed thoee who endeayonred to 
oorrapt the voteB at popular elections ; bnt its proviBioiui 
became obsolete in Some when the Emperor himself filled 
up the yariooB offices; bnt in the provinces, where the 
eitiaens continued to elect the magistrates, it continued in 
force. The second (repetundarum) was made in Julius 
GiBsar's time, topunisn magistrates and judges for re- 
eeiving bribes. The third {de annona) was made to punish 
combinations to raise the price of prorisions. The fourth 
(fie residuis) was made to punish those who failed to ac- 
count for or embezzled the public moneys. 



^His species of guardianBhip, though omitted by Justinian, is 
explained by Gkdns. According to him (1. § 144), the old Romans 
bonsidered that women even S fhll age should be kept in tutela, 
on accoimt of the weakness of their understanding. It was only 
women siU juris, however, who needed this protection ; for the 
rest being dUeni Juris, were in the potestas A a pater-f., or the 
mawus of a husband, or in mancipio. Now tutors were nominated 
ifbr women by testament, by the law, or by a magistrate : 1. By 
testamewi ; when a pat6r-f. named one for his daughter or daughter- 
in-law in mawu filii-f. But in such cases it was an essential con- 
dition that the woman should be sui juris at the testator's death. 
Moreover, a husband might give his wife the right to select her 
own tutor: tutoris opHonemdo. 2. By the