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CAMBRIDGE UNIVERSITY PRESS

C. F. CLAY, MANAGER
LONDON : FETTEE LANE, E.G. 4

LONDON : STEVENS AND SONS, LTD.

119 and 120 Chancery Lane, W.C. 2
NEW YORK : THE MACMILLAN CO.
BOMBAY ^

CALCUTTA [ MACMILLAN AND CO., LTD.
MADRAS J
TORONTO : THE MACMILLAN CO. OF

CANADA, LTD.
TOKYO : MAEUZEN-KABUSHIKI-KAISHA

A TEXT-BOOK
OF KOMAN LAW

FROM

AUGUSTUS TO JUSTINIAN

W. W. BUCKLAND, M.A., F.B.A.,

OF THE INNER TEMPLE, BARRISTER-AT-LAW

REGIUS PROFESSOR OF CIVIL LAW IN THE

UNIVERSITY OF CAMBRIDGE, FELLOW

OF GONVILLE AND CAIUS COLLEGE

CAMBRIDGE

AT THE UNIVERSITY PRESS
1921

PREFACE

«~>.^r>«./%T>->/i.->4- o/-l/-»r^.ci/^ VVIT rioino onrl fr>llnw£>rl K\r T)i«tinian in

ERRATUM
p. 264, 1. 15 for post-classical read mainly late

of treatment can be quite satisfactory. The study of any branch of the
law calls for some knowledge of ideas which are to be looked for in other
branches. The law of Persons suffers least from this source of difficulty
and can therefore conveniently be studied first. But it is not quite free
from it : in particular, ideas connected with civil procedure are frequently
involved. This is the case throughout the law: in all systems, the
remedy is the root of the matter. Rules of Law do not enforce them-
selves, and a general idea of the system of remedies, of the steps to be
taken if a right is infringed, of the broad distinctions between the
different remedies for infringement of different kinds of right, and of
the nature of the relief which can be obtained, will be found greatlv to

O »/

facilitate the study of the substantive law. A very brief account of these
matters has been prefixed1 to the detailed account of the law of procedure,
and the student is advised to familiarise himself with this, before be-
ginning his systematic study of the book.

The subject treated is the law of the Empire — what is called the
classical law — with later developments, including the legislation of
Justinian. But the system elaborated by Labeo and his successors has
its roots in the past and is scarcely intelligible without some knowledge

\ Post §§ ccvi, covn.

•

Ih OnSAT 9RITAIN

PREFACE

THE following pages contain an attempt to state the main rules of
the Private Law of the Roman Empire for the use of students, and the
chief purpose of the writer has been to set out the established or accepted
doctrines. This consideration may be held to justify the arrangement of
the book. Much criticism, often well founded, has been directed at the
arrangement adopted by Gaius and followed by Justinian in his Institutes,
and many modern treatises adopt arrangements differing from it in im-
portant respects. But these arrangements differ so widely among them-
selves that it may fairly be assumed that none of them has such over-
whelming advantages as to make it desirable for the present purpose to
adopt it, in view of the fact that the texts to which the student is directed
adopt a different order. The general plan of the book therefore follows the
Institutional arrangement, though with no hesitation in abandoning it
where this course seems to tend to lucidity of exposition. In truth no order
of treatment can be quite satisfactory. The study of any branch of the
law calls for some knowledge of ideas which are to be looked for in other
branches. The law of Persons suffers least from this source of difficulty
and can therefore conveniently be studied first. But it is not quite free
from it : in particular, ideas connected with civil procedure are frequently
involved. This is the case throughout the law: in all systems, the
remedy is the root of the matter. Rules of Law do not enforce them-
selves, and a general idea of the system of remedies, of the steps to be
taken if a right is infringed, of the broad distinctions between the
different remedies for infringement of different kinds of right, and of
the nature of the relief which can be obtained, will be found greatly to
facilitate the study of the substantive law. A very brief account of these
matters has been prefixed1 to the detailed account of the law of procedure,
and the student is advised to familiarise himself with this, before be-
ginning his systematic study of the book.

1 Post §§ ccvi, covn.

vi PREFACE

of the earlier institutions on which it is based. These earlier institutions
are therefore taken into account, but are dealt with only in outline and
only in so far as knowledge of them seems to be essential to the main
purpose of the book.

The great constitutional changes which marked the foundation of
the Empire would not of themselves justify the adoption of that event
as the starting-point for a statement of the Private Law, but there are
other reasons for choosing this or perhaps the slightly earlier age of
Cicero. His writings give us the earliest contemporary account, from
a more or less legal point of view, of the system of Private Law. The
conquest of Greece was somewhat older, but the influence of Greek ideas
on Roman institutions was only now becoming important. The first idea
which this allusion brings to mind is the lus Naturale. It is borrowed
from Greek philosophy, but it does not appear that the expression was
in use among the lawyers till the time of Augustus. The expression ius
civile was in use, but in republican times it meant merely the unwritten
part of the law, the "common law" as opposed to that which had been
expressly enacted. The expression ius gentium is as old as Cicero, but
we do not know that it is older, and there is no evidence that it was as
yet used by lawyers to mark a sharp contrast with another system known
as the ius civile. The contrast of ius civile, ius gentium, ius naturale
belongs to the Empire. There is no trace of the conception of obligatio
naturalis among the lawyers of the Republic. But this new traffic in
ideas is only one indication of the rapid evolution of legal notions which
was now beginning. The complex law of manumission described by
Gaius is a very different matter from the simple system of the Republic.
Most of the family law is indeed more ancient, but while the main frame-
work of the Law of Property, even Equitable Ownership, is republican,
many parts of it (some of which seem to us indispensable) were un-
known to the Republic. Praedial servitudes were few in number, and
the personal servitudes, though some of them were extant, were not
thought of as servitudes : it is not quite clear how they were thought of,
or indeed whether they were "servitudes" till a much later date. There
was no such thing as acquisition of property by agent. In the law
of succession the praetorian changes had as yet gone a very little way
towards rationalisation of the system except so far as actual descendants
of a man were concerned. It was the early Imperial law which gave
something like due weight to the claims of a mother and invested the
praetorian will with real efficiency. The early history of the "real" and
"consensual" contracts is not certainly known, but it is not probable
that any of them were recognised very long before Cicero. The use of
stipulatio as a general form into which any undertaking might be cast

PREFACE vii

may perhaps be little older than the Empire, and it is at least possible
that mutuum, unsupported by either nexum or stipulatio, is unknown
as a contract to the earlier law. Most of the elaborate classification of
actions which plays so large a part in the later juristic writings was
the work of lawyers of the Empire.

These are changes in the broad institutions of the law, but still
more important is the new scientific spirit. Constructive activity on
the part of the lawyers was no new thing. Callus Aquilius, who added
so much to the law in the time of Cicero, had no doubt predecessors who
inspired a great part of the Edict, but there is no mistaking the new
creative impulse which appears with him and Quintus Mucius, and
Servius Sulpicius, perhaps the most important of the three, all con-
temporaries of Cicero. Nearly all the subtle distinctions and refinements
of the law, corresponding to the "case law" of our system, are the work
of the classical jurists, the earliest of whom were trained by these men.
That these refinements were introduced was not a misfortune: it was
a necessity. That the introduction occurred then was not an accident:
it was inevitable. Rome was now the capital of the civilised world, the
chief market for all commodities, including brains. Her conquests and
the peace she had imposed on the world led to a great increase of com-
merce of which she was the centre. The infinitely varying relations of
trade created innumerable questions which demanded solutions, and the
demand created the supply. From every quarter of the State men of
ability gravitated to Rome, and the legal profession, then, as always, an
avenue to political life, and having the additional advantage that it was
the only career which still preserved its independence, naturally attracted
a large proportion of them, many of them, perhaps the majority of the
most famous, coming from the remoter parts of the Empire. The system
elaborated by these men and modified by their successors is the primary
subject of the book.

The subject is the Law, not the history of the Law. But between
Labeo and Tribonian there elapsed more than 500 years, and through-
out this long period the law was changing, sometimes rapidly, sometimes
slowly, but always changing. Any attempt to state the law as a com-
plete single system without reference to its changes would give a mis-
leading result, and if this were remedied by historical footnotes there is
some danger that the book would be unreadable. The method adopted
therefore is that of a narrative treatment, in which, while the system,
as a system, is kept in view and forms the main framework of the book,
the historical development is also kept in view and the perspective dis-
torted as little as possible. Further, the subject is the Private Law and
little is said of such institutions as the Colonate and the privileged and

viii PREFACE

State-controlled trade corporations of later law1, of which, important as
they were in practice, the chief interest is social and political.

There are certain fundamental notions which find their application
in nearly all branches of the law, and which, for this reason, it is fre-
quently found convenient to treat once for all at the beginning of the
discussion. The field of these notions is indeed differently conceived by
different writers, but among typical matters may be mentioned the
effect of mistake, fraud, duress or impossibility on legal transactions, the
law of conditions, and of representation, the basis of legal obligation
and so forth. But, apart from the fact that many of these notions cannot
well be understood without some knowledge of the institutions to which
they can be applied, there is in Roman Law the further serious difficulty
that they are not handled in a uniform manner in different branches
of the law. The treatment of conditions is not the same in the Law of
Contract and in that of Wills. Even in the same branch of the Law
there are often two systems to be considered. The effect of mistake
or fraud is not the same in relation to Formal Transfers of Property
and in transfer by delivery, traditio. It is not the same in iure civili
contracts and in those iure gentium. The attempt to treat the law of
representation once for all is likely to lead to a cumbersome result, partly
because there was much change and partly because the change pro^
ceeded at different speeds, by different methods, and to different lengths
in different branches of the law. The general result is that brevity, which
is the main advantage to be derived from this mode of treatment, is not
really attained in the discussion of classical law, though it may be in
treatises on " Pandektenrecht. " from which the formal and iure civili
elements of the Roman Law have disappeared, and the various evolutions
are more or less complete. There is therefore no attempt at this mode of
treatment in the following pages.

On many points in the law, especially on its historical development,
there is much controversy. It has seemed undesirable, on the one hand,
to confuse the student by over much insistence on these doubtful points,
or, on the other, to leave him in the belief that matters are clear and
settled which are in fact obscure or disputed. There will therefore be
found many references to controverted questions, but discussion of them
is brief and, for the most part, relegated to the footnotes.

The question of the proper amount of detail has been found difficult.
To a writer on a subject of which the principles are well known and
settled, such as the English Law of Contract, the matter is easily dealt

1 An excellent account of both these matters can be seen in Cornil, Droit Remain,
Aperfu historique, pp. 506-519, a work which was not available till the greater part of
this book was in print.

PREFACE ix

with. Such details are selected as seem to the writer to illustrate the
principle under discussion, and the reader is sent, for further information,
to the Law Reports and the practitioners' textbooks. But the principles
of the classical Roman Law are not known in the same way. Much,
no doubt, is known, but scarcely a year passes without some new elucida-
tion of principle, some new point which compels reconsideration of a
hitherto accepted notion, and the starting-point in such cases is not
unfrequently some point of detail which had been regarded as quite
insignificant. In stating the common law for the student we start from
the principle and illustrate by detail, while there are many parts of
the Roman law in which it is not too much to say that we have not
really passed the stage of arriving at the principle by the study of detail.
There is always a danger of imposing on the reader for Roman Law what
is really a modern conception and for classical law what is byzantine.
It is difficult to say before hand what detail may prove illuminating,
and the state of the study seems to justify a rather freer use of detail
than would be necessary or convenient in a treatise on English Law.
But here too it has been possible to rely to a considerable extent on
footnotes.

Propositions of private law will be found to be, in general, supported
by references to the original texts, but in the Chapter on the "Sources
of the Law," since many of the rules stated are inferences from a large
number of documents, this was hardly practicable and thus reference is
frequently made only to authoritative modern writers. But the rest of
the book also is, as such a book must be, largely indebted to earlier
writers. Due acknowledgement is made in the footnotes, but more than
this is necessary in the case of the well-known "Manuel" of M. Girard.
It is impossible to estimate what the writer owes to this book, which he
has kept within reach for twenty years.

The book is also indebted to many friends of the writer, in particular
to Professor F. de Zulueta, of Oxford, who has read most of the proofs
and to the Master of Trinity Hall, who has seen several parts of the book
in manuscript, for countless hints and necessary corrections. Of the
helpfulness and care of the Secretary and Staff of the Cambridge Uni-
versity Press, it is hardly necessary to speak: this is so much a matter of
course.

W. W. B.

18 July 1921.

CONTENTS

PREFACE v

LIST OF BOOKS AND PERIODICALS CITED BY SHORT TITLE . xiii

CHAP. PAGE

I THE SOURCES OF THE LAW IN THE EMPIRE ... 1

II THE LAW OF PERSONS. LIBERTY AND CITIZENSHIP . 56

III THE LAW OF PERSONS (con/.). THE LAW OF THE FAMILY . 102

IV THE LAW OF PERSONS (con*.). THE LAW OF THE FAMILY

(cont.). PERSONS SUI IURIS 143

V THE LAW OF THINGS. RES. PROPERTY. POSSESSION.

IURE GENTIUM MODES OF ACQUISITION OF PROPERTY 182

VI THE LAW OF PROPERTY (cont.). IURE CIVILI MODES OF

ACQUISITION. SERVITUDES. AGENCY . . . .233

VII ACQUISITION PER UNIVERSITATEM. SUCCESSION BY WILL 281

VIII THE LAW OF WILLS (cont.). LEGACY, FIDEICOMMISSUM.

SOLDIER'S WILL. SETTLEMENTS 331

IX THE LAW OF SUCCESSION. INTESTACY. BONORUM POS-

SESSIO. SUCCESSION NOT ON DEATH 361

X THE LAW OF OBLIGATIONS. GENERAL NOTIONS. VERBAL

CONTRACTS. CONTRACTS LITERIS 403

XI OBLIGATIO (cont.). CONTRACTS RE. CONTRACTS CONSENSU.

INNOMINATE CONTRACTS 459

XII OBLIGATIO (cont.). PACTA. INCIDENTS OF CONTRACTUAL

OBLIGATION. QUASI-CONTRACT. EXTINCTION OF OBLI-
GATION. DELICT 524

XIII THE LAW OF PROCEDURE. LEGIS ACTIO. FORMULA.

COGNITIO 599

XIV THE LAW OF PROCEDURE (cont.). INCIDENTAL RULES OF

PROCEDURE 668

XV THE LAW OF PROCEDURE (con*.). PRAETORIAN REMEDIES. 712
INDEX 741

LIST OF BOOKS AND PERIODICALS CITED

BY A MUCH ABBREVIATED TITLE OR REQUIRING
AN INDICATION OF THE EDITION USED

Accarias, Precis: Precis de Droit Remain, C. Accarias, 4me Ed.

Affolter, Inst.: Das Institutionensystem.

Arcbiv f. c. Pr.: Archiv fur civilistische Praxis.

Bertolini, Obblig.: Le Obbligazione, Parte Speciale, G. Bertolini.

Beseler, Beitrage: Beitrage zur Kritik der Romischen Rechtsquellen, Gerh. Beseler.

Bethmann-Hollweg, C. P.: Der Romische Civilprozess, M. A. von Bethmann-Hollweg.

Bruns: Fontes luris Romani, ed. C. Bruns, Ed. 7a, ed. O. Gradenwitz.

Buckland, Slavery : Roman Law of Slavery, W. W. Buckland.

Bull.: Bullettino dell' Istituto di Diritto Romano.

Collinet, Etudes Hist.: Etudes historiques sur le droit de Justinien, E. Collinet.

Cornil, Aper9U historique: Droit Remain, Aper9U historique sommaire, G. Cornil.

Costa, Profile storico: Profile storico del Processo Civile Romano, E. Costa.

- Le Acque: Le Acque nel Diritto Romano, E. Costa.

- Storia: Storia del Diritto Romano Privato, E. Costa.

Cuq, Manuel (Man.): Manuel des Institutions juridiques des Remains, E. Cuq.

Daremberg et Saglio: Dictionnaire des Antiquites grecques et romaines, sous la direc-
tion de Ch. Daremberg et E. Saglio.

D.P.R.: Le Droit Public Remain, par Th. Mommsen, traduit par P. F. Girard.

Esmein, Mel.: Melanges d'histoire de droit, A. Esmein.

Et. Girard: Etudes d'histoire juridique, offertes a P. F. Girard, par ses Eleves.

Fitting, Alter und Folge: Alter und Folge der Schriften Romischer Juristen, von
Hadrian bis Alexander, H. Fitting, 2te Bearbeitung.

Gibbon (Bury): Decline and Fall of the Roman Empire, E. Gibbon, ed. J. B. Bury.

Girard, Manuel: Manuel elementaire de Droit Remain, P. F. Girard, 6me Ed.

- Melanges: Melanges de Droit Remain; Histoire des Sources, P. F. Girard.

- Org. Jud.: L'Organisation judiciaire des Remains, i, P. F. Girard.

- Textes: Textes de Droit Romain, P. F. Girard, 4me Ed.
Gott. Gel. Anzeigen: Gottingische gelehrte Anzeigen.

Heumann-Seckel : Heumanns Handlexicon in den Quellen des Romischen Rechts, 9te

Aufl. ed. E. Seckel.

Huschke: Jurisprudentia Anteiustiniana, P. E. Huschke, Ed. 5a.
Ihering, Geist: Geist des Romischen Recht, R. von Ihering.

Jobbe-Duval, Proc. Civ.: Etudes sur Phistoire de la Procedure, E. Jobbe-Duval.
Jeers, Rom. Rechtsw.: Romische Rechtswissenschaft der Republik, P. Joers.
Karlowa, C. P.: Der Romische Civilprozess, O. Karlowa.

- R. Rg. : Romische Rechtsgeschichte, O. Karlowa.

Keller- Wach, C. P.: Der Romische Civilprozess, F. L. von Keller, 6te Aufl., ed.

A. Wach.

Kipp, Gesch. d. Quellen: Geschichte der Quellen, Th. Kipp, 3te Aufl.
Krueger, Rom. Rechtsq.: Geschichte der Quellen und Litteratur des Romischen

Rechts, P. Krueger, 2'e Aufl.
Lenel, E. P.: Das Edictum Perpetuum, O. Lenel, 2te Aufl.

- Paling.: Palingenesia luris Civilis, O. Lenel.
L.Q.R.: Law Quarterly Review.

Marquardt, Privatl.: Privatleben der Romer, J. Marquardt.

xiv LIST OF BOOKS AND PERIODICALS CITED

Melanges Appleton: Melanges Ch. Appleton; etudes d'histoire du Droit, dediees a

M. Ch. Appleton.

Melanges Girard: Etudes de Droit Romain, dediees a P. F. Girard.
Mitteis, R. Pr.: Romisches Privatrecht, L. Mitteis, i.
Reichsr. und Volksr. : Reichsrecht und Volksrecht in den Ostlichen Provinzen,

L. Mitteis.
Momnisen, Ges. Schr.: Gesammelte Schriften, Th. Mommsen.

- Staatsr. : Romisches Staatsrecht, Th. Mommsen, 3te Aufl.

- Strafr.: Romisches Strafrecht, Th. Mommsen.

Moyle, Instt. lust. : Imperatoris lustiniani Institutionum Libri Quattuor, with com-
mentary, J. B. Moyle, 5th Ed.

- Sale: Contract of Sale in the Civil Law, J. B. Moyle.
N.R.H. : Nouvelle Revue Historique de Droit Fran£ais et Etranger.

Partsch, Neg. Gest.: Studien zur Negotiorum Gestio, i (Sitzungsberichte der Heidel-
berger Akad., 1913).

- Schriftformel : Die Schriftformel im Romischen Provinzialprozesse, J. Partsch.
Pauly-Wissowa : Paulys Real-Encyclopadie der Classischen Altertumswissenschaft,

Neue Bearbeitung. ed. G. Wissowa.
Puchta, Inst.: Cursus der Institutionen, G. F. Puchta.

Revue Gen.: Revue generate du droit, de la legislation et de la jurisprudence.
Riv. It. p. 1. Sc. Giu.: Rivista Italiana per le Scienze Giuridiche.
Roby, Introd. : Introduction to the study of Justinian's Digest, H. J. Roby.

- R.P.L.: Roman Private Law in the Times of Cicero and of the Antonines,
H. J. Roby.

Savigny, System: System des heutigen Romischen Rechts, F. K. von Savigny.

Sohm (Ledlie): Sohm's Institutes of Roman Law, translated by J. C. Ledlie, 2nd Ed.

Vangerow, Pand.: Lehrbuch der Pandekten, K. A. von Vangerow, 7te Aufl.

Van Wetter, Pand.: Pandectes, P. van Wetter.

Willems, D. P.: Droit Public Romain, P. Willems, 7me Ed.

Windscheid, Lehrb.: Lehrbuch des Pandektenrechts, B. Windscheid, 9te Aufl.

Z.S.S.: Zeitschrift der Savigny-Stiftung, Romanistisches Abteilung.

(References for Roman Juristic Sources are to the Berlin Stereotype edition of the
Corpus luris Civilis, to Mommsen's edition of the Codex Theodosianus and to Girard's
Textes. Any exceptions are noted at the reference.)

CHAPTER I
THE SOURCES OF THE LAW IN THE EMPIRE

I. Legislation in the Republic, p. 1; Comitia in early Republic, 2; II. Late Republic, 4;
Comitia, ib.; Senate, ib.; Praetor, 5; Augustus, 6; III. Leges in the Empire, 7; IV. Edicta
Magislraluum, 9; Julian's revision of the Edict, 10; V. Senatusconsulta, 13; VI. Principum
Placita, 16; VII. Edicts of the Emperor, 18; Decreta, 19; VIII. Rescripta, 20; IX. The
Jurists, 21; lus Respondendi, 23; X. The two Schools, 27; XI. The Juristic Literature, 28;
Gaius, 29; Julian, 30; Papinian, 31; Paul, ib. ; Ulpian, 32; XII. Cessation of great Jurists, 33 ;
Law of Citations, 34; XIII. Remains of Juristic Literature, 35; Barbarian Codes, 36;
XIV. Late Imperial Legislation, 38; Codex Gregorianus, ib.; Codex Hermogenianus, ib.;
Codex Theodosianus, 39; XV. Justinian's legislation, 40; First Code, ib. ; Digest, 41;
Arrangement, 42; XVI. Interpolations, 44; XVII. The Institutes, 46; The 50 Decisions,
ib. ; Codex Repetitae Praelectionis, 47 ; the Novellae Canstitutiones, ib. ; XVIII. Character
of Justinian's legislation, 48; Legal Education, 49; XIX. Organisation of the Empire, 50;
XX. Custom, lus civile, gentium, naturale, 52; lus Gentium and the Edict, 55; Aequitas, ib.

I. Though the history of the modes of formation of Law1 in earlier
Rome is outside the scope of this book, it is convenient to have an out-
line of the main facts before us in order the better to understand the
material with which Augustus had to deal in his reconstruction. The
story may be said to begin with the XII Tables. There are indeed
traditions of legislation by the more or less legendary kings2, of a col-
lection of these leges regiae issued by one Papirius about the time of the
foundation of the Republic3 and of a commentary on the lus Papirianum
by Granius Flaccus4, not long before the end of the Republic, and
there are what purport to be citations from these leges regiae by various
later writers, mostly non-legal5. But it is doubtful whether the leges
regiae are anything more than declarations of ancient custom. They are
largely of a sacral character, and in any case they play no important
part in later law. "The XII Tables are of vastly greater importance.
They were a comprehensive collection or code of rules framed by officers
called Decemviri, specially appointed for the purpose, perhaps in two
successive years, and superseding for the time being the ordinary
magistrates of the Republic. They were enacted as a Statute, or Statutes,
about 450 B.C.6 by the Comitia Centuriata, perhaps the first express

1 See Krueger, Rom. Rechtsquell. 3-82; Kipp, Gesch. d. Quellen, §§ 5-10. 2 Krueger,
op. cit. 3 sqq. 3 1. 2. 2. 36. The praenotnen of Papirius is variously stated. 4> 50. 16.
144. 5 The references are collected in Girard, Textes, 3 sqq.; Bruns, 1. 1 sqq. The great
majority are attributed to the earlier and certainly mythical kings. 6 On the sceptical
views sometimes expressed as to this early date and the story of the Decemviri generally,
see Girard, Melanges, 1 sqq.; Greenidge, Engl. Hist. Rev. 1905, 1.

B. R. L. 1

2 THE TWELVE TABLES [CH

legislation, in the Roman State, affecting the Private Law. They con-
sisted for the most part of ancient Latin custom, but there was some
innovation and apparent^ some incorporation of rules of Greek Law.
They have not survived in their original form, but have been partially
reconstructed from the numerous references to them in later legal and
lay writings, some of which purport to give the actual wording of particu-
lar rules, though in all cases this is in a much modernised form l. Though
they were in fact in great part superseded by later legislation long before
the end of the Republic, they continued to be held in great reverence.
Livy describes them as the "fans omnis publici privatique iuris2," and
citations and allusions are found even in Justinian's compilations.^ But
the XII Tables, comprehensive as they were, did not contain the whole
law. They stated general rules : the countless details, especially of form,
were left to be elucidated by officials. In early Rome, as in other nascent
civilisations, there was no great difference between religious and legal
rules and thus those to whom it fell to expound the laws and advise
thereon, and this not merely informally, but by virtue of their official
position, were priestly officials, the Pontiffs3. In this age it does not
appear that any authority was thought of as capable of altering the
provisions of the XII Tables : these were a fundamental law. But while
civilisation is advancing, the law cannot stand still, and in fact the
power of interpretatio and formulation placed in the hands of the
Pontiffs4 was in effect a power to alter the law, by ingenious interpreta-
tions, some of which we shall meet with later on5. There is not much to
be said for the logic of these interpretations, but there can be no doubt
of their utility.

Of express legislation there was, to the middle of the Republic, but
little, and what did occur was mainly on Constitutional matters6. Of
the various popular assemblies the oldest was the Comitia Curiata. This
was an assembly of the whole people, or rather of all heads of families,
grouped in 30 curiae, the curia being the voting unit. Each curia con-
sisted of a number of gentes, or clans, the members of which were con-
nected by a real or assumed relationship7. It is doubtful whether this
body ever exercised legislative power in the ordinary sense. Important

1 Of the various reconstructions that now most usually accepted may be seen in Girard,
Textes, 9 sqq., together with an account of the evidence on which the necessarily somewhat
speculative attribution of individual provisions to their proper Tabula is based. 2 Livy,
3. 34. 3 Krueger, op. cit. 27; Mommsen, Staatsr. 2. 18 sqq.; D.P.R. 3. 19 sqq. 4 See
the much discussed D. 1. 2. 2. 6 as to the relation of the pontiffs to the public. 5 E.g. post,
§§ XLVH, LXXXVII. 6 See Karlowa, Rom. Rg. 1. 116 sqq. 7 See Mommsen, Staatsr.
3. 9 sqq., 30 sq., 90 sqq.; D.P.R. 8 sqq., 32 sq., 98 sqq., as to the conception of a Gens, the
introduction and position of minor es gentes, the extension of the notion to plebeians and
the vote of these in the Comitia Curiata.

i] COMITIA CENTURIATA 3

as its functions1 were, they belong, in the main and apart from formali-
ties, to an age before legislation was thought of as an ordinary method
of law reform. The Comitia Centuriata was, in historical times, a
much more important body. The centuriate organisation, which was
existing, at the latest, soon after the foundation of the Republic, was a
grouping of the whole people, patrician and plebeian, as a military
force, on an arrangement attributed to Servius Tullius. The grouping
was into classes, subdivided into centuriae, and, when the body acted as
a political assembly, the voting unit was the centuria. The classes con-
sisted of one classis of Equites and five classes of Pedites2. The centuriae
within each class were divided into an equal number of Senior and
Junior, but the number of centuriae assigned to the Equites and the
prima classis amounted to more than half of the total number 3. As the
Senior centuries were in the main employed in home defence, this
arrangement put the practical voting power, in this assembly, into the
hands of the older and the well-to-do, a result not seriously affected by
the fact that the very poor, not subject to regular military service at
all, were constituted into one centuria for voting purposes4. As the total
number was 193, this gave them no real power, but it served to secure
an odd number of voters. Such a body was necessarily conservative,
and it must also be remembered that it could vote only on propositions
submitted by the presiding magistrate, who in the earlier part of the
Republic was always a patrician, that it was usual, if not legally neces-
sary, to submit the proposal for the previous approval of the Senate5,
and that in addition a lex of the centuriae required auctoritas patrum,
which is commonly supposed to mean approval of the patrician members
of the Senate6. This approval which had formerly followed enactment
by the comitia was made to precede the vote by a lex Publilia Philonis 7,
traditionally dated 339 B.C., and soon became unimportant. A con-
siderable amount of legislation seems to have been effected by the
Comitia Centuriata, the Comitia Maxima8. A third assembly of the whole
people was the Comitia Tributa. The voting unit of this body was the
tribus, a subdivision, essentially local, of the whole territory of the
State. Tradition assigns the establishment of these local tribes to
Servius Tullius, the number increasing as the State grew, till it reached

1 See Willems, Droit Public Romain, 36 sqq. 2 Originally only the highest group

was a classis, the others were infra classem, but in historic times the organisation was as
stated in the text. See Mommsen, Staatsr. 3. 262 sqq. ; D.P.R. 6. 1. 297 sqq. 3 Mommsen,
Staatsr. 3. 254, 267; D.P.R. 6. 1. 288, 302. 4 Proletarii, capite censi. The chief authorities
are Livy, 1. 43 and Dion. Halic. 4. 20 sqq. The accounts do not agree in detail, and
historical evolution is obscured. The provision for an odd number of votes seems to have
been observed in the gradual extensions of the Tributal system (below). 5 Mommsen,
op. cit. 3. 1037 sqq.; D.P.R. 7. 236 sqq. 6 Ibid. 7 Livy, 8. 12. 8 Gic. de legg.
3. 4. 12; Girard, Textes, 20.

1—2

4 LEGES IN LATE REPUBLIC [CH.

the maximum, 35, about 240 B.C.1 This body seems to have had the
power of legislation very soon after the enactment of the XII Tables2,
but there do not seem to have been many leges tributae in the earlier
part of the republic. As in the case of the Comitia Centuriata, the pro-
posal by the presiding magistrate was usually submitted for the previous
approval of the Senate, and auctoritas patrum was required3.

II. In the later Republic the law had become secularised. The Ponti-
ficate having been thrown open to plebeians 4, the control of the Pontiffs
over legal development lost its old value to the patricians as a weapon
against plebeian aggression, and with the gradual passing of power into
the hands of the plebeians the pontiffs practically disappeared as factors
in the development of the ordinary law. Their place as advisers and ex-
pounders was taken by professed jurists whose action was entirely un-
official, but who as advisers to magistrates, as well as to private persons,
exercised great influence and became very prominent figures in the
later centuries of the Republic5. Little of the writings of these veteres
remains6, but it was the beginning of a rich literature to which we owe
the greater part of our knowledge of the Roman Law.

Legislation by the Comitia now covered a rather wider field but it
still remained a relatively unimportant source of private law. The
Comitia Centuriata legislated little7: its most important influence on the
law was exercised by its appointment of the higher magistrates. Legis-
lation was carried on to some extent by the Comitia Tributa and in an
increasing degree by the assembly of the plebs alone, concilium plebis8,
which, in historical times, was also based on the tributal organisation.
This assembly, presided over by a tribune of the plebs, was active from
early times and there was early legislation on constitutional questions, en-
acted by that body and approved by the Senate, which was regarded as
binding on the whole community9. Its enactments, properly called
plebiscita, were often called, as binding the whole community, leges,
though in strictness this name does not cover any rogationes except
those in a comitia, i.e. of the populus. They never needed auctoritas

1 Mommsen, op. cit. 3. 161 sqq. ; D.P.E. 6. 1. 180 sqq. 2 As to the confused story
of the validation of leges tributae and plebiscites by the I. Valeria Horatia (449 B.C.), I.
Publilia Philonis (339 B.C.) and I. Hortensia (about 287 B.C.) see Mommsen, Staatsr. 3. 1037
sqq.; D.P.R. 1. 236 sqq.; Kipp, Gesch. der Quellen, § 6, n. 5, and the literature there cited.
3 Mommsen, op. cit. 3. 1040; D.P.R. 1. 240. 4 According to Livy, 10. 6, by a
I. Ogulnia, 300 B.C. Tiberius Coruncanius, the first plebeian Pontifex Maximus was also
the first public teacher of law, D. 1.2. 2. 38. 5 Jors, Rom. Rechtswissenschafl, 1. ch. 2.
§§ 18-25, especially 24. 6 See Bremer, Jurisprudentia Antehadriana, vol. 1. 7 Thus
difficulties from concurrent powers were avoided. In any case they would be lessened by
the reference to the Senate, and by the reorganisation of the C. Centuriata which to an
extent not fully known assimilated it to the Com. Tributa, Mommsen, op. cit. 3. 270;
D.P.R. 6. 1. 304 sqq. 8 Mommsen, op. cit. 3. 150 sqq.; D.P.R. 6. 1. 166 sqq. 9 E.g.,
lex Icilia, 456 B.C. ; lex Canuleia, 444 B.C.

i] THE PRAETOR'S EDICT 5

patrum, but as above stated they did not bind any but plebeians unless
previously approved by the Senate. This requirement seems however
to have been abolished by the I. Hortensia, itself a plebiscite, about
287 B.C.1 It is probable that most of the later legislation was by this
body, though the recorded story does not clearly distinguish its acts
from those of the Comitia Tributa.

It will be seen that the Senate had an important share in legislation :
it had indeed much more than has been stated. But, though it issued
administrative decrees, some of them very like laws2, but essentially
instructions or advice to officials, any account of its earlier activities in
this field will more conveniently be given in connexion with the story
of its acquisition of legislative power in the Empire3.

The most important new factor in the late Republic remains to be
stated. All the Roman magistrates had the right to issue edicts, ius
edicendi*, but while the Edicts of the Ciirule Aediles were of some im-
portance in certain branches of the law5, those of the Urban and Pere-
grine Praetors and the Provincial Governors, who administered justice
respectively between cives in Italy, in cases in Italy6 in which those with-
out commercium were concerned (peregrini7) and in the Provinces, were
far more significant in legal history. The edict of the Praetor Urbanus
was in fact by far the most potent instrument of law reform in the last
century of the Republic.

The control of litigation, iurisdictio, was transferred from the Con-
suls to the newly created Praetor by one of the Licinian Rogations in
367 B.C.8 While litigation was conducted by the ancient system of
legis actio, this meant, probably, little but formal and almost minis-
terial co-operation9. But the /. Aebutia of about 140 B.C., authorising
the use, instead of the legis actio, of the more elastic formulae framed by
the Praetor himself and variable as need arose, resulted in a great change
in the position of the magistrate. He was now found refusing actions
where civil law gave them, giving them where it did not, creating new
defences and so forth. By this means he introduced, side by side with
civil law rights and duties, another system, technically, and in some
cases practically, less effective than civil law rights and duties, but in

1 Mommsen, op. cit. 3. 159; D.P.R. 6. 1. 178. 2 See for surviving instances, Girard,
Textes, 129, 130. 3 Post, § v. 4 Not the Quaestors, Mommsen, op. cit. 1. 203;
D.P.R. 1. 231. 5 Post, §§ CLXXII, ccv. 6 Both praetors sat at Rome, but both had
jurisdiction over all cases except so far as local jurisdictions were created or recognised.
Of these the most prominent was that of the provincial governors. But in the cities of
various kinds in Italy there were many local jurisdictions which more or less excluded the
Court at Rome. As to these see Girard, Org. Jud. 1. 272 sqq. 7 Post, § xxxvi. 8 Livy,
6. 42; Mommsen, op. cit. 2. 193; D.P.R. 3. 221. 9 His powers under this regime are
much disputed, see post, §§ ccvn, ccxrv.

6 AUGUSTUS [CH.

the end completely transforming the working of the law1. How far
this change resulted directly from the lex, the exact provisions of which
are not recorded2, is not very clear. But as the Praetor's edict remained
in force only for his year of office, and could be changed by his successor,
so that a rule which worked badly could be stopped and one which worked
well carried on3, it is likely that it was in great part an aggression
accepted by the Senate and the people as being a convenient form of
experimental legislation, all the more so since the comitia, nominally an
assembly of the whole people could not adequately represent a popula-
tion scattered over all Western Europe, and was in fact little more than
the Roman mob.

When, after a long period of exhausting civil war, Augustus became
undisputed master of Rome it was clear to him that the first great need
of the State was reorganisation and good administration. It was clear
also that the old republican methods, already in decay before the civil
wars, could not really be revived. The State had outgrown them and it
was their inefficiency under modern conditions which had rendered
possible the domination of one man after another which culminated in
the Dictatorship of Caesar. But though these institutions could not be
restored, the pious reverence for them which still existed made them
convenient instruments for him in his reconstruction. The history of the
previous 150 years had shewn that avowed despotism, however well
meant, gave no promise of stability. Thus his course was marked out
for him. He was a conservative wherever conservatism was possible4.
One of his earliest acts was one of the most significant. The Triumvirate
(of which he had been a member), whose regime had ended in collapse
and civil war, had received full legislative power. This Augustus re-
nounced and restored to the popular assembly in which it was tradition-
ally vested5. On the other hand he claimed and received the fullest
magisterial authority. He had tribunicia potestas6 in Rome and procon-
sular power through the empire. And, since power for a year only was
of little use to the founder of a new political system, and had shewn its
unsuitability to existing conditions, he had these powers conferred on
him for life, though this was hardly more consistent with true republican
notions than supreme legislative power would have been.

1 The effects of his changes are seen in almost every branch of the law ; see Jors, op.
cit. 158 sqq. 2 Post, § ccxiv. 3 His edict for his year is E. perpetuum, special edicts
for temporary purposes are E. repentina (Cicero, Verr. 2. 3. 14. 36, not official). A pro-
vision carried on from the last praetor is E. praelatum as opposed to E. novum. That
part habitually carried on is E. tralatitium. 4 Heitland, Shorter Hist, of the Rom.

Repub. 508. For a study of the policy of Augustus, see Id., Hist, of Rom. Repub. 3. 509 sqqi
5 See on all these matters, Mommsen, op. cit. 2. 745-800; D.P.R. 5. 1 sqq. 6 He is

not Tribune, though he has the powers. The ordinary tribunes continue with dwindling
powers.

x] LEGES IN THE EMPIRE 7

III. We have now to consider the different Sources of Law in the
Empire, beginning with those which survived from the Republic.

LEGES. Enactments of the popular assembly1. The surviving records
tell us of many leges, but these are spread over 500 years and are not
numerous enough to suggest that they were ever a main source of private
law2. This view is confirmed by a study of their subject-matter. Apart
from the XII Tables the earlier republican leges are constitutional3 and
though in the later republic their field is wider, still most of them deal
with matters closely connected with public order4, and the same is
true of those enacted after the accession of Augustus5. There are many
in his reign, several under Tiberius, one or two under Claudius and one
under Nerva6. After this the only lex lota we hear of is the lex de imperio,
conferring his various powers on a new emperor ; the part of the Comitia
being merely formal 7.

It must not be supposed that the legislation of this period was in
any real sense legislation by a popular legislative body. The Emperor
restored the legislative power not because he wished the people to make
their own laws, but because he desired to make use of what reverence
existed for the ancient institution in order to give effect to his own wishes,
along the line of least resistance. No one knew better than Augustus
that the Comitia were quite unfit to exercise legislative power. It must
however be remembered that these bodies had never at any time had a

\ LI. latae, as opposed to II. datae, imposed by a magistrate duly authorised on a com-
munity under his charge, and II. dictae. a name sometimes applied to laws laid down for
private domains of the Emperor. 2 As to mode of promulgation of II. and sec. see
Mommsen, Ges. Schrifl. (Jur.) 3. 290. Ulp. (Reg. 1) classifies II. under three heads: A
I. perfects annuls the act forbidden; most of the later leges are of this type. A I. minus
quam perfecta inflicts a penalty but leaves the act valid, e.g. the 1. Furia Testamentaria
(G. 4. 23; post, § cxix) and the I. Marcia (G. ib.). A I. imperfecta merely forbids the act,
e.g., I. Cincia (Fr. Vat. 266 sqq. ; post, § xci), the prohibition in this case being made
effective by an exceptio, if it is sought to enforce the forbidden obligatio. It is suggested
that earlier legislation takes this form because it is by way of plebiscite, and thus can
not alter the civil law, the fact that it is later than the /. Hortensia being explained as
meaning only that an old form has survived its purpose. This would be more weighty if
we had II. centuriatae perfectae between the XII Tables and the I. Hortensia. Another
view suggested by a text of Ulpian (24. 2. 11. pr.) is that legislation could not directly
affect an act formally valid in the civil law, to which Mitteis objects (R.Pr. 1. 247) that it
is little more than giving the rule as a reason for itself. But the notion of fundamental legal
principles which a legislator cannot alter is very general. 3 Even I. Canuleia (444 B.C.,

post, § XLI). 4 E.g. the long series of statutes establishing procedure in criminal
law (see Mommsen, Strafr. 202 sqq.), those regulating remedies against debtors, the old
order having caused grave public danger, those regulating civil procedure (post, §§ CL,
ccxiv), in effect a successful revolt against the old patrician order of things. 5 E.g.

laws on manumission (post, § xxvui), and laws dealing with the encouragement of
marriage (post, §§ cm, cxi, cxxxiv). 6 A I. agraria (47. 21. 3. 1). See Krueger, Rom.
Rechtsq. 89. 7 Bruns, 1. 202; Girard, Textes, 107. It may have been a senatusconsult
confirmed by a lex. Mommsen, Staatsrecht, 2. 878 sqq.; D.P.R. 5. 154.

8 LEGES IN THE EMPIRE [CH.

right to initiate legislation. They voted only on a proposal submitted
by the presiding magistrate, on whom therefore all depended. By
virtue of his permanent tribunicia potestas the Emperor could convoke
the plebeian assembly and submit proposals to them, and there is no
doubt that the more important leges of this time were so voted. When,
as was sometimes the case, he held the Consulship he could do the same
with the centuries, but the people in their centurial organisation do not
seem to have legislated, at any rate in this age. When he restored to
the Comitia their legislative power, he restored also the power of choosing
the magistrates, which, also, had been conferred on the Triumvirate.
And this was not a question of submitting a nominee to the vote, so
that the worst that could happen would be his rejection : the Comitia
could choose whom they would. This would clearly not have suited
Augustus, and accordingly, in his reconstruction, when he abandoned
the power of election he provided that he should have the right of
deciding whether a particular candidate was eligible and of commending
particular candidates, which was equivalent to a direction to choose
him, and was so understood. The result was that he completely controlled
the magistracy and thereby the submission of proposals of law to the
Assembly1. Very soon the security was carried further. Tiberius trans-
ferred the selection of magistrates to the Senate2, which by this time
consisted entirely of the Emperor's nominees. Thus the positive part of
the people in legislation was very unreal. But if they could not choose
what they would consider, they could at least choose what they would
refuse, and this power they exercised. WTe know that they refused, for
many successive years3, to pass the comprehensive legislation on
marriage which ultimately took effect in the I. lulia de maritandis
ordinibus and the I. Papia Poppaea*.

These leges seem to have all been enactments of the Tributal As-
sembly5, and to have been submitted by or for the Emperor by virtue
of his tribunicia potestas : there is no trace of any legislative proposals
by the actual Tribuni plebis. Though the centuries still met in the
Comitia Centuriata their power was confined to the election of magis-
trates, and even this, as we have seen, they lost under Tiberius. They
still continued to issue a formal renunciatio of the name of the person
elected till the third century, when the Comitia disappeared altogether6.

1 Mommsen, Staatsrecht, 2. 916; D.P.R. 5. 198. 2 Tacitus, Ann. 1. 15. 3 See
Karlowa, R.Rg. 1. 617. 4 Post, §§ cm, cxi, cxxxiv. 5 As to the machinery of voting
see Mommsen, Staatsr. 3. 380 sqq.; D.P.R. 6. 1. 437 sqq. 6 76. p. 348; D.P.R. 6. 1. 397.
In other matters the power of the Comitia was much cut down by Augustus. He took
into his own hands foreign relations: the making of war and treaties (see Willems, Droit
Public Romain, 418 sqq., and the lex curiata de imperio Vespasiani, Girard, Textes, 107;
Bruns, 1. 202). So too he removed the little that was left of criminal jurisdiction in the

i] EDICT A MAGISTRATUUM 9

IV. En IOTA of the Magistrates1. Among the attributes of the
Emperor was of course a ius edicendi, which will be considered later :
for the present we are concerned with the older Edicts of the republican
magistrates.

The re-establishment, rin form, of republican institutions, which was,
as we have seen, part of the scheme of Augustus, meant that the ius
edicendi of the magistrates continued unaltered, and the edicts of the
Urban and of the Peregrine Praetor, that of the Aediles and the Pro-
vincial Edicts continued to appear for some centuries. As to the Pro-
vincial Edicts it is to be remembered that Augustus divided the provinces
into two groups. One group, the Senatorian provinces, were governed
by republican magistrates and ex-magistrates in the old way, but all
provinces of military importance, and all newly acquired provinces,
were kept under the direct control of the Princeps, and put in charge of
new imperial officers called Legati Caesaris, with the powers of Praetor
(pro praetore), who held office as it seems at the will of the Emperor, and
often for many years, being regarded as representatives of the Emperor
rather than as independent magistrates2. They issued edicts in the ordi-
nary way except that it appears that in these provinces the edict of the
aediles was not issued3, and it may be, though the point is uncertain,
that its principles were not applied.

But though the Edicts still issued, they were of less importance as
sources of new law. Already in the Republic the pace of reform by this
method had begun to slacken. The new Praetor tended simply to carry
on the old edict. New clauses were few, so that the Edict tended to be
wholly praelatum, carried on from the former Praetor, and, indeed, as
many clauses had long been, tralatitium, traditional, regularly carried
forward4. This tendency is accentuated, as might be expected, under the
new regime. Such changes as do occur appear to be of three types.
First, obsolete clauses drop out. Secondly, existing clauses are from time
to time modified as occasion requires. We can, for instance, trace this
process in the case of the interdict unde vi5, and in the Edict of the Aediles
as to defects in things sold6. Thirdly, new clauses are added. It is in
relation to these that the change in legislative method is most obvious,
for, in no single case, so far as is known, is any new clause added on the
initiative of the Praetor himself. In every case the change made is
merely provision in the edict of machinery for giving effect to changes

Comitia and transferred it to Quaestiones perpetuae, though the Senatorian jurisdiction which
soon came into existence overshadowed this. Mommsen, Staatsr. 2. 958; D.P.R. 5. "24<>.

1 Gai. 1. 6. 2 Mommsen, Staatsr. 2. 1087 sqq.; D.P.R. 5. 395 sqq. 3 Gai. ib.

4 But the edict does not lose its importance: the latest jurists speak of the ius fiono-
rarium as the "viva vox iuris civilis," 1. 1. 8. 5 See Lenel, Ed. Perp. 445 and post,
§ CCXLIX. 6 Lenel, op. cit. 530.

10 EDICT A MAGISTRATUUM [CH.

in the law made by other agencies1. Thus the lex Papia Poppaea, in
regulating the law of succession for the encouragement of marriage, gave
in certain cases bonorum possessio2, the praetorian right of succession,
instead of the civil law right, hereditas. Why this was done we need not
consider, but it resulted in a new clause in the Edict, promising bonorum
possessio wherever a statute required it3. When fideicommissa, bequests
in trust, were recognised, the ordinary Praetor had nothing to do with
them : they were administered by a new officer, the Praetor fideicommis-
sarius*. But when the sc. Trebellianum enacted that where a hereditas
had been handed over under such a trust, all the actions that lay at
civil law to and against the heres should lie to and against the fidei-
commissarius,ihis brought the matter into the Praetor's sphere -.formulae
were provided, in the Edict, of actiones fictitiae for this case5, but, it must
be remembered, there was no edict about them. The sc. Macedonianum
forbidding loans to filiifamilias, and the sc. Velleianum, forbidding surety
by women were made effective by suitable provisions in the Edict6.

It should be added that new magistrates with special functions
created by the Emperor for various purposes, with the name of Praetor,
e.g., Praetor fideicommissarius just mentioned, tutelaris1 and de liberalibus
causis8 never acquired the right of issuing Edicts : it was no part of the
imperial scheme to extend praetorian institutions.

The next step in the history of the Edict is Julian's revision of it.
Soon after 125 A.D. Hadrian ordered Julian to put the Edict into per-
manent form, a death-blow, as it was intended to be, to all further
praetorian initiative. Practically all we know of his instructions is
what Justinian tells us 400 years later9, for Pomponius' account stops
short of this event. The new Edict received statutory force by a Senatus-
consult10, and that Julian's work on the Edict was traditionally regarded
as of great importance appears from the fact that he is repeatedly spoken
of as compositor, conditor and ordinator of the Edict11. We have now to
consider what is known as to what he actually did.

1 See Karlowa, R.Rg. 1. 629. 2 See, e.g., Gai. 3. 50. 3 D. 38. 14. 4 Inst. 2.
23. 1. 5 Gai. 2. 253. The various ancillary protections which the edict provided for

legatees were gradually extended to fideicommissa, but it is likely, as Lenel holds (op. cil.
356) that this was done by juristic practice and not by edict. 6 14. 6. 11; 16. 1. 6;
Karlowa, loc. cit., thinks that when the I. Aelia Sentia prevented slaves freed under 30
from being citizens, there must have been an alteration in the edict bringing them under the
clause protecting those informally freed (post, § xxvn). But we do not know the form of
that clause, and it may have been wide enough (such clauses were usually in very general
terms) to cover them. Further it is not impossible that the /. lunia, which gave such
persons the legal status of Latins, may have been already passed (post, § xxvrn) so that
the clause in the edict was already obsolete. In any case such a clause must have had a
very short life. 7 26. 1. 6. 2, post, § LIII. 8 C. 4. 56. 1. 9 Const. "Tanta," 18.
10 Ibid. 11 See the references in Krueger, Bom. Rechtsq. 94; Girard, Melanges, 200.

i] EDICT A MAGISTRATUUM 11

(a) The Urban Edict. In the first place it seems that he added little.
Only one new clause is known and it is called nova clausula of Julian l.
"A" new clause is not necessarily "the" new clause, but the language
suggests that Julian was not active in this direction. It has been made
clear, further, by Lenel, and by very ingenious researches of Girard,
that he did not alter materially the general order of the Edict2. No
doubt there was a good deal of refining and restating of individual rules,
but that leaves little trace. It is indeed in relation to the formulae of
actions that Julian seems to have done most. In the Edict before his
time all the various formulae were in an appendix at the end. There
were other appendixes, i.e. the interdicts, the exceptiones and the
stipulations praetoriae, which he left where they were. But he dealt
differently with the formulae. Under each edict, or, in some cases,
group of edicts, he put the appropriate formulae, and, following these,
usually, the formulae for the civil actions connected with the same matter.
Thus the Publician edict was followed by the formula for the actio
Publiciana3 and this by the formulae for claims of civil ownership and
the like. There was of course no edict relative to these or any other civil
remedy4.

The Edict was divided into a number of titles with separate rubrics
under which there was an edict or group of edicts. There is no trace of
any division into express main parts, and the question what was the
principle of its main arrangement is too controversial for us to consider
in detail. Lenel holds5 that it was essentially in four parts with the three
appendixes. The first part dealt with the initiation of litigation up to
the issue of the formula, the fourth with matters subsequent to judg-
ment. The three appendixes were in the order in which they would come
into question in litigation. As to the second and third parts he is less
certain, but he considers that the second part was concerned with
litigation in the ordinary form before a single index, while the third was
concerned with other forms, especially the recuperatory procedure6.
Each contained matters which will not fit into this scheme. These he
explains as cases of attraction : matters of which the chief aspects con-
cerned, e.g., the third section, appeared there, even though subsidiary
parts of them belonged to the second. But all this is somewhat uncertain.

(b) The other Edicts. It is clear that Julian's task covered them all,
but it is also clear that he did not, as is sometimes said, incorporate
them all in one document, for there is evidence of their continued
existence in a separate form. Even the Edict of the Aediles, though the
jurists commented on it as a sort of appendix to the Praetor's Edict, does

1 37. 8. 3. 2 Lenel, E.P. 18; Girard, Melanges, 111 sqq. 3 Post, § LXX.

4 Girard, Melanges, 300 sqq. 5 Op. cit. 14. 6 Post, § ccxvn.

12 EDICTA MAGISTRATUUM [CH.

not seem to have been such in fact l. Gains still treats it as a separate
document2. So too the Peregrine Edict still existed. Gaius wrote a
commentary on the Urban Edict which seems to shew that there were
still two3, though the difference would not be great. Little indeed is
heard of the Peregrine Edict afterwards, a result no doubt of Caracalla's
edict on civitas*. Similarly the Provincial Edict continued : Gaius wrote
a commentary on it5. But it is an unsolved question whether, after
Julian, there was one general Edictum Provinciale, applicable in all Pro-
vinces, with such special clauses as local circumstances might require, or,
as there formerly had been, a separate edict for each Province. In any
case, the different Edicts would be much alike.

The immediate effect of the revision or codification was to put an
end to the Edict as a source of new law, for we are told that Hadrian
provided that if experience shewed a need for further changes, these
were to be made not by the magistrate, but by imperialis sanctio*, which
seems to mean not merely by authority of the Emperor, but by imperial
enactment, so that the Edict was fixed for ever. Even if the text were
taken in the other sense it would still remain true that the Edict could
not in future initiate changes, but only register them. In fact however
though there have been attempts to find new clauses added after Julian's
time, none of them has resisted criticism 7. The Edict so settled was con-
firmed by a Senatusconsult which bound the magistrates to follow it8,
and may be said to have given it the force of law9. The Edicts were still
issued by the various magistrates on entry on office, though they had
now no control over the content. They may have lasted as long as the
offices did, i.e. for the Peregrine Praetor till the third century, and for
Urban Praetors and Provincial Governors till the fourth.

1 Karlowa maintains (R.Rg. 1. 631) that it was henceforward an appendix to the
praetor's edict, but the remark of Justinian which he cites in support of this view (Const.
"Omnem," 4) is more usually held to refer merely to its inclusion in the commentaries.
2 Gai. 1.6. 3 See, e.g., 28. 5. 32. 4 Post, § xxxvn. 5 See, e.g., 28. 5. 31. 6 Const.
"Tanta," 18. 7 Many utiles actiones and the like were invented by the great lawyers,

after this time, so that much of what would have been edictal law in earlier days came in
without express legislative authority at all. Whether the formulae were added to the edict
we do not know. 8 Const. ' ' Tanta" 18. 9 Girard (Manuel, 53) thinks it in-

accurate to say that it had "force de 1m" since this would have ended the distinction
between ius honorarium and civile, which nevertheless remained till the time of Justinian.
But the proposition may be understood as expressing the fact that the rules were now binding
on all persons until repealed, like any other law, which was not true of the old edict, which
lapsed in a year. The fact that the machinery remained distinct is immaterial : it was equally
true for another century of all rules enforced by cognitio extraordinaria. It was still a
distinct branch of the law, established by sc. which by that time had the force of law.
The I. Papia Poppaea was not less a statute because it created Bonorum Possessio for
certain cases and this was enforced by praetorian machinery. It was only by giving
civil remedies where there were praetorian rights that Justinian fused the systems and
this was done only imperfectly.

!j SENATUSCONSULTA 13

V. SENATUSCONSULTA. The Senate of the Republic had no legislative
authority, but the course of events early in the empire cannot be under-
stood without some knowledge of the part played by the Senate in
earlier days in this sphere. Throughout the later republic the Senate
became more and more the real governing body of the State1. The /.
Ovinia2, which filled it with ex-magistrates, greatly increased its weight,
and few magistrates cared to enter on a struggle with such a body. In
the bad days which preceded the empire it was the only body which
had any real stability. The starting-point of its legislative power was
the fact that it had long been the body whose function it was to direct
the magistrates. There are indeed many senatusconsulta of republican
times3, some of which look like laws, but, if carefully looked at, are seen
to be merely directions to magistrates to act in particular ways and in
particular to lay down certain rules in edicts. At first they are merely
requests, probably only in form, and we must not forget that the name
Senatusconsulta is best suited to orders which had of themselves no
binding force. The later ones are more obviously directions, but it is
still true that it is the magistrate, the officer of the Senate, who actually
lays down the rule4.

Another point to note is that in early times all projects of law were
first approved by the Senate and had, after enactment, to be approved
by the patres (auctoritas patrum) before they became law. It is not
necessary to go into the confused story of the disappearance of these
requirements as matter of law5 : the important point for us is that there
is good evidence that this consultation of the Senate continually occurred
as a fact in the later republic6. Further, the Senate could declare any
law invalid for defect of formality or disregard of auspices7. It had
also the power of dispensing from or suspending laws in urgent cases,
i.e. of directing a magistrate not to apply a given law in a certain case
or for a time. This required confirmation by the Comitia as soon as
possible after the fact, but by 150 B.C. it seems to have been freely done
without this confirmation. In the last half-century of the republic the
restriction of urgency disappeared in practice. An attempt was made
to get rid of the power, but it led only to a lex of about 66 B.C., which
confirmed it, requiring, however, the presence of at least 200 senators
and a subsequent vote of the assembly 8. It could issue orders in relation
to those branches of administration which were under its care, notably

1 Mommsen, Staatsr. 3. 1024 sq.; D.P.R. 7. 219. 2 Festus, s.v. Procter iti (senatores).
See Willems, Droit Publ. Rom. 185 sqq. 3 Girard, Textes, 129 sqq.; Bruns, 1. 164 8qq.
4, See Kipp, Gesch. der Quellen, 62. 5 Mommsen, Staatsr. 3. 1037 sqq.; D.P.R. 236 sqq.
6 Mommsen, Staatsr. 3. 1045; D.P.R. 7. 243. 7 Willems, Droit Pub. 157, 185.

8 Willems, Le Stnat Rornain, 2. 118.

14 SENATUSCONSULTA [en.

in foreign relations, the distribution of provinciae among magistrates,
and the supervision of religious organisations so far as their functions
concerned the State. In the late republic it could relax the rules of pro-
cedure for the Comitia or for itself: it could give exemptions from foreign
service, and authorise triumphs1.

All this shews a good foundation for the acquisition of legislative
power which occurred soon after the founding of the empire.

We have seen that Augustus sought to galvanise the Comitia, for his
own purposes : he did precisely the same for the Senate, an easier task
since that body had not so utterly decayed. It was not his plan that the
Senate should have any real power. As a part of his reorganisation he
fixed its numbers at 600. The membership was to be revised annually
and, when he held the office of Censor, the Emperor nominated to all
vacancies2: under Domitian and after, indeed, he nominated always3.
As Princeps Senatus he had the right to preside, and the Senate, like
other bodies, could consider only what was submitted to it by its
president. It could be no more than a mouthpiece of the Emperor. The
power of making general senatusconsulta with the force of laws was
never actually conferred on the Senate. Some texts which have been
cited as attributing the conferment to various persons do not for the
most part deal with the point at all4. Theophilus, writing in the sixth
century attributes the change to the /. Hortensia5, but no weight attaches
to this. The true account is to be found in the jurists. Pomponius
treats it as an inevitable outcome of the decay of the comitia*. Gaius
shews that there had been disputes as to the existence of the power7,
which indicates a gradual growth. It was a gradual usurpation encour-
aged by the Emperor for obvious reasons, and it seems clear that the
starting-point was the old directions to magistrates. Nearly all the
senatusconsulta of the first half-century of the empire were really
directions to magistrates. Thus the well-known sec. Velleianum and
Macedonianum 8 operated as directions to the Praetor to insert exceptiones
in his Edict. Others were mere extensions and interpretations of existing
laws, e.g. those under the I. Fufia Caninia9. It is possible that the right
was not fully recognised until the Comitia had quite ceased to legislate,

1 Willems, D.P. 185 sqq. 2 Suetonius, Augustus, 35; Willems, D.P. 441 sqq.

3 Willems, D.P. 443. 4 Suetonius says of Julius Caesar (JuL 41): " comitia cum populo
partitus est." Tacitus says of Tiberius (Ann. 1. 15): "turn primum e campo comitia ad
patres translata sunt." In each case the context shews that these obscure expressions have
to do with appointments of magistrates. 5 Theoph. ad. Inst. 1. 2. 5. 6 1. 2. 2. 9.

7 Gai. 1. 4. 8 The language of 16. 1. 2. 1 is very significant. 9 The sc. Silanianum
(A.D. 10) which orders that the will of a murdered man is not to be opened till his slaves
have been put to the torture is sometimes treated as a direct alteration of the civil law,
but it was a direction to the magistrate embodied in the edict. Lenel, E.P. 352.

ij SENATUSCONSULTA 15

and Girard finds no clear case till the sc. Tertullianum of Hadrian's
time1. Krueger points out that senatusconsulta have no official name :
many have none. It was customary to give them the name of the Consul
at the time of their enactment in a lengthened adjectival form, but that
this was not official appears from the fact that it was sometimes his
nomen, sometimes a cognomen, and in one well-known case — the Mace-
donianum — the enactment is named after the man whose misconduct
produced it2.

If the Senate ever had any independence in legislation it soon lost
it. Very early the practice appeared of submitting to the Senate the
proposals already drafted by a committee or consilium, the Senate
merely voting. The committee was intermittent and its constitution
varied. Its relation to the Consilium Principis which is found in full
operation after Hadrian is not very clear, and opinions differ on the
question whether they were independent developments, or the latter
grew out of the former3. The Emperor himself proposed the most im-
portant sec., and it is pointed out by Mommsen4 that no other person
is ever in the empire described as auctor senatusconsulti. He acted
sometimes personally, sometimes by a representative who read his
Oratio, and before long there was always a written oratio, whether
the Emperor was present or not. The vote was so much a matter of
course that the oratio came to be regarded even by the lawyers as the
\real source of law: they referred to it rather than to the formal vote
which made it effective. Karlowa points out that there are traces in
the language of surviving orationes of a transition from language of
request to command5. The seven witnesses who are so common in the
later Roman Law appear here : the formal record of the senatusconsult
was accompanied by the signatio of seven senators, who took part in
the vote6.

In the later days of senatusconsulta the jurists habitually speak of
them as laid down by the Emperor. How long they continued to be
issued is uncertain, but the last of which anything is known is spoken
of in the life of Probus (A.D. 276-282), and the language is instructive.
The writer after recording the oratio and the resulting senatusconsult
adds that the Emperor by a second oratio "permisit patribus" certain
things, amongst others "leges quas Probus ederet senatusconsultis propriis
consecrare7." They were allowed to go through the form of registering
imperial enactments. It was time for them to cease.

1 Manuel, 57. 2 14. 6. 1. pr. 3 See Krueger, Rom. Rechtsq. 116. 4 Staatxr.
2. 899; D.P.R. 5. 178. 5 R.Rg. 1. 644. 6 Karlowa, op. cit. 1. 646. 7 Vita Probi,
13. 1.

16 PRINCIPUM PLACITA [CH.

VI. PRINCIPUM PLACITA. We have seen that when Augustus became
sole ruler he renounced and restored to the popular assembly the legis-
lative power which had been conferred on the triumvirate. We have
also seen that this was in no way designed to restore power to the
people : it merely provided him with a means of making his will effective
in an indirect way. The language of the lex regia by which power was
conferred on him might be understood to give him legislative power1,
but it is fairly clear that it merely gave him absolute discretionary
power in administrative matters. The earlier emperors were regarded as
subject to the laws, as no more than chief magistrates. Some texts
speak of them as legibus soluti2, but these are in the Digest and torn
from their context. When their source is looked into it becomes clear
that they originally referred to specific statutes and express the un-
doubted fact that the Emperor could dispense himself from, and could
be, and often was, excluded from, the operation of particular statutes.
But from some time in the third century the Emperor began to be re-
garded as above the law3.

From the beginning however the Emperor exercised a certain legis-
lative po\ver. Late in the republic it had been usual to authorise magis-
trates to make laws for communities which had become part of the State,
laws so made being called leges datae*. The Emperor seems to have been
regarded as tacitly authorised to do this, but these leges datae are of
small importance for us5. The same may be said of II. dictae, statutes
imposed by the Emperor on regions regarded as in his private owner-
ship, i.e. not the imperial provinces, but the Emperor's private domains6.
Much more important for our purpose was the gradual transfer to the
Emperor of the power to dispense from, and to suspend, to interpret and
even to extend leges, a transfer which was already beginning in the time
of Augustus.

Actual legislation was thus very early and it was fully recognised by
the time of Hadrian that the Emperor could make for all purposes what
were in effect laws. Theoretically there was however a certain inferiority,
and the progress is shewn in three well-known texts. Gaius says that
the Emperor's enactments "legisvicem obtinent." Ulpian a little later says
that "legis vigorem habent" and, immediately after, he says, or is made to
say "leges esse7." This is very different from the attitude of Augustus.
Fideicommissa were really his work, but he did not enact that they

1 Girard, Textes, 107; Bruns, 1. 202. 2 E.g. 1. 3. 31. 3 Karlowa, op. cit. 1. 826.
4 See specimens in Bruns, 1. 120 sqq. 5 From some of them we can gather that

institutions and ideas had already appeared in Roman Law of which we have no other
equally early trace. 6 The best known instance is the lex metalli Vipacensis, Girard,

Textes, 119; Bruns, 1. 289. 7 G. 1. 5; D. 1. 4. 1. pr. and 1.

j] PRINCIPUM PLAC1TA 17

should be valid. He directed the consuls to enforce them in a few
individual cases, "semel iterumque gratia personarum motus," rather,
apparently, as a matter of mores than as a legal system, and they only
gradually became a settled institution, "paulatim conversum est in ad-
siduam jurisdictionem1" The permanent officers to deal with them were
no doubt appointed by the Senate.

In his legislative work as in other branches the Emperor was assisted
by a Consilium, older than Hadrian, but first put on an organised footing
by him2. It was a large body containing a number of jurists, the chief
member being the Praefectus Praetorio, often a lawyer. In the later
empire this body came to be called the Consistorium and its principal
member was the Quaestor Sacri Palatii, also, it seems, usually a lawyer3.
But the Consilium was merely advisory : its members had no vote and
the Emperor decided all questions himself. Several cases are recorded
in which he decided against the sense of the great lawyers on the Con-
silium*.

By the end of the third century the Emperor was sole legislator. The
jurists had difficulty in finding a basis for his right, but they settled on
the lex regia5, though this was not intended to give the power : it was in
i'act a gradual encroachment.

When, early in the fourth century, the Empire was divided into two
parts, Eastern and Western, these two halves, retaining their character
as parts of the same empire, were governed by two emperors with co-
ordinate authority. The law of one was the law of the other, and thus
any law promulgated in either region was at once law in the other6.
This did not, it could not, work well, and Theodosius the Great when,
in A.D. 439, he put his codification into force, provided that future legis-
lation by the Emperor of one part should not be law in the other until it
had been promulgated by the Emperor of that part 7. This too might have
led to difficulties, but not long after, the Western Empire ceased to
exist 8.

There is some difficulty about the nomenclature of imperial enact-
ments. The word placitum covers them all, but it is not technical and

1 Inst. 2. 23. 1. 2 Vita Hadriani, 18, where, however, the special reference is to
judicial action; ante, 15, n. 3. 3 This office was held by Justinian's great adviser,

Tribonian; Inst. Proem. 3. 4 4. 4. 38. pr. ; 14. 5. 8. On this consilium see Mommsen,
Staatsr. 2. 988; D.P.R. 5. 279. 5 1. 4. 1; Gai. 1. 5, whose language, basing it on

imperium, shews the unreality of this explanation. 6 Krueger, op. cit. 310. 7 76. 331.
8 At the time of Justinian's codification Italy was not part of his empire, and (though he
contemplated conquest) there is not much sign that he contemplated its operation any-
where but in the East. This fact and the essentially eastern character of his legislation are
brought out by Collinet, tftudes historiques sur le droit de Justinien. So long as both
Empires existed laws bore the names of both Emperors. It is usually easy from internal
evidence, to tell in which Empire the law was enacted.

B. B. L

18 PRINCIPUM PLACITA [CH.

it would include decisions which are not legislation. The most commonly
used general term is Constitutio, but there is confusion as to what that
term covers. Gaius includes under it Edicta, Decreta and Epistolae or
Rescripta. No jurist includes Mandata. In one text Constitutiones are
opposed to Hescripta1, and a rubric distinguishes them from Edicta2.
Ulpian gives much the same account as Gaius, but says the name is not
technical — "quas volgo constitutiones appellamus3." The point is not
important : all of them might make law and none always did. Of the
enactments with which we are concerned, the great majority are re- ,
scripts, till late in the empire.

Each form of enactment has its own history and they must be con-
sidered separately 4.

VII. En IOTA. The Emperor, as chief magistrate, had the ius edicendi,
and imperial Edicta are found from the time of Augustus. As might be
expected, the earlier Edicta follow the republican pattern : they do not
usually embody any actually new developments, but are mainly con-
cerned with extensions and corrections of existing legislation. As the
power of the Emperor grew this was disregarded, and in Hadrian's time
and thereafter law was freely made by Edict. These continued to be
issued throughout the empire. A number of Justinian's are in existence :
the edicts of later law are however of little importance for us : they
are concerned with public matters. But many rules of classical law are
based on imperial Edict5.

The republican magistrate had power only for a year, and in a deter-
mined area, and the force of his Edict was limited in the same way. But
the Emperor had magisterial authority over the whole empire for life,
and his Edict had force therefore everywhere, and for his life. The better
view seems to be that it failed at his death, in the first two centuries, for
though a text speaks of an Edict of Augustus as having been abolished
after his time6, this is not conclusive : Edicts were frequently renewed
by the successor, and this may well have been so renewed and afterwards
withdrawn. This frequent renewal would tend to become tacit, a process
helped by the development of the notion that the Emperor's orders
"legis vicem obtinent7." In any case there is no sign that they were re-
garded in later law as so perishing.

The Emperor issued Edicts not by virtue of any particular magistracy,
but under his general imperial authority. They were not published
through an official, but directly by the Emperor.

1 C. 2. 42. 3. pr. 2 C. Th. 1.1. 3 1. 4. 1. 1. 4 As to mode of promulga-

tion of imperial enactments see Mommsen, Ges. Schr. (Jur.), 2. 178 sqq. 5 E.g. C. 7.
6. 1. 3; Inst. 3. 7. 4; Inst. 2. 6. 14. See Mommsen, Staatsr. 2. 906; D.P.R. 5. 186. 6 28.
2. 26. 7 Karlowa, R.Rg. 1. 647.

i] PRINCIPUM PLACITA 19

DEO RET A1. These were judicial decisions of the Emperor, which might
be on hearings in first instance, where the Emperor was sitting in his
capacity as magistrate, or on appeals which had reached the imperial
auditorium, or, brought about by supplicatio of some private person,
operated as a sort of overriding equity2. We are told indeed that they
might be interlocutiones, i.e. the Emperor might intervene at any stage
in a legal process and issue a Decretum which would tie the hands of the
official in charge of the case. In one recorded case it is not clear that
there had been any litigation at all, but the Emperor was in some way
informed of an apparent injustice which was being done in accordance
with law, and at once issued a Decretum deciding the matter in a way
certainly inconsistent with the existing law3. It is plain that the great
majority of Deer eta made no new law : they were merely decisions on the
existing law. But Gaius and Ulpian tell us4 that where they did make
new law or settle doubts they had the force of law. It was not necessary
that the Decretum should purport to lay down a new rule : if it actually
did so, the rule was law. It seems that those which did this were pub-
lished while others were not, at any rate till the third century. By this
time Decreta had become less important. Most of them had been decisions
on appeal of some sort, and a practice developed of taking appeals by
method of Rescript. Instead of appeal by the parties, there was a sub
mission of the case by the magistrate or judge, somewhat like the English
practice of "stating a case," and the Emperor's decision would be by
Rescript. .When it is remembered that the primary purpose of a Decretum
was not to make new law, and that it only gradually tended to do this,
it becomes clear that its history as a source of law is not a long one.
Recorded deer eta in private law are few, and mostly on small points5.

VIII. E PISTOL A E, RESCRIPTA, SUBSCRIPTIOXES*. These were in
principle answers to enquiries. Epistolae were answers to officials, em-
bodied in a separate document, issuing from the office ab epistulis and
addressed to the enquiring official. Subscriptions were answers to en-
quiries or petitions from private persons endorsed on the application
itself, issuing from the office a libellis1 and returned to the applicant.
These latter do not seem to have been published in any way. The name
Rescript was applied to both, though more commonly to Epistolae. There
were also Rescripta issued to an official without any previous application,
though here the name seems to be misplaced 8. It seems from the evidence

1 See Karlowa, op. cit. 649; Krueger, Rom. Rechtsq. 103; Kipp, op. cit. 72. 2 Post,
§ ccxxvu. 3 40. 5. 38. 4 G. 1. 5; D. 1. 4. 1. 1, 2. 5 See 48. 7. 7; 40. 5. 38;

Paul made a collection of imperial decreta; see Lenel, Palingenesia, 1. 959. 6 Karlowa,
op. cit. 1. 650; Kipp, op. cit. 73; Krueger, op. cit. 304. 7 See Willems, D.P.R. 436.
8 Kipp, loc. cit.

20 PRINCIPUM PLAC1TA [CH.

that law or etiquette prevented any but high officials from applying for
a Rescript.

Rescripts were not primarily intended to change the law, but to
explain it to the applicant, and at first they merely did this. Epistolae
are found as early as Trajan and Subscriptiones at any rate vinder
Hadrian1. From that time both were common : they are supposed to
have owed their increasing importance as sources of law to the cessation
of legislation by the Praetor's Edict, changes now being made by im-
perialis sanctio2. As in other forms the power of making law by Rescript
was based by the jurists on the I. regia3. The increase in frequency and
importance of Rescripts is also in part due to the fact already noted that
after Hadrian in later law the method of appeal by statement of the
case by the magistrate largely superseded ordinary appeal by the parties.
As in the case of Deer eta, Rescripts which were not intended to alter the
law do not seem to have been published, at any rate till the third
century. It should be added that though Rescripts which were in effect
decisions on appeal were common, so also were Rescripts on application
before the decision : these were remitted to the Court and bound it. If
the application contained allegations of fact the Emperor did not enquire
into these: his Rescript was sometimes expressly conditional on their
truth, and even if this was omitted the principle held good, and the
Court must look into the facts before deciding4.

There remained one great practical difficulty in the use of Rescripts.
As we have seen, their primary purpose was not law reform : it was only
gradually and incidentally that they gained this function. There were
thus four classes : (a) those which merely stated the law, (b) those which
laid down a new rule but were privilegia, not intended for general
application5; (c) those which embodied a change for general application,
(d) those which laid down a new rule, but were in fact errors and were
not intended to do so. How was the Court to determine to which of
these classes a Rescript brought to its notice belonged? In some cases
the matter was clear : the Rescript expressly said that it was or was not
to be taken as a precedent. But in many cases, and especially where the
Rescript embodied an error, this would not appear. These difficulties
were felt and in the later Empire there was legislation to deal with the
matter. Constantine enacted that Rescripts contra ius were not to be
binding in future cases, while those which laid down publica iura were6,
but this left the Court still to determine which were which. Arcadius

1 Krueger, op. cit. 104. 2 Ante, § iv. 3 1. 4. 1. 1. 4 49. 1. 1. 1; C. 1. 21. 1.

5 1. 4. 1. 2. A poor authority says that Macrinus deprived all rescripts of his predecessors
of any authority as having been very likely given by favour. Vita Opilii Macrini, 13.

6 C Th. 1. 2. 2.

i] PRINCIPUM PLACITA 21

provided that Epistolae were not to be binding in future cases1 (which
suggests that Constantine's law had in fact deprived subscriptiones of
all authority). Valentinian III limited this by providing that they were
to be binding if expressed to be binding in future cases2. Justinian pro-
vided that even where there was no such declaration, if the Rescript, or
other form of imperial pronouncement in its terms laid down a general
rule, this was to apply in future cases, though not so expressed3.

MAN DATA 4. These are of small importance in private law. They were
usually administrative directions to provincial officials, but occasionally
laid down rules of law. Mandata operated only for the life of the issuing
emperor and only in the region to which they were addressed, but in
fact they were renewed and often addressed to many districts. And as
the Emperor could make law in any form he chose, he could do it by
Mandate. They are occasionally quoted by jurists5, but there is little
trace of them in later law.

When, as happened by the third century, the Emperor's right to
make law was fully recognised, with the corollary that its form was his
own affair, any utterance of his being binding, and when, in addition to
this, he became sole legislator, at latest by the fourth century, it is
plain that any distinction between modes was of secondary importance.
Much confusion of terminology arose. The name Edict was applied to
provisions for special districts : nearly all Justinian's Edicts would have
been more accurately called mandata. It became usual to call imperial
enactments leges. Many of the important enactments of later emperors
in the Code of Justinian are what are called leges generates or, somewhat
confusingly, leges edictales, and hardly conform to the classification
above stated. Some appear in the form of Orationes ad Senatum, a
reminiscence of the earliest form of imperial enactment, but of a different
character. The Senate had changed : it was now little more than a town
council. The enactment was addressed to it as a convenient mode of
publication which would also be gratifying to the Senate and population
of the city. There was no question of any co-operation by the Senate :
there was no senatusconsult6.

IX. THE JURISTS. As has been observed, the jurists of the classical
age are the real builders of the great fabric of Roman Law which we
study. Space does not admit of more than a brief statement of the main
points of interest in their history.

1 C. Th. 1. 2. 11. 2 C. 1. 14. 3 3 C. 1. 14. 12. 4 Krueger, op. cit. 109.

5 Coll. 11. 7. 4. 6 See on all this, Krueger, op. cit. 301 sqq. ; another method of

the late period is Pragmaticae Sanctiones or Pragmaticae Formae. Most of these resemble
leges datae or mandata, but a few contain new general rules of private law. Sometimes
they are declared to be leges generates. Some are called Pragmatica Rescripta.

22 THE JURISTS [CH.

THE FUNCTIONS OF THE JURISTS1. The account which Cicero gives2 of
the jurists of an earlier age as constantly consulted on every kind of affair,
juristic or not, had ceased to be true of his own time. But the picture
which he draws here and there of the jurists remains in broad outline
true for the age of classical jurisprudence. He states their interpretatio
as a source of law side by side with laws and edicts3. He tells us in
passages which make no pretence of scientific exactness, but which no
doubt give a true enough account that the business of the jurist is three
(or four) fold 4 :

(a) Respondere. This was giving advice on consultation, not merely
to private persons, but to indices and magistrates, and not necessarily
formally, as in the case of privileged responsa shortly to be considered,
but in any form and place, even in the course of a walk across the
Forum5.

(&) Agere. This was guiding the conduct of lawsuits. The jurists did
not act as advocates : this was the business of the oratores, the class of
Which Cicero was the ornament. What the jurist did was to instruct
the advocate on the points of law involved and help him with advice.

(c) Cavere. This was assistance in the performance of legal transactions
and might well include what Cicero calls scribere, the preparation of
legal documents.

He also mentions as the duty of the good jurist, instruction. This
does not mean the ordinary routine of elementary teaching in law : that
was presumably then, as later, in the hands of professional teachers.
The great men may have acted as chiefs of legal schools6, but for the
most part their teaching consisted in permitting younger men to be
present at consultations, with, no doubt, an occasional informal talk on
a point which had arisen.

Their responsa were usually written, and, where they were in con-
nexion with litigation, either sent direct to the index or put in by the
orator. Apart from the privilege of the ins respondendi they were in no
way binding on the index1: they owed their weight to the personal
reputation of the jurist, but unlearned indices, who were mere private
persons, would tend to follow them, and thus they exercised a great
influence on the law. The jurist held no official position and took no
fees. It was not directly as a means of living that this career was
entered on, but as one of the surest roads to popularity8 and eminence

1 See Jors, Romische Rechtswissen^chaft der Republik, §§ xx-xxiv. 2 De Orat. 3. 33.
133-135. 3 Topica, 5. 28. 4 De Orat. 1. 48. 212; Pro Murena, 9. 19. 5 De Orat.
3. 33. 133. 6 Post, § x. 7 Cicero tells us of a decision in direct opposition to the

view of Q. M. Scaevola, one of the greatest jurists of his time. Pro Caec. 24. 67-69. 8 See
D. 1. 2. 2. 37 for the story of C. Scipio Nasica who was given a house on the Via Sacra
by the State "quo facilius consult posset.''1

i] THE JURISTS 23

in public life, and to the rewards of public office. The careers of soldier,
orator and jurist are repeatedly spoken of as the most honourable open
to a citizen1, and of these, under imperial conditions, the last was by
far the most independent.

The activities above mentioned do not exhaust their modes of
exercising influence in the law. They occasionally acted as assessors to a
index and practically dictated his judgment. Still more often they were
assessors or comites to the magistrates, who were not necessarily lawyers,
guiding them in all legal questions2. There is no doubt that much of the
Praetor's Edict was due only nominally to him, but was the work of his
more learned councillors. Further, they were active in producing juristic
literature, a topic to which we shall recur3, since for the purposes of
legal development it was their most important work.

THE i us RESPONDENDI. It is recorded that at an early date in the
empire certain jurists were given the right publice respondendi, i.e. of
giving responsa under seal and authorised by the Emperor, which were
binding in the case in connexion with which they were issued. Pomponius
tells us in a passage which is rather corrupt4, that, before Augustus,
lawyers gave responsa in any form or conditions they liked, but that
Augustus, to increase their authority, gave certain jurists the right
publice respondere, or, as he also puts it, to give responsa ex auctoritate
principis, such responsa being under seal, and so sent to the index. The
Institutes5 tell us that Caesar, i.e. some emperor, had anciently provided
that where the opinion of a jurist who had the ins iura condere was sub-
mitted to a index, it bound him, but not if the opinions submitted dis-
agreed. Till a century ago this was substantially all the evidence and
the text of the Institutes was naturally coupled with that of the Digest,
which said nothing about binding effect, and the result arrived at that
Augustus made the opinions of privileged jurists binding on the index.
Early in the last century Gaius became available and a passage was
found which was plainly the source of the text in the Institutes. But
Gaius says that Hadrian made responsa bind the index if they were in
agreement6. It was thus no longer obvious that Augustus made them
binding and different opinions began to appear. The majority of writers
however still hold to the view that it was Augustus who gave responsa
binding force, and they explain the text of Gaius as meaning that
Hadrian settled a difficulty which had arisen where conflicting opinions
were given by equally privileged jurists. Apart from the foregoing
texts this rests partly on a text of Seneca, written before Hadrian's
time, which says incidentally that responsa of jurists valenf though no

1 See Jors, op. cit. 255. 2 Cicero, Topica, 17. 65. 3 Post, § xi. 4 1. 2. 2. 49.
5 Inst. 1. 2. 8. 6 Gai. 1. 7. 7 Seneca, Epist. 94. 27.

24 THE JURISTS [CH.

reasons are assigned, and partly on a priori considerations such as the
consistency of the device with the general policy of Augustus. But in
fact it would not be like his method elsewhere. His changes were
made by utilising the revived republican machinery, worked by him in
the strong position of chief magistrate. He had power enough to do
what he liked, but within the system he framed he could not himself
have bound the index to any particular judgment. It is difficult to see
how he could have authorised anybody else to do so. On the other hand
the method of attaching the jurists to himself and making their power
appear an emanation from his own, by giving the chief among them a
sort of patent of precedence, which would inevitably in the long run
mean de facto authority, was exactly on his lines.

No juristic text suggests that Augustus made responsa binding.
Gains, whose text is corrupt but explicit on this point, says that Hadrian
made them binding if they agreed, and does not mention Augustus. It
is said indeed that Augustus laid down a general rule and Hadrian a
necessary corrective. It is surprising that so obvious a point should not
have called for settlement for more than a century, and that Gaius
should have ignored the real source of the rule.

Pomponius in his long discussion1 shews that in his time there had
been no fundamental change. He states the sources in historical order,
and in his list the interpretatio prudentium appears as part of the un-
written law, a synonym for ius civile in the old sense. It is mentioned
after lex and before plebiscitum and is clearly the interpretatio of the old
jurists. Then come the later sources, but there is no reference to responsa,
from which the inference is that they were no more sources of law than
they had been for centuries. He was writing before Hadrian's changes,
at any rate he does not mention the revision of the Edict. For Gaius
the responsa are part of the written law. In a scheme which is apparently
historical he puts edicta after principum placita, which shews that he is
referring to Julian's revision, and responsa after edicta2. This suggests
that the authoritative responsa as he knew them were due to Hadrian.
If Pomponius really meant to tell us of such an important change he
was unfortunate in omitting the main point3.

1 1. 2. 2. 5, 6, 35 sqq. 2 Gai. 1. 2. 3 Pomponius (1. 2. 2. 50) mentions another

rescript of Hadrian which has been supposed to create difficulties. After stating Augustus'
enactment he adds: "ei ideo Hadrianus cum ab eo viri praetorii petercnt ut sibi liceret
respondere rescripsit eis hoc non peti sed praestari solere, et ideo si quis fiduciam sui haberet
delectari se ad respondendum se praepararet." This corrupt text has been amended so as
to support various hypotheses. It has however nothing to do with his legislation. It ia
not a legislative act. Pomponius cites it as a commentary on the enactment of Augustus,
and especially on the words "ex auctoritate ems." The applicants omitted the important
part, and Hadrian says no authority is wanted for what they ask for. It is a little jest of
his: he was partial to jests ( Vita Hadriani, 20, 25). The only significance of the text for

i] THE JURISTS 25

It is clear that a change in the position of the jurists did occur under
Hadrian. Their responsa were now ius scriptum. They began freely to
hold imperial magistracies, praefecturae, etc.1 The only jurists not alive
under or after Hadrian who are known to have issued responsa are
Labeo2, who probably never had the ius respondendi, and Sabinus, who
received it from Tiberius3. Collections of them were very usual forms
of literature after the time of Hadrian 4.

The remark of Seneca implies no more than de facto authority : one
accepts an expert's opinion whether he gives his reasons or not. Cicero
might have said it5. So too Caligula is reported to have said that he would
destroy the jurisconsults: "se mehercule effecturum ne quid respondere
possint praeter eum6." This too implies no more than practical weight
and neither Seneca nor he distinguishes between one class of lawyers
and another.

It has been suggested that Augustus made responsa binding for the
actual case and Hadrian for future cases as well, but there seems no
real evidence for this half-way house. The better view then seems to be
that Augustus did not change the legal position of responsa, but that a
license from the Emperor could not fail, before long, to give these privi-
leged responsa an overriding influence on the mind of the judge, that
this is the regime to which the texts of Seneca and Suetonius refer, and
that Hadrian set the matter oil a regular footing, using the full legislative
power which he undoubtedly had and Augustus had not7. It seems
clear that whatever the nature of Augustus' change it did not bar un-
privileged jurists from giving responsa9. Augustus is not likely to have
given his opponent Labeo the ius respondendi, but he issued a volume of
responsa. It is most probable that in later times only the privileged
jurists issued such books.

The question remains : what were the limits of Hadrian's authorisa-
tion? The most probable answer is that his authorisation extended

legal purposes is the further evidence it provides for the view that the auctoritas Augustus
provided had not so far affected the position of the jurists, but that error as to its purport
was possible, and that it shews that he did not prevent unauthorised jurists from giving
responsa.

1 Cassius and Pegasus however had held imperial magistracies. Roby, Introd. to
Digest, cxlv, cli. 2 Coll. 12. 7. 3 (cf. D. 9. 2. 27. 8 where the ref. to Labeo is omitted.
The work is not in the Florentine index). 3 1. 2. 2. 48. 4 See the Florentine index.
5 See Cicero, Topica, 5. 28. 6 Suetonius, Caligula, 34. The words being corrupt have
been amended by reading rem for eum. This is inconsistent with the rest of Suetonius'
language, and it is unlikely that Suetonius meant to charge the emperor with such an
innocent remark as this. 7 Of recent writers Karlowa, R.Rg. 1. 660 and Krueger, Rom.
Rechtsq. 121, hold that Augustus made them binding for the case. Girard, Man. 79, inclines
to this view but only as the more probable. Kipp, Gesch. d. Q. 110 and Cuq, Man. 53,
reject it. Jors, Quellen, 84, seems to leave the matter open. 8 Karlowa, op. cit. 659,

holds that others might give responsa but these might not be cited in court.

26 THE JURISTS [CH.

only to the case for which the responsum was obtained1. But this is
difficult to reconcile with the language of Gains, who speaks of sententiae
et opiniones of those to whom it has been allowed iura condere. Justinian
says much the same except that he does not mention the Emperor con-
cerned. This language suggests a much wider authorisation, and many
views are held1. The words iura condere have led some to hold that
responsa were binding in future cases. The words sententiae et opiniones
have led to the improbable view that all the writings of privileged
jurists were binding. But literary work is a different matter from advice
to clients, and it would be impossible to give binding force to the specu-
lative opinions of any living man however distinguished. The other view
has more to be said for it, but it is unlike the Emperors to set up an
authority so little under their control. The text is corrupt2: opinions
differ as to the degree of corruption, but the only part that can be
really relied on is the reference to Hadrian. Ancient works which have
existed for generations in manuscript, repeatedly recopied, undergo a
steady process of corruption largely by the incorporation into the text
of marginal comments. Something of this sort has happened here ; how
much is uncertain, but enough to disentitle us to draw inferences from
the wording. There is a sufficient cause in this case. Later in the empire
there was legislation giving authority to the writings of deceased jurists3,
a very different matter. It is easy to see how in view of this legislation
such glosses would creep into the text.

Whatever be the scope of ius respondendi it would seem important
enough for the fact that he had received it to have been recorded in the
information we have as to any jurist. But, though we may assume that
it was not granted to many at the same time, it was probably granted
to all who were in the Emperor's consilium, and yet we do not know that
this was so. Only of two jurists do we know that they had this privilege.
One is Sabinus at the beginning, who received it from Tiberius4, the
other is an otherwise unknown man, Innocentius, who received it from
Diocletian5, so that the grant of the privilege survived the age of the
great jurists6.

1 Glasson, Etude sur Gains, cites many opinions, p. 84-. Kipp appears to hold (op. tit.
§ 17) that in practice they were cited in future cases and that Hadrian confirmed this.
2 For wholesale rejection see Kniep, Gai Comm. Primus, 3, 105. 3 Post, § xu.
4 1. 2. 2. 48. 5 Krueger, op. tit. 296. 6 In case of conflict was the index absolutely
free or must he follow one of the opinions expressed ? Does the omnium of Gaius mean
all who are cited or all the patented jurists of the time ? If the latter view is correct,
responsa, as decisive, would not play a prominent part in legislation. Neither Ulpian
(Regulae) nor Paul (Sententiae) ever cites a responsum. Gaius cites one (3. 198), but it is
clear from the corresponding text in the Inst. of Justinian that the point was still open
(4. 1. 8). They are a little more freely cited in collections made before Justinian, but after
legislation giving authority to writings.

i] THE JURISTS 27

X. THE CONFLICTS OF THE SCHOOLS1. The jurists of the empire up to
the time of Hadrian appear as sharply divided into two opposing groups
(sclwlae or sectae}. The two schools seem to have originated in the per-
sonal rivalry and political opposition between Antistius Labeo, the
republican, a man of independent mind and prone to innovation, and
Ateius Capito, the adherent of the empire, inclined to follow tradition
and to rest upon authority. The growth into distinct schools may have
been gradual, for the schools derive their names from later leaders, that
resting on Labeo from Proculus who was the follower of Labeo's follower,
Nerva, and the other from Masurius Sabinus, who was a follower of
Capito, or sometimes from Cassius, who followed Sabinus. The schools
seem to have had recognised leaders whom Pomponius speaks of2 as
"succeeding3" the one the other, a form which he never uses of the
republican lawyers. He gives lists of these leaders, perhaps not complete,
down to his own time, Julian, the Sabinian, being the last. Of no jurist
later than Julian is it certainly known that he was attached to either
school,' except that Gains speaks of the schools as still existing and of
himself as a Sabinian. It is sometimes said that the schools lasted to
the time of Papinian, and were ended by his greatness, which united
all. But there is no evidence of their endurance to his time, and if any
individual jurist ended the schools by his ascendency it is far more likely
to have been Julian4. From the fact that in the lists given by Pomponius
there are towards the end cases in which there were two leaders on each
side at the same time, it has been conjectured that the schools may have
perished from internal dissensions, and that, even in the time of Gaius,
the schools as organisations were dead, though some jurists still attached
themselves to the doctrines propounded by the one or the other.

The Sources, especially Gaius, record many disputes between the
schools and others which probably are such, though they are stated as
disputes between individual jurists. Many attempts have been made to
determine what, if any, was the difference of principle which divided
the schools. It is not necessary to go into them, for none has any wide
acceptance5 or stands the test of submission to the actually recorded
opinions, but two conclusions emerge from the discussion. There is no

1 Roby, Introd. to Dig. cxxvii sqq. ; Krueger, op. cit. 160 sqq. 2 No work of

Sabinus or of Cassius seems to have survived to Justinian's age, for though they are very
frequently cited by other jurists, there is in the Digest no direct quotation from them.
Earlier jurists are directly represented, e.g. Proculus, Aelius Callus, as well as Quintus
Mucius and Alfenus. 3 1. 2. 2. 48. 4 See Kipp, op. cit. § 18. 5 See Kipp, ib. ;

Krueger, op. cit. § 20, and for a list of the disputes and older opinions, Chenon, Proculeiens
et Sabiniens. See Huvelin, Etudes sur le furtum, 1. 764, for the view that the Sabinians
rested on authority (Anomalisten) and the Proculians aimed at making the law logical
(Analogisten).

28 THE JURISTS [CH.

evidence that the characteristics of Labeo and Capito were reflected in
their respective schools : it is clear indeed that they were not. And
many of the disputes were on rather small points in which it is difficult
to see any principle at stake: those who do find such principles find
different and conflicting ones from the same text.

The only other point to be dealt with is the exact meaning of the
terms scola and secta, which are applied to these groups1. Secta suggests
"party," groups of jurists attached to particular views and leaders,
analogous to the "High" and "Low" parties in the Church of England,
and perhaps this is all that it practically meant in the time of Gaius.
But there is evidence of a more elaborate organisation, such as is sug-
gested by the name schola. For though we speak of "schools " of opinion
without necessarily implying an organisation, it is not clear that this
word was so used in classical or silver Latin. When we remember how
great a part in juristic activity was played by instruction, and how
Pomponius speaks of the leaders as "succeeding2" one the other,
language which he does not use of the republican jurists, the suggestion
is obvious that these were real schools, of which the jurists named as
leaders were the heads. It has therefore been suggested that they were
modelled on the Greek schools of philosophy, definite organisations
controlled by leaders sometimes nominated by the retiring chief, some-
times elected. The schools were held at definite places, and we learn from
Aulus Gellius3 that in the second century there were such stationes
docendi for lawyers at Rome. It may therefore be that there was no
necessary opposition of principle at all, but that the Proculian doctrine
is only that taught at a statio founded by Proculus.

XL THE JURISTIC LITERATURE. Literary production is very active
among the classical lawyers. An attempt to classify its forms is not very
helpful, but they may be said to come under five heads. (1) Books for
elementary instruction, e.g., Institutiones, Regulae, etc. (2) More ad-
vanced, somewhat unsystematic, treatises, e.g., Quaestiones, Disputa-
tiones, etc. (3) Collections of Responsa for practitioners which appear to
vary in the degree of systematisation thought needful. (4) Systematic
general treatises on the civil law, e.g. Sabini Libri iuris civilis, or on
the ius honorarium, e.g. Ulpiani Libri ad edictum, or on the whole, e.g.
Juliani Digesta*, and (5) Monographs on particular laws or senatus-
consults, or on earlier writers or on special topics. Of this class of
book Paul produced a great number5. The treatment is in general more
systematic than that which appears to have marked earlier writings,

1 1. 2. 2. 47; Gai. 1. 196. 2 1. 2. 2. 48 sqq. 3 Noctt. Att. 13. 13. Bremer, Die

Rechtslchrer und Rechtsschulen. 4 As to nature of a jurist's 'Digesta? Mommsen, Ges. Schr.
(Jur.), 2. 90 sqq., and H. Krueger, Z.S.S. 37. 311 sqq. 5 See the Florentine index.

i] THE JURISTS 29

a change which is the natural result of the increased systematisation of
the law itself which has already been noted.

It is impossible in the available space to give an account of the work
and characteristics of the jurists individually1, but something must be
said of those who made the greatest mark on the course of the law.

Gains2. He is the most mysterious person who plays a large part in the
law. He seems to have been born under Hadrian and to have done most
of his work in the following reigns. He was evidently a teacher and the
Law of Citations3 implies that he never had the ius respondendi. He
does not seem to have been of much eminence in his own day, for he is
never mentioned by any classical lawyer, the few allusions to a jurist by
the name of Gaius being supposed to refer to Gains Cassius Longinus4,
whom indeed it has been attempted, with little justification, to identify
with him5. Only his praenomen is known. His reputation grew after
his death, and it may be that Ulpian utilised his work for his own ele-
mentary treatise6. The Law of Citations includes him in the list of five
jurists who may be cited, though he is much earlier than any of the
others. But though he wrote commentaries on the Edicts they are little
used in the Digest of Justinian, while much use is made of his elementary
books, and they are expressly made the basis of the Institutes. He has
been credited with the invention of the division of the law into Ius
Personarum, rerum, actionum, but it is more probable that it was already
traditional7. He was a Sabinian, the last known partisan of a school,
but he did not always accept the Sabinian view8. There has been much
controversy as to his origin and place of work. The weight of opinion,
including the high authority of Mommsen, is that he was a Greek pro-
vincial, but there are not wanting dissident opinions. The evidence is
really insufficient to justify a confident opinion, and much of the argu-
ment is of a very flimsy character9.

1 See Roby, Introd. xci sqq. ; Kipp, op. tit. § 18; Fitting, Alter und Folge, for an enquiry
into the dates of their various writings. 2 Roby, Introd. clxxiv; Glasson, Etude sur

Gaius; Kniep, Der Rechtsgelekrter Gaius. 3 Post, § xu. 4 See Roby, loc. cit. 5 See
Z.S.S. 20, 211. 6 Recent authority is on the whole opposed to this view. See Krueger,
Rom. Rechtsq. 248, and Girard, Melanges, 325 sq., who thinks the opinion utterly without
foundation. His opinion seems to rest on the fact that no contemporary reference to Gaiua
exists, and on the view that no inference can be drawn from similarity of plan, as it is
practically certain that this was not invented by Gaius but was traditional in works of
this sort. But the resemblances are not merely in plan: they are very close in detail,
even to unexpected omissions and insertions. 7 Post, § xxi. 8 E.g. Gai. 3. 98.

9 See Roby, loc. cit., and Kniep, op. cit. 9 sqq. One writer, observing that he names three
Eastern cities in a certain context (D. 50. 15. 7), assumes that he puts Troas first because
he was born there and Berytus second because he taught there, an argument adequately
dealt with by a French critic who suggests that he no doubt put Dyrrachium last because
he died there. See Glasson, Etude sur Gaius, 35. The latest writer (Kroll, Zur Gaiusfrage,

30 THE JURISTS [CH.

Julian1. Salvius Julianus is a much greater figure. We have already
noticed his ordinatio of the Edict carried out perhaps while he was
Quaestor Aitgusti2, and, as we are told, received twice the usual stipend
on account of the great learning he displayed3. An honorific inscription
which has been found4 shews that he held all the important senatorian
offices from Quaestor to Consul, and many imperial offices as well, and
that he was in the Consilium of Hadrian and of Antoninus Pius. He
seems to have died in the reign of M. Aurelius and Verus, who describe
him in a rescript as amicus nosier. His fame did not lessen as time went
on, for later Emperors speak of him in the most laudatory terms5. That
he is not one of the five singled out for citation in the Law of Citations
is no doubt due to his early date, and it is to be noted that the clause
authorising citation of jurists, approved by any of the five, instances
Julian among others. He was the last recorded chief of the Sabinians,
but he was too strong to be bound by the traditions of any school. It
seems to be more true of him than it is of Papinian that his greatness
united all schools, for though we hear of one Sabinian after him (Gains)
we hear of no more Proculians, and it may fairly be presumed that the
undoubted predominance of Sabinian doctrine in the later classical law
was in great part due to the ascendency of Julian. No other jurist
exercised so great an influence on the destinies of the law. He issued
many responsa, and though no collected volume of them is known, they
are so often mentioned and discussed by Africanus that much of his
work may be regarded as a commentary on the responsa of Julian. His
principal work was his Digesta, which for the most part followed the
order of the Edict, but was a comprehensive treatise on both civil and
praetorian law6. It has been thought that Justinian's compilers used
this book as the basis of their scheme : in any case nearly 500 passages
are quoted from it. The publication of this comprehensive work explains
the absence of any volume of responsa : what would have been its content
is in some form embodied therein7. The principal characteristics of
Julian's work seem to be a very lucid style and a clear recognition of

revised by Erman and H. Krueger) makes him of oriental extraction but of Roman
origin and Latin speech.

1 Buhl, Salvius lulianus. 2 But see, e.g., Appleton, N.R.H. 35. 623. 3 See

the inscription mentioned in the next note. 4 Quoted by Krueger, op. cit. 183; see also
Mommsen, Ges. Schr. (Jur.), 2. 1 sqq. 5 In the Constitutio AtSwKev, 18, Justinian

speaks of him as the most illustrious of the jurists. The parallel text in "Tanta" uses
somewhat less strong expressions. 6 Mommsen (Ges. Schr. (Jur.), 2. 8sqq.) considers

it to have had a theoretical rather than a practical aim. The answers to enquiries which
it contains he thinks, on internal evidence, to have been in the main replies to students,
not formal Responsa to litigants. 7 At least ten jurists published books of responsa,

and at least seven Digesta. Only two are known to have published both, Marcellua and
Scaevola, both late.

i] THE JURISTS 31

the fact that legal conceptions must move with the times. He seems to
have played somewhat the part which Lord Mansfield did in English
Law. He did a great work of co-ordination and generalisation, sweeping
away unreal and pedantic distinctions. Karlowa justly observes that
the appearance of Julian was epoch making1.

Papinian. Aemilius Papinianus2 was Praefectus Praetorio under
Severus with whom he is said to have been connected by marriage.
Under Caracalla he declined to make a public declaration approving the
Emperor's murder of his brother Geta. The result was the immediate
murder of Papinian. It is interesting to note that he was Prefect at
York, where he may have had as assessors, Paul and Ulpian, who cer-
tainly at one time acted in that capacity. As Roby says it would be
difficult to form a stronger court3. He was evidently regarded by those
who came after as the greatest of all the jurists : we shall see that he was
given a special preponderance by the Law of Citations4, and though
Justinian did away with the irrational method of assessing opinion
directed in that law, he speaks repeatedly of Papinian in terms of such
laudation as to shew that his ascendency had not diminished5. Moderns
do not usually rate him so highly. Most put Julian before him and some
Ulpian. In any case he was a very great lawyer, one of whose signal
merits it wras that he was never captious, as Paul often was. His criticism
is surefooted but moderate in tone, and he speaks always from a lofty
ethical point of view. No chicanery appealed to him, and doubtless part
of his fame is due to this. But his work shews other merits than these.
As Bruns says6, his concise mode of statement, which brings out the
essential point and only that, is an indication of the way in which his
mind proceeded' to fix the true relation of the facts to the general legal
principle which was to govern them. But he wrote no comprehensive
systematic treatise and his chief works, Quaestiones and Responsa,
which cover much ground, shew a judicial and critical mind rather than
intellectual fertility. In any case he was a very great figure.

Paul7. Julius Paulus was a contemporary of Ulpian and a younger
contemporary of Papinian. He held the highest imperial offices and was
long a member of the imperial council. He was an extremely voluminous
writer : extracts from his works fill one-sixth of the Digest, being almost
as numerous as, though much less bulky than, those from Ulpian. He
enjoyed a high reputation and was one of the favoured five in the Law
of Citations. He is one of the very few of whom we possess a book

1 Op. cit. 1. 709. 2 Roby, Introd. cxci; Fitting, Alter und Folge, 71; Krueger, op.

cit. 220; Costa, Papiniano, 1. 3sqq. 3 Op. cit. cxciii; Lampridius, Vita Alexandra, 2ti. ti;
Vita Pescennii, 1. 4. 4 Post, § xn. 5 See Roby, loc. cit. 6 Cited by Karlowa,
op. cit. 1. 736. 7 Roby, Introd. cci; Krueger, op. cit. 227; Fitting, op. cit. 81.

32 THE JURISTS [CH.

unhandled by Justinian and this we owe to the fact that his popularity
led to the insertion of his work in the Code of the Visigoths for Roman
subjects — the Breviarium Alaricianum, and to the adoption of extracts
from it in other works older than Justinian. But, as the sources of our
knowledge would suggest, we have it only in a very imperfect form.

There is no other jurist about whom modern opinions differ so widely
as they do about the merits of Paul. It is difficult to understand these
extreme divergences in view of the fact that we have a great mass of
material on which to form a judgment. But he is described in turn as
an extremely profound thinker, and original jurist, as an unoriginal but
clear-sighted critic, as a mere compiler, popularising other men's views,
and as a fanciful person of whom we sometimes doubt whether he is in
his right mind. Equally remarkable are the differences of opinion on his
style. For some he is a lucid writer, for others he is obscure, but only
from compression, for others he is simply obscure, and there is disagree-
ment whether this is his own fault or that of Justinian's compilers1.

Whatever his capacities may have been, much, if not most, of his
work is purely critical. He wrote many volumes of comment on earlier
writers : some of it extremely useful, some of it captious. Constantine
rejects his notes on Papinian because, though able, they aim rather at
depravare than corrigere and this seems even from what is left not too
severe a judgment of his method2. He delights in sharp contradiction,
and in general his criticism does not give an impression of urbanity3.

Ulpian4. Domitius Ulpianus5, like Paul, held all the highest offices.
He was for a time exiled under Elagabalus. He was a member of the
Consilium under Severus Alexander, to whom he was related6, and under
Caracalla. He was murdered by his own praetorians when he was
Praefectus Praetorio. His works fill nearly a third of the Digest and he
and Paul account for nearly a half. He was one of the favoured five in
the Law of Citations, and later writers and Emperors speak of him in the
most laudatory terms7. Part at least of the praise, and the great use
made in the Digest of his work is not due wholly to his personal merits.
He and Paul are the latest of the great systematic writers, and, other
things being equal, the later a lawbook is the better it is. The writer has
the advantage of his predecessor's work, and an intelligent writer could
produce a great book without contributing much of his own. It is the
general opinion that this is in effect what Ulpian did. The age of progress

1 For references to these views, see Buckland, Equity in Roman Law, 120. 2 C. Th.

1. 4. 1. Ulpian shares the condemnation, with, so far as appears, less reason. 3 See,
e.g., 41. 1. 65; 49. 15. 28; 50. 16. 244. It is specially Labeo with whom he deals in this way.
4 Roby, op. cit. cxcvi; Krueger, op. cit. 239; Fitting, Alter und Folge, 99. 5 Jors, Pauly-
Wissowa, Meal-Encyclopaedic, s.v. Domitius. 6 C. 4. 65. 4. 7 Roby, op. cit. cxcix.

ij THE JURISTS 33

in legal thinking was ending : it fell to Ulpian to set forth the splendid
result. This view is however modern : in the middle ages Ulpian seems
to have been almost another name for Roman Law.

Of him too we possess a book in something like its original form.
His Regulae exist in ah imperfect abridgement1, made, probably, early
in the fourth century, to which have been added a few fragments found
in other sources. He does not seem to have written books specially
devoted to criticism of earlier writers, except the notes on Papinian,
which may not have been an independent book. He wrote indeed Ad
Sabinum, but that was a recognised title for a comprehensive work on
the ius civile, and it is rather an honour to Sabinus than anything else.

XII. The line of classical jurists ends somewhat suddenly. After
Ulpian there are only Marcian and Modestinus, of whom the latter is
one of the five. Two later still are indeed included in the Digest, Arcadius
and Hermogenianus. But these come after a gap of almost a century
and their contribution is not important.

There is room for doubt as to the causes of the decay. It is not enough
to say that the principles were worked out and had yielded all they
could : this misconceives the nature of legal evolution, which consists in
expansion of the law to fit conditions constantly changing, and also
ignores the fact that just when this cessation occurred the Roman
system was getting into touch with a new ethic, that of Christianity,
and was acquiring a set of new ideas from increased contact with oriental
systems of thought. Change of law was still rapid: lawyers were still
plentiful, but the law ceased to attract the best equipped minds. There
were no doubt several causes for this. The pax Romano, was ending.
That the growth of law proceeds best in an age of order and good
government is illustrated by the history of the empire in the first and
second centuries. But the State was now entering on a period of dis-
order and bad government. Able men will not devote themselves to
the severe study of the law if their labours are to be stultified by dis-
order and corrupt courts. No doubt there are men who will, but that
sort does not produce Papinians. Kipp2 assigns as a cause the increasing
absolutism of the Emperor, who no longer gives ius respondendi, but
seeks to make himself the source of equitable extension of the law. He
adds as an instance the Law of Citations, but this is effect rather than
cause, and we have seen that ius respondendi outlived the great jurists.
Krueger notes the introduction of Christianity, which caused many

1 It is not an epitome. There is no evidence that the statements of law have
been in any way altered, and there is some evidence to the contrary. But much matter
has been omitted altogether, and the MS. does not extend to obligations and actions.
2 Op. cit. 127.

B. K. L. 3

34 THE JURISTS [CH.

struggles physical and intellectual, and diverted men's minds to a new
channel1. Theology at any rate soon became actively studied. Karlowa2,
besides these, associates it with a general sinking of the intellectual level,
which is only another name for decay of the State.

The lack of living great jurists increases the importance of the
writings of the dead. In A.D. 321 Constantine enacted that certain
notes of Ulpian and Paul on Papinian were not to be of authority3,
language which implies either that the works of the great jurists had
acquired de facto authority, or that there had been earlier legislation
giving authority to some books4. There is evidence that some notes of
Marcian were excluded in the same way5. In 327 6 a statute confirmed
all the writings of Paul, but it is supposed that this did not cover these
notes. The enactment gives special prominence to his Sententiae. For
the next century there is no sign of further legislation of this sort. The
development of the law by the settlement of points of detail, which had
hitherto been the work of jurists was now done by imperial enactment,
but all seems to rest on the earlier literature as a basis. In 426 came the
famous lex de responsis prudentium — the Law of Citations7. Its pro-
visions may be shortly stated as follows :

(a) All writings of Papinian, Paul, Gaius, Ulpian and Modestinus are
confirmed and may be cited, except notes of Paul and Ulpian on Papin-
ian. Gaius is to have the same authority as the others.

(b) Any writers cited and approved by any of these may be cited,
such as Scaevola, Sabinus, Julian and Marcellus, provided by reason of
the doubt due to their antiquity their books are confirmed by com- ).
parison of manuscripts.

(c) If the jurists cited disagree the majority is to be followed: if
numbers are equal, Papinian. If he is silent, the index may please him-
self.

This law lessened the difficulties of the courts in dealing with juristic
literature. It excluded a huge mass of conflicting doctrine, the relative
value of which had not been determined, and which yet had to be used
by the judges as a source of principle on which to base their decisions.
It was even more important than it seems, for it is evident that by this
time even the old leges were in effect looked for and applied only as
they were represented in juristic writings. But the enactment is not
clear and calls for remark on other grounds. It is the earliest certain

1 Op. cit. 297. As to the effect of Christianity on the law itself, Riccobono, Riv. di
dirillo civile, 1910, 37; Baviera, MeT,. Girard, 1. 67. 2 Op. cit. 1. 932. 3 C. Th. 1.

4. 1. 4 As the Codex Theodosianus begins with Constantine earlier legislation would

not appear hi it, and it was obsolete under Justinian. 5 Const. "Deo auctore," 6

=C. 1. 17. 1. 6. 6 C. Th. 1. 4. 2. 7 C. Th. 1. 4. 3, issued hi the West but operative
in both empires.

i] THE JURISTS 35

reference to Gaius, who must have lived 250 years before. From the
fact that his admissibility is emphasised and that no responsa of his are
known it is conjectured that he never had the ius respondendi.

The rule as to the jurists approved by the five is obscure. Presum-
ably, but not certainly, the admissibility extends to all their writings
and not merely the work quoted from. What is meant by comparison
of manuscripts? It is probable that in some cases manuscripts of the
more ancient works were rare or non-existent. It is difficult to construe
the words except to mean comparison of the extract with the original,
or of different copies of the original, but it is sometimes held to mean
examination of different manuscripts of the quoting authority1.

The provisions for the case of conflict are ridiculous : opinions should
be estimated by weight, not number2. Equally absurd is the rule that
Papinian is to be better than any one but not than two. These provisions
shew that scientific study of law was a thing of the past : they mark
probably the lowest point reached by Roman jurisprudence. A century
later, Justinian, in that part of his codification which consisted of an
abridgement of the writings of the jurists, ignored the provisions of this
lex and directed his ministers not to select any view merely because it
had a majority in its favour, and not to take any notice of the rule that
notes by Paul, Ulpian and Marcian on Papinian were to be rejected3.

Theodosius, who is named with Valentinian as propounder of this law,
founded or refounded a law school4 and planned a great scheme of
codification5. In view of the low quality of the men who were at his
service, as shewn in this enactment, it is hardly to be regretted that
only the earlier and simpler part of his codification was carried out.

XIII. REMAINS OF THE JURISTIC LITERATURE6. Besides the three
well-known books of Ulpian, Paul and Gaius7, we have not much from
the classical age directly. Apart from a number of small fragments we
have an account by Volusius Maecianus of the abbreviations which were

1 Krueger, op. cit. 300. 2 A plural tribunal must decide by majority, but this is
precisely because it is they themselves who have to decide. If the case is appealed, no
attention is paid to the question which was the majority view in the lower court.
3 There is however in C. 9. 51. 13 =C. Th. 9. 43. 1. (321) a passage excluding the
authority of the notes of Ulpian and Paul on Papinian in a certain question of validity
of a will. This is apparently an enactment a fortnight earlier than the general reprobation
of these notes (C. Th. 1. 4. 1). The point at issue is made the subject of an express enact-
ment. 4 C. Th. 14. 9. 3. 5 C. Th. 1. 1. 5. 6 Collectio librorum iuris anteiux-
tiniani; Girard, Textes; Riccobono, Fontes Iuris Romani anteiust. 7 Besides the text
of Gaius discovered a century ago, we have a very poor abridgement in the Breviarium
Alaricianum, which has long been known, and the recently discovered Autun Gaius
which looks like notes of lectures on Gaius, which is not very useful, but has added some-
thing to our knowledge. It is supposed to be of the fourth century, but may be earlier.
It is contained in the collections cited in the previous note.

36 THE JURISTS [en.

usual in describing the subdivision of a hereditas and for other purposes
of weight and measure, and a list by Valerius Probus of notae iuris,
which consists of the initial letters of certain common forms with their
expansions. We have only a part, and that partly through mediaeval
sources, but it has been made to give us a good deal of information
about the edict before Julian's revision1. We have also a fragment on
manumissions, part of a larger work, -which has received the name of
the Fragmentum Dositkeanum or Dositheum.

Of original juristic literature after the decline and before Justinian
we have practically nothing, and it may be presumed that there was not
much of value. We have however some works put together in the later
empire which contain, together with other matter, some juristic texts
not otherwise extant. The most important is the so-called Vatican ,
Fragments, which though only fragmentary is fairly bulky. It deals
with a number of distinct topics in separate titles and consists of extracts
from Papinian, Paul and Ulpian, interwoven with a number of imperial
constitutions ranging from 295 to 378, but mainly from Diocletian. As
it knows nothing of the Codex Theodosianus it must date from the
confines between the fourth and fifth centuries. It looks like a prac-
titioner's commonplace book, and it is possible that it was of earlier
date, added to from time to time. There is also the Collatio legum
Romanarum et Mosaicarum, dealing mainly with criminal laAv. It is of
about the same date and is of no great value for Roman Law, though it
has given us passages from Paul's Sententiae, not otherwise known. There
remains the Consultatio Veteris jurisconsulti. It consists of ten legal
problems submitted to an unknown lawyer and answered by him by
citations from Paul's Sententiae and constitutiones from the Gregorian,
Hermogenian and Theodosian Codes. The nature of the authorities
quoted suggests that it dates from the later half of the fifth century2.
In addition to these more or less continuous and complete works there
are a few fragments of which the most important are some Greek
scholia to Ulpian, ad Sabinum, called the Scholia Sinaitica.

Apart from private juristic writings we have several barbarian
codes which contain much Roman material. As the various parts of
the Western Empire were overrun by barbarian chiefs, these established
codes of law which were in whole or part designed for their Roman
subjects3.

(«) The Lex Romana Visigothorum*, or Breviarium Alaricianum
established in A.D. 506 by Alaric the second. It was declared to be
intended to correct the errors and elucidate the obscurities of the Roman

1 Girard, Melanges, 177 sqq. 2 Krueger, op. cit. 347. 3 See as to these Codes,
Krueger, op. cit. 350 sqq. 4 Ed. Haenel.

i] THE BARBARIAN CODES 37

lawyers, but it is plain that the men of that age did not understand the
profound Roman lawyers, and that what they did was to pick out what
they more or less understood. The result has little scientific value,
though it has been of the utmost service in re-establishing the text of
the Theodosian Code. Its contents are selections from the three codes
above mentioned and shortly to be considered, and some later enact-
ments, with inter pretationes attached to them, a very bad abridgement
of Gains, an abridgement of Paul's Sententiae, and a scrap of Papinian.
It is doubtful whether the inter pretationes and abridgements were new
or already in existence: the latter seems the most general opinion1.

(b) The Edictum Theoderici2. This was published a few years later by
Theoderic for the East Goths. It uses the same sources, but has much,
less in it. It is of little use as it does not usually even purport to give
the original text, but a brief statement of the gist of it. It differs from
the foregoing also in that it was applied to both Romans and Goths.

(c) The Lex Romana Burgundionum3. This is of about the same time
and uses the same sources. It is of much the same character, though
here and there it follows more closely the wording of the lex recited.
It acquired in the middle ages the name of the Papianum, the result it
seems of a curious blunder4.

Much has been added to our knowledge in recent years, especially as
to the Eastern Empire and Egypt, by the discovery and study of num-
bers of private documents. Even in relation to classical law private docu-
ments have been of great use but for the later period they are our chief
source. They are mostly on papyrus and in Greek5. They cover all kinds
of transactions and they have in general two striking characteristics.
They testify to an immense infiltration of oriental, late Greek, ideas
which had not found their way into earlier law, which indeed Diocletian
and his successors are shewn by their enactments to have taken some
trouble to keep out6. They testify also to a very low standard of legal
skill. They are longwinded as every document of that age was. but they
are also very unintelligently drawn. They use old Roman forms in trans-
actions with which they have no concern7, and the same absurdities

1 Conrat, however ("Die Westgothische Paulus," Abh. der K.A.d.W. (Amsterdam),
Letterkunde, 1907), gives good reason for thinking the interpretationes to be the work of
the compilers of the Breviarium. But as to use of pre-existing interpretationes, Kruegcr, op.
cit. 353. 2 Riccobono, Fontes iurit r. antei. (Baviera) 2. 571 sqq. 3 Ib. 2. 600 sqq.
4 The word Papinian stood at the beginning of an extract from him at the end of the L.
R. Visigothorum. Some MSS. contained the Burgundian Code at the end of that, and
a scribe misread the word and thought it was the title of the Burgundian Code. 5 Many
collections have been and are being published. A' list of the chief will be found at the
beginning of Mitteis, Rom. Privatrecht. See also Grundziige und Chrestomathie der Papy-
ruskunde, Juristischer Teil, by Mitteis. 6 See, e.g., C. 8. 46. 6. 7 Krueger, op. cit.

349, mentions a will, with a stipulation clause.

38 CODES OF IMPERIAL LEGISLATION [CH.

recur so frequently as to make it clear that the offenders are practitioners
and not private persons who do their own law.

XIV. LATE IMPERIAL LEGISLATION BEFORE JUSTINIAN. The Codes.
One great piece of work in Roman Law remained to be done. The best
lawyers of the fourth and fifth centuries seem to have turned their
attention to codification, to setting forth the law in a systematic form.
The first steps were not ambitious and, as might be expected, were
taken by private persons. The first attempt at anything like a Code was
the Codex Gregorianus1. This was a collection of imperial enactments,
arranged in books and titles, following fairly closely the order of Julian's
Digesta, and, within the title, chronological. It was apparently published
about A.D. 300. It is not extant : what is known of it comes from citations
in the late literature and the barbarian codes. We have only about
seventy constitutions, but these are from only a few of its books and
titles, which are numerous. From the fact that Justinian directed his
compilers, in making his Code, to compile it from the three pre-existing
codes eliminating their prolixity and repetitions2, it has been inferred
that all the constitutions he gives of a date earlier than Constantine,
with whom Theodosius begins, are from one or other of the two earlier3.
But this is unsafe ground, for it does not follow that omissions were to
be left uncorrected. And the leges are much altered in his Code, so that
the original form would still be uncertain.

The Codex Hermogenianus* is a collection of somewhat similar type,
except that it was not divided into books but only into titles, arranged
in much the same order. Still less of it is left, preserved in the same way.
It appears to be later than the other, but it is said that it cannot have
been much later, for some constitutions in Justinian's code are referred
to Constantine and Licinius5. Licinius was ejected in 323, and in the
Theodosian his name is struck out. It is inferred that these came from
the Hermogenian, and the failure to make the erasure would indicate
that it was put together before 323. This assumes however that no other
sources were used by Justinian. There is the further difficulty that this
Code is credited with constitutions of about 365 6. This is explained away
as being a mistake : the reference should have been to the Theodosian.
But this is a guess and another explanation is that the Hermogenian
was re-edited from time to time, and this was in a later issue. This is

1 See Collectio libror. juris anteiust. 3. 224 and Riccobono, Fontes, cit. 2. 547. There
were earlier collections, which were of a less comprehensive character. Papirius Justus
published a collection of the rescripts of M. Aurelius and Verus (Lenel, Paling. 1. 947)
and Paul published a collection (or two, Lenel, Paling. 1. 959) of judicial decisions with
notes. Apparently they were of cases in which he had been on the consilium at the hearing.
2 Const. "Haec quae necessario," pr. ; Const. "Summa," 1. 3 Krueger, op. cit. 317.

4 76. 316 sqq. 5 C. 3. 1. 8; 7. 16. 41; 7. 22. 3. 6 See Consultatio, 9.

j] CODEX THEODOSIANUS 39

confirmed by a text which tells us that Hermogenianus edited his book
three times1. But Hermogenianus, the same or another, wrote another
book which is cited in the Digest, to which this remark may refer2.

The Hermogenian must have been fairly bulky, since we possess the
120th constitution of the 69th title. This raises the question of its rela-
tion to the Gregorian. It is sometimes said to be merely a supplement
to this, but there is the difficulty that some constitutions appear in
both3.

These codes or collections were private enterprises, but it is clear
that they soon became authoritative and they were so regarded till
Justinian's time. They were not superseded by the Theodosian, since
that did not go behind Constantine, while the Gregorian went back to
Hadrian.

The Codex Theodosianus* is of much greater importance. Theodosius
was perturbed at the low state of legal skill in his empire of the East.
He founded or refounded a law school at Constantinople. We have
seen that, by the Law of Citations, an attempt was made to systematise
the citation of jurists. We have now to note a greater undertaking.
In 429 5 he appointed a commission to make a collection of imperial
general constitutions from the time of Constantine. It was to be in
books and titles, giving the actual words, except that immaterial matter
mig'ht be omitted, and constitutions which dealt with several matters

were to be split up and the parts set in their appropriate places. With a
view to education, he directed that all constitutions were to be set out,
even though no longer law, to which direction we owe most of our know-
ledge of the course of change in the later empire. He added, with a
view to practice, that another code was to be prepared containing only
operative enactments, with additional matter from juristic sources. This
work was evidently to have served as a general statement of the whole
law, but it was never prepared, though no doubt the plan gave a hint to
Justinian. After some years a fresh commission was appointed, mostly
of other men, with new instructions, but this was a continuance, not a
supersession, for in 438, when the Code was completed and adopted also
for the Western Empire by Valentinian III, the proceedings at its
reception recite the instructions to the first commission6. Our knowledge
of it is derived from a considerable number of manuscripts, which give
various parts — none is even approximately complete — and the Breviary

1 Krueger, op, cit. 321. 2 luris Epitomae, see Lenel, Paling. 1. 265. 3 E.g.

Coll. 6. 5. 1 ; 6. 6. 1. 4 Edited by Mommsen, 1905. Of earlier editions that by J.

Gothofredus (ed. Hitter, 1736-^5) still remains valuable by reason of the commentary.
5 C. Th. 1. 1. 5; 1. 1. 6. 6 Gesta Senatus de Theodosiano publicando, Mommsen, Theodo-
sianus, 1. 2.

40 CODIFICATION UNDER JUSTINIAN [CH.

of Alaric1, which embodied a great part of it. It is still far from complete.
Critics tell us that the compilers altered much, and omitted much which
has been found in other sources and which under their instructions
should have been included, and that in distributing constitutions which
dealt with more than one matter they shewed much activity but little
skill2. The work is arranged in sixteen books with several titles in each,
and it appears to follow roughly the order of the classical writers of
Digesta. Most of the defective part is in the first five or six books, of
which we have, it is said, only about a third. It was superseded by
Justinian's codification in the East, but appears to have remained
authoritative for a considerable time under the barbarians in Western
Europe3.

Theodosius and succeeding Emperors of course continued to legislate,
and collections exist of their Novellae constitutiones, usually edited with
the Theodosian4. They come from the East and the West, but the last
from the West are of Majorian, the latest being of 460. From the East
they end with Anthemius in 468, and the later ones, from Majorian, are
known only from their inclusion in manuscripts of the Lex Romana
Visigothorum. All the manuscripts are from the West5. The Eastern
Emperors of course continued to legislate, but we know little of their
enactments except as they are contained in the Code of Justinian.

XV. THE LEGISLATION OF JUSTINIAN. Soon after his accession in
527 he seems to have framed a plan for going down to posterity as a
great legislator. From the fact that Tribonian appears prominently in
all parts of the work, and that Justinian's legislative activity lessens
and almost stops on the death of Tribonian, it seems probable that he
was the inspirer, as he certainly was the chief instrument, of the whole
undertaking. Justinian's greatest legal work was his codification, of
which the following are the principal steps.

(a) The First Code, In 528 commissioners were appointed to prepare
a code of the imperial enactments. It was to be a consolidation of the
existing codes, omitting what was out of date, correcting where this
was necessary, and restating in clear language where the old words were
obscure. Constitutions were to be divided where they dealt with distinct
matters, so that rules might be in their right place, and, conversely, to
be combined where this seemed convenient6. The code was published
in the following year7, but, for reasons shortly to be stated, it had but a
short life.

1 Ante, § xin. 2 Krueger, op. cit. 326 sqq. 3 The MSS. are all from the West.

There is another small group of constitutions of the fourth and (early) fifth centuries,
mainly on church law. Mommsen, Theodosianus, 1. 907 sqq. 4 See Mommsen's edition,
vol. 2. 5 Mommsen, 1. xii. 6 Const. "Haec quae necessario." 7 Const. "Summa."

ij THE DIGEST 41

(b) The Digest or Pandects1. This was the well-known codification of
the juristic writings. It was begun in 530 and published in 533, an
extraordinarily short time for such a work, so short indeed that the view
has been maintained that there was in existence already a compilation
of somewhat the same sort — a predigest, and that the compilers of the
Digest were really only editing this and modifying it in accordance with
Justinian's instructions. But though there did no doubt exist com-
prehensive collections of texts — the so-called Vatican Fragments may
be part of one — nothing is known which justifies the view that anything
existed which could be considered as a sort of first edition of the Digest
which reduced the task of the compilers in the manner suggested2.

Justinian appointed a committee of sixteen with Tribonian at the
head to make the compilation3. They were to study and abridge the
writings of all those prudentes to whom the Emperors at any time had
given auctoritas conscribcndarum interpretandarumque legum. This would
appear to confine them to those who had the ius respondendi, but he
says further that they are not to use books of writers whose works had
not been received and usitatae by the auctores. This widens the field and
implies that any, even posth\imous, authorisation would suffice, and the
words recall the language of the Law of Citations as to those cited and
approved by any of the five. This would bring in lawyers of any age, and
in fact the Digest contains quotations directly from three republican
jurists, Q. M. Scaevola, Alfenus and Aelius Gallus. They were to embody
the result in fifty libri subdivided into titles, the order of which was to
be based on that of the Edict of Julian and Justinian's own Code. In
case of conflict they were to eliminate all contradictions and to choose
what seemed the best view, not being guided by the number who held
any particular view, or giving any particular writer a preference over
others. And though certain notes of Ulpian, Paul and Marcellus on
Papinian had been barred by legislation, they were not on that account
to neglect them. They were to correct and bring the matter up to date
where this was necessary. They were not to deal with matters already
handled in the Code, except where they called for fuller treatment. For
the sake of accuracy there were to be no abbreviations. The work was

1 Edited by Mommsen, 2 vols., with Prolegomena. Also stereotype edit. (Krueger);
a handy edition is in course of publication in Italy. 2 Notwithstanding Justinian's
statement that nothing of the kind had been attempted before ("Deo auctore" 2), it
has been maintained by H. Peters (Die Ostromische Digestencommentare und die Entslehung
der Digesten) that there was already in existence a compilation of similar character used
for purposes of instruction and that the work of the compilers was in substance merely
a revised and somewhat amplified edition of this. But the case set up by Peters has
been destroyed by various critics. See Lenel, Z.S.S. 34. 373 sqq. ; Mitteis, ib. 402 sqq.
As Mitteis points out, however, it is quite possible that they were much aided by existing
compilations for instructional purposes. 3 Const. "Tanta." 9.

42 THE DIGEST [CH.

to be the sole authority for the ancient leges and the jurisprudential
writings, and no one was to raise objections on the ground of differences
from the originals, which were superseded. There were to be no commen-
taries written upon it. The book was to be called Digesta or Pandectae1.

The work was completed and published in 533 and confirmed by a
constitutio^ which gives an account of the arrangement and of its division
into seven parts3 (chiefly it seems for educational purposes), and restates
and emphasises the rule that the codification was to be the sole authority
for old law. It explains that there may be accidental repetitions in the
codification but that many such are intentional, by reason of the im-
portance of the rule, and adds that any contradictions are only apparent
if the text is properly looked at. The prohibition of commentaries is
repeated (literal translations into Greek being allowed) and all future
copies are to be written in full with no abbreviations.

Space does not admit of details as to the works used. The great mass
is from few writers, Ulpian and Paul make up nearly a half and Papinian
and Julian are the others most used. Of the thirty-nine writers whose
works are quoted only three are from the republic and only about the
same number after A.D. 250. The compilers were not successful in keeping
out all contradictions and there are many repetitions; but this was in-
evitable, in a work of such magnitude, carried out with such rapidity.
The title is the real unit : the division into books is determined partly by
considerations of symmetry and partly by the requirements of education.
The order is in the main that of Julian's Edict, but there are diver-
gencies, into the reasons for which it is not necessary to go4.

In each title the quotations are in separate extracts bearing the
name of the author, the title of the book and usually the section or
liber of the book. To these extracts, and in the case of all but the short-
est, to paragraphs within the quotation, numbers have been prefixed by
editors, for ease of reference. The order of fragments within the title is
at first sight very puzzling. The .same topic appears sometimes to be
discussed at two or three points in a title with no obvious reason for the
separation : occasionally the matter seems utterly disorderly. About a
century ago Bluhme published an essay5, the conclusions of which have
been generally accepted, accounting for the arrangement in the following
way6. The commissioners, to hasten the work of dealing with the great

1 These instructions are contained in Const. "Deo auctore." 2 Const. " Tanta," Greek
parallel text, MowKtv. 3 On the mediaeval division into Diges/um veins, Infortiatum and
Digestum novum, see Roby, Introtl. ccxxxix; Kantorowicz, Z.S.S. 31. 40. 4 See Roby,
Introduction, ch. 3. In one case a single title is spread over three books, 30-32. 5 Bluhme,
Zeits. f. Geschichtl. Rechtswissenschafl, iv. 257 sqq. 6 Some of the apparent returns

to the same topic are explained, as is shewn by Lenel (E.P.) in respect of many passages,
by the fact that the jurist after commenting on the Edict proceeds to discuss the formula
of the action based on it.

ij THE DIGEST 43

number of treatises, divided into three committees, probably after the
order of titles had been agreed on. The books were divided into three
masses, one of which was entrusted to each committee. One committee
had Ulpian on Sabinus and the works dealing with the topics on which
this was a continuous exposition : this is called the Sabinian mass.
Another had those parts of Ulpian on the Edict which dealt with the
purely praetorian part of the Edict, as opposed to the civil law matters j
which Julian incorporated with it, and other books dealing with the
same matters : this is the Edictal mass. The other had the works of
Papinian and other books dealing with the same matters — the Papin-
ianian mass. There is another small set of books which do not seem to
belong to an}^ of the three. It comes frequently at the end of a title and
as the Papinianian mass is frequently the last to be inserted, this group
is called the Appendix or the Post-Papinianian mass. It usually follows
the Papinianian mass even where this is not the last. It is thus supposed
that a few books, overlooked, were, on their appearance, handed over
to the Papinianian committee as having the smallest mass, and perhaps
having finished their work.

The three committees met and incorporated the whole in the pre-
arranged titles, striking out repetitions and contradictions as they had
within their own masses. That mass came first in a title which from its
bulk or other considerations was the most important in relation to it.
The most common order is SEPA, but almost every possible order is
found1. In some titles only two masses occur2, in the short titles often
only one3, and in some, where the committee fused two or more intended
titles the masses occur more than once4. An examination of the books
assigned to each mass5 will shew that subject matter does not fully ex-
plain the distribution, which may have been done hastily. When the
principle is applied to the different titles it is seen to work correctly,
except that short extracts from one mass are occasionally found inter-
spersed in another. This is sometimes in order to complete an account
which appeared defective, but, perhaps more often, to get, early in the
title, some general definition or the like, which the mass which was to
come first does not provide, or to contrive an easy transition from one
mass to another6.

XVI. The Digest is of course our chief authority for the Law of

1 E.g. 3. 1-3, EPS; 3. 4, ESP; 4. 3, EPAS; 13. 5, SPEA, etc. 2 See for illustrations
Krueger, Rom. Rechtsq. 381. 3 1. 2 is fairly long, but it consists only of two fragments,
from the Papinianian mass. 4 The composition of each title and the arrangement and
distribution of the masses is indicated for each title in the Berlin stereotype edition.
5 See Roby, Introd. ch. 4. 6 Bluhme's theory though almost universally accepted

was attacked by Schmidt in 1855 and by Hofmann in 1900. But it is generally agreed
that in both cases the criticism is ineffective.

44 THE DIGEST [CH.

Justinian, but it is also our chief authority for much of the earlier law.
For the purpose, however, of arriving at the classical law, the work
must be used with great caution. The compilers were directed to alter
the original texts so as to make them state current law. It follows that,
in determining from a text of Julian in the Digest, what was the law of
his time, we have several difficulties to contend with. The literature was
already some centuries old and no doubt many corruptions and glosses
had crept into it. Even the main manuscript which we have of the Digest,
though it was written not long after the time of Justinian1, has no
doubt corruptions of its own. These difficulties present themselves with
all manuscripts. The definite intentional alterations of the text are a
more serious matter. A great deal of legal history has been carefully
concealed by the compilers and is to be found, if at all, by reading
between the lines of the Digest. In the last fifty years a great deal of
study has been devoted to these alterations, which have acquired the
name of "interpolations2," a word used in a loose sense to cover elisions,
misplacements and alterations as well as actual additions3. Very striking
results have been obtained by this study. The best known is the case of
fiducia, of which not much was known until Rudorff observed that a
text dealing with pignus incidentally used a feminine pronoun, earn
instead of id4. He inferred that the text spoke originally of fiducia, and,
consequently, the same would be true of other texts from the same
part of the original work. Lenel carried the matter on by ingenious
work with other texts5 with the result that this trifling slip of the com-
pilers was the starting point of a brilliant series of researches into the
history of the Roman Law of Pledge 6.

The methods of detection of these interpolations are numerous and
fresh devices are constantly being found. The simplest is of course com-
parison with the original text, but new original texts are not discovered
very frequently. Apart from this, the methods may be grouped under
two heads : those based on style, grammar and language, and those
based on the nature of the argument. Both have their dangers. Sixth
century words and grammar suggest alteration, but we do not always
know what was possible to writers, many of whom were of foreign
extraction. Greek idioms suggest Byzantine work, but many of the great,
lawyers were Greeks. Florid language suggests Justinian, but even

1 Mommsen, Editio maior, 1. xxxx. 2 See for a general account of this matter, H.

Appleton, Des Interpolations et des methodes propres a hs decouvrir. For the present state
of the question, Schulz, Einfuhrung in d. stud. d. Digesten. 3 They were formerly

called Emblemata Triboniani. 4 13. 7. 8. 3; h. t. 34. See Lenel, Z.S.S. 3 (1882), 104.

5 Lenel, ib. 6 The history of innominate contracts, of dotis dictio. of the remedies in

sale for defect of title, of security in litigation, etc., have been illuminated in the same
way.

i] THE DIGEST 45

classical lawyers could1 be guilty of it. Highly involved sentences with
many parentheses and hypotheses are characteristic of Justinian, but
Gains has some specimens2. Even obvious "dog-Latin" does not prove
material alteration : the scribe may have intended to write what was
before him, but slipped into the grammar of his own time. Even in-
tentional alteration does not always mean material change : there are
many cases in which comparison has shewn that small alterations in
wording were made without any intention to affect the meaning of the
text3. The same may be said of some of those tests which turn on
matter. AYhere a text writes nonsense, it may be merely a word mis-
written which has made the passage absurd. Even the compilers did
not intentionally write nonsense. Even where one text plainly contra-
dicts another, interpolation is not certain. Classical disagreements were
sometimes retained by oversight4. No doubt wrhere a text plainly
contradicts itself it is probably altered5. When an obviously poor
reason is given interpolation is likely, but even here the rule may be
classical, the reason a hasty happy thought of the compilers. Even
bad reasons may be classical6. A sure indication of interpolation is an
allusion by a jurist to an institution Avhich did not exist in his day.
Thus Paul is made to apply the rule, introduced by Justinian, that a
tutor must be 25 7. Ulpian is made to say that legacies and fideicommissa
are completely assimilated, a step which was not taken till Justinian 8.

The systematic search for interpolations has been carried on now
for more than half a century. In some hands it has given excellent
results9. In others it has been done with more zeal than discretion. It
is easy to throw suspicion on a text, and those who had theories which
the texts did not suit Avere provided with a handy instrument. But
when some indications relied on had been shewn to be untrustworthy10,
and some texts held to be interpolated proved on discovery of the
original to be essentially genuine11, a more careful method began to

1 15. 1. 32. pr. See Z.S.S. 25, 369. 2 See H. Appleton, op. at. p. 47. 3 See

the instances in Roby, Introd. Ixiii sqq. 4 The disagreements as to possession by

a hereditas are clearly classical, post, § cvn. 5 13. 6. 22. See on the point itself,

Buckland, Law of Slavery, p. 126. 6 Paul says that loss of a tooth is not a redhibitory

defect under the Edict of the Ediles. The real reason is that it is not a serious defect. But
he gives as the reason that, if this were a defect, all babies must be defective as they have
no teeth at all. This looks so absurd (for it would be equally true of inability to walk)
that it seems impossible that a jurist could have said it. But in fact it seems that Labeo
said it in the course of a discussion with Servius which Aulus Gellius has preserved, D. 21.
1. 11; Noctes Att. 4. 2. 9, 10. 7 26. 2. 32. 2; see C. 5. 30. 5. 8 D. 30. 1. Post,

§ cxxv. 9 See for instances, Gradenwitz, Interpolationen, and Z.S.S. 6 (two articles),

and Eisele, Z.S.S. 7, 15; 11. 1; and 13. 118, and Beitrdge, 225 sqq. 10 Service has been

rendered by Kalb in a series of works, Jurislenlatein, Roms Juristen, Jagd tuich 1 nterpola
tionen, Wegweiser in die Romische Rechtssprache. 11 Z.S.S. 25. 369.

46 THE INSTITUTES [CH.

prevail, and it seemed to be an accepted canon that no text was to be
regarded as materially interpolated on linguistic grounds alone. But
the undoubted alterations in the Digest may be reckoned, perhaps, by
thousands, and there are a vast number more of doubtful cases1. Some
parts have suffered more than others. Procedure and transfer of property
have been drastically handled, but the titles dealing with bonae fidei
transactions are not so much affected2.

Thus this enormous book is in effect a palimpsest. Concealed in its
propositions are other propositions written by greater men, difficult to
find but of supreme interest to the student of legal history when found.

XVII. (c) THE INSTITUTES. This work was compiled in the last year
of the preparation of the Digest and published almost with it. It was to
be, and still is, a first book for students. The compilers, of whom three
were chosen for this work, were directed3 to utilise the old institutional
writers, especially Gains, and they modelled the plan on that of Gaius.
The difference in the dividing line between books 3 and 4 is merely a
matter of symmetry, but the book has a \vider scope than the Institutes
of Gaius, since it has titles on officium judicis and on criminal law, for
which he has no counterpart and has indeed a somewhat different aim4.
A great part of the matter comes from his Institutes and Res cottidianae,
but it is clear from internal evidence that the compilers also used the
Institutes of Florentinus, Ulpian and Marcian, and they probably used
those of Paul5. The book was declared to have the force of law6, an
unusual thing for a textbook, and inconvenient in some respects, since
it does not always agree with the Digest7. It is a dogmatic exposition
of the main rules with little historical matter or argument, on the whole
a rather mechanical production, much less interesting than Gaius him-
self.

(d) The Quinquaginta Decisiones. Imperial legislation of the ordinary
kind was still going on, and the Code, as we have it, contains a great

1 The 11 th and later editions of the Berlin stereotype edition of the Digest indicate a
great number of supposed interpolations with the name of the writer who points them out,
but not all of these are universally accepted. (An index is (or was) being prepared in
Germany indicating with exact reference all alleged interpolations noted in any published
work, without any critical matter.) The 13th edition has an appendix supplementing the
indications in the text. In recent years there has been marked renewal of activity in the
pursuit of these interpolations, but while some of the results may be accepted as certain
there has been a great deal published which, to say the least, is still sub iudice. In many
cases the material objection is only the author's thesis, and reliance is placed on the un-
certain test of form. 2 They provide however one possible important case. It is widely
held that the passages dealing with custodia are largely interpolated. See post, § cxci.
3 Const. " Imperatoriam" (Preface to Instit.); Const. "Tanta," 11. 4 Post, § xxi.

5 Whether they used more advanced books, and if so whether they used the originals
or the Digest is uncertain. See Ebrard, Z.S.S. 38. 327 sqq. 6 Const. " Imperatoriam," 6.
7 E.g. In. 2. 1. 21; D. 41. 1. 7. 2, and Inst. 3. 15. 3; D. 4. 6. 43.

i] CODEX REPETITAE PRAELECTIONIS 47

number of Constitutions of Justinian. Many of these are directly aimed
at settling old disputes, no doubt in order to simplify the task of the
compilers of the Digest. A collection of these was published under the
above titles, but the book went out of use as soon as the new Code was
in force. As there are many more than fifty enactments of this type,
while there are few of which there is direct evidence that they were in
this book, much controversy has arisen as to what it did contain, but it
is little more than conjecture. It has been siiggested1 that as there are
about fifty dated before the Digest was begun in 530, the collection was
issued then. The difficulty that there are two from 531 which are known
to have been in the book is pointed out but not met.

(e) The CODEX REPETITAE PRAELECTIONIS*. The mass of new
legislation had made the first edition of the Code obsolete. Accordingly
instructions were issued for a new edition3, which is that we have. A
commission of five of the Digest commissioners with Tribonian at the
head were to do the work. The instructions were much like those for the
old edition, and it was to be the sole authority for imperial constitutions
up to its publication. There was a reservation for future enactments
if any should be required4, and presumably the reservation of validity
for certain privilegia and regulations for officials, not in the Code, but
not in conflict with it, which was contained in the instructions for the
earlier Code5, applied equally to the new. There were to be no repeti-
tions or contradictions, a direction which, as in the case of the Digest,
was not completely carried out, and only operative law was to be re-
tained. The book was published in 534, in twelve libri, subdivided into
titles. The order is roughly, Church Law, Sources, Functions of high
Officials, Private Law, Criminal Law and Details of Administrative
Law6. The Digest and the Code were to be read together and thus what

O <^>

was in one was not to be in the other, a practice which so far as it was
carried out was rather inconvenient, since what looks like a complete
account in the Digest is often much affected by what is in the Code7.

(/) The Novellae Constitutiones*. It is evident that on the comple-
tion of the codification Justinian thought the system adequate and
supposed that new legislation would not be a very important factor.
But, in fact, new and important legislation began almost at once, and
the new enactments acquired the name of Novellae Constitutiones,

1 Krueger, op. cit. 369. 2 Edited by P. Krueger, with a smaller edition in the

Berlin stereotype edition of the Corpus Juris Civilis. 3 Const. "Cordi." 4 Const.
"C&rdi," 4. 5 Const. "Summa," 4. 6 Krueger, Rom. Rechtsq. 388. 7 Thus

the law of theft from a commodatarius as stated in the Digest is much altered by an
enactment of Justinian in the Code, C. 6. 2. 22. 8 Edited by Schoell and Kroll,

see the Berlin stereotype edition of the Corpiis luris Civilis. It gives the original lex,
the Authenticum, and a new Latin translation.

48 NOVELLAE [en.

which had been applied to imperial enactments after the publication of
the C. Theodosianus. They were to have been oflicially collected from time
to time1, but they never were, and what we know of them is due to
private collections. They are for the most part in Greek. The majority
are concerned with public matters and have little interest for private
law, but some of those which do deal with private law are of the greatest
importance. Thus the laAv of succession on intestacy was not only
reformed, but absolutely changed in principle2. The rapid flow of novels
slackens shortly before the death of Tribonian and there are few after
his death in 5463. In Justinian's time an epitome of about 120 Novellae,
ending in 555, was published, the Greek novels mostly in a Latin trans-
lation and all the novels abridged. Another translated collection without
abridgement appeared late in the sixth century. It is commonly called
the Authenticum. It contains more leges, but goes no later. A fuller
collection4 in the original languages made about the same time contains
165 novels and a few other matters. From these and a few minor collec-
tions the modern editions are made up.

XVIII. Justinian's Codes were to be the unvarying law for the whole
empire, but he was to find what other legislators have found, that
custom would be too strong for him. It is clear that even in the East,
for which his legislation was specially designed, it was far from uni-
versal in application. The remoter parts of the empire were little affected
by it. The Syro-Roman Lawbook5, which was in circulation before
Justinian and contains besides old Roman Law many rules which are
not Roman Law at all, continued in use long after his codification6.
Indeed there is reason to think his legislation fell into some neglect
during the seventh century. It was revived by the publication in 740,
under Leo the Isaurian, of the Ekloge, a sort of collection from all the
Codes, and again about the beginning of the tenth century by the
Basilica7, a Greek paraphrase of the Books of Justinian, to which soon
came to be appended a number of scholia, consisting mainly of extracts
from the commentaries of writers of the sixth and later centuries.

Even the partial success of Justinian's legislation is largely due to
the fact that Justinian was himself an oriental, served by orientals,
and thus the work was much influenced by local conditions. A recent

1 "Cordi," 4 in fin. 2 Now. 118, 127. There are great changes in the law of the Q.
inofficiosi testamenti (post, § cxiv), surety, marriage, procedure, etc. 3 About 135 up

to A.D. 540, about 30 after. 4 As to these collections, see Krueger, op. cit. 401.

Summaries of the Novellae (authenticae communes) are found, at appropriate points, in old
editions of the Code. 5 Edited by Brims and Sachau. See also Sachau, Syriscke
Rechtsbucher, containing more recently discovered versions. 6 Krueger, op. cit.

363. 7 Edited by Heimbach, with supplements by later editors, but it is far from

complete. See Krueger, op. cit. 415 sq.

i[ LEGAL EDUCATION 49

work maintains the thesis1 that Justinian must be regarded not as one
who sought to revive the classical jurisprudence, but as one who, govern-
ing an oriental State, sought to make the classical law available for an
oriental people by a steady and consistent remoulding of it under the
guidance of eastern traditions. The introduction of eastern principles,
mainly late Greek, is, on this view, the keynote of his work, and this is
supported by an analysis of his various reforms. Whether we accept all
the demonstrations or not, it must be agreed that to get a real under-
standing of Justinian's influence on the law we must see him as a Bvzan-

tine potentate, and not a Roman.

Justinian was a reformer not only of law, but of legal education.
There had been a law school at Constantinople at any rate from the
time of Theodosius2 and there was a famous one at Berytus. These he
preserved, but he suppressed the schools at Athens, Alexandria and
Caesarea3. In the Constitution "Omwew" at the beginning of the Digest,
he tells us all we know of the existing system of study, which he thought
defective in plan and badly carried out, and goes into detail as to his
reformed scheme. The old scheme was a four-year course to be com-
pleted before the age of 25. The student attended lectures for three
years and gave the fourth to private study of Paul's Responsa. Fresh-
men were called Dupondii*, second year men, Edictales; third year
men, Papinianistae, because the}^ mainly studied Papinian, and fourth
year men AiVai, which presumably means released from attendance at
lectures5. He prescribes a five-year course6. Freshmen were no longer
to be called by the frivolous name of "Twopennies," but Novi Justiniani ;
fifth year men were to be called Prolytae, and the other names remained6.
Freshmen were to be lectured on the Institutes and .on the first part of
the Digest (Books 1-4, "Pro/a"), second year men on the second part
(Books 5-11, de iudiciis) or the third (Books 12-19, de rebus) and Books
23, 26, 28 and 30. Third year men had the third or the second part, and
Books 20-22. In the fourth year there were no lectures, but men
studied all the rest up to Book 36. In the fifth year the Code was read.
The way in which Justinian kept the needs of education before him is
illustrated by the fact that in Book 20, which is the first of those specially

1 Collinet, fitudes historiques sur le Droit de Justinien. He points out that at the time
of the compilation Justinian had only a shadowy suzerainty over Italy. It is in virtue
of this that he repeatedly names Rome as part of his territory, e.g., in regulating his law
schools there is to be one at Rome ("Omnem," 7 "urbes regias"). No doubt he had already
formed the idea of expelling the Goths. There was no western jurist in his councils.
2 Ante, § xiv. 3 "Omnem," 7; Krueger, op. cit. 393. 4 According to H. Pernice

(cited, Krueger), the name was first applied to pupils in gladiatorial schools (an allusion
to the small pay), then to soldiers, then to law students. See, however, Krueger, op. cit.
398. 5 But the form of the word, if this is its meaning, gives trouble to philologists.

6 "Owme/w," 2-5; Roby, Introd. xxvii.

B. R. L. 4

50 ADMINISTRATIVE ORGANISATION [CH.

reserved to third year men, nearly all the titles begin with an extract
from Papinian, so as to justify the retention of the old name, Papinian-
istae, for these students1. Every student had to receive a certificate of
diligence and competence from his professor before he could practise2.
The alternative in the second and third years was probably designed to
economise the teaching, so that two years could attend the same lectures.
There appear to have been only four professors in each school, and
apparently the students were distributed amongst them so that each
man studied continuously under the same professor.

XIX. The administrative organisation of the empire does not directly
concern us, but some general account of it is necessary to the proper
understanding of the legal texts.

We are accustomed to speak of the empire till the time of Diocletian
as a Dyarchy, in which the Senate and the Emperor divided the admin-
istration. Formally this was so : the Senate had a field nominally
reserved to it, e.g., the control of the Senatorian provinces. But the
reorganisation under Diocletian was only the formal registration of a
change which had in fact long since taken effect, so far as this point is
concerned. The Emperor had had, from the beginning, a great power
over the Senate3: his grip steadily strengthened and it would be more
in accord with fact to say that the real monarchy began with Hadrian^1
when the Emperor's power of legislation was fully recognised, the
praetors lost the power of legislation by edict4, and there remained no
republican magistracy with any real power at all. The specially imperial
officials were at first mere representatives of the Emperor. Those who
governed the imperial provinces, though they had pro-praetorian power
were officially Legati Caesaris5. The great magnates, the Praefectus Urbi
and Praetorio, were themselves mere delegates, as were the subordinate
praefecti, annonae and vigilum. But their functions tended to increase
at the expense of those of republican magistrates and in course of
time they came to be regarded as great officers of State rather than of
the Emperor. The Praefectus Urbi and his subordinates ousted the
aediles and praetors from their functions in Rome6, and the Praefectus
Praetorio gained control of all military forces7. The rapid development
of cognitio extraor dinar ia brought with it a system of appeals culminating
in the Emperor. At first, if he did not hear the case himself, he delegated
it to the Urban Praetor, but by the third century it was in the hands of
the Praefectus Urbi, who also exercised the imperial criminal jurisdiction8.

•

1 "Omnem," 4. So does Book 22. In the first 19 books only 3 titles begin with an
extract from Papinian. 2 See the reff., Kraeger, op. cit. 394, n. 9. 3 Ante, § v.

4 Ante, § iv. 5 Mommsen, Staatsr. 2. 244; D.P.R. 3. 280. 6 Willems, D.P.R. 470,
502, etc. 7 Ib. 430 sqq. 8 76. 502.

i] ADMINISTRATIVE ORGANISATION 51

Appeals to the Emperor from criminal judgments of the provincial
magistrates were referred by him to the Praefectus Praetorio1, and similar
developments went on steadily in all departments of administration.

The office of Princeps2 was not hereditary. The Emperor nominated
his successor, of course frequently from his family. But the successor
had, at least nominally, to be approved by the Senate, and conflicts
arose, since the Senate might adopt one candidate, the army, growing
steadily more aggressive in politics, might set up another, and yet
others might claim to have the Emperor's nomination. Diocletian
endeavoured to systematise matters, and avoid conflict, by associating
with himself another Augustus, Maximian, of equal authority, and with
each a subordinate emperor, with the title of Caesar, who was to succeed
as Augustus3. Laws were issued in the names of the two Augusti, but
in administrative matters they governed distinct regions of the empire.
The name Caesar had been in use before as an honorific title to a destined
successor, but the new Caesares were administrative chiefs who acted
for the Emperors in many fields. There was no guarantee of permanence
in this, and the fourth century gives a story of constantly renewed civil
wars in which the nominees of the army had usually the upper hand.
In 364 Valentinian became undisputed Augustus. He associated with
himself his brother Valens, and handed over to him the administration
of the East4. But Valens could not hold his own and, after the death of
Valentinian, Gratian became in effect Emperor of the whole. In 395 a
more permanent division was made. Arcadius became Emperor of the
East and Honorius of the West in succession to their father, Theo-
dosius I, who had governed the whole5. From that time the distinction
was maintained: the two Emperors were colleagues governing distinct |
sections of one great State. We have already considered the changes in
the rules as to the validity in one empire of laws made in the other6.

The notion of a province underwent a great change. In the earlier
empire a provincia had meant a remote outlying part of the empire, a
dependency, the inhabitants of which, though subjects of Rome, were
not in general Roman citizens. The extension of civitas under Caracalla7
made the distinction rather unreal and paved the way for a complete
reorganisation of the State. Under Diocletian 8 the whole empire, except
the capitals, was divided into four praefecturae, two in the West and
two in the East, each under a Praefectus Praetorio. Each praefectura
was divided into a small number of dioceses, each under a Vicarius

1 Ib. 2 Mommsen, Staatsr. 2. 1132 sqq.; D.P.R. 5. 444 sqq. 3 Gibbon (Bury),
i. 352, 353. 4 Gibbon (Bury), 3. 10. 5 Mommsen, Staatsr. 2. 1145 sqq.; D.P.R.

5. 459 sqq. 6 Ante, § vi. 7 Post, § xxxvn. 8 Karlowa, R.Rg. 1. 850, a gradual
reform begun before, and completed after, Diocletian.

4—2

52 IUS CIVILE [CH.

Praefecti, appointed by the Emperor1. Each diocese was divided into a
considerable number of provinces governed by an officer, usually called
a Rector, but differing in rank and title in different cases2. The Diocese
of Italy had two Vicarii, for North and South respectively, the latter
being called Vicarius Urbis Romae, and having, though the capitals
were excluded from the provinces, a certain concurrent jurisdiction in
civil and criminal matters with the Praefectus Urbi, who was the chief
magistrate of Rome3. A province was now a small territory, or might
be (Italy contained seventeen provinces), and the name province did
not now connote any sort of inferiority : it was merely the name of the
administrative unit4.

XX. CUSTOM. I us CIVILE, GENTIUM, NATURALS. The sources
of law which have been considered are those of ius scriptum, the
means by which new rules were expressly introduced into the system. But
many of the older institutions had no legislative basis and originated in
custom5, as indeed did many of the rules Avhich found expression in the
XII Tables. But long continued usage was recognised in the republic6
and throughout the classical age 7 as a kind of tacit consent, equivalent
to legislation and thus capable not only of creating new rules and
institutions, but of modifying and even repealing express statutes8.
Constantine indeed provided that long continued usage was of no force
against a statute9, but the Digest preserves the contrary rule10. It is
probable that Constantine is dealing with purely local usages as against
leges generates11.

In historical times, apart from adoption by express legislation,
custom commonly achieved recognition by the activity of the jurists12,
in which case it was hardly to be distinguished from the interpretatio
prudentium, the disputable fort13, to which as we have seen, the name
ius civile was applied in the republic. But for the classical lawyers the
expression ius civile had a wider meaning: it was used sometimes to

1 In one or two eastern dioceses, these officers have special names; see for these
and other exceptional cases, Willems, op. cit. 602. 2 Two or three ancient and

privileged provinces (Asia, Achaia and Africa) continued to be governed by proconsuls hi
the old way and were thus excluded from the general scheme. Willems, op. cit. 605.
3 Mommsen, Staatsr. 2. 968, 985; D.P.R. 5. 257, 276. 4 But certain rules in which

distinctions had been drawn between Italy and the provinces still appear as survivals
under Justinian. See, e.g. Inst. 1. 25. pr. ; D. 47. 18. 1. 2; 47. 22. 1, pr., etc. 5 See, e.g.,
G. 3. 82; 4. 27; D. 24. 1. 1, etc. 6 Cicero, de legg. 2. 10. 23; de inv. 2. 22. 67; 2. 54.

162; Appian, Bell. C. 1. 54. 7 Ulp. 1. 4.; D. 1. 3. 32 sqq. 8 Appian, cit.; Aul. Cell.

2. 24. 3-11; D. 1. 3. 32. 1 in f. 9 C. 8. 52. 2. 10 D. 1. 3. 32. 1 in f. 11 Or, it
may be, thinking only of imperial legislation, or possibly of a contention that new legisla-
tion was not to apply to provinces in which there was a settled custom conflicting with
it; it is certain that the Emperors did not always succeed in uprooting customs. On the
conflict see Kipp, Gesch. der Quell. §4. 12 Ante, § ix. 13 See Jors, op. cit. 80 sqq.

i] I US GENTIUM: I US N AT U RALE 53

mark off the rest of the law from that made by the magistrates, ius
honorarium, and sometimes to mark off the essentially Roman part of
the law from that available even to peregrines, ius gentium, an ex-
pression often found associated with another, ius naturale1. This last
notion originated in Greek philosophy : it was a system of moral rules
thought of as implanted in man by nature— an intuitionist morality.
The notion of ius gentium is a more controverted matter. The expression
appears first in Cicero, but in a phrase which seems to imply that it is
in fact older2. How old the thing itself is we do not know. Originally it
meant the rules which were applied in dealings with aliens, whether
originally imported from alien usage3 or of internal origin4, the simpler
parts of the Roman Law applied to aliens, we need not consider. But we
must say a word or two on the significance of these terms, and especially
ius gentium, among the classical lawyers. The jurists do not tell a clear
story. For Gains ius gentium and ius naturale are the same thing : the
law which nature has instilled into all nations5. But the other jurists
who mention the matter, who are later, commonly distinguish, pointing
out that slavery is iuris gentium, but contrary to ius naturale. Ulpian
goes further and identifies ius naturale with instinct6, and Justinian
adopts the views of Gains and Ulpian as if they were the same. Accord-
ingly it has been maintained7 that, for the age of Hadrian and before,
there was no difference, but that in the late classical age the two ideas
began to be distinguished, and the distinction became a standing part
of mediaeval political thought. It is pointed out that it is a mistake to
regard the jurists as Stoic philosophers, governed by the notion of life
according to nature8. But it is to be borne in mind that, though not
philosophers, they were educated men, and Greek philosophy played a
large part in Roman education, and this view of the course of thought
seems a little too simple. It is true that Gains identifies ius gentium and
ius naturale, or, what is the same thing, naturalis ratio9, but no other
jurist of his age or earlier has left us his views on the matter. The current
notions on the relation of these two conceptions were doubtless derived
from the philosophers, and we can see that Cicero, who expresses their
views, uses the term ius gentium in several senses. His best-known
utterance speaks of it as a branch of the law, a part of the law dis-

1 See on the whole matter, Krueger, Bom. Beclttsq. 43 sqq. ; Mitteis, B. Pr. \. 62 sqq.,
and as to influence of local usage, Beichsr. und Volksr., Einleitung. 2 De off. 3. 17. 69.

3 A view held with a variety of differences, see Jors, Bom. Bechtsw. 1.114 sqq. 4 See

Clark, Pract. Jurisp. ch. xiv, for the principal views and criticism. 5 G. 1. 1. Frag.

Dos 1. 1., as in MS., distinguishes them, but it is very corrupt and as ordinarily edited
it identifies them. 6 D. 1. 1. 1. 4; of. Inst. 1. ± pr. 7 Carlyle, A. J., and R. W.,

Hist, of Med. Pol. Thought, 1. 36 sqq. 8 So, also, Nettleship. Journ. of Phil. 13. 169

sqq. 9 G. 1. 1; 2. 65-69; 3. 154; D. 41. I. 3, 9. 3,

54 IUS GENTIUM: IUS NATURALS [CH.

tinguished from the strictly Roman part by maiores1. Elsewhere he
treats it as a code of rules supposed to exist everywhere2. Again, he
infers from this universality that it is "natural3," and elsewhere he
speaks of it simply as iuris naturalis4. Of these various significations
Gaius adopts the last, but it is clear that the philosophic view was not
the only one, or itself absolutely settled. If we look at the later jurists
we find of course many texts in which ius gentium is spoken of as a
branch of existing law to which various institutions are referred5. But
we also find the more speculative aspect of it considered6. Commonly
the later jurists treating ius gentium as universal, nevertheless distinguish
between it and ius naturale, on the ground that slavery is iuris gentium,
but contra naturam7. But elsewhere these same jurists seem to identify
them 8. The general conclusion seems to be that ius gentium in the only
sense in which it is of value in legal discussion means certain rules
which, whatever their origin, were a part of the law and had been applied
in dealings with peregrines, and that the more speculative conception of
it as universal was borrowed from the philosophers, and, being for legal
purposes no more than ornament to discussion, was not very exactly
formulated. Sometimes the difficulty created by slavery was considered
and sometimes it was neglected. It seems to be never mentioned as the
basis of distinction except in texts dealing ex professo with slaves.

The expression ius naturale is also used in more than one sense.
Sometimes it is an ideal to which law ought to conform 9, sometimes it is
< the basis of all law and is thus not to be set aside by the law of the
State10. The notion is of small importance in legal discussion, for though
various institutions are referred to it, they are all equally referable, and
referred, to ius gentium, and in case of conflict the latter prevailed. But
while it is obvious that the ius gentium steadily superseded the old ius
civile, it must not be forgotten that its supposed universality was a <
great force to this end, and this was its point of contact with ius naturale.
This name, ius naturale, expresses a tendency in the trend of legal
thought, a ferment which was operating all over the law. The notion of
obligatio naturalis was a direct result of the conception of ius naturale.
But the fact that ius naturale was not law is brought out by the gradual

1 De off. 3. 17. 69. 2 Part. or. 37. 130. 3 De off. 3. 5. 23; de rep. 3. 22. 33;

Tusc. 1. 13. 30. 4 Deharusp. S. 14. 32. 5 E.g. 41. 1. 1;46. 4. 8. 4; 48. 19. 17. 1; 48.
22. 15, etc., etc. 6 Pomponius applies it to the rules for State intercourse, the nearest
Roman equivalent to Public International Law, 50. 7. 18. 7 Inst. 1. 2. 2; 1. 3. 2; Flor.,
D. 1. 5. 4. 1; Tryph. 12. 6. 64; 16. 3. 31. pr.?; Paul, 18. 1. 34. 1; Ulp. 1. 1. 4. pr. His con-
fusion with instinct may be neglected (1. 1. 1. 3), Mitteis, loc. cit., and others, attribute
it to Justinian. 8 Paul, 19. 2. 1; 50. 17. 84. 1; Ulp. 1. 1. 6. pr., where "ct" is read

sometimes "eis" which alters the sense. Interpolations are sometimes assumed to avoid
the differences, with little evidence. 9 Krueger, op. cit. p. 133. 10 Cicero, de

invent. 2. 22. 65 sqq.; de leg. 2. 5. 11 sqq.; G. 1. 158; Inst. 1. 2. 11; D. 4. 5. 8.

i] IUS GENTIUM AND THE EDICT 55

and incomplete development of this idea. To the end there was, in
general, no naturalis obligatio to keep an agreement : it seems to be
generally agreed that a pact did not necessarily create a naturalis
obligatio1.

It should be added that there is no justification for treating the
Edict as originating in the ius gentium'2'. Many ideas in the Praetor's
Edict no doubt were due to this idea, but many had no direct connexion
with it. The Publician action is not iuris gentium, for it is confined to
things capable of usucapio and to persons with commercium. The traffic
of everyday life and the disputatio fori no doubt produced many new
ideas, and it may well be that many rules came to be thought of as
iuris gentium, though they owed their appearance in the edict to other
influences. Conversely, many institutions of ius gentium had nothing
to do with the Edict. Traditio and the other iure gentium (naturali)
modes of acquisition were not established by the Edict, nor were stipu-
latio or acceptilatio, both of which were iuris gentium3.

The word aequitas figures a good deal in the juristic texts4. It is
shewn by Krueger5 that it is of little use. He remarks that Cicero employs
it in varying and obscure senses. At times it is the basis of all law. At
times it is the basis of ius civile, at times contrasted with it6. As Clark
says, it seems to mean no more than fairness7. That notion underlies
all law8, but rules sometimes work unfairly and relief is necessary. The
classical lawyers applied the term to that part of the law in which the
iudices had a freer hand, e.g. in bonae fidei indicia. It was not a fixed
single notion. It was a complex of new ideas by which law was changed
as conditions changed. Its affinity with the notion of ius naturale tends
to an identification. Paul says that aequitas is a characteristic of ius
naturaleB and the expression naturalis aequitas is not uncommon9.

1 Post, § CLXXXIX. 2 See 16. 3. 31. pr. 3 G. 3. 93; D. 46. 4. 8. 4. 4 Clark,
Pract. Jurisp. 365 sqq.; Hist. R. L. 2. 106 sqq. 5 Op. cit. p. 135. 6 26. 7. 36.

7 Locc. citt. 8 1. 1. 11. 9 Reff. in Krueger, op. cit. 138.

CHAPTER II
THE LAW OF PERSONS. LIBERTY AND CITIZENSHIP

XXI. Jus quod ad personas, res, actiones pertinet, p. 56; XXII. Threefold classification
of the law of persons, 61; Definition of Slavery, 62; XXIII. Position of Slaves in Law, 63;
as res, ib.; as man, 64; XXIV. Enslavement, 67; Capture, ib.; Birth, 69; XXV. 'Servi
poenae, 70; Sc. Claudianum, 71 ; Sale of young children, ib. ; Libertus ingratus, ib. ; Fraudulent
Sale of Freeman, 72; XXVI. Release from Slavery, 73; Manumission Censu, ib.;V indicia,
74; XXVII. Manumission by will. ib. ; Conditions, 75; Fideicommissary Gifts, 77; Informal
manumission, 78; XXVIII. L. Fufia Caninia, 79; L. lunia, ib. ; L. Aelia Sentia, ib. ; XXIX.
Special restrictions, 81; Later Law of Manumission, 82; XXX. Justinian's Law, 83:
XXXI. Freedom independent of manumission, 84; Completion of inchoate manumission,
85; XXXII. G'ivitas, 87; Specially privileged Cives, 88; Classes with restricted rights,
ib. ; Libertini, ib.; XXXIII. Coloni adsrriptitii, 91; Infames, etc., 92; XXXIV. Latini
veteres, 93; Colonarii, ib.; luniani, 94; XXXV. Means of access to citizenship, 95; Iteratio,
ib.; Anniculi Probatio, 96; Erroris causae probatio, 97; XXXVI. Peregrini, ib. ; Access to
citizenship, 98; XXXVII. Grant of civitas under Caracalla, 99; Justinian's Law, 100;
Status of children at birth, ib.

XXI. The arrangement of the private law adopted by Justinian is
expressed in a famous text in the words: "Omne ius quo utimur vel
ad personas pertinet vel ad res vel ad actiones*," words borrowed from
the Institutes of Gaius and found again in the Digest, where they are
expressly quoted from that work2. This state of the texts has naturally
led to the view that the classification is due to Gaius. But this inference
is not inevitable and there are circumstances which tend to throw doubt
on it. The Institutes of Gaius is the only manual of the classical age
which has come down to us in such a form as to shew clearly the plan
on which it is designed, and in view of the respect in which Gaius was
held in Justinian's time the fact that the text is cited from him does not
prove that he invented the scheme. There are other elementary books
of which a considerable part has come down to us, and there are others
of which the general order can be made ont from the passages preserved
in the Digest. The majority of these have an arrangement similar to
that of Gaius and are probably based on the same scheme. Nearly all
of them however are as late as Gaius or later, and may therefore have
copied him3, but there is one case of special interest. We have a few
fragments of the Regulae of Neratius4, too little indeed to enable us to

1 Inst. 1. 2. 12. 2 G. 1. 8; D. 1. 5. 1. 3 The works which seem to have adopted
this order (see Lenel, Paling.) are the Institutes of Callistratus, Ulpian and Marcian
(so far as they go), the Regulae of Scaevola, Ulpian and Paul (but in all these cases with
variations, and they do not cover the whole ground) and probably Neratius and to some
extent the Res cotidianae of Gaius. 4 Lenel, Paling. 1. 774.

CH. n] THREEFOLD DIVISION OF LAW 57

say with confidence what his order was, but such as to suggest that it
was that of Gaius. Neratius must have died at latest when Gains was
young1. On the whole the most acceptable view in a very uncertain
matter is that Gaius adopted a traditional order1. He may indeed have
popularised it, though even this is hardly probable, since it is used by
contemporary or almost contemporary writers who, so far as is known,
never refer to him, though it is possible2 that his works were used by
the great writers of the age of Severus and Caracalla3.

The more important question remains : what do the terms of the
classification mean, or, more exactly, what did they mean to Gaius?
They are so general as to be ambiguous, and examination of the
various topics discussed under the different heads has created differ-
ences of opinion as to the real nature of the distinctions intended.
The difficulty of the question is increased by the fact that the loose
logic usual with the Roman lawyers in matter of arrangement makes
it likely that, whatever the scheme was, part of the resulting dispo-
sition of matters will be inconsistent with it. Of the interpretations
which the threefold scheme has received there are two of which each
has been so widely accepted that it is desirable to state them with
some fulness and to give some of the reasons which have been urged in
favour of them.

According to one, which may be called the orthodox, and is cer-
tainly the most obvious, view, it is the object of the arrangement to
divide the law into three branches, the Law of Persons, the Law of
Res, the Law of Actions. This way of looking at the matter is supported
by the occurrence of such expressions as lus Personarum* and gives a
neat result acceptable to modern readers. But this explanation leaves
open the question what is intended to come under each head. No doubt
the law of actions is in the main the law of procedure, a description of
the steps to be taken in the enforcement of a right, but the law of res

1 See Girard, Tates, 222. Kniep, Der Bechtsgelehrter Gaius, 95, considers the phrase
to come from an original dating back to the republic. 2 See Fitting, Alter und Folge

(1908), 52, 116: see also however Krueger, Rom. Rechtsquellen (1912), 211. 3 Ante,

§ xi. Maine (Early Law and Custom, 367) thinks there is no reason to suppose that the
Romans set much store by this classification : it is confined to institutional books and has
but little legal importance. This is no doubt substantially true, though D. 1. 5, 6, 7, and
the Rubrics of D. 44. 7 and C. 4. 10 seem to be inspired by it. But this rather adds to its
importance from a scientific point of view. It is in such books that scientific arrangements
first appear, and the remark is a reflection rather on Tribonian than on Gaius. It is in
works for students that we find the most logical arrangements of the English Law, and
the modern Codes which have adopted a scientific order derive it from books written by
teachers. The real question however is not of its value to the Romans, but of its value to
us. Nothing is more helpful to an understanding of a system of law than expositions of
t from different points of view. This we have in the Institutes as contrasted with the
Digest and Code. 4 E.g. G. 1. 9, 48.

58 THREEFOLD DIVISION OF LAW [CH.

and of persons is a more difficult matter. There are many opinions as
to what is intended to be discussed in the law of persons. According to
some1, but they are now few, it is the law of the rights and duties of
persons in specific or exceptional positions. But, in fact, the rights and
duties of such persons are not considered under that head2, though for
convenience modern writers usually treat them there, and they are so
dealt with, to some extent, in this book. According to others it is the
Family Law3, but this is open to the same objection and to the opposite
objection that matters are discussed by Gains under this head, such as
the ways in which a member of a Latin community can acquire civitas,
which can hardly be brought under the notion of the family. If we
treat it as the law of personal rights as opposed to property rights we
have the difficulty, amongst others, that Gaius says not a word about
the content of patria potestas, except, quite incidentally, as to consent
to marriage. Other explanations starting from the same point of view
are to be found4, but they all fail to take account of what seems the
most striking characteristic of Book I of Gaius, i.e. that it contains
scarcely anything about rights and duties, except as concerning changes
of status.

According to another view, Gaius does not contemplate a division
of the law into three branches : his proposition means that every rule
of law has three aspects. It may be regarded from the point of view of
the persons it affects, or from that of the subject matter concerned, or
from that of the remedies5. This is the view of the text taken by Theo-
philus, in the sixth century, who understands the words to mean that
every rule of law has three objects6. It has been said in support of this
view7 that if Gaius had intended to divide the law into three branches
he would have used the word aut and not vel, but it appears to be the
better opinion that the practice of Latin writers in the second century
is not such as to justify us in attaching decisive weight to this con-
sideration. It has been objected to this interpretation that it is too
abstract8, but it is not too abstract for Theophilus, and it seems possible
to reply that it is the other view which is too abstract for the Romans.
The conception of a right as used in modern law is so familiar to us as
to seem obvious. But it represents a feat of abstraction which the
Romans never thoroughly achieved. Maine goes so far as to say 9 : " On
the whole, the Romans must be considered to have constructed their

1 Austin, Jurisprudence, 2. 709: "The Law of Unequal Rights," and Poste's Gains
(ed. Whittuck), 15. 2 Post, p. 54. 3 Savigny, System, 1. 400. 4 See the

discussion in Moyle, Inst. Just. 90. 5 Movie, op. cit. 92; Girard, Manuel, 7.

6 Paraphr. ad In. 1. 3. pr. 7 Emerton, The Threefold Division of Roman Law.

8 See, e.g., Moyle, loc. cit. 9 Early Law and Custom, 365, 366.

n] THREEFOLD DIVISION OF LAW 59

memorable system without the help of the conception of legal right."
Though this is perhaps an overstatement, it seems true that the usually
accepted view which makes right and duty the basis of the classification
would scarcely have been possible for Gains and still less for a repub-
lican author of the scheme.

It is in favour of the view of Theophilus that Justinian follows our
text with the remark that as all the law is made for persons we must
therefore know what these are1. This kind of language suggests that
what is under discussion is persons, not the law of persons, and though
we do find the expression ius personarum2 the word ius is never used in
the passages which mark the transition from one of these three topics
to another3.

It is particularly in connexion with the law of persons that this view
is illuminating. The topics which one would expect to find therein are
scattered all over the Institutes. Book I tells us little or nothing about
the differences of right, duty or capacity which result from differences
of status 4. If we desire to learn the effect of a conveyance or acquisition,
a contract or a delict, by a slave orfilius we do not find it in the law of
persons, as stated by Gaius, but in different sections of the law of res
or of actions. What Gaius gives us in Book I is an account of the more
important variations in status which are legally material : we get a
definition of the status, and an account of the ways in which it is ac-
quired or lost, and, practically, we get no more. In very few passages
does Gaius depart from this standpoint. In discussing tutela of women,
he adverts to the marked difference which exists between the powers of
a woman's tutor and those of tutor pupilli5. This is merely an interjected
remark which in a modern book would have been in a footnote. Justinian,
by introducing a title on the auctoritas of tutors6, plainly suggested by
this remark, has in fact obscured the whole plan of the book. There are
similar remarks to distinguish the two classes of Latins and dediticii7,
and there is a phrase or two on the position of slaves8. That seems to
be the whole contribution of Gaius at this point to the law of persons
in the modern sense. His subject is not in the least like Austin's Law of
Persons or Bentham's Special Codes. It is in fact hardly possible to

1 Inst. 1. 2. 12. 2 G. 1. 9; Inst. 1. 3. pr. 3 "Videamus de rebus," G. 2. 1;

Inst. 2. 1. pr. ; "superest ut de actionibus loquamur," Inst. 4. 6. pr. 4 The word status
has no very precise meaning. In regard to persons, the Romans commonly use it much
as we do to denote rank or position, but in general only where legal rights are concerned.
More precisely used it seems to be equivalent to caput (post, § XLIX), i.e., the elements which
make up a man's position as a civis, so that status mutatio would mean much the same as
capitis deminutio (P. 1. 7. 2), but status mutatio sometimes means loss of civitas, so that
here status means the elements involved in ciritas itself (38. 17. 1. 8, salvo statu), the original
meaning of caput. 5 G. 1. 190 sqq. 6 Inst, 1. 21. 7 G. 1. 22-27. 8 G. 1. 53.

60 THE LAW OF PERSONS [CH.

mark it off as a branch of the law having as its subject matter any set
or sets of rights and duties. The writer is merely giving an account of
the principal differences of status which the student will meet.

It is to be noted that this characteristic of Book I is that of the
whole of the Institutes of Gaius. We are told nothing of the rights and
duties involved in ownership or usufruct or in servitudes. So too, in
the law of contract all that we get is a word or two as to the nature of
the relation, and this not always, and an account of the way in which
it is created and how it is dissolved. Not a word is said about the duties
of the parties. The treatment of delict looks at first sight different : in
the case of theft for instance we get the law of the matter treated in
some detail. But in fact the principle is the same. Gaius is considering
how the obligation arises and for this purpose it is essential to state the
facts which give rise to an obligatio ex delicto for theft. An elementary
account of the law of sale which says nothing of the duties of the parties
is an absurdity, but Gaius is not giving an elementary account of the
law. He is stating the principal legal relations, their sources and the
modes of determination. As in some points in the law of persons, so
noticeably in the law of obligation Justinian takes a different line. He
repeatedly discusses the duties created by the relation1.

Not every difference of status which was legally material is con-
sidered. We hear little of Vestal Virgins, decuriones, auctorati, or so
forth, though these have many special capacities and incapacities.
Gaius gives us no indication of his plan of selection, but it is clear that
only those of legal significance come into account, and in an elementary
book only those of much importance. Very few classes are in fact con-
sidered : we have the slave, the filiusfamilias, the person in manu or in
mancipio, the paterfamilias with full capacity or under control, the
tutor and the curator. Wife and husband are considered not as part of
the subject matter, but incidentally, in explaining the "investitive
facts" of the status of filiusfamilias. So-called personae fictae are not
considered at all. Peregrini are not discussed, perhaps because there
was nothing to say2. But, in fact, Gaius is concerned only with the every-
day civis : the important points of whose status are libertas, civitas and
familia. He is not concerned with peregrini as such : all we hear of them
is in connexion with access to civitas3. Slaves and Latins are discussed,

1 See, e.g., Inst. 3. 14. 2 (commodatum); 3. 17. 2, etc. (stipulatio); 3. 23. 3 (sale); 3. 24. 5
(locatio); 3. 25. 9 (societas). These contain brief statements of the effects of the relation,
and have no counterpart in the Inst. of Gaius. He dealt with these matters in his Res
cottidianae (see 44. 7. 1 ; 18. 6. 2, 16; 17. 2. 72, etc.). 2 Moyle, op. cit. 88. 3 G. 1. 14,
15. The remarks in 1. 25-27 refer to the freed slaves in numero dediticiorum, see 1. 27 in f.
We shall shortly have occasion to note that civitas itself ia not treated distinctly.

ii) THE LAW OF PERSONS 61

partly because of their importance in everyday life, but also because
they are sources from which the class of cives is constantly being re-
cruited. Manumission is one of the chief investitive facts of citizenship ;
it is therefore necessary to consider when it does and when it does not
confer that status. This it is which leads to the result that in discussing
those grades of freemen who are not cives Gains appears to confine
himself almost entirely to those who are libertini. The only topic in
connexion with Latini in which Gaius shews much interest is that of their
means of access to civitas, and these he treats at considerable length1.
Of dediticii he notes that they cannot attain civitas or Latinity2. In
support of this view of the scheme of Gaius it may be worth observing
that in the Regulae of Ulpian, a Avork the plan of which is unmistakeably
based on that adopted by Gaius, there is a title on Latini which deals
exclusively writh the ways in which a Latin can acquire civitas". So too
in the part of the Regulae which corresponds to Book I of Gaius, Ulpian
tells us nothing of the position of slaves or of filiifamilias or of Latins,
and in relation to tutela he departs from the plan supposed in the same
way, and roughly to the same extent, as Gaius does4. As his language
and to some extent his matter are different from those of Gaius, the fact
that he too abstains from dealing with the law of rights and duties
seems not without significance. The few cases in which resulting rights
and duties are discussed cannot be explained logically on this view, but
they are few and in every case have the air of illustrative matter5.
Justinian, indeed, departs from this point of view, and repeatedly, but
by no means regularly, gives some account of the rights and duties
resulting from the condition he is discussing6.

XXII. It is convenient to base the treatment of the law of persons
on the threefold classification of capitis deminutiones given by Gaius,
i.e., maxima, involving loss of liberty, media or minor, involving loss of
civitas, and minima, involving only loss of family rights7. This would
naturally result in the treatment of it under the three heads : Liberty,
Citizenship and Family, but that is not quite what Gaius does. He treats
it from the points of view of liberty and family. This does not mean that
the difference between civis and peregrine may be neglected in private
law : on the contrary it recurs over and over again in his treatment, but

1 G. 1. 28 sqq. 2 We have already noted, p. 54, that here he goes a little further.
3 Ulp. Keg. 3. 4 Ulp. Reg. Titt. 1-15. 5 The notions of ius rerum and ins

actionum will be considered later, §§ LXVI, ccvi. 6 There has been much study of the
institutional scheme. See, e.g., Affolter's Das ram. Institutionensystem. Justinian's main
classification is borrowed from Gaius but his method of treatment, the matter being drawn
from various sources, is different. The method of Gaius is that expressed by Theophilus.
That of Justinian tends, very incompletely, to what is above described as the orthodox
scheme. 7 G. 1. 159 sqq.

62 SLAVERY [CH.

it is considered only incidentally. This is probably due to the treatment
of the matter in the older book which was his source, which no doubt
ignored the triple division of deminution.es, a notion which in all prob-
ability was of no great antiquity in the time of Gaius1. The unfortunate
result is that civitas is inadequately treated. It is not surprising that
the same arrangement recurs in Justinian's Institutes: he follows
Gaius very closely, and indeed in his day the question of civitas is not
important, as practically every freeman who need be considered was a
civis2.

SLAVERY. Roman legal definitions are not usually good. Liberty is
denned as the power of doing what one will, except so far as prevented by
law or force3. Everyone is free under this definition, even slaves. We
can if we like, credit Florentinus, whose words these are, with a refined
conception of liberty, making it depend on the subject's internal free-
dom from the restrictions of his lower nature ; it is possible that they
are derived from a source in philosophy in which they bear this meaning4.
But, so understood, they are useless as a definition of legal liberty, and
it seems more likely that they are in effect an attempt to state what
liberty means in law, as unsuccessful as most such attempts.

All men, we are told, were either slaves or free ; there was no inter-
mediate position5. Slavery is defined by Justinian, after Florentinus,
as an institution of ius gentium by which one man is subjected to the
dominion of another contrary to nature6, a view made to rest on the
propositions that slavery originates in war and that war is contrary to
nature7. It has been objected to this definition that it is inaccurate, as
some slaves (servi poenae, hereditarii, sub usufructu manumissis) had no
owners, and that it is scientifically defective since it makes slavery a
relative status9. A definition is therefore substituted which makes it a
condition of rightlessness (it is to a great extent dutilessness also10), an
absolute status not depending on relation toothers. But Roman definitions
however imperfect usually bring out the material point, and their own

1 Post, § XLIX. 2 Post, § xxxvn. 3 Inst. 1. 3. 1; D. 1. 5. 4. pr. 4 See,

e.g., Cicero, Paradoxa, 5. 5 G. 1. 9; Inst. 1. 3. pr. ; D. 1. 5. 3. Servus is a

slave. Mancipium is a slave regarded as a chattel, D. 21. 1. 51. pr. Homo is common.
Famulus rare in legal texts. Ancilla is a female slave, serva, rarer. Puer, for adults, more
used in literary than in legal texts. Puella seems always to mean a girl; see as to the
terminology, Desserteaux, Capitis Deminutio, 1. 372 sqq. Coloni adscriptitii (post, §xxxm)
are technically free, though practically serfs. 6 G. 1. 52; Inst. 1. 3. 2; D. 1. 5. 4. 1;

12. 6. 64. The only case of conflict between a specific rule of ius gentium and ius naturale.
7 Justified by the proposition that a captor may kill prisoners, and benefits them by
giving them their lives: servi ut servati! (1. 5. 4; 50. 16. 239. 1). 8 Post, §§ xxv, xxix,
cvn. 9 Accarias, Precis, 1. 90; Moyle, Inst. Just, ad 1. 3. 2. 10 50. 17. 22. pr.

A judgment against a slave is a nullity, 5. 1. 44. 1. Slavery is akin to death, 50. 17. 209.
If a man is enslaved his debts cease and do not revive on manumission, 44. 7. 30. As to
liabilities on delict, post, § ccv.

n] SLAVERY 63

seems preferable. In the age of Florentines and later, a slave was not
absolutely rightless ; he could in some cases appeal to the courts for
protection1, and enemies under arms seem to have been equally rightless
though they were not slaves. A graver objection is that the definition
looks at the matter from a non-Roman point of view. It is not easy to
translate "a rightless man" accurately, and in language which Gaius
would have understood. Further the Roman definition does not make
slavery a relative status. It does not mean that every slave must at
every moment be owned, but that a slave is a human being capable of
being owned — the one human chattel. Like other chattels he might
be at a given moment a res nullius. This seems to be correct and

vivid2.

XXIII. Slaves were both things and men or persons. Considered as
res, they were res mancipi3, of such importance that they figure largely
in the texts and were the siibject of much special legislation, most of the
special rules being due to their special character, as having mental and
moral qualities. Like other res, they might be productive. There might
be earnings of their labour, profits on their transactions, gifts to them,
and so forth, which are not exactly fructus, but loco fructuum. It was
settled in classical law that the only true fructus a slave could produce,
i.e. issue, were not legally fructus*, as they were in lower animals5, a
concession to the dignity of humanity, of some practical importance.
The usufructuary of an ancilla had no right to her child6, nor was such
a child an "accessory7." Wrongs could be committed in respect of
slaves which could not in respect of other things, e.g. insult 8. Having
mental and moral qualities a slave could be damaged in ways not
possible with other things9. Theft of slaves might beabduction,j9/agmra10.
For most chattels death or destruction is the only way of ceasing to
exist, but, for a slave, there was also manumission. When freed he ceased
to exist as a slave so completely that no rights in him revived on re-

1 Post, § xxin. 2 Fuller discussion, Buckland, Slavery, 1 sqq. The element of truth
in the modern definition is that in a freeman capacities are presumed, not in a slave. On
the question whether a slave was a person, post, § LXIII. 3 Post, § LXXXVI. 4 Inst.
2. 1. 37; D. 5. 3. 27. pr. 5 Inst. 2. I. 37. 6 P. 3. 6. 19; D. 7. 1. 68. 7 Thus the

rule that, in a legacy of a thing and its accessories, the gift failed if the principal thing
ceased to exist did not apply to a legacy of an ancilla and child, 30. 62, 63. The fact
that it is not an accessory is important in the law of usucapio. If the child was born after
possession of the mother had begun, there was dispute whether it was acquired under the
same "'causa," whether good faith was required at the moment of its birth, whether it was
a res furtiva if the mother was, and so forth, Buckland, Slavery, 24 sqq. 8 G. 3. 222 ;

D. 47. 10. 15. 44 sqq. 9 Thus there was an acMo servi corrupti for harming a slave which
covered demoralising him, D. 11. 3, post, § com. 10 48. 15. 6. Killing a slave, while it

gave an action for damages, like killing a horse (actio e lege Aquilia, post, § cc), was also the
crime of homicide, G. 3. 213; Inst. 4. 3. 11.

64 SLAVERY [CH.

enslavement, and, in general, manumission released from any liability
in respect of the slave to the same extent as did his death1.

The special character of the slave appears most clearly in sale. As
in other cases the vendor must hand over all acquisitions through the
res since the contract, which covered earnings, gifts, etc.2 Slave dealers
having an evil reputation, provision was made against dishonesty.
Thus so far as liability for defects was concerned, any member of a firm
of venaliciarii, if his share was not less than any other, could be sued on
a contract of any of them3. The liabilities themselves were greater. On
all sales of live stock the vendor was bound by the Edict of the Aediles
to disclose any physical defects, morbus or vitium, affecting the animal,
and was liable even if ignorant of their existence. This applied to slaves4,
and owing to their human character other types of defect \vere put on
the same level5.

It was always possible on the sale of anything to impose restrictions
on its use, but these had in general only contractual force. If the for-
bidden thing was done, an action might lie against the other party, but
the restriction had no force against third parties. In the case of slaves,
however, sold to be kept away from Rome, or to be freed after a certain
time, or not to be freed, there were means of enforcing the direction
even if the slave had passed into other hands6.

Of the slave as man, we learn that while, iure naturali, he was a man, like
any other, he was pro nullo at civil and praetorian law7. But this gives
a false picture of the law of the Empire. In the Republic a slave had no
protection against his master, supreme in his household, but the Empire
brought restrictions. Criminal slaves were to be tried by public courts8.
A /. Petronla forbade masters to punish slaves by making them fight
with beasts, except by a magistrate's authority9. Claudius provided
that if a master abandoned a sick slave the slave should be free and a
Latin10. Hadrian, besides dealing with specific cases, by privUegium,

1 Assuming that the event is not due to the person liable. 2 P. 2. 17. 7. There

were perhaps disputes as to damages recovered for theft of the slave after the sale, 18. 4.
21; 47. 2. 14. pr. 3 21. 1. 44. 1. 4 21. 1. 1. 1. 5 E.g., that he was given to

running away, or had attempted suicide, or was under a liability for wrongdoing, or was
from any cause incapable of manumission. His nationality must be stated as this affected
his suitability for certain employments, 21. 1. 31. 21. 6 On sale to be kept away it

was usual to agree for a power of seizure, and, apart from other effects, this right existed
against third party owners, 18. 7. 7 sq. If to be freed at a certain time, he became free
at that time, by an enactment of Marcus Aurelius, even in the hands of a third party, 40.
1. 20. 2. If not to be freed at all, manumission by a later owner was void, 18. 7. 6. pr.
7 28. 1. 20. 7; 28. 8. 1; 50. 17. 32. To the proposition that, iure naturali. he is a man like
another, may be assigned the gradually evolved rules of personal protection and the
partial recognition of servile cognation, post, § cxxxn. 8 48. 2. 12. 3. 9 48. 8. 11. 2.
Older than the destruction of Pompeii (A.D. 79) — a record of it was found there.
10 40.8. 2; C. 7. 6. 3.

u] SLAVERY 65

laid down many restrictions: in particular, he forbade masters to kill
slaves without magisterial sanction1. These provisions are analogous to
modern laws against cruelty to animals, but Pius took a great step
forward. He allowed slaves cruelly treated to take sanctuary at a temple
or the statue of the P^mperor and required the magistrate to investigate
the case, and, if he found cruelty proved, to sell the slave on the terms
that he was not to return to his old master2, a rule which gives the slave
power to move the law in his own protection. To the close of the classical
age it was not homicide in a master to kill a slave by excessive punish-
ment, unless wilfully, though the same text says that the punishment
must be reasonable3. In 319 Constantine enacted that killing by cruel
forms of punishment should be homicide, and apparently went back to
the old rule later4. There was further legislation and it is clear that under
Justinian the master might not exceed reasonable castigation5.

Although, from burial inscriptions and other evidence, we know
that male and female slaves lived habitually in a relation similar to
marriage, permanent and monogamous, and that family relations were
recognised among them6, they were incapable of lawful marriage and
the law in general ignored these relationships7. But they were not quite
nullities. Servile relationships were a bar to marriage after freedom8,
and there were many other rules, most of which were merely of a
negative or restrictive character9. Under Justinian a further logical and
important step was taken, by the provision of certain rights of succession
on intestacy, after freedom10.

Slaves were liable for crimes and delicts. In the last case the personal
liability meant little so long as they were slaves, but it was reinforced
by a liability in the master to surrender the slave to the injured person
—noxae deditio— unless he was prepared to pay the damages11.

In commerce slaves were important. In the classical age free hired
service was not common : most of the work now done by clerks and ser-

1 Coll. 3; D. 1. 6. 2; 48. 8. 4, 5. 2 G. 1.53. 3 Coll. 3. 2. 4 C. Th. 9. 12. 1, 2.
5 Tnst. 1. 8. 2. 6 Buckland, Shivery, 76 and reff. 7 Ulp. 5. 5; P. 2. 19. 6.

8 23. 2. 14. 2. 9 After freedom children could not bring proceedings against their
parents, 2. 4. 4. 3. Sales and legacies were to be construed, so far as possible, so as not to
involve separation of families, P. 3. 6. 38; D. 33. 7. 12. 7. If brothers were sold the sale
could not be in part set aside for defects of one: all or none must be returned, 21. 1. 35,
39. In A.D. 334 it was enacted that in dividing a hereditas slaves related were to be kept
together, C. Th. 2. 25. 1. Relationship was in effect recognised for the purposes of the law
of parricidium, 48. 2. 12. 4. See also 28. 8. 11. 10 Post, § cxxxii. Slaves shared to

some extent in the domestic cults, and there were cults peculiar to them. Wallon,
Hisioire de rEsclavage, 2. 231 sqq. ; Warde Fowler, Roman Essays, 56 sqq. It was the duty
of the master to give them proper burial, and with his consent they might be members of
Collegia tenuiorum, essentially burial clubs, 11. 7. 31. 1; 47. 22. 3. 2. 11 Post, § ccv;

as to crimes, Buckland, Slavery, 91.

B. R. L.

66 SLAVERY [CH.

vants was done by slaves. Though they could have no property, it was
customary from early times to entrust them with a fund, called peculium,
which sometimes became very large, in connexion with which slaves
appear, in the empire, almost as independent business men, contracting
with their owners and others as if free1. As they could neither sue nor
be sued, the master intervened if any question of enforcement arose.
As a slave's acquisitions were technically his master's2, the latter could
bring any necessary actions, but obligations contracted by a slave did
not bind his owner3, at civil law, and a man would not readily contract
with a slave if he had to rely on his naluralis obligatio, useless while he
was a slave, and only imperfectly operative if he was freed. The praetor
therefore facilitated the employment of slaves in trade by giving actions
against the master imposing a liability varying with the circumstances,
of which the actio de peculio was the most important4. But capacity to
acquire for the master and to bind him within limits does not suffice;
to be an effective instrument in commerce the slave must have a power
of alienation. He could be authorised to alienate anything. In practice
it was usual to give slaves, who traded with their peculium, administratio
peculii, which might vary in extent, but usually meant the right to
alienate in the way of business, to sell or pledge, to pay debts, but not
to make gifts5.

Slaves were freely employed in the public service, of the State and
the municipalities, those in the State service (servi publici populi Romani)
enjoying special privileges, and often reaching high positions in the civil
service6. But they were gradually excluded from one function after
another, till under Arcadius it was enacted that administratio, which
had earlier been essentially servile, should be wholly closed to slaves7.
The servus publicus to whom security was given in some cases, e.g.,
adrogatio of an impubes, was replaced in the later empire by a publica
persona who was free8. There were many activities in which slaves had

1 2. 13. 4. 3; 17. 2. 18; h. t. 63. 2. The partnership of a slave might in practice survive
a sale of him, h. t. 58. 3. 2 G. 2. 86, 87; Inst. 2. 9. 3; D. 41. 1. 10. 1. Where lesser rights
in him exist, the holder of them may acquire to some extent through him, post, § xcix.
As to bonitary ownership, post, § LXX. 3 The traditional untrustworthiness of slaves
(quot servi, tot hostes) made this inadmissible. 4 This makes the master liable so far as
the peculium will go, post, § CLXXXIV for this and the other actions. 5 12. 6. 13;

13. 7. 18. 4; 20. 6. 8. 5; 46. 4. 22. Thus the rich Roman could invest his money in trade
without engaging in it. It was the only safe way. There were no limited companies,
and State contracts which admitted of "sleeping partners" would not cover the ground.
There were great risks in appointing free institores to manage businesses (post, § CLXXXTV)
and in sleeping partnerships in private concerns. The actio de peculio created a limited
liability which could be cut short at any moment by mere expression of intent, subject
only to the rights of existing creditors. 6 Buckland, Slavery, 320. 7 C. 10. 71. 3;
11. 37. 1. 8 Inst. 1. 11. 3; D. 1. 7. 18. The increasing use of the free agent in private

n] ENSLAVEMENT 67

no share. Not being ewes, they could not serve in the legions. They
could be parties to the formal civil law transfer, mancipatio, having a
derivative capacity from their owner1, but they could not be witnesses
in it2. They could not be parties to any judicial proceeding3, or to a
cessio in iure, a transfer which was in form a feigned lawsuit4. In general
they could not be witnesses in civil suits, but convenience dictated some
relaxation of this rule5. Where their evidence was admissible it was
normally taken by torture, as it was in criminal cases, the torture being
allowed only where there was some evidence, but not enough6. There
was an old rule that they might not give evidence against their master :
in classical law this was extended to evidence on his behalf7.

Justinian describes all slaves as of one condition : in conditions servo-
rum nulla differentia est 8. There were of course wide differences de facto 9,
but there were also differences in law. Servi publici populi Romani had
rights of testation of some of their peculium10, and there were other
cases. But the cases were few and the differences in law slight.

XXIV. ENSLAVEMENT. Justinian groups the causes of enslavement
under two heads : they are iure gentium or iure civili11. The former,
birth and capture, are the more important, and birth is the most import-
ant of all12. It is however only as to general principle that these are iure
gentium: in each case there were many specially Roman rules.

Capture in War. Prisoners of foreign war became slaves, the pro-
perty of the State, commonly sold to private owners. The Roman law
applied the same principle to Romans captured by the enemy. During
his slavery a captive did not differ from other slaves. But difficult
questions arose as to the fate of his acts and rights before enslavement,
further complicated by the law of postliminium13, by virtue of which

life is another indication of the same tendency: in the bad times freemen who found it
hard to make a living objected to the competition of slaves.

1 G. 2. 87. 2 G. 1. 119. So they could take for their master under a will, but

could not make or witness one, post, § cm. 3 Or the formal acts and undertakings
connected therewith, 2. 8. 8. 2; 2. 11. 9. 4 Post, § LXXXIV. 5 They could be

witnesses in a transaction with which they were concerned, if there was no other evidence,
P. 5. 16. 1, 2. Many other exceptions, Buckland, Slavery, 86. 6 P. 5. 16. 2; D. 48.

18. 1. 1, 9. pr. 18, etc. 7 Cicero, pro Milone, 22. 59; P. 1. 12. 3; D. 1. 12. 1. 8, etc.,

P. 2. 17. 12; C. 9. 41. 6, etc. There was a tendency to extend the exclusion: slaves of near
relatives were excluded and a slave could not give evidence against his bona fide possessor,
48. 18. 1. 3; h. t. 1. 8; h. t. 10. 2. There were crimes to which the rule did not apply,
C. 9. 41. 1; D. 48. 18. 10. 1, etc. 8 Inst. 1. 3. 4. 9 Some had peculia, some not.

A labourer on a country estate is in a very different position from a banker at Rome.

10 Post, § en. Some slaves could never be freed, post, § xxix. Slaves unowned had
no derivative capacities. There were special rules in the case of captivi, post, §xxiv.

11 Inst. 1. 3. 4. 12 Justinian does not call it i. gentium, but see G. 1. 82; D. 1. 5. 5. 1.
13 The rules are such that it is widely held that he was not a slave, but servi loco. Mommsen,
Ges. Schrift. (Jur.), 3. 3; Mitteis, R. Pr. 1. 128. It is held by Desserteaux (Capitis Deminutio,
1. 82, 135 sqq., 2. 79, etc.) that it was de facto slavery in classical law, but true slavery

5—2

68 ENSLAVEMENT [CH.

a captive who returned might be more or less restored to his old
position1.

The general rule applied to events during captivity was that their
effect was in suspense, differently determined according as the captive
returned with postliminium or died in captivity. Acquisitions by a son
would belong to the captive or the son, according as he returned with
postliminium or did not2. So too all property was lost, subject to
revival3. But possession or no possession was a question of fact; it did
not revive by return, but only by retaking, when it was a new possession4.
The position of those who had been in his potestas was in suspense, but
any guardianship he held or was under was ended but might be
restored, for the future, by postliminium5. In classical law his marriage
was ended and did not revive, except by consent ; under Justinian the
marriage continued so long as he was certainly alive, and if this was not
certain the wife could not remarry for five years6.

If he died a captive the suspense was ended and on the view which
prevailed he was regarded as having died when captured 7. Strictly, his
will was void, and he could make none while a captive. But under a
provision of a /. Cornelia, the fictio legis Corneliae 8, his will took effect
as if he had not been captured, but had died at the moment of capture 9.

Postliminium was thus practically restoration of the captivus to his
rights on return. For this to arise there must have been nothing dis-
creditable about his capture10: he must have returned at the first oppor-
tunity11, and according to some modern writers, this must have been

later. See G. Ep. 2. 3. 5. It is difficult to reconcile these views with the texts. Livy,
22. 60; G. 1. 129; Festus, s.v. Deminutus; Inst. 1. 3. 4; D. 49. 15. 19. 2; h. t, 21. 1, etc. Nor
is it easy to see why de facto slavery should deprive him of his property (see 3. 5. 18. 5;
9. 2. 43. But see also 41. 2. 23. 1) or why postliminium was needed. A man in servitute
did not need postliminium. The fact that slavery is iuris gentium seems to involve reality
of this slavery.

1 G. 1. 129; P. 2. 25. 1 ; D. 49. 15. 4. 2 9. 2. 43; 45. 1. 73. 1 ; 49. 15. 12. 1 ; h. t. 22. 1.
3 Early protection by a 1. Hostilia, later by a curator bonorum who gives security to a
servus publicus. Inst. 4. 10. pr. ; C. 8. 50. 3; D. 4. 6. 15. pr., etc. 4 If held by someone
for him the view finally reached was that of a res peculiar is held by son or slave possession
was retained, notwithstanding the capture, that dominium might be acquired in the
meantime by lapse of time, for whose benefit would depend on events; 41. 3. 15. pr. ; 49.
15. 22. 3, etc. So in general time is running for or against him, though the machinery of
restitutio in integrum (post, § ccxLin) makes this rather unreal; 4. 6. 1. 1; h. t. 15. pr. On
return, as his possessio is a new one there will not be accessio possessionum (post,
§LXXXVII). 5 G. 1. 129, 187; Inst. 1. 12. 5; D. 26. 1. 14. 2; 38. 16. 15. 6 Possible
exception where he was patron of his wife, 24. 2. 1. 6; 23. 2. 45. 6; 49. 15. 8; h. t.
12. 4; h. t. 14. 1; Nov. 22. 7. Some of the texts are interpolated and the rule last stated
introduced by a Nov. of Justinian is credited in D. 24. 2. 6 (i.e. before the enactment) to
Julian. The puzzle thus created is explained in many ways. 7 Succession determined as
if he had died at capture, G. 1. 129; D. 49. 15. 12. 1. 8 The identity of this lex, and

the nature of the provision are disputed. Buckland, Slavery, 299. 9 Ulp. 23. 5; P. 3.

4a. 8; D. 35. 2. 18. pr.; 49. 15. 22. 1, etc. 10 49. 15. 17. 11 49. 15. 12. pr.

IT] ENSLAVEMENT 69

during the war1. If he was redeemed by payment his ransomer had a
lien on him for the money and there was no postlirninium till this was in
some way discharged2.

Where he was a slave before capture, the rules were different. One
who voluntarily went over to the enemy, a transfuga, had no postliminium,
nor had one who returned without intending to stay, but a slave re-
verted to his owner in both cases3. A civis had postliminium as soon as
he reached Roman territory: a slave reverted only when possessed by
someone4.

Birth. The general rule was that the child of an ancilla was a slave,
even if the father was free, in accordance, says Gains, with the ius
gentium, which traced descent from the mother, contrary to the rule in
Roman marriage in which it was traced from the father5. So, by the
ius gentium, the child took her status at the time of the birth, and be-
longed to her owner at that time6. To these principles Roman Law
recognised two groups of exceptions.

In certain cases the child of a freewoman might be a slave. The sc.
Claudianum provided that if a freewoman lived with a slave, his owner
consenting, issue might, by agreement between the master and the
woman, be born his slave. Hadrian abolished this rule7. In the fifth
century it was enacted that a woman who married her own libertus was
liable to deportation, and her children were slaves of the Fisc8. The rule
had disappeared under Justinian. In other, more numerous, cases the
child of an ancilla might be born free. In classical law, and later, a child
was free if the mother was free at any time between the conception
and the birth9. In several cases in which the mother would normally
have been free at the birth but circumstances had barred this, the child
was born free, e.g. where the mother was conditionally freed, and the
child was born after the condition occurred, but owing to her captivity
or condemnatio she never became free10, or her holder was under a trust
to free her and, though freedom was demanded, delayed wilfully to do

1 Texts hardly bear this out. Reff. in Buckland, Slavery, 305. 2 38. 16. 1. 4; 49. 15.
12. 14. Difficulties as to position in meantime, Buckland, Slavery, 312. We know practically
nothing of the case of one who returns without postliminium. He may of course be a
traitor, 48. 19. 38. 1; 49. 15. 12. 17, 19. 4. His rights not being restored, his liabilities
cannot be. 3 41. 1. 51. pr.; 49. 15. 12. 9, 19. 4. 4 49. 15. 30. In later law he belongs
to a ransomer, but can be claimed by old owner on payment, 29. 2. 71. pr. ; 49. 15. 12. 7,
8, obscure. Buckland, Slavery, 315. 5 G. 1. 56, 82. 6 Ulp. 5. 9, 10; P. 2. 24. 1; D. 13.
7. 18. 2. 7 G. 1. 84; P. 4. 10. 2. Twofold "inelegantia" : freewoman's child a slave,

pact varying status, 40. 12. 37. 8 Nov. Anthemii, 1. As to the case in G. 1. 85, 86, it

is probably not Roman Law at all. See Huschke, ad loc. 9 P. 2. 24. 2, 3. Set down to
favor libertatis, but ultimately applied to cases not concerned with liberty; 1. 5. 7, 26; see
1 5. 18. Possible exception, G. I. 91, but rule perhaps not fully developed. 10 40. 7.

70 ENSLAVEMENT [CH.

it, and a child was born in the meantime1, or there had similarly been
wilful delay in entering under a will by which the woman was freed2.

XXV. Jure Civili modes of enslavement. Some cases belonging to
early law need no more than mention. By the Twelve Tables a thief
caught in the act seems to have been enslaved, if a freeman. Those who
evaded the Census (thus evading, inter alia, military service) might be
sold by the State, but this disappeared with the Census. Similar rules
applied to other attempts to evade military service3. One who failed to
satisfy a judgment might, in early law, be sold into foreign slavery.

Many modes of enslavement were abolished by Justinian4: two are
important.

Servitus poenae. Those sentenced in certain ways for crime became
slaves5. Not every capital sentence (i.e. sentence involving destruction
of caput, civil capacity) involved slavery. A deportatus lost civitas, but
was not a slave. No temporary punishment involved slavery, nor did all
perpetual punishments6. It resulted from condemnation in metallum,
labour in mines or quarries, and a death sentence made the condemned
a servus poenae till it was carried out 7.

The convict's marriage was dissolved ; his family rights were de-
stroyed8, and his property was forfeited subject to concessions, fre-
quently varied, in favour of children, and, at one time, some other
relatives9. Finally the whole was given to the children10. A servus poenae
was no one's property : he did not vest in the State11. Thus he had none
of the derivative capacities of a slave. A gift to him was a nullity12.
There could be no manumission, but pardon was possible and would
restore freedom, but no more: it did not restore family or property
rights13 and a pardoned slave did not revert to his owner, the owner-
ship being destroyed14. But a freeman on pardon did not apparently

1 P. 2. 24. 4; D. 1. 5. 22. 2 40. 5. 55. 1. So too under the sc. Silanianum (post,

§cix), C. 6. 35. 11, and in delayed manumission for cause approved by consilium, 40.
2. 19. Other cases, Buckland, Slavery, 400. 3 Mommsen, Strafr. 561. 4 Dediticil
returning to Rome, post, §xxxvi; Liberi expositi, C. Th. 5. 9. 1, 2; post, §xxxi; Coloni
fugitivi, C. Th. 5. 17. 1, post, § xxxin, etc. 5 48. 19. 2. pr. 6 E.g., opus publicum,

road-making and the like, 48. 19. 10. pr.; h. t. 17; C. 9. 47. 1. 7 So also certain

forms of condemnation to the arena, not involving death, 48.19.8.11,29,36. The
punishment was more freely inflicted on slaves than on freemen, and, apart from
death sentence, could not in general be inflicted on the higher orders at all, 48. 19.
9. 11, etc. 8 48. 19. 2. 9 48. 20. 7. pr.; h. t. 8; C. Th. 9. 42. 2; P. 5. 12. 12;

D. 48. 20. 1. pr. Concessions not applicable in case of maiestas or magic, C. Th. 9. 42. 2, 6,
etc. 10 Nov. 17. 12. Only a fortnight before penal slavery was abolished. A convict
woman's children took nothing, the right being primarily based on civil law rights
of succession, non-existent in their case, C. 9. 49. 6 ; D. 48. 20. 7. pr. See also Buckland,
Slavery, 409. 11 34. 8. 3; 49. 14. 12. 12 29. 2. 25. 3. 13 C. 9. 49. 4; 9. 51. 9, or
liabilities, h t. 4. 14 48. 19. 8. 12. In later classical law he vested in thefiscus (40. 5.
24. 5). Earlier law obscure.

n] ENSLAVEMENT 71

become a libertinus: he reverted to ingenuitas. The pardon might how-
ever be accompanied by a restoration of old rights, more or less full,
according to the terms of the decree which gave it, such a restitutio being
necessarily an administrative, not a judicial, act1. A man condemned
and subsequently found innocent was not pardoned : he was restitutus.
But this idea was not applicable to one who before condemnation was
a slave. Here there was revocatio of the sentence, and the old ownership
was restored2. In 536 Justinian abolished the rule that a convict be-
came a slave3.

The sc. Claudianum. This enactment (A.D. 52) provided, inter alia,
that if a freewoman cohabited with the slave of another person, after
notice that the owner forbade it, she and the issue should be his slaves,
a magistrate's decree being necessary4. If the woman was afiliafamilias,
and her father had not consented, the rule did not apply, as it would
deprive him of a daughter5, and if a libertina, she became, unless the
patron had consented, the slave of her patron6. If the man was a servus
fisci, she became, not a slave, but a liberta Caesaris, subject here too to
the rights of father and patron7. Justinian abolished the rule of the
sc. retaining a punishment for the slave concerned8.

There remained in Justinian's law several grounds of enslavement,
three of which need mention 9,

Young children sold under pressure of poverty. From the third
century onwards10 sale of new-born children was allowed, with a right
of redemption, and in the fourth and fifth centuries this seems to have
been, for a time, allowed with older children11. As to new-born children
it continued under Justinian12. On redemption the child was ingenuus,
but the intermediate status was true slavery.

Libertus ingratus. There was much legislation in the empire dealing
with this case. The punishment varied with the degree of misconduct13,
but from the time of Claudius enslavement might be imposed in serious
cases and Justinian retained this, though it seems to have been rarely
inflicted14. It needed a decree of the chief magistrate15, and was allowed

1 If it gave back his property there was legislation to deal with the obvious complica-
tions, e.g., P. 4. 8. 22; C. 9. 51. 3, 4, 9. 2 So where he had been made heres by his old
master before condemnatio, this was good, 40. 4. 46. 3 Nov. 22. 8, dealing primarily

with alterations in the law of marriage. 4 G. 1. 91, 160; Ulp. 11. 11; P. 2. 21a. 1 sqq.;
C. Th. 4. 12. 1-5. Rule, varied from time to time, requiring notice three times as evidence
of persistence; rules, also, as to who might denounce. The position of children already
conceived is not clear. 5 P. 2. 21a. 9, 10. 6 Ib. 6, 7. 7 C. Th. 4. 12. 3; Fr. de
jure Fisci, 12; details and special cases, P. 2. 21a. 11-18, Buckland, Slavery, 416. 8 Inst.
3. 12. 1; C. 7. 24. 9 Other cases, Buckland, op. cit. 419. 10 Not in classical law,

P. 5. 1.1. 11 Vat. Fr. 34; C. Th. 3. 3. 1; 5. 10. 1. 12 C. 4. 43. 2. 13 For lesser
cases, fine, whipping, or even loss of citizenship, 37. 14. 7. 1; C. Th. 2. 22. 1. 14 25. 3.
6. 1 ; 37. 14. 5; C. 6. 7. 2. 15 1. 16. 9. 3; C. 6. 7. 1.

72 ENSLAVEMENT [CH.

only where the manumission was voluntary, e.g. not where it was under
a trust1.

Fraudulent sale of freeman. The general rule was that any free person
over 20 who knowingly allowred him, or her, self to be sold as a slave in
order to share the price was enslaved, or, as it is put, was forbidden
proclamare in libertatem, i.e. to bring a claim of liberty2. It was a capitis
deminutio maxima. He could be manumitted and wras then a libertinus.
The child of a woman so dealt with, born during her slavery, was a
slave3. To be liable he must have received part of the price and the buyer
must have been deceived4. There was no restitutio in integrum, such as,
in certain cases, was enjoyed by persons under 25, but Hadrian allowed
proclamatio in some cases if the whole price was restored. This was a
general rule of later law, so that the effect might be undone without
manumission5.

Effect of enslavement. We are told that it was like death6. Like
death it ended all public and private relations, but it did more, for wills
and donationes mortis causa, made operative by death, were avoided by
slavery7. It destroyed cognation, which was not revived by manu-
mission8. Property went, not to the heres, but to the person who ac-
quired the slave, subject to debts9, and probably debts to him were due
to his owner10. Liability ex delicto, however, exceptionally, survived.
His owner might be sued noxally, and if this was not done, he might him-

1 C. 6. 7. 1. The patron's children might accuse, and in later law any heres, though,
possibly, between 417 and Justinian, other heredes and perhaps children too were barred,
C. Th. 4. 10. 2; Nov. Val. 25. 1; C. 6. 7. 3; D. 50. 16. 70. It seems also that in later law
children of liberti could similarly be accused. C. Th. 4. 10. 3=C. 6. 7. 4. 2 Inst.

1. 3. 4; D. 1. 5. 5. 1; 40. 13. 3; 40. 14. 2. pr. 3 Inst, 1. 3. 4; 1. 16. 1; D. 1. 5. 21;

40. 12. 40; 40. 13. 3. These rules seem to prove that it was actual slavery, not as is
sometimes said a mere procedural rule. 4 40. 12. 7. 2; 40. 13. 1. pr. 5 40. 14. 2. pr.
There are difficulties in this institution. No classical text refers to it, and Justinian's
texts give a confused account of its origin. Probably it is based on sec. It is sometimes
said to be edictal, but there seems to be no evidence of this. Marcian calls it iure civili
(1. 5. 5. 1), but his language is explained away (Karlowa, R.Rg. 2. 1116). There was a
praetorian action in factum giving an action for damages wherever a freeman allowed
himself to be sold in fraud (40. 12. 14—22). This seems to be the oldest remedy. The sec.
strengthen it for specific cases beginning in the Republic. The rule that he must have
shared in the price cannot be traced earlier than Hadrian and may be later (40. 14. 2. pr.
Hnterp. ). But sale in order to be qualified for duties appropriate to slaves seems to have
been dealt with in classical law in the same way (28. 3. 6. 5). And Paul tells us that
gift in dowry or donatio or pledge is on the same footing as sale (40. 12. 23. pr.). Thus
it is probable that the rule was at one time wider than as we see it under Justinian.
Buckland, Slavery, 427 sqq. 6 50. 17. 209. 7 G. 2. 147; Inst. 2. 17. 4; D. 24. 1. 32. 6.
8 38. 8. 7. 9 4. 5. 7. 2; 4. 5. 2. pr. The owner is not personally liable, but the

property is. 10 Arg. from the case of adrogatio (post, § cxu). In the case of servi poenae
there is no owner, but the Fiscns takes the property subject to debts and to the concessions
already dealt with, 49. 14. 1. 1.

n] MANUMISSION 73

self be sued if he was freed1. There could be no noxal action in the case
of a serous poenae as there was no owner2.

XXVI. Determination of slavery. There was no temporary slavery.
If it was to end otherwise than by death this must be by a juristic act.
In the case of servi poenae the only such acts were pardon and revocatio,
but in other cases it might end in many ways. Leaving out of account
the cases of postliminium, reversion on refund of price, and redemption
of a child sold, the slavery of a living man might end by manumission,
an act of the owner, voluntary at least in form, or by some act or event
wholly or partly independent of his intention, of which groups the first
is much the most important.

MANUMISSION. This, release from slavery by the owner, was originally
conceived of as the creation of a civis3. It was not a transfer of owner-
ship, for a man does not own himself. It was not merely release from
ownership; that was abandonment, derelictio, which did not make the
man free4 and did destroy all rights in the former master, which manu-
mission did not. It was the transfer of a man, by an act under State
control, from the class of things which can be owned into the class of
persons who are members of the civil body.

At the beginning of the empire the law of manumission was simple.
There were three modes of manumission, all actually or in origin subject
to State control, and all making the slave a Roman citizen. These were
Entry on the Census Roll, Vindicta, a fictitious claim of liberty, and

wm.

Census. The Census, taken normally every fifth year5, was a list of
citizens made for fiscal and military purposes. The preparation of it
was conducted before the Censors at Rome, and it was still doubted
when the institution fell into decay whether manumission operated at
once or only at the final formal act of closing the Census (lustrum condere),
which brought the new lists into operation6. The process involved three
steps : the slave presented himself for entry like an ordinary civis, the
master's consent was shewn and the name was entered7, the Censor
probably having the right to refuse the name for unworthiness. The
manumitter must have full civil law ownership and there could be no
conditions. Although Gaius speaks of it in the present tense8, there does

1 Inst. 4. 8. 5; D. 9. 4. 24. 2 Noxal actions, giving the alternative of paying the

damages or surrendering the wrongdoer might in this case have operated so as to allow
the man to pass from severe punishment into private ordinary ownership. 3 Ulp.

1. 6; D. 38. 2. 1. pr. 4 41. 7. 8. 5 Fr. Dos. 17; Mommsen, Siaatsr. 2. 343;

D.P.R. 4. 15. 6 Fr. D. 17; Cicero, de Or. 1. 40. 183. 7 Cicero, loc. cit.; Ulp. 1. 8.

8 G. 1. 17, 44.

74 MANUMISSION [CH.

not seem to have been a real Census for a long time1 : it is doubtful
whether manumission by this mode survived the republic.

Vindicta. Fictitious claim of liberty. This was a formal application
of the machinery by which a man who alleged that he was wrongly held
in slavery claimed his freedom (causa liberalis}. It was modelled on the
ancient process for recovery of property (vindicatio), by the legis actio
per sacramentum. Some other person claimed on his behalf (adsertor
libertatis2), he being present. The formal words were modelled on those
in sacramentum3. The adsertor touched the slave with a rod (festuca,
vindicta) as he would if the claim was a real one, from which act the
process draws its name. The master did the same, but otherwise made no
reply4. The magistrate formally declared the man free5. It was in
form a solemn litigious process, and, as such, could be carried out only
before a magistrate with the right to preside in a legis actio6. Its forms
were gradually relaxed and in later classical law its litigious character was
recognised as a mere pretence 7. There could not be condition or dies, for
it was in form a judgment, on which there could be no such restriction8.

The manumitter must be full civil law owner, and, the process being
a legis actio, it must be done personally: no representative could act9.
As in all essentially "formal" acts form was more important than con-
sent. One who had done the act was bound by it, whatever his state of
mind, e.g. where he did not think he was owner, but in fact was. Most
of the "formal" acts were gone by Justinian's time, but the rule remains
for this case10.

XXVII. Will, Testamento11. This is much the most important case.

1 Mommsen, op. tit. 2. 336 sqq. ; D.P.R. 4. 7 sqq. The last is in A.T>. 74, and they had
long been irregular. For Ulpian (1. 8) the whole thing was an antiquity. 2 G. 4. 14.
3 Arg. G. 2. 24. 4 Silence being the sign of assent, a mutus or surdus could not free

in this way; P. 4. 12. 2. But this is no longer true in later law, 40. 2. 23. Literary texts
speak of him as slapping the slave's cheek and turning him round (Isid. 9. 14; see Roby,
R.P.L. 1. 26). The meaning of these symbolic acts is much disputed, Roby, loc. cit.\
Karlowa. R.Rg. 2. 133. They were probably not legally required but served to make clear the
fictitious nature of the transaction. 5 It is essentially a case of cessio in iure, post,

§ LXXXIV. 6 P. 2. 25. 4; Ulp. 1. 7 ; D. 1. 7. 4. 7 It might be done in the street, without
lictors, and on days not available for legal process, G. 1. 20; D. 40. 2. 7. 8; h. t. 23. 8 49.
4. 1.5; 50. 17. 77. There might be tacit conditions in the sense that it might be in suspense,
as the owner's right might be. It would operate only if he proved to have been then owner.
The question whether the magistrate could refuse is disputed. Wlassak, Z.S.S. 28. 107,
citing Livy, 41. 9, holds that he could. Contra. Girard, Mel. 1. 140. 9 Post, § ccxxxix,
Texts frequently state an exception: a son, duly authorised, could so free for his father.
This is clearly law for Justinian. Mitteis holds that the numerous texts are interpolated,
and that it was not so in classical law, Z.S.S. 21. 199; 25. 379; Rom. Pr. 1. 211. Contra,
Buckland, N.R.U. 27. 737; Slavery, App. 5. 10 40. 2. 4. 1. The slave took his peculium
unless it was reserved, 15. 1. 53. 11 Based on XII Tables, but probably older, as the
Tables contain a rule about conditions. Girard, Textes, 17; Bruns, 1. 28. Manumission
by will does not carry peculium, 33. 8. 8. 7.

ji] MANUMISSION 75

The Will of early Rome was made before the public assembly, convoked
periodically for the purpose, and thus the element of control is tradition-
ally present, here as in the other cases, though, the will of historical
times being in an entirely different form, the control had disappeared.
The full civil owner could free his slave so that the gift took effect ipso
facto, by the acceptance of the inheritance by the heres, provided that
the testator had owned the slave both when the will was made and when
it operated1. The gift must be in express imperative words, e.g., liber esto,
liberum esse iubeo2, and nominatim, i.e. he must be so described or named
that his identity was clear3. It follows that there could not strictly be an
implied gift, but we are told, in obscura voluntate favendum est libertati4'.
Two such cases were much discussed, that in which a man made his
slave heres, with no gift of freedom, to be dealt with later5, and that in
which he simply appointed him tutor. Justinian declared this good, the
needful gift of freedom being implied. On the obscure texts the better
view seems to be that in later classical law it was not directly good or
void, but was a fideicommissum, a direction to heres to free, shortly to
be considered6.

Manumission, like a legacy, might be adeemed, i.e. revoked by further
provisions of the will, or acts inconsistent with the gift. Ademptio
might be express7 or by alienation of the slave or legacy of him, but in
these cases if he was again acquired or the legacy was adeemed, the gift
revived 8.

It might be conditional or deferred to a future time (ex die9). Dies
might be certus or incertus. The former is a time so fixed that it is clear,
when the will operates, when it will be, e.g. ten days after my death.
The latter is a day sure to come, but uncertain as to date, e.g. when X
dies (certus an, incertus quando). But there was a rule that, in wills, dies
incertus pro condicione habetur10: it operated as condition, though it did
not in contracts. Condicio, properly so called, is an event both future
and uncertain (incertus an, whether incertus quando or not). "To be
free if I die this year," or "To be free if he was born at Rome," are not
conditions. The gifts are good or bad. There is no uncertainty or futurity

1 G. 2. 267; Ulp. 1. 23; D. 40. 4. 35. Harsh result, 28. 5. 50. pr. Such a gift is in-
destructible when it has taken effect: though the entry of heres be set aside the gift of
liberty stands; C. 7. 2. 3. 2 G. 2. 267; D. 40. 5. 41. pr. It might not precede the

institutio heredis in classical law, G. 2. 230; Ulp. 1. 20. Greek equivalents served in later
law; C. 7. 2. 14. Rules follow those of legacy with differences, e.g., G. 2. 236, post, § cxix.
3 L. Fufia Caninia, G. 2. 239; Ulp. 1. 25; P. 4. 14. 1. 4 50. 17. 179. 5 Post, § cvin.
6 26. 2. 10. 4, 32. 2; C. 6. 27. 5. 16; 7. 4. 10. 7 Ulp. 2. 12; D. 28. 5. 6. 4; 40. 4. 10.

8 40. 4. 58; 40. 5. 50; 34. 4. 27. Complications and difficulties where the conflicting dis-
positions were in the same document, Buckland, Slavery, 468; Desserteaux, Capitis
Deminutio, 2. p. 126, nn. 2, 3. 9 35. 1. 49; not, in classical law, post mortem heredis,

Ulp. 1. 20, post, § cxix. 10 Ulp. 24. 31 ; D. 35. 1. 75.

76 MANUMISSION [CH.

about them when the will operates1. An impossible condition, one
"contrary to the nature of things," e.g., if he touch the sky with his
finger, was struck out, the gift being construed as absolute, and the
same is no doubt true of illegal and immoral conditions2. Impossibility
merely to the person concerned was not so treated, and would bar the gift3.

Negative conditions, e.g. "if he does not do so and so," were not
treated as in legacy. There the gift was effective at once, with some
restrictions, but security was taken for return if the condition was
broken4. But a manumission which has taken effect cannot be undone.
The method adopted, since the gift would be a farce, unless some relief
was given, was to allow the testator to impose a condition of taking
an oath, remitted in other cases5, not to do the forbidden thing — a poor
security, as there was no way of compelling obedience to the oath.

Till the condition was satisfied the slave was still a slave (statuliber6),
and the child of a statulibera was thus a slave 7. But no act of the heres
could destroy the prospect of liberty, and thus though the statuliber
could be commercially dealt with in ordinary ways any rights in him
created by the heres were destroyed when the condition was satisfied8.
There were other respects in which statuliberi were better off than ordinary
slaves. They could be sold, but not under harsh conditions which made
their position worse9. They might not ordinarily be tortured as wit-
nesses10. Where slaves and freemen were differently punished they had,
in later law, the right to be treated as freemen11. On satisfaction of the
condition the gift took effect12. If the condition was to do an act to or for
the heres and before performance the heres sold him, it must be done to
or for the acquirer, unless it was plainly a personal service13. Super-
vening impossibility was more favourably treated than in legacy. A
gift of liberty "when X is 20" was good, though X died younger14, as

1 If testator did not so die, if donee was not so born, the gift was void. This is certain
at the death, though in some cases it might not be known. When it is known he is shewn
to have been free (or not free at all) from the operation of the will; 40. 4. 7; 40. 5. 18.
Gifts "pridie mortis heredis" "post mortem heredis," were treated as in legacy, G. 2. 233,
post, § cxix. 2 Inst. 2. 14. 10; 3. 19. 11; G. 3. 98. Rule the same in institutio heredis,
post, § cxix. 3 All this deals only with initial impossibility. Supervening impossi-

bility (ca#us) is dealt with differently, below and post, § civ. 4 Cautio Muciana, post,

§ cxix. 5 40. 4. 12. pr. In some cases the gift was treated as derisory and void, 40.

4. 61. pr. ; 40.5.4.1. In cases other than manumission a condicio iurisiurandi was
released by the praetor, security being required, at least in later classical law, that the
thing should be done, or not done. Post, § civ. 6 Ulp. 2. 1-6. 7 40. 5. 45. 2; 40.

7. 16. 8 Ulp. 2. 3; D. 20. 1. 13. 1; 30. 81. 9; 40. 7. 6. 3. Fraud was easy, and there is
much law as to sales of this kind, Buckland, Slavery, 288. 9 40. 7. 25, 33. 10 48. 18. 8.
1, 9. 3. 11 48. 18. 14; 48. 19. 9. 16. 12 If it is that he shall promise to do an act,
the promise frees him, though a slave's promise cannot be enforced after he is free, 40.
7. 13. 3, 24, 41. 1. 13 Payment of money must be made to alienee, 40. 7. 6. 5; Ulp. 2. 4;
condition to teach the heres to read must be satisfied in his person, 40. 7. 6. 7. 14 40. 4.
16 etc.

n] MANUMISSION 77

was a gift on the condition of rendering a service to X, who died before
it could be done1. This is favore libertatis; a legacy would fail2. In the
present case the rule of later law seems to have been that the condition
was satisfied where it was to be done by the donee, if it was not his fault
that it was not done. Thus if he was prevented by anyone from fulfilling
the condition, it was satisfied3. But these relaxations applied only if
the condition was one to be fulfilled by him : if any other condition
failed, the gift failed4.

Fideicommissary gifts. Under Augustus certain stringent rules of the
law of wills were relieved against by the institution offideicommissa, trusts
imposed on a beneficiary under the will, not subject to all the restrictive
rules5. Of these, fideicommissa of liberty were a common case ; directions
to a beneficiary under a will or codicil to free a slave, his own, or one
coming to him under the will, or one to be bought and freed6. No
particular form was needed ; it might be implied, and in many cases a
gift not imperative enough to constitute a direct gift was construed as
a direction to the heres to free, an interpretation more readily adopted
under Justinian than earlier7. A direction to the heres to free a man si
volueris was void, but very little more was needed to make it mean "if
he deserves it," which was a conditional fideicommissum*. The gift
failed if the will or codicil failed 9.

The gift having been accepted, the trust must be carried out, even
though the amount was less than the value of the slave, except that, if
the trust was to buy and free a slave, no more than the gift need be
spent in buying him10. If the owner refused to sell, the trust was void

1 40. 7. 20. 3. 2 40. 7. 19, 20. 3. 3 40. 5. 55; 40. 7. 3. pr.; Ulp. 2. 5. 6. In

legacy this is so only if the prevention is by one interested in failure of the condition,
28. 7. 3. 11; 30. 92. 1. 4 40. 7. 4. 7. A slave made heres might not refuse. Rules

were applied where there were conditions, to secure that the gift should be valid and
that he should not get the liberty and then refuse the heredilas. Both under the same
condition gave no difficulty. If only the liberty was conditional, this was, strictly, bad
— not free till hzres, or heres till free. Condition read into both, 28. 5. 3. 1. Same in
converse case, lest he be free by entry of another heres and then refuse the hereditas. There
were modifications, favore libertatis, if the condition failed or if they were under different
conditions, 40. 4. 14; 40. 7. 2. 3; 28. 5. 21. 22. Buckland, Slavery, 511. 5 Post,§ cxxiv.

6 Ulp. 2. 9; 25. 18; G. 2. 263. 7 Ulp. 2. 7; D. 26. 2. 10. 4; 40. 5. 24. 7. But where there
was a doubt whether a gift was direct or fideicommissary, there was a leaning to direct
construction, 40. 4. 9. pr., 15, 19, 56. 8 40. 5. 46. 3. 9 40. 5. 24. 11; C. 7. 2. 12.

But see Buckland, Slavery, 609, for reliefs against collusion, etc. In classical law liberty
could be given to an unborn person by will, but only by fideicommissum (P. 4. 14. 1) and
some jurists doubted (C. 7. 4. 14). If the slave is regarded as the donee, it should be void,
for in Paul's time fideicommissa to incertae personae and postumi alien! were void (G. '2.
238 sqq.). If he is the subject-matter, no difficulty. Future things could be given. Justinian
allows it even direct, so that the child will be bom free (C. 7. 4. 14). 10 40. 5. 24.

12-16.

78 MANUMISSION [CH.

in the time of Gains, but in later law it was still valid if the owner after-
wards changed his mind1.

Till the trust was carried out, the slave was still a slave. Thus, sub-
ject to what has been said2, the child of an ancilla in this position was a
slave not affected by the trust in any way3. But the subject of the trust
was treated like one conditionally freed — he was a quasi statuliber*. The
manumission not being voluntary, it might not be made subject to a
promise of services, and the manumitter had less rights than an ordinary
patron5, though he was actually patron, the object being often that the
man should be the freedman of the person directed to free, and not, as he
would be under a direct gift6, the freedman of the maker of the gift
(libertus orcinus).

These formal modes were the only modes of manumission in the
republic, and they were available only to the full civil law owner. But
cases occurred of less formal manumission and of manumission by one
whose ownership, though effective, was not civil law ownership (qui
habet in bonis7, bonitary owner). In these cases, though the manu-
mission was in strictness void, the praetor intervened to protect the
man concerned8, but only where in his judgment it was a proper case
for protection9, and only where the master was of full age and com-
petence and acted quite freely10.

Not every informal declaration was accepted : we are told of only
two cases : per epistolam, a letter of enfranchisement, and inter amicos,
declaration before witnesses11. In the later empire we hear of a mode
in convivio, declaration before guests at a feast12, but this seems to be
only a variant of the last. It was immaterial that the ownership was
only bonitary, and conversely a bonitary owner could produce no better
effect even if he freed by will13; he could not do it at all by vindicta.

One so freed was still a slave : his peculium was his master's and so
were his acquisitions14. A child of an ancilla so freed was an ordinary
slave for all purposes15. The only effect was that if the master sought to
make slaves, so freed, work for him, the Praetor intervened16. The act
was not revocable and no doubt it bound successors in title. The persons

1 G. 2. 265; Ulp. 2. 11 ; Inst. 2. 24. 2; C. 7. 4. 6; perhaps as early as A.D. 220. If the/c.
was only one of liberty he need not take the gift, as he must in some other cases (36. 1. 54.
1; post, § cxxiv). If it was his own slave he need not, though there was a fc. of the
hereditas, contra if the slave were the testator's. 36. 1. 23. 1. 2 Ante, p. 69. 3 35.
2.24.1;40.5.45.2. 440.5.15,24.21,30.16. 538.1.13.1. 6 G. 2. 266, 267;
Ulp. 2. 8. 7 G. 1. 54; post, § LXX. 8 G. 3. 56; Ulp. 1. 16. 9 Fr. D. 8. 10 Fr. D. 7.
It must be clear that a real gift of libertas was meant, not merely to let the man do as he
liked, to be in libertate (Wlassak, Z.S.S. 26. 367). 11 G. 1. 44. Amici is a common term
for witnesses, Wlassak, loc. cit. 12 G. Ep. 1. 1. 2. 13 G. 1. 16, 167; Fr. Dos. 9;

Ulp. 1. 16, 22. 8. 14 Fr. Dos. 4, 5. 15 Ib., arg. 16 G. 3. 56; Fr. D. 5

n] MANUMISSION 79

affected were said in libertate auxilio (or tuitione) praetoris esse, in
libertate morari, etc.1

XXVIII. The law was profoundly modified by Statutes of the early
empire which must now be considered.

Lex Fufia Caninia, B.C. 2. Slaves were now very numerous and
manumissions so frequent that the large number of libertini were a
menace to the stability of society. This statute imposed a limit on manu-
missions by will, always the commonest case, as it cost nothing and
provided a procession of grateful liberti for the funeral cortege. It en-
acted that an owner of not more than two slaves might so free all, of
from 2 to 10 half, of from 10 to 30 one-third, of from 30 to 100 one-
fourth, of from 100 to 500 one-fifth, and never more than 100 2. An
increase in the number of slaves was not to involve a diminution in the
number who could be freed3. The slaves must be named or clearly
described 4. If more than the lawful number were freed only the earliest
named were free5. A gift to "all my slaves" was void6. The law did not,
as stated, refer in terms to fideicommissary gifts, but it must have
applied to them, otherwise it would not have been worth while to resort
to evasions.

Lex lunia (Norband). This statute put an end to the equivocal
position of those in libertate tuitione praetoris. It provided that they
should be really free, but not cives, and invented for them the status of
Latini luniani, i.e. they were to have the same status as existing Latini,
subject to serious restrictions7. The nature of this status and these
restrictions will be considered later8. The date of the statute is uncer-
tain 9.

Lex Aelia Sentia, A.D. 4. This was a comprehensive enactment, con-

1 G. 3. 56; Fr. D. 5. Other exceptional forms were (a) manumission sacrorum causa
(Festus, s.w. Manumitti, Puri), discussed Mommsen, Staatsr. 3. 421; D.P.R. 6. 2. 2;
Wlassak, Z.S.S. 28. 22. It may be only a case of manumission vindicta; (b) giving a slave
in adoption (Aul. Gell. 5. 19. 13, 14, post, § XLV), also may be only a case of vindicta, in
effect. As to adoption of slave by master, post, § XLV. 2 G. 1. 42, 43; Ulp. 1. 24;

P. 4. 14. 4. The total included fugitivi, P. 4. 14. 3. 3 G. 1. 45; Ulp. 1. 24. Thus one

with 12 could free 5, one with 32 could free 10. 4 Ulp. 1. 25; P. 4. 14. 1. The sc.

Orfitianum makes clear description suffice. 5 G. Ep. 1. 2. 2. There were other pro-

visions against fraud on the law, e.g., if they were set in a circle so that it could not be
said which were first, all were void, G. 1. 46, who speaks of sec. on the matter. A sc.
provided that manumissions inter vivos, but on the point of death, might be treated as
frauds on the lex. 6 G. Ep. 1. 2. 2. 7 G. 1. 16, 22, 23; 3. 56; Ulp. 1. 10, 16. 8 Post,
§ xxxrv. 9 There is confusion as to what was in this lex and what in the 1. Aelia

Sentia (G. 1. 29; Ulp. 3. 3). The name lunia Norbana fits only A.D. 19, but only Justinian
calls it Norbana. It deals with those freed under 30 as well as the informally freed, but
they were cives till the 1. Aelia (arg., G. 1. 56). These points would make the /. lunia the
later. But Gaius makes the I. Aelia refer to Junian Latins which would make the I. lunia
the earlier.

80 MANUMISSION [CH.

taining, inter alia, the following important provisions affecting manu-
missions.

1. The manumitter must be 20, otherwise the manumission was wholly
void1. Attempts to evade the rule, e.g. by transferring the man to one
over 20 to be freed, were stopped by a sc. which seems to have nullified
transactions tending to such a result, and thus to have been applicable
to any new devices as they appeared2. There was however an important
limitation. If the manumission were approved by a body called the
Consilium (which sat periodically for such cases), and was afterwards
completed vindicta, the rule did not apply and the man became a civis3.
If it were completed informally he became a Latinus*. To obtain this
approval it was necessary to shew causa5. There was no hard and fast
rule as to what was a sufficient causa : it might be merit or some service
rendered, or something to be done in the future which he could not do
as a slave6. It must be a honesta causa, and if it was with a view to
marriage there were special restrictions and rules7.

2. The slave must be over 30, or he did not become a civis, with the
same exception for manumission vindicta, on cause approved by the
Consilium 8. Where no causa was shewn the result is uncertain, owing to
the state of the texts. If it was informal or by will (in which last case
there is no question of causa], he seems to have become in libertate
tuitione praetoris, or, after the I. lunia, a Latin9. No classical text
mentions Latinity as resulting from manumission vindicta, and a corrupt
text suggests that it was simply void, but it may be that as it could
in any case, on such facts, give no more than Latinity, there was no
purpose in the form, and the case therefore did not occur10 in practice.

3. Manumission in fraud of creditors or patron of the manumitter was
void11. Of the case of fraud on the patron we know little and it is not
mentioned by Justinian12. Fraud on creditors was committed if the
manumission was with intent to injure them, i.e. with knowledge that
it would do so, and did in fact harm them, when, in short, the owner was
insolvent or the manumission would make him so13. If it was on death,

1 G. 1. 38. 40; Ulp. 1. 13; C. 2. 30. 3. pr. 2 40. 9. 7. 1 ; 18. 7. 4; C. 7. 11. 4. Rule

did not apply where he was bound to free from any cause, 40. 1. 20. pr., etc. 3 G. 1.
38; Fr. D. 13. At Rome the Consilium was five senators and five equites, elsewhere, twenty
reruperatores cives, who met on the last day of the Convening, the judicial assize. 4 G. 1.
41; Fr. D. 13, or in libertate praetoris tuitione, according to the view taken of the date of
I. lunia. 5 Whether he was to be freed formally or informally. 6 G. 1. 19, 39; D.
40. 2. 9. pr., 15. 1. 7 40. 2. 13, 16. pr. "To be heres if he frees X" gave a good causa,
40. 2. 15. pr. 8 G. 1. 18; Fr. D. 17; Ulp. 1. 12. 9 Ib. and G. 1. 17. 10 Ulp. 1. 12.
11 G. 1. 37; Ulp. 1. 15; Inst. 1. 6. pr. 12 Presumably where a dying libertinus freed

his slaves, who, if he was a Latin, would go to his patron, and if he was a civis, would
do so if he had no children, post, § cxxxrv. 13 G. 1. 47; Fr. D. 16; D. 40. 9. 16. 2<

Possibly intent not material in early classical law, but it certainly was later, Inst. 1. 6. 3;
D. 40. 9. 10.

n] MANUMISSION 81

as no doubt it usually would be, and the heres was solvent, the creditors
would not suffer, for, till very late1, he was fully liable on the ancestor's
debts. Some jurists thought, logically, that this saved the gift, but the
view prevailed that it was immaterial2, possibly because any other view
rendered refusal and intestacy likely, and this was avoided as far as
possible. But there are difficulties about this3.

The rule applied where the manumitter was a peregrinus, though

the other provisions did not4, and whether it was done inter vivos or by

will, directly or by fideicommissum, but in this last case eventus sufficed

—intent was not material5. But it did not apply where the manumitter

was bound to free, either under a trust or otherwise6.

Where the gift was bad it was void ab initio, not revoked : there was
no revocation of a manumission7. Some time might elapse before the
point was clear, and for this time the man's position was in suspense :
he was a quasi statuliber6. It was not void unless steps were taken, and
there were provisions, to be stated later, protecting apparent liberty
after a certain lapse of time9.

4. Certain degraded slaves, on manumission, did not become cives or
Latins, but were put in numero dediticiorum. They were those who had
been punished by branding or chains or imprisonment by their masters,
or condemned to fight with beasts or tortured and convicted of crime10.
Their disabilities were severe11 : inter alia, they could never become
citizens. The form of the manumission was immaterial12.

None of these four restrictions applied if the manumission was by
will, and the testator was insolvent, and instituted and freed a single
slave so as to have a necessarius heres, in order to avoid the stigma of
intestacy and posthumous insolvency13. This did not apply if any other
heres entered under the will, and it had no bearing on other restrictions
on manumission14.

XXIX. Such restrictions were numerous and some of them need
mention.

1 Post, § ex. 2 40. 4. 57 ; C. 7. 2. 5. 3 The heres could not attack it, 40. 12. 31 ; C. 7.
8. 5; C. 7. 16. 7, and if he was solvent the creditors had no interest. Perhaps he refused
to enter unless the creditors undertook to proceed. Where the liberty was conditional on
payment of money which a third party provided so that the estate suffered no loss, this
did not save it (40. 9. 18. 1) but a gift "if my debts are paid" was held valid (40. 4. 57).
4 G. 1. 47. 5 40. 5. 4. 19; C. 7. 11. 7. 6 Fr. d. i. fisci, 19; D. 28. 5. 56; 40. 1. 10;

C. 7. 11. 5. 7 G. 1. 37; Fr. D. 16; Ulp. 1. 15. 8 40. 7. 1. 1. 9 Post, § xxxi.

10 G. 1. 13. 15; Ulp. 1. 5; 1. 1 1 ; special cases and details, P. 4. 12. 3-8. Not where tortured
but not convicted, P. 4. 12. 3. 11 Post, § xxxvi. 12 Ulp. 1. 11. If vindicta, possibly
a nullity. If informally, it would give the odd result that if the I. lunia is later than the
1. Aelia Sentia he would be technically better off than an honest man, for he would be
free, but the other would be technically a slave. 13 G. 1. 21; Ulp. 1. 14; D. 40. 4. L'T ;
Inst. 1. 6. 1. 14 28. 5. 84. pr.

B. K. L. 6

82 MANUMISSION [CH.

(a) A slave specially pledged could not be freed unless the creditor
consented, though the owner was solvent1. But there is evidence that
in late classical law such a manumission was regarded, if inter vivos, as
informal manumission, conditional on release of the pledge, so that if
the debt was paid, the slave became a Latin2. If it was by will, it was
void as a direct gift, but came to be construed as a fideicommissary gift
on the same condition3.

(b) A slave owned by two or more could not be freed by one, till
Justinian4.

(c) A slave in whom someone held a life interest (usufruct) could be
freed by the owner's will, the gift being construed as conditional on the
expiry of the usufruct5. But there could be no condition on manumission
vindicta, and the texts leave the classical law uncertain6. Justinian
confirmed the old rule that if both owner and usufructuary agreed the
man was free, and made manumission by the owner alone give freedom,
without releasing the man from his duty of service to the usufructuary7.

There were a number of other restrictions 8.

Slaves of corporate bodies and public authorities were freed in special
ways : those of a municipality by decretum of the local senate 9. We do
not know the form for those of other corporate bodies 10. Servi populi
Romani seem to have been freed by declaration of the magistrate,
authorised by the Senate, or later, the Emperor11.

When the State became Christian, a new mode of manumission was
introduced. So soon as the church was recognised, it became a common
practice for masters to free slaves before the congregation, a form of
manumission inter amicos, giving Latinity. Constantine regulated this,
requiring a writing signed by the master, arid providing, a little later,

1 40. 1. 3; 40. 8. 6; C. 7. 8. 4. The rule has nothing to do with the /. Aelia Sentia.
2 FT. D. 16; D. 40. 9. 26. 340.5.24.10. 4 Post, § xc. 528.5.9.20.

6 Void, or suspended till the usufruct ended? (Fr. D. 11; Ulp. 1. 19). The last unlikely,
though it may have been so in informal manumission. But we know that such a
manumission, vindicta, made the slave a servus sine domino, ib. 7 C. 7. 15. 1. He

allowed manumission by fructuary, strictly a nullity, to protect him from seizure by
owner till usufruct would have ended. 8 Case of sale with prohibition of manumission
(ante, § xxin). Prohibition to sell is prohibition to free, C. 4. 51. 7; legacy of slave, slave
freed by heres, Buckland, Slavery, 581; manumission under threats or popular clamour,
or, under M. Aurelius, at public games, Fr. D. 7 ; D. 40. 9. 9. pr., 17. pr. ; Dediticius enslaved
for living in prohibited area, post, § xxxvi; bonitary owner, ante, § xxvn; Latin or peregrine
cannot give slave a better status than his own, Fr. D. 12; sc. Silanianum, under Augustus,
on suspicion that a man had been killed by his slaves, will not to be opened, and thus no
manumission operative, till slaves who might have been concerned examined by torture,
to ascertain who was guilty and who, being able to render help, had failed to do so. Penalties
for breach of the rule, P. 3. 5. 1-12; D. 29. 5. For other restrictions on manumission,
Buckland, Slavery, 591 sqq. 9 C. 7. 9. 10 40. 3. 1. 11 C.I.L. 6. 2340; as to these
and servi Caesaris and Fiscales, see Buckland, Slavery, 590 and reff., and post, § LXIV.

n] MANUMISSION 83

that it should give civitas. The rule that the slave must be 30 does not
seem to have applied, an accidental result of the mode of development,
as Latinity never required this. The method survives in Justinian's law
but is not prominent1.

XXX. The law of manumission was simplified by Justinian. Much
of it was made obsolete by other changes, e.g. abolition of the difference
between bonitary and civil ownership2, and of the inferior grades,
Latins and dediticii3. As to manumission itself he repealed the sc.
Claudianum* and the I. Fufia Caninia5, and legislated sweepingly on the
forms.

Manumission vindicta remained, in the relaxed form it had taken in
the later classical law, as did the mode in ecclesiis. Will remained much
the most important form. Place in the will was immaterial6, and it
might be post mortem heredis1. Implied gifts were allowed, and it was
clear that appointment of one whom the testator knew to be his slave, as
heres or tutor, implied a gift of liberty 8, but, in all cases of implication,
the intent must be clear9. Fideicommissary and direct gifts of liberty
might be made to unborn persons and they would be born free10. There
was much legislation both settling doubts in the law and on the informal
modes11. Those that were valid were to be legitimi modus having the
same effect as manumission vindicta. The modes per epistolam and inter
amicos now required writing and five witnesses. Some other informal
modes were recognised12.

The main rules of manumission under Justinian are the following :

1. All manumission if valid makes the slave a civis, whatever is
intended13.

2. The master must be 20, unless (a) it is vindicta for cause approved
by the consilium, or (b) the slave was received, under a trust to free,
from one competent to free, or (c) it is by will, when it is allowed under
the Institutes at 14, to provide a necessarius heres, as in earlier law,
otherwise at 1714. Later it is allowred at 14, in any case, the earliest age
for testation15.

1 C. Th. 4. 7. 1; C. 1. 13. 1, 2. In the same enactments are provisions allowing priests
to free without witnesses in any form they like. 2 Post, § LXX. 3 Post, § xxxvi. Thus
repealing the rule of the 1. Aelia Sentia requiring the slave to be 30 and also its pro-
visions as to criminal slaves. 4 Inst. 3. 12. 1; C. 7. 24. 1. 5 Inst. 1. 7; C. 7. 3.
6 Inst. 2. 20. 34. 7 Inst. 2. 20. 35. 8 26. 2. 32. 2; Inst. 1. 6. 2. 9 Soldier's will
more favourably construed, 40. 4. 49. 10 C. 7. 4. 14. 11 C. 7. 6. 12 Ib. Giving to
the slave, or destroying, evidences of slavery, before five witnesses; recording the slave
as a son on acta of court, which seems to have given Latinity in post-classical times ; giving
an ancilla in marriage to a freeman with a dos; order of testator or heres to wear the pileua,
cap of liberty, in the funeral procession. The enactment also provided that in many cases
in which Latinity had resulted from facts other than manumission, civitas should result.
13 C. 7. 6. 6. 14 Inst. 1. 6. 7. 15 Nov. 119. 2.

6—2

84 MANUMISSION [cu.

3. It must be nominatim: description is enough but the donee must
be certainly identifiable1. It may be to an unborn person : qui ex ea
ancilla nascetur*.

4. The slave need not consent, except in fideicommissary gifts where
the intent was only a benefit to him: beneficium inrito non datur3.

5. It must be by the owner. One whose ownership is determinable
on some event may free : the gift is good, though he may be liable to
someone for it4. It cannot be done by representative, except that a
filiusfamilias duly authorised can free on the father's behalf by vin-
dicta. This is clear for Justinian's law, whatever the law was before5.

G. If in fraud of creditors it is void. Justinian does not deal writh
fraud on the patron : the abolition of Latin ity had removed the chief
case of this6.

7. It must be in perpetuity and is irrevocable7. Thus even a manu-
mission inter vivos induced by fraud is good 8. Freedom given under a
trust or to satisfy a condition afterwards shewn to be a falsum, or not
binding, is good9.

8. It may be conditional or ex die (except vindicta)10.

XXXI. The cases of liberty without manumission break into two
groups :

(A) Independent of voluntary manumission. Freedom was given
as a reward, e.g. for giving information against certain criminals11; or,
in the Byzantine empire, on becoming a monk12. It might also be given
as a penalty on the master. A slave abandoned for sickness became a
Latin in classical law, a civis under Justinian13. A woman prostituted in
violation of a contract of sale was free14. In both these groups of cases
there is some obscurity as to the wray in which liberty was conferred.
In some cases the master was compelled to free, in others the public
authority declared the man free, in others he became free by the event.

1 40. 4. 24. 2 "Whichever the heres shall choose" is enough, C. 7. 4. 16. pr. ; C.

7. 4. 14. 3 40. 5. 32. 1; 50. 17. 69. 4 36. 1. 26. 2. 5 Ante, § xxvi.

Messengers (nuntii) might be employed of course in informal manumission. 6 The

suggestion that he deals with it under revocation of acts done in fraud of patron is in-
consistent with the next rule, and the title on these contains no ref. to manumission, D.
38. 5. 7 40. 4. 33, 34. 8 4. 3. 7. pr. 9 40. 4. 47. So too where a minor entered

and liberties took effect and he was restitutus in integrum, C. 7. 2. 3. Of course the omni-
potent Emperor could set aside even a manumission, 4. 4. 10. There were provisions for
compensation in some of these cases. 10 Ante, § xxvi; 40. 7. 1. 11 47. 10. 5. 11; C.
7. 13. One given to the Emperor's household was free and ingenuu-s whether the donor
so intended or not, C. 12. 5. 4. 12 C. 1. 3. 37; Nov. 5. 2. As he is free, but reverts to

slavery if he leaves the monastery, there is a breach with principle. Nov. 12. 3. 17 lays
down the same rule on his becoming a priest non conlradicente domino. 13 40. 8. 2.

14 40. 8. 6. Numerous later cases, e.g. heresy and Judaic proselytising (C. Th. 16. 9. 4,
etc.), fraudulently marrying an ancilla to a freeman, C. 7. 6. 1. 9; finally, any abandonment
of a slave, Nov. 22. 12.

nj MA: \r.\i ISSION *r,

Besides prmtliminium, pardon, and lale '-i 'new-born r-hildrr-n1, th-
were some exceptional case-,. I'nd'-r Justinian, a slav noxalJy sur-
rend'-red for a wrong was fre'-d, nui'il'm />rfi>foris, when his service had
recouped the injured p<-rson-. Constantine allowed or.'- who n-an-d an
exposed child to bring him up as slave or fr'-e whatev-r he may have
U.-en by birth. Undf-r Justinian the child was always fn-e and ingenuu*
whatever he was by birth :;.

No pact or acknowledgnienl or laps'- <>\' time in apparent slavery
made a freeman a slave*. Xo pact or acknowledgment made a slave a
fr'-'-marr'. Lapse of time was in later law on a different footing: apparent
lib'-rty b'-^un in good faith was confirmed by a lapse of tirn'- which
Justinian fixed at 20 years6. A here* could not attack his ancestor's
manumission on technical or formal grounds, but this did not bar third
parties. Here too a certain lapse of time, perhaps five years from
manumission, protected the manumiggtu7. And the status of a man
who died apparently free could not be attacked after five years from
his death, by those claiming property or that his children were slaves'*.

(B) Inchoate manumission, which has failed to take effect.

1. Abortive gift of liberty. Where an institutio heredis failed from
causes other than invalidity of the will and injustice was done, reli'-f
was given in some cases, e.g. the herex, also entitled °" intestacy, took
in that way so as to defeat the gifts in the will9.

2. Fideicommissary liberty overdue. By the operation of three
.V'C.10 it was provided that where the fiduciary had failed to carry out
the trust, the praetor would declare the man free as from the time
when he should have been freed. If the fiduciary was in fault arid the
slave belonged to the tiereditas he lost his patronal rights11, the freedman
being the liberties of the deceased (r/rcinus).

3. Bonorum addictio libertatium eonservtmdarum causa. M. Aurelius

1 Ante, § xxv. 2 Inst. 4. H. 3. 3 C. Th. 5. 9. 1, 2; C. 8. 51. 3. 4 40. 12. '.',' ;
C. 7. 14. 15; C. 7. 10. 5. 1 ; C. 7. -i'. .;. 5 40. 1-'. 87;C. 7. U. 1. 6 C. 7. _-. .' ;

perhaps 1G before, C. Th. 4. 8. 7. 7 Buoklan'J, Xfcivery, 0"/>. 8^.15. Litu/a-

lion on a man's liberty decided in his favour did not bar others from disputing his *>"
(40. 12. 42;. The same would appear to be true on decision the other way. A.S to allusion,
in literary texts to a rule that such cases should be tried twi '-n thrice, see Buck

land, .S'iavery, W8 8^4 q. 9 2^. 4. 0. 10; W. 4. 2.'}. pr. Or is bribed not to enter, C. 7.

4. 1. 1; or the will is upset by collusion, ev., 4'^. 1. 14. 1. A hervi directed to choose and
free one of the children of an anciWi wilfully refuses, Justinian makes them all free. '
7. 4. 10. Many other cases. 10 *c. Ku^rianum, A.D. 103, *c. Lkuwmianum a little later,

*c. /uw^ianwm, A.D. 137. 11 40. 5. 20. 7sqq., 2v 4. :JO. pr., ol. 4, S, 10; 31. 84. Much

discussion, where slave has been alienated, on the questions who is liable and what are the
patronal rights, and also where several are bound to free. Buckland, iS'/ai-*ry. 013. In
Nov. 1. 1, Justinian framed a new system. Beneficiaries under the will might claim what
was given to the defaulter, in a certain order, giving security that they would carry
out the gift.

86 MANUMISSION [CH.

provided that if no heres entered and the estate was likely to be sold
by creditors, so that gifts of liberty would fail, the estate might be
assigned to one of the slaves freed, who gave security for payment of
debts, and gifts of liberty would operate as if the heres had accepted1.
This was soon extended to cases of liberty given by codicil without a
will2, and to application by an extraneus3. The slaves need not consent.
The addictee became liable and entitled like a praetorian successor4. A
gift in fraud of creditors was good, as they did not suffer5. Justinian
allowed assignment even to a slave not freed, who thus got freedom;
he allowed it also within a year after the goods were sold, and, if the
creditors agreed, on security for less than full payment, and so that
only some of the gifts should operate6.

4. Inheritances passing to the Fisc. Where this occurred liberties
took effect as if a heres had entered, so that gifts in fraud of creditors
failed7.

5. Transfer ut manumittatur. M. Aurelius (and Commodus?) pro-
vided that one sold or given to be freed at once or later and not so freed,
should be free, ipso facto without decree, on the failure 8. The case of
gift may be an early extension : here there was a right of withdrawal,
before it was effective9.

6. Servus suis nummis emptus. M. Aurelius and Verus provided
that a slave suis nummis emptus, which, as a slave has none, means with
money not provided by the buyer, could claim immediate manumission.
The case was dealt with like an overdue fideicommissum10. The purpose
must have been declared at the outset11, and the money might have
come from the slave's peculium, if the master consented12.

7. The slave whose master has taken money to free him. Here the
ownership wyas an existing one, not as in the last two cases, created ad
hoc. It was enforcing a bargain between slave and master. The texts

1 Inst. 3. 11. 1. 2 40. 5. 2. 3 40. 4. 50. 4 40. 5. 4. 21. 5 40. 5. 4. 19.

6 Inst. 3. 11. 7; C. 7. 2. 15. 7 40. 5. 4. 19; h. t. 51. pr. There are many such cases.

Controversy as to gifts in fraud of creditors, Buckland, Slavery, 626. 8 18. 7. 10; 38. 1.
13. pr. ; 40. 8. 1, 9; C. 4. 57. 1, 2, 6. The purpose might be to make the actual manumitter
patron or to avoid the difficulty that the owner, as he was physically incapable (mutus,
surdus), could himself have freed only informally, so that the man would not be a civis. P.
4. 12. 2. See Lotmar, Marc Aurels Erlass uber die Freilassungsauflage. 9 Such gifts

were sometimes by mancipatio cum fiducia (post, § CLI), which gave a right of revocation
before completion. If the gift were revoked before the freedom took effect the constitu-
tion would not apply and the man could be recovered. Though this is a characteristic
due to fiducia, it was generalised in later law, and there was a condictio ex poenitentia,
whether it had been done with express fiducia or not; Buckland, Slavery, 633. 10 5.
1. 67; 40. 1. 4. pr., 5. pr., i.e. by decree. 11 40. 1. 4. 2, 4, 6. 12 C. 4. 49. 7. There
may be a ius poenitendi before the actual transfer (12. 4. 5. 2) and even after (40. 1. 4.
2) but it is not clear that the text covers this type of case, where the slave initiates the
business.

,ij CITIZENSHIP 87

disagree on the effect. Some make it operate ipso facto as in case 5,
others require a decree, as in cases 2 and 61. The rule appears to come
from Greek law2, and to be post-classical. The agreement might be that
he was to be a Latin3. There was a ius poenitentiae in the payer, till the
man was free, which seems to be due to Justinian4.

The chief points to notice as to the effect of supervening freedom on
previous transactions are the following: Liabilities for crime or delict
remained ; noxa caput sequitur5. Rights arising from such things re-
mained with the master, a slave could have no rights6. But a slave who
had committed a wrong against his master could not be sued after
freedom any more than he could before7.

Inheritances left to a slave would go to him personally if he was free
before they were accepted8. In the region of contract there might be
naturalis obligatio between a man and his slave, but the latter had no
rights after manumission, except that if he took his peculium the claim
would be reckoned in it9, and conversely it was only against the peculium
that the master had a right10. On contracts with extranei, the right
remained with the master11, and though the contract might impose a
naturalis obligatio on the slave, he could not be sued after he was free12.
But here too if he took his peculium he was liable to an action, de peculio,
for one year13, as the master would have been, had he kept it14.

XXXII. CIVITAS. From this point of view the main classification
is into Cives, Latini and Peregrini, a classification more convenient than
exact since Latins are a class of privileged Peregrines. But their privi-
leges are so marked as to bring them closer to Cives than to Peregrini15.

Cives. Of cives in general little need be said, but there were on the

1 40. 1. 19; 40. 12. 38. 1; C. 4. 6. 9; C. 4. 57. 4; C. 7. 16. 8. 2 Dareste, Recueil

des inscriptions juridiques grecques, 2. 252 sqq., 273 sqq. 3 Girard, Textes, 849.

4 12. 4. 3. 2, 3. 5 G. 4. 77; P. 2. 31. 8; D. 9. 4. 24. In minor wrongs command by

.dominus was a defence after manumission, 9. 4. 2. 1 ; 25. 2. 21. 1. 6 An action lay in

some circumstances for an insult to a slave. Even this remained with the master, 47. 10.
30. pr.; 47. 2. 46. pr.; 9. 2. 15. 1. 7 47. 2. 17. 1; C. 3. 41. 1. 8 G. 2. 189; Ulp. 22.

12,13. As to legacies, post, § cxx. 9 33.8.6.4. 10 Of retention merely; Buckland,
Slavery, 690. 11 44. 7. 56, even conditional, 45. 1. 75. 12 P. 2. 13. 9; C. 4. 14. 2.

13 Post, § CLXXXIV. It was disputed. 14 15. 2. 1. 7. 15 The existence in the

same community of persons of similar race and speech with widely different civil rights
caused great difficulties (see the story in Vita Alexandra, 27. 1) and mistakes, resulting
in great prominence of rules remedying evils due to them. Thus sale of a freeman
as a slave is a valid contract, guia difficile dignosci potest liber homo a servo (18. 1. 5)
though of course it cannot be carried out. See also rules as to fraudulent sale of freeman
(ante, § xxv), error is causae probatio (post, § xxxv), attestation by slave supposed free
(post, § cm), institutio in same conditions (post, § cvm), acquisition through liber homo
bona fide serviens (post, § xcix), position of child of ancilla supposed to be free (G. 1. 85) ,
persons de atatu suo incerti (post, § en), etc. A slave could not be arbiter but if one thought
free was so appointed and gave his decision, this was good (C. 7. 45. 2). A fugitive slave
got himself appointed praetor: his official acts were valid (1. 14. 3).

88 CITIZENSHIP [CH.

one hand specially privileged classes, and, on the other, classes whose
rights were more or less restricted. The only privileged classes that need
mention are :

1 . Or do Senatorius. This was a sort of nobility founded by Augustus,
based on descent from a Senator1, a title which itself gradually became
more a rank than an office. Membership of the ordo passed to agnatic
descendants, but only to the grandchildren of an actual senator, not in
perpetuum. The privileges belongmainly to public law : the only important
special rules of private law were that these clarissimi could not take
the lucrative government contracts2 and that a marriage between one
of this class and a libertinus (a) was void3.

2. Ordo Equester*. This descends from the equestrian centuries in
the scheme of Servius Tullius, but in the empire it had altered its char-
acter. It was an aristocracy of wealth, not in the sense that all the rich
belonged to it, for membership was conferred by the Emperor, but in
the sense that wealth was an essential, though birth and character played
a part. The position was held for life, subject to removal or promotion
to the Senate, but was not inherited5. Members of this ordo formed
the chief element in the album iudicum6. They held the chief
financial administrative posts, and provided most of the officers in
the army. They tended to increase in wealth, as the business of
contracting with the State was mainly in their hands, but their various
privileges, apart from the first mentioned, had small importance in
private law.

Classes with specially restricted rights are more important. Leaving
out of account the distinctions of the republic, and omitting for the
present addicti under a judgment7, and persons in mancipio*, who will
call for consideration in other connexions, there were four classes who
appeared in the empire.

1. Freedmen, Gives Liberti, Libertini Gives9. Many of the disabilities
of libertini belong to public law and need not be considered 10, but some
relate to private law. A libertinus could not marry a person of the
ordo senatorius11: he was barred from taking State contracts, at any

1 Mommsen, Staatsr. 3. 458 sqq. ; D.P.R. 6. 2. 47 sqq. 2 Mommsen, op. cit. 2.

509; D.P.R. 6. 2. 109. 3 23. 2. 44. pr. 4 Mommsen, op. cit. 3. 476; D.P.R. 6. 2. 68.
5 Mommsen, op. cit. 500; D.P.R. 6. 2. 98. 6 Post, § ccxvn. 7 Post, §§ ccxi, ccxix.
8 Post, § XLVIII. As to auctorati, see Pauly-Wissowa, s.v. auctoratus. 9 The word

libertinus denotes the freedman in relation to the rest of the community, the word libertus
his relation to his patron. See G. 1. 110, 111. A libertinus freed by T. is the libertus of
T. The name libertinus is applied to all grades of freedmen, the name libertus, apparently,
in the time of Gaius, only to cives. Cp. G. 1. 12, with G. Ep. 1. 1. pr. G. 3. 56, liberti
latini hominis, is under suspicion, see, e.g., Krueger und Stud, ad h. 1. 10 E.g. in-

ability to hold Roman magistracies or vote in the comitia, under the Empire. See Mommsen,
op. cit. 3. 440; D.P.R. 6. 2. 25. 11 See n. 3. In the Republic he could not marry any
free-born person.

ii] LIBERTINI 89

rate until, in the second century, he became admissible to equestrian
rank1. But more important practically than these points were the
rules affecting his relation with his patronus. The main rules in this
matter are the following :

The patron had a right of succession — iura in bonis: its extent
will be considered later2. This right, established by the XII Tables,
carried with it the right of guardianship over the libertus impubes or
Liberia — tutela legitima3. It was protected by rules annulling alienations
which in intent and effect were frauds on the patron's right4. It was
regarded as in some sort compensation for loss of services, rendered by
the libertus, for it was laid down that if the heres instituted by the will
of the freedman undertook to continue these, and the patron accepted
this, he could not afterwards attack the will5.

The patron was entitled to obsequium. This is not easily defined, but
the duty of respectful conduct which it implies is expressed in a number
of specific rules. Obsequium was due even though the liberty was the
result of a bargain6, and, to some extent, to parents and children of the
patron7. The libertus might not, as it seems, bring any action involving
discredit against the patron or these relatives, or, without leave of a
magistrate, any action at all 8. He could not be accuser, or give evidence,
in a criminal case against the patron 9. Gifts by the patron were revocable
without proof of ingratitude10 and gifts to the patron were not limited
in amount by the /. Cincian. A woman freed for the purpose of marriage
could not refuse it12. Apart from any special obligation to operae and
munera undertaken, a libertus was bound to support his patron in need,
according to his means13. The obligations were not however all one way.
The libertus must not be treated as a slave14. In classical law the patron
could not give evidence against him in criminal matters, and in later

1 Mommsen, op. cit. 3. 518; D.P.B. 6. 2. 118 sq. Most of these rules were applied in
the republic de facto, though not in law, to the child of a libertus — it took two generations
to wipe out the stain of slavery. There is in fact evidence that at one time the name
libertinus had been applied only to the children of liberti, Suetonius, Claudius, 24; Isidorus,
9. 4. 47. See Bruns, 2. S3. 2 Post, § cxxxiv. 3 Post, § LII. 4 Enforced by

the actio Calvisiana where the libertus had died intestate (38. 5. 3. 3) and the actio Fabiana
where he had made a will (P. 3. 3; D. 38. 5, passim), thus only after death (post, § ccin).
5 37. 14. 20; 38. 2. 1. 2; 38. 2. 37. 6 37. 15. 3. 7 37. 15. 5. 6. As to machinery for
dealing with ingratitude, ante, §xxv. 8 G. 4. 46; C. 6. 6. 1; D. 37. 15. 2; h. t. 6; h. t. 7.
9 Coll. 4. 4. 2; 9. 2. 2; 9. 3. 3; D. 48. 2. 8; C. Th. 9. 6. 4 ( =C. 4. 20. 12). Or in some cases
children or parents or patron of the patron. 10 Vat. Fr. 272. 11 Vat. Fr. 308, 309.
12 Post, § XLI. 13 P. 2. 32. 1; C. 6. 3. 1. Libertus punishable for seeking to marry
patronu or patron's wife or daughter (P. 2. 19. 9), must accept tutela of patron's child in
circumstances which excuse him from others (P. 2. 29. 1; Vat. Fr. 152, 224). A woman's
power to change tutor did not apply to patronus except temporarily, in case of urgency
(G. 1. 174). 14- C. 6. 6. 6.

90 LIBERTINI [CH.

law he could not be compelled to do so1. He must provide for him in
need2, and there were other protections3.

If the manumission was voluntary and gratuitous in other respects
it was allowed, and usual, for the patron to require services, operae, and
gifts, munera*. Munera seem to have been gifts on special occasions of
no great importance, as it was forbidden to exact money onerandae
libertatis causa5, though it was permitted to agree for money in lieu of
promised services, the choice being with the libertus*. Operae were
more serious. They might not be excessive and must be suitable to the
age, status and training of the libertus7. Sickness excused without com-
pensation 8. The right to operae of a liberta was lost by marriage or con-
cubinage with her and by her marriage, with the patron's consent9, and
by her reaching the age of 50 or a rank which made the services unreason-
able10. In the case of a libertus the right was lost by his having two
children (but not by mere marriage11, or, it seems, dignity) and by
redemption for money, which ended the patron's rights altogether12. An
opera is a day's work, conceived of as a definite unit of value, a dandum,
not a faciendum13.

Other facts might destroy the right to bona, i.e. in effect, to the
patron's rights generally. Such were: reclaiming him as a slave14; ex-
acting an oath not to marry or have children15; having freed a woman
under a fideicommissum, excusing himself from tutela of her16; and
breaches of various duties above enumerated and others17. The rights
were destroyed by capitis deminutio maxima or media on either side, but
of course the condemnation of the patron did not destroy the independent
right of his children to the bona18. Adrogatio of the patron merely trans-

1 Coll. 9. 3. 3; P. 5. 15. 3; D. 22. 5. 4. 2 37. 14. 5. 1. 3 Patron cannot prevent

libertus from trading even in competition, but Justinian allows the patron to stop this in
case of actual damage; 37. 14. 2; h. t. 18; 37. 15. 11; 38. 1. 45. Libertus cannot be com-
pelled to live with patron, C. 6. 3. 12. 4 38. 1. 7. 4; C. 6. 3. 3; h. t. 5. 5 38. 1. 32;
h. t. 36; h. t. 39. 6 37. 14. 6. 1 ; 38. 1. 39. 7 38. 1. 2; h. t. 16. 1 ; h. t. 50. 8 38.
1. 15. pr. 9 38. 1. 13. 4; h. t. 30. 1 ; h. t. 46; C. 6. 3. 9. Marriage of liberta did not destroy
the right ofapatrona, 38. 1. 48. 2. 10 38. 1. 34, 35. 11 C.-6. 3. 7. 1 (lege lulia); 38. 1.
13. 3. 12 38. 2. 37, expressing the fact that succession is a replacement of right to
services. The right to support in need remained. P. 2. 32. 13 Thelohan, fit. Oirard,
1. 355 sqq. ; post, §§ xcvi, CLX. Operae other than personal services were assignable, 38.
1. 9. 1; h. t. 23. pr. (interp. see Desserteaux, Capitis Deminutio, 2. 290, and his reff.).
Services the render of which had already been claimed, operae indictae, were debts to
the patron and so the claim passed to his heres. Whether future services were due to liber i
or heredes depended on the terms of the undertaking, 38. 1. 5; h. t. 22. 1. 14 38. 2. 9.
15 37. 14. 6-. 16 37. 14. 3. 17 Failure to support in need (I. Aelia Sentia,
38. 2. 33), exacting money libertatis onerandae causa (38. 1. 32), wrongly bringing or sup-
porting a capital charge against him, with some exceptions. If rightly the goods are
publicala (37. 14. 9-11; 38. 2. 14. 5; h. t. 3. 9, etc.). In some of these cases the same
effect is produced if a child of the patron does the act, 38. 1. 48. 18 Post, § cxxxiv

n] LIBERTIN1 91

ferred the rights: that of the libertus, not usually allowed, did not
affect the patron's rights1.

Not all patrons had these rights. We have seen in what case the
right to operae arose. In some of the cases in which a slave was freed
for misconduct of the master the latter was patron in name without
the patronal rights 2. One who freed under a trust had iura in bona and
tutela, and could not be sued, but the other rules of obsequium did not
apply3. We have seen that for default in carrying out the trust he might
lose the libertus altogether4. The transferee, ut manumittatur, seems to
have been in the position of one who freed under a trust5. In the case
of a slave suis nummis emptus, the manumitter could not be sued6, but
the other rules of obsequium did not apply, and though he succeeded on
intestacy like any other patron, he could not attack the freedman's
will7. A libertinus could not, of course, ever come to have been born
free, ingenuus, but he could be put in the same legal position. Augustus
gave a certain freedman the rights of ingenuitas, by allowing a collusive
claim that he was ingenuus, known to be merely a fiction, in order to
introduce him to the equestrian class 8, and soon there were direct gifts
of the ius anuli aurei, the mark of this class9. From the second century
this right marked only an ingenuus, and from Commodus onwards,
grants of it to freedmen were common10. Such a grant made the man an
ingenuus for general legal purposes but did not affect the patron's rights11.
A little later a further step was taken. By decree of the Emperor a freed-
man might get restitutio natalium12, which made him an ingenuus for all
purposes and thus the consent of patron and his children was usually
required, as their rights were destroyed13. In a late novel, Justinian
gave to all libertini, existing or future, the ius regenerationis and anuli
aurei. This left the patron's rights unaffected, but he provided that these
were destroyed if the patron at any time expressly waived them14. The
practical result was that the general disabilities of alibertinus disappeared.

XXXIII. 2. Coloni Adscriptitii, Adscripts Glebae15. This is a class of
serfs who appeared in the empire, not certainly traceable before Con-
stantine, but probably older. They were evidently a very large class in
the Byzantine empire, and were the subject of much legislation16. They

1 Post, § XLV. But as to the effect of cap. dem. of patron on iusiurandum operarum,
post, § CLX. 2 See C. 7. 6. 1. 4. 3 2. 4. 9; 27. 1. 24; 38. 1. 7. 4; Vat. Fr. 225. 4 Ante,
§ xxxi. 5 2. 4. 10. pr.; 37. 15. 3; 38. 2. 3. 3; C. 6. 3. 2, etc. 6 2. 4. 10. pr.

7 C. 6. 4. 1. 8 Suetonius, Augustus, 74. 9 Mommsen, Staatsr. 2.893; D.P.R.

5. 172. 10 76. ; Vat. Fr. 226. 11 Commodus seems to have required the patron's

consent, 40. 10. 3. 12 Marcian tells us that the natalia restored are not of course their
own but those originally the common right of all men, 40. 11. 2. 13 P. 4. 14 a.

14 Nov. 78. 15 Heitland, Agricola, chh. 50,51; Seeck, Pauly-Wissowa, s.v.

colonatus; Girard, Man. 134. 16 See for an account of the legislation affecting them,

92 COLON I: IN FAMES [CH.

were the rustic cultivating class. The colonus was free and a citizen1. He
could marry and engage in ordinary transactions2 and he did not owe
servile obsequium3. But he could not leave the land or sell it, or his
other property. If he deserted he could be reclaimed and those who
detained him were liable4. His lord could not remove him from the land
or sell it away from him or raise his rent, which was paid in kind5. The
position was hereditary6. There was no enfranchisement from this
status, and though in 419 it was provided that 30 years apparent
liberty from it should release from it, this had disappeared under
Justinian7. But the colonus could be released by an agreement under
which he was to hold the land free of the burdens 8, and under Justinian
was released by becoming a bishop9. The status arose by birth, by
voluntary acceptance, e.g. in distress10, by lapse of time11, and by
denunciatio, i.e. sturdy vagrants were assigned to landowners who
denounced them12. Coloni could bring no actions against their lord
except as to his title or on an increase of rent13. Most of these rules
belong to the fifth century when the institution was becoming more
important in the growing distress, and as part of the tendency to secure
the due functioning of matters important to the State by making many
status hereditary, thus holding the people to the work and status to
which they had been born14.

3. Infames15. These appear in Justinian's law16 as a sharply defined
group who, by reason of numerous forms of wrongful or unseemly con-
duct, are subjected to serious disabilities. Shameful trades, condemna-
tion in certain actions and criminal charges, dismissal in disgrace from
the army, and misconduct in family relations are the chief cases17. The
rule is essentially praetorian18, but, on the one hand, some of the praetor's
cases have disappeared from the list in the Digest19, and, on the other
hand, the praetor does not speak of infamia, but only of prohibition to
appear as advocate for any one (postulare20) or to represent or be repre-

Gothofredus ad C. Th. 5. 9. The papyri are giving much information and raising new
problems. There is evidence of gradual extension and local variations.

1 C. 11. 50. 2; 11. 52. 1. 2 C. 11. 48. 8. 2; h. t. 24. 3 C. 11. 50. 2; 11. 55. 1. As
to their power of alienation, Cuq, Manuel, 90. 4 C. Th. 5. 17. 1-3; 5. 19. 1, 2; C. 11.

48. 6, 12; 11. 50. 2. 5 C. 11. 48. 2, 5, 7, 15. A similar class called Inquilini, of whom
little is known, appear to be somewhat earlier. They are said to have been barbarians
settled on Roman territory, 30. 112. pr.; C. 11. 48. 12, 13. 6 C. 11. 48. 13, 16.

7 20 years, if a woman, C. Th. 5. 18. 1; C. 11. 48. 22. 8 C. 11. 48. 21. 9 Nov.

123. 4. Not by any other privilege, C. 11. 48. 11 ; can hold no militia, h. t. 18. 10 C. Th.
5. 6. 3; Salvianus, de gubernatione dei, 5. 8. 11 C. 11. 48. 19, 20. 12 C. Th. 14. 18. 1.
13 C. 11. 48. 20; 11. 50. 1, 2. 14 In that age there are many such hereditary positions.
15 Greenidge, Infamia in Roman Law. 16 Chief texts, Vat. Fr. 320-324; D. 3. 1. 1. 5-8;
3. 2. passim; C. 2. 11. 17 Greenidge gives a list of about 40 sources of infamia.

18 It originated with the Censor, but this aspect of it disappears with the census.

19 E.g., auctorati, Coll. 9. 2. 2, persons condemned in the actio fiduciae (obsolete, post,
§ CLI . 20 Lenel, E. P. 76 sqq.; D. 3. 1. 1. 5.

n] LATINS 93

sented by anyone in litigation (cognitores dare, dari1). This last rule,
which applied also to the less formally appointed representatives, pro-
cur 'atores, was no longer expressly stated under Justinian2, but that of
postulatio remained3. Certain condemnati could notpostulare for anyone4.
Infames in general could act only for connected persons and could not
appoint persons to act for them5. They could not accusare in criminal
cases6. They could not hold offices or dignities7. They were not neces-
sarily intestabiles, though the provision which made them infames might
also provide this 8. But in fact we are better informed as to the cases of
infamia than as to its effects. Most of the disabilities created by infamia
had no possible bearing on women, and in fact the original censorian
conception of infamia did not apply to them. The}^ appear, however, in
the law of the empire : probably in their case the chief result was that
they could not appoint representatives9.

4. Intestabiles™. Certain persons might not be witnesses, a rule re-
ferring not only to giving evidence in litigation11, but to acting as wit-
nesses in formal transactions, e.g., mancipatio and will12. Gains tells us
that some jurists excluded them from having witnesses13, a rule which
bars them from conveying property in civil form and from making wills,
and is applied to this last case by Ulpian14. But in addition to these
persons who are declared intestabiles, generally, there are others who
are excluded by specific statutes from giving evidence in cases with
which it deals15.

XXXIV. Free subjects other than Gives are Latini or Peregrini, and
each of these groups has subdivisions.

(a) Latini Veteres (nomen Latinum). These, i.e. the Italian communi-
ties of Latin race, had been endowed with civitas long before the empire
and do not therefore directly concern us16. But the name of Latin had
been applied to

(b) Latini Colonarii. These were communities on which, at or after
their incorporation into the State, an inferior status modelled on that of
the old Latins had been conferred, in some cases on the old inhabitants
of the region, in others on emigrants sent out from Rome to occupy the
territory or town17. Such colonies continued to be founded18 till the middle
of the second century, but, owing to the progressive extensions of civitas,

1 G. 4. 82; Lenel, op. tit. 88. One who could not postulare could not be cognitor,
P. 1. 2. 1. 2 Inst. 4. 13. 11; post, § ccxxxix. 3 3. 3. 1. 5. 4 h. t. 1. 6. 5 h. t.
1. 8. 6 Coll. 4. 4. 7 48. 7. 1. pr.; or to act as indices, Greenidge, 155. 8 28. 1.

18. 9 See Greenidge, op. cit. ch. VH. 10 This notion is as old as the XII Tables,

8. 22. 11 Coll. 9. 2; D. 22. 5. 20. 12 22. 5. 15; 28. 1. 18. 1. 13 28. 1. 26. 14 28.
1. 18. 1. 15 See Greenidge, op. cit. 166. 16 The name Latini was applied also

to the inhabitants of the earliest colonies, before the name Latini Colonarii was invented.
See Girard, Manuel, 111. 17 Mommsen, Rom. Staatsr. 3. 620 sqq.; D.P.R. 6. 2.

241 sqq. 18 By the Senate or the Emperor, G. 1. 95; Vita Hadriani, 21.

94 LATINS [CH.

the later ones were in the remoter parts of the empire, and the class
disappeared under Caracalla1. Latin colonies were of two main types,
those with minus and those with mains Latium, the difference being
that in the first, the superior officials acquired Roman civitas for them
and their children, while, in the other, decuriones, i.e. members of the local
curia or town council, shared the same privilege2. The general position
of such Latins was as follows3. They might not serve in the Roman
legions. They could not hold a Roman magistracy (ius honorum) and,
apart from special provisions4, a marriage between a Latin and a Roman
had not the effects of a Roman marriage (ius connubii). But in the
ordinary relations of private law, they were on a level with Romans
(ius commercii)5.

(c) Latini luniani. These are the inferior class of manumitted slaves
already considered6. Just as, by an "economy of juristic conceptions,"
the nomen Latinum was extended to communities which had nothing to
do with Latium, so was it here extended to a class which had no local
or racial significance at all. Their position was that of colonary Latins,
except so far as it was restricted by the patron's rights, or by express
legislation, or by the fact that they were not members of any Latin
community. These limitations were serious. There was no question of
their acquiring civitas by holding office in their community for they
were not usually members of a Latin community 7. They owed obsequium
to their patron, with the resulting liabilities already considered8. But
they were said to become slaves at their death : their property reverted
to their patron, as peculium, not as inheritance, and their children had
no claim9. They had no capacity for civil marriage10. They had ius
commercii, with the important exception that by express enactment of
the /. lunia, they could not make a will or take an inheritance or
legacy under one, or be made tutores by will11. As this resulted from
express enactment and was not an inherent disability, they could act,
like other Latins, as witnesses in wills and other formal acts12. Having
commercium they had access to the law courts13. After an enactment of

\ Post, § xxxvn. 2 G. 1. 96. 3 Each had its own statute (e.g., I. Salpensana,

Brans, 1. 142; Girard, Textes, 108), and these were not uniform but the differences seem to
have been mainly in details of local administration. 4 G. 1. 56; Ulp. 5. 4. 5 Ulp. 19. 4,
5. It was possible for a Latin to give his child in adoption to a Roman (Livy, 41. 8) and
by a survival of the notions of the old Latin league it was open to Latins resident at Rome
to vote, at any rate in the Tribes (Livy, 25. 3; Mommsen, op. cit. 3. 643; D.P.R. 6. 2. 297).
But there is no evidence of this in the Empire and that for the late Republic is not
good. 6 Ante, § xxvm. 7 They might be, if freed by a member of the community.
8 Ante, § xxxii. 9 Inst. 3. 7. 4; post, § cxxxrv. 10 Ulp. 5. 9. Special provisions of
1. Aelia Sentia, post, § XLI. 11 G. 1. 23, 24; 2. 110, 275; Ulp. 11. 16. They could take
fideicommissa. 12 Technically, they had testamenti factio, but not ius capiendi.

Ulp. 20. 8; 22. 3. 13 Ulp. 5. 4; 19. 4.

n] LATINS 95

Caracalla shortly to be considered1 the name iuniani went out of use,
as there were no longer any colonary Latins. At the same time there
was a gradual development of new ways of becoming a Latin. Some of
them were merely new modes of informal or imperfect manumission2,
but some clearly were not, e.g. Latinity given by law to a slave who
detected certain criminals3. Many of the cases are very late and it is
impossible to say how far the beneficiaries were subject to patronal
rights and the other disabilities of junian Latins. The same is true of
the children of junian Latins, but for reasons now to be stated the
class affected would not be numerous.

XXXV. Access to citizenship was made very easy by the legislation
of the empire4. Gains and Ulpian enumerate many ways, open appar-
ently to all Latins, but, in the case of junian Latins, not affecting the
patron's rights. The case of office in a Latin colony has been mentioned5.
Claudius gave civitas to Latins who built a ship of a certain size and
carried grain to Rome for six years6. A lex Visellia (apparently 25 A.D.)
gave it to those who served in the Vigiles for six years7. Nero gave it
to any Latin who, being of a certain wealth, should build a house in
Rome at the cost of half his patrimony8, Trajan to any Latin who
should work a mill of a certain capacity at Rome for three years 9. A
senatusconsult gave it to Latinae who had three children, even volgo
concepti10. It was of course frequently given by special decree of the
Emperor, and though in general the patron's rights were unaffected
there is reason to think that in this last case, if the patron consented, the
man became a civis libertus for all purposes11.

There is another group of cases of more importance in which the
Latin became a civis for all purposes.

Iteratio12. A slave who on manumission became a Latin could become
a civis by a repetition of the manumission without the defect, and by a
senatusconsult this would affect his children also13. The cases recorded
seem to be : the man informally freed, or freed under 30, or by a bonitary
owner14. We are told that he became the libertus of the one who iterated.

1 Post, § xxxvn. 2 E.g., pledged slave freed, 40. 5. 24. 10; Fr. Dos. I6;ancilla

married to freeman with dos, C. 7. 6. 9. 3 C. Th. 9. 24. 1. Numerous cases, Buckland,

Slavery, 548 sqq. 4 G. 1. 28. 5 Ante, § xxxiv. 6 G. 1. 32; Ulp. 3. 6.

7 Shortened by sc. to three, G. 1. 32; Ulp. 3. 5. 8 G. 1. 33. 9 G. 1. 34; Ulp. 3. 1.

10 Ulp. 3. 1. If of marriage with Latin, another rule applied, post, p. 96. If of
marriage with peregrine, to apply this rule would put them in a better position than
Latini. It was not desirable to encourage marriage between cives and Latinae, who were
usually libertinae. 11 See ante, § xxxii. 12 As to some problems connected with
iteratio and not considered here, involving the fundamental conception of manumission,
see Buckland, Slavery, Appendix 4. 13 G. 1. 35, 167; Fr. D. 14; Ulp. 3. 4; Vat. Fr. L'I' 1 .
It is not clear that the children would be in his potestas, but this is probable. The whole
rule is to exclude the doubt whether as he was not now a slave any act of manumission
might not be a nullity. 14 Pliny, Ep. 7. 16.

96 LATINS [CH.

Where this was the original manumitter or his successor in title there
was no difficulty. But if the bonitary owner freed and the quiritary
owner iterated, we learn that the bona, i.e. right of succession, remained
with the late bonitary owner1, no doubt because the quiritary owner
could not acquire anything through him while he was a slave or Latin.
And by a rescript of M. Aurelius rights to munera and operae remained
with the bonitary owner2. It might have been thought that tutela,
which went with right of succession, would also have been with the
bonitary owner, but the quiritary owner became tutor5. It may be as-
sumed that the ordinary rules of obsequium applied to both. It is thus
only in a very restricted sense that the libertus was the libertus of the
former quiritary owner4.

Anniculi Probatio. By the /. Aelia Sentia5 or the /. lunia* it was
provided that a Latinus iunianus who had been freed under 30 could, on
marrying a Latino, colonaria or iunia or a civis, before seven witnesses,
(aware of the purpose of the marriage,) and having a child one year
old, go before a magistrate and prove these facts. He would thus
acquire civitas for himself, his wife and child, and patria potestas over
the child, unless indeed the wife was a civis already, in which case the
child would be a civis on general principle7. If the man died before
making the proof the mother could do it to get civitas for herself and child.
A defective text of Gaius seems to say that, if both were dead, then, if
the child were a civis, through his mother, he himself could proceed, so
as to become heres to the father8. The limitation to those under 30 is
not very reasonable, and a sc. Pusio-Pegasianum of 72 A.D. gave the
same right to all junian Latins9.

The position thus obtained was better than that gained by acquiring
civitas by the methods of the first group, but it applied in terms only to
Latins, and Trajan held that one who, having obtained civitas in some
way, had ceased to be a Latin could not afterwards utilise anniculi
probatio, so that his bona must go to his patron and his children would
have no claim. Hadrian however10, observing the unfairness of this,
allowed those who had gained civitas with this inferior result to proceed

1 G. 1. 167. The rights are no doubt those he had in the goods, as those of a Latin.
2 Vat. Fr. 221. 3 Ib.; G. 167; Ulp. 11. 19. The point is that the civil law right of

succession is not divested, though emptied of content by the praetorian right, post,
§ cxxxv. 4 Where he acquires civitas by one of the first group of methods, he becomes
the libertus of his former quiritary owner, but the bona are still with the bonitary owner,
G. 1. 35. 5 G. 1. 29. 6 Ulp. 3. 3. The restriction to those under 30 indicates the

1. Aelia Sentia, these being the Latini specially created by that lex. To give them this special
privilege does not add to the class of cives those who would not have been such in earlier
law. 7 Post, § xxxvn, and under a sc. of Hadrian which seems to have dealt compre-
hensively with questions of status on birth, not always making new law. Ulp. 3. 3. See
G. 1. 30, 77, etc. 8 G. 1. 32; Coll. 16. 3. 7, 15. 9 G. 1. 31. 10 G. 3. 72, 73.

n] LATINS 97

nevertheless afterwards under the rules of anniculi probatio, as if they
were still Latins.

Erroris Causae Probatio. This is one of the cases, so prominent in
Roman Law, of provisions to deal with the results of error in status.
Gaius, in a mutilated set of texts1, deals with cases in which, a marriage
having been contracted under mistake of status, so that the status of
issue was not what was expected, the effects of the error, if it was not
grossly negligent, might be set aside by decree so soon as there was
issue. Ulpian deals more shortly with the matter. The cases, all of which
rest on senatusconsult, appear to fall into three groups.

(a) One party intended to satisfy the rules of anniculi probatio, but,
owing to mistake of status, did not, e.g. a Roman woman married a
peregrine thinking him a Latin, or a latina married a peregrine under a
similar error. As soon as a child was a year old, erroris causa could be
shewn and proceedings taken under the lex2.

(b) There was no reference to anniculi probatio, but the marriage
was not a civil marriage because one party, supposed to be a civis, was
not, and had not conubium. Here it was enough that a child was
born3.

The general result was to give civitas to the parties not cives, and
potestas to the father5. The primary matter in view being civitas, the rules
were not applied except where the effect was to give someone civitas,
and the benefits of the rule were not extended to any party to the mar-
riage who, being a dediticius, was incapable of civitas6. •

Both parties need not have been in error, but only the one who was
could avail himself of the rules 7. The man could always do so, if in error,
but the woman only if she was the superior, i.e. a civis or latina who had
married a peregrine8. But a peregrine who shewed cause under these
rules did not get potestas over existing issue except by special decree,
though he did if the wife shewed cause 9.

XXXVI. Of the third class, peregrini, there were two types.

Peregrini (socii). With the earlier meaning of this name we are not
concerned; in classical law it may be said to denote the denizens of
those outlying parts of the empire which had never been incorporated
as Roman, or endowed with Latin rights — the provinces. Apart from
municipalities and the like which here and there received civil or Latin

1 G. 1. 67-75; see also, G. 1. 87, 2. 142; Ulp. 7. 4. 2 G. 1. 68-70, 73; 3. 5; Ulp. 7. 4;
Coll. 16. 2. 5. 3 G. 1. 67, 68; Ulp. 7. 4. 4 G. 1. 71. 5 G. 1. 67. Sex of child
immaterial, G. 1. 72. 6 G. 1. 68. 7 No text mentions the other case. 8 G. 1. 74.
9 G. 1. 93; 1. 68.

B. R. L. 7

98 PEREGRINES [CH.

rights, and thus constituted civil enclaves1, the provinces were governed
by their own private law, little altered by Roman authority. What we
have to consider is therefore the relations between these peregrines and
Romans in civil life. They had in general no ius honorum, suffragii,
conubii or commercii2. The exclusion from commercium does not mean
exclusion from commerce, but only from the specially Roman part of
the law. They could not have civil dominium or transfer property by
civil law methods, such as mancipatio or cessio in iures. The land, unless
it had received, by privilegium, the ius italicum, was not regarded as
owned : the dominium was in the populus or the Emperor4, and it paid a
tribute ; methods being of course devised by which transfers, creation of
servitudes, and litigation affecting the land were carried out effectively5.
Moreover the ius gentium was open to them, and this, in the empire,
was the most important part of the law. Thus they could transfer
property by traditio, and since stipulatio was treated as iuris gentium6,
it may be said that the law of contract was in practice as free to pere-
grines as to ewes'1. And though, in principle, civil procedure was
closed to them, "fictitious" actions were devised by which in the
principal cases of dispute between them and cives, the matter might
come before the courts with a formal pretence that they were cives9.
There were moreover special tribunals (recuperatoria iudicia) for cases,
at Rome, in which peregrines were concerned, controlled by the praetor
peregrinus9, but these grew less important as the above machinery
developed10.

Except so far as they might benefit by the rules of erroris causae
probatio, there was no standing rule by which peregrines could attain

1 Mommsen, Staatsr. 3. 645 sqq.; D.P.R. 6. 2. 269 sqq. 2 G. 1. 25, 56, 92, etc. By
privilegium, some had conubium (G. 1. 56, 57, 76, etc.) and commercium, with access to
Roman courts (Ulp. 19. 4). Thus some could proceed by legis actio (Girard, Org. Jud. 1.
104, 213 sqq.). 3 G. 1. 119. 4 G. 2. 7. The populus as a property owner disappears
soon after Gaius. 5 Post, §§LXJX, xciv. 6 G. 3. 93, not in the form " Spondes-ne,
spondeo." 7 Except perhaps for the decaying contract literis, G. 3. 132-134. 8 G.
4. 37. 9 Girard, Org. Jud. 1. 211 sqq. 10 This machinery would apply to some extent
to those who had suffered deportatio, a punishment introduced by Augustus, and gradually
superseding exile (aquae et ignis interdictio). It could be inflicted only by the Emperor
orPraefectus Urbi(l. 12. 1. 3; 48. 19. 2; 48. 22. 6. 1), must be perpetual (48. 22. 17. 2) and
involved residence in a fixed place (Theop. ad Inst. 1. 12. 1). Deportati lost their citizenship
without acquiring another — they were "dTriXtSes," and thus did not become citizens of
the place to which they were sent, or share the special law of that place. But they had
the power of ordinary dealings involved in the ius gentium (48. 19. 17. 1; 48. 22. 15).
Their goods were usually forfeited (P. 5. 23. 11, 13, etc.), but if they retained some (not
otherwise, 4. 5. 7. 3) they could be sued, pro parte, on their old debts, but only by utiles
actiones as they had suffered capitis deminutio (48. 22. 14. 3). They could not manumit
slaves and they could neither take under a will nor make one; the Fiscus succeeded to
them (48. 22. 2. 15, 16); they had in no case any rights against former debtors to them.
Mommsen (Staatsr. 3. 140; D.P.R. 6. 1. 156) considers them to be dediticii.

n] ACQUISITION OF CITIZENSHIP 99

civitas. But, apart from grants to communities, or in mass, the emperors
often gave it as a reward after service in the irregular and auxiliary
forces, and as a qualification for service in the legions, which was con-
fined to cives1. But where a peregrine obtained civitas for himself and
his wife and children, he did not get patria potestas over children already
born, unless he expressly petitioned and it was shewn to be for the benefit
of the children2.

Dediticii. These were primarily members of nations wrhich had sub-
mitted to Rome, but had, as yet, no constitution conferred on them,
and those who by reason of treachery or other discreditable dealings
were permanently placed in the position3. There is however little trace
of these in the empire, and the name is applied mainly to those freed
slaves who, by reason of their personal degradation, were placed by the
/. Aelia ''in numero dediticiorum*." They were free butcould neverbecome
cives5. If they attempted to live within 100 miles of Rome, they were
sold into slavery, with their goods, to one who undertook to keep them
beyond that limit. If he freed them they became the property of the
State6. They had the ordinary iure gentium powers, but could not
make wills even by peregrine law, as they were not members of any
community7.

XXXVII. The law was profoundly affected by an enactment of
Caracalla8. We are told by several writers, in almost identical language,
that in 212 he gave civitas to all (omnes, Travras) in the Roman world9.
It is stated to have been for fiscal reasons10. The taxes on manumissions
and successions were doubled and as the latter fell only on cives, there
was profit in increasing the class. A mutilated Greek copy, recently
discovered11, suggests other more creditable motives; to end a fruitful
source of disputes, and to encourage the cult of the Roman gods. It
also tells us that the decree expressly excluded dediticii. It has long
been known that there were large numbers without civitas after this
enactment, and it has been suggested that it did not apply to Junian
Latins, but the express exclusion of dediticii seems clearly to negative
this. It is a gift to specific classes of existing persons, not the abolition
of a status ; Junian Latins would continue to recur, by defective manu-
missions, and there were many ways of becoming Latins. So too
deportatio, involving loss of civitas, still continued, and it is clear that
even under Justinian, barbarian inhabitants of the confines of the

1 Girard, Manuel, 118. 2 G. 1. 93, 94; 2. 135 a. 3 G. 1. 14. 4 Ante,

§ xxvin. 5 A rule applied in erroris causae probatio, ante, § xxxv; or Latins, G. 1. 15.
6 G. 1. 27, 1. Aelia Sentia. Not "servi publici." 7 G. 3. 75; Ulp. 20. 14. 8 See Bry,
fitudes Girard, 1. 1 sqq. 9 Dio Cassius, 77. 9; D. 1. 5. 17; Vita Seven, 1 and others

cited, Bry, p. 5. 10 Dio Cassius, cit. 11 Printed by Bry, p. 3; Pap. Giessen, 40.

7—2

100 ACQUISITION OF CITIZENSHIP [CH.

empire, some originating there, some immigrant, and some settled by
compulsion, were not treated as cives1. No doubt the excluded dediticii
covered all these, but it is generally thought that they covered many
more. On the conquest of Palestine, the Jews were made dediticii, and
it is possible, though not probable, that they were such throughout the
empire. But there is evidence for a wider class of dediticii. It is clear
that in Egypt, after Caracalla, only those were cives who were free of a
certain tribute and only those were free of this who belonged to organ-
ised municipalities. Thus it seems that the rural inhabitants came under
Caracalla's conception of dediticii. This may have been so all over the
empire, but though there were dediticii elsewhere, other than freedmen,
there seems no trace of this particular distinction, and, Egypt being a
special appanage of the Emperor, governed on special lines, this rule
may be peculiar to it. Though municipal organisation was very wide-
spread under Caracalla, the urban population was less than the rural,
so that the majority would still not be cives, which is difficult to recon-
cile with the emphatic language of the texts and of the decree itself2.

Under Justinian a more decisive step was taken. In a comprehensive
enactment3, noting that Latins were now few (which indicates that
some of the rules of the /. Aelia were disused4) he reviewed the different
sources of Latinity which still existed, and either nullified them or made
them give civitas. Noting that dediticii had become vanum no-men he
abolished the class for the future5. He made no enactment abolishing
the class of peregrini, nor was this needed. The gift of Caracalla had
made all the inhabitants (subject to what has been said) and their
descendants, cives, and this seems in later times to have been under-
stood as a gift to the community, covering even immigrants. In the
result the only peregrines left were foreigners and the deportati and
barbarians, already mentioned, who were in effect still dediticii, though
not so called6.

The topic of civitas may be left with a short statement of the rules
as to the inheritance of civic status. The chief were these :

1 . The general rule of ius gentium was that a child took the status of
its mother7, but, for Romans, the exceptions ate away most of the rule8.

2. A child born in Roman civil marriage took the status of its

1 SeeGirard, Manuel, 119. 2 See Girard, Manuel, 119, n. 1. 3 C. 7. 6. 1.

4 Perhaps never operated in the East. 5 C. 7. 5. 1. Not confined to those who were

dediticii by their manumission. If obsolete, the class had not long been so. The fifth
century Epitome of Gaius still speaks of them. And the "Homologoi" of this age in the
Eastern Empire have been shewn to be dediticii, Wilcken, Grundziige der Papyruskunde,
1. 59. There were doubtless sources other than the /. Aelia Sentia. 6 Justinian

avoids the word peregrinus. Compare C. Th. 4. 6. 3 with its reproduction in C. 5. 27>
1. pr. 7 G. 1. 78, 82; Ulp. 5. 8, 9. 8 G. 1. 83.

n] ACQUISITION OF CITIZENSHIP 101

father1. In general this would be civitas, for civil marriage was usually
confined to rives, but there were privileged peregrines who had conu-
bium, and if a Roman woman married such a person, the issue would be
peregrines 2.

3. A /. Minicia provided that the issue of a marriage between a
civis and aperegrinus orperegrina was always a peregrine, a rule operating
where, as was usual, there was no conubium between them, and the
father was a peregrine; in the other case the result followed from rules
already stated3.

4. Marriage under the I. Aelia Sentia, though regulated by statute,
was not civil marriage, as some thought4. Hadrian settled the matter by
senatusconsult ; any child was born a civis if the mother was one5.

5. Apart from a possible doubt in the case of Junian Latins, as an
artificial creation, Latins were in strictness peregrines. Thus it might
be said that in marriage between a Latin and a peregrine, either way,
issue would be peregrine by the /. Minicia. Hadrian declared that the
general rule of ius gentium applied, and the child took the status of the
mother 6.

6. The iure gentium rule applied where the mother was a slave 7, and
we have noted the exceptional cases in which the child of an ancilla was
free 8.

7. Those conceived legitime, which means in civil marriage (ex iustis
nuptiis), took their status from conception; others from the time of
birth 9. This in practice meant that where they took the father's status,
except e lege Minicia, they took his status at the time of conception.
We have already noted that in later classical law this rule was modified
in the case of slave mothers by the principle that the issue was entitled
to the best status the mother had had at any time during the pregnancy10.
It is not unlikely that the same principle came to be applied in other
cases, for Paul tells us twice in the Digest that a child in the womb was
regarded as already born, so far as this was to his benefit11.

1 G. 1. 56, 76; Ulp. 5. 8. 2 G. 1. 77. 3 G. 1. 77, 78; Ulp. 5. 8. 4 G. 1. 80.

5/6. 6 G. 1. 30. 7 Ante, § xxiv. 8/6. 9 G. 1. 89; see Ulp. 5. 10.

10 Ante, § xxrv. 11 Gaius in 1. 90, 91 discusses the case of a woman civis who during
pregnancy loses citizenship or liberty, and gives as a probable opinion the rule that if
the conception was in iustae nuptiae the child is a civis, but otherwise takes the inferior
status. In 92 he considers the case of a peregrina who gets civitas during pregnancy. If
the child was volgo conceptus he says it is a civis (which is general principle): if of a
peregrine marriage it is a civis if the father also got civitas. This he attributes to the sc
of Hadrian.

CHAPTER III
THE LAW OF PERSONS (eon*.). THE LAW OF THE FAMILY

XXXVIII. The Family, persons sui and alieni iuris, p. 102; filiifamilias, nature and effects
of patria potestas, 103; XXXIX. Birth ex iustis nuptiis, 105; Effects of Roman marriage,
106; XL. Dos, 107; Dos at end of marriage, 109; Donatio ante (propter) nuptias, 111;
XLI. Requirements of Roman marriage, 112; Form, ib. ; Consent, 113; Age, 114; Conubium,
115; XLII. End of marriage, 117; Divorce, ib. ; XLIII. Manus, 118; Divorce from manus,
121; XLIV. Adoptio of person alieni iuris, 122; Effect, ib. ; XLV. Adrogatio of person sui
iuris, 124; Effect, 125; Special restrictions, 126; Adoption by will, 128; Adoption of slaves,
ib.; XLVI. Legitimation, etc. ib. ; XLVII. Ending of patria potestas, 131; Emancipatio,
132; XLVIII. Civil Bondage, 134; Contracts by persons alieni iuris, 135; XLIX.
Capitis deminutio, 136; L. Effects of capitis deminutio, 139.

XXXVIII. The Law of Family Relations is the most important
branch of the law of status. The word Familia has many meanings1,
but in its strict sense it denotes a group consisting of a paterfamilias
and those under his control, i.e. his children, adoptive or natural, who
have not passed out of the family by emancipation or the like, remoter
issue through males, in the same case, the wife, if the marriage was one
with manus, in which case she was loco filial, civil bondsmen and
slaves. If, as was usual from the beginning of the empire, and universal
in later law, the marriage was not with manus, the wife was not a mem-
ber of the familia, but remained in that to which she had belonged.
Conversely, a daughter did not leave the family by marriage without
manus, but her children were never in the famity. If her marriage was a
fully valid civil marriage they belonged to her husband's family2. If it
was not, e.g. if she had married a peregrinus not capable of civil marriage,
or if she was not married at all, any child would be sui iuris, i.e. not in
any family but his own3. Every civis who was not under a paterfamilias
was himself a paterfamilias, whatever his age, and conversely, the
parental control was not ended by maturity of the son, but lasted, unless
artificially determined, till the death of the father. And where the
paterfamilias was the grandfather, his death would cause the grandson
to lapse into the potestas of the father, if he was still in the family4. A
paterfamilias was sui iuris — a subordinate member of a family was
alieni iuris5. A woman could be sui iuris but could not have patria

1 Heumann-Seckel, s.v. 2 G. 1. 55. 3 G. 1. 64; Ulp. 4. 1, 2. In the former

case he was a peregrinus, ante, § xxxvn. 4 G. 1. 127; D. 50. 16. 195. 2. 5 G. 1. 48,
124-127.

CH. in] P ATRIA POTESTAS 103

potestas, and thus was said to be caput et finis familiae suae1. The control
of a woman married in manu to a filiusfamilias was in the paterfamilias,
to whom she was loco neptis2. It was possible in classical law (though
the institution was in decay) to sell a son into a position, in another
family, analogous to slavery, and those so sold were said to be in man-
cipio, in mancipii causa3. We have therefore to consider three classes
of cives alieni iuris, those in potestas, rnanus, and civil bondage.

FILIIFAMILIAS and FILIAEFAMILIAS. In early law no question of this
relation arose unless the father accepted the child — ius tollendi, sus-
cipiendi, but this crude form of arbitrary judgment on legitimacy,
difficult to reconcile with the rights accorded to postumi, seems to have
been in practice obsolete in the empire and, in law, was ended by a
praetorian procedure certainly earlier than Julian, which made fathers
compellable to recognise their children4. Exposure and sale are not on
this footing; they both imply a right to dispose of the child.

The patria potestas was essentially Roman : both in its content, so
great that it could be called patria maiestas5, and in its lifelong duration,
it had an intensity unknown to the paternal power in any of the systems
with which Rome came into contact. In early Rome the State interfered
little within the family; the paterfamilias, as domestic judge, normally
with a concilium, exercised supreme power and any restraint was
indirect, through the Censor6. But in the empire, the powers, though still
great, were constantly diminishing. The chief elements of the potestas
were:

1. Power of life and death and minor violence7. The exposure of
infants was not definitely forbidden in classical law and there was a
little later legislation as to the rights of one who rescued the expositus.
It was forbidden in A.D. 374, but it still continued8. Classical law re-
garded the killing of a son except under a formal domestic judgment as
criminal. Ulpian held it so in any case : the son should be handed over
to the courts9. Constantine made it parricide to kill a son10. In later
law the right of the father was limited to reasonable castigation11.

2. Power of Sale. The power to sell into real slavery, trans Tiberim,

1 50. 16. 195. 5; Ulp. (4. 1) calls such a woman materfamilias, and some texts in the
Digest use this language (e.g., 1. 6. 4, Ulp.; 24. 3. 34, Afr.). The more usual meaning is
uxor iusta, primarily, wife in manu. Aul. Cell. 18. 6. 4 sqq., who makes matrona mean any
wife and gives other views; Boethius, in Top. 3. 14; Nonius. 44 ~1. 2 Coll. 16. 2. 3.

3 G. 1. 49, post, § XLvm. 4 See Declareuil, Md. Girard, 1. 326, 333. It may be doubted
if in private life it lasted as he suggests into the second century : arbitrary acts in imperial
households prove little. 5 Livy, 8. 7. 6 See Cuq, In-st. Jurid. 1. 154. 7 Coll.
4. 8. 8 C. 8. 51. 2. Justinian legislated on the matter, C. 8. 51. 3. 9 48. 8. 2.

Hadrian had punished by deportation a father who had killed his son who had wronged
him, 48. 9. 5. 10 C. 9. 17. 1. 11 C. 9. 15. 1 =C. Th. 9. 13. 1. In the Empire there

was no such right over the wife in manu.

104 PATRIA POTESTAS [CH.

was obsolete long before the empire, and the power to sell into civil
bondage, except that it survived for formal sales in emancipation and
adoption1, and for noxal surrender for wrongs2, was no longer a reality
in the time of Gaius. In that age some parents did indeed sell children
into slavery, but Paul denied the validity of such sale or even of pledge3,
and, later, the emperors repeatedly laid down a prohibition4. But by
the time of Constantine the case of new-born children was a permitted
exception, and enactments regulating such sales and even sales of older
children are frequent in later times5. There was in all cases a right of
redemption, and, for new-born children the rule still existed under
Justinian6.

3. Right to veto marriage and control divorce7.

4. Right of action for the recovery of the child from anyone detain-
ing him8.

5. Right to all acquisitions, either property rights or obligations,
resulting from transactions by the filiuxfamilias 9. But the rule that all
such acquisitions vested in the paterfamilias was greatly cut down in the
empire, the limitations having begun under Augustus10.

6. Right to hand the child over instead of paying the penalty for a
wrong done by him, originally a right to ransom him from the conse-
quences of his wrongdoing11. As to females it was obsolete long before
the empire : as to males it was abolished by Justinian. It probably
never applied to wife in warm12.

7. Power to appoint guardians (tutores) to young children, by will13.

8. Power to appoint a heres to take the property if the child, surviving
the father, died too young to make a will for himself — pupillary substi-
tution14.

9. Wrongs to the son, or to property in his hands, were wrongs to the
father15. In the empire, when the son began to have separate proprietary
interests, he had the same remedies in respect of these as a pater-
familias16, and, apart from this, he became capable of himself appearing
as party to litigation, to an extent and with an effect too controverted
to be considered here17.

1 Post, §§ XLIV, XLvn. 2 Post, § ccv. He might transfer the son to a Latin colony,
G. 1. 131. 3 P. 5. 1. 1. A creditor taking such a pledge was deported. 4 E.g.,

C. 7. 6. 1 ; h. t. 37. 5 E.g. C. Th. 3. 3. 1. 6 C. 4. 42. 2. 7 Post, §§ XLI sqq.

8 G. 3. 199; D. 6. 1. 1. 2; 43. 30; C. 8. 8. In early law his right was probably not distin-
guishable from ownership. 9 G. 2. 86; 3. 163. The right on transactions inter vivos
vests in the paterfamilias at once. Thus if a filius takes a promise for payment after he is
emancipated, the right nevertheless vests in the pater, 45. 3. 40. So too on a conditional
promise, though the condition is not satisfied till after the emancipation, 45. 1. 78; 50. 17.
144. 1. As to the special rules affecting dos, post, § XL. 10 Post, § xcix. 11 Post,
§ ccv. 12 G. 4. 75 sqq.; Inst. 4. 8. 13 Post, § LI. 14 Post, § cv. 15 9. 2. 7, etc.
16 49. 17. 4. 1, post, §xcix. 17 Girard, Manuel, 145.

m] IUSTAE NUPTIAE 105

The restrictions on the power of the father were accompanied by
recognition of rights of the son against the father1. In relation to the
funds independent of the father he seems to have been dealt with much
as a libertus was with regard to the patron. And conversely, while the
praetorian liabilities on his contracts were substantially the same as on
those of a slave, they did not arise on dealings in connexion with those
funds2.

• XXXIX. We have now to consider how patria potestas was acquired.
Anniculi probatio, erroris causa probatio, and imperial decree accom-
panying gifts of civitas have already been considered 3. There remain the
more important cases of Birth ex iustis nuptiis, the normal case, Adop-
tion, and, in later law, Legitimation.

Birth ex iustis nuptiis. lustae nuptiae meant valid marriage between
two persons who had "comibium, the capacity of Roman marriage4. If
this was not present, but there was no such obstacle as prevented
marriage altogether, it was a case of nuptiae, but of nuptiae non iustae,
matrimonium non iustum, sometimes called matrimonium iuris gentium,
valid iure gentium, but producing no specifically civil effects. There
could be no manus; the children were not inpotestas5. They were related
to each other and to their parents' relatives cognatically, not by the
Roman tie of Agnation6. This agnatic tie between two persons existed
only if they traced connexion by civil descents, from a common male
ancestor, through males, unbroken bycapitis minutio ; the connexion being
sometimes artificial, e.g. created by adoptio1. Brothers and sisters by a
civil marriage were agnates. The brother's child was an agnate of the
sister, but her child was not, either of her or her brother or the paternal

1 Inter alia, a right to alimenta in later classical law, D. 25. 3; C. 5. 25. 4. 2 49. 17.
18. 5. 3 Ante, §§ xxxv, xxxvi. 4 Ulp. 5. 2; G. 1. 56, etc. 5 G. 1. 55, 65, 66.

6 Inst. 1.15.1. Those born out of wedlock are volgo concepti or spurii (fanciful derivations,
" (TTropaoTji'," ''sine patre," G. 1. 64) and have for most purposes no certain father (Ulp.
4. 2). Those of a forbidden marriage, and, for classical law, those of concubines, are on the
same footing, Ulp. 5. 7, post, § XLVI. They are not related to the father. They do not excuse
him from tutelae (27. 1. 2. 3; Vat. Fr. 194, where iniusti means born of nuptiae non iustae).
They do not count for the praemia patrum (post, § cxi). But, where traceable, the relation-
ship is reckoned for the purpose of prohibited degrees (23. 2. 14. 2), and the child, like a
legitimate child, cannot initiate proceedings against the father (2. 4. 6). The child is a
cognate of the mother (Inst. 3. 5. 4). He takes her status at birth, and is her child for the
purpose of succession both ways (P. 4. 10. 1; Inst. 3. 4. 3; D. 38. 17. 2. 1; post, § cxxxi),
so that he counts towards the ius liberorum (post, § LX). He may not initiate proceedings
against her (2. 4. 4. 3). In classical law no rights of such children arise if born in slavery
(P. 4. 10. 2). As to servile cognatio, post, § cxxxn. 7 Or, as the principle may be stated,
those who would sacrifice to the same set of ancestors, or who would be in the same potestas
if the common ancestor were alive. Moriaud, La simple famille paternelle, finds difficulty
in this way of stating the matter, for the case of those who enter an agnatic group after
the death of the paterfamilias, e.g., postumi, and states three principles which he considers
necessary to cover all the cases.

106 IUSTAE NUPTIAE [CH.

relatives. If a member of the family passed out of it by adoption or
any step involving capitis deminutio1, the tie was destroyed, though the
adoption would have conferred similar rights in the new family. Cognatio
was any blood relationship, and agnates, even by adoption so long as
the artificial tie existed, ranked as cognates also2.

It must be noted that there is no question of choice between alter-
native modes of marriage; if the parties had conubium it was iustae
nuptiae or no marriage at all. It was only where either (or both) had no
conubium that nuptiae non iustae could occur3, so that the difference
was not so much between the marriages as between the parties4.

The chief effects of civil law marriage may be shortly stated. The
children were liberi iusti5, in the potestas of the paterfamilias, and
agnates of his agnates. Apart from manus6, unusual in the early empire
and obsolete in the later, the wife did not enter the familia. But the
husband's home was hers, and they owed each other protection and
respect 7. Apart from manus she was not concerned with the cult of the
manes, but apparently was with those of the lares and penates8. The
wife did not necessarily take her husband's name, though in the empire
she sometimes did9. She shared the honorific titles of her husband10.
Their properties remained distinct, and gifts between them were void11.

It will be seen that apart from issue, the effects of marriage were
few, in law, a result of the Roman conception of liberum matrimonium.
Thus it is discussed, by, e.g. Gains, not as a separate institution but as
a step in the most important way of acquiring patria potestas. Whether
parties to a union were married or not was important if there were issue,

1 Post, § XLIX. 2 G. 1. 61; D. 38. 10. 10. 4. 3 A marriage between two cives of
classes forbidden to intermarry was a nullity, not nuptiae non iustae. 4 Many

rules bring out this aspect of the matter. Marriage between two persons who have not
conubium becomes ipso facto civil marriage if the}' acquire the capacity of civil marriage
while their marriage is still subsisting (G. 1. 95). A deportatus loses civitas and with it
his capacity for civil marriage, but his marriage is not ended though it loses its civil
character and effects for the future (24. 1. 13. 1 ;"24. 3. 56; 48. 20. 5. 1 ; C. 5. 16. 24. 2; C. 5.
17. 1). One case goes further. Where two slaves "married" and one was allowed by the
master to give to the other a sum of money as a dos, out of the peculium, this was no
marriage, as slaves were incapable of any marriage. But the intent was clear, and when the
dominus freed them both, inter viros, not taking away the peculium, the union automatically
became iustae nuptiae, and the fund a dos (23. 3. 39). So, where two slaves were " married "
and fideicommissary liberty was given to them, and its completion wrongly delayed, a
child born meantime was, as we have seen, ingenuus (ante, § xxiv), and Ulpian says that
he is a suus lieres to his father (38. 16. 1.1). Marriage indeed consists in common life with
the intent of being married, having the necessary qualifications. Whether the relation is or
is not marriage and, in the former case, of what type it is, depends on the qualification
of the parties. 5 G. 1. 77; Vat. Fr. 168. 6 Post, § XLITI. 7 Inst. 1. 9. 1; D. 23.

2. 1; 24. 3. 14. 1; 47. 10. 2. No action involving infamia lay between them, 25. 2. 1, 2.
8 See Wissowa, Religion und Cultus der Romer, §§ 26, 27. 9 Marquardt, Privatleben

der Romer, 18. 10 Vat. Fr. 104, D. 1. 9. 8. 11 Post, § XL.

in] DOS 107

and thus full rules appear as to the essentials of a valid marriage. Other
rules shew that the possibility of issue was its main legal interest. Thus
relief against error of status was given only if there was issue1 — if there
was not, no relief was necessary ; the parties could end the relation at
any time. The main titles on marriage in the Digest and Code say very
little about its effects2. The definition given by Modcstinus3: "nuptiae
sunt coniunctio maris et feminae et consortium omnis vitae, divini et
humani iuris communicatio," is, literally understood, so far from exact,
that it is plain the legal aspect is not the one primarily in view, though
no doubt it contains a reminiscence of the old manus system. Its free-
dom from legal regulation is evidenced by many texts4 and collateral
rules5.

XL. The independence of property, consistent as it was with the
notion of liberum matrimonium, would lead to inconvenience in relation
to the maintenance of the household. This was lessened by the institution
of dos, a contribution by or on behalf of the wife. Dos, though very
ancient, was much increased in importance when manus decayed. It was
technically the husband's property but his dealings with it were re-
stricted by law, and it had usually to be accounted for at the end of the
marriage. Hence we are told that "quamvis in bonis mariti dos sit, tctmen
mulieris est6."

Dos was not legally necessary to a marriage, but, in the absence of
legal requirements of form, the existence of dos was the best evidence
that marriage was intended and not mere concubinage. Thus fathers at
times insisted on giving a dos1, while on the other hand there was legis-
lation, the history of which is debated, under which fathers were re-
quired to give dos8. But dos might come from various sources. If pro-

1 Ante, § xxxv. 2 D. 23. 2; C. 5. 4. 323.2.1. 4 45. 1. 134; C. 8. 38. 2;

C. 5. 4. 14. 5 Marriage is not primarily a legal relation. The question whether two

persons are married or not is often material in law, as is the question whether a person
is over 14. But if the vir did not support his wife, or she failed in reverentia, it is not
easy to see in the time of Gaius any direct means of enforcing these duties. Divorce is
not the remedy: this was free whether there was misconduct or not, and, in any case,
annulment alone is no remedy for breach of contract. Forfeitures of dos (post, § XL) formed
an indirect check, and, if the wife was alieni iuris, the authority of the paterfamilias was
a real resource. The need of appeal to these shews how far we are from contract. If we
treat it as conveyance it is difficult to see what civil rights against third parties either has
lost or gained, apart from manus. There was no civil remedy for adultery. There was no
actio ulilis e lege Aquilia to the vir for bodily harm to the wife. There was an actio iniur la-
rum for insult to her, but that is because it was necessarily an insult to the husband. The
only serious exception to this absence of remedy is a rule, apparently of later law, that if
her father or any other person detained her, the vir had an interdict for her production,
so that she could return if she wished (43. 30. 2; C. 5. 4. 11; C. 5. 17. 5. 1). Remote
analogies can be made out, but marriage has few useful affinities with the ius rerum.
6 23. 3. 75. 7 See the reff. in Costa, 'Storia del dir. Rom. priv. 14. 8 In 23. 2. lit

such a rule is attributed to the I. lulia, and to Severus and Caracalla. Other texts refer

108 DOS [CH.

vided by the father or other paternal ancestor, or by an extraneus by way
of gift to the father, it was called profectitia1, if by the wife herself, if
sui iuris, or from any other source, it was adventitia2, and if, when given
by an extraneus (and perhaps in other cases), there was an express agree-
ment for its return, it was receptitia, and went back wholly to the donor
at the end of the marriage3.

The provision of dos, which might be after the marriage4, did not
necessarily take the form of an immediate transfer of property ; it might
be a promise to pay or a transfer of a claim against a third party. The
husband had all administrative powers over the dos, and the right to use
the fruits5. As owner, he could alienate property of the dos, except that
the /. lulia de adulteriis prevented him from alienating Italic land in
the dos without the wife's consent, or from hypothecating it even with
her consent, the latter rule being, perhaps, a juristic extension6. Jus-
tinian extended the rule to all land, and made the wife's consent ineffec-
tive in both cases7. The prohibition extended to the releasing of any
praedial servitudes attaching to a fundus dotalis 8. But though, apart
from this restriction his transactions were valid, they might be a breach
of his obligations. He was bound to administer the dos like a bonus
paterfamilias9 and careless disposals of property would have to be paid
for, like other negligent damage, when the dos came to be returned. Thus
he could free a dotal slave, but if the wife did not consent he might have
to account for his value10.

These rules are subject to two important modifications. They might
be varied by agreement — pacta dotalia, which were very frequent, and
usually dealt with return, but sometimes with the duties during the
marriage: for instance they might vary the rules as to the incidence of
risks11. Again, they were altered if the dos was aestimata, i.e. taken by
the husband at a valuation. Here there was no question of liability for

to such a duty (37. 6. 6; C. 5. 12. 14). Other leges deal with special cases (C. 1. 5. 19. 3;
1. 5. 12. 20). But 23. 2. 19 and some other texts shew signs of interpolation, and the
general rule may be due to Justinian. See Castelli, Obbligo di dotare. See also, however,
Moriaud, Mel. Girard, 2. 291 sqq. In any case it is an obligation, not an essential of
marriage. P. 2. 21 b. 1; C. 5. 17. 11. pr.; Nov. 22. 3; Nov. 74. 4.

1 Dip. 6. 3; D. 23. 3. 5. pr. 2 Ulp. 6. 3. 3 Ulp. 6. 5. 4 P. 2. 21 b. 1.

5 P. 2. 22. 1. 6 G. 2. 63; P. 2. 21b. 2; Inst. 2. 8. pr.; D. 23. 5. 4; C. 5. 13. 1. 15

(Accarias, precis, 1. 825). 7 Inst. 2. 8. pr. The alienation is not void ab initio: it is set
aside if at end of marriage the wife has a claim to the dos (23. 5. 3. 1) so that the wife can
ratify it (24. 3. 50). 8 23. 5. 6, or creating servitudes on it, 23. 5. 5. It did not prevent

such a transfer of property per universitatem as would result from adrogation of the vir (23.
5. 1 . 1 ), in which case it retained its inalienability, or bar any person who acquired rights
by the operation of rules of law, e.g., damnum infectum (23. 5. 1. pr.; post, § CCXLV).
9 Perhaps in later law needing to shew only the care he did in his own affairs, post
§ cxc. 10 24. 3. 24. 4; h. t. 62-64. 11 23. 4. 6; in classical law formal stipulatio

needed, P. 2. 22. 2; but, in later law, actio pr. verbis on pact, C. 5. 13. 1. 13; 5. 14. 7.

in] DOS 109

negligence ; the husband must account for the value at the end of the
marriage, no matter what had happened in the meantime. It was as if
he had bought it, and the risks were entirely on him, though in ordinary
cases they would be on the wife1. The aestimatio released the vir from
the restrictions of the /. lulia, unless the terms were that the wife might
choose between the dos and its value as agreed2. On the other hand,
the aestimatio would not affect later independent additions to the dos3.
The ultimate destiny of the dos depended on the way in which the
marriage ended, and on the nature of the dos, and the classical law
differed from that of Justinian4. Dos receptitia may be neglected, for
this went to the donor in any event. If the marriage ended by the
husband's death, the wife took the dos. If by divorce the rule was the
same except that if this was caused by the wife or her father, without
justification, the husband kept one-sixth for each child up to three.
There were other deductions in respect of expenses connected with dos,
of res donatae, of res amotae and of misconduct, mores, while, if the hus-
band had misbehaved, the periods within which the dos must be returned
were shortened. These deductions, enforceable in the action for recovery
of dos, actio rei uxoriae5, were probably regulated and defined by the
/. lulia de maritandis ordinibus, but they were certainly to some extent
recognised before6. There were however alternative remedies in some
cases, actio rerum arnotarum1 where property had been made away
with, actio de moribus9, in case of the wife's misconduct, and, it seems a
condictio for res donatae and impensae necessariae9 . Justinian suppressed
the retentiones in A.D. 53010, leaving the alternative remedies, but a little

1 20. 4. 9. 3; C. 5. 12. 5, 10. 2 23. 5. 11. 3 Dos might be made or increased after
marriage, P. 2. 21 b. 1. 4 Ulp. 6. 6sqq. 5 Ulp. 6. 6. The remedy for recovery was modi-
fied by Justinian, post, p. 110 and § ccxxix. 6 See, e.g., Val. Max. 8. 2. 3; Aul. Cell. 10.
23. 4; Cicero, Top. 4. 7 Post, § CLXXXVH. 8 Of this action little is known. It was

not cumulative with criminal proceedings for adultery (C. Th. 9. 20. 1). It was not available
to or against the heres (C. Th. 3. 13. 1; D. 24. 3. 15. 1). It was not a praeiudicium, for
security might be required (G. 4. 102). It is commonly held to have been of praetorian
origin, and to have been limited to the dos. The evidence seems to be that other actions
affecting property relations of vir et uxor were praetorian and that it is most commonly
stated in connexion with dos. But there seems no more reason for this than there would
be for supposing the same limit for actio rerum arnotarum, which also corresponds to a
retentio, and Justinian in the abolishing enactment is dealing with feminae indotatae
(C. 5. 17. 11). There could be no pact against liability under this head (23. 4. 5. pr.). The
passage is struck out by the corrector of the Florentine MS. It was really obsolete, but
the abolishing enactment is dated only a few weeks before that confirming the Digest.
Literary texts which appear to deal with this action are (see also n. 6): Plut. Mariiis, 38;
Pliny, H. N. 14. 13 (90). See Esmein, Mil. 78 sqq.; 150 sqq.; N.R.H. 1893, 149 sqq.;
Czyhlarz, Dotalrecht, 337 sqq. 9 On the rule: impensae necessariae dotem ipso iure

minuunt, Schulz, Z.S.S. 34, 57. 10 C. 5. 13. 1. 5. This abolished any claim in respect of
children, and, on the abolition, three years after, of the actio de moribus, any claim on
mores.

110 DOS [CH.

later he abolished the actio de moribus1. On the other hand he gave an
action for recovery of impensae utiles2. There were further provisions
where the wife was alieni iuris to secure that the father should not
receive the dos without her consent, the fund being considered their
common property3. Where the marriage ended by the death of the wife,
dos profectitia went to the donor if alive, if he was not, the husband
took it in classical law, as he did dos adventitia, on the wife's death4.
And where dos profectitia returned to the donor the husband kept a
fifth for each child5. Under Justinian the wife's heirs replaced the
husband, who thus, apart from agreement, took nothing in any dos of
his deceased wife6.

As the dos was the property of the husband it did not revert ipso
facto on the end of the marriage ; there was an obligation to restore. If
there was an express agreement for return, dos receptitia, there was an
action ex stipulatu; in other cases an actio rei uxoriae. The agreement
could be enforced at once, but in the other case there were delays.
Apart from the reduction of time already mentioned where the husband
was in fault, he must, in classical law, restore res fungibiles (money and
the like) in three annual instalments, other things at once7. Security
could be taken for the return, and the limitation in amount under the
/. Cornelia did not apply here8. But this was later forbidden, apparently
on the not very satisfactory ground that one who could be trusted with
a daughter could be trusted with money, and Justinian maintained the
prohibition9. Under Justinian the system was remodelled. The actio rei
uxoriae was abolished and an implied agreement substituted10, so that
the actio ex stipulatu, somewhat modified in its results11, was the general
remedy. Further, land had to be returned at once and moveables
within a year12.

In the case of insolvency the wife claiming her dos had a priority
over other unsecured creditors, though not over those who had taken a
valid security13. Justinian went further, and gave her a tacit hypothec

1 C. 5. 17. 11. 2 b. 2 See Schulz, cit. 71. 3 24. 3. 2. 1. This and following leges
bring out the exceptional character of the claim to restoration of dos. Apart from express
promise of restoration, the wife's right to recover it was not lost by capitis deminutio. If,
when the marriage ended, she was alieni iuris, the claim did not vest simply in the pater-
familias, as would other rights acquired through a filiafamilias. It passed to her if she
was emancipated or otherwise became sui iuris, and if she was still in the family, neither
she nor the pater could properly receive or recover it without the consent of the other.
If this was in fact done, the other still had the action for recovery, which would however
be barred if the situation was subsequently in any way regularised. See 4.5.9; 24. 3.
2-4, 22, 33. 6,42; C. 5. 18. 2, etc. 4 Ulp. 6. 5. 5 Ulp. 6. 4. 6 C. 5. 13. 1. 6, 13. This
is a change of principle : the above rules shew that return of dos could be claimed only by
the giver, not by his or her representatives. 7 Ulp. 6. 8. 8 G. 3. 125, post, § CLVI.
9 C. Th. 3. 15. 1; C. 5. 14. 8; C. 5. 20. 10 C. 5. 13. 1; Inst. 4. 6. 29. 11 Post,

§ ccxxix. 12 C. 5. 13. 1. 76 a. 13 C. 8. 17. 12. 1.

mj DON AT 10 ANTE NUPTIAS 111

over such of the dos as was still in the hands of the husband or his suc-
cessors1, a privileged hypothec, taking priority over others of earlier
date2. But he also gave her the alternative of a real action, a vindicatio
of the property, a remedy which implies that it is her own and is thus
inconsistent with her hypothec3, and also constitutes an ipso iure
reversion of the ownership, contrary to classical principle4.

In the Byzantine Empire a new institution appeared called Donatio
ante nuptias. It was a sort of converse of dos, given by the husband to
the wife, whose property it was, but administered by the husband. It
had its origin in ordinary gifts by the man to his betrothed, much
influenced by oriental notions5, but it assumed the character of a special
institution. Its history and the conceptions underlying it are the subject
of controversy. The main legislation affecting it seems to be the following :
There was a little legislation in the Western Empire which differentiated
such gifts from ordinary completed donationes, which became absolutely
the property of the donee6, but as Mitteis shews, this did not create a
real new institution; that appeared in the East. Theodosius provided
that donatio ante nuptias should go to the survivor and on divorce to
the divorced party 7. Leo enacted that on causeless divorce the divorcer
lost all right in dos or donatio, and in case of death the husband surviving
took all the donatio and half the dos, the wife surviving, all the dos and
half the donatio, a rule which makes donatio a sort of counterpart of dos 8.
He also provided that if there were agreements giving either a greater
share, they must apply equally in proportion on both sides9. Justin
allowed increase of such gifts after marriage if dos had been increased,
and even creation where there had been none, if there had been such
increase in dos10. Justinian allowed creation of it in any case after
marriage and therefore changed the name to donatio propter nuptias*1.
He applied most of the rules of dos to it with the parts interchanged.
In particular he laid it down that it was to be of the same amount as
the dos, and that the special agreements to vary the legal rules as to its
disposal after the marriage must apply to both12.

These funds, dos and donatio propter nuptias, were the chief exceptions
to a rule that gifts between husband and wife were void. It was a cus-
tomary rule based by jurists on the considerations which led to a some-

1 C. 5. 13. Lib. 2 C. 8. 17. 12. 5, 6. 3 He gives a laborious explanation of the
anomaly which however only carries on the involved conception of the ownership which
had been current in classical law. C. 5. 12. 30. 1. 4 Post, § Lxvm. If it was land

alienated in violation of the 1. I alia, the alienation being void, the action would be avail-
able there too. Before Justinian she had in such case a vindicatio but only on cession of
the action (31. 77. 5). See Girard, Manuel, 977. 5 See Mitteis, Reichsr. uinl I'ulkxr.

256 sqq. and Collinet, Eludes Hist, 1. 145 sqq. 6 C. Th. 8. 12. 1; C. 5. 3. 1-5, 15, 16.

7 Syro-Roman Law-book, 265. 8 Ibid. 9 C. 5. 14. 9. 10 C. 5. 3. 19. 11 C. 5.
3. 20. 12 Further legislation in Nov. 97.

112 FORM OF MARRIAGE [CH.

what analogous rule in English law, "lest they be kissed or cursed out
of their money1." Other exceptions were gifts not to operate till the
marriage ended2, reasonable gifts on festal occasions3, and gifts not
involving profit to the receiver, e.g. gift of a slave ut manumittatur*.
Forbidden gifts were simply void5, but might be confirmed by will6,
and in the third century it was provided that they were good if the
donor died without having changed his mind7.

XLI. The requirements of a valid Roman marriage, which was of
course monogamous, may be stated as follows8.

Form. The only form required by law was the placing of the wife in
the control of the husband9, essentially a traditio, which, like traditio
of property, could be effected in many ways. The normal method of this
deductio in domum was for the husband to receive the wife at his domi-
cile, but it might be in his absence with his consent10. There might
indeed be no change of domicile ; he might go to live at her house or
they might have been occupying the same house. But there could be
no marriage in the absence of the wife11. Though this was all the law
required, elaborate ceremonial was usual12, in which the nature of marri-
age as "consortium omnis vitae, divini et humani iuris communicatio" was
expressed. There would be a bridal procession, epithalamia, feasting, and
when the bride reached the house she was lifted over the threshold and
offered fire and water, the symbols of life, she uttering the declaration
"ubi tu Gains ego Gam13." All this, like the presence of dos, shewed that
marriage and not concubinage was intended. Just as traditio did not
transfer ownership unless there was evidence of intent that it should, so

1 24. 1. 1, 2, 3. pr. 2 24. 1. 9. 2; h. t. 10, 13, 61, 62; P. 2. 23. 3 Ulp. 7. 1 ; D. 24. 1.
31. 8, 40, 42. 4 24. 1. 5. 16, 7. 8, 22. 5 24. 1. 3. 10, 36. 6 32. 33. 1. 7 24. 1. 32. pr.-4.
8 Marriage was usually preceded by contract of betrothal, Sponsalia (D. 23. 1), which
might be made in absence or by ratification without special form, but needed the same
personal consents as marriage and so could not be made by tutor (post, § LVI). As capacity
to contract was needed the parties must not be insane or infantes (23. 1. 2; h. t. 8). It was
originally made by formal sponsio. Those who could not intermarry could not be betrothed ,
but, possibly, in classical law a betrothal in view of expiry of a temporary obstruction
was allowed (23. 1. 15, 16 seem to be interpolated). It could always be renounced by notice
by the parties or the paterfamilias, and if the intended husband failed to complete the
marriage for two years, without good reason, the other party was discharged (23. 1. 17;
C. 5. 1. 1, 2). It gave rise to no action for breach of promise, but it was important, for
several reasons, to have rules as to what constituted valid sponsalia. Thus relationship
b}7 marriage might be a bar to marriage and this was to some extent applied to those only
betrothed. And the bar to alienation of dotal land applied while the parties were yet only
betrothed (23. 5. 4). To be betrothed to two persons at the same time involved infamy
(3. 2. 1). In late law it was usual to give arra on one side or both, and there was a good
deal of legislation involving forfeiture, sometimes of a multiple, for causeless renunciation
(C. 5. 1. 5; C. 5. 3. 15; C. Th. 3. 6. 1). As to the history of this legislation, see Riccobono,
Arra sponsalicia, secondo la C.J. 5. 1. 5. 9 23. 2. 5; C. 5. 4. 9. 10 23. 2. 5; P. 2. 19. 8.
11 Ibid. 12 Marquardt, Privatleben, 42 sqq. 13 Probably appropriate to manus.

HI] CONSENT TO MARRIAGE 113

here there was no marriage without evidence of intent to marry, qffectio
maritalis1. But this was presumed, prima facie, if the parties were of
equal rank, and, under Justinian, in all cases2, though circumstances
might rebut the presumption, apart from proof, e.g. if the woman was
of notoriously bad character3.

Consent. The consent of the parties was needed, though for those in
potestas it was probably not required in early law. There was one ex-
ception. If a man freed an ancilla, specially for the purpose of marriage
(but not otherwise), and the manumission was in all respects voluntary,
she could not refuse4. The parties must be capable of consent, and thus
a lunatic could not marry5. Neither fraud nor error, however funda-
mental, of themselves vitiated the marriage, in view of the ease of
divorce6.

Other consents might be needed. The issue of the marriage would be
in potestas of the father's paterfamilias. This would be adding to his
family, and thus his consent was needed 7, as also would be that of the
father if the vir was a grandson whose father was in the same potestas 8.
The consent of the wife's paterfamilias was also needed9, not for that
reason, but as part of his patria potestas, so that the consent of any
intervening link was not required. But the rule was subject to many
limitations. The /. lulia is said to have laid down a rule forbidding
causeless refusal10, and this is the basis of a rule of Severus and Caracalla,
requiring the father to take steps to secure a suitable marriage for his
child, on appeal to the chief magistrate11. Though in terms this deals
with general prohibition, or refusal to seek a marriage, it seems to imply
that he could be compelled to assent to any suitable marriage if he had
no other to propose. In some cases the consent could be dispensed with.
The child of a captivus could marry, but Justinian limited this to the
case in which the captivity had lasted three years12. If the father was
absent and it was not known whether he was alive or where, if alive, he
was, the child could marry ; here too Justinian required a delay of three
years13. Where the father was insane there were disputes of which

1 24. 1. 3. 1; h. t. 32. 13. 2 23. 2. 24; 39. 5. 31. pr.; C. 5. 4. 22. 3 C. 5. 4. 23. 7;
D. 23. 2. 24. 4, 23. 2. 29; h. t. 29. 5 P. 2. 19. 7; D. 23. 2. 16. 2. No words or

ceremonial being needed deaf, dumb or blind folk could marry. 6 See the rules as

to erroris causae probatio, ante § xxxv. 7 Inst. 1. 10. pr. ; P. 2. 19. 2; D. 23. 2. 2; C.

5. 4. 12. 8 23. 2. 9, 16. 1. 9 23. 2. 16. In this case it was enough that he did not

forbid. C. 5. 4. 25; D. 23. 1. 7. 1. The same may be true in the other case, butC. 5. 4. 5 d<» s
not quite say so. 10 23. 2. 19. The text is corrupt and probably interpolated. Castelli,
Obbligo di dotare, 7sqq.; Moriaud, Mel. Girard, 2. 291, who thinks the /.applied only
to females, and that Just, made it general by altering filias vel neptes into liberos.
11 23. 2. 19. See however Castelli, loc. cit. 12 23. 2. 9. 1, 11; 49. 15. 12. 3. 13 23. '2.
1 1 . The requirement attributed to Julian that the marriage must be such as the paler
would have approved is no doubt due to Justinian.

B. R. L. 8

114 CONUBIUM [CH.

Justinian gives an account1. There was no difficulty in the case of
daughters ; the principle that here non-prohibition sufficed gives a
sophistical justification of a rational rule. But for sons the leave of the
Emperor was needed till M. Aurelius allowed it generally to children of
mente capti2. Whether this covered furiosi, capable of lucid intervals,
was doubted, till Justinian enacted that it should, and provided
machinery enabling the curator and relatives, with approval of the
magistrates, to arrange for dos and donatio*.

It may be added that where consent was needed and was given only
after cohabitation had begun, this was not ratification; the marriage
dated only from the consent4.

Age. The male must be 14, the female 125, this being the normal
age at which the necessary physical faculties are developed. Thus one
who could not have the physical capacity, e.g. a castratus, could not
marry6, and, at least in classical law, those whose development was
retarded could not marry till it was complete7. Those who lived together
before attaining the necessary age were not married till they reached it,
still living together as man and wife 8.

Conubium. Capacity of civil marriage9. A convenient modern
terminology distinguishes between absolute and relative conubium.
Absolute conubium is the capacity to contract civil marriage. This was
possessed in general only by cives and those Latini and peregrini to
whom, as members of a community, or personally, it had been granted10.
But veterani who had received civitas were sometimes, but not always,
allowed by their diploma of civitas to contract civil marriage with any
woman they first chose after their discharge11, so that they could rnarry
with their own tribe without loss of rights, and give to the woman
chosen a limited conubium. But, unless it was expressly so provided in
the diploma, this did not confer civitas on her. The children would be
cives and in potestas as issue of a civil marriage whose father was a
civis12.

Relative Conubium. Those capable of civil marriage might not be

1 Inst. 1. 10. pr. 2 C. 5. 4. 25. 3 Ibid. 4 1. 5. 11; Vat. Fr. 102. Other

special cases. A liberta who had been married to her patron could never marry another
person without his leave (23. 2. 45, 51; C. 5. 5. 1). The tutor and relatives of a girl sui
iuris had some control over her marriage, and in 199 it was provided that if they could
not agree on a choice, it should go to the praeses (C. 5. 4. 1). In 408 precise rules were
laid down as to consent of relatives in this case (C. 5. 4. 20). In 371 the marriage of a
widow sui iuris was made subject to consent of father (h. t. 18). 5 Inst. 1. 10. pr. ;

C. 5. 4. 24. 6 23. 3. 39. 1. 7 Arg. G. 1. 196; Ulp. 11. 28. School dispute,

Proculians decided by age, Sabinians by maturity. 8 23. 2. 4. 9 G. 1. 58 sqq.

10 Ulp. 5. 4. Ante, §§ xxxiv sqq. 11 See Girard, Textes, 125 sqq.; Bruns, 1. 274 sqq.
12 There were of course cives who could not marry, castrati, mente capti, divorced
women accused of adultery, etc. (P. 2. 19. 7; D. 23. 2. 26), soldiers in actual service, Dio
Cass. 60. 24. See Meyer, Das Konkubinal, 100 sqq.

in] CONUBIUM 115

capable of intermarriage. The restrictions were numerous and rested
on various principles.

(a) Rank. In early law freeborn and freed might not intermarry1,
but in the empire the prohibition to marry freed persons applied only to
those of senatorial rank. The I. Papia forbade those of this rank to marry
actors, actresses and some others without the Emperor's leave2, and the
Christian Emperors legislated further on the matter3. Justin, to allow
his nephew Justinian to marry Theodora, allowed marriage with retired
actresses4, and Justinian abolished the rule altogether5.

(b) Moral, religious and political considerations. There might be no
marriage between an adulteress and her paramour6, or between Christian
and Jew7. Two cases are more important. It was forbidden to a high
provincial magistrate or his son to marry a person of the province
unless they had been betrothed before he held the office8. It was also
forbidden, for obvious reasons, for a tutor or curator to marry one who
was or had been his ward. The reason for the rule, which dates from the
second century, accounts for some exceptions. It did not apply where
they were betrothed before the office began, or by her father, or she was
26, or the Emperor's leave had been obtained9. The rule extended to sons
and grandsons, natural or adoptive, provided in this last case the tie
still existed, and whether legitimate or illegitimate, and seems to have
been extended even to liberti and extranei heredes10.

In all these cases the marriage was void, not merely at civil law; it
was no marriage at all11. In some of the cases, e.g. tutores and Jews, it
was punishable12. In some, e.g. provincial magistrates, the marriage
was validated for the future if when the prohibition ceased to apply
the parties were still living together13.

1. Blood relationship. The rule in the empire is simple. Ascendant
and descendant could never intermarry14. Other relatives could not,
whether of the whole or half blood, if either of them was only one
degree from the common ancestor15. Uncle and niece, great-uncle and
great-niece could not intermarry, but cousins could16. The rule applied

1 Till the I. Canuleia, attributed to 444 B.C., patrician and plebeian could not inter-
marry, Livy, 4. - 2 Ulp. 13. 16. 2; D. 23. 2. 23; h. t. 31, 44. pr. 3 C. 5. 5. 7; C. 5.
27.1. 4 C. 5. 4. 23. 5 Nov. 117. 6. 6 48. 5. 41. pr. 7 C. 1. 9. 6. 823.2.
57, 63. Not his daughter, 23. 2. 38. The rule has the double object of preventing:
(1) abuse of power, and (2) relations which would weaken his devotion to Rome of which
he was the representative. 9 23. 2. 36, 59, 60, 66. 10 23. 2. 59, 60. 6, 64, 66; C.
5. 6. 4. Not to daughter marrying pupillus, 23. 2. 64. 2. 11 The prohibitions of I.
lulia and 1. Papia, at first mere prohibitions, were interpreted by see. as nullifying, 23.
1. 16; 23. 2. 16. pr. 12 Tutor, 23. 2. 64, 66. pr.; C. 5. 6. 7 (infamy as well); Jew, C. 1.
9.6. 13 23. 2.65. 1;C. 5. 4. 6. 14 G. 1. 59: Ulp. 5. 6; Inst. 1. 10. 1. 15 G. 1.
60, 61; Coll. 6. 3. 1; Inst. 1. 10. 2. 16 Ulp. 5. 6.

8—2

116 CONUBIUM [CH.

whether the relation was civil or not, and even though one or both had
been born in slavery1. Claudius, desiring to marry his niece Agrippina,
allowed marriage with a brother's daughter, though not with a sister's.
The sons of Constantine declared such a marriage incestuous and restored
the old rule2.

2. Adoptive relationship. As between ascendant and descendant
the rule was the same3. Between collaterals there was the modification
that the bar ceased if the adoptive tie ceased. Thus, while a man might
not marry his adoptive daughter or sister, the adoptive father was still
barred even though she passed out of the family, while the brother
could then marry her, and so also if it was he who was emancipated4.
The tie being a purely artificial agnation, the bar ceased when that
ceased. On the same principle the adoptive tie and resulting bar
applied only to the person actually adopted. Thus one could marry his
adoptive sister's daughter, there being no agnatic tie and no blood tie,
and, for the same reason, his adoptive father's half-sister by the same
mother5. But so long as a man was in the family he could not marry his
adoptive lather's aunt on the mother's side, a rule which, as there is no
blood or agnatic tie, seems to jar with the others6. Justinian changed
the rules of adoption so that an adoptatus usually stayed in the old
agnatic group7, but these rules were not modified.

3. Relationship by marriage. Affinitas. Marriage was forbidden in
classical law between a party to a marriage and an ascendant or descend-
ant of the other, e.g. mother-in-law, step-mother, daughter-in-law, step-
daughter and remoter degrees8. In the later empire this was extended
to brothers and sisters-in-law9, but there was no bar to marriage with
step-brother or sister. The bar extended, however, to some who cannot be
called relatives by marriage. It was forbidden to marry one betrothed to a
parent or child10, though this did not extend to brother and sister. There
might be no marriage with a child of a divorced wife by a later husband11.

In these cases of relationship, of all three types, the marriage was
not only void ; it was incestuous and penalised. In particular, any dos
given was forfeited to the State12.

1 Ante, § xxrn. Justinian's statement that one who could not marry a woman could
not marry her daughter is too wide. Literally it would bar relatives however remote.
2 Tac. Ann. 12. 6; Ulp. 5. 6; G. 1. 62; Inst. 1. 10. 3; C. Th. 3. 12. 1. For the temporary
revival of the Republican rule forbidding marriage between first cousins, see Ulp. 5. 6;
C. 5. 4. 19. In early Rome the prohibition was much wider. See for an exceptional
privilegium, 23. 2. 57 a, 3 G. 1. 59; Coll. 6. 3. 2; Inst. 1. 10. 1. 4 G. 1. 60, 61; Coll.
6. 3. 2; Inst. 1. 10. 2. 5 23. 2. 12. 4. 6 23. 2. 55. 7 Post, § XLIV. 8 G. 1.

63; Coll. 6. 3. 3; Inst. 1. 10. 6. 9 C. Th. 3. 12. 2; C. 5. 5. 5. 10 23. 2. 12. 1, 2.

11 23. 2. 12. 3. A marriage did not become forbidden ex post facto. If my divorced wife
married and I afterwards adrogated her husband, the marriage remained good. 23. 2. 12. pr.

12 Ulp. 5. 7; C. 5.5.4,6.

m] DIVORCE 117

XLII. Death or slavery of either party ended marriage1. Depor-
tation, though it involved loss of civitas, did not necessarily end the
marriage, though it ceased to be a civil marriage, and potestas over
children was destroyed2.

Divorce ended marriage, and in the relaxed social morality of the
empire this became extremely common3. In the republic and in the
earlier classical law the paterfamilias had full power to end by divorce
the marriage of his child. A text of Paul which says that Pius forbade the
separation of a bene concordans matrimonium by the father4 probably
refers to divorce (though another text suggests that it merely means that,
though the divorce was valid, he could not compel actual separation5).
M. Aurelius understood it in the fuller sense and confirmed it6. The power
to divorce a son or daughter for magna causa survived to Justinian7.

Divorce by the parties themselves is more important. The conception
of liberum matrimonium, predominant in the empire, involved the right
of the parties to end a marriage at any moment by agreement8, but
the facility went much further. It was open to either party to end the
marriage by repudium, involving a formal libellus repudii sealed by
seven witnesses9. There was a partial exception. A liberta married to
her patron, though she could technically divorce him, did not thereby
acquire the liberty of action which ordinarily results from divorce.
She could not marry another or reclaim her dos. But the marriage was,
apparently, ended10, and presumably a child born after the period of
gestation would not be born ex iustis nuptiis. Absolute freedom re-
mained the law, till Justinian forbade divorce by mutual consent except
for certain religious objects, a rule repealed by his successor immediately
on his death11. But divorce, though free, might involve penalties. In
the republic a causeless divorce would involve a nota censoria, and we
have seen that it also involved penalisation in respect of dos12. When
the empire became Christian there was much legislation on the matter.
Constantine enacted that for repudium apart from certain specified
causes, over and above the penalties in matter of dos, the woman
might be deported and the man might not marry again ; if he did, the
divorced wife might seize the second wife's dos13. Ninety years later the

1 As to effect of captivity, ante, § xxiv. 2 G. 1. 128; Ulp. 10. 3; Inst. 1. 12. 1;

D. 24. 1. 13. 1; 24. 3. 56; 48. 20. 5. 1; etc. 3 The Laudatio Turiae of the time of Aug.

records as rare the fact of a long marriage not interrupted by divorce. See Girard, Textes,
813. 4 P. 5. 6. 15. 5 Vat. Fr. 116. 6 C. 5. 17. 5; P. 2. 19. 2. 7 C. 5. 17. 5.
8 Justinian's Code retains an enactment of Alexander (C. 8. 38. 2) which says that, in view
of the traditional liberty of marriage, pacts not to divorce or for a penalty in case of
divorce are void. It does not appear that the consent of the paterfamilias of the husband
was essential to divorce. As to the wife, 24. 2. 5 suggests the opposite. 9 24. 1.

35; 24. 2. 9. 10 23. 2. 45; 24. 2. 11. 11 Nov. 117; Nov. 140. 12 Ante, § XL.

13 C. Th. 3. 16. 1.

118 MANUS [CH.

extreme penalty was restricted to cases where there was no reason at
all ; if there was an insufficient reason the wife might not remarry and
the husband not for two years1. These rules were not preserved by
Justinian2, but he kept analogous provisions of A.D. 449 3 and set up a
number of other legitimate causes of divorce4. Finally he provided
that, for divorce not for a recognised cause, the wife should be confined
in a nunnery for life, her property being forfeited to various uses in-
cluding the nunnery ; the husband was subject only to money penalties5.
In all this it must be noted that the divorce was valid.

There was also legislation aimed at preserving for the children of
the first marriage the dos and donatio connected with it, in the event of
any remarriage of the parties6.

XLIII. MANUS. At a sacrifice of order, but for convenience, it is
best to consider now the very different relations set up by a marriage
with manus1. No doubt there was a time when all Roman marriage
was with manus, but so early as the XII Tables there seem to have been
devices for evading it8. At the end of the republic it was in decay and
it seems to have died out altogether not long after Gaius. Ulpian, Paul
and Papinian indeed all mention manus9, but most of the allusions are
not such as to suggest that it was still real. There is at least an allusion
to it even in the Digest10.

Manus placed the wife loco filiae and made her the sister of her
own children. Her acquisitions vested in the paterfamilias, and she had
the same right of succession11 as a daughter. But the traditions of the
II. regiae suggest that in practice there were more restrictions on the
right of the husband than on those of the father12. There is no sign of
surrender for noxa, or of giving in adoption, or of the right of transferring
her by mancipatio, like a son. In coemptio fiduciae causa the factitious
husband sold the woman into civil bondage13, but this shews only that

1 C. Th. 3. 16. 2. 2 See, however, C. 9. 9. 34. 3 C. 5. 17. 8. 40.5.17.10,11.
5 Nov. 117. 6 C. 5. 9 and 10. There are obvious reasons for forbidding remarriage

of widows immediately on the husband's death. The marriage however was not void, and
in classical law the woman does not seem to have incurred any penalty, but her father,
if he authorised it, and the husband and his father became in/ames (see Greenidge, Infamia,
p. 127) if the remarriage was within the year of mourning (3. 2. 1; Vat. Fr. 320). Asa
corollary a widow was for a time after the husband's death free from the penalties of
celibacy. Ulpian, 14, gives the periods. In later law the woman was more directly reached.
She became in/amis, which was not a notion applicable to women in earlier law (ante,
§ xxxiu ). She forfeited benefits from her husband's estate and any honorific rank which
she held. (C. Th. 3. 8. 1; C. 5. 9. 1, 2.) 7 G. 1. 108 sqq. 8 G. 1. 111. It is

however probable that at that time the idea of Roman marriage and manus were inseparable
and the effect of the trinoclium abesse was to prevent the relation from being a marriage
at all. 9 Ulp. 24. 23; Vat. Fr. 115; Coll. 4. 7. 1. 10 32. 41. 7, " mater familias

facto," by the death of her husband. 11 G. 2. 96, 139; Coll. 16. 2. 3. 12 Bruns, 1.
68; Girard, Textes, 6. 13 Post, § XLVIII.

m] MAN US 119

a real sale was not expressly forbidden by law, not that it was ever
practised1. According to tradition divorce from manus apart from
certain justifications was penalised by Romulus2.
Three ways of acquiring manus are recorded.

1. Confarreatio. This was a religious ceremony at the altar of lupiter

Farreu-s before the Pontifex Maximus and the Flamen Dialis. As in all

early ritual acts there must be witnesses, here ten, perhaps representing

the ten curiae. There was a sacrifice and the consumption of a cake of

far, and what Gains describes as complura ritual acts of which we have

indications which need not be stated3. It was essentially patrician. It
was a necessary qualification for the post of rex sacrorum, or the three
major flaminates, to be a party to, and issue of, a confarreate marriage4.
When at the end of the republic manus was unpopular, it was difficult
to find persons so qualified, and Tiberius therefore provided that one
who married a flamen Dialis should pass into maims only quoad sacra,
and in other matters should be as if not in manus5. This probably applied
to the other flamines maiores and an imperfect text of Gains may mean
that it covered all cases of confarreatio6. Indeed the story of Tacitus
suggests that this had gone out of use except for these cases, the office
of flamen thus tending to become hereditary. Nothing is heard of con-
farreatio after Ulpian7.

2. Coemptio. This was essentially a modified form of bride purchase.
As described by Gains it was a sale of the wife to the husband per aes et
libram8, i.e. by the formal method used for the transfer of property in
civil law, mancipatio9. But it was not quite a mancipatio. The words
used were different and so framed as not to treat her as a thing sold10.
Further, she was not sold, but sold herself with the auctoritas of her
father or tutor, according as she was or was not alieni iurisn. Coemptio
must have been the usual mode of creation of manus in the time of Gaius,
so far as real manus still existed, but it was by this time more important
in certain fictitious applications of the process, called coemptio fiduciae
causa. Cicero, attacking the lawyers, says they had perverted coemptio
and used it to destroy sacra12. This may be no more than collusive

1 Such a relatively late and artificial device hardly proves anything for early law.
2 See n. 4. 3 G. 1. 112; Ulp. 9, Boethius in Top. 3. 14. 4 G. 1. 112. 5 Tac.

Ann. 4. 16. Little is known of the others, Quirinalis and Martialls, see Daremberg et
Saglio, Diet, des Ant. s.v. Flamen. 6 G. 1. 136. But the enactment there referred to

seems to be of 11 B.C., the year in which the flamen Dialis was re-established (Suet.
Aug. 31), i.e. earlier than that mentioned by Tacitus who refers also to this earlier legis-
lation. 7 Ulp. 9. 8 G. 1. 113. 9 See post, § LXXXV. 10 G. 1. 123.

11 G. 1. 115; Coll. 4. 2. 3; 4. 7. 1. It is possible that in primitive Rome she was actually
sold. Some late traditions (see Bruns, 2. 74 sqq.) suggest that the sale was mutual (co-
emptio), but it is not a necessary implication of the word and is in itself improbable.

12 Pro Murena, 12. 27.

120 MANUS [CH.

marriage with a childless old man who would acquire the woman's
property, which she would regain at his death, while the sacra were
destroyed by the marriage. But it may have been more complex, the
first application of a system fully developed later and applied in two
other cases1. A woman sui iuris, of any age, was normally under
guardianship. She could do no important act tending to diminish her
property without the leave of her tutor, and an ingenua could not make
a will at all, even with his leave, unless she had passed out of her original
family by coemptio and remancipatio2. These rules have their origin in
the original conception of tutela. The tutor was the person who would
take the property if the ward died, and the tutela was in the interest of
the tutores themselves, or, rather, for the protection of the family pro-
perty. The present device was a means of transferring the woman to a
tutor whose control was unreal, since his auctoritas could be compelled.
Gains tells us that she gave herself by coemptio to anyone, with consent
of her original tutor, for the purpose of the change. The coemptio was
purely formal, dicis gratia, provided she did not choose her husband for
the purpose ; if she did she would be in loco filiae3. The coemptionator
must at her request hand her over by remancipatio to a person of her
choice, on trust to manumit her. On manumission she passed Tinder the
tutela of the manumitter, who could be compelled to authorise her acts,
and by whose formal authorisation she could make a will. The fiducia or
trust was not applied to the coemptio, which was purely formal, but to the
remancipatio. Hence it was not called coemptio cum fiducia, but coemptio
fiduciae causa or coemptio fiduciaria*. When Hadrian allowed all women
to make wills with the consent of the tutor this process ceased to be
necessary for the purpose of getting the right of testation5, but Gains

1 G. 1. 115. He does not mention the case of the sacra. The passage in Cicero shews
however that the powerless tutor was already in existence. 2 As to tutela mulierum,

post, § LX. The rule in wills was a survival from the original will before the comitia, which
a woman could not have made. It was not inevitable under the later forms. Its limited
survival as stated aimed at the preservation of the family property. The original tutores
were those who would take her property if she died, the agnates being the chief and most
usual case. It is possible that the rule that even with their consent she could not make a
will is due to the fact that the present agnates might not be those who would be alive at
her death, so that they would be depriving other successors. 3 G. 1. 115 b. The tutor

might be willing to consent as the right of succession might not compensate for the trouble
of constant supervision. But the practice may possibly be later than the abolition of
agnatic tutela over women, which disappeared a century before Gaius wrote. The testa-
mentary tutores then usual had, as such, no interest in her property. Emancipation
which left the former paterfamilias as legitimus tutor presumably made it possible for him
to authorise a will. 4 G. 1. 115, 115 a. We are not told how the fiducia was enforced,

or how the coemptionator was compelled to remancipate. For the later steps it is not
likely that the actio fiduciae was the remedy (post, § CLI). The matter is disputed. See
Coll. 2. 3. 1, and Jacquelin, De la Fiducie, 103 sqq. 5 G. 1. 115 a.

m] MANUS 121

speaks of it as still applied for the purpose of change of tutores. In his
time the tutela of a woman's agnates was gone, and the only case in
which the tutor of an ingenua had any real power was that of an emanci-
pating father. But Gaius speaks of her getting rid of her tutores and in
his time there could be no plurality of tutores of an ingenua with this
oppressive power1. Thus so far as ingenuae are concerned, it was now
merely one of the many devices by which in classical law a woman
could change her tutors, not because of their oppressive power, but
precisely because they had none at all. It is perhaps in this sense that
Ulpian still mentions it2.

3. Usus. This was presumably originally a rule that one year's co-
habitation turned an unrecognised and informal union into a marriage.
As we know it, it was a rule that manus was superadded to marriage by
one year's cohabitation. But as early as the XII Tables3 it was provided
that this could be avoided by trinoctium abesse, i.e. by the wife's ab-
senting herself from the husband's house for three nights in each year4,
the absence being intentional and for this purpose. This was the earliest
mode of creation of manus to disappear. It existed in the last century
of the republic5, but Gaius tells us that in his time it was gone,
partly by enactments (of which we know nothing), and partly by
desuetude6.

Where there was manus, divorce would not necessarily be so simple.
It is likely that at one time there could be no divorce from confarreatio ;
there was none in classical times for actual famines'*. But in other cases
there was a process called diffarreotio, a reversal of the union carried out
by religious observances in a similar way 8. From the language of Gaius
it seems probable that after the change made by Tiberius in the effect
of confarreatio the wrife could, here too, divorce or be divorced by mere
repudium9. In the other two cases, divorce was effected by what was
substantially the process for emancipating a daughter10. On the question
whether the wife could compel this in real marriage-manws Gains, in a
defective text, seems to contradict himself. The passage has been ex-
plained as meaning that she could destroy the marriage aspect of the
manus by a libellus repudii, and then compel remancipatio as if she had
not been a wife at all11.

XLIV. The next mode of acquisition of patria potestas is by Adoption,
i.e. the acquiring, by voluntary process, of potestas over persons not

1 He may be referring to the case of a libertina in tutela of liberi patroni or joint
patrons, whose power was real, post, § LX. 2 Ulp. 11. 5. 3 G. 1. Ill; Aul. Cell.
3. 2. 13 sq. 4 Ibid. 5 Aul. Gell. mentions Q. M. Scaevola as treating it. From the
expression "trinoctium" it has been inferred that the nights must be successive. 6 G. 1.
110,111. 7 It needed an imperial dispensation, Plutarch, Quaest. Rom. 50. 8 Festus,
vo Diffarreatio. 9 G. 1. 118, 136. 10 G. 1. 137. 11 G. 1. 137 a.

122 ADOPT 10 [CH.

born into the family1. The adoption of a person previously sui iuris,
was adrogatio ; the transfer of a person alieni iuris from one family to
another was adoptio2, though this name was also used in a wide sense to
cover both. They differed greatly in their character and forms.

ADOPTIO, of a person alieni iuris. The elaborate form is derived from
a rule of the XII Tables (aimed at checking the cruelty and avarice of
some fathers), which provided that if a father sold a son three times the
son should be free from potestas3. The potestas being in principle inde-
structible, the rule was seized on as a means of ending it at will. The
process, as we know it in classical law, was as follows: The father, A,
sold X, the son, to B. B freed him and he reverted to A's potestas.
This was repeated. There was then a third sale wrhich destroyed the
potestas and left the son in bondage to B. C, the intending adoptor, now
brought a collusive action against B claiming X as his son. There was
no defence and judgment went accordingly. B and C might be the same
person, but in that case X would be sold back to A after the third sale,
and the claim made against A, a method often adopted apart from this
consideration4. As the Tables speak of selling filium three times, the
pontifical lawyers held, quite illogically (it is a mere subterfuge), that
one sale sufficed for a daughter or grandchild5. The sale was by the formal
mancipatio. It will be observed that the whole transaction had two
parts, a preliminary sale or sales to destroy the potestas, and the act of
adoption, the claim and declaration in court6. The vendee could be
compelled to carry out the necessary releases by the magistrate, the
mancipatio being fiduciary 7.

In classical times it was recognised that the sales were empty forms,
any defect in them being remediable by the Emperor8, the appearance before
the magistrate being the essential. Justinian, recognising the uselessness
of the sales, dispensed with them ; all that was now needed was for the
parties to go before the magistrate and have the transaction entered on
the acta of the court9. There was no fictitious action, but the essence
was preserved10.

The effect of adoptio in classical law was to remove the person
adopted from one potestas (and ordinarily from one agnatic group11) to
another. The cognatic tie was unaffected12. The adoptatus acquired the

1 This definition will however include legitimation (post, § XLVI) which may be thought
of as a kind of adoption confined to a man's own children by a concubina. 2 G. 1. 98,

99; Ulp. 8. 12. 3 G. 1. 132; Ulp. 10. 1. 4 G. 1. 99, 132-134. The mancipations need
not be on the same day or with the same witnesses, P. 2. 25. 2. 5 G. 1. 134. 6 This
is essentially cessio in iure, a form of conveyance, post, § LXXXIV. 7 Post, § CLI.

8 1. 7. 38. It might be on a dies feriata, P. 2. 25. 3. 9 Inst. 1. 12. 8; C. 8. 47. 11.

10 Gaius, Ulpian and Justinian all describe it as done essentially by the magistrate.
G. 1. 98; Ulp. 8. 2; Inst. 1. 11. 1. 11 Adoption by a paternal uncle would leave him

in the same agnatic group. 12 Post, § cxxx.

in] ADOPT 10 123

rights of a natural son, but they depended on the agnatic tie, and ceased
absolutely if he passed out of his new family by emancipation1: he
became an emancipatus of his real father2. But the adoption affected
only himself; if he already had children they remained in the old family3,
and, on principles already stated, any child conceived while the potestas
was undestroyed, i.e. before the third sale, was in the same position.
Those conceived later were in the new family. But the father did not
get all the advantages of a natural son. Thus the possession of a certain
number of children gave advantages in the law of succession and
exemption from irksome duties, but adoptive children did not, and the
natural father did not lose them4.

It was possible to adopt one's own child, not in one's potestas, even
though he had been given in adoption to another5, but a son so readopted
was a new person. He did not again become the father of any children
he had left in the family. A grandson so readopted would not again be-
come the son of his father or his suus heres on the death of the grand-
father6. And though an adoptive child might be emancipated or given
in adoption, he could not be readopted 7.

A person might be adopted not as a son but as a grandson, even if
there were no son, and might be attached as a son to any son, with his
consent 8, in which case he would be a suus heres of the son but not of
the adopter.

Justinian made a sweeping change in the effect of adoption. Ob-
serving that there had been doubts among classical lawyers as to the
rights a child given in adoption retained in the estate of his natural
father, and that adoption lightly undertaken might be ended equally
capriciously, so that the child would be in neither family, he provided
that for the future the adoptive child should retain all his rights of
succession in his old family and acquire only a right of succession on
intestacy in the new, with no right of complaint if he was passed over
in the will, and conversely, such acquisitions of the child as under his
law went to the father for life (bona adventitia9) should go to the natural
father. And the child did not pass into the potestas of the adoptive
father10. To such cases Justinian gave the name adoptio minus plena,
but in two cases he allowed the old law still to apply and these he called
adoptio plena. These were (1) where the adopter was a natural ascendant,
in which case there was not the same risk of caprice11, and (2) where a
grandchild was given in adoption while his father was alive12. Here he

11.7.13. 2 G. 2. 137. 3 1. 7. 40. pr. 4 G. 3. 41, 49; D. 31. 51. 1; Inst. 1.
25. pr., etc. A person of senatorian rank adopted by a phbeius was still a senatorial. But an
adoptatus got the benefit of any improvement. 1. 7. 35. 5 1. 7. 12. 6 1. 7. 41.

7 1. 7. 37. 1. 8 Ulp. 8. 7; Inst. 1. 11. 5; D. 1. 7. 6, 10, 11, 9 Post, § xcix.

10 Inst. 1. 11. 2; C. 8. 47. 10. 11 Inst. 1. 11. 2; C. 8. 47. 10. 1 a. 12 C. 8. 47. 10. 4.

124 ADOPT 10 [CH.

was not a suus heres and had technically no rights to lose. But the
exception did not apply if, in the event, the father died before the
grandfather, so that, but for the adoption, he would have been a suus
heres. In that event the adoptio at once became minus plena1.

The principle adoptio naturam imitatur was the source of several
rules. Thus, though an adopter need not be married, one who from
physical defect was incapable of marriage could not adopt2. The adopter
must be old enough to be the father, and Justinian fixed the difference
at 18 years3, plena pubertas, the latest age at which maturity might be
expected, with presumably proportionate increase where the adoption
was in a remoter degree.

Women being incapable of patria potestas could not adopt in classical
law4. But Diocletian in A.D. 291 allowed adoption as a consolation to a
woman who had lost her children, and Justinian accepted this as a
general rule, requiring however the permission of the Emperor5. Dio-
cletian's case seems to have been of a person sui iuris, but Justinian's
rule was not so limited. The effect of the adoption would be to give the
ordinary right of succession, but, of course, no potestas.

Adoption, being in form a legis actio, could not be subject to condicio
or dies; such a thing no doubt made it void6.

The question whether the consent of the adoptatus was necessary for
classical law is obscure. We may be certain that it was not needed in
early law. Justinian says, once as a rule of old law, and once as a rule
of his own, not necessarily new, that contradictio by the adoptatus pre-
vented the adoption 7. Celsus definitely says that his state of mind was
not material, but he is made to follow this with words which say that
he must consent or not contradicere, words probably added as they
follow very closely Justinian's own language8.

XLV. ADROGATIO. Adoption of a person sui iuris. This is the
more ancient institution and the more important in its effects, since it
destroyed a family and merged it in another. Though it underwent
certain changes, it retained its essential character unaltered throughout
the development of the law. Its original form is an expression of its

1 This seems rather a hidebound view, since he loses his potential rights in his father's
family, and the restriction, though quite logical, leaves the evil untouched in the case which
is most likely to happen. 2 G. 1. 103; Inst. 1. 11. 9; D. 1. 7. 16. 3 G. 1. 106; Inst.
1. 11. 4; D. 1. 7. 40. 1. interp. 4 G. 1. 104; Ulp. 8. 8 a. 5 Inst. 1. 11. 10; C. 8. 47. 5.
6 See 1. 7. 34. In 50. 17. 77 this is said of emancipatio, of which the form is essentially
the same but it is probable that Papinian said mancipatio. 7 C. 8. 47. 10. pr. ;

h. t. 11. 8 1. 7. 5, there is no reason to think infantes could not be adopted, and it

is clear that impuberes could: the fact that the requirement was "now contradicere" will
save the rule for infantes, but if the consent of the impiibes was given we should expect
to see cases of restitutio in integrum, but we do not, except in adrogatio, where his consent
was needed.

m] ADROGATIO 125

importance. There was a preliminary investigation by the pontiffs to
decide whether in the actual case it was admissible1; they considered
the question whether it satisfied the legal requirements, but it is hardly
possible to set limits to the further factors which they took into account.
It would perhaps be more true to say that they gradually created the
standing restrictions as we know them, and considered also the material
aspects of the individual case. If they approved, the matter went
before the comitia curiata, called in this case c. calata, summoned in
a special way, meeting on special days for this and other purposes
affecting sacra, and presided over by the Pontifex Maximus2. The parties
were rogati whether they assented, and there was a third rogatio of the
populus3, the vote being probably followed by a solemn detestatio sacro-
rum, renunciation by the adrogatus of the sacra of the old family4.
Nominally this continued to be the form up to the time of Diocletian,
but the comitia curiata fell early into decay, and the really important
element was the inquisition by the pontiffs, the comitia being repre-
sented by 30 lictors5, as it already was in the time of Cicero6. Dio-
cletian abolished the old system, providing that it might be done by
imperial rescript, which is in effect no change of principle, the existing
legislative authority being substituted for the original 7.

The effect of adrogatio was to bring the adrogatus completely into the
family. Like the adoptatus he became a filiusfamilias therein, but he
brought with him all those in his potestas8. The adrogator acquired, in
principle, all his property, while, as the adrogatus was capite minutus,
his obligations ex contractu and quasi ex contractu ceased, at civil law,
to exist, an injustice remedied by the praetor9. And the acquisition by
the father was cut down in the Empire in the same way as in the case
of any other filiusfamilias10. The principle that the adopted person got
the advantage of improvement in status but did not decline held good
with two exceptions. A libertinus who was adrogated11 did not thereby

1 1. 7. 15. 2; h. t 17; Cicero, de domo, 13, 14 (34-38); Aul. Gell. 5. 19. 2 Aul. Cell.
5. 19; Mommsen, Staatsr. 2. 27; D.P.R. 3. 41. 3 G. 1. 99. 4 Mommsen,

Staatsr. 3. 38, 318; D.P.R. 6. 1. 41, 362. Detestatio is sometimes differently explained.
See Girard, Manuel, 175. The rogationes are submitted by the presiding pontifex.
5 Corresponding to the 30 curiae. As it is "auspicatum," Cicero, de I. agr. 2. 12. 31, the
augurs are present. 6 Cicero, loc. cit. 7 C. 8. 47. 2, 6. The college of pontiffs being
obsolete, the enquiry was conducted by imperial officials. In D. 1. 7. 20, 21, mention is
made of the adrogatio of females by rescript. If these texts are unaltered, the method, at
least exceptionally, is as old as Gaius. 8 G. 1. 107; Inst. 1. 11. 11; D. 1. 17. 15. pr.

Though primarily a method of adopting the son of another person, it might obviously
be, and frequently was, applied to the adoption of a man's own children not in the potestas,
e.g., emancipated or born out of wedlock. A freedinan not infrequently bought, freed and
adrogated his children born in slavery. But in later law a man might not adrogate his
child by a concubine, C. 5. 27. 7. 3. 9 Post, § OXLI. 10 Post, § xcix. 11 As to
this, post, p. 127.

126 ADROGATIO [CH.

become an ingenuus1, and a patrician adrogated by a plebeian did be-
come a plebeian2.

The restrictions stated in connexion with adoptio applied also here,
but there were many more. Adrogatio destroyed a family and thus was
allowed only to save another, i.e. to provide a heres. Hence the very
careful investigation into the circumstances, the character of the
adrogator, his motives, etc.3, and hence also the fact that it needed the
consent of the legislature. Nearly all the special restrictions are due to
these characteristics. The chief are the following :

So long as it was done before the comitia it was necessarily at Rome,
as the comitia sat there4. When it was by imperial rescript it might be
anywhere. As a woman had no standing before the comitia she could
not be adrogated5 ; there was no difficulty when it was done by rescript6,
but there was small advantage in it, for though she would continue the
family for a generation, it must necessarily then fail, as she would be
sole successor and could have no sui heredes. An impubes could not be
adrogated in early law7, perhaps for the same reason, but there was the
further practical reason that to allow it was to put an easily abused
power into the hands of his tutores8. Antoninus Pius, however, allowed
it9, even under the old system, subject to special rules. There was a
careful investigation from the point of view of advantage to the child10.
The auctoritas of tutores was required11, and the adrogator gave security
that, in the event of death of the adrogatus still impubes his property
should be restored to those who would have taken it if he had not been
adrogated12. There was a difficulty as to the person to whom this securitj^
had to be given, for, though it preceded the adrogation, the rights, if it
had been given to the child himself, would have vested in the adrogator,
the person liable. The solution found was to give the security to a public
slave, perhaps with an incorrect idea that those entitled were part
owners of the slave, as members of the public13, the persons concerned

1 1. 5. 27; 1. 7. 46; 23. 2. 32; 38. 2. 49. 2 Cicero, de domo, 14 (34-38). Clodius

was thus adrogated so as to be eligible for the tribunate of the plebs. Cicero attacks
the proceedings, but never makes the point that it would not make him a plebeian. But
by this time plebeians were rather a different than a lower order. 3 Cicero, de domo,
14. 36; D. 1. 7. 15. 2. 17. 4 G. 1. 100; Ulp. 8. 4. 5 G. 1. 101. He says " magis placuit."
There had been doubts. 6 1. 7. 20, 21. 7 G. 1. 102. His language seems to imply
that it was occasionally allowed before the change made by Pius. 8 Aul. Gell.

5. 19. 10. 9 G. 1. 102; Ulp. 8. 5. 10 1. 7. 17. 1, 2. 11 1. 7. 17. 1. Not enough

in itself: the text notes that it would enable the tutor to end a pupillary substitution.
12 Inst. 1. 11. 3. 13 1. 7. 18 (Utilis actio if security not given, h. t. 19. 1). Saleilles
puts it down (Personnalite juridique, 89sqq.) to a much more subtle notion. The per-
sonality of the universitas, though distinct, subsumed those of the members, not as titu-
laries but as beneficiaries, like our cestui que trust, which is of course consistent with the
utiles actiones. But the notion of utiles actiones to third parties really interested is a late

m] ADROGATIO 127

having utiles actiones1, a rule which shews that it was recognised that
there was no real ownership. It is perhaps the public rather than the
" common " quality of the slave which accounts for his use, since in a
parallel case we are told that the security could be given to a municipal
magistrate2, and it is certainly the decisive point under Justinian when
it could be given to a tabularius who was a public official3 and not a
slave. If the adrogator emancipated the adrogatus, impubcs, he had to
restore his property at once. If he disinherited him, the adrogatus could
claim it at his death, and in this case, and where he had emancipated
without shewing cause to a court, the adrogatus might claim a quarter
of the estate of the dead man (quarta antonina), i.e. exactly what an
only child was entitled to claim against a will, unless justly disinherited4.
It is probable but not certain that these latter liabilities were covered by
the security5. If the adrogatus reached the age of puberty all these
securities and liabilities were ended, and he was an ordinary adrogatus,
except that he could have the adrogatio set aside by a forced emancipatio,
at any rate if he could shew good cause6.

Since it was allowed only as a last resort, to save a family, no one
might adrogate more than one, or any, if he had a child already7. He
must be 60 or from some cause unlikely to have children8. The question
whether it would leave others to attend to the sacra of the ancestors of
the adrogatus was also material9. One under 25 could not be adrogated
by one who had been his tutor or curator10, and consent of his curator
was necessary11. All these restrictions might be overridden for sufficient
cause; it was in the discretion of the controlling authorities, and an
adrogatio which broke these rules was valid if actually carried out12. It
does not appear that an adrogator need be married13.

A libertinus could be adopted by an ingenuus, in early law, but did
not thereby become an ingenuus1*. In classical law he must not be
adopted by any one but his patron15. But, here too, if the adrogatio was
carried through per obreptionem, it was valid16; non debet fieri sedfactum
valet. But his patron's rights were not affected.

As the adrogatus was an active party in the process, it is clear that his

one and cannot be dated back to the origin of this method in lutela. And the notion
will not explain the fact that in tutela it could be given to municipal magistrates (27.
8. 1. 15, 16).

128.6.40. 227.8.1.15,16. 3 Inst. 1. 11. 3. 4 Inst. 1. 11. 3; 37. 6. 1. 21;
post, § cxrv. 5 1. 7. 20. 6 h. t. 32. pr. 33. He recovers pristinum ius which pre-

sumably means his property as well. 7 1. 7. 15. 3, 17. 3; C. 8. 47. 3. 8 1. 7. 15. 2.
9 Cicero, de domo, 14. 10 1. 7. 17, lest he evade the responsibility of accounting,

cf. 1. 7. 32. 1. 11 1. 7. 8. 12 Arg. 1. 7. 17; cf. 38. 2. 49. 13 There is no evidence
to the contrary in classical law, and Ulp. 8. 6 and D. 1. 7. 30 are not confined to adoptio
in the narrow sense. 14- 38. 2. 49; Aul. Cell. 5. 19. 10, 11. 15 1. 7. 15. 3. 16 2. 4. 10.
2; 38. 2. 49.

128 ADOPTION BY WILL [CH.

assent was necessary1, and thus, if he was insane, he could not be adro-
gated for lack of assent2. If deaf or dumb he could not be, since he could
not take part in the formal act. This would not be the case in adoptio*.

There were some exceptional forms of adoption.

Adoption by will. At the close of the Republic and early in the Empire
there are recorded in literary texts a number of cases of adoption by
will4. The institution is not mentioned in legal texts and its nature is
not clear. According to Mommsen, it was an institution as heres with a
direction that the institutus was to enter the family of the testator and
was followed by rogationes in comitiis calatis, being in effect an adrogatio
in a somewhat modified form. According to another view it was never
more than an institutio with a direction to take the name of the testator
(which was common in the Empire), and had no effect on the family
relations of the heres, though in one or two exceptional cases, for political
reasons, the institutus did subsequently procure a transfer to the testa-
tor's family by rogationes5.

Adoption of slaves. Justinian records a dictum of Cato6 that owners
could adopt their slaves. Whether this was by collusive conveyance,
followed by cessio in iure, i.e. adoptio, or by adrogatio, is not certain ;
the latter is the most accepted view7. There is no trace of the institution
in the classical law. The rule to which Justinian refers in the same text
(and regulates elsewhere8) is merely that if a master formally declares
that he regards a certain slave as his son (which he might be, in fact),
this, though void as an adoption, might effect a manumission9.

Aulus Gellius speaks of masters giving their slaves in adoption10 and
he says that ancient lawyers had held this lawful, though it clearly no
longer existed. This was adoptio, for it was done apud praetorem. It
would consist of the claim (cessio in iure} only, for the triple sale would
not be needed as there was no patria potestas to destroy. In later law
the result would be reached by manumission followed by adrogation.
There would be no difficulty if, as would often be the case, the adrogator
was a libertinus, father of the slave. And if, though an ingcnuus, he was
actually the father, it would no doubt be permitted, the son remaining
a libertinus.

XLVI. LEGITIMATION. The patria potestas could also be acquired by
legitimation. Concubinatus was a recognised connexion short of marri-

1 1. 7. 24. 2 Arg. 1. 7. 5; h. t. 42. 3 As to the effects of adrogatio on property,
post, § CXLI. 4 This is a much more important institution in Greek law where it was

in fact the only way of appointing specially a heres. See Daremberg et Saglio, Diet, des
Antiq. s.v. Testament. 5 See for a list of the cases and discussion of these views,

Michel, Droit de CM Romaine, 240 sqq. 6 Inst. 1. 11. 12. 7 The fact that a slave
has no standing in comitiis is more or less met by the fact that the proceeding makes him
capax. 8 C. 7. 6. 1. 10. 9 Ante, § xxvu. 10 Aul. Gell. 5. 19. 13.

in] LEGITIMATION 129

age1, which seems to owe its recognition as a legal institution to the
restrictive legislation of the early empire on marriage, in particular the
rules forbidding soldiers on service to marry and restricting the marriage
of provincial officials2. It seems to have been encouraged by the im-
morality of Roman women of high rank ; men sometimes preferred to
contract this union with women of lower class but higher character. It
was a permanent relation, free from the stigma ofstuprum, but ordinarily
involving a certain loss of caste in the woman3, so that while it did occur
between those of equal rank4, and even rarely between women of high
rank and men of lower5, there was usually a marked difference of
rank the other way6. It might be with any woman capable of Roman
marriage, and, after Severus, it might be with a peregrine. It might
always have been with a man's own slave7. Constantine, however, for-
bade it between persons of senatorian rank and libertinae and the abject
persons grouped with them8. It was subject to many restrictions similar
to those of marriage. Thus a man might not have a wife and a concubine
or two concubinae9. The parties must not be so near akin that marriage
would be barred10. Like marriage, concubinatus could not exist between
tutor and ward11. There must be marriageable age and consent12.
Thus it was not always easy to tell concubinage from marriage. Dos
was the best evidence: there was no dos in concubinage, and we have
already mentioned the presumptions in favour of marriage. In classical
law it produced little legal effect. It was not sluprum, but the woman
did not take the man's rank13 and there were no obstacles to gifts
between them. The children wrere not related to the father but he
could give or leave property to them, subject to the claims of legitimi1*,
and if he did leave them anything, he could in effect appoint tutores to
them15. They did not count for the praemia patrum under the leges
caducariae, etc.16 On the other hand they were cognates of the mother
with cognatic succession to her and to her relatives and they counted
towards the ius liberorum17. Towards the end of the classical period we

1 See on the whole subject, Meyer, Der Romische Konkubinat. 2 25. 7. 5.

3 23. 2. 41. 1; 25. 7. 3. 1, 5. 4 25. 7. 3. pr.; Meyer, op. cit. 46. 5 Meyer, 47c,

65. 6 In one case, that of liberta and her patron or his son, it was honourable

and she was still entitled to the name of matrona (25. 7. 1. pr. ; 48. 5. 14. pr.), and, as in
marriage, she could not end it of her own will, at any rate where the manumission was
voluntary (ibid.). 1 Meyer, 63 sqq., 476, 74. 8 C. Th. 4. 6. 3; C. 5. 27. 1. The

enactment deprives offenders of civitas. Modified in Nov. 89. 15. Some high officials were
here ranked with senatorii. 9 P. 2. 20. 1; C. 5. 26. 1. 10 23. 2. 56; 25. 7. 1. 3; 38. 10. 7.
11 Meyer, op. cit. 61. Not the rule as to provincial governors, 25. 7. 5. 12 25. 7. 1. 4.
Not, of course, affectio maritalis. 13 32. 49. 4. 14 Post, § cxiv. The children were
liberi naturales, as opposed to iusti or legitimi. The name is also used for actual children
as opposed to liberi adoptivi. 15 Post, § LI. 16 Meyer, op. cit. 56 sqq. 17 38.

8. 4; Inst. 3. 5. 4.

B. R. L. 9

130 LEGITIMATION [CH.

get a rule, applied ear)ier in the case of gentile marriage, which is the
germ of the later legitimation. The issue of concubinae of soldiers on
service acquired, by entering the army, rights of succession to the father,
and civitas if they were not cives already1.

The Christian empire was somewhat hostile to concubinage. The
right to give or leave property to the concubine or the child was destroyed
by Constantine, but restored, with limitations on amount, soon after2,
and these rules were varied by a bewildering mass of enactments till
post-Roman times3.

Subsequent Marriage. A change directly affecting the family law was
that Constantine provided a means of legitimation. He enacted that,
for existing, but not for future cases, marriage of the concubina should
legitimate children already born, provided she was ingenua and not of
one of the abject classes, the children consented, and there was no wife
or legitimate child. Zeno seems to have repeated this4. Anastasius, in
A.D. 517 5, laid down a general rule for future cases as well, and for all
concubines, capable of marriage, if the children assented, there was no
legitimate child, and the marriage was attested by writing and dos.
Two years later, this was repealed6. Justinian by a series of enact-
ments regulated the matter anew, allowing legitimation by subsequent
marriage even where the concubina was a libertina, provided the marriage
was attested by instrumentum dotis or other writing, the woman was
capable of marriage at the conception or birth, and the children con-
sented. Finally he allowed it even if there were legitimate children7.

Oblatio Curiae. The office of decurio (member of the local curia) was
avoided in later law, since a decurio was personally liable for many
charges. As part of a scheme to keep the lists full it was provided in
A.D. 443 that if a man had no legitimate child, and made his son by a
concubina a decurio, or married his daughter to one, these children might
receive all his property and could succeed on intestacy like legitimate
children8. This was not legitimation; they did not become agnates or
cognates of the father's relatives or go into potestas. Justinian allowed
it where there were legitimate children, provided no more was taken
than by any legitimate child. Finally he allowed them to pass into
potestas, making it true legitimation, so far as the father was concerned,
but not with regard to his relatives9.

Rescriptum principis. Justinian also provided that on petition by
a father or request in his will, in which they were instituted, a rescript
of legitimation might issue. The petition must shew that he had liberi

1 Meyer, op. cit. 112. 2 C. Th. 4. 6. 2, 4. 3 Meyer, op. cit. 134 sqq. 4 C. 5.
27.5. 5 C. 5. 27. 6. 6 C. 5. 27. 7. 7 C. 5. 27. 8, 10, 11; Now. 12. 4, 18. 11, 78. 4.
8 C. 5. 27. 3. 9 C. 5. 27. 9; Inst. 1. 10. 13.

m] DETERMINATION OF POTESTAS 131

naturales, but no legitimi, and that the mother was dead or not worthy
of marriage1.

REVOCATIO IN PATRIAM POTESTATEM. Constantine lays down, and
later emperors confirm, a rule that an emancipated son could be recalled
to potestas for ingratitude, being bound to restore also any gifts he had
received2. This is therefore another way of acquiring patria potestas.
It was not exactly a revocation, since the gifts did not revert ipso facto.
The machinery is not recorded. It was presumably a capitis deminutio,
and the father's liability on the son's debts was probably as in adrogatio*.

XL VII. We have now to consider how patria potestas would end.

It ended in many cases by transfer, e.g. where a person alieni iuris
passed into another family by adoption or entry into manus, or adroga-
tion of a paterfamilias who had children in potestas (in all which cases
there was a rupture of agnatic ties), or by death, deportation or enslave-
ment of a grandfather where the father was alive and in the family (where
there was no such rupture)4.

It was destroyed by sale of a daughter or grandchild into civil
bondage, involving rupture of agnatic ties, and by three such sales of a
son5. It was destroyed by death, loss of civitas or loss of liberty by the
pater or the films6, with rupture of the agnatic ties in the cases other
than death, so far as the person deported or enslaved was concerned.

It was also destroyed without effect on the agnatic ties by the
acquisition by the filiusfamilias of certain dignities. This occurred
where a man became a fiamen dialis or a woman a vestal virgin '. These
persons passed out of potestas without capitis deminutio. We do not
know the machinery, but from the fact that they did not suffer capitis
deminutio, and the language of Aulus Gellius 8, it seems likely that there
was no act by the paterfamilias. But, so far as vestal virgins are con-
cerned, they hardly became sui iuris. They passed under the control of
the populus, administered by the pontiffs9. They acquired the right of
testation10, which did not attach to other ingenuae who had not suffered
capitis deminutio, till long after these had it, so that they were thought
of as having property of their own. But their agnates did not succeed
to them on intestacy: their goods went to the populus11. And they
could not inherit from anyone12, so that the continuance of the agnatic

1 Nov. 74. 1, 2. 2 Vat. Fr. 248; C. Th. 8. 14. 1; C. 8. 49. 1; D. 1. 7. 12. 3 Post,
§ CXLJ. 4 G. 1. 127; Ulp. 10. 2. 5 The two earlier sales merely suspend it in this

case. 6 Subject to the possibility of postliminium and restitutio, ante, §§ xxrv, xxv;

D. 48. 23. 7 G. 1. 130; Ulp. 10. 5. 8 G. 3. 114; Aul. Gell. 1. 12. 9 Aul. Cell.
1. 12. 9; Mommsen, Staatsr. 2. 54 sqq.; D.P.R. 3. 60 sqq. 10 Aul. Gell. 1. 12. 9.

11 Ibid. 1. 12. 18. 12 Ibid., i.e. at civil law : it does not follow that they were excluded
under praetorian law. But no one succeeded to them under either law: "sed bona eius in
publicum redigi aiunt. Id quo iurefial, quaeritur," Labeo, quoted Aul. Gell. loc. cit.

9—2

132 EMANCIPATION [CH.

tie was rather unreal. In later law there were a few other dignities which
released from potestas1.

EMANCIPATION. Much more important was voluntary release2. The
form resembled that of adoption. There were three sales (or one as the
case might be)3 to end the potestas. This left the son or daughter in
bondage to the vendee. The next step might be a manumission from
bondage in the same form as one from slavery, by the vendee, which
would have the effect of making the manumitter a quasi patron, with
rights of succession and tutela. But it was more usual to sell back to
the father, who in turn would free, and acquire these rights4. The sales
were fiduciary with the same modes of enforcement as in adoptio5.

Anastasius provided that where ihefilius was absent the emancipatio
could be effected by petition to the Emperor, a favourable reply com-
pleting the emancipatio6. Justinian abolished the old forms : emancipa-
tion was effected by attendance of all parties before a court, the trans-
action being entered on the acta, as in adoptio1.

The consent of the father was not needed to emancipatio by the
grandfather8, and though a child could not ordinarily compel emanci-
patio9, there were a few cases in which he could. One of these was that
of adrogatus impubes, for cause10. Where a man had a gift by will on
condition of emancipating his son he could not claim without doing it.
This is no exception11, but one text seems to mean that where there was
such a gift with a fideicommissum to emancipate, and the gift was
accepted12, the emancipatio could be enforced, though the machinery
for enforcing fideicommissa of liberty did not apply here. Another text,
of Diocletian, but apparently modified by Justinian, may mean that if
a mother instituted her child with a condition of emancipatio, the
father could be compelled to emancipate him13. These seem to be the
only exceptions14.

1 Inst. 1. 12. 4; C. 12. 3. 5; Nov. 81. It was also ended in later law by certain forms
of misconduct of the pater; see Girard, Manuel, 192. 2 G. 1. 132 sqq. ; Inst. 1. 12.

6 sqq. 3 Where a son was noxally surrendered, Gaius tells us (4. 79) that the Pro-

culians held three sales necessary to transfer him, theSabinians only one; the requirement
in the XII Tables referring only to voluntary transfers. 4 G. 1. 132; Ulp. 10. 1. He

took his peculium if it was not expressly taken away (39. 5. 31. 2; Vat. Fr. 260), as in
manumissio servi inter vivos (ante, § xxvi). 5 Inst. 3. 2. 8. In a recorded case, there

is an express fiducia to remancipate. Oddly, though it is a daughter, there are three sales,
Girard, Textes, 825. 6 C. 8. 48. 5. ' 7 Inst, 1. 12. 6. 81. 7. 28; Inst. 1. 12. 7.

9 1. 7. 31 ; C. 8. 48. 4. 10 Ante, § XLV. 11 P. 4. 13. 1. This is all the text seems

to mean. 12 35. 1. 92, 93, cognitio extraordinaria, an inference of Paul from a piece of

rough justice by Severus, contrary to principle, 35. 1. 92; 30. 114. 8. 13 C. 3. 28. 25.

The words "restituere debet" at the end have no grammatical connexion with the rest.
If they are more than a mere corruption they perhaps mean this. 14 The forfeitures of
potestas for misconduct do not seem to require emancipatio, and a text dealing with
cruelty by the father (37. 12. 5) does not seem to mean that there was a right to compel

in] EMANCIPATION 133

The consent of the person emancipated seems to have been needed.
Paul is clear1, and Justinian adopts a lex of Anastasius which says much
the same2, while in his enactment on adoptio he says what might mean
the opposite3. The rule no doubt was that, as he must be present, he
must at least not contradicere\ and Anastasius dispensed with consent
in the case of an infans5. No doubt in the republic it was not needed.
But there was no need for compulsory powers. The case of a bad son
could be met by disinheriting6.

We have already seen that the emancipation of an adoptive child
totally ended all connexion between him and his adoptive family: he
was regarded as having been directly emancipated from his original
family7. Apart from this point, the primary legal effect of emancipatio
was to destroy the potestas, and with it the agnatic tie 8 : these effects it
always retained. But its practical effect underwent great changes. In
early law as it absolutely destroyed all civil connexion between the
emancipatus and his old family, he lost all right of maintenance and all
right of succession to his father and his agnates. Rights of succession
the other way were not wholly destroyed, since the emancipating pater-
familias was "quasi patron," and had from very early times the same
rights of succession to the emancipatus as the patronus had, under the
XII Tables, to a freedman9. But before the end of the republic an
emancipatus had acquired at praetorian law a certain right of succession,
and his rights in this respect were progressively improved10 until in the
time of Justinian there was little practical difference. The ancestral
sacra, from which he was presumably excluded, were obsolete long
before Justinian's" day. Where it was an amicable transaction it was
often accompanied by a gift of money and the emancipatus usually took
his peculiumn. It might be by way of punishment, for the rule that he
must not contradicere means often submission rather than consent.
There probably came to be rights of maintenance against the quasi
patron, like those of libertus against his patron. An emancipatus im-
pubes, or a woman, was under the tutela of the quasi patron12. In late
law an emancipatus might have the tutela of his un emancipated younger
brothers, though this went in principle only to agnates13.

emancipatio in such a case by any established machinery, but that if the Emperor did in
fact by his overriding authority order emancipatio in such a case, this also involved for-
feiture of any rights of succession.

1 P. 2. 25. 5. But the text is suspected of alteration, and the rule may be post-classical.
See Beseler, Beitrage, 4. 116. 2 C. 8. 48. 5. 3 C. 8. 47. 10. pr. See ante, § XLIV. 4 See
C. 8. 47. 11. 5 C. 8. 48. 5. 6 Abdicatio, repudiation of a son, an institution of Greek
law, is declared by Diocletian to have no place in Roman law, though it was clearly
practised then and later, C. 8. 46. 6; Mitteis, Reichsr. und Volkw. 212. 7 Ante,

§ XLIV; G. 2. 136, 137. 8 G. 1. 163. 9 Post, § cxxxrv. 10 Po.4, § cxxx.

11 Vat. Fr. 255, 260; D. 39. 5. 31. 2. 12 Post, §§ LII. LX. 13 Post, § LIJ.

134 CIVIL BONDAGE [CH.

It appears then that in Justinian's time there was little disadvantage
in emancipatio. The question arises : what evils had he in view when he
changed the law of adoptio, owing to the possibility of capricious adoption
followed by capricious emancipation? He explains the risk as arising in
some exceptional cases. Where A gives his son B in adoption, and dies,
B, being in another family, has no claim on the estate. Some years later
the adopter emancipates him. He is now an emancipatus of his original
father, but this does not operate retrospectively, and he is thus ex-
cluded from either estate. Even if it were retrospective, the estate may
long since have been dissipated1.

XLVIII. CIVIL BONDAGE2. Thiswasa relation setup by transfer by the
paterfamilias to another by sale, in the form of mancipatio, i.e., per aes et
libram. One so sold was not a mancipium, a word wrhich means a slave,
but was in an analogous position and was thus said to be in mancipio or
in mancipii causa3. Except for noxal surrender for delict, and the formal
sales in adoptio and emancipatio, the institution was practically obsolete
in classical law and it is not clear how far the recorded rules applied to
it in earlier times. The bondsman was still free and a civis. His marriage
was not affected4. His children conceived after the sale were, in the time
of Gaius, in his potestas (in abeyance while he was in mancipio} or in
that of his paterfamilias, though it is possible that before the empire
they too were in mancipio5. How his political rights were affected we
do not certainly know. But, though free, he was servi loco. He acquired
for his holder as a slave did6. He could take nothing by the will of his
holder unless freed by his will 7. If instituted by him he was a necessarius
heres, with however a ius abstinendi, like a suus heresB. For wrongful
treatment of one in mancipio an actio iniuriarum would lie 9. Gaius also
tells us that an action lay on his contracts, against his holder, on the
same principles as in adrogatio, so that the holder was liable to the
extent of the property which would have been the bondsman's if he
had not gone into bondage10.

1 C. 8. 47. 10. pr. 2 See Desserteaux, Capitis Deminutio, 1. 233 sqq., for a full

but somewhat conjectural account of this institution. 3 He is not a slave but is in

an analogous position. The terminology can be compared with "in libertate," for one not
really free but in actual liberty; "in possessione," for one who holds a thing but has not
technical possession (6. 1. 9); "in servitute," for one wrongly held in apparent slavery (4.
6. 1. 1). Desserteaux (op. cit. 1.245) considers that "in mancipio" is used where it is
real, as in noxal surrender of a filius, and "in mancipii causa" where it is formal, as in
adoption. But see, e.g., G. 1. 135. 4 G. 1. 135. 5 Labeo held that they were, if

conceived after poleslas destroyed (G. 1. 135). But this, which was indeed rejected, proves
nothing for the other case. 6 G. 2. 86; Ulp. 24. 23, 24. 7 G. 1. 123. 8 G. 2. 160.
9 G. 1. 141. 10 G. 4. 80. But as he was alieni iuris before he could have nothing

except p. castrense which certainly did not go to his holder. The passage may be corrupt.
See post, § CXLI.

m] CIVIL BONDAGE 135

The relation might be ended by manumission, like that of a slave,
except that the restrictions of the /. Aelia Sentia and /. Fufia Caninia had
no application1, and he was an ingenuus, not a liberlinus2. Where the
bondage resulted from surrender by the paterfamilias in lieu of paying
damages for a wrong committed by thefilius, the bondsman was entitled,
at least in later classical law, to demand manumission as soon as, by his
labour, he had repaid the damage3. Further we are told by Gaius that
at the Census a bondsman could free himself, without consent of the
holder, by entering his name on the Census roll4. Whether this is ancient
or not we cannot tell : it did not apply, says Gaius, in the formal cases
or in noxal surrender, and these were the only surviving cases in his
time5, while the Census also was obsolete.

These rules no doubt represent different stages in the history of the
institution, but we cannot go into the controversies as to the source of
each one. There are other questions, some of which will arise in con-
nexion with capitis deminutio, but some can be taken here. Could a
bondsman be assigned by his holder? WTe know that he usually was
assigned back to his father in the process of emancipatio6, and though
this is an artificial proceeding, there seems no good reason to doubt that
he could be transferred in the ordinary way of business. Could a man
sell himself into bondage? There is nothing inherently improbable in
the idea ; if he could not, Roman Law was exceptional, for such a right
has existed in Jewish, Germanic, Greek, and many other systems7.
What is known of nexum seems to shew that a man could by the process
per aes et libram submit himself to the power of another, but a nexus is
not in mancipio8. A woman could sell herself into manus by a modified
form of mancipatio, but it was not actual mancipatio and she did not go
into bondage9. The liability of the holder for debts of the bondsman to
the extent of the property he brought with him, already noted and
considered later10, is unintelligible unless he was sui iuris, and so sold
himself, for otherwise he could have no property. But the passage is
probably corrupt. And there is no direct evidence of the possibility.

The subject of persons alieni iuris involves the consideration of
their power to bind themselves by contract. We have not considered
from this point of view the filiafamilias, the woman in manu and the
bondsman. Gaius tells us that they could not so bind themselves11 : it
is another question how long this state of things lasted. As manus and

1 G. 1. 138, 139. 2 This follows from the applications in adoptio, etc. 3 Coll.

2. 3. 4 G. 1. 140. 5 A five-year period is common in Roman Law, e.g. in tax-

farming contracts and in hiring of land. See also 5. 2. 9; 40. 12. 29. 1; 40. 15. 1. pr.;
C. Th. 5. 7. 2, etc. 6 Ante, § XLVH. 7 Leviticus, 25. 47; Pollock and Maitland,

Hist, of Eng. Law, 1. 12; Daremberg et Saglio, s.v. Servi. 8 Post, § CL. 9 Ante,

§ XLIII. 10 Post, § CXLI; G. 4. 80. Lenel, E. P. 406. 11 G. 3. 104.

136 CAPITIS DEMINUTIO [CH.

bondage disappeared soon after, the question arises practically only for
the filiafamilias. The better view seems to be that of Girard, who, in
view of the incapacity of a woman sui iuris to bind herself without the
auctoritas of her tutor, concludes that the disability of a woman alieni
iuris lasted throughout the classical age and so long as the tutela of
adult women lasted. But it was gone in Justinian's time1.

XLIX. CAPITIS DEMINUTIO. Before passing to persons sui iuris we
have to consider the principles of capitis deminutio. In dealing with
the law of persons we have adopted the method indicated by this con-
ception. Caput is civil capacity. Capitis deminutio is defined by Gaius
as prioris status permutatio2. It has in classical and later law three
degrees : maxima, loss of liberty, i.e. enslavement from any cause, in-
volving loss of civitas and family rights ; media or minor, loss of civitas
without loss of liberty, as by deportatio, or (perhaps) joining a Latin3
colony, involving also loss of family rights ; and minima, change of family
position (status hominis commutatur], of which the most salient character-
istic, or requirement, is that it involves a rupture of agnatic ties, leaving
liberty and civitas unaffected. Such cases are adoptio, adrogatio, entry
into manus, emancipation and entry into or manumission from civil
bondage4.

This account of the institution as it stood in the time of Gaius does
not tell us the meaning of the term or the history of the notion, which
connected matters (for the conception of capitis deminutio underwent
evolution) have been the subject of much controversy. The threefold
scheme is relatively late : in Cicero we hear only of capitis deminutio,
simply, and the name is in fact applied only to cases of what were later
capitis deminutio minima5, but his language elsewhere might be taken
to indicate that he would have put on one and the same level some
cases of what were later maxima and media*. Even in the Digest we
get in some texts a distinction into two classes, maior and minor, the
latter being what was usually called minima1. It seems probable that
early law knew of only one capitis deminutio, but whether that covered
all the three types of later law, or whether it applied only to cases in-
volving loss of civitas or only to such as left civitas intact, i.e. the later

1 Girard, Manuel, 475. He cites all the material texts, and for the later law com-
pares Inst. 4. 7. 7, and D. 14. 6. 9. 2. 2 G. 1. 159. 3 G. 1. 131, "iussu patris."
It is not clear that it was c. d. A Latin corning to Rome had a vote in the Comitia,
Mommsen, Staatsr. 3. 643; D.P.B. 6. 2. 267. 4 G. 1. 162, 163; Ulp. 11. 13; Inst. 1.16. 3.
The scheme in classical law is not symmetrical, Familia and Civitas are linked. No one
can have either without both and liberty too. But a man may have liberty without the
others. Probably in early times, none but cives were thought of as free for Roman Law.
See for references to principal literature, Girard, Manuel, 195, n. 3. 5 Topica, 18, 29.
6 Pro Caecina, 33, 96; De Domo, 29, 30 (77-79). 7 38. 16. 1. 4; 38. 17. 1. 8; Cuq
Man. 111. See also Desserteaux, Capitis Deminutio, 2. 1.

m] CAP IT IS DEMINUTIO 137

minima, is disputed. Not all the cases which were thought of as capitis
deminutio minima in classical law need necessarily have been so regarded
in earlier law, for the conception of the institution no doubt changed.
Status permutatio as a definition is certainly not primitive. The only
institution, recorded as a case of capitis deminutio minima, which is
certainly extremely ancient, is adrogatio1, and it is not clear that this
was early thought of as capitis deminutio2.

There is the same obscurity about the underlying conception of
capitis deminutio. On one view its essential is destruction of the perso-
nality, a view suggested by some texts which speak of it as a sort of civil
death3, but this does not really fit the facts4. On the other hand, the
conception of it as annihilation is consistent with the view5 that death is
mentioned as a mere loose comparison. On another view, which suits
the name better (especially in the not uncommon form capitis minutio6),
it is essentially a diminution of capacity7. It would follow that it oc-
curred only where the resulting position was wrorse, as in adrogatio, or
where in the process the subject was sold into quasi slavery. This would
account for such facts as the passage of vestal virgins from potestas
without capitis deminutio*. But it conflicts with rules of classical law,
e.g. that the children of adrogatus suffer capitis deminutio9, though they
undergo no process and take no worse position, which Savigny explains
as an error of Paul due to a false conception of capitis deminutio10, and
the rule that a woman going into manus suffers capitis deminutio, though
the process does not reduce her to quasi slavery, a rule which Savigny
would restrict to women sui iuris11. It conflicts also with the rule that
enfranchisement from civil bondage was a capitis deminutio12, a rule not
known in the time of Savigny. But these difficulties and others which
present themselves in connexion with the various opinions may be met
by the view that development, actually traceable in the scheme of

1 Its antiquity is vouched for by its religious character. 2 Thus while Desserteaux
(op. cit. 1. 57) thinks adrofjatio not to have been regarded as c. d. till the empire, Cohn
(cited, Desserteaux, ib.) thinks of it as one of the oldest. 3 G. 3. 101, 153, etc. 4 It

destroys the will, which death brings into operation, G. 2. 145, 146; Ulp. 23. 4; Inst. 2.
17. 4. Death destroys criminal and delictal liabilities which c. d. leaves unaffected (post,
§ cxcvi). 5 See Eisele, Beitrdge, 167 sqq. ; Desserteaux, op. cit. 2. 1. 129 sqq. Eisele

holds c. d. essentially a diminution, Desserteaux essentially a destruction, but both reject
the idea of death as more than an analogy. 6 4. 5. 1, 2; Ulp. 27. 5, etc. 7 Savigny,
System, 2. §§68 sqq.; Eisele, Beitrdge, 160 sqq. See D. 4. 5. 3, Paul. 8 Aul. Geli.

1. 12. 9. 9 4. 5. 3. pr. ; it may indeed be said that the children lose the position of sui
heredes. 10 System, 2. 479. He thinks it an expression of a later, not generally accepted,
view of c. d. as "familiae mutatio." See Eisele, Beitrdge, 215, who, adopting in general
Savigny's view, understands "placet" to express a personal " Belieben" of the jurist, but
this is hardly possible. 11 System, 2. 65. Eisele, op. cit. 200, leaves open the question
whether it applies to women sui iuris. Neither G. (1. 162) nor Ulp. (11. 13) expresses any
limitation. 12 G. 1. 162, 163.

138 CAP1T1S DEMINUTIO [CH.

capitis deminutiones (for while it may still be doubted whether there
existed originally one or two degrees, there clearly were not three) also
occurred in the fundamental conception of it. It may be that at the
beginning it meant extinction of gentile and therefore of civil right,
and that, so far as what came to be called capitis deminutio minima was
concerned, this conception was replaced by the notion offamiliae mutatio.
The distinction between maxima and media, which appears to be of the
beginning of the empire, though the immediate effects of the two are
the same, may be accounted for by the inveterate tendency to threefold
arrangements1, assisted by the separation of the conception of libertas
from that of civitas, and the obvious fact that the man enslaved is really
extinct, while the other may still exist, as a Latin or peregrine, and be
a factor in commercial relations2.

These considerations may explain the peculiarities of the capitis
deminutio resulting from the first or second sale of a filiusfamilias. It is
clear that it is a deminutio3, but its characteristics are exceptional, ac-
cording to Gaius. On manumission the subject reverts to potestas : the
minutio and its effects are wiped out. Thus it is provisional. Again he
tells us that each sale and each manumission is a capitis deminutio*,
but he says also that the whole process is a capitis deminutio5. He tells
us that children conceived during the bondage are in the potestas of the
old paterfamilias* and also that all capitis deminutio destroys the
agnatic tie7. Either this is incorrect for that case, which is however
that in connexion with which the statement is made, or children may
be born into an agnatic group to which the father may not have belonged
at any time between the conception and the birth. If the holder freed
the bondsman after the third sale, the manumitter succeeded at civil
law to the exclusion of the father8, whose rights were destroyed. If,
after the first sale, the father died, and the holder then freed him, he
succeeded, as a postumus, to his own father9. The manumitter having no
right to succeed to him, the rights of the quasi patron were thus non-
existent10. These conflicting rules do not represent any coherent concep-

1 Goudy, Trichotomy in Roman Law, 50 sqq. 2 Eisele, accepting the view that c. d,
is essentially diminution (pp. 163 sqq.), accepts also in general the notion of incompati-
bility (derived from Cohn, Zur Lehre von der C. D.), i.e. the effects of c. d. are in general
due to the incompatibility of the old right or liability with the new position (op. cit. 185
sqq.). 3 G. 1. 162. 4 Ibid. 5 Ibid, "quod accidit in his qui adoptantur."

6 G. 1. 135. 7 G. 1. 163. 8 G. Ep. 1. 163; Inst. 3. 9. 3. 9 G. 3. 6; Ulp.

23. 3; Coll. 16. 3. 7. 10 Even the view of Kniep (Der Bechtsgelekrte Gains, 48; Gai

Comm. Prim. 270) that the statement of Gaius (1. 162) that each sale and manumissio is
a c. d. is a later addition, that the sale and manumission together constitute a c. d., and
that in the case of a son Gaius does not mean each sale but only the third, does not mend
the matter. The son released would not be, in effect, a postumus as he was (n. 9), but would
have been a suus all the time. And one sold a third time but not yet released would not
have suffered c. d. at all, though potestas was destroyed.

m] CAP1T1S DEM IX UT 10 139

tion, and it may be supposed that they represent a state of things in
which the old conception of capitis deminutio, whatever it was, is breaking
down and rules belonging to the older ideas are retained side by side
with others which belong to the conception of it as (at least in the case
of minima) a familiae mutatio simply, a conception not fully reached
till the later classical age1.

The obscurity of the early conceptions gives rise to the question
whether a Latin suffered capitis deminutio on attaining Roman citizen-
ship. The only evidence seems to be a passage quoted by Girard2 from
the I. Salpensana, which provides that those who became Roman cives
in the colony, e.g. through magistracy, should remain in the manus,
potestas or bondage in which they were, if their holder also acquired
civitas and should not lose any rights they had as patrons or patroni
liberi3. These are express provisions to avoid results which are exactly
those of a capitis deminutio. One of the provisions seems to be corrupt,
but they testify to a close similarity between the institutions of the
colony and those of Rome4 (apart from express adoption of Roman
rules, also evidenced). The accounts of capitis deminutio do not mention
this case5, nor do those dealing with attainment of civitas by Latins,
which are fairly full6, say anything about capitis deminutio. In any
case certain results of capitis deminutio did not occur7.

L. In considering the effects of capitis deminutio it is necessary to
distinguish between those which are really the effect of the deminutio,
however conceived, and those which are merely accompaniments, but
result not from the deminutio but from the juristic event of which it
also is a result. It may be doubted indeed whether the distinction can
be clearly made out8. The following however are indicated in the texts
as results of the capitis deminutio itself.

(i) Destruction of agnatic ties and potestas9. This is the most striking
result, and might, in classical law, almost serve for a definition, but
for the fact that vestal virgins and flamines diales passed out of the

1 So Desserteaux, Capitis Dem. 1. 37, 239, etc., but his argument, in attempting to
shew that with his view of the evolution the doctrines can be made wholly coherent, seems
to require that Gaius shall have laid down rules which had ceased to be true a century
earlier. 2 Manuel, 197, n. 1. 3 Lex Salpensana, xxn, xxm, Girard, Textes, 109, 110.
4 The text seems to attribute tutoris optio to males — if this is so it is an error or a rule
different from that of Rome. 5 G. 1. 153-163; Ulp. 11. 9-13. 6 G. 1. 28-35; 1.

67 sqq. ; Ulp. 3. 1-6. 7 The magistrate cannot have dropped his assets and liabilities,

any more than a Roman would who passed voluntarily to a Latin colony. 8 It is

indeed maintained by Desserteaux (op. tit.) that the effects are never those of the c. d.
but of the juristic act concerned. The c. d. is a mere descriptive term (2. 1. 60, 93, 97, etc.),
but when in the empire certain juristic acts lost characteristics which had produced
these effects, while the effects remained, it became the custom to attribute these effects
to the c. d. as their cause (ib. 98, 301, etc.). The greater part of 2. 1 aims at demonstrating
this thesis. 9 G. 1. 163; 3. 21, etc.; Inst. 3. 5. 1, etc.

140 CAPIT1S DEMINUTIO [en.

potestas without capitis deminutio1. Cognatic ties were not affected.
In practice this affected only capitis deminutio minima, for enslavement,
being iuris gentium, destroyed cognation, and a deportatus, being a
peregrine, sine civitate certa, could not take under a will or on intestacy 2,
Though potestas and manus were destroyed, marriage, being iuris
gentium, was not ended except by maxima capitis deminutio, though
media converted it to nuptiae non iustae3. Ordinary marriage was in no
way affected by capitis deminutio minima, but, if the wife was in manu,
adrogation would transfer the manus to the new paterfamilias, while
emancipation and adoptio would apparently leave the wife in the old
familia.

(ii) Destruction of life interests (ususfructus, usus)*. The effect of
this, for capitis deminutio minima, was evaded in classical law by devices
for renewal of the right so destroyed, and in Justinian's law the rule no
longer applied to this case5.

(iii) Avoidance of a will previously made. This is laid down gener-
ally6, but the existence of peculium castrense, in regard to which afilius
was regarded as a paterfamilias and had the power of testation, caused
some difficulty. It was clear in later classical law that his will dealing
with this remained valid7. The effect of the general rule was modified
by the praetor who gave bonorum possessio notwithstanding the capitis
deminutio, if the testator was capax when he made the will and at
death, provided the deminutio was not the effect of his own voluntary
act8.

(iv) Transfer of the assets of the minutus. All passed from him, but
the ultimate destination of those not destroyed depended on the rules
of each case, which have nothing to do with the minutio*. There were
however exceptions. A civis passing to a Latin colony may have
suffered capitis deminutio. If this was iussu patris he had indeed no
assets to lose10, but a paterfamilias who so passed over did not lose them :
he sometimes did it so as to avoid a fine. Where a filiusfamilias was
emancipated or adopted, his peculium castrense and quasi castrense went

1 Ante, § XLVII. 2 G. 2. 110; Inst. 1. 16. 6; D. 38. 10. 4. 11. 3 Ante, § xxxix. See
G. 1. 128. 4 7. 4. 1. pr. Not the later developed habitatio and operae servorum, post, § xcvi.
5 Inst. 2. 4. 3; C. 3. 33. 16. 2. 6 G. 2. 145, 146; Ulp. 23. 4; Inst. 2. 17. 4. 7 28. 3-
6. 13; 37. 11. 1. 8. Eisele however, Beitrage, 195 sqq., attributes this to Justinian. No
difficulty in case of an actual miles: his will needs no form (post, § cxxvi), and is therefore
valid ex nova voluntate, 29. 1. 22; Inst. 2. 11. 5. 8 37. 11. 11. 2. Testator was adrogated

and later again became sui iuris. (Other reliefs in case of maior capitis deminutio, post,
§ en.) In the time of Gaius the bonorum possessio was sine re, later it became cum re,
post, § cxxxix. 9 As to adrogatio, post, § CXLI; adoptio, ante, § XLIV; enslavement,
ante, § xxrv. On deportatio the property went to the State as part of the condemnatio,
and, though something might be left to him in compassion, he had no rights against his
old debtors, ante, § xxxvi. 10 G. 1. 131.

nr] CAPIT1S DEMINUTIO 141

with him: the capitis deminutio did not affect them1. The right of an
adstipulator, by reason of its intensely personal nature2, was extinguished
by a capitis deminutio, and the same is true of rights under a pending
indicium legitimum3. On the dominant view of classical lawyers partner-
ship was ordinarily ended by capitis deminutio minima, but at some time,
probably before Justinian, it was treated as continuing and not a new
partnership4. Patronal rights were in general ended. In maxima or
media the rights of liberi patroni appear to have taken their place5, but
these rights being independent this is rather extinction than transfer.
On adrogation they passed to the new paterfamilias, except that any
operae, due under iusiurandum tiberti, ceased, and reverentia was
still due to the adrogatus6. If the libertus suffered capitis deminutio
maxima or media the patronal relation was destroyed, if minima, the
patron's right was not affected, subject to restitutio natalium7. Tutela
was of course ended if the ward suffered capitis deminutio, but was not
affected by capitis deminutio minima of the tutor except in two cases.
Tutela legitima was ended as it was based on a right of succession, itself
destroyed 8, and tutela cessicia was also destroyed 9. Against destruction
of rights of succession by capitis deminutio maxima or media there
might be relief in case of restoration10, and minima had little effect in
the praetorian scheme of succession, except where the minutus was
transferred to, and was still in, another family11. The rule itself did not
apply to the reciprocal rights of succession between mother and child
introduced in the empire12. Further, a woman's claim for the recovery
of her dos was not affected by her capitis deminutio, e.g. if she was
emancipated by her paterfamilias13.

(v) Destruction of liabilities, other than criminal or delictal14. This

1 Post, § xcix. The bona adventicia of late law were regulated by legislation which
did not give any operation to capitis deminutio as such. 2 G. 3. 114, post, §§ cxxm, CLV.
3 G. 3. 83. As to the nature of indicia legitima, post, § ccxxxu. 4 G. 3. 153; D. 17. 2.
58.2; h. t. 65. 11, 12. See Eisele, Beitrdge, 171, 190 sqq.; Desserteaux, op. cit. 2. 169 sqq.
5 37. 14. 4, 21. 6 G. 3. 83; D. 2. 4. 10. 2. 7 Ante, § xxxn. 8 G. 1. 158;

post, § cxxix. Tutela is a publicum munus and like other such is not affected, 4. 5. 6, 7.
9 G. 1. 170. 10 As to restoration from slavery, see Buckland, Slavery, 410 sqq.

11 Post, § cxxx. 12 4. 5. 7. pr. ; 38. 17. 1. 8. A wife emancipated did not lose her claim

for dos, 4. 5. 8, 9. 13 4. 5. 8, 9 ; ante, § XL. 14 4. 5. 2. 3. The discharge from other obliga-
tions left a naturalis obligatio, post, § CLXXXIX. It has been said (Senn, N.R.H. 37. 191) that
there was a further exception. In a group of actions, all bonaefidei and all infaming (pro socio,
depositi, mandati, tutelae) the claim survived capitis deminutio minima. The texts cited
are 17. 1. 61; 17. 2. 58. 2; 16. 3. 21. pr.; 27. 3. 4. 1; h. t. 11. These scarcely establish the
proposition. All are cases in which the minutus continues performance of the contract,
etc., after the minutio, and they shew merely that in such a case the thing must be treated
as a whole. They are closely analogous to the case of continued administration by a
manumitted slave in which a similar rule is laid down by some jurists (3. 5. 16-17), though
it is admitted that a slave cannot be sued after freedom on transactions during slavery
(3. 5. 16; C. 4. 14, passim). This is clearly brought out in 16. 3. 21 where the cases of the

142 CAP1TIS DEMINUTIO [CH. m

exception, retained as being necessary, has its origin in the fact that
these remedies are substitutes for revenge1, the desire for which is not
affected by the minutio. The extinction of other liabilities, whatever its
origin, obviously produced very unfair results and was relieved against
in many ways. In the case of penal slavery or forfeiture the fiscus took
only the nett balance: it was liable to creditors and could sue debtors2.
The praetor applied similar rules, giving utiles actiones at least against
the holder where on capitis deminutio maxima or media, the property
passed into private hands3.

In the case of adrogatio and manus there were remedies which can
best be considered in dealing with universal succession4. In that of
emancipatio, liabilities in respect ofpeculium castrense and quasi castrense
were not affected. Apart from these there was a difficulty. A filius-
familias of full age was capable of civil obligatio, but this was extin-
guished by the capitis deminutio. The praetor gave an action, but as the
transaction may have concerned the father's affairs only, and, in any
case, the assets in connexion with which it was gone through did not
ordinarily pass, it was given only causa cognita5, and subject to bene-
ficium competentiae6.

slave and son are treated side by side. In the case of deposit it is simply for return of the
thing, which the depositee still holds. So in 17. 1. 61, what the suggested doctrine requires
is that if performance under the mandate is not continued the mandatarius can be sued
for what was done before the minutio; but this is not shewn.

1 Post, § cxcvi. 2 48. 20. 4; h. t. 10. pr.; 49. 14. 6; h. t. 21. 3 4. 5. 2. pr.

If a man enslaved was afterwards released by the State he did not revert to his old
rights and liabilities, apart from express restitutio, which might be more or less complete,
44. 7. 30; C. 9. 51. 4; h. t. 5. In the case of deportatio, if the estate was insufficient the
creditors had utiles aciiones against the deportatus by which later acquired property could
be made available, ante, § xxxvi. 4 Post, § cxii. 5 14. 5. 2. 6 14. 5. 2. pr.

See Lenel, E. P. 269. If the son had inherited, the action was in solidum, and the creditor
might choose between this action and an action against him for his share of the debt as
heres, 14. 5. 4. pr. Against the heres of the minutus it was always in solidum, h. t. 4. 3. But
in both these cases it would seem to be still given only causa cognita.

CHAPTER IV

THE LAW OF PERSONS (con*.). THE LAW OF THE
FAMILY (eon*.). PERSONS SUI IURIS

LI. Persons sui iuris, Tutela Impuberum, p. 143; Tutela testamentaria, 144; LII. Tutela
Legitima, 145; Tutela Fiduciaria, 147; LIII. Tutela a magistrate dativa, 148; LIV. Nature
of Tutela, 150; Exemptions, 151; Restrictions on Appointment, 152; LV. Functions of
Tutor, 154; Administratio, 155; LVI. Auctoritatis interpositio, 158; LVII.Closeof Tutela, 160;
Removal for misconduct, crimen suspecti tutoris, 161; LVIII. Plurality of tutores, 162;
LIX. Remedies, Actio de rationibus distrahendis, 164; Actio tutelae, ib. ; LX. Tutela perpetua
mulierum, 166; Devices for change of tutor, 168; Difference of functions, ib. ; LXI. Cura,
169; Cura fur iosi, ib.; Prodigi, 170; LXI1. Cura minoris, 171; Other cases of cura, 174;
LXIII. Juristic Persons, ib. ; LXIV. The State and the Emperor, the Fiscus, 176;
Municipalities. 177; Private corporations, 178; LXV. The Church and Piae Causae, 179.

LI. In dealing with persons sui iuris we have to consider them only
so far as they were subject to disabilities. Owing to defects of various
kinds they might be under guardianship, and this might be either
tutela or cura (curatio). Tutela, which is the more important, might be
over males or females on account of their youth, or, in classical law,
over women of any age on account of their sex1.

TUTELA O^IMPUBERES. The governing principle was that every person
sui iuris under puberty must have a tutor, at least if he had property or
expectations2. Though guardianship is no doubt a universal notion, it
had in Rome forms and technicalities not found elsewhere, and as it
was provided for in the XII Tables it was regarded as a civil law institu-
tion3. It seems to have been originally conceived of as an artificial ex-
tension of the potestas till the child was capable of founding a potestas
for himself, a notion which led to perpetual tutela in the case of women,
since they could never have potestas or sui heredes. There was a very
practical reason for this way of regulating the matter. It is clear that
originally tutela was not so much in the interest of the child as in that
of the guardian. The tutor was the person who would take the property
if the child died impubes : ubi emolumentum successionis ibi onus tutelae*,
in which expression the word onus would have been represented in early
law by ius. So soon as a child reached the age of puberty he might have

1 G. 1. 142-144; Inst. 1. 13. pr. 2 See C. 5. 31. 2. 3 Inst. 1. 13. 1; D. 26. 1. 1. pr.

The institution existed in Latin colonies. The 1. Salpensana, c. xxix(Bruns, 1. 146; Girard,
Textes, 112), contains provisions as to their appointment by local magistrates to Latin
members of the community, and c. xxn contains provisions as to tutoris optio (post, § LX).
Schol. Sin. 16 (Girard, Textes, 614) speaks of a brother as tutor of an irnpaben who ha.s
been made a member of a Latin colony. 4 Inst. 1. 17. pr. ; C. 5. 30. 5. 3.

144 TUTELA TESTAMENT ARIA [CH.

children : the interest of his relatives in the property would cease, and
accordingly the tutela ceased. By the close of the republic this view of
tutela had been superseded by the more modern conception of guardian-
ship1. But the old view remains reflected in the fundamental rules of
the institution. The rule, out of harmony with the new conception, that
tutela of children ended at puberty, was retained but supplemented by
such devices as restitutio in integrum and curatio2, which gave similar
but less effective protection. The perpetual tutela of women was not
abolished when its absurdity became apparent, but types of tutor
were invented who could not refuse their auctoritas3.

Justinian, following Gains, classifies tutores according to the
mode of appointment : testamentarii, legitimi, fiduciarii, a magistratu
dativi. The order is not historical, for legitimi were certainly the
oldest, but tutela by will is given priority as being the most usual and
important4.

TUTELA TESTAMENTAPJA. The XII Tables authorised & paterfamilias
to appoint tutors by his will to sui heredes impuberes, i.e. those impuberes
who become sui iuris by his death5. The practice of the jurists extended
this topostumi, i.e. those who were not sui heredes when the will was made
but became such afterwards, e.g. a child born after the will was made, or
even after the testator's death, or grandchildren who became sui heredes
by the death of the father after the grandfather's will was made. Jus-
tinian defines these as those who are in such a position that if they were
born in the lifetime of the testator they would be sui heredes6. This is,
as the text says, only one of the many cases in which postumi are treated
as already born. When, at the beginning of the empire, codicils were
admitted, the rule appeared that a tutor could be appointed by codicil
if the codicil was confirmed, actually or by anticipation, by a will7.
Classical law required formal words, e.g., Titium tutorem do, or T. tutor
esto8. In later law the appointment might be in Greek and under

1 "Ad tuendum eum," Inst. 1. 13. 1. It is as old as Servius, D. 26. 1. 1. pr. 2 Post,
§ LXII. 3 Post, § LX. 4 G. 1. 188, notes disagreements on classification. Fiduciarii
(for whom the Digest has no separate title) seem to have been, for some jurists, a mere
variety of legitimi. G. classifies tutores by the immediate appointing authority. Ulp.
(I'l. 2) classifies by the ultimate legislative authority on which the appointment rests:
legitimi, senatusconsultis constituti, moribus introducti. The first group covers all the
ordinary types, all of which rest ultimately on lex. The second consists of special cases
provided by sc., e.g. substitute tutor for a woman in case of emergency. The third deals
with special tutores praetoriae appointed where litigation arose between tutor and ward,
a practice which seems to have grown up without legislative sanction: it does not appear
in the Edict. 5 Ulp. 11. 14, 15. 6 Inst. 1. 13. 4; G. 1. 146. This way of stating the
matter is more satisfactory than that of Gaius in 1. 147 (26. 2. 1. 1), and Q. Mucius (50. 17.
73. 1 ). Strictly these would validate appointment by avus where pater survived him. They
are stating cases in which the appointment may be effective. The Inst. state the case in
which it will be effective. 7 26. 2. 3. pr.; post, § cxxvi. 8 G. 1. 149; Vat. Fr. 229.

iv] TUTELA TESTAMENTARIA 145

Justinian there were no rules of form1. The tutor must be a persona
certa2, and it must be clear to which child or children he was appointed3.
The appointment might be conditional or from or to a certain time-.
Any one might be appointed with whom there was testamenti factio.
except that the I. Junia expressly excluded Junian Latins5. Thus a
man might appoint his slave, and, at least in later law, this implied a
gift of freedom6. He might appoint another man's slave, cum liber erit,
and if these words were omitted they would be implied 7. The appoint-
ment might be to any child, even though he was disinherited8.

In the foregoing cases the appointment was valid at civil law, but
there were others in which, though the appointment was in some way
defective, it would be confirmed by the praetor as a matter of course and
the tutor considered as a testamentary tutor, the so-called tutela testa-
mentaria imperfecta, e.g. where the appointment was in an unconfirmed
codicil or informal writing9, or in a will which did not take effect10, or
informal words were used, or he was called curator11, or where the appoint-
ment was to a son not in potestas (emancipated or by a concubina)12,
provided in these last cases that property was left to him. If the praetor
was satisfied that the father had died without changing his mind the
confirmation went with no enquiry as to fitness13. In other cases the
appointment might be confirmed after enquiry, e.g. where an extraneus
appointed, or a patron to his libertus1*, provided in both cases that the
impubes wTas instituted and had no other provision. But these were
really appointments by the magistrate15.

LII. TUTELA LEGIT IMA. Though this was said to be based on the XII
Tables16, and therefore called legitima, it was probably much older: it
represented the primitive notion of tutela, as a right in potential suc-
cessors to look after the estate. The cases of legitima tutela were the
following.

1 C. 5. 28. 8. In classical law it was doubted if it could be "post mortem heredis" or
before the institutio heredi-s, G. 2. 234, post, § civ. 2 26. 2. 20; G. 2. 240. 3 Vat. Fr.
229; D. 26. 2. 23, 30. 4 26. 2. 8. 2. 5 26. 2. 21 ; Ulp. 11.16. 6 Ante, § xxvn.

7 It might even imply a fideicommissary gift, C. 7. 4. 10; see 26. 2. 10. 4, 32. 2. But this
may be due to Justinian, Eisele, Z.S.S. 11. 27. It is possible that appointment of a servus
alienus "cum liber erit" needed magisterial confirmation, as did the appointment of one
freed by fideicommissum, 26. 2. 28. 1. It is likely that similar rules applied in the case of
other temporary disabilities, 26. 2. 10. 3; as to captivus, G. 1. 187. 8 26. 2. 4. 9 26.
3.1.1,10. 10 h. t. 3. 11 h. t. 1. 1, 6. 12 26. 3. 7; C. 5. 29. 4. 13 26. 3. 8. No
doubt a praetorian will was in the same position. 14 26. 2. 28. 2; 26. 3. 5. 15 Thus
there might be need for security (post, § LV). The texts on appointment by the mother
are not clear (see 26. 2. 4; 26. 3. 2; 31. 69. 2; C. 5. 28. 4; C. 5. 29. 1). Apparently there
was always an enquiry as to fitness. If this was clear and the mother had instituted the
child the tutela was in effect, as it seems, testamentary. But if there was no institution
of the child, it was in effect an appointment by the magistrate. 16 26. 4. 1. pr., 5.

pr.; G. 1. 155.

B. E. L. 10

146 TUTELA LEGITIMA [CH.

Agnates. The XII Tables expressly provided that impuberes sui
iuris were in the tutela of their agnates if there was no testamentary
tutor. As this was in view of the right of succession, the tutores were
those who would succeed, the proximi1. If however the nearest agnate
was a woman, e.g. a sister, incapable of tutela, the tutela was in the next2,
who would normally be the tutor of the woman also. If the nearest
agnate died, or was capite minutus, the tutela passed to the next3. If
there were several qualified agnates in the same degree, e.g. brothers,
or even an uncle and nephew, of the ward, they shared the tutela4.
Changes in the law of succession led, but only in the later empire, to
corresponding extensions of legitima tutela. In A.D. 498 emancipated
brothers shared in the tutela, though no longer agnates5. Justinian in a
novel6 gave the tutela to the next of kin whether agnatic or cognatic.
It should be added that in default of agnates there was a gentile tutela
in early law, but it cannot be traced beyond the beginning of the empire,
when gentile succession had already disappeared7.

Legitima tutela arose only if there was no testamentary tutor8, a rule
construed widely, with a tendency to exclusion of the legitimus. Thus the
legitimus was not admitted if there was a possibility of a testamentary
tutor, e.g. one was appointed conditionally or ex die9, or by a will not yet
certain to operate10, or the tutor appointed was under age, or captive or
insane or deaf or dumbu, or was excused from serving, or removed for
misconduct12. But if the testamentary tutor died or lost citizenship, this
admitted the legitimus tutor13.

Patronus. The patron had legitima tutela not by express provision of
the XII Tables, but by juristic inference from the right of succession
given to him by the statute14. Here too the tutela in general followed
the succession. Of several patrons, as all succeeded, all were tutores15,
and if some were dead or capite minuti the others as they took the whole
succession took the tutela16. If there had been manumission by a boni-
tary owner, and iteratio by the quiritary owner the latter was tutor,
though the former took the bona17. A patron was tutor even though the

1 26. 4. 1; h. t. 9; G. 1. 164; Inst. 1. 16. 7. 2 26. 4. 1. 1, and the same is no

doubt true if for any other reason the nearest agnate is incapable of tutela. Inst. 3. 2. 7.
But this would be important only in later law. 3 26. 4. 2, 3. 9. 4 26. 4. 8, 9.

5 C. 5. 30. 4. 6 Nov. 118. 5. The tutela given to mothers in certain cases in later law
(post, § LIV) does not seem to have been legitima till very late. 7 See the Laudatio

Turiae, Girard, Texles, 814. 8 G. 1. 155; Inst. 1. 15. pr. 9 26. 2. 10. pr., 11. pr.

10 Inst. 1. 20. 1. 11 26. 1. 17; Inst. 1. 20. 2. 12 26. 2. 11. 1, 2. Where a woman

frees there is no legitima tutela, for the patrona cannot act and liberi patronae are not
1. patroni. G. 1. 195. In 26. 4. 1. 1 the woman was a joint patron. 13 All, if there

were several, not if merely some of them did, 26. 2. 11. 4. 14 G. 1. 165; D. 26. 4. 3. pr.;
Inst. 1. 17. pr. 15 26. 4. 3, 4. 16 h. t. 3. 5. If one is a woman the others are the
tutors, h. t. 3. 4. 17 One freed by his bonitary owner was a Latin. The right to bona

iv] TUT EL A LEGIT IMA 147

manumission was under a trust, for he had the succession1, but if
deprived of the libertus for wrongly impeding the freedom he was, of
course, not tutor2. In this case of tutela there is no question of exclusion
by a testamentary tutor.

Liberi patroni. Here too the tutela was a juristic construction from
the independent right of succession. The principles are as in the last
case3. Thus the children shared it4 and survivors held it to the exclusion
of the children of deceased liberi5.

Par ens manumissor. Where an emancipating father received back
the son in bondage, and then freed him, he was in a position very like
that of patron. He was a quasi-patron, with the same right of suc-
cession. Accordingly Justinian mentions him in stating the different
cases of legitima tutela6. But neither Gains nor Ulpian does so in the
enumeration7, though the former calls him legitimus in one passage8 and
in another says that he is a fiduciary tutor who "et legitimus habeatur9,"
and Ulpian in the Digest says that he "vicem legitimi tutoris obtinet10."
He was essentially a fiduciary tutor since he derived his right from the
pater fiduciarius to whom the son was sold and from whom he was
reacquired for the purpose of manumission. But, as Gains says, he was
like a patron and was to be honoured in the same way11. Thus the
classical lawyers gave him honorary rank as a legitimus tutor distinct
from patron, one practical result being that he did not necessarily give
security12. In this case there could be no joint tutor.

TUTELA FIDUCIARIA. As the name shews this was tutela arising
from a trust. There were two types.

Extraneus manumissor. If, in the process of emancipation, the
purchaser in the third sale freed the son, instead of, as was usually
arranged, selling him back to the par ens to free13, the manumitter
became his quasi-patron and had at civil law the same right of succession
as the par ens (though the praetor postponed him to near relatives14).
Accordingly he had tutela, but he \vas always regarded as fiduciary
tutor, not as legitimus'15. Justinian's change in the form of emancipation
prevented this case from arising16.

was with the manumitter, but not at civil law. By an express provision of the 1. lunia,
the tutela was in any case with the quiritary owner, G. 1. 167; Ulp. 11. 19.

1 26. 4. 3. 1, 2. 2 26. 4. 3. 3, ante, § xxxi. 3 Arg. 26. 4. 3. pr. 4 h. t. 3. 6.
5 h. t. 3. 7. A woman was excluded: if the only living child was a daughter, the tutela
went to nepotes, 26. 4. 1. 1. If the patron had "assigned" the libertus to a daughter (post,
§ CXLI) though she took the whole succession her brothers who took nothing were tutores,
26. 4. 1. 3. 6 Inst. 1. 18. 7 Ulp. 11. 3; G. 1. 166. Modern editors usually insert a

long passage making Gaius mention him, but this does not seem justified. 8 G. 1. 175.
9 G. 1. 172, cf. 1. 168. 10 26. 4. 3. 10. 11 G. 1. 172. 12 Post, § LV. 13 A
§ XLVH. 14 Coll. 16. 9. 2; post, § cxxxv. 15 G. 1. 166, Inst, 1. 19. It was of

course possible to employ a woman or two persons for the purpose of the sale but it is
unlikely that this would happen. 16 Ante, § XLVII.

10—2

148 TUTELA FIDUCIARIA [CH.

Children of the parens manumissor. This case would not arise where
the final manumission had not been by the father. It is always called
fiduciary1. Justinian, noticing that the tutela of patron and pater is
legitima and that of liberi patroni also is, while that of liberi patris manu-
missoris is not, explains this by the proposition that whereas in the case
of liberi patroni the slave, if the manumission had not occurred, would
have been in the control of the liberi and therefore falls into their tutela,
the brother if he had not been emancipated would not have passed into
the control of his brothers and thus not into their tutela, which is thus
not legitima but fiduciary. The reasoning is very defective, and the
premises are not correct. A grandson would have fallen into the son's
potestas and yet the tutela was fiduciary. A slave would not have fallen
into the control of a son who had been disinherited, but did fall into his
legitima tutela, as the disherison did not affect his potential right of
succession to the libertus, which was independently provided for by the
XII Tables and not simply inherited from the father2. And the tutela is
made to rest on control, which is not its basis : it rests on right of suc-
cession. Agnates could never have had control, but they were legitimi
tutores. The argument does not shew why it was fiduciary: there is no
fiducia, and the liberi do not take it voluntarily as Gaius says fiduciary
tutors do3. The true explanation seems to lie in the equivocal nature of
the tutela of the parens : this was primarily fiduciary and is in some sort
inherited by his children. We do not indeed know that disinherited
children were excluded. The case is rarely mentioned and was probably
not common4. It was confined to males, and from the language of
Justinian it is likely that surviving children held it to the exclusion of
grandchildren, as in the case of liberi patroni5, though the analogy may
be a false one, as there seems to be no evidence of any civil law right of
succession6.

LIII. TUTELA A MAGISTRATU DATIVA. If there was no tutor under
any of the earlier provisions, one was appointed by the magistrate7. Such
an appointment was, however, not an exercise of imperium or of juris-
dictio : it was not a normal magisterial function at all, and existed only
so far as it was expressly created by legislation8. It involved the recog-
nition of a change in the conception of tutela, and it appeared early. A
lex Atilia, of unknown but early date9, provided for the appointment of

1 G. 1. 175; Inst, 1. 19. 2 Post, § cxxxiv. 3 G. 1. 172. 4 A text attri-

buted to Gaius (26. 1. 16. 1) says that tutela never passes by inheritance to another and
adds, "sedad liberos virilis sexus perfectae aetalis descendunt legitimae, ceterae non descen-
dunt." The words perfectae aetatis are certainly due to Justinian and it is possible that the
whole clause is. 5 Inst. 1. 19; see also G. 1. 175. 6 The name fiduciaria survives

in Justinian's law though there is now nofiducia, even inherited. 7 G. 1. 185; Ulp. 11.
18; Inst. 1. 20. pr. 8 26. 1. 6. 2. 9 See Girard, Manuel, 210.

iv] TUTELA A MAGISTRATU DATIVA 149

tutores in Rome by the praetor and the majority of the tribunes, and a
lex Titia, or lulia et Titia, perhaps two laws, of the end of the republic,
provided for the appointment in the provinces by the praeses. Gaius
and Ulpian1 both speak of this as the existing system, but literary
evidence shews that Claudius2 allowed it to be done by the Consul
extra ordinem, and it seems that this became the usual method3.
M. Aurelius and Verus transferred it to a new official, the praetor tute-
laris^. There was other change and there is some obscurity, especially
as to Italy outside Rome5. In later law it was the duty of the praefectus
urbis or the praetor tutelaris, at Rome, secundum suain jurisdictionem6,
which presumably means that the former dealt with cases from the
higher classes. In the provinces, which now included all the territory
but the capitals, appointments were by the praeses7, or, where the estate
was small (under Justinian, under 500 solidi), by local magistrates,
needing however, till Justinian, authorisation by the praeses6. In all
these cases except that of appointment by local authorities there was
an enquiry as to fitness, replaced in the last case by the taking of
security9.

The cases of application of this tutela follow from what has been
said. There might be none of the other tutores, or those that existed
might be disqualified or excused or removed10. A testamentary tutor
might be appointed conditionally or ex die or might at the moment be
a captivusn. In the case of temporary excuse a tut or might be appointed,
but in later law it seems to have been usual to appoint a curator in such
cases, and a tutor only if actual auctoritas to some formal act was wanted.
Many texts in the Digest seem to have been altered to express the new
system12.

Ulpian tells us that such an appointment could not be conditional13,
and Papinian that it could not be in diemu, restrictions which seem to be
due to the fact that it was done in court, pro tribunali, and not de piano15.

1 G. 1. 183, 185, 195; Ulp. 11. 18. 2 Suetonius, Claudius, 23. 3 See Inst, 1.

20. 3. 4 Vita M. Aurelii, 10. 5 It is usually held that the I. Atilia applied to

Italy as well as Rome, and the language of Ulpian (11. 18) seems to imply that though
"Rornae tantum locum habet" it left only the provinces to be provided for. But see
Karlowa, RRg. 2. 285 sqq. As to the rules in the early Empire, for Italy, see Girard,
Manuel, 211. 6 Inst. 1. 20. 4. 7 It seems that persons interested might nominate

fit persons to be appointed and the praeses might receive names from the municipal
magistrates in cases where these could not themselves appoint (27. 7. rub. ; 27. 8. 1. 3, 10).
8 Inst. 1. 20. 4,5. 9 Post, §LV. 10 G. 1. 182, 186; Ulp. 11. 23. 11 26. 1. 17; Inst. 1. 20. 2.
12 E.g., 26. 5. 7, 15; 27. 1. 28. 2; where litigation arose, by legis actio, between ward and
tutor, a special tutor was appointed, called tutor praeforius, and when legis actio disappeared
the same rule was applied in all legitima indicia (post, § ccxxxn), the tutor being appointed
by the urban praetor, not the praetor tutelaris. Under Justinian it is a curator, G. 1. 184;
Inst. 1. 21. 3. Post, § i.xi. 13 26. 1. 6. 1; 50. 17. 77. 14 50. 17. 77. 15 26. 3. 7. 1.

150 TUTELA: EXEMPTIONS [CH.

Any relative or friend could take steps to have a tutor appointed1,
and if these failed to do so, it was open to creditors and others interested
to give them notice to apply and, in default, themselves to apply to
the magistrate2. In some cases there was a duty to apply. Thus liberti,
if they did not apply for a tutor to be appointed to their patron's child,
were punishable as for failure in obsequium3. Mothers were bound to
apply if necessary, and to take pains to offer suitable tutores on penalty
of being struck out of the list of successors on intestacy, unless they
had some grounds of excuse4.

LIV. Tutela was a publicum munus5 and therefore anyone duly
appointed was bound to serve unless disqualified or excused. To this
there were in earlier law two exceptions which had disappeared under
Justinian. Ulpian says that a testamentary tutor who "abdicates,"
which he explains as meaning " dicere nolle se tutorem esse" ceases to hold
the office6. But there are texts of Ulpian himself, in the Vatican Frag-
ments7, and thus not altered by Justinian, which shew the testamentary
tutor as bound, subject to excuse like others, and the same rule appears
in the Digest8. It may be that the rule was changed in Ulpian's time,
or that the right to abdicate was not absolute, or, more probably, that
it applied only to tutela of adult women, since it is mentioned in close
connexion with cessio tutelae which applied only there9. In any case it
had disappeared in later law. The other exception is that of potioris
nominatio, applying only to those appointed by the magistrate. This
was the right to name a person more nearly connected and therefore
more appropriate10. This might not be done by one himself closely con-
nected11, but a libertus could so act in the case of his patron's child12. The
namer must shew in detail the grounds of the nominatio™, and the
person nominated might himself nominate over14. There were elaborate
rules as to forms and the time within which the nominatio must be
made. This might be regarded as a form of excusatiolb but it is clearly

1 26. 6. 2. pr. ; C. 5. 31. 5. 2 26. 6. 2. 3. 3 26. 6. 2. 1 ; C. 5. 31.2. 4 26. 6.

2. 1; C. 5. 31. 6 sqq.; Inst. 3. 3. 6; D. 38. 17. 2. 28 (which may be interpolated) applies
the same rule to grandmothers and an enactment of A.D. 357 (C. Th. 3. 18. 1) which does
not appear in Justinian's Code applies it to all grandparents. 5 26. 6. 2. 2; 4. 5. 6, 7;

Inst. 1. 25. pr. 6 Ulp. 11. 17. Cicero (ad Alt. 6. 1. 4) seems to refer to the same rule.

7 Vat. Fr. 156, 173 a, 202. 8 27. 1. 6. 17, 13. pr., etc. 9 Post, § LX. It occurs in the
same connexion in Sch. Sin. 18. 10 P. 2. 28; Vat. Fr. 157-167; 206-220. 11 A fellow-
decurio, or member of same gild, or one of the excepted personae under the /. Papia
Poppaea, Vat. Fr. 158, 210-214. Relative wealth might come into account, P. 2. 28. 2, 3;
Vat. Fr. 157, 166. 12 Vat. Fr. 160, 211. 13 P. 2. 28. 1; Vat. Fr. 166, 210. One who
has pleaded an excuse and failed can still nominate another, but not vice versa — his act
admits that he has no excuse, Vat. Fr. 206, 207. 14 Vat. Fr. 206. See also ib. 164, 208.
It is an admission that he is potior, and has no excuse. 15 See Vat. Fr. 157. The time
allowed is the same, Vat. Fr. 164, 207. But one who has pleaded an excuse and failed
can plead another, but potioris nominatio bars excuse.

iv] TUTELA: EXEMPTIONS 151

distinguished in the texts. There seems to be no trace of it under Jus-
tinian.

The law as to exemptions or excuses is a great mass of detail1.
Modestinus applies the rules in general words to all tutores2, but there
is little other evidence that they applied to legitimi or fiduciarii3. The
excuse must be pleaded before the officer charged with the appointment
of tutores* and within limits of time dependent on distance from the
place of the court5. The grounds of excuse were very numerous and
various, some available against any tutela, some of only special applica-
tion, some permanent, some temporary. Among general grounds were
age, permanent ill-health, ignorance, poverty, exile, high office6, a
certain number of natural born children7, holding already three sub-
stantially independent guardianships8, and many others. Of special
application were, e.g. litigation or hostility between the parties, remote-
ness of residence, etc.9 Some might be temporary, e.g. absence on public
affairs, illness, etc.10

Certain cases of partial exemption will recur in the discussion of
restrictions on the appointment of tutor.

It may be added that these excuses were not available to one who
had promised the father that he would serve11, and that in general a
libertus who was appointed by a magistrate to his patron's child could
not plead them, though, if appointed by the patron's will to a collibertus,
he could urge them to prevent the confirmation of the appointment by
the magistrate12. Any person appointed by the father, whether subject
to confirmation or not, if he claimed excuse, lost any benefit under the
father's will, apart from evidence of the testator's intent to the con-
trary13.

1 Vat. Fr. 123-247; D. 27. 1. Fully organised under M. Aurelius, 27. 1. 13. 2. 2 27.
1. 2. 5. 3 27. 1. 13. pr. See however the general language of h. t. 2. 5. 4 See,

e.g., Vat. Fr. 166. 5 Vat. Fr. 154-156; D. 27. 1. 13. 1 sqq. In general it must be an

excuse existing at the time of appointment, but supervening matters might sometimes be
pleaded after tutela had begun. Inst. 1. 25. 3; Vat. Fr. 184, 238, etc.; D. 27. 1. 12. 1, 40.

6 27. 1. 2. pr., 6. 1 sqq.; 6. 19, 7, 40, etc.; Vat. Fr. 129 sqq.; 151, 182-184, 223, 238-243, etc.

7 3 in Rome, 4 in Italy, 5 in a province, those given in adoption or killed in battle count-
ing, Inst. 1. 25. pr.; D. 27. 1. 2. 3 sqq., 18; Vat. Fr. 168, 169, 191 sqq. 8 Inst. 1. 25. 5;
D. 27. 1. 2. 9 sqq., 15. 5, 16, 31; Vat. Fr. 125 sqq., 186 sqq. Held by himself or his pater-
familias or filiusfamilias, but not such as he could have refused. 9 P. 2. 27. 1 ; Vat. Fr.
203,241; Inst. 1.25. 4,9-12; D. 27. 1. 15 sqq., 21. pr., 46. 2. 10 27.1.10.2,3,22. 1,41; C.
5. 62. 10. In some cases the exemption lasted a year after. In some cases exemptions,
though of the general type, might not be pleaded in all cases; thus veterani could not
plead them in the case of children of veterani of the same legion, members of certain trade
gilds in the case of children of other members. Vat. Fr. 142, 175-180, 233-237; D. 27. 1.
8, eto. Inhabitants of the historic region of Ilium were excused from tutela of any but
Ilienses, h. t. 17. 1. 11 Vat. Fr. 153. 12 P. 2. 29; Vat. Fr. 152, 160; D. 27. 1. 14.
24, 30. 3. Must be a patron with full right. 13 27. 1. 28. 1, 32.

152 TUTELA: RESTRICTIONS ON APPOINTMENT [CH.

RESTRICTIONS ox APPOINTMENT OF TUTORES. As tutela was a
publicum munus a filiusfamilias could serve1, his disabilities being
essentially of private law. But there were many persons who could
not be tutores, e.g. slaves, peregrines and Junian Latins2, this last being
an express provision of the /. lunia: colonary Latins could serve.

Sex. A woman could not be tutor3. In classical law there was no
exception, but in A.D. 390 it was provided that if there was no legitimus
or testamentarius tutor, a mother, so desiring, the father being dead,
might be appointed by the magistrate, on her undertaking (by oath,
under Justinian) not to marry again. If she did, the tutela ended and
the husband might be sued on liabilities already accrued4. In 530
Justinian extended this to mothers of natural children, on their re-
nouncing the privilege of the Sc. Velleianum5. By a novel the oath was
remitted and the renunciation required in both cases6. By another
novel mothers and grandmothers were legitimi tutores if they made the
above renunciation7.

Age. To be under 25 was a ground of excuse in classical law, a dis-
qualification under Justinian8. The fact of being under puberty was
always a disqualification except in legitimae tutelae, and Justinian made
it one for ah1 cases9. We are expressly told of the classical rule for
legitima tutela only in the case of women, and, after the abolition of
agnatic tutela of women early in the empire10, these must belibertinae: the
texts deal with the only probable case, that of patroni filii11. Such a
tutor could not give auctoritas, and a tutor praetorius was appointed where
this became necessary12.

Defect, physical or mental. Deaf or dumb persons could not be
tutores, except legitimi in classical Jaw, and Justinian excluded them
altogether13. Here too we learn of their capacity only in tutela of women14:
a text of Hermogenianus denies it for legitima tutela15, but this has prob-
ably been altered. Lunacy (furor) seems to have been always regarded
as curable, and thus was not a disqualification but a ground of
temporary excuse16. In classical law it was no bar at all in legitima
tutela11.

Privilege. Some persons by reason of station or function were ex-

1 Inst. 1. 14. pr. 2 Ulp. 11. 16; Inst. 1. 14. 1. 3 26. 1. 16. pr., 26. 2. 26. pr. ;

C. 5. 35. 1. See the interpolated 26. 1. 18. 4 C. Th. 3. 17. 4; C. 5. 35. 2. 5 C. 5. 35.
3. As to this privilege, post, § CLVI. 6 Nov. 94. 7 Nov. 118. 5. 8 Inst. 1.

25. 13. 9 /&. ; C. 5. 30. 5 points out the absurd effect of the old rule which indeed
gave the result that of two brothers, each might be the other's tutor. 10 Post,

§ LX. 11 G. 1. 177-179; Ulp. 11. 20, 22. 12 Ulp., ib. 13 26. 1. 1. 2, 3.

14 G. 1. 180; Ulp. 11. 21. 15 26. 4. 10. 1. In Vat. Fr. 238 it is said to be a ground

of excuse. 16 27. 1. 10. 8; h. t. 12; Vat. Fr. 184 (in Vat. Fr. 238 it is perpetual). A

curator is appointed meanwhile (Vat. Fr. 184; D. 26. 1. 17). 17 G. 1. 180.

iv] TUTELA: RESTRICTIONS ON APPOINTMENT 153

eluded from tutela. Thus niilites and certain officials might not be
tutores even if willing to serve1, and there were cases in which a person
of one class might not be appointed tutor to one of another2.

Misconduct. This does not seem to have been an absolute dis-
qualification, but would have its effect in the magistrates' enquiry before
appointment. If a paterfamilias appointed an unworthy person, this
would apparently be valid, and as legitima tutela, in basis, was to safe-
guard the property rights of the tutor, misconduct would, here too, be
immaterial.

Appointment ad certain rem. The tutor was appointed to the persona
of the pupil rather than to his res, and the rule "tutor ad certain rem dari
non potest" is a natural corollary. So Justinian treats the matter. He
appears to regard the rule as absolute3. It seems indeed to have been
absolute so far as testamentary tutores were concerned. Ulpian and
others express it very strongly4, and though Ulpian adds the remark
that in practice the appointment by will of one tutor to the African
property and another to the Asiatic, is good5, the meaning no doubt is
that each is in strictness appointed to the whole tutela, the words being
a direction as to the distribution of actual administration according to
the usual plan, shortly to be considered. But where this interpretation
was impossible, e.g. where one tutor was appointed alone, and there
was a limitation to specific properties, the whole appointment was bad6.
It seems to have been equally absolute in all normal appointments to
impuberes by a magistrate, but there were a few exceptions where a tutor
was temporarily replaced7. There was the tutor praetorius (in classical law,
under Justinian, a curator), to act for the ward in litigation (in classical
law a iudicium legitimum) between him and the tutor6. So too in the case
of impubes legitimus tutor who could not give auctoritas, and was replaced
by another9, e.g. to authorise entry on a hereditas, a case which could
not occur under Justinian, or of a furiosus tutor or the like10. There was
also a rule that a tutor could not be compelled to administer property in
a region remote from his residence11, the difficulty being met by the
appointment of a tutor to manage those properties, and we are told that
he was appointed only to those, so that it is no mere question of dis-
tribution of administration12.

1 26. 5. 21. 3; Inst. 1. 25. 14; Nov. 123. 5; D. 27. 1. 23. 1, which speaks of castris merentes
as excused, is dealing with veterani. In Nov. 72 Justinian forbids debtors or creditors to
be tutores, and requires such persons appointed to declare the fact at once, subject to
heavy penalties. 2 E.g., ingenui to libertini (by magistrates) if libertiai were avail-

able, 27. 1. 1. 4. 3 Inst. 1. 14. 4. 4 26. 2. 12-14. 5 h. t. 15. 6 26. 2. 13.

7 The temporary substitute for a tutor absent or excused (ante, § Lrv) is not an instance:
such a substitute is tutor over all affairs. 8 G. 1. 184; Inst. 1. 21. 3; Ulp. 11. 24.

9 G. 1. 178, 179. 10 Ulp. 11. 21. 22; G. 1. 180. 11 27. 1. 19. 12 27. 1. 21. 2, 4.

154 FUNCTIONS OF TUTOR [CH.

LV. FUNCTIONS AND DUTIES OF THE TUTOR. The first duty of the
tutor, in certain cases, was to give security rent salvam pupillo fore1.
This was not required of a testamentary tutor2, or of one confirmed or
appointed by the superior magistrates after enquiry3, but was in all
other cases, i.e. legitimi*, fiduciarii5 and those appointed by the local
magistrates6. We are however told that if the tutor was a patron or
patroni filius, the estate small, and the tutor a man of substance and
probity, the security might be remitted7. It was the duty of the local
magistrates to see that proper security was given8. We are not told
how they were informed of the matter, in the case, e.g., of legitimi,
but as there was a rule that in cases where security \vas required the
acts of the tutor did not bind the pupil until this had been provided9,
those who had, or wished to have, dealings would apply the necessary
pressure. The security was by personal surety to the ward, or, if he was
infans, to a slave of his, or if he had none, to a servus publicus, or even to
the magistrate or a third party nominated by him10. In the latter cases,
as in adrogatio, the ward had only utiles actiones11. Ulpian in the Digest
says that the actual verbal contract need not have been made12: the
sureties were liable if in their presence and without contradiction their
names were submitted by the tutores and entered on the acta.

The first step in the actual administration was to make an inventory
of the estate, unless, under Justinian, the tutor w^as expressly released
from this obligation by the testator from whom the property came13.
It was done with the co-operation of publicae personae, and failure to do
it involved heavy liabilities14.

Though the tutor was appointed to the persona, he was not in classical
or later law the custodian of the child. If there was difficulty as to the
care of him the magistrate decided15 and w^as not necessarily bound by

1 G. 1. 199; Inst. 1. 24. pr. ; D. 26. 4. 5. 1. The question whether this was expressly
provided in the edict is disputed. The texts cited point in different directions, but none
is conclusive. The security dates from Trajan at latest, C. 5. 75. 5. See the reff. in Cuq,
Manuel, 214, n. 2. It was no doubt applied at first only to dativi but extended to the
others by the time of Hadrian. 2 G. L 200; Inst. 1. 24. pr.; D. 26. 2. 17. 3 Ib.; D. 26.
3. 2, 3. 4 26. 4. 5. 1. 5 If the very general language of G. and J. (n. 1 ) is to be

accepted. But as he was chosen by the father it may be that the rule was not applied in his
case. 6 26. 3. 5; 27. 8. 1. 7 26. 5. 13. 1. In these cases it was exacted only if, causa
cognita, it seemed to be desirable (26 4. 5. 1), and it may be presumed that it was not re-
quired of the parens manumissor. 8 27. 8. 1. 11. 9 C. 5. 42. 1 sqq. ; C. 2. 40. 4. There
was a machinery, imperfectly known, for compelling the giving of security by seizure of
pledges, probably only in later law, Inst. 1. 24. 3. 10 27. 8. 1. 15, 16; 46. 6. 2, 3. In

h. t. 6 we are told that, propter utilitatem, the pupil may stipulate if he can speak, though
he has not intellectus. The tabularius is not mentioned in this connexion. 11 27. 8.

1. 16; 46. 6. 4. pr. 12 27. 7. 4. 3. 13 26. 7. 7. pr.; C. 5. 37. 24; 5. 51. 13. 2, where
it seems to be implied that a fresh inventory must be made of each new succession.
14 76., etc. 15 27. 2. 1.

iv] ADM IN 1ST RAT 10 155

any directions in the will1. The tutor must however provide out of the
estate an appropriate sum for the maintenance of the child2: here, too,
the magistrate might intervene and say how much might be so spent,
and the tutor would not get credit, in accounting, for more than this, or, in
any case, for more than in the circumstances was a reasonable amount3.

The real business of the tutor was with the patrimonium, and his
functions may be divided into two branches: administratio, negotiorum
gestio, the management of the pupil's affairs, and auctoritatis interpositio,
the authorisation of "acts in the law" by the pupillus. So long as the
child was infans he could do no legal acts, and there was no room for
authorisation4, but as he grew older this became more and more im-
portant5. Except in form the distinction is not of first rate importance,
since the responsibility of the tutor was the same in both cases, and to
some extent the rights and liabilities created by the tutor took effect in
the ward6. What would be an improper act of administration it would
be equally improper to authorise.

Administratio. In general he must do the business in a businesslike
way, but there were some respects in which he was bound to act in a
way in which a man acting carefully in his own interest would not
necessarily act. At the end of the second century Severus forbade
tutores to sell lands, rustic or suburban (i.e. unbuilt but in an urban
area), except under directions in the will, or, in case of urgency, under
authorisation of the magistrate7. The enactment adds that even this
authority would not save the tutor from liability if, as events shewed,
he did not properly inform the magistrate as to the facts8. By an enact-
ment of unknown date a contrary direction was given as to unproductive
or perishable moveables, or urban property (i.e. houses) or urban slaves9.
Here, even though the alienation was forbidden by the will, the tutor
was still entitled to sell, though not bound, unless the interests of the
ward required it10. The system did not work well and Constantineu for-
bade the tutor to sell urban or suburban property or valuable moveables
except in circumstances which would justify the sale of rustica praedia.

1 27. 2. 1.1. The mother is the natural person, C. 5. 49. 1. 2 27. 2. 3. 3 27. 2. 2, 3.
4 As to infantia, and exceptional rules, post, § LVI. 5 See 36. 1. 38. 1. 6 Post,

p. 157. 7 An Oratio, see 27. 9. 1. A transactio, compromise of a dispute (post, § CLXXXI),
was a conveyance for this purpose, C. 5. 71. 4 (260). So too a pupil could not repudiate
a legacy of land without authorisation by the magistrate, for as it had vested in him
(post, § cxvn) this was an alienation, 27. 9. 5. 8. The texts shew that the prohibition was
extended in practice to curatores. 8 27. 9. 1; C. 5. 71. 5. 9 See C. 5. 37. 22. pr.

It may possibly have been in the Oratio of Severus. 10 26. 7. 5. 9. But this may

have been written before the enactment. See also 26. 7. 7. 1; 50. 16. 198; C. 5. 38. 3.
11 C. o. 37. 22. 1 sqq. Under Justinian, in case of praedia rustica or suburbana, though
the conveyance was void it was validated by lapse of five years from full age, C. 5. 74. 3.
Constantine had allowed one year to suffice. C. Th. 3. 32. 1.

156 ADMINISTRATE [CH.

The tutor must take steps to recover debts due to the ward at once1.
He could bring and defend actions on behalf of the pupil2, or, (if the pupil
was old enough and the proceedings were in his name, as, in that case,
and if he was available, they should be,) represent him in the litigation3.
He must invest moneys within a certain time, being liable for interest
if he delayed without good reason, at the maximum rate if he used it
for his own purposes4. These rules, and others similar5, express the
change in the conception of tutela : the interests of the pupillus were in
the foreground and were safeguarded to an almost unreasonable extent.

It was not in all fields that the tutor could act alone : shortly, it may
be said that he could act on the ward's behalf in all acts iuris gentium,
but not in acts iuris civilis. He could not alienate or acquire for him by
mancipatio6: whether he could do so by cessio in iure depends on the
interpretation of the rule allowing representation in the legis actio "pro
tutela7.'" He could acquire bonorum possessio, i.e. a praetorian succession,
for the child8, but not civil law succession till the later empire, when
this was allowed if the child was infans9. He could acquire and alienate
by traditio by the time of Hadrian or earlier. Some of the restrictions
could be evaded by using a slave of the ward who could acquire and
probably alienate for him by mancipatio10, and accept a civil succession
for him11. If the ward had none, one could be bought12.

Contract was a more personal matter. In early classical law the
tutor's contract was his own: the ward took no right and incurred no
liability, though of course the matter would come into account. But,
here too, a remedy was found before the close of the classical age. The
texts are much interpolated, and there has been much discussion13. The
course of the evolution may have been somewhat as follows. Where the
tutor had defended an action for the ward, or had sued on his behalf,
the pupil being absent or infans, so that it was reasonable for the tutor
to act personally instead of giving auctoritas, the actio iudicati lay
directly against or to the pupil, from, at latest, the time of Antoninus

1 He must not allow time, even though this be to the advantage of both sides, 26. 7.
15. 2 12. 2. 17. 2; 26. 7. 1. 2, 2, 15, 22, 23, etc. 3 26. 7. I. 2, 2. But one of active
contutores cannot sue another, pupilli nomine, 26. 7. 12. pr. 4 26. 7. 7. 4. 5 E.g.

26. 7. 5. 8, 7. 1, 7. 8, 7. 14, etc. 6 Mitteis, Rom. Pr. 1. 208. But the matter is not

wholly clear. 7 Inst. 4. 10. pr. The power under 1. Hostilia applies only tofurtum.

From the fact that special machinery was devised to enable an infans to free vindicta
(40. 5. 30) it seems that tutor could not lege agere for the ward. There is however another
reason for this. Manumissio is not administration, 40. 1. 13; 40. 9. 22. 8 37. 1. 7. 1,

but not repudiate it, h. t. 8; 38. 9. 1. 4. 9 C. Th. 8. 18. 8; C. 6. 30. 18. 10 Post,
§ LXXXV; G. 2. 87. 11 Post, § cix. 12 Though, if he was infans, civil ownership
could not be acquired, bonitary could, and a slave acquired for this bonitary owner,
G. 2. 88; P. 1. 7. 6. 13 See, e.g., Wenger, Actio Iudicati, 193 sqq. ; Solazzi, four articles
in Butt. vols. 22-25.

iv] ADM1N1STRAT10 157

Pius. There was nothing utilis about the action, nor was it postponed to
the end of the tutela1. It was as if he had been a cognitor2. By the time
of Justinian the limitation to cases of absence, etc., had disappeared3.
But contract was a personal matter, in which there was no representa-
tion, and thus a contract by the tutor was enforceable only by or against
him4. But as early as Aristo there was a rule that the ward was liable
to the extent of his enrichment for any fraud of the tutor in his affairs, in
a special action described as tributoria5. When the tutela ended the tutor
was no longer concerned, and a rule appeared that where he had himself
reasonably contracted on behalf of the ward, he could not then be sued
on the contract and an actio utilis lay against the ward6. Some such
rule was necessary, for he could not assign his liabilities to the ward so
as to bind creditors from proceeding against him, and the rule seems to
be quite general under Justinian, i.e. not limited to cases of infantia7,
etc. But the same difficulty did not arise the other way : the tutor could
transfer his rights of action (procuratio in rem suam) to the ward8, and
cease to be concerned in the matter. It is however generally held that
the same rule applied: the ward could bring a utilis actio9. But this is
doubtful. The texts, above cited, laying down the general rule, deal
only with the other case. Ulpian says that obligations are not acquired
for the pupil by the tutor, but remain with him10, and Diocletian says
that the ward cannot acquire an action through the tutor, "nisi ex certis
causisn." Two such certae causae are recorded. If A lent l?'s money,
B acquired a condictio, though not any subsidiary obligations which
might have been created12. This was equally true if A was B's tutor, and
there was nothing utilis13 about it. But if, as was usual, the loan was
accompanied by a stipulatio, this superseded the mutuum, and thus
barred the condictio1*. Relief was given against this purely technical
obstacle, by an actio utilis, where the tutor's act was reasonable. This
limit, and the utilis character of the action, were gone under Justinian,
and there was never any question of postponement to the end of the
tutela15. Again, if a tutor made a constitutum for payment to the ward,

1 26. 7. 2. pr. (interp.);26. 9. 5(ref. to tator is interp. ) ; 26. 9. 6; 26. 9. 7; 42. 1. 4. 1. D. 26.
7. 39. 12 deals with cognitio extraordinaria and the facts are not clear. 2 Post, §ccxxxix.
3 It has thus disappeared from some of the texts in n. 1. 4 26. 7. 39. 4; C. 2. 24. 4.

5 26. 9. 1. 3, 4. In 1 the extension to culpa, and other provisions, are due to Justinian.

6 2. 11. 15; 4. 4. 27. 1 (interp. Solazzi, Bull. 25. 90); 26. 9. 5. 1; h. t. 8=36. 3. 18. 2; C. 5.
37. 26. 3 (Bas. 38. 9. 39); C. 5. 39. 1. See also, 21. 2. 4. 1. 7 C. 5. 39. 3 does not speak
of the action as utilis, and the expression actio personalis suggests Justinian. 8 Post,
§ qcxxxix. 9 Girard, Manuel, 217; Mitteis, Bom. Pr. 1. 222; Duquesne, Translatio
ludicii, 47, 153. 10 13. 7. 11. 6. 11 C. 5. 39. 5. 12 C. 4. 27. 3. 13 26. 7.
47. 5. 14, See the discussion in 26. 7. 16; 45. 1. 126. 2, and post, §§ CLXII, cxciv.
15 12. 1. 26; 26. 7. 9. pr.; 26. 9. 2; C. 5. 39. 2. Similar concession where the lender was
procurator of a miles. 12. 1. 26.

158 AUCTORITATIS INTERPOSITIO [CH.

the ward could sue utilitatis gratia. But this rule, which the text1 applies
to other cases, was an exception to the rule that there could not be a
valid promise of payment to a third person2: there was no question of
the end of the tutela.

The tutor must shew a certain care in his administration, but the
degree seems to have varied historically. The better view seems to be
that here3, as in all infaming actions, the liability was originally only
for dolus, a restriction consistent with the original conception of tutela.
This would in practice cover liability for gross negligence4, difficult as
a matter of evidence to disentangle from dolus. But, at some time,
possibly as early as Celsus, an increased liability appeared: the tutor
must shew the same care that he did in his own affairs5, a notion also
perhaps influenced by the conception of dolus. Some texts make him
liable for all negligence, culpa levis6. But there were disputes among
the lawyers, and the whole story of culpa is much disputed7.

It must further be noticed that all this was administratio and
was governed by that notion. A tutor could not by act or authori-
sation, make gifts of the property8. Acts of spoliation were not
administratio, and thus not merely gave an action for damages but were
void9.

LVI. Auctoritatis interpositio. The expression denotes co-operation
of the tutor with the ward : the act was formally done by the ward with
auctoritas of the tutor. This auctoritas was itself a somewhat formal act.
It involved presence: it could not be given by letter or ratification10. It
could not be conditional11 and could be given only by oral declaration12,
and there is evidence that it was commonly in answer to an interrogation
by the other party13. But in later law actual presence of the other part}''
was not necessary14.

The possibility of auctoritatis interpositio did not in strictness arise
till the child had reached a certain development. He could not be author-
ised to act till he was capable of conscious action. He must have
intellectus15 : what the tutor provided was judgment whether it was wise
to do the act or not. Hence arose the rule that there could be no auctoritas

1 13. 5. 5. 9. Curator furiosi or minoris, actor municipii. As to this rule, post,
§ CXLIX. 2 Post, §§ CXLIX, CLIV. 3 Mitteis, Bom. Pr. 1. 324 sqq. 4 Culpa lata.

See 26. 7. 7. 2, "lata neglegentia." See also 26. 10. 7. 1; C. 2. 18. 20; C. 5. 51. 2; C. 5. 55. 2.
5 16. 3. 32, written of tutela, see Mitteis, op. cit. 326; 27. 3. 1. pr. " Diligentia quam suis
rebus" called by moderns "culpa levis in concrete." 6 Coll. 10. 2. 3; D. 26. 7. 10, etc.

Dolus only, 26. 7. 7. pr. etc. Mitteis, op. cit. 327. 7 Post, § cxc. 8 26. 7. 22;

C. 5. 37. 16. In the same way a slave with administratio peculii cannot make gifts out of
it, 20. 3. 1. 1; 20. 6. 8. 5. 9 41. 4. 7. 3. For similar reasons a tutor could not act in

matters between himself and the ward. Inst. 1. 21. 3; G. 1. 184. 10 26. 8. 9. 5, 10;

Inst, 1. 21. 2. 11 26. 8. 8. 12 26. 8. 3. If not in proper form it was void, h. t. 2.
13 26. 8. 3. 14 26. 8. 9. 6. 15 G. 3. 109.

iv] AUCTORITATIS INTERPOSIT1O 159

while he was infans or infantiae proximus1. But the strict principle was
departed from and the terms used need explanation. Till the fifth century
infantia was used in its literal sense: it meant incapacity to speak2.
But in A.D. 407 or a little later the limit of infantia was fixed at seven
years3. Though some texts link infantia and lack of intellectus*, these
are not the same thing. A child too young to speak cannot well have
intellect™, but he is also barred from many transactions, all those in
which speech is needed, by the fact of being unable to speak5. And a
child may be able to speak and yet not have intellectus6. Such a child
was said to be infantiae proximus and when past that stage pubertati
proximus, but there was no question of a fixed age in this matter. On
grounds of utility however, and in view of the fact that the tutor could
really supply the necessary mental element, those infantiae proximi
were allowed to contract with the auctoritas of the tutor as early as the
time of Gains7, and the same was allowed, then or a little later, to
infantes, in matters which did not involve speech, though it is clear that
such children could have no real understanding of the matter8.

As the judgment of the tutor was the foundation of the whole institu-
tion his auctoritas could not be compelled, though there were of course
remedies for improper refusal 9.

The tutor could not validly authorise acts in which he himself had
an interest. Thus a loan to the pupil by him with his auctoritas was
invalid and created only a naturalis obligatio to the extent of enrich-
ment10. If he was sole tutor no such transaction was possible, unless a
tutor praetorius was appointed for the purpose of authorising it11. If
there were other tutores one of these could authorise it, if the tutela was
such, and the transaction such, that the auctoritas of one tutor sufficed12.

Not every transaction needed auctoritas: the ward could carry
through transactions which could only benefit him, not bind him,

1 G. 3. 109. For the distinction between infantiae proximus and pubertati proximus,
and refutation of the older opinion that this corresponded to some definite age limit,
see Dirksen, Verm. Schriften, 1. 180 sqq. 2 Varro, L. L. 6. 52; D. 27. 8. 1. 15;

40. 5. 30; 45. 1. 70, etc. See also Inst. 3. 19. 10 and Theophilus thereon. 3 C. Th.

8. 18. 8; C. 6. 30. 18. D. 23. 1. 14; 26. 7. 1. 2 are interpolated. See Girard, Manuel, 203,
n. 4. 4 41. 2. 32. 2; 47. 2. 23; 50. 17. 5, etc. 5 26. 7. 9. pr., etc. Cf. 45. 1. 1. pr.

A dumb man is excluded for the same reason though he may be of perfectly sound mind.
6 29. 2. 9; 44. 7. 1. 13. 7 G. 3. 109; Theoph. ad Inst. 3. 19. 10; D. 29. 2* 9. 8 36.

1. 67. 3; C. 7. 32. 3. In 41. 2. 32. 2, where it is a question of acquiring possession there is
a double illogicality, for, as we shall see, auctoritas was not in principle needed for acts
which involved no assumption of liability or possible loss, like possessio, 41. 2. 1. 3. The
point of intellectus was however still material in respect of liability for wrongdoing. See,
.g., G. 3. 208; Inst. 4. 1. 18; D. 4. 3. 13. 1; 9. 2. 5. 2; C. 9. 47. 7, etc. 9 26. 8. 17.

10 Inst. 1. 21. 3; D. 26. 8. 1. pr. 11 This was the method where litigation arose

between them, ante, § LV : a curator under Justinian. 12 As to this case, post,

§ Lvin.

160 AUCTOE1TATIS 1NTEEPOSITIO [CH.

without auctoritas1. Informal acts of acquisition could be done for an
infans by the tutor, and by the impubes capable of acting at all, and
the formal acts which had created difficulty during infantia could now
be done by him, or, if they involved liability, by co-operation, though the
tutor could not perform them on behalf of the ward2. Thus in unilateral
transactions the matter was simple: if it was one which bound the other
party it was valid ; if it purported to bind the pupillus it was void unless
there was auctoritas. But the most common transactions are bilateral;
they impose duties on both sides, and here the matter was not so simple.
To treat the other party as bound and the ward as not bound would be
unjust, and the matter was otherwise dealt with. If a pupil had pur-
ported to go through such a transaction he could not cry off without
returning any benefits he had received, and he could not enforce the
contract without doing his part3. If he had done his part he could
recover what he had handed over or sue on the contract4. If the trans-
action had been carried out on both sides without auctoritas the pupil
could, e.g. in sale, recover his property but must refund to the extent
of enrichment or, conversely, could recover the price on returning the
goods5. The case of payment to a pupil was specially dealt with. A receipt
by the pupil was not valid, but if he sued again for the money he must
account for what he still had or had advantageously expended6. A
receipt by the tutor was not quite safe, as the pupil- might get restitutio in
integrum and fraud of the tutor would suffice for this7. The safe way
was to pay it to the wrard with presence and auctoritas of the tutor.
This created difficulties, as the ward was not in the charge of the tutor,
and might be far away. Justinian therefore provided that payment
might be validly made to the tutor under sanction of a index8.

LVII. CLOSE OF TUTELA. The tutela might end in many ways, e.g. by
death or capitis deminutio9, or puberty, of the ward10, by occurrence of

1 G. 2. 83; 3. 107; Inst. 1. 21. pr.; D. 26. 8. 9. 2 Formal acceptance of a hereditas

(cretio, post, § cix), formal conveyance of property, mancipatio; formal manumission,
vindicta ; acceptilatio, and formal surrender of rights or property, cessio in iure. G. 2. 80 ;
D. 40. 5. 30. 1-4; 46. 4. 13. 10. 3 If he had agreed to sell he could not sue for the

price without delivering the goods (and conversely he could not claim the goods without
payment), 18. 5. 7. 1; 44. 4. 8. pr. 4 G. 2. 82. 5 26. 8. 5. pr. 1. As he had only

to restore enrichment, there might be loss to the other side : who thus bore the risk. See
Inst. 2. 8. 2. 6 G. 2. 84; Inst. 2. 8. 2. The rule applies only to voluntarily undertaken
obligations. Those which result incidentally from ownership of property (quasi-contract ,
post, § CLXXXV) bind a pupillus like anybody else, 44. 7. 46. 7 It is clear that the

payment could be validly made to a tutor, even one tutor of several, if he was an acting
tutor (post, § Lvm), 46. 3. 14, 100. 8 C. 5. 37. 25, 27. This applies to capital payments
and to rents, interest and the like above a certain limit. Below this limit they can be paid
to the tutor, as before. 9 Sch. Sin. xvi (42) shews a man tutor to his impubes brother
who has been sent to a Latin colony. The allusion may be to a case in which the tutela
was expressly preserved (see 1. Salpensana, cc. xxn, xxix; Girard, Textes, 109), but see
ante, § XLIX. See also Sch. Sin. xx (54). 10 As to this, ante, § XLI.

iv] CLOSE OF TUTELA 161

the date or event till which the tutor had been appointed1, completion
of the purpose for which a temporary tutor had been appointed (such as
temporary excuse of the ordinary tutor), death or capitis deminutio
maxima or media of the tutor, or supervening ground of exemption. In
several of these cases there was only a transfer of tutela and, apart from
this, which does not need discussion, the only thing that need be said
is that in later law puberty was fixed at 14 for males, 12 for females,
while in the time of Gains it was still disputed whether in the case of
males it was determined by age or by actual physical development2.
There are two cases of more importance.

Capitis deminutio minima of the tutor3. This operated only in the
case of tutores legitimi. In this case the tutela was ended and passed
to the next person with a civil law right of succession. Capitis
deminutio minima of one of two patrons left the tutela wholly with
the other4. That of a sole patron would normally transfer it to his
adrogator5, and the same is presumably true in the case of parens
manumissor6.

Removal for misconduct. If a tutor wronged the pupil this would
have to be accounted for when the tutela ended7. If he committed an
actual delict an ordinary delictal action would lie, and there were special
remedies for certain cases8. But apart from this there was a machinery
for removing him in case of misconduct, called the Crimen Suspecti
Tutoris9. This was a petition for his removal, based on the XII Tables10
and tried before the chief magistrate of the district11. Tutela being a
publicum munus, any one might bring the accusation (postulatio) except
the impubes himself, e.g. a fellow tutor, or even a woman if a near relative,
or the magistrate was satisfied of the purity of her motives12. Immedi-
ately on the accusation the tutor was suspended from acting13. It was
available against any tutor, even a patron14. There was no definite list
of grounds of removal : it was at the discretion of the Court. It might
be fraud or incompetence or gross negligence15, but mere poverty was
not sufficient16. The effect was not in all cases the same. If the evidence
shewred dolus the tutor became infamis, but not for mere incompetence

1 Inst. 1. 14. 3. 2 G. 1. 196. The latter was the Proculian view. Javolenus required
both, Ulp. 11. 28. 3 Ulp. 11. 9, 17. As to effect of c. d. on previous rights, etc., 27. 3. 11.
4 G. 1. 165; 3. 60. 5 Post, § cxu. 6 Children pass with them. 7 Post, §LIX. 8 Inst.
1. 26. 11; D. 26. 10. 1. 8, 2. 9 Inst. 1. 26; D. 26. 10; C. 5. 43. 10 Inst. 1. 26. pr.;
D. 26. 10. 1. 2. 11 Inst, 1. 26. 1; D. 26. 10. 1. 3. 12 Inst. 1. 26. 3; D. 26. 10. 1. 7.
13 Inst. 1. 26. 7; C. 5. 43. 7. 14 Inst. 1. 26. 3; D. 26. 10. 1. 5; h. t. 5; C. 5. 43. 4. It is
probable however that it applied originally only to testamentary tutores, that it was
extended to dativi (Atiliani, Titiani) when they appeared, and that its application to
legitimi is Byzantine. See Solazzi, Bull. 28. 131 sqq. 15 Failure to provide maintenance,
evil life, etc., 26. 10. 3. 5 sqq., 5, 6, 7. 1, 7. 2, 8; Inst. 1. 26. 5, 9-13; C. 5. 43. 1-3, 5, 9.
16 26. 10. 8; Inst. 1. 26. 13; C. 5. 43. 6. 2.

B. K. L. 11

162 CONTUTORES [CH.

or negligence1. The purpose being removal, the proceeding ended if the
tutor died or the tutela ended otherwise2. The misconduct must have been
during the tutela, though, at least in later law, it might be before actual
administration3. Although a patron could be removed, there were
special rules in his case. The grounds of his removal were not stated, so
that he never became famosus*. His own libertus might not accuse him5,
and it was usual, as it was in the case of patres and other relatives, not
to remove him but to appoint a curator to act with him6. This was also
usual in case of poverty7.

The foregoing is the institution as presented by the Sources. But
many of the texts shew signs of interpolation and there are divergent
views as to its history. It has recently been maintained, not without
support from the texts, that besides this postulatio suspecti there was
also a power of remotio by the magistrate mero rnotu, later in origin and
applicable to cases not attainable by the crimen. The crime n, it is said,
was applicable only in case of dolus and only to tutores testamentarii and
dativi. The power of remotio was applied to cases of neglect to act or
negligent administration and to legitimi tutores. It is only, it is said, by
the compilers that the two institutions were fused. Thus Ulpian seems
to hold that all removal by the crimen involves infamia8. On the other
hand neither Gaius nor Ulpian9 seems to know of any mode of removal
except as suspectus10.

LVIII. Plurality of tutores11. Where there were several tutores it
was possible, though usually not the most convenient course, for all of
them to administer in common. In this case any one of them was com-
petent to administer in any matter, but the question arises how far the
auctoritas of one would suffice. The rule of classical law seems to have
been that of testamentary tutores the auctoritas of one sufficed, except,
no doubt, for a matter which would end the tutela, such as adrogatio,
and thus if a question arose between a tutor and the ward, no temporary
tutor was needed — another could act12. Some jurists held that the same
was true of dativi appointed after enquiry, but in all other cases all must
authorise13. Justinian provided however that in all cases of undivided

1 Inst. 1. 26. 6; D. 26. 10. 3. 18; C. 5. 43. 9. 2 Inst. 1. 26. 8; D. 26. 10. 11. 3 26. 10.
3. 5; 4. 4, 6 sqq. ; C. 5. 43. 2; Inst. 1. 26. 5. Thus if a man was excused and afterwards
reappointed, no crimen would lie under the second tutela for wrong during the first, 26. 10.
3. 7. 4 26. 10. 1. 5, 4. 2. 5 26. 10. 3. 1. 6 26. 10. 9. 7 C. 5. 43. 6. 8 Vat.
Fr. 3406. See also 26. 10. 4. 4. 9 G. 1. 182; Ulp. 11. 23. 10 See Taubenschlag,

Vormund-schaftsrechtl. Studien, 27 sqq. ; Solazzi, Minore Eta, 259 sqq. ; Bull. 28. 131 sqq.,
contra, Berger, Z.8.S. 35. 39 sqq. 11 The texts dealing with contutores have been

much altered and there is acute controversy on the evolution of the rules. See Levy,
Z.8.S. 37. 14 sqq., andreff.; Beseler, Beitrdge, 1. 92; post, § LIX. 12 26. 2. 24. As to
limitations on the rule that actions against one tutor could be brought by or with the
auctoritas of another, see Peters, Z.S.S. 32. 218 sqq. 13 Ulp. 11. 26; C. 5. 59. 5.

iv] CONTUTORES 163

tutela the auctoritas of one would suffice, except in a matter which would
end the tutela1.

It was possible for the tutores to make a private arrangement to dis-
tribute the administration2, or one or more might give the other or others
a mandate to act, or might simply permit him to act, taking security.
But all this made no difference to their capacity in law or to their ulti-
mate responsibility in solidum for breaches of duty3. But the case was
different if these arrangements were made under the provisions of an
edict dealing with this matter4. This edict dealt in its terms only with
testamentary tutores. The Praetor summoned the tutores to arrange how
the work was to be done5. It might be all assigned to one, either to one
named in the will, or if there was none or the Praetor did not approve
him, to one whom the Praetor allowed them to elect6. Or one might offer
security and it might be assigned to him unless another offered equal
security, when he might be preferred, or the Praetor might choose the
idoneor. which seems to mean the most substantial man, otherwise
desirable7. Or it might be given to all who offered security, in common,
or with divided administration8. If none of these plans was adopted it
might be distributed either as directed by the will, or bv the Praetor9

if V

at the wish of the tutores, either in paries or in regiones, i.e. according to
the nature of the property or the place of the interests10. But if the tutores
insisted on acting in common, this must be allowed11. A rescript of
M. Aurelius and Verus applied the same system to those appointed ex
inquisitione*2, as to whom in the opinion of some jurists the auctoritas of
one sufficed, and later still, probably not till Justinian, it was applied
to legitimi, though not to patroni or probably liberi patroni13.

Thus, according to the texts, all the tutores might administer in
common, or they might privately arrange a distribution, in which case
those not acting14, or not acting in the particular field, were liable only
in the last resort. Or they might do so under the Edict, in which case
those not acting, or not acting in the particular field, were liable only in
the last resort, and only in respect of failure in supervision, e.g. for not
getting the acting tutor removed if necessary, or leaving large sums of

1 C. 5. 59. 5. Here he says all must authorise: "ut quod omne-s similiter tanqit ab omni-
bus comprobetur," a proposition destined to a much wider application. See Figgis, Fiom
Gerson to Grotius, 11. 2 C. 5. 52. 2. 3. 3 26. 7. 55. 2; C. 5. 52. 2. 3, 3. 4 Lenel,
E.P. 306. 5 26. 7. 3. 7; Inst. 1. 24. 1 suggests a certain order of preference among

possible courses, but it is clear that all was in the discretion of the praetor, 26. 2. 17.
pr.; 26. 7. 3. 3, 6. 6 26. 2. 19; 26. 7. 3. 7. 7 26. 2. 17. pr.; h. t, 18. 8 26. 2.

17. pr. 9 26. 7. 3. 9. 10 2G. 7. 4. 11 26. 7. 3. 8. 12 26. 2. 19. 13 2f>. 4. 5.
2. As security was always needed in case of agnates, the edictal proceedings must have
been to some extent modified. 14 Sometimes called honorarii, but this seems to be late
and to confuse them with tutores expressly appointed by will honoris causi with no
duties and no liabilities, 23. 2. 60. 2; 46. 3. 14. 1; Levy, Z.S.S. 37. 71 sqq.

11— 2

164 CONTUTORES [CH.

money in his hands uninvested1. It seems to have been possible to
appoint tutores with a general duty of supervision, but the same responsi-
bility as if they were gerentes. This might be by the will or ex in-
quisitione2, and the appointee would usually be a libertus chosen for his
knowledge of the business3. But it is very uncertain how far all this
represents classical law4.

As this scheme of distribution was praetorian it might seem that it
did not affect civil law rights and there are texts which suggest that
action or authorisation by a non-acting tutor was met by praetorian
defences5. But it seems clear that, at any rate in all iure gentium matters,
his intervention was void, if the other party knew the facts. Thus in
such a case ownership did not pass6. But we are told that if a pupil
accepted a hereditas with the auctoritas of a tutor who was not acting,
he was bound (a text written no doubt of formal acceptance, cretio),
and the same may have been true of mancipatio or cessio in iure7. We
are told that payment might be made to a non-acting tutor. The text8
has been so mutilated by Justinian that its sense is not clear: it probably
applies only to a de facto arrangement, for the text adds that this is not
so if the praetor has forbidden the tutor to administer.

LIX. We have now to consider the remedies against a tutor who
fails in his duty, removal not being a remedy but a preventive of future
damage.

The two primary remedies are:

Actio de rationibus distrahendis. This action lay against any tutor
when the tutela ended 9. It lay only for actual embezzlement of the ward's
property10. It was essentially delictal, giving double damages11, and
available to, but not against, heretics™. It dates from the XII Tables13
and was by itself a crude and insufficient remedy.

Actio tutelae. This action, later in origin, butdatingfrom the republic14,
gave a remedy for any breach of duty by a tutor. It was available only
at the end of the tutela15, and condemnation involved infamy16. It
originally lay only for maladministration and thus was not available
where a tutor refused to act at all, however detrimental to the Avard his
inaction was. But from the first century of the empire17 the rule was

1 26. 7. 3. 2; h. t. 14; C. 5. 52. 2. 1. 2 26. 2. 32. 1; 27. 3. 1. 7; 46. 3. 14. 1; h. t.

14. 6. 3 C. 5. 38. 1. In this case an allowance might be made to the tutor, at any

rate under Justinian, 26. 7. 33. 3, interp. ? 4 See post, p. 166, n. 6. 5 26. 7. 4,

"exceptione summovebitur" ; 26. 8. 4, "wee enim id ratum haberi." 6 26. 8. 4. 7 29. 2.
49. See however Peters, Z.S.S. 32. 232, and reS. See also Levy, Z.S.S. 37. 73, who gives
many instances of the invalidity of the action of such a tutor. 8 46. 2. 14. 1.

9 27. 3. 1. 19; h. t. 1. 24. 10 27. 3. 2. pr. 11 P. 2. 30; D. 26. 7. 55. 1. 12 27. 3.
1. 23. 13 26. 7. 55. 1. 14 Cicero, de Off. 3. 17. 70. 15 27. 3. 1. 24. It is a bonae
fidei indicium, Cicero, loc. cit.; G. 4. 62. 16 G. 4. 182. 17 Inst. 1. 20. 3; D. 46. 6.

4. 3. As to this evolution, see Girard, Manuel, 222.

rv] MALADMINISTRATION 165

that if, on application, the magistrate ordered him to act, he at once
became responsible, and in the second century, without any such steps,
inaction was put practically on a level with maladministration1. The
ward's claim was privileged in thesensethatittookprecedenceof other un-
secured debts of the tutor2, and in later law there was a tacit hypothec3,
dating presumably from the time when the liability first accrued, with
priority over debts secured by pledge of a later date. The action, being
quasicontractual, was available to and against heredes*. As it was for
settlement of accounts the tutor could deduct what had been properly
expended out of his own funds5. This right of retention was all he had
at first : to give him a right of action was to bind the pupillus. But as
the funds in his hands might be less than was due to him the praetor
introduced an actio contraria tutelae6 by which he could claim reimburse-
ment. It was perpetua and available to and against the heres7.

Besides these primary remedies there were others. For any delict
committed by the tutor the ordinary action lay, when the tutela ended8.
So, where security had been given, actions lay on this, on the promise
of the tutor and those of his sureties, on ordinary principles, but not till
the end of the tutela, for the account was not due till then9. Further
there was an action, sometimes called subsidiaria, against the inferior
magistrates who were required to exact security, if they had not ade-
quately provided for this, or, in cases where they did not appoint but
nominated for appointment by the superior magistrates, had nominated
carelessly10. They were liable only in the last resort when all the other
resources had failed11. They were not absolutely liable for any deficit,
but only if they did not take such security and precaution as were
reasonably adequate at the time, not, e.g., if a surety afterwards lost

1 Vat. Fr. 155; D. 26. 7. 1. The action is however utilis, 46. 6. 4. 3. 2 26. 7.

42, 44. 1 ; 27. 3. 22. All sorts of claims of the ward against his tutor could be brought into
this action instead of being enforced by the action appropriate to them, with the ad-
vantage of giving this privilege, and also, of perpetuating them where the action was
temporaria, since actio tutelae was perpetua. The principle was that it was his duty as
tutor to collect these debts from himself — a semetipso exigere. 27. 3. 5; 26. 7. 9. 2-5; 46.
1. 69, etc. See hereon, and on the extent to which action could be brought, pendente tutela,
Peters, Z.S.S. 32. 190 sqq. 3 C. 5. 37. 20; C. Th. 3. 30. 1. 4 27. 3. 1. 16, 17. Heres

liable only where there was dolus or gross negligence, 27. 7. 4. 5 27. 3. 1. 4—9; 27. 4.

1.4. 6 27. 4. 1. See however Partsch, Neg. Gestio, 40 sqq., who holds that till Justinian
he had only n. g. utilis. The actio tutelae being bonae fidei the tutor's counter-claims
would come in, and it is at least possible (see Partsch, Neg. Gestio, 55 sqq.) that the
formula was so expressed as to permit of judgment against the pupil for them where they
exceeded what was due to him. As to "contraria indicia" of this type, post, §§ ccxvni,
ccxxxiv. 7 27. 4. 3. 9. It may lie even where expense greater than estate (h. t. 3.

pr.), but only lies at end of tutela, h. t. 1. 3. 8 27. 3. 1. 22; h. t. 2. 1; 47. 2. 33.

9 As to difficulties and changes in the rules on the availability during tutela of other
actions between tutor and ward, Peters, Z.S.S. 32. 218. 10 C. 5. 75. 5; cf. D. 27. 8. I.
11 C. 5. 75. 3.

166 MALADMINISTRATION [CH.

his money1. If they had been guilty of dolus in the matter, their heirs
were equally liable2.

If there were several tutores each was liable in the actio de rationibus
distrahendis only for his own malversation3. But in the actio tutelae, if
they acted in common all were liable. If they made a private division
those not acting were liable last4. If the administration had been
formally divided, or wholly vested in one, none was liable beyond his
own sphere, unless, at least in later law, he had failed in the duty of
supervision5. He was not then responsible unless the persons directly
liable had proved insufficient6.

There was other machinery which needs mention. There was an
actio protutelae where a person acted as tutor, but was not validly in that
position7, and similarly there were remedies to third persons who had
suffered loss owing to the intervention of such a person or of one not
qualified to give auctoritas in that particular matter8. A tutor who con-
tinued to act after the tutela had expired was liable as a negotiorum gestor9.

LX. TUTELA PERPETUA MULIERVM. This institution was plainly in
the interest of the tutor. Gains indeed says that it was due to the light-
mindedness of women, but elsewhere observes that this is " magis speciosa

\ 27. 8. 1. 11, 12. 2 27. 8. 4. In addition to these, in later classical law, a pupil,
like a minor, could get rest, in integrum, though the tutor had authorised the transaction,
but, as it seems, only exceptionally, causa cognita, post, § CCXLIV. 3 27. 3. 2. pr.

4 26. 7. 38; h. t. 55. 2; C. 5. 52. 2. 3, ante, § LVIII. A surety for one is liable like his prin-
cipal, and other tutores are treated like sureties for the one in fault, can claim beneficium
divisionis (post, § CLVII), 27. 3. 1. 11; C. 5. 52. 1, and can claim to have the creditor's
action transferred, in fact, buying the debt, 27. 3. 1. 18; h. t. 21; C. 5. 52. 2. If one tutor
paid a debt this transfer implied after Pius, 27. 3. 1. 13. 5 C. 5. 52. 2. 1. 6 46. 6. 12.
See 27. 3. 1. 15; 26. 7. 3. 2; h. t. 39. 11; 27. 3. 1. 15 (corrupt); C. 5. 52. 3; C. 5. 55. 1. There
is much difficulty as to the rules in case of contutores and no doubt much change. Levy,
Z.S.S. 37. 14 sqq., suggests the following evolution. No non-acting tutor is liable to the actio
tutelae. One totally freed from gestio by the praetor or the will, or limited to a particular
field, is not liable at all outside the field assigned to him. One merely not acting or not
acting by agreement with the others is at first not liable at all (see Vat. Fr. 228), later
by utilis actio. But because of this the conception of gestio is wide : one who gets another
to act for him is acting. Tutela is thought of as a whole : it is not a question of individual
transactions. No man can be both gerens and cessans. All gerentes are equally liable for
the acts of any. All cessantes are equally liable for damage from inaction of other cessantes.
Cessantes are liable only subsidiarily, if gerentes cannot satisfy, but before the magistrates.
All much changed by the Byzantines. They look at the individual transaction and hold
that a man can be gerens as to one transaction and cessans as to another, apart from
exclusion, so that he may be primarily liable on one transaction and secondarily on
another. This leads to a general duty of supervision in cessantes, even in those excluded
from gestio. All tutores are now primarily responsible for their own acts and negligences
and subsidiarily for all others. Hence the joint liability of all is limited to what they have
done or neglected in common, and this is subject finally to b. divisionis. The author makes
the fact of change clear, but his main thesis requires a great number of uncertain inter-
polations. 7 As to this action, post, § CLXXXV. 8 D. 27. 6. Edictal, h. t. 1. pr.
9 P. 1. 4. 2; D. 27. 3. 13 As to transfer of actions on puberty, ante, § LV.

iv] TUTELA MULIERUM 107

quam vera1." Its real origin was in the fact that a woman could have no
sui heredes to exclude the agnates or the patron: the expectation of
succession being lifelong, so also was the tutela. It was discredited in
classical law but it lasted at any rate to Diocletian2.

Most of the rules being the same as those of tutela impuberum, it
will suffice to state the points of difference.

Modes of appointment :

Tutores testamentarii. Here the chief difference was that the husband
of a woman in manu, as paterfamilias, could not only appoint a tutor,
but could give the wife a choice of tutores, a rule inconsistent with the
principle that the tutor must be a certa persona3. A tutor so chosen was
called tutor optivus*. The choice allowed might be general or limited. Optio
tutoris in general terms gave the right to change as often as she chose —
tutoris optio plena, but it might be tutoris optio duntaxat semel, bis,
etc.5

Legitimi tutores. The chief point is that a lex Claudia abolished the
agnatic tutela of women, apparently even if they were under age6.
Constantine so far abolished this rule that for young girls the tutela was
restored7, the perpetual tutela being practically obsolete. One result of
the /. Claudia was that tutela legitima, the only serious one, could not
arise in the case of an ingenua, except in her paterfamilias, who emanci-
pated her8.

Tutores fiduciarii. There was a case of this tutela which could not
occur with males, i.e. the tutor obtained by coemptio fiduciae causa for
the purpose of change of tutor3. He was in the same position as the
extraneus manumissor of an impubes: the only difference is that here he
was produced by the activity of the woman herself, with the consent of
her existing tutor.

Tutores a magistratu dati. Here the only thing to note is that in the
absence of agnatic tutela there was more occasion for these10.

1 G. 1. 144, 190; Ulp. 11. 1 says: " infirmitas sexu,t et ignorantia rerum forensium."
2 Vat. Fr. 325. An Egyptian case of A.D. 350 or later (Arch, fur Papyrus/. 1. 293) shews
women with tutores. One has none and says nothing about release. One is in tutela of her
husband. But the law in Egypt was largely Greek. See G. 1. 193. Or it may be under
the enactment of Constantine abolished in 362 (C. Th. 3. 1. 3) by which a minor wife was
in tutela of the husband, who had more power than an ordinary tutor: he could sell her
praedia without a decretum, ante, § LV. One of the women is stated to have the ius
liberorum. Girard notes that, as ius liberorum releases, the system cannot have lasted
after 410 when all women received this right (Man. 227); C. Th. 8. 17. 3. See, however,
Cnq, Manuel, 222. 3 G. 1. 148, 150 sqq., ante, § LI. 4 G. 1. 154. 5 G. 1.

152, 153. As to abdicatio. ante, § LIV. 6 G. 1. 157, 171; Ulp. 11. 8. 7 C. Th. 3. 17.

2; C. 5. 30. 3. In terms Constantine's enactment (C. Th. 3. 17. 2) reintroduces agnatic
tutela simply: the enactment of his in C. 5. 30. 3 confines it to pupillae. 8 Tims

Ulpian speaking of cessio tutelae treats tutela libertae as the typical case, Ulp. 19. 11.
9 Ante, 8 XLIII; G. 1. 115. 10 See G. 1. 195.

168 TUTELA MULIERUM [CH.

Tutores cessicii. These existed only in the case of women. It was
permitted to legitimi tutor -es, in the strict sense1, to make formal cessio
or surrender of the tutela to another2. It is in connexion with this case
that Gains tells us that parens manumissor is treated as alegitimus tutors.
The reason he assigns for the privilege is that the tutela is burdensome4,
but this would apply to other cases than legitima, and the real reason is
that the tutela was in the interest of the tutor who was thus merely
allowed to waive his rights. The tutor cessicius was a sort of representa-
tive. If he died or was capite minutus, or purported to cede it again,
the tutela reverted to the cedens and if the cedens died or was capite
minutus the tutela cessicia ended5.

The unreality of the tutela of adult women in classical law is shewn
by the number of devices for change of tutor. Besides tutoris optio,
tutela cessicia and coernptio fiduciae causa, which involved consent or
co-operation of someone else, there was a rule that a woman inconveni-
enced by absence of her tutor might apply to a magistrate to have
another appointed, which done, the former ceased to serve6. In the
case of a legitimus tutor, the only one who had real control, this was not
allowed, though here too, if the tutor was away and there was temporary
urgency, e.g. need to arrange for dos, or an inheritance to be accepted, a
tutor praetorius would be appointed who ceased to serve as soon as the
urgency was over7. There was a similar relief where a legitimus tutor
was deaf or dumb or mad or a pupillus, and apparently the tutor so
appointed was not permanent but created for each occurrence of the
need8. Thus the rule tutor ad certain rem dari nonpotest has its application
much cut down in this case.

There were great differences in function. The tutor of an adult
woman did not administer: his only function was auctoritatis inter-
positio9. Further, a woman could do, without auctoritas, many things
which a pupillus could not. She could alienate her less important pro-
perty, res nee mancipi10. She could give a valid receipt11. She could be
party to the less formal modes of litigation, iudicia imperio continentia12,
and appoint a procurator to act for her in others13. But, with out auctoritas,
she could not contract an obligation or take part in a iure civili trans-
action14, which includes testation, formal manumission, formal convey-

1 G. 1. 168-172; Ulp. 11. 6-8. Doubts in the case of parens manumissor and
extraneus manumissor. 2 Not to another legitimus tutor, Sch. Sin. 51. 3 G. 1. 172.
4 G. 1. 168. 5 G. 1. 170; Ulp. 11. 7. It would probably be most frequent in the

case of a liberta. See Ulp. 19. 11. 6 G. 1. 173. 7 G. 1. 174-178, 181; Ulp. 11. 20-22.
8 G. 1. 179, 180; Ulp. 11. 21. 9 G. 1. 190, 191; Ulp. 11. 25. 10 G. 2. 80, and

so make a valid loan by mutuum, G. 2. 81. 11 G. 2. 85, as early as Cicero, Top. 11. 46.
12 Ulp. 11. 27. 13 Vat. Fr. 325, 327. 14 G. 1. 190 sqq.; Ulp. 11. 27. OUigatio

in strictness meant civil obligation and perhaps so here.

iv] CURA FURIOSI 169

ance of property, creation of servitudes, creation of dos (except by
datio where the dos contained no res mancipi1), acceptance of a hereditas
or giving a fictitious release (acceptilatio2). But though auctoritas was
thus often needed, it was usually unreal, for all tutores except legitimi
could be compelled to give it3, the tutela being in such cases no protection
but merely a nuisance. But legitimi tutores could not be compelled to
authorise the making of a will or a contract to bind the ward, or alienation
of res mancipi, for which Gains gives the honest reason that it might
be against their interests4. No doubt the same rule applied to her
passing into manus. The rule meant more than the same rule did in the
case of impuberes, for there the tutor might in the long run have to pay
damages for refusal, but that was not so here. Accordingly there was
an exception : if the case was very urgent and clear, the praetor would
compel even these to authorise5.

The tutela was perpetua: maturity did not end it6. All the other
modes of ending applied and there was from the beginning of the empire
a mode peculiar to this case. A woman with the ius liberorum (three
children, or four if a liberta in the patron's tutela} was free of tutela,
a right sometimes given without actual satisfaction of the requirement7.

As the tutor did not administer he had no accounts to render : there
was no actio tutelae against him8, or any other of the remedies for mal-
administration. It does not appear that he ever had to give security in
the case of an adult.

LXI. CURA, CURATIO. This name is applied to several cases of
guardianship which have little in common except the fact that they
cannot be contemplated as a substitute for, or artificial extension of,
potestas till the subject is able to found one, the original conception of
tutela. Even in the oldest cases, in which the interest of the guardian is
certainly in view, the curatio may supervene after the subject of it has
been in enjoyment of full rights as a civis sui iuris.

Cura furiosi. By the XII Tables, furiosi, lunatics conceived of as
capable of lucid intervals, were placed in the cura of their agnates, or,
failing these, gentiles9. The praetors extended similar protection to all
cases of mental incapacitation (insani, mente capti} and even permanently
incapacitating disease10. In cases clearly not within the XII Tables the
magistrate appointed the curator, accepting and confirming a testa-

1 G. 1. 178, 2. 118, 3. 176; Fr. D. 15; Ulp. 1. 17; Vat. Fr. 45. 2 G. 1. 176; Ulp.
11. 27. 3 G. 1. 190. 4 G. 1. 192. 5 G. 1. 191, 192. 6 G. 1. 190; Ulp. 11. 1.
7 G. 1. 145, 194, 3. 44; Ulp. 29. 3; P. 4. 9. Women were released from tutela by becoming
Vestal virgins, G. 1. 145. 8 G. 1. 191. The tutor of a girl under 12 had the same

responsibility as the tutor of a male impubes. Thus at 12 the actio tutelae lay for an
account though the tutela was not ended. 9 See Bruns, 1. 23; Girard, Textes 14.

10 50. 16. 53. pr.; Inst. 1. 23. 4. Not coed, P. 4. 12. 9.

170 CURA PRODIGI [CH.

mentary nomination by the paterfamilias1. As to cases within the XII
Tables the better view seems to be that, in strictness, the praetor
appointed only if there were no agnates2, but that there was a tendency
to depart from this, notably to the exclusion of unworthy relatives3 and
more generally in later law. The curator had the care of the person of
the furiosus4, but apart from this his functions were similar to those of
tutor infantis. The XII Tables gave the curator the power of alienation
of the lunatic's property, presumably even by formal modes5. The
furiosus regained capacity in a lucid interval and the curator ceased to
act, but though there had been doubts, it is clear that at least in later
law, he needed no reappointment on relapse6. The law as to excuses and
security (elaborately regulated by Justinian7) was similar to that in
tutela. The remedy for maladministration was an actio negotiorum
gestonim, available at any time and privileged like the similar claims
under tutela*.

Cura prodigi. By the XII Tables, following older custom, persons
who wasted property received on intestacy from their ancestors were
placed under the cura of their agnates. As prodigality is not an exact
notion, a magisterial interdiction was provided for by the XII Tables9.
The rule did not apply to what came from other sources, or even to
what came from the ancestors by will10. The praetor however extended
the interdiction and the resulting cura to all cases of prodigality11. The
evolution as to modes of appointment, security, excuses and remedies,
seems to have been as in the last case12. There was however no question
of intermission: the cura was continuous till the interdiction was re-
moved. The functions were different. The prodigus was much in the
position of a pupillus pubertati proximus. He could do acts which could
not harm the estate13. We have little information as to the powers of the
curator. According to one view the rules were as in the last case, except

1 27. 10. 16. pr. ; Inst. 1 23. 3. Those appointed under the XII Tables are legitimi,
those by the praetor, honorarii; Ulp. 12. 1. 2 C. 5. 70. 5. 3 27. 10 1.1; h. t. 13;

C. 5. 70. 7. 6. 4 27. 10. 7. pr. 5 G. 2. 64. As to formal modes, see the texts

cited, Mitteis, Rom. Pr. 1. 210 and Girard, Manuel, 229. The texts tell us nothing as
to power of acquisition by formal modes inter vivos, and we learn that the curator could
not accept a heredita~s for the furiosus (C. 5. 70. 7. 3) till Justinian. 6 27. 10. 1. pr. ;

C. 5. 70. 6. 7 27. 10. 7. 1,2; C. 5. 70. 7.4 sqq. 8 27. 10. 15. 1; 27. 3. 4. 3. 9 Ulp.
12. 2; D. 27. 10. 1. pr. 10 Ulp. 12. 2, 3. It might be a woman, P. 3. 4a. 6; D. 27. 10. 15.
The reason or cause of the limitation may be that the rule was introduced before the
institutio of sui heredes was in practice. The old form of interdictio continued to be used
though it was too narrow, P. 3. 4 a. 7. 11 Ulp. 12. 3. 12 27. 10. 1. pr.; h. t. 13, 15. 1,
16. 1; 27. 3. 4. 3; C. 5. 70. 1. If the father nominated, the praetor must usually appoint
the nominee (27. 10. 16. 1) if the case was clearly one of prodigality. The following passages,
no doubt due to Justinian, consider how the father could have avoided the need of a
curator. 13 12. 1. 9. 7; 27. 10. 10. pr.; 45. 1. 6.

iv] CURA MINORIS 171

that the prodigus could enter on a hereditas1. According to another,
suggested by this last rule, which involved the possibility of loss, the
prodigus could go through ordinary transactions with the consent of
the curator, though he could make no will2. But in fact no sufficient
evidence is available3. The restrictions on alienation which were imposed
in tutela apply here as in cura furiosi*. The action is actio negotiorum
gestorum.

LXII. Cura minoris. This is the guardianship of persons sui iuris
between 12 and 25. It is much later: as a system it is almost post-
classical. The development begins, so far as we know, with a /. Plaetoria,
dating probably from the latter part of the third century B.C. The
machinery set up by this lex, which is mentioned in many literary texts,
but little in legal sources, is imperfectly known5. An action based on
fraud on minors seems to have been set up by it, and another, based on
acts contrary to the lex, to have been introduced not much later. One
of these, probably the first, is described by Cicero as a iudicium publicum
rei privatae 6. Both of them appear to have been noxal. They leave but
little trace in later law. There was also, though no doubt of somewhat
later development, an exceptio legis Plaetoriae, a defence if an action
was brought to enforce the impeached transaction. Further we are told
by a non-legal writer of the fourth century that curatores were appointed
e lege Plaetoria for specific causes. This seems to mean not that the lex
provided for these, but that persons dealing with minors took the pre-
caution of seeing that the minor had an adviser. This was probably a
mere de facto guarantee of good faith. The curator probably acted only in
the specific transaction and it may be doubted if he had any legal status".

The praetor carried the matter further. He supplemented the pro-
visions of the lex by a machinery for setting the transaction aside—
restitutio in integrum8. Not every unprofitable transaction could be set
aside but only one in which either the minor was tricked or he made a
bad bargain owing to inexperience, what Ulpian calls inconsulta facilitas9.
It was in the hands of the praetor, decided causa cognita and on the
merits of each case10.

1 29. 2. 5. 1; Girard, Manuel, 231. 2 Ulp. 20. 13; P. 3. 4 a. 12. 3 2. 14. 28. 1
and G. 1. 53 seem to make in opposite directions. 4 C. 5. 70. 2. 5 The chief texts
are Plautus, Pseud, 1. 3. 69; Rudens, 5. 3. 24; Cicero, de nat. deor. 3. 30. 74; de off. 3. 15. 61 ;
Vita Marci (Capitolinus), 10; Suetonius, ap. Priscian, 8. 4. 21; 18. 19. 149; Tab. Heracl.
1. 112 (Bruns, 1. 108; Girard, Textes, 87); Fr. de form. Fab. 4; C. Th. 8. 12.2; Berl
Gr. Urk. no. 611. 1. 6. It appears to be referred to in 4. 4. 24. 3; 44. 1. 7. 1; 46. 2. 19;
sometimes called Laetoria, Vita Marci, cit.; C. Th. 8. 12. 2. 6 De nat. deor. 3. 30. 74.

7 See for various views, Girard, Manuel, 233; Cuq, Manuel, 227; Debray, Mel. Girard,

I. 265 sqq.; Roby, R.P.L. 1. 123. 8 P. 1. 7. 2; D. 4. 4. 9 4. 4. 1, 7. 1, 7. 5, 7. 7, 9. 2,

II. 3-5, 24. 1, 24. 2, 44; C. 2. 21. 5; post, § CCXLIV. 10 4. 4. 11. 3, 16. pr.; no restitutio
where the act of the minor was a delict or offence, P. 1. 9. 1; D. 4. 4. 9. 2, 37.

172 CURA MINORIS [CH.

Here too the presence of an adviser was a protection: it was
prima facie evidence that the transaction was fair. But it was not con-
clusive: there might still be restitutio if the adviser was careless or
fraudulent1, but not otherwise. If competent persons acting carefully
and honestly thought it a fair bargain there was no restitutio however
badly it turned out.

The first appearance of anything like an official curator of minors was
the right of persons who had certain dealings with a minor to require
that he should have a curator for the transaction, e.g. for the settlement
of the accounts of a tutor at the end of the tutelaz, for the payment of
a debt3, and where an action was to be brought against the minor4.
These were only temporary. But in the second century a change occurred
which is attributed to M. Aurelius5. Any minor might apply to have a
curator appointed, who, once appointed, acted for the whole minority6.
An appointment by the father's will was confirmed without enquiry,
but, in general, the magistrate appointed7. The function of the curator
differed somewhat from that of the tutor, and the remedy against him
was the actio negotiorum gestorum8. But the rules as to the magistrate
who appointed, security, excuses, removal for misconduct, restrictions
on alienation, termination, etc., were, in later law, in the main the same9.
The age of termination was 25, subject to venia aetatis, i.e. Severus and
Caracalla allowed the privilege of full age in exceptional cases, by im-
perial decree, before it was actually attained10, and Constantine provided
that this might be applied for only by a man of 20 or a woman of 1811.

As to function and capacity two periods must be distinguished, in
both of which however the rule seems to have been that no one need
have a curator unless he so wished, though it was usual, and, under
Justinian, almost a matter of course. One with no curator was under the
regime of restitutio in integrum. One with a curator was not in classical

1 4. 4. 39. 1 ; C. 2. 24. 2-5. 2 C. 5. 31. 7. 3 4. 4. 7. 2. 4 Inst. 1. 23. 2; C. 5.
31. 1. 5 Vita Marci, 10. Gaius speaks of cura minorum in the imperfect, 1. 197 sqq.
(which is older than M. Aurelius; Fitting, Alter und Folge, 56). Accordingly it is only
in certain cases, "ex iisdem causis." 6 4. 4. 1. 3. 7 26. 3. 6; 26. 5. 12. pr. A

furiosus minor had a curator, qua minor, 26. 1. 3. 1. 8 Lenel, E.P. 309. Available
during the cura, 26. 7. 26; 27. 3. 16. See on the nature of the remedy, post, § CLXXXV.
9 There are differences in detail. A man need not be curator to one whose tutor he had
been, C. 5. 62. 20; Inst. 1. 25. 18; P. 2. 27. 2; Vat. Fr. 200 (except libertus to patron's child.
C. 5. 62.5); or to his wife or sponsa or daughter-in-law, 27. 1. 1.5; C. 5. 34. 2; C. 5. 62. 17;
Vat. Fr. 201. Many texts dealing with curator are interpolated and refer to the system
established about the time of Diocletian (post, p. 173). Thus the curator is often
introduced into texts which originally dealt only with tutor, by Justinian (see e.g.,
Albertario, Z.S.S. 33. 240). The rules were not necessarily then new: the Vat. FIT. shew
the assimilation with tutela in progress. 10 4. 4. 3. pr. ; C. 2. 44. 1. 11 C. 2. 44. 2.
As to the machinery of the application, C. 2. 44. 2; D. 4. 4. 3. pr. Justinian holds such
persons still bound by the restrictions on alienation, C. 2. 44. 3, ante, § LV.

iv] CURA MINORIS 173

law deprived of powers: he could act as if he had none and was then
under the old regime1. But it was safer to act with the consensus of the
curator, which unlike the auctoritas of the tutor was quite informal2. It
was not indeed a complete protection against restitutio3, but made it
much less likely. The curator could act alone, and did so to an increasing
extent (as also did the tutor), though here too there might be restitutio*.
As a result of this tendency there occurred before the time of Diocletian
a change5, the nature of which is not undisputed, but which seems to
mean that, while it was still possible to act without a curator*, a minor
who had one lost his power of independent action and was almost in
the same position as a pupillus : he could do no act which would make
his position worse without the consent of his curator7, a rule which
gives the strange result that a minor sui iuris had less civil capacity
than one alieni iuris9.

There were obviously in later law two tendencies, first, to an assimila-
tion of tutor and curator minoris and, with this, the practice of giving a
curator as a matter of course, and secondly to independent action of
these guardians9 as opposed to giving auctoritas or consensus. Only a
small proportion of the texts which deal with cur a speak of co-operation10.
Of these many spoke originally of tutor or of cur a pupilli11, and most of
the rest are about litigation12. The rubric of the relevant title of the
Digest13 speaks of consensus curatoris, but the title gives no instance,
even by interpolation. It seems plain that the curator usually carried

1 Thus he could litigate on his own behalf. It is said indeed that the powers of the
curator did not extend in classical law to representation in litigation. Lenel, Z.S.S. 35.
197 sqq. 2 There is no authority for the view that consent could be given by letter
or ratification. No text speaks of consent in absence, and most of them emphasise the need
of presence (Vat. Fr. 110; D. 4. 4. 7. 2; 26.1.3.2; 42.2.6.3; C. 2. 24. 2; C. 2. 26. 4;

C. 5. 59. 1; C. 8. 37. 7). In 4. 8. 49. pr. and 26. 7. 25 the wards are/wnosits and pupillus.
The consensus of curator is distinguished from auctoritas of tutor in the rubric of D. 26. 8,
and consensus occurs in C. 3. 6. 2 and D. 23. 3. 60. Auctoritas is more common (1. 7. 8; 23.
3. 61. pr.; 49. 1. 17. 1 ; C. 5. 4. 8; C. 5. 59. rubr.). Some of these texts are interpolated : it
is not evident that all are. And we find consensus used of a tutor (26. 7. 1. 4). 3 C. 2. 24.
2, ante, p. 171. 4 C. 2. 24. 3, 5. 5 C. 2. 21. 3. It is known to Dio Cassius. See
Partsch, Neg. Gest. 87. 6 For the view that in all cases a minor had a curator after
this change see Cuq, Manuel, 230, but the texts cited hardly bear out the contention.
There seems no reason to think the change was a direct result of legislation. 7 The

D. still contains an expression of the old view, 45. 1. 101. 8 See Accarias, Precis,
!• 451. 9 Thus the legislation and comment on restrictions on sales of property
speak of the act as done by the tutor (27. 9 passim), and the same is true of the more
concrete cases discussed in C. 5. 71. The relatively short title on auctoritas tutoris suggests
that this was mainly used in formal transactions "quae sollennitatem iuris desiderant,"
26. 8. 19. 10 See the expressive language in 4. 4. 1. 3 and h. t. 2 and C. 2. 21. 3.
11 Inst. 1. 21. 3; D. 1. 7. 8(?); 23. 3. 60; h. t. 61. pr.; 26. 1. 3. 2; 26. 7. 25; h. t. 43. 1; 49.
1. 17. 1. 12 4. 4. 7. 2; 26. 7. 1. 4; 42. 2. 6. 3; C. 2. 26. 4; 3. 6. 2; 5. 59. 4. One at least
deals with stipulatio, C. 5. 59. 1=C. 8. 37. 7, and Justinian lays down a general rule,
C. 5. 59. 5. 13 D. 26. 8.

174 CURA PUPILLI [CH.

on the business himself, and that consensus was subordinate: it would
be needed where the curator could not do the act, e.g., aditio hereditatis1,
or where the minor had been made a party to litigation2.

Cura pupilli. There were several cases in which a person normally
under tutela might have a curator.

(a) In the cases of temporary absence or excuse in which a tutor had
been appointed in classical law a curator was appointed in later times3.
In view of the similarity of powers at this time the change means little
more than recognition of the fact that tutor ad certam rem is an
anomaly.

(b) Where any tutor was incapable, or a patron or par ens manu-
missor unworthy, it was usual not to remove him, but to appoint a
curator to act with him4. This is a different case from that of adiutor
tutoris. If a tutor was for some temporary reason unable to act in some
business he might if the pupil was absent or infans or infantiae proximus
either appoint with leave of the praetor, or ask the praetor to appoint,
an adiutor who was merely an agent and acted at the risk of the tutor*. It
was not necessary with an older pupil who could appoint a pro-
curator6.

(d) A woman over 12 but still a child could not manage her own
affairs and her tutor had no administratio. A curator was perhaps ap-
pointed to act for her8.

There are other forms of cura, such as cur a ventris9. which have some
relation to the law of persons, and others such as the various curationes
bonorum10 which have hardly any.

LXIII. PERSONALITY IN ROMAN LAW. JURISTIC PERSONS.

The word persona has not always meant the same thing. Primarily
signifying a mask it comes to mean the part played in life by a man and
hence the man who plays it. It is in this untechnical sense that the
Roman lawyers seem to use the word persona. Every man, slave or
free, is a person, and has a persona^-; and nothing else, no group or other

1 29. 2. 90. 2 See P. 1. 4. 2, and p. 173, n. 1. On the opinion of Partsch and

Solazzi that these curaiores did not "administer" in classical law, see Lenel, Z.S.S. 35.
129 sqq. See also Beseler, Beitrdge, 4. 88. 3 26. 5. 7, 15; Inst. 1. 21. 3; Ulp. 11. 20;

G. 1. 178; ante, § LIV. On the evolution of cura pupilli, Taubenschlag, Vormundschaft.fr.
Studien, § 3. 47 sqq. 4 26. 1. 13. pr.; Inst. 1. 23. 5; P. 2. 29. 5 26. 1. 13. 1 ;

26. 7. 24; Inst. 1. 23. 6. 626.7.24; C. 2. 12. 11. 7 Inst. 1. 21. 3; cf. G. 1. 184;

Ulp. 11. 24. Ante, § LTV. 8 See G. 1. 190; Inst. 1. 23. pr.; C. 5. 37. 12. 9 D. 37. 9,
post, § CCXLV. The crimen suspecti applies, 26. 10. 3. 3. 10 See Lenel, E.P. 418 sqq.
11 See, e.g., G. 1. 120; 3. 189; Vat. Fr. 82; Inst. 3. 17, 2, etc. Desserteaux, Capitis Demi-
nutio, 2. 99, etc., holding that a slave is a persona, thinks that this is due to his being "doue

iv] PERSONALITY 175

conception, has the name. The first sign of a more technical meaning
appears in texts which speak of a more or less complete persona, the
word beginning to bear a meaning akin to that of caput. Slaves and
young persons incapable of taking part in legal proceedings are regarded
as having an imperfect persona1. Late in the Byzantine age, but not
represented in the Corpus luris, there appears a technical sense for the
word in which it has come to mean a being capable of legal rights and
duties2. We can indeed frame two meanings for the expression, besides
that of "man": the "legal," i.e. that which is capable of rights and
liabilities in law, and the "philosophical," any unity possessed of self-
consciousness and will3.

Units other than individual men can be thought of as capable of
rights and liabilities, and even of acts and volitions. This is true of
corporate bodies and, so far as rights and duties are concerned, of such
a notion as the hereditas iacens, an inheritance on which the heres has
not yet entered. For such groups and conceptions the name juristic
persons is convenient, though neither this nor the mediaeval name,
persona ficta*, was used by the Romans.

It is important to grasp the distinction between common and cor-
porate rights. If several persons agree to carry out a business under-
taking together or to buy, e.g., a yacht for their common use, they
become in the ordinary way common owners of the assets of the business
or of the yacht in undivided shares. Each owns his proper proportion.
There is nothing corporate about this, no artificial person to whom the
property belongs. But the position is quite different in the case of a
corporate body, a municipality or a railway company. Here the property
belongs to the corporate body and not to the individuals. A share-
holder who walks on the railway is just as much a trespasser as
any other person. The inhabitants of the town do not own undivided
shares in the guildhall5. In Roman Law this group personality
could not arise of itself: it was always the creation of the State6.
Hence arose the question, put in the middle ages and still de-
bated, whether this group personality is real or fictitious. It always
had been created by the State, and when it was once conceived of

d'une fonction juridique." This half-way house between the view that he was not a persona
and the language of the texts implies that a servus sine domino not held by any one would
not be a persona. It is difficult to reconcile with the language of Gaius (1. 120, 121),
where the servilis persona is being mancipated as a chattel, or with 30. 86. 2. It is un-
likely that the expression would have been used in these texts if any such distinction had
been in the writer's mind.

1 C. Th. 3. 17. 1; C. 5. 34. 11. 2 Nov. Theod. 17. 1. 2. 3 See Kuhlenbeck,

Entwickluncjsgeschichte des R. Rechts, 2. 10 sqq. 4 See Maitland, Coll. Pap. 3. 304 sqq.
5 The recognition of this distinction does not come by nature, see Maitland, Township
and Borough, 12 sqq. 6 3. 4. 1. pr.

176 CORPORATIONS [CH.

as fictitious it followed that it must be so created1. But into these
questions we cannot go2.

If we accept the "legal" definition, capacity for rights and duties3,
then while it is clear that personality can attach to groups, it is possible
to regard it as attached to conceptions which are not groups at all,
e.g. the hereditas iacens. German Law has gone far in this direction: it
recognises as juristic persons Foundations (Stiftungen), i.e. Funds con-
sisting of property earmarked for certain purposes, usually charitable,
the ownership being vested, not in the administrators, who are mere
agents, but in the Fund itself4.

Roman Law recognised right-holding units other than individual5
men, though it did not apply the word persona (or even caput, which
corresponds with persona in its modern legal sense) to them. Ulpian
indeed speaks of individuals as personae singular es*, which suggests the
extension, and these group persons were said to have corpus1.

LXIV. In the republic there were three types of corporate body:
the State (populus Romanus), the municipality, and private corporations
of various kinds. The populus is in a sense the most important of all
corporations8, but it makes little appearance as a factor in private law,
its rights and obligations being regulated not by the ordinary courts
but by administrative machinery: it was essentially a " publicistic "
entity. As the Emperor increased in power the importance of the
populus lessened. In the third century the popular treasury, the
aerarium, almost disappeared, and the Imperial treasury, the Fiscus,took
its place. The right conception of fiscal property, i.e. of the juristic
nature of the Fiscus, has been the subject of much discussion9. It is
bound up with other obscure questions, e.g. with the relation of the
so-called privata res Caesaris with the patrimonium, and of both these

1 Maitland, Introduction to Political Theories of the Middle Age, xviii sqq. The fiction
theory necessarily involves the concession theory. The converse is not true. The State
could confer "legal" personality on a slave, indeed in Rome all manumission was in
theory controlled by the magistrates or the populus, but there was nothing fictitious
about a freedman's personality. See also Maitland, Coll. Papers, 3. 314. 2 The

matter has attracted much more attention on the Continent, where indeed it has been of
much more political and practical importance. See for an exhaustive discussion and a
statement of many shades of opinion, Saleilles, La Personnalite Juridique. 3 See, e.g.,

Girard, Manuel, p. 93. 4 The ultimate beneficiaries are a quite unknown quantity.

For the Stiftung see Windscheld, Lehrbuch, 1. Sec. 57; Schuster, Princ. of Germ. Civ.
Law, 37 sqq. 5 See Mitteis, Rom. Pr. 1. 339 sqq.; Saleilles, La Personnalite Juridique,
45 sqq. 6 4. 2. 9. 1; 50. 16. 195. 1. The hereditas sustinet personam, but it is that of

deceased or heres. Post, § CVTI. See 46. 1. 22 where similar language is applied to "'mitni-
cipium, decuria, societas." 7 3. 4. 1. pr. 8 Attribution of property to populus does
not connote common ownership, any more than does our word Commonwealth. 9 See
Mommsen, Staatsr. 2. 998; D.P.B. 5. 290; Mitteis, op. cit. 350; Koschaker, Z.S.S. 32.
407.

iv] CORPORATIONS 177

to the Fiscus. The privata res and patrimonium need not here be con-
sidered, but the Fiscus plays a large part in the Corpus Juris. It ac-
quired property under private law in many circumstances, e.g. bona
vacantia. It sued and could be sued before the ordinary courts in rela-
tion to the transactions of its officials1. Its property is described some-
times as that of the Fiscus2, but often as that of Caesar3. But there was
nothing corporate about the Emperor4. His own really private property
he could dispose of, e.g., by his will, like any other citizen5. But fiscal
property went to his successor. It appears certainly to have been
thought of in the early empire as the property of the Emperor, while as
yet the imperial officials were mere agents of his, and the populus,
represented by the Senate, shared the sovereignty with him. There is
no difficulty in the fact that he was a private man: this particular
property was dealt with under special " publicistic " rules6. But when
the populus and the aerarium had lost all importance and the imperial
officials were the real State officers, though the attribution to Caesar
still persisted, the property was in fact contemplated as that of the
State, the attribution meaning no more than does the appearance of
Rex as plaintiff in our courts when claims of the State are in question.
High modern authority7 however goes further, and holds that the
Fiscus itself, as an independent Anstalt, was really the owner of the
property. Whether the ownership is here contemplated as in the group
of officials, or the case is one of a true Stiftung and the ownership in the
Fund or Z-uceck itself, is not altogether clear. But the author cited recog-
nises that for practical purposes it was the property of the State8.

Municipalities9 were of many types. During the republic they seem to
have been mainly the subjugated, incorporated, communities which
received, or were not deprived of, corporate character, but early in the
Empire similar rights were conferred on local communities of all kinds10,
the foundation, however, of such a community being always an act of
State. Their power of acting as legal persons was restricted in various

1 Bethmann-Hollweg, Rom. Civilproc. 3. 78. But there were for the most part special
tribunals in later law. See Mitteis, op. cit. 364 sqq. 2 E.g. 49. \& passim. 3 E.g. Fr. de
iure Fisci, passim. 4 The Romans approach this notion here and there. By a rescript of
Pius a legacy to the Emperor takes effect in his successor if a change occurs before the will
operates, even though it is a question of his really private property, and the same rule is not
extended to the Empress, 31. 56, 57. 5 See Mommsen, Staatsr. 2. 999, n. 1 ; D.P.R. 5.

293, n. l;Mitteis, Rom. Pr. 1. 354 sqq. The whole question of the legal conception of the
Emperor's property is obscure. 6 The Prince of Wales is a private man, but his

Duchy of Cornwall passes under rules unknown in other cases. 7 Mitteis, op. cit. 350.
8 The Stiftung idea would have been unintelligible to the Romans, and if the conception
of ownership in the Anntalt had given any practical result differing from that of State
ownership, it would no doubt have been repudiated by the Emperor. 9 See Mitteia,
op. cit. 376 sqq. 10 46. 1. 22. Mitteis, loc. cit.

B. B. L. 12

178 COLLEGIA [CH.

ways. Nerva authorised all civitates to receive legacies and Hadrian
regulated this1, but they could not in general be instituted heredes till
the later empire2. Italian communities could free their slaves from
early times, but the right was extended to the provinces only in A.D. 1293.
As a community could not act for itself, persons were appointed to act
for it, permanently in later law, but apparently only ad hoc in classical
law4.

Of private associations5 Rome knew many kinds. There were the
sodalicia, devoted to particular cults, some very ancient, others ex-
pressly founded by the State. There were numerous gilds or societies
with diverse objects, trade gilds, friendly societies, burial clubs, etc.
Many had corporate character, many had not, and it is not easy to say,
for early law, which had and which had not. The sodalicia had. Many
gilds had. But nothing can be inferred from the name collegium. The
College of Pontiffs was merely a group of officials and the same is true
of the other old official "colleges." Whether private collegia needed
authorisation under the republic is uncertain, but it does not appear, in
any case, that they had corporate character. They had certainly no
power of litigation under the legis actio system, since they could not
themselves appear and there was no representation. In the Empire no
collegium could be founded without authority of the State, either ex-
press or by a general enactment, such as the senatusconsult of uncertain
date which gave a general authority to found collegia tenuiorum, in
essence, burial clubs6. The change dates from a certain I. lulia, probably
of 7 B.C., which while confirming many existing collegia required State
authority for new ones7. It is widely held, on the authority of an obscure
text, attributed to Gains8, that every collegium, founded on authority
had corporate capacity. But the text does not say this, and Mitteis
remarks that while we know that collegia were very numerous in the
empire the same text says that the power to have a corpus was given
very sparingly, and he points out that it was not till M. Aurelius that all
collegia acquired such normal attributes of personality as the right to
free slaves and receive legacies. He concludes that the right to form a
collegium and grant of corporate capacity were distinct and given
separately till the time of M. Aurelius9. When corporate they could be

1 Ulp. 24. 28. The earlier instances cited by Mitteis, loc. cit., may well be privilegia.
See 30. 73. 1. 2 C. 6. 24. 12. Post, § cm. 3 C. 7. 9. 3. The manumission was

effected by a vote of the curia, C. 7. 9. 1-3; C. 11. 37. 1. 4 Liebenam, Stddteverwaltung,
301. Mitteis, op. cit. 342 sqq., observes that in the republic there are still traces
in corporate municipalities, of common ownership, as opposed to corporate, but that it
all disappears under the organising hand of the Emperor. The rules as to the giving
of security to public slaves contain a trace of the same thing, ante, §§ XLV, LV.
5 Mitteis, op. cit. 390 sqq. 6 47. 22. 1. pr., 1. 7 Mitteis, op. cit. 395. 8 3. 4.

1. pr. 9 Mitteis, op. cit. 399 sqq., 40. 3. 1; 34. 5. 20.

iv] PIAE CAUSAE 179

instituted by their liberti1, but so far as is known not by other people2.
And they had the patron's right of succession3.

LXV. In the early empire, certain deities, but not all4, could be
instituted heredes, but it is far from clear who was thought of as the
actual owner of the property. Probably, as Mommsen held, it was the
State, for even the administration was by the magistrates and not by
the temple priests6. Soon after the recognition of the Christian church
by the State, Constantine authorised gifts by will to Christian churches6.
All church property was contemplated as, in a sense, that of the church as
a whole, but this is a sort of eminent domain, and it is fairly clear that
in each community the church property was regarded as a separate
patrimony. It was administered by the bishop and the Oeconomus, but
the ownership seems to have been thought of as in the religious group
as a body, though it is not clear whether in the clergy or the whole of
the members, the latter being the more probable. The administration
was not free: there were elaborate rules regulating the application of
the various parts of the revenues, and restricting alienations of property7.
This notion of funds earmarked for certain purposes was utilised by
those desirous of founding charities, a thing difficult to do with any
guarantee of permanence in the classical law8. Property was given or
left to a church to be applied to the charitable purpose9, and if it was
to be permanent the bishop set up an establishment managed by his
nominee and staffed by clergy. There were many kinds, hospitals, alms-
houses for the old, poorhouses, orphanages, etc.10 In such cases the
better view seems to be, though the matter is disputed11, that the church
of the place was the owner of the property. A further step was taken
when men began to found such charities without express reference to the
church. Gifts for these purposes to the church or to existing institutions
raised no new questions, and if the founder did not specify the mode of
execution it was in practice treated as one of these12. Thus the institution
of pauper es or captivos generally, as heredes, was not to be objected to
on account of the rules as to incertae personae, but was interpreted as
institution of the local establishment for such purposes (or, if there was

1 37. 1. 3, 4; 40. 3. 2. 2 Mitteis, op. cit. 402, who mentions certain exceptions

resting on privilegia. 3 40. 3. 2. As to societates publicanorum, post, § CLXXVIII.

4 Post, § cm. 5 Mommsen, Staatsr. 2. 59 sqq.; D.P.R. 3. 67. 6 C. 1. 2. 1. 7 E.g.
C. 1. 2. 12. 2, h. t. 17, etc. 8 To give it to a civitas was the safest plan. For the

various experiments see Pernice, Labeo, 3. 1.56 sqq. ;post, § LXVIII. 9 E.g. C. 1. 2. 19.

They are called Piae causae. The expression or its Greek equivalent is common in
the Code and Novels, but it is disputed whether till later it denoted the foundation or
merely the intention. Later it is the general name for such '"foundations." 10 Enumera-
tions, C. 1. 2. 15, 19, 23, etc. 11 See Saleilles, Mdl. Gdrardin, 513 sqq., who has an
elaborate discussion of the whole topic, with many reff. to earlier literature. 12 C. 1. 3.
28,48; Nov. 131. 11.

12—2

180 PIAE CAUSAE [CH.

none, the bishop, who would set up the necessary domus) with directions
as to application1. If the founder gave full directions as to the establish-
ment, the heres, or other person charged, must set it up and only if he
failed had the church any part. Even then the bishop must appoint
to the control any person nominated by the founder2. These might still
be called ecclesiastical because they were usually staffed by priests and
there \vas a general right of supervision in the bishop, as a sort of state
commissioner. It is clear that there were two classes of these establish-
ments, those directly under the bishop and those of which the admini-
stration was independent3. Indeed it is clear that some founders sought
to exclude the church from any interference with the charity, and
Justinian enacted that such a direction should not exclude the bishop's
general right of supervision4. These relatively independent domus seem
to belong to the age of Justinian.

This state of the texts raises three questions. Are these establish-
ments to be regarded as juristic persons or merely as church depart-
ments? The language of the texts from which any conclusion must be
drawn, which are mostly in Greek, is so diffuse and lacking in juristic
precision that no deduction from the exact wording is justifiable. But
the texts so constantly treat them as on the same footing as churches,
monasteries and civitates5 that it is almost impossible to come to any
conclusion but that they had personality, and this is in fact almost
universally held. The question then arises how this comes to be attri-
buted to them, since corpus habere required a state concession. It might
be said that by reason of their ecclesiastical character they were thought
of as covered by the concession to churches6, but this hardly seems
sufficient for those specially independent domus, in which the church
had so little official part. Or it may be said that the authorisation of
gifts to such bodies was in itself an implicit gift of personality. But it
may well be that it is merely a gradual tacit extension from the recogni-
tion of those which were essentially under the bishop. The question
remains: who or what constituted the person? According to one view
it is the foundation itself, the Fund earmarked for certain purposes
owns itself7. But this is of course not the Roman view : it is merely a

1 C. 1. 2. 15; 1. 3. 28, 48. The texts construe such a gift as a gift to an establish-
ment (C. 1. 3. 48). 2 C. 1.3. 45. 3. 3 Nov. 120. 6. 1. 4 Nov. 131. 11; C. 1. 3. 45. pr.
5 C. 1. 2. 13, 15, 19, 22, etc., esp. C. 1. 2. 23. 3. 6 See Saleilles, Mel. Gerardin, p. 547.

7 Girard, Manuel, 242, holds that some were Stiflungen in the strict sense, but it is difficult
to identify the type he has in mind The obvious illustration of "masses de biens affectes
a un office determine sans etablissement greve quelconque" would be funds for redemption
of captives. But the texts, apart from the cases in which it is a legatum or the like, sub modo
(C. 1. 3. 28. 1), seem usually to attribute this to the bishop, precisely because there is no
establishment (C. 1. 3. 28. 2,48. 2; Nov. 131. 11), and it seems rather an improbable
refinement to separate this from the rest of the property the bishop held for the church.

iv] PIAE CAUSAE 181

description of the thing in terms of the rules of certain modern systems
which give a similar practical result: it is no explanation at all for an
English lawyer whose system recognises no such conception. The texts
shew that the property is attributed to men. When we ask what men,
there are two alternatives. For M. Saleilles1, they are the indeterminate
ultimate beneficiaries, all corporate idea being really gone, surviving
only in a few chance descriptions of them as corpora and the like2. The
other alternative, and it seems more in accord with the texts, is to
regard them as true corporations3. It is even arguable on the texts that
where the purpose was the dispensation of funds or temporary relief
the ownership was in the administrators, the trustees of the charity as
we should say, and where it was a permanent asylum in the residents
therein4.

1 Mel. Oerardin, 538 sqq. 2 76. 541. 3 The allusions to them as corpora, domus,
consortia, collegia or Greek equivalents are too frequent to be looked on as mere survivals
of a terminology that was never appropriate to them. And the frequent assimilation to
bodies which were certainly corporate makes in the same direction (see p. 180, n. 5).
4 See e.g. C. 1. 3. 45. 10.

CHAPTER V

THE LAW OF THINGS. RES. PROPERTY. POSSESSION.
JURE GENTIUM MODES OF ACQUISITION OF PROPERTY

LXVI. Subject of lus Rerum, p. 182; LXVII. Classification of Res, 184; Res corporales,
incorporates, 187; LXVIII. Order of the Institutes, 188; Nature of dominium, ib.; Restric-
tions, 189; LXIX. Ownership of provincial land, 191; Ownership by peregrines, 192;
LXX. Bonitary ownership, ib. ; Exceptio rei vendible et traditae, 193; Actio Publiciana,
ib.; LXXI. Actio Publiciana, cont., 195; LXXII. Possession, 198; LXXIII. Acquisition
of possession, 201; LXXIV. Loss of Possession, 204; Possession as a right, 205; LXXV.
Acquisition of Dominium, 206; LXXVI. Occupatio, 207; LXXVII. Accessio, 210; LXXVIII.
Accessio to buildings, 213; LXXIX. Specificatio, 216; LXXX. Thesauri Inventio, 219;
LXXXI. Acquisition of fruits by non-owner, 222; Fructuum Perceptio; Conductor, ib.;
Usufructuary, 223; LXXXII. Fructuum Separatio, Emphyteuta, 225; Bona fide possessor
ib.; LXXXIII. Traditio, 228; causa, 229; Modalities, 231; Forms in late law, 232.

LXVI. The second and the largest of the three divisions of the
Private Law is that concerned with Res1. It differs essentially from
Austin's Law of Things since the classification itself starts from a different
point of view. The special effects of transactions by persons in excep-
tional positions, e.g. slaves, are considered under this head, so far as
they create assets for the paterfamilias2, while, for Austin, these are
matter for the Law of Persons3. The lus Rerum of Justinian is not the
general part of the law as opposed to that which can be most con-
veniently discussed in detached provisions: it is the law of patrimonial
rights, the discussion of all those rights known to the law which are
looked on as having a value capable of being estimated in money4. The
rights incidentally mentioned under the law of persons do not constitute
a difficulty, since they do not in general admit of valuation. A man
may bring an action claiming liberty, a father may "vindicate" a son5,
but there is no question of damages in either case. Liberty, we are told,
is inestimable6. The rights which the owner or others may have in a
slave are dominium, usufruct, etc., and form part of the ius rerum.

1 General discussion of the threefold scheme, ante, § xxi. 2 G. 2. 86 sqq. ; 3. 163 sqq. ;
Inst. 2. 9; 3. 28. 3 Jurisprudence, 2. 708 sqq. 4 Anything by which one is "actually
or prospectively better off," Movie, Inst. Just. 187. The word "property" is similarly
used in the expression — a man of property. A man with a million in government securities
would be called a man of property, though he had nothing else, but a mere claim on the
State. 5 6. 1. 1. 2. 6 50. 17. 106. In Ulpian, 19. 11, tutela legitima libertae appears
as a res incorporalis. This might be justified by the fact that the patron has an indefeasible
right of succession to such a woman and he loses the certainty of this if he transfers the
control. (Ante, § LX; G. 3. 43 sqq.) But the word res is not always used in the technical
sense, see p. 183.

CH. v] RES 183

There is more difficulty however with respect to the rights incident-
ally discussed in the ius actionum. Besides pure procedure this branch
of the law contains discussion of some obligations, of some rights of
action, as well as the rules of procedure. Most of these are introduced
merely incidentally as illustrating the form of action at the moment
under discussion. This is plainly the case with those which are men-
tioned in the course of the explanation by Gaius of actiones ficticiae1
and of the praetorian actions against an owner on the contracts of his
slave2, as to which Gaius expressly says3 that he is compelled to discuss
them as he has just spoken of the actio de peculio*. The discussion of
this first type of accessory actions suggests that of the others, the noxal
actions. But they are all considered systematically, not merely allusively.
The question why it seemed more appropriate to discuss them there
than in the ius rerum will be considered later5.

For the purpose of the institutional scheme a res was an element in
wealth, an asset. This is an economic conception, essentially different
from the Austinian thing, a permanent external object of sensation6,
which is a physical conception. It may be supposed that Austin is
really thinking of objects over which there may be ownership, a notion
useless for our present purpose7. We shall shortly see that the sea and
air were res. But they were res communes: they had a potential value,
but it could not be appropriated to any individual. The important
point for us is that what was present to the mind of the author of the
Roman classification was legally guaranteeable value.

The subject of res (or ius rerum) is treated under two main heads,
i.e., what are now called iura in rem (including universitates iuris), rights
available against all, and iura in personam, obligationes, available only
against specific persons, the names being derived from the Roman
actio in rem, in personam, which express the same distinction. But such
a division cannot be quite exact. Hereditas included rights both in rem
and in personam8, and so, in a less complex way, did a pledge of property 9

1 G. 4. 34 sqq. 2 G. 4. 69 sqq. 3 Ib. 4 The earlier mention is lost : it

may have been in the two illegible pages which occur just before. 5 Post, § ccvi.

6 Jurisprudence, 1. 368. 7 Res is a word with as many meanings as "thing," but

when used technically it always connotes a right, though not necessarily all rights, or in
early law all rights having a money value came within the notion. In the famous "Uti
legassit super. . . .suae rei" (XII T. 5. 3) it probably means nothing but physical things
the subject of ownership, and rustic servitudes of the primitive kind. 8 In the XII

Tables such debts as existed were not treated as part of the hereditas and were specially
dealt with (see C. 2. 3. 26; 3. 36. 6). So Karlowa, R.Rg. 2. 907, though his reasons are
not quite conclusive. But it is clear that they were included, in the classical law, for
hereditatis petitio lay against one who held no part of the property but owed money to
the estate and refused to pay, claiming to be htres (5. 3. 13. 15). Normal debtors must of
course be sued by separate actions for the debts. 9 But there were pledges such as

pledges of a debt to which the notion of ius in rem cannot possibly be applied. Po-ft, § CLXVII.

184 CLASSIFICATION OF RES [CH.

(though in fact pledge was never expressly treated as a ius in rent).
When we remember that even an ordinary contract, which is essentially
a relation in personam, might nevertheless, in some cases, give rights
against third parties, and so operate in rem1, it is clear that no exact
division of the law under these two rubrics can be expected.

LXVII. The treatment of the subject opens with classifications of
res. Justinian's main classification2 groups them according to the
rights existing over them, a matter in some cases affected by the nature
of the thing. Res were either in patrimonio3, i.e. belonging to some one,
or extra patrimonium. These last were of various kinds.

(a) Res communes. The common property of every one: the air,
running water, the sea, and, in later law, the seashore to the highest
winter floods4. Access to the shore was open to all, but no one might
erect buildings on it, since it was not iuris gentium like the sea itself.
But its use was, and therefore one might build shelters and the like, under
license from the authorities, presumably for purposes connected with
the use of the sea. These shelters appear to have been owned, but as
shelters only, giving no right to the soil, and thus, if the shelter fell or
was taken down, the shore was again common5.

(b) Res publicae. Property of the State. Such were highways, rivers
and harbours, so that all might navigate and fish and make fast at the
ports, etc., the use of the banks being public for this purpose6.

(c) Res universitatis. Property of a corporation, of which Justinian
takes the civitas as the type, mentioning theatra, stadia and the like7,
but the property of the corporate collegia would come under the same
class.

(d) Res nullius. Property belonging to no one. Such things might
be either divini or humani iuris. Divini iuris were res sacrae, religiosae
and sanctae. Res sacrae were those which had been formally accepted
and consecrated by the priests, with statutory authorisation8, as well as

1 Apart from the case of pledge. Thus an actio doli lay against a third party who
wilfully made performance impossible and so released a party, 43. 18. 5. 2 Inst. 2.

1. pr. sqq. 3 Patrimonium means properly the same thing as "property" in the wide
sense, or res. When Paul says (50. 16. 5) that res includes what is not in the patrimonium he
is not discussing this classification, but perhaps limitation of jurisdiction in certain cases
to res not above a certain value, and means that, in fixing this, all assets are included
whether heritable or not, patrimonium being used in a narrow sense to mean heritable
rights. See Lenel, Z.S.S. 2. 43. 4 See post, p. 186. 5 By a sort of postliminium,

1. 8. 6. pr.; 43. 8. 3. 1, etc. 6 See post, p. 186. 7 It is to be noted that property of
the State and universitates is of two types. The things above mentioned are not only the
property of the body but are open to the use of its members, but public slaves or land,
or money in the treasury, differ from the same things in private hands only in having a
different kind of owner. They are in patrimonio universitatis. No classical text calls
public slaves res publicae. See 1. 8. 6. 1; 18. 1. 72. 1. 8 G. 2. 5; D. 1. 8. 9. 1, a re-

quirement confined to land under Justinian.

v] CLASSIFICATION OF RES 185

dedication. Such were churches, and their contents and sites1. Res
sacrae could not be commercially dealt with, and could always be re-
claimed, except that Justinian allowed them to be sold for redemption
of captives, and similar purposes2. Res religiosae were tombs and burial
grounds. Like res sacrae they could not be commercially dealt with.
But the rules under which land became religiosum were carefully laid
down. The burial must be in all respects lawful3. The corpse must be
one the buryer was entitled to bury4, and the land must be such that he
had a right to bury in it. If another had any proprietary right in the
land it was not religiosum unless he consented5, but with the necessary
consent another's land might be made religiosum. Only the space
occupied by the body was religiosum, except that the character affected
in practice a whole space set apart as a sepulchre6.

Res sanctae were the gates and walls of a city, but that conception is
of little importance in private law. It was a capital offence to commit
any outrage on them, e.g. scaling them, but no plain reason appears
why the ownership might not have been regarded as vested in the city7.

Res nullius, humani iuris, were those which belonged to no one.
They are not mentioned in the classification at this point, but appear
later in the treatment of modes of acquisition, in which the acquisition
of these res nullius is the first point considered. Wild animals and
abandoned property were the most important examples8.

The classification differs from that of Gains9 in arrangement rather
than in principle. After stating the distinction between res in patri-
monio and extra patrimonium, Gaius gives a main division into res
divini and humani iuris. The former were the res sacrae, religiosae and
sanctae. Speaking from the pagan point of view he makes res sacrae
devoted to the di superi and religiosae to di inferi, manes. He tells us
that as no civis really owned provincial land it could not in strictness be
made religiosum, but might be treated as pro religioso, and he makes a
corresponding remark for things made pro sacris in the provinces by

1 The soil is sacrum though the church be pulled down. As the contents belong to no one
there can be nofurtum of them: it is treated as a form of sacrilege, Mommsen, Strafr. 762.
They cannot be usucapted (post, § LXXXVII), but as they belong to none there is a difficulty
about reclaim. Justinian allows the administrators of the church to "vindicate" (C. 1. 2.
21): in classical law probably by administrative machinery as in charities, Pernice,
Labeo, 3. 1. 150. 2 Inst. 2. 1. 8; C. 1. 2. 21. 3 G. 2. 6; Inst. 2. 1. 9. Thus burial

in urbe where it is forbidden does not suffice, P. 1. 21. 2; D. 47. 12. 3. 5. 4 G. 2. 6.

5 Or ratified, D. 1. 8. 6. 4. 6 Inst. 2. 1. 9; D. 1. 8. 6. 4. As it was incapable of

being commercially dealt with, a tomb included in land sold was ipso facto excluded from
the sale, P. 1. 21. 7. There would be a claim for reduction of price, if buyer was in good
faith. 18. 1. 22-24. 7 The city walls cannot well be carried off and there was adequate
protection for them without appealing to the law of property. See D. 1.8. 8, 9. 8 There
are things unowned but not susceptible of occupatio, apart from res s. r. and s. See post,
§§ cvn, cxvn. 9 G. 2. 1 sqq.

186 CLASSIFICATION OF RES [CH.

authority, probably, of the praeses. He divides res humani iuris into
public and private (the subject of private ownership), the former
covering res publicae and res universitatis. He says of these that they
are nullius in bonis. He does not here expressly mention either res
communes or things wholly unowned, such as wild animals.

Some of the distinctions involved in this classification were evidently
rather fluid in classical law. Gaius had a leaning to inclusion under the
class res nullius of everything which had not an individual owner or
owners. For him the property of a universitas was nullius in bonis, but
he went on at once to say that it belonged to the corporation1: he
could admit that a corporation could have rights but was not quite
able to contemplate it as a person, an owner like a man. So too while
Marcian and Justinian made the seashore common2, Celsus made3 it
public, at any rate where the land behind was Roman. Paul4 avoided either
expression and said: "nullius sunt, sect iure gentium omnibus vacant."
Neratius5 treated it similarly as a sort of res nullius, though he admitted
that if a building erected thereon came down the acquisition was at an
end. For Marcian, while the litus was common, it was not iuris gentium
like the sea itself6. The better view is perhaps that also stated in the
Institutes, i.e. that only the use was public, as is clearly the case with
the banks of rivers7. As to rivers themselves the texts leave room for,
and indeed contain, differences of opinion as to the sense in which they
were public8. According to one view they were public, soil and all, but
this can hardly be reconciled with the rules of alluvio, insula nata9, etc.
Accordingly it has been held that what was public was the river as
such, not the water, which was common, or the soil of the bed which
belonged to the riparians10. Others have held that the river was public
only quoad usum. The more probable view seems to be that the earlier
lawyers merely held that a river was public, without refinements. As
early as Cicero11 rules arose giving riparian owners rights, and there was

1 G. 2. 11. 2 Inst. 2. 1. 1 ; D. 1. 8. 2. 3 43. 8. 3. 4 18. 1. 51. 5 41. 1. 14.
Costa, Le Acque nel dir. Rom. 93 sqq., observes that the texts in n. 2 and the interpolated
47. 10. 13. 7 are the only texts which make litus "commune" while many make it public
and infers that it is the compiler's doctrine, the classics making it public, Cic. Top. 1. 32;
D. 41. 1. 14; h. t. 50, 65. 1; 43. 8. 3; 50. 16. 112. But Marcian is very late and may be the
author of the doctrine. Costa also holds that the State claimed ownership over the adjacent
seas, arguing from 1. 8. 10 and the leases of fishing rights, 47. 10. 13. 7, and the fact
that buildings in the sea were on the same footing as those on the litus. But no text calls
this public and a great number make the sea commune with no reservation. The rule as
to fisheries may be construed as matter of pure jurisdiction. 6 1. 8. 4. pr. 7 1. 8.

5; Inst. 2. 1. 4. 8 See. e.g., 1. 8. 4, 5; 43. 12. 1. 3; Inst. 2. 1. 2. 9 Post, § LXXVII.
10 See Pernice, Labeo, 1. 273. Costa (Le Acque nel dir. Romano) has a full discussion of
the distinction between public and private waters, rivi, lacus, stagna, etc., and of the
various rights which could be created in them. 11 De or. 1. 38. 173.

v] RES CORPORALES, INCORPORALES 187

a tendency among classical lawyers to regard them as owners of the soil,
the public rights being merely of use1.

We have from Justinian another classification of things from a
different point of view. Res were either corporales or incorporates2. The
former were quae tangi possunt, the latter, quae tangi non possunt. So
stated the distinction is simple. Physical objects were res corporales and
these are given as illustrations. Res incorporales were abstract con-
ceptions, notional things, and, as res meant assets, res incorporales were
rights. The illustrations given by Justinian and Gaius are rights of various
kinds3. When these are examined the fact emerges that the most im-
portant of all rights in the ius rerum is not there. Dominium was not
a res incorporalis. It was in fact treated as a res corporalis, indeed the
only res corporalis. The thing was spoken of when the ownership was
meant, as it is in ordinary speech and indeed in our Real Property Law
in the distinction between Corporeal and Incorporeal hereditaments4.
Throughout the treatment of the acquisition of dominium both Gaius
and Justinian speak of acquisition of res corporales.

Res incorporales were however res and thus did not include matters
belonging to the law of persons : liberty, patria potestas, etc., were in-
tangible, but were not res5. We have seen that the ius rerum distin-
guished between iura in rein available against all, and iura in personam,
obligationes, available only against a specific person or group. Both
Gaius and Justinian, after him, speak of obligations as res incorporales6,
but elsewhere they sharply distinguish them 7, and in fact most texts do
not so include them8. It seems then that the use of the name res to
include such rights in personam was not usual : obligations were more
commonly coupled with actions9.

1 41. 1. 65. 2. In view of the water rights which existed, it has been said that the main
importance of the fact that rivers were public is that there could be no theft of the water.
2 G. 2. 12, 13; Inst. 2. 2. pr. 1. These words are post-Augustan, and though Cicero uses the
idea (Affolter, Inst. Syst. vm b), he is philosophising, merely restating Greek notions,
not talking law. There is no evidence that notional things were dealt with in law as such
for a century after. 3 G. 2. 14; Inst. 2. 2. 2. 4 With an oddly different result. Where
property is given by will to A with a life estate reserved to B, B has the corporeal heredita
ment in English Law, A has the res corporalis in Roman Law. 5 As to tutela, ante,

§ LXVI. A more notable omission is Possession. As to the reasons for this, post, § LXXIV.
6 G. 2. 14 =D. 1. 8. 1. 1; Inst. 2. 2. 2. 7 G. 3. 83; Inst. 3. 10. 1. 8 See Ulp. 19.

11; D. 41. 1. 43. 1; 8. 1. 14. pr.; C. 7. 33. 12. 4. There are a few texts dealing with iura
incorporalia, which are all iura in rem, C. 7. 33. 12; C. 7. 37. 3; D. 41. 3. 4. 26. But these
are of little significance since the name ius is ordinarily confined to iura in rem. 9 Post,

§ cxxni. Kniep, Gai. Inst. Comm. 2, ad 2. 14 (p. 121), is of opinion that the passage including
obligations is Gaian, and indeed from an original which he dates back into the republic,
and the text which excludes them an addition. There is no obvious reason for this alternative
rather than the other. And that the republican lawyers used the expression res incorporalis
at all seems improbable. A post-classical evolution in the opposite direction is far more

188 DOMINIUM [CH.

The distinction between land and moveables, fundamentally im-
portant in modern law, was of only subordinate interest in Roman Law.
It was, however, material in the law ofusucapio1, of mancipatio2, ofdos3,
of tutela*, of theft5, and to some extent in procedure6. In classical law,
land itself was of two varieties, the distinction being of great importance,
solum italicum and solum provinciate7 . But this distinction had dis-
appeared under Justinian, as also had the important distinction between
res mancipi and nee mancipi8.

LXVIII. DOMIXIUM. Before entering on the ius rerum itself it is
necessary to say something of the order in which it is treated by Jus-
tinian (and, in the main, in these pages). Jura in rem are treated first,
beginning with the modes of acquisition of dominium, iure gentium. Then
follow the modes of acquisition of res incorporates, which are iura in rem,
i.e. practically servitudes. Then follows the discussion of such civil law
methods as existed in his day. It is however more convenient to con-
sider all modes of acquisition of dominium before passing to servitudes,
Justinian's order, suggested on this point by that of Gaius, being due
to the fact that the discussion is in the form of a commentary on the
proposition that all things are either corporeal or incorporeal. Then
follows agency in acquisition and alienation, and then acquisition of
res, per universitatem, of which hereditas is the most important case. He
then proceeds to obligation. It is in the main the order of Gaius except
that Gaius treats the iure civili methods before the iure gentium. They
were the most important in his day, but mancipatio and cessio in iure
have disappeared under Justinian. A text in the Digest from another
work of Gaius declares that it is desirable to treat the iure gentium
methods first, as being the most ancient9. But this piece of history
may be due to the compilers, as the order suggested is, as we see, not
the order of the Institutes of Gaius.

We have now to consider what is meant by dominium, which the
existence of inferior modes of ownership makes it impossible to define as
Ownership. Ownership is described as ius utendi fruendi abutendi. But
whether the right concerned is dominium or one of the inferior modes
it is practically never so unrestricted as this description would make it.
All civilisations have found it necessary to lay down restrictions on what
a man may do with his own. An owner might not cruelly treat his slaves.
He might not so use his house as to make it a nuisance to his neighbours.

likely. As to the position of the inferior modes of ownership in the scheme of things
corporeal and incorporeal, see post, § LXXI.

1 Post, § LXXXVII. 2 Post, § LXXXV. 3 Ante, § XL. 4 Ante, § LV. 5 Post,
§ cxcvi. 6 Post, §§ ccvm, CCXLIX. 7 Post, § LXIX. 8 Post, §§ LXX, LXXXVI.

9 41. 1. 1. pr.; Inst. 2. 1. 11. See the Berlin stereotype edition.

v] DOMINIUM: RESTRICTIONS 189

The law might forbid him to build above a certain height, or within a
certain distance of his boundary1. He might not pull down his house2.
Thus the general principle is subject to such restrictions as the State
may impose3. And the owner may have restricted his right by conferring
rights on others, such as servitudes, e.g. a right of way, without ceasing
to be owner.

All this is true of every form of ownership : it does not help to establish
the essential characteristic of dominium. To reach this we must abandon
the conception of ius utendi fruendi abutendi, which is not Roman. If,
in the time of Gains, a dominus of land sold it and made traditio of it,
i.e. transferred it informally, he lost all practical interest in the land,
but as he had not formally transferred the dominium he remained
dominus, till, by lapse of time, the dominium had passed to the purchaser.
Conversely, the buyer had all practical rights in the land but was not
dominus: he had not the ius Quiritium. Our early land law provided a
close analogy to this state of things in the right of a lord of the fee who
had granted the land to a freehold tenant, except that there the relation
was permanent: in Roman Law it was, in the case stated, temporary4.
Dominium was the ultimate right to the thing, the right which had no
right behind it. It might be a mere nudum ius with no practical content,
but it was still dominium ex iure Quiritium5.

The question arises whether it was possible to attach incidents to
the ownership of a transferee, which were not servitudes, but should
be binding on future holders. It was of course possible to contract for
such restrictions but this would bind only the other party and his heirs.
This is the meaning of a text attributed to Gaius6: "in traditionibus rerum
quodcumque pactum sit id valere manifestissimum est." As this is from a
treatise on the XII Tables it no doubt referred originally to mancipatio
and the allusion is to such things as the pactum fiduciae'' '. If the restric-
tion were disregarded by the other party, this would be a breach of
contract but no more: if by a subsequent holder there would be in
general no remedy against him. There were however certain cases in
which such an incident attached to a conveyance had an effect in rem,
and not merely against the other party. There were several such cases
in the law of slavery8. There are some slight signs of a similar tendency

1 C. 8. 10. 12. 2; C. h. t. 4; D. 8. 2. 14. 2 See, e.g., 18. 1. 52. 3 See for accounts
of these restrictions, Girard, Manuel, 261 sqq., Cuq, Manuel, 246. 4 Ownership of

provincial lands gives a closer analogy, post, § LXIX. 5 If a thing which can be the
subject of dominium is abandoned by the holder, and no one has now a claim to it, the
late holder was dominus. 6 2. 14. 48. 7 Post, § CLI. 8 Conditions that the slave
should not be sold or prostituted or freed, or should be freed. They differed in their effect
in rem: the most straightforward case is that of a slave sold not to be freed. Manumis-
sion by any later holder was void. 18. 7, 6; 40. 1. 20. 2. Buckland, Slavery, 68 sqq.

190 DOMINIUM : RESTRICTIONS [CH.

in the case of pacta adiecta in ordinary sales1. But they do not go far:
there is no such rule as that restrictive covenants bind future holders
if they had notice of them. The cases seem to be merely sporadic and
to express no general principle.

There was nothing to prevent the creation of an ownership to begin
in the future or on a certain event, but this possibility was much cut
down, for classical law, by the fact that the most important forms of
conveyance of property were actus legitimi which did not admit of any
express suspension or condition2. It could be done freely by traditio3.
But a determinable ownership could not be expressly created in classical
law4: it might indeed arise by operation of law, e.g. where a heres
created rights in a thing which was left to someone else conditionally.
The right of the heres was determined by the occurrence of the condition,
and the rights created by him would then fail also5. Apart from cases
of this sort a man could not be made owner for a time. An agreement
to such an effect might impose an obligation to retransfer the property,
but it did not revert ipso iure6. Dos was no exception: the husband is
spoken of as owner during the marriage, but he was owner in perpetuity
like any other owner, though he was under a duty to reconvey the
property in certain events7.

Under Justinian the general rule no longer held: it was possible to
convey dominium on the terms that it should revert ipso facto on a
certain event. Donatio mortis causa is a well-known instance8.

It was impossible in classical law to convey property with a restric-
tion against alienation, operative in rem : an alienation, though a breach
of contract, would be valid. This rule may have disappeared under
Justinian. Two texts say that the restriction avoids any alienation9.
Others deny this10, and as they are more numerous it is usual to explain
away the contrary texts11.

1 In a case where a man bought part of an estate under restrictions which could not
be servitudes the rights and liabilities extended to subsequent assignees if they had notice.
But the facts were very like a praedial servitude, 8. 4. 13. pr. Where a man acquired a
usufruct by will and knew the testator had been under restrictions, he was bound, since
a fructuary must act like a bonus paterfamilias, to respect them, 7. 1. 27. 5. 2 Manci-
patio and Cessio in iure, post, §§ LXXXIV, LXXXV. 3 41. 2. 38. 1. As to the nature of
a conditional right see Vassali, Bull. 27. 192 sqq. 4 See Girard, Manuel, 341.

5 Girard, loc. cit., adverts to the case of postliminium. 6 Slave law provides as usual
an exception. If a slave was sold on condition that he was kept abroad and this was
broken, he vested in the Fiscus, unless the vendor had reserved a right of seizure in such
event, in which case his ownership revived, Vat. Fr. 6. 7 Ante, § XL. As to the case
of revocatio of a donatio inter vivos, post, § xcr. 8 Post, § xci. The new principle

can be seen by comparing Vat. Fr. 283 with its revision, C. 8. 55. 2. Dos provides
another case under Justinian, ante, § XL. See in connexion with vindicatio utilis, post,
§ ccxxvm. 9 20. 5. 7. 2; C. 4. 51. 7. 10 18. 1. 75; 45. 1. 135. 3, etc. As to "real" effect
of restrictive and resolutive conditions, see Senn, fitudes Girard, 1. 283, who considers that
the classical rule still held good under Justinian. Post, § CLXXIII. 11 It is clear that

v] OWNERSHIP OF PROVINCIAL LAND 191

The desire to keep property together in the family, one of the main
causes of such restrictions, had little encouragement in Roman Law so
far as conveyance inter vivos was concerned. Beyond creating a usufruct,
a life interest, essentially inalienable, there was little that a settlor could
do1. In the classical age it was, however, a very common thing to estab-
lish a fund for charitable or other public purposes, and it is clear that
some of these had considerable permanence. But the devices employed
for this purpose were precarious and usually depended on the voluntary
conduct of the holder for the time being2. The most effective way seems
to have been to give the property to a civitas with directions as to the
disposal of the income, and in some cases a gift over to some other body
if the directions were not obeyed. Neither the gifts over nor the direc-
tions were binding in law, but the taking of security might give some
protection. It is, however, probable that, on an appeal to the public
authorities, administrative machinery would be set at work to enforce
the proper application of the funds. So far as such public trusts were
concerned the difficulty disappeared when these received legal per-
sonality3.

LXIX. Apart from the dominium ex iure Quiritium which we have
considered, there were in classical law inferior modes of holding which
may be called Ownership. Such are:

1. Ownership of provincial land4. The dominium of this was in Caesar
or the populus according as it was in an imperial or a senatorian pro-
vince. The exploitation was largely in private hands under arrangements
with the authority concerned, of which the most important is the
system of Agri Tributarii, in imperial provinces, and Stipendiarii, in
the others, both of which were permanent holdings at a fixed rent or
tribute. The holders were for practical purposes owners, but as they
were not domini the formal methods of transfer were not applicable.
The holdings were however transferable informally5. Of course a
holder who lost possession could not recover by the action appropriate
to the recovery of Italic land, vindicatio, since this involved an assertion
of dominium. We are not fully informed as to the nature of his remedy.
WTe know that he had a modified vindicatio as early as Trajan6, but can
only guess at its form. The most probable view is that his action instead
of dominium asserted a right "-haberefrui possidere licere," which is found
as the technical description of his right7. The case disappeared when

under Justinian, a thing left by fideicommissum was not alienable by the heres, post,
§ cxxv.

1 As to family settlements in wills, post, § cxxvii. 2 Pernice, Labeo, 3. 1. 150 sqq.

3 Ante, § LXV. 4 Mommsen, Staatsrecht, 3. 730 sqq.; D.P.R. 6. 2. 366. 5 G. 2. 21.

6 Frontinus, de controv. (ed. Lachmann), p. 36, cited Lenel, E. P., 184. 7 Lex agraria,

50, 81, etc., Girard, Textes, 46 sqq. See, however, Partsch, Schriftformel, 105 sqq. It is not
impossible that he had a vindicatio with a fiction that the land was Italic. But there i3
no evidence of this.

192 BONITARY OWNERSHIP [CH.

Justinian abolished the distinction between Italic and provincial land1.
It must be noted that not all land in the provinces was solum provinciate :
many provincial communities were given ius italicum, of which the chief
element was that the land was in the dominium of the holder and not
of the State, so that it could be transferred and claimed at law by civil
law methods2.

2. Ownership by peregrines. As in general these had not commercium*
they were incapable of dominium. They could not transfer or acquire
or claim by civil law methods. Informal methods of transfer were open
to them, but we have practically no knowledge of their proprietary
remedies. They may have had an actio fictitia, such as we know to have
been used in some branches of the law4, or more probably one alleging
" habere frui possidere licere." The case disappears in Justinian's law, and
any difficulty as to remedies probably ceased5 with the generalisation
of cognitiones extraordinariae6.

LXX. 3. Bonitary ownership. This is for our purposes much the
most important of the inferior modes of ownership. It arose where a
person received a res mancipi from the dominus by mere traditio, with-
out the formal mancipatio (or cessio in iure) which was needed for the
transfer of dominium in such things. The Romans had no substantive
descriptive of the holder: the res was said to be in bonis*, from which
early commentators formed the name dominium bonitarium8. It is a
commonplace that he was as well protected as a dominus, and that a
main part of his protection was the actio Publiciana, but we are nowhere
expressly told in any surviving classical text that this was available to
him, and, the case being obsolete under Justinian, we could not learn it
from him. But there are texts from which this application of the action
may be inferred, and it may be said that there is now almost complete
unanimitv in favour of the view that the holder in bonis could use this

action, though opinions differ as to the identity of the formula with
that used by the bonafide possessor9.

1 Inst. 2. 1. 40; C. 7. 31. 2 Mommsen, Staatsrecht, 3. 807 sqq.; D.P.R. 6. 2. 456.

3 Ante, § xxxvi. 4 G. 4. 37. 5 Girard, Manuel, 269. 6 For an alleged vindicatio,
"meum esse aio, ' with no reference to ius Quiritium there seems to be no evidence. A
few texts use the word dominus for others than a civil law owner. So Gaius (1. 54; 2.
40), but he does not call the holder in bonis, dominus. When he says of peregrines that
they have one kind of dominium (2. 40, 41) it is straining his meaning to imply that
inferior holdings in Rome were dominium. Enactments of Diocletian apply the name
dominus to holders of provincial lands (Vat. Fr. 315, 316) and Justinian speaks of differentiae
inter dominos (C. 7. 25). But these texts are few and do not indicate that the name domi-
nium was applied technically to inferior modes of ownership. Gaius also speaks of possessio
and ususfrucius (G. 2. 7). 7 E.g., G. 1. 54. It is the substantial ownership. Thus a

slave acquired for his bonitary owner, not the quiritary. G. 2. 88; Ulp. 19. 20. 8 There
is no authority for the name possessio in bonis. For the Greek original of bonitarium
dominium see Theophilus, ad Inst. 1. 5. 3. 9 See Lenel, E. P. 164 sqq.; Appleton,

Propriete Pret. 1. 54 sqq.

v] EXCEPT 10 REI VENDITAE ET TRAD1TAE 193

The statement that the bonitary owner was protected involves two
main points. If the dominus attempted to recover the thing he would
be met by the exceptio rei venditae et traditae. If the holder lost possession
he could recover by the actio Publiciana1.

Exceptio rei venditae et traditae. A bonitary owner in actual enjoy-
ment could not be effectively attacked by anyone but the dominus,
these expressions covering also persons holding or claiming under the
original bonitary owner or dominus respectively2. If indeed there were
an outstanding usufruct or pledge, created by the vendor or a previous
owner, this could be enforced against the bonitary owner3, but neither
more nor less than it could even if the conveyance had been formal.
The old owner was still technically dominus and could thus prove what
the plaintiff in a vindicatio rei had to prove, i.e. that the thing was his
ex iure quiritium. This would be conclusive at civil law, but the praetor's
edict came to the relief of the bonitary owner and gave him the above
exceptio. That is, he was allowed to plead that the plaintiff, or one
through whom the plaintiff claimed, sold and delivered the thing to
the defendant, or one through whom he claimed, and proof of this was
a complete defence4. The exact form of the exceptio is not known, but
the name probably followed it closely5. This was complete defensive
protection, but its form shews that it was of no effect against one who
did not claim under the vendor6. It was therefore useless to a mere
bona fide possessor. For it was not good against the true owner, who, in
such a case, was not the person from whom he acquired 7, and it was not
necessary against any other person, since a claimant must prove his
title8.

Actio Publiciana. It might however happen that, from some cause,
the holder lost actual possession. Some other person might during his
absence, enter on the property, and refuse to give up possession. How
was the bonitary o\vner to recover it? In some cases one or other of the
possessory interdicts by which peaceful possession was protected, apart
from title, might serve his turn8, but many cases of adverse possession
would not be within the terms of these interdicts. Not being dominus

\ Other protection is necessary and exists, e.g. the various remedies for interferences
not amounting to ousting, and the possessory interdicts. 2 If an owner sells, delivers
and dies, and the buyer resells and delivers, the heres replaces the vendor, the second buyer
the first buyer. 3 See D. 21. 3. 4 At first probably applicable only to sale, in

classical law it applied mutatis mutandis to any case of transfer ex iusta causa, e.g.'gitt, 44.
4. 4. 31. 5 21. 3. 3. 6 Except in the possible case of a non-owner who after the sale
and delivery acquired the dominium and sued the holder under his new right, 21. 3. 1.
7 If the right alleged by the claimant is not ownership, but, e.g., usufruct, the action
will not be vindicatio rei, but the appropriate action, in this case actio confessoria. If
the usufruct was created after the delivery, as it might be, the exceptio was available in
an appropriate form. 8 Post, §§ Lxxn; CCXLIX.

B. K. L. 13

194 ACT10 PUBLICIANA [CH.

he could not claim that the thing was his, ex iure quiritium, and thus he
could not vindicate. The praetor came to his relief by providing an
actio fictitia, called the actio Publiciana1. This action was based on the
fact that the bonitary owner would in the ordinary course of things
become dominus in course of time by what was called usucapio2, of
which he satisfied all the requirements, as he held the thing bona fide
and ex iusta causa. The action was a vindicatio so far modified in form
that its formula directed the index to give judgment in favour of the
plaintiff, if he would have been dominus had he held the thing for the
period of usucapio. It was thus presumed in his favour that the period
of usucapio had run. This is all that was presumed : it was still for him
to shew that he was in via usucapiendi. This he could, on the facts,
readily do if, as would usually be the case, the thing was free from any
vitium which made it incapable of usucapion3. Technically it was an
actio fictitia, in which the plaintiff was feigned anno or biennio possedisse*.
All that was presumed was lapse of time, and this was conclusively
presumed, and bona fides, which was always presumed, though
this presumption could be rebutted. In the case we are supposing
there is no question of this, since good faith is clear on the facts.
The other requirements of usucapio he must prove. It is clear that
the bonitary owner was well enough protected by the exceptio and the
actio.

The actio Publiciana was also available, even, perhaps, primarily
available, to an ordinary bona fide possessor, one who has received the
property in good faith from one whom he supposed to be capable of
transferring the ownership to him, but who, in fact, was not so capable,
e.g. a non-owner. It is clear that his protection must be less complete,
since it was not the object of the praetor to destroy the law of usucapio,
or to bar an owner from recovering his property5. Such a possessor was
not protected against the true owner, but only against third parties.
Thus the exceptio rei venditae et traditae had in general, for reasons al-
ready stated, no application here. The bona fide possessor had the actio
Publiciana against all but the true dominus : in a sense even against him.

The facts alleged in his claim were true in that case also, but the owner

•

1 G. 4. 36; Inst. 4. 6. 4; D. 6. 2. Introduced presumably by an urban praetor called
Publicius, probably not long before the time of Augustus. 2 Post, § LXXXVII.

3 I.e. was a res habilis and not privileged against usucapio, or res furtiva, etc., post,
§ LXXXVII. .4 This is not the same as a presumption that he has acquired by

usucapio. G. does indeed say "fingitur usucepisse" (G. 4. 36; see also Inst. 4. 6. 4) but
the formula which he gives at the same point is more exact. A fiction that he had
acquired would leave the index nothing to try : if in a real action we begin by presuming that
the thing belongs to the plaintiff, all that is left is to give judgment in his favour.
5 6. 2. 16; h. t. 17.

v] ACTIO PUBLICIANA 195

was allowed to plead in reply the exceptio iusti dominii, an allegation
that he was the true owner of the thing1. In strictness a bona fide
possessor cannot know that he is one; he thinks he is substantially
entitled: as used here, however, the expression means one whose pos-
session began in good faith, one who is in via usucapiendi. It was
immaterial that he had discovered his mistake2.

When the parties came into court the praetor, who might never
have heard of any of them before, could not know, though he had to
issue the formula, whether the claimant was bonitary owner or bona fide
possessor, or whether the defendant was owner or not. To settle these
points would be to try the case, which was not his business3. He could
not take their words for it, unless they were agreed: cases maybe imagined
in which the parties themselves did not know the real state of affairs
till the matter was thrashed out. Some facts might be admitted, e.g.
that the holder was only a bona fide possessor in the above sense, while
the plaintiff's claim that he was owner might be disputed. The essential
elements of the formula would then run somewhat as follows: "If it
appears that A would be owner of this thing which has been sold and
delivered to him if he had held it for a year, then unless N (defendant)
is dominus condemn him, unless at your discretion he restores ; if it does
not so appear, absolve him." We are told that the exceptio iusti dominii
was allowed only after enquiry (causa cognita*), and thus the praetor would
refuse it if it was clear that the defendant had sold and delivered the
thing.

If all material facts were disputed the formula would run somewhat
as follows: "If A would be owner of the thing, which was sold and
delivered to him, if he had held it for a year (or two years, for land)
then, unless it appears that N is owner, and even then if it appears
that N or his predecessor in title sold and delivered to A, condemn N
to pay the value unless he restores at your direction. If it does not so
appear, absolve N5." This submits the whole issue to the iudex, and if
he decides correctly the result will be what is laid down above6.

LXXI. One or two possible complications must be considered.

It might happen that a bonitary owner or bona fide possessor lost
possession and the new possessor acquired the res by lapse of time,

1 6. 2. 16, 17. 2 So long as he thought he was dominus he would not bring the

Publician but a vindicatio. 3 In the classical and earlier law the magistrate does not
normally try cases: he approves a "formula," in which the issue is stated, to be submitted
to a iudex to decide; post, § ccvn. 4 17. 1. 57. 5 See G. 4. 36. 6 Some details
are doubtful: it is not clear, e.g., that all texts dealing with exceptio iusti dominii are in
accord — it may be that there were different views as to formulation. See Appleton,
Propriety pretorienne, ch. xvi; Lenel, E.P. §60. It is disputed whether the price must
have been paid. This is bound up with the question whether payment was essential to
transfer of ownership by traditio, post, § Lxxxm.

13—2

196 ACTIO PUBL1CIANA [CH.

usucapio. Was the actio Publiciana still available? It is clear that on
the formula stated above it might be, for it would still be true that if
the dispossessed holder had possessed the thing for a year (or two) he
would be dominus. But to allow it on such facts would plainly be con-
trary to the whole purpose of the law of usucapio and even to those of
the Publician itself. There is little authority on the point, and much
diversity of opinion1, not so much on the practical outcome, for it is
usually held that the Publician was barred, but, in most cases, on the
way in which this result was arrived at. On one view it was barred
because even if he had possessed for the necessary time he would not be
owner, as there had been a transfer to someone else. On another the
action was available in principle, but was barred by the exceptio iusti
dominii2. On another this exceptio was not available where the aliena-
tion was by operation of law, e.g., usucapio, or accessio3, so that in
this case the Publician would still be available.

A point to be decided before forming an opinion on these questions
is whether the possession feigned for the purpose of the action is to be
dated forward from the date of the traditio, or backward from that of
the action. This is material also in connexion with another point. If a
bonitary owner brought his action successfully and again lost possession
before usucapio was completed, there was nothing to bar him from
bringing his action again if he needed it. But how if a bonafide possessor
had need of the action a second time? If his feigned possession dated
back from the time of the action it was a new possession. But
if when he brought the first action he knew that he was not owner
it might be argued that his possession was now a new posses-
sion, and did not begin in good faith, so that he was not in via
usucapiendi, for the texts are clear that a second possession begun in
bad faith cannot be added to the earlier for the purpose of usucapio*.
But the better view appears to be that it is a continuation of the actual
possession5.

It may be that two persons were each entitled to the Publician, e.g.
where a bonitary owner lent the thing to the dominus, who died and
whose heres sold and delivered the thing in good faith to a third person.
Which of these was entitled against the other? If one was a bonitary
owner and the other a mere bona fide possessor the law is clear, the
former would win whether defendant or plaintiff, though the form of his
defence is not known. If both were bona fide possessores the texts are
not quite clear, but it seems that if they had received the res from the

1 Girard, Manuel, 358, n. 4; Appleton, op. cit. chh. XX, xxi. 2 See 17. 1. 57.

3 Appleton, op. cit. ch. xx. 4 41. 3. 15. 2; 41. 4. 7. 4. 5 Girard, Manuel, loc. cit.

See however Appleton, op. cit. ch. xv, § xiv.

v] ACTIO PUBL1CIANA 197

same non-owner, the first deliveree would prevail, but if from different,
then the actual possessor1.

There was in the formula nothing to prevent its use by the actual
dominus, and it has been said that in the later Empire it practically
superseded vindicatio2. But the evidence is against this. In all the texts
in which its use is noted the time of usucapio has not run, and the
absence of reference to it in the Code, the prominence of vindicatio, and
the language of some of the texts, suggest that it was used in practice
only where usucapio was not complete, and thus only in a small percent-
age of cases3. Its chief advantages would be that there was no need to
prove that time had run, and that evidence that a conveyance relied on
was not by the true owner would not be fatal, as it would in vindicatio,
apart from usucapio. This would not often be material, and thus the
jurists have little to say about the action4.

There are other cases than that of traditio of a res mancipi in which
a holder under praetorian title will become dominus by usucapio. The
formula of the Publician would be applicable at least with slight modi-
fications in many such cases, and is actually recorded in the cases of
adiudicatio in a indicium non legitimum5, a slave noxally liable seized
iussu praetoris for lack of defence6, a plaintiff in \vhose favour judgment
was given under iusiurandi delatio 7, a missio in possessionem in damnum
infectum8, and iura in re aliena created by informal methods9. It may
have been available in other cases10.

1 6. 2. 9. '4; 19. 1. 31. 2. Appleton, op. cit. ch. xvn. In the case given above both are
bonitary owners, for the heres, being dominus, could make a good conveyance. Here it
was held that the first vendee could recover from the other. 2 Appleton, ib. But

see Girard, Manuel, 361, n. 1. 3 I.e. only in those cases in which the disturbance

complained of had occurred within a relatively short time after the possession had begun.
4 The words "e< nondum usucaptum" which appear in the Edict (6. 2. 1) would appear
to negative the view altogether, but they are not conclusive as, according to Lenel, E.P.
§ 60, there is no trace of them in the formula. 5 6. 2. 7. pr. ; post, § ccxxxn. 6 6. 2. 6;
post, § ccv. 7 6. 2. 7. 7; post, §§ xc, ccxv. But here, owing to the purely relative

effect of a judgment, only against the other party. 8 39. 2. 18. 15; post, § CCXLV.

9 6. 2. 11. 1; see, however, post, § xciv. 10 See Appleton, op. cit. 1. 4 sqq., who gives
a list of the possible cases. As to the possible extension in the case of longi temporis prae-
scriptio, see post, § LXXXIX. Upon the unimportant question how these inferior modes
of ownership were contemplated from the point of view of classification of res as corporales
or incorporates, which the texts do not consider, we may suppose that in the cases such as
that of the Publician, which are protected by fictitious actions, the answer would have
been that whether the right was or was not a res corporalis it was treated by the help of
fictions as if it was. As to the ownership of provincial land the dominium of which was in
Caesar or the populus, the answer depends on the form of the remedy, which is not certainly
known (ante, § LXIX). As to peregrine ownership so far as this was protected by fictitious
actions, the answer would be as in the first case. But it may well have been held that the
classification was part of the Roman Law and had nothing to do with relations outside
the commercium.

198 POSSESS 10 [CH.

LXXII. POSSESSIO. Before entering on the modes of acquisition of
dominium it is necessary to consider the notion of possession. No other
topic in the Roman Law has been the subject of so much discussion1.
It is easy to describe possession roughly. A man "possesses" a thing if
he has control of it — if he "has" it, whether with title or not. A man
possesses his watch in his pocket, but if he drops it, and someone else
picks it up and keeps it, it is he who now possesses it, though it is still
the property of the loser — it still "belongs" to him. From rough de-
scription to exact definition is a long step, and, before attempting to
bridge it, it seems best to consider its legal importance. In this con-
nexion the main point is that one who had possession, whether he had a
legal title or not, and subject to reservations for the case of one whose
possession was tainted by certain forms of wrongdoing, had the protec-
tion of what are called Possessory Interdicts.

Apart from these reservations, the general principle of these remedies
was that one who had actual possession had a right not to be disturbed
therein, whether he had a title or not, except by legal process. If the
owner wished to recover it, he must bring an action — a vindicatio. If,
instead of doing this, he ejected the occupier, a possessory interdict
would compel him to restore possession, and he would not be allowed
to plead his ownership in reply to the claim of the possessor2. He could
however now do what he should have done at first, i.e. bring his vindi-
catio, and, if he proved his title, the wrongful possessor would be com-
pelled to give up possession.

Not every one whose position agreed with the rough description
above set out had possession for these purposes. It is easy to see that
my guest at my table and my servants at their work have not possession
of the implements they are using. But the Roman Law went further.
A borrower (commodatarius), a depositee, a tradesman working on the
thing, none of these had possession. And as there could be no possession
of a res incorporalis3, and interests less than ownership (ususfructus,
etc.) were incorporeal, persons holding such rights were not said to have
possession. But this last restriction is rather unreal, for, though they
had not possessio*, they had interdictal protection, in a slightly modified
form5.

Apart from these cases of iura in rem, those who hold the thing, but

1 See for an indication of the wealth of literature, Windscheid, Lehrbuch, § 148, n, *.
2 As to the reasons for this see post, § CCLII. 3 43. 3. 1. 8, etc. 4 Many texts

speak of him as having "quasi possessio" or " possessio iuris." There is however some reason
to think this terminology is post-classical, on which view "out quasi possessione" in
G. 4. 139 is a gloss. See Albertario, Bull. 25. 1 sqq. and 27. 275, citing and developing
Perozzi, who lays down this proposition as to the analogous case of praedial servitudes.
See Vat. Fr. 90-93. 5 Vat. Fr. 90; D. 43. 16. 3. 13, 17; 43. 17. 4.

v] POSSESS10 199

have not possessio for the present purpose, are said to have possessio
naturalis1 (detentio is a modern equivalent), the proper name for such
possession as gives the interdictal protection being possessio or possessio

civilis2.

The exact definition of possessio to give the results here outlined is a
matter of great difficulty. It may be that no perfectly correct solution
is possible. Among the jurists, in whose writings, if anywhere, the
answer is to be found, there were differences of opinion on many funda-
mental points, and there is none on which such differences are more
easily conceivable than on this of the exact definition of possession. The
texts suggest that, apart from interpolation, the same man does not
always speak with the same voice on this matter, a thing readily under-
stood when we remember that lawyers do not in every case go back to
first principles and that it is much more important to have a good
practical set of rules than one logically impeccable. Many attempts
have however been made to answer the question, and of these two have
received so much more attention than any others that some account of
them must be given3.

Of these opinions that of Savigny4 was the earlier, and was long
accepted almost universally, indeed it may still be the most widely
accepted. On his view, which rests mainly on texts of Paul in which he
alludes to, and argues from, animus possidentis5, possession consists of
physical control, (corpus) with the intention to hold as one's own-
detention with animus habendi or domini. This last is lacking in the
cases of possessio naturalis which we mentioned and in such cases as
usufruct. If we find nevertheless that possession is attributed to
emphyteuta and pledgee who clearly do not hold the thing as their own,
this, says Savigny6, is a case of derivative possession. Later writers
have sought to avoid this expedient, by adhering to the expression
animus possidendi, and speaking of intention to hold the thing to the
exclusion of anyone else, a way of putting the matter which enables
them to retain Savigny's doctrine in essentials. The fact that a depositee
did not possess even where he determined to keep the thing, is explained
on textual authority as resting on the principle: nemo potest causam
possessionis mutare"7. The original animus was decisive.

These views were strongly attacked by Ihering8. Without going into
detail of his criticism, it may be said that while he draws attention to

1 Sometimes used in a looser sense, 41. 2. 1. 1. 2 Sometimes used to denote

usucapion possession, i.e. possession with bona fides and iusta causa which may ripen
into ownership. Post, § LXXXVTI. See however Albertario, Butt. 27. 275 sqq.; 43. 16. 1. 9, 10.
3 See Windscheid, Lehrb. §§ 148 sqq. ; Girard, Manuel, 275 sqq. ; Vermond, Possession
en Droit Romain. 4 Recht des Besitzes, tr. Perry. 5 13. 7. 37; 41. 2. 1. 20. 6 Op.
cit. § 25. 7 E.g. 41. 2. 3. 19. 8 Besitzioille (French tr. by Meulenaere).

200 POSSESSIO [CH.

the fact that the theory does not explain some concrete cases, e.g. the
continued possession of a fugitive slave, and the case of derivative
possession, his main attack is on the conception of animus domini. He
considers that the texts of Paul on which this rests present an opinion
peculiar to him, and maintains that no other jurist gives support to
this "subjective" theory which makes possession or non-possession
depend on the intention of the holder. He shews the unpractical nature
of the idea, and the impossibility of proof, and points out that this
impossibility, coupled with the rule that a man cannot change his
causa possessionis, has led later supporters of the subjective theory to
look at the causa for proof of the intention1, in such a way as to give a
result similar to that arrived at by those who find the test in external
circumstances. But their false theory leads them, he holds, to false
conclusions on points of detail.

Ihering's own theory2, treating animus domini as an error based on
a doctrine peculiar to Paul, much given to subjective tests, defines
possession as the externals of ownership. A man possesses who is in
relation to the thing in the position in which an owner of such things
ordinarily is, the animus needed being merely an intelligent conscious-
ness of the fact, so that a furiosus cannot acquire possession: he has
not intellectus (or affectio) possidentis3. This is in effect an external fact,
for this sort of animus proves itself. The physical relation is not absolutely
decisive: possession or no possession may depend on the nature of the
thing4. A slave who has run away is in the same position to an observer
as one sent on an errand. A man at his home still possesses the things
at his office, and vice versa, though it is easy to formulate cases in which
it is hard to say whether possession continues or not. Every conscious
holder, whether for himself or another, satisfies the requirements of
possession. For Ihering every case of detention, possessio naturalis, not
giving the interdicts, is one, in which the law, for reasons differing in
the different cases, has expressly taken away possession from persons,
who, apart from this express provision, satisfy its requirements.

It is widely held that Ihering's criticism is sound, and, less widely,
but still very commonly, that his constructive doctrine is also sound.
It has however some difficulties5, and the texts shew that animus
played a more important part, according to some jurists, than Ihering's
theory allows. The difficulties are almost entirely in connexion with
acquisition or loss of possession through the act of third parties, in

1 Op. cit. §§ n, xii. 2 Op. cit. and Grund des Besitzesschutzes, also tr. Meulenaere.
See Lightwood, L.Q.R. 1887, 32 sqq.; Bond, L.Q.R. 1890, 259 sqq. 3 41. 2. 1. 3;

h. t. 1. 9, 10. 4 I possess my carriage in the roadway in front of my house: I should
not possess my watch lying in the same place. 5 Girard, Manuel, 279, n. 6, cites

one. Windscheid, Lehrb. Sect. 148, n. 4 a, gives a number of objections of varying weight.

v] ACQUISITION OF POSSESSIO 201

connexion with which we shall meet them again. It may be that some
jurists hesitated to hold that even the physical part of possession (corpus)
exists where the thing is held by a person who has announced that he
is not holding it for me. For it is clear that the animus in question must
have been in some way made known. The theory of the Romans was
probably not completely coherent1.

The question why it was thought necessary to protect possession
without title has had a good deal of attention. Savigny maintained2
that it was to protect those who had no title, not in their private interest,
but for the preservation of the public peace. It would not make for
order if even one without title could be ejected by one who, perhaps,
had no more. Ihering's view, now more widely accepted, is that posses-
sion is protected as an outwork of ownership3. The law assumes that a
peaceful possessor is more often than not the person entitled, and that
to enable him to recover his possession, as such, without proof of right,
is, in most cases, to restore an owner without requiring him to prove
his title. It is only accidentally, and in a minority of cases, that it works
to protect a wrongful holder, not, as Savigny holds, as the intended
result of the system4.

LXXIII. Acquisition of possession by one's own act is a fairly
simple matter. It involves animus and corpus5. The thing must be placed
in our control, which does not necessarily mean about our person:
effective control will vary with the nature of the thing. The animus is
no more than consciousness and willingness. Thus, where a thing has
been placed by our direction in a certain place for us, we possess without
knowing that the act has been completed: previous authorisation is as
good as knowledge6. But, as animus is necessary, the acquirer must be
capable of this — a furiosus cannot acquire possession 7. And in things
\ extra commercium there can be no juristic possession any more than
there can be ownership.

Acquisition through an extraneus presents more difficulty. One
group of cases may be excluded. If I buy a thing and at my direction
it is given to you, my procurator, for me, I possess, but it is not so clear
that I am technically acquiring possession through you, any more than,
if it is put in my house at my orders, I acquire possession through

1 Girard, Manuel, 274: "discordances dont le germe remonte, peut-etre, en partie,
4. des hesitations ou des dissentiments des jurisconsultes." 2 Recht des Bes.

§§ n, vi. 3 Besitze-sschutze-*, § vr. 4 It has been said (Holmes, Common Law,

208, from Bruns) that the view that the possessor is more likely to be entitled than the
ejector is not necessarily true. This cannot well be tested, and even though it may be
an objection to the theory, as a philosophic truth, it is no answer to the view that it was the
Roman doctrine. 5 41. 2. 3. 1. A pupillus if he has intellectus can acquire possessio

without his tutor's auctoritat, 41. 2. 1. 3; h. t. 32. 2. 6 41. 2. 18. 2. 7 41. 2. 1. 3.

202 ACQUISITION OF POSSESSIO [CH.

my house1. Leaving this case out of account, the rules shew a gradual
change. For Gains it was uncertain if possession could be acquired
through free persons not possessed2. Neratius had already held that it
could be acquired through a procurator — a general agent3. Severus and
Caracalla declared it settled law that it might be acquired per liberam
personam*, and Ulpian cites this5 as meaning any liber a persona. This
text has been suspected of interpolation6, but since by his time the name
procurator was applied even to a mandatarlus employed only for a
single transaction, and in mandate ratification sufficed, and Paul, who
tells us of the extended meaning of procurator tells also that possession
can be acquired through a procurator, utilitatis causa1, interpolation
is doubtful8. In any case acquisition through any libera persona was
the rule of later law9. But this refers to the corpus. As to animus,
previous authorisation sufficed, even general10, but apart from this
there must be knowledge by the principal11. For usucapio, indeed,
knowledge was required in any case, not from principle, but because of
the danger of the other rule, "quia contra statui captiosum eritlz."

In the case of a slave (and in that of a filiusfamilias, apart
from peculium castrense, etc.) the main rules were simple. A
slave could acquire the corpus, but the master's possession was not
complete till he assented13. But on this there are some remarks to be
made.

(i) The peculium was the master's and acquisition for it was acquisi-
tion for him. But the purpose of peculium would be defeated if the master
had to intervene in its dealings. Hence an illogical rule, based on con-
venience, not on principle, that the master need not know; the slave
could supply animus here14.

(ii) If the master was a lunatic or infans, and so incapable of animus,
there was logically no acquisition of possession. One text gets over the
difficulty in the case of infans by saying that he could assent by auctoritas

1 41. 2. 18. 2. In 41. 2. 42. 1 the procurator is the negotiating party. In 39. 5. 13 and
41. 1. 37. 6 a thing is given to my procurator for me and he takes it for himself. Ulpian
says I acquire, Julian says I do not. The former may be interpolated but, if it is not, the
dispute may turn on the question, already adverted to, whether I can be said to have the
corpus if the thing is held by one who renounces my right. 2 G. 2. 95, probably the
word is procurator. 3 41. 1. 13; 41. 3. 41. 4 C. 7. 32. 1. 5 13. 7. 11. 6.

6 Mitteis, Rom. Prr. 1. 212 sqq. He holds that every text declaring for acquisition "per
liberam personam" is interpolated, and cites 41. 1. 20. 2; h. t. 53; 13. 7. 11. 6; 47. 2. 14.
17; C. 7. 32. 1. He regards P. 5. 2. 2, with its distinction between libera persona and
procurator, as decisive, but in view of the wide meaning the word procurator had acquired
by this time (ib. 1. 3. 2) it seems more probable that the text is not comparing procurators
and others, but possessio and other rights. 7 P. 1. 3. 2; 5. 2. 2. 8 See Peters,

Z.S.S. 32. 205 sqq., for other suggested emendations. 9 Inst. 2. 9. 5. 10 41. 2. 1. 13;
41. 2. 42. 1; 41. 3. 41. 11 P. 5. 2. 2. 12 41. 3. 41; C. 7. 32. 1. 13 G. 2. 89;

P. 5. 2. 1; 41. 2. 1. 5; h. t. 48. 14 41. 2. 44. 1. See, however, Beseler, BeitrdgR, 4. 61 sqq.

v] ACQUISITION OF POSSESSIO 203

of his tutor1. But in general, it was not till infantia was over that there
was any question of auctoritas2, and then it would not be needed for
possession which does not impose an obligation3. Pomponius lays
down the more reasonable rule, no doubt on grounds of convenience,
that a slave can acquire possession for a lunatic or infant master4.

(iii) A hereditas had no animus, and there were difficulties as to
acquisition of possession for it. A serous hereditarius could complete
usucapio already begun5. It is probable for classical, and certain for
later, law that such a slave could acquire possession for his peculium6.
It is not clear that even under Justinian he could so acquire it apart
from peculium7.

(iv) Although the animus came from the master, the slave contributed
something to it. A man without consciousness cannot have control:
thus possession could not be acquired through an insane slave8.

(v) The slave's intent ought not to be material, but Paul says that
if he takes not intending to acquire for his master, there is no acquisition
by his master9. It is generally held that this text is either an error or
an interpolation: perhaps it is not law even for Justinian's time. It is
not however clear that the rule has anything to do with animus. The
intent must be proveable, i.e. in some way declared, and it may be that
Paul held that I could not be said to have the corpus if the res was in
the hands of one, even my slave, who shewed that he was not holding
it for me, just as I ceased to possess a fugitive slave, so soon as he
formally claimed to be a freeman10.

(vi) Though, at any rate from the time of Xerva^/ms, a master con-
tinued to possess a fugitive slave11, it was not till later that it was agreed
that the master could acquire possession through such a slave. Nerva
and Pomponius deny it12. But it was clearly admitted by the later
classical jurists13.

(vii) There was an old notion that a man could not acquire possession
through one he did not possess14. Accordingly some jurists doubted
whether a usufructuary of a slave could acquire possession through

1 41. 2. 32. 2. See also Papinian, C. 7. 32. 3, in fin. As to "per" tutorem, Peters,
Z.S.S. 32. 205. As to acquisition by the tutor acting by himself, see the general discus-
sion, Lewald, Z.S.S. 34. 452. 2 Ante, § LVI. 3 41. 2. 32. 2. The contradiction in
h. t. 1. 3 is no doubt due to interpolation, as also in h. t. 1. 11. 1. 13; 41. 3. 4. 2, etc. See
Lewald, Z.S.S. 34. 450, reviewing Solazzi. 4 41. 3. 28. 5 41. 3. 20; h. t. 31. 5;
h. t. 40. 6 6. 2. 9. 6; h. t. 10; 41. 2. 1. 5; 44. 7. 16. 7 6. 2. 9. 6; h. t. 10; 41. 3. 44.
3; h. t. 45. 1. 8 41. 2. 1. 9, 10. 9 41. 2. 1. 19. Two texts, in conflict already noted,
39. 5. 13; 41. 1. 37. 6, conflict as to effect of slave's intent where delivery is to a common
slave of intended deliveree and another. The ambiguous position of such a slave, who
could acquire for the other master, may account for a difference of opinion. 10 41. 3.
15. 1. Paul. 11 41. 2. 1. 1; h. t. 3. 10; h. t. 47. 12 6. 2. 15; 41. 2. 1. 14.
13 41. 2. 1. 14; 44. 3. 8. 14 G. 2. 94; see 41. 3. 21.

204 LOSS OF POSSESSIO [CH.

him, but the difficulty was disregarded in classical law1. For the same
reason Gaius records a doubt whether possession could be acquired
through women in manu and persons in mancipio2. As these soon
became obsolete, we have no later information, but Gaius finds no
difficulty in the case of a. filiusfamilias3 though he too was not possessed
in classical law4, whatever may have been the original state of
things.

LXXIV. In general, possessio, once acquired, continued normally,
animo et corpore. If it needs both elements it ought to cease if either
ceases, but this is obviously not so, as a general principle. A man does
not lose possession of his goods if he goes mad or asleep5. But there
were cases in which possession was said to be retained animo solo, e.g.,
saltus hiberni, aestivi6, which were abandoned for half the year. During
this period possession would be lost by mere intent not to possess7.
But there are texts which seem to say that what was possessed in both
ways could be lost animo solo. Two of these illustrate the rule by facts
which shew their meaning to be only that a handing over which, on the
face of it, was consistent with retaining actual possessio would be a
transfer of possession if the necessary animus was present8. Paul how-
ever says: "si in f undo sis et tamen nolis eum possidere, protinus amities
possessionem9." But this is merely constitutum possessorium. If a vendor
of land arranged to hold it as tenant, the full process would involve
handing it over and taking it back as tenant, and a tenant had only
possessio naturalis. For simplicity, the process was taken for granted,
so that the possession shifted without any actual transfer10.

Death ended possession, and the fiction by which the hereditas was
considered as continuing the possession did not benefit the heres, who,
at least if there was no holding by a slave or colonus, did not possess
until he had actually taken possession, this being a matter of fact11. If
at the time of the owner's death, a colonus was in occupation, Cicero
tells us that the heres had possession by the colonus with no act of his,
but this is in an advocate's speech12 and is in plain contradiction with a

1 G. 2. 94; D. 7. 1. 21; 41. 2. 1. 8, etc. In general, b. f. possessor was, as to acquisition,
in the same position as fructuary, but in his case this particular difficulty did not arise.
G. 2. 94; D. 41. 2. 1. 5. 2 G. 2. 90. 3 G. 2. 89. 4 Thus the ordinary

possessory interdicts were not available: special ones were needed, Lenel, E.P. 468.
5 41. 3. 31. 3. 6 41. 2. 3. 11; C. 7. 32. 4. 7 41. 2. 25. 2. But a furiosus cannot

lose possessio, animo solo, h. t. 27. Paul says that as animus and corpus are both essential
to acquisition of possessio, this cannot be lost till both cease, 41. 2. 3. So stated this is
absurd. Elsewhere (50. 17. 153) stating the same rule, he says that it is analogous to the
rule in obligations, that they are to be dissolved in the way in which they were created.
But one who has dropped a shilling in the street has lost possession even though he
knows nothing about it. Papinian (41. 2. 46) lays down the similar but more rational
rule that what is held animo solo can be lost animo solo. 8 41. 2. 17. 1; h. t. 44. 2.

9 41. 2. 3. 6. 10 41. 2. 18. pr. 11 41. 2. 23. pr. 12 Pro Caecina, 32. 94.

v] POSSESSIO AS A RIGHT 205

text of Paul which no doubt states the classical law1, and says that the
heres did not possess in such a case, till he had actually taken possession.

There is some difficulty as to loss of possession by an act of the
subordinate. It might be said that, as a slave could not make his master's
position worse, he could not deprive him of possession. But when once
possessio was acquired the slave's personality was immaterial : he was a
mere receptacle. If a thing fell from the slave's hand, it was much the
same as if it had fallen from the master's pocket. And po.wxxio or no
possessio was a question of fact. But if my slave refused to let me have
the thing, did I still possess? Yes, if it was land2, but, in case of move-
ables, Paul and others said the possessio was lost3. If a slave or colonus
wilfully abandoned land the classics disagreed as to loss of possession,
till a third party had taken it4, on which event they held it lost5. Jus-
tinian in an obscure and much discussed enactment seems to have pro-
vided that it was not lost in either case6.

The question whether possessio was or was not a right is somewhat
empty. The answer seems to be that the question whether it existed or
not was one of fact, but that, if it existed, it conferred rights. It was not
called a res, nor was it apparently thought of as a ius in rent analogous
to ownership or usufruct. This seems to rest on the fact that it had no
economic content, or rather no assignable money value. A pledge
creditor, though he had more than possession, since he had an action
and could resist vindicatio, was rarely spoken of as having a ius7. And
acquisition of a notnen carried with it the securities by way of pledge8
with no thought of the principle that iura in rem are not transferred by
mere agreement. The wealth of pledgee is not increased by a pledge,
though his security is9. The distinction is clearly brought out in a text
which says that a captive retains his iura but loses bis possessio10.

1 41. 2. 30. 5. A transfer may involve loss of possessio without acquisition by the
transferee, e.g., transfer to a furiosus, h. t. 1. 11. 2 41. 2. 40. pr. 3 41. 3. 4. 8, 9.

4 41. 2. 3. 8; h. t. 31 ; h. t. 40. 1 ; h. t. 44. 2. 5 41. 2. 40. 1 ; h. t. 44. 2. Not of saltus

hiberni or aestivi, which are possessed animo solo, till the owner knows, h. t. 3. 7, 25. 2, 46.
6 C. 7. 32. 12. 7 E.g. 9. 4. 30; 39. 2. 19. pr., where the decisive words look like a

gloss. 8 C. 4. 10. 6, 7. 9 In a text dealing with another matter we are told that
a usufruct, the claim for which is barred by certain facts, still exists till it is lost by non-
user, while a pignus is simply destroyed by such facts: nullum eniin est pignus cuius
perxecutio denegatur (9. 4. 27. pr.). This seems to turn wholly on the fact that pledge has
no content but its enforceability : it is matter for the law of actions. This is not to say
that it has no value: it is of the utmost importance from a procedural point of view and
there are many texts which shew that the lawyers were alive to its economic importance
(e.g. 13. 5. 14. 1; 18. 4. 6; 50. 17. 72, etc.). What it means is that notwithstanding its
economic importance the considerations mentioned prevented the lawyers from regarding
it as a res. 10 41. 2. 23. 1. A release of pledge from husband to wife was not a donatio
(42. 8. 18; cf. D. 24. 1. 5. 16). We are however told that there could not be a donatio of
possession between them (24. 1. 46), which probably means that there could be no usucapio.

206 ACQUISITION OF DOMINIUM [en.

It is the notion of possession as a right which leads to its treatment
in our modern books in close connexion with dominium. But the Roman
institutional writers did not so treat this merely provisional and pro-
cedural right : it came in, so far as it was treated at all, under interdictal
procedure. Bona fide possessio was mentioned, because it gave a right
to fruits. And this explains what looks like a sharp contrast in the method
of the Digest. The title dealing with acquisition of dominium is followed
by one dealing with that of possession1. But the next following titles
shew that this is because possession was an important factor in the law
of acquisition of dominium by usucapio, and is discussed as an intro-
duction to the treatment of that subject.

LXXV. ACQUISITION OF DOMINIUM. The modes of acquisition of
res corporales, i.e. of dominium, can be classified in various ways. They
were Formal or Informal, a distinction which turns not on the degree of
ceremonial involved but on the point that in formal transactions, e.g.,
mancipatio, the form sufficed apart from intent or causa, while in such
cases as traditio the intent and the causa were material. They were
Original, e.g., occupatio, or Derivative, e.g., traditio, a distinction different
from that between bilateral and unilateral, though all original methods
were unilateral. But the institutional treatment, which will be followed,
classifies them as iuris civilis or iuris naturalis (or gentium2), by which
Gaius seems to mean that some were thought of as peculiar to Rome,
while the others were universal. In looking at the concrete cases we
see what at least look like inconsistencies. Acquisition by long possession
(usucapio) and treasure trove are both known to other systems and in
both the details were regulated by statute. But usucapio was iuris
civilis and inventio was iuris gentium. Usucapio is treated in the XII
Tables, and no doubt the civil law methods are so called as belonging to
the early formal law.

ACQUISITION FROM THE STATE. This is hardly part of the private law
and is not expressly treated in the Institutes. There were many cases:
distribution of booty, allocation of public lands, bonorum sectio, and,
generally, sales by the Fiscus3. The State was not bound by rules of
form. All that seems to have been needed was a declaration by the
official charged with the business, sometimes called addictio*. This

A possessor as such can draw no advantage from the thing : all he has is a right to resist if
his possession is interfered with except by legal process. The case is different with those
inferior modes of ownership, of provincial lands, and by peregrines, which if they have
a substantival name at all must be called possessiones. But they are substantive rights
giving enjoyment of the property and not defeasible by legal process.

1 41. 1; 41. 2. 2 G. 2. 65; Inst. 2. 1. 11. See also 41. 1. 1. pr. where the

"gentium" is probably due to the compilers, not to Gaius. 3 Details, Cuq, Manuel,

258. 4 See Girard, Manuel, 289.

v] OCCUPATIO 207

ignores the principle, involved in the modes of acquisition set out in the
Institutes, that transfer of property inter vivos always required, not
necessarily delivery, but some act or circumstance shewing an assertion
of control of the thing acquired : traditionibus et usucapionibus dominia
rerum, non nudis pactis, transferuntur1. There were indeed exceptions,
e.g. the rule in societas omnium bonorum, that the mere agreement
vested in the partners in common the ownership of what had belonged
"to each2, the method of creation of servitudes by pact and stipulation3,
and, in later law, some rules of donatio and dos*. The vesting of the
owner's share in treasure is difficult to reconcile with it5. The rules of
traditio brevi manu and constitutum possessorium were only apparent
exceptions 6, and the creditor's right in hypothec was not thought of as
a ius in rein1. With the exception of traditio, which is for practical pur-
poses the most important of all modes of acquisition, and the special
cases of acquisition offructus, the iure naturali methods are of secondary
importance in actual life. Occupatio, as being original and not derivative,
is treated as the primary mode, and, as we shall see, most of the others
have a close affinity with it.

LXXVI. OCCUPATIO*. This was simply acquisition by taking. It
was not in practice of great significance, its chief importance being in
relation to wild animals captured for food or other purposes. These wild
animals were acquired only when they were effectively seized, which was
true of all occupatio 9, but there was in their case the further rule that the
ownership lasted only so long as they were effectively held, subject to
the modification that in the case of certain things, e.g. bees and pigeons,
the ownership lasted so long as they retained the habit of returning to
their quarters — animus revertendi10. The question what amounted to
such a capture as gave effect to the intent to acquire is, in effect, what
amounts to gaining possession in such a case. It was agreed after dis-
putes that a wounded animal was not "occupied" till it was seized11.
We are nowhere told whether killing was itself enough and, as to trapping,
the matter seems to have depended somewhat on the position of the
trap, but the question is of no great legal interest12.

What amounted to loss of control is again a question of fact13 .-clearly
it was not lost while the old owner was in close pursuit, and perhaps the
best way of stating the matter is that the beast ceased to be owned
when the chance of recovering him was not materially greater than that

1 C. 2. 3. 20. 2 Post, §CLXXvm. 3 Post, § xciv. 4 Post, § xci;

ante, § XL. 5 Post, § LXXX. 6 Ante, § LXXIV; post, § Lxxxm. 7 Anter§ LXXIV;

post, § CLXVI. The rule has no application to acquisition by legacy. 8 G. 2. 66-69;

Inst. 2. 1. 12 sqq. 9 Inst. ib. 10 41. 1. 3, 4; Inst. 2. 1. 14, 15. 11 Inst. 2. 1.
13; D. 41. 1. 5. 1. 1241.1.55. 1341.1.5.

208 OCCUP AT 10 [CH.

of capturing any other wild animal1. To the question why ownership
was, in this case and no other, limited by possession, the answer may be
that the whole institution antedates law: it comes from a time when
the strong man armed, and he alone, held his goods in peace. Whatever
its origin it had a curious result. If the beast escaped, and, when free
from control, did damage, the old owner was not responsible : it was not
his beast. He need not therefore keep it securely however dangerous it
was2. The aediles met the case by a provision that one who kept wild
beasts of certain kinds near a way was responsible for damages' if they
escaped. In later law this was extended to any wild animal3. And
Justinian4 allowed the actio de pauperie in respect of wild animals,
though this is contrary to the principles of the action : that depended on
ownership5, which was here lost, and required that the damage be con-
trary to the nature of the animal6, which was not here the case.

Occupatio is also said to be applicable to res derelictae, abandoned
property. The principle is simple. If a thing was intentionally abandoned
by its owner, without the desire of recovery (such as existed where
things were thrown overboard to lighten a ship7), it could be occupied
by anyone. But there are difficulties. If I picked up an article which
had been abandoned but which I supposed to have been accidentally
dropped, and decided to keep it, had I acquired it? The difficulty is
that I could hardly be said to intend to acquire what I did not think to
be susceptible of acquisition. The only text on the matter requires
knowledge on the part of the occupanss.

Some writers hold that an owner not in actual possession could not
make derelictio, which required a cesser of possession9. But it would
seem that any declaration by the owner that he had done with the thing
would suffice in this case. Again, the Proculians held that a thing was
not derelict till some other person actually possessed it, though this
opinion did not prevail against Julian's contrary view10. The Proculian
doctrine has been explained as meaning that derelictio was not complete
till it was too late for a change of mind11, and this is more or less borne
out by the fact that the Proculians do not say that the adverse taking
must have been with a view to acquisition: any possession would, it
seems, suffice. But there is a very different explanation. Many modern
writers, treating the Proculian view as the logical doctrine, hold that
occupatio had nothing to do with the matter, and regard the case as one
of traditio incertae personae12. Neither Gains nor Justinian mentions this

1 See Czyhlarz, Eigentumserwerbsarten, 46. 2 Inst. 4. 9. pr. 3 21. 1. 40-42; Inst.

4. 9. 1. 4 Inst. 4. 9. 1. 5 Inst. 4. 9. pr. 6 Ib.; post, § ccv. 7 Inst. 2. 1. 48.

8 41. 7. 2. pr. 9 Czyhlarz, op. tit. 90. 10 41. 7. 2. 1. 11 See Czyhlarz, op. cit.
114. 12 Post, §Lxxxni.

v] OCCUPATIO 209

among the cases of occupatio, and there is no unequivocal text in the
Digest which does so, while there are texts which put this case side by
side with others which are treated as traditio1. The difficulty of this is
however that, when the view- prevailed that derelictio was complete by
the mere abandonment, it followed that it became a res nullius, and
there could be no traditio of such a res.

This point apart, derelictio of moveables was completed by throwing
them away. In land, this was impossible : the owner must, so to speak,
remove himself from the land. But people leave their land for long
periods for many reasons other than intention not to own it2, and as
land usually has some value, it does not seem that derelictio often
happened in that case3.

We are told that among things capable of occupatio wrere those
captured from the enemy4. In general however praeda did not go to the
captor, but to the State. It was at the disposal of the general, who
might give or sell it5, but, if this happened, .there was not occupatio but
acquisition from the State. What is here referred to is enemy property
in the State territory in time of war, and property belonging to members
of a State with which Rome had no friendly relations 6.

Occupatio was a iure gentium mode of acquisition, and it has been
contended that it therefore gave only iure gentium ownership. But the
name refers to origin, not to effect7. The more probable suggestion has
also been made that in classical law it gave only iure gentium ownership
of res mancipi8. This is certainly true of the most important iure gentium
mode: traditio, and might therefore be true of occupatio. If it did give
civil ownership it would provide an easy way of evading the form of
mancipatio. A could abandon the slave and B then "occupy" him, and
it would be easy to create by agreement the same obligations as would'
have existed if he had been mancipated. The case is, as we have seen,
closely associated with traditio incertae personae, and if so interpreted,
it could not give more than iure gentium ownership. Classical texts
give indeed no hint of anything of the kind, but there are very few refer-

1 Inst. 2. 1. 46, 47 directly associate it with a clear case of traditio incertae personae,
using the word "occttpare," but in a context which shews that it means no more than
seizing and does not imply any particular juristic construction of the facts. D. 41. 7
which deals with usucapio "pro derelicto" uses the word " accupanti.s" in h. t. 1. But here
too the word need not be technical. Even P. 2. 31. 27 is not conclusive. 2 E.g., saltus
hiberni, aesiivi. 3 Derelictio of land is often mentioned in the sources (see reff. in

Czyhlarz, op. cit. 93) but usually in the sense of leaving it uncared for, without necessary
implication of intent to abandon. Arrears of tax might make it dangerous to "occupy"
in any case. 4 In G. 2. 69 the acquisition contemplated is no doubt to the State.

5 Mommsen, Slrafrecht, 765. 6 41. 1. 51. 1. Girard, Manuel, 323, limits this to

"expedition de partisans," no doubt the usual case. 7 Cf. the case of traditio.

8 Girard, Manuel, 322.

B. R. L. 14

210 ACCESSIO [CH.

ences to occupatio of res derelictae and res hostis1, and these are the only
cases in which the point could arise2.

LXXVII. ACCESSIO. This may be denned as the acquisition of
property by its incorporation in what already belonged to the acquirer.
The rules are somewhat complex and there are several distinct cases
to consider. Before discussing them it may be noted that the question
whether it created civil or merely bonitary ownership in classical law can-
not arise here, for what was acquired merged in the old thing and was
necessarily held as that was held.

The simplest case of accessio, that of moveables to moveables, was of
rather rare occurrence. If two things of different owners were mixed in
such a way as to be readily separable (commixtio), and not by consent,
they were merely separated again : there was no change of ownership3.
If it was by consent, ownership was presumably common: in neither
case was there any question of accessio. If they were so joined as not
to be readily separable (confusio), whether by consent or not, ownership
was common: there was no accessio4. These rules seem to exclude
accessio altogether, but there was an important exception. If, of the two
things so united by confusio, one was merely an accessory to the other,
its identity was merged in that other: there was accessio and the whole
belonged to the owner of the principal thing5. Whether it was or was
not an accessory was a question of fact, not always easy. In some cases
it seems obvious, as where A's wool was woven into jB's coat6, but in
some cases there were disagreements, not only whether, in a given case,
the thing was an accessory, but on the tests to be applied in determining
the point.

The test sometimes applied, and, as it seems, the best, is whether the
total thing would retain its identity as the same thing, if the added
element were removed, whether this is the thing which gives the object
its essence and its name7. Another test applied was that of relative

1 And, as we have seen, most of these are doubtful. 2 Not all res nullius could

be "occupied," e.g., divini iuris. See, too, G. 2. 200 as to the Proculian view of property
subject to a conditional legacy per vindicntionem. The property in a kereditas iacens
did not belong to any one. None of these could be occupied and the interests of those
really concerned were provided for, as we have seen for res divini iuris and shall see
later for other cases, by a variety of expedients. 341.1. 12. 1. 4 Tnst. 2. 1. 27.

Simple soldering is commixtio, for it can be melted off (plumbatura) but welding (ferrumi-
natio) is confusio. 6. I. 23. 5. A mixture of "ae.f " and silver was thought of as separable,
commixtio, 41. 1. 12. 1, one of gold and silver was not so thought of, confusio, h. t. 7. 8.
5 Inst. 2. 1. 26. 6 Arno (Mel. Girard, 1. 27) argues that textura is not a true case

of accessio, but is on an equality with plumbatura. He cites 10. 4. 7. 2 and contrasts
G. 2. 79 and Inst. 2. 1. 25, 26. 7 See Girard, Manuel, 335, who cites 34. 2. 29. 1; 41.
1. 26. pr. ; Inst. 2. 1. 33. A diamond ring may, it should seem, be regarded as a jewel
in its setting rather than a ring with its ornament.

v] ACCESS 10 211

value1, but this was ignored in the case of writing on parchment, which
ceded to the parchment even though the lettering were of gold. Here
the test applied was that the writing could not exist without the parch-
ment, while the converse is not true2. In the case of painting on a tablet,
there was a difference of opinion. On the view which prevailed the tablet
ceded to the picture, since, says Justinian, the picture has the greater
value. This is not always true, and is not alleged by Gains (from whom
Justinian adopts the opinion), who observes that there is no good reason
for it3. Paul adverts to this reason but rejects both it and the rule4 and
makes the painting cede to the tablet as not capable of existing without it.

It was indifferent whether the absorption was bonafide or not, or by
whom it was done, or whether there was consent, though all these
points were material on the question of compensation, on which the chief
rules were these5:

(i) If the loser himself effected the fusion voluntarily in knowledge
of the facts, he was regarded as having made a gift and had no claim6,
subject to the limitation that, if he did it as a reasonable act of administra-
tion on behalf of the other party, he would have an actio negotiorum
gestorum contraria1,

(ii) If he did it thinking the thing was his, then, if still in possession,
he could resist vindicatio by an exceptio doli unless he received compensa-
tion for his loss, not the added value8. If the other party had acquired
possession of the thing, he had, it seems, no remedy at all 9.

(iii) If it was done in bad faith by the acquirer and he had possession,
the loser could proceed for theft10. If on such facts the loser was still in
possession, the owner could no doubt vindicate subject to payment for
the added value, but would still be liable to the actio furti.

(iv) If it was done by the acquirer in good faith and he had possession,
he was liable, at least in later law, to an actio infactum for the loss11. If
the other had possession he could vindicate, subject to payment for the
added value12.

(v) In the case of the picture the point of compensation was dealt
with on peculiar lines. The three texts are all substantially the same
and due to Gains13. They tell us that, the tablet being still in the possession
of the old owner, the painter could vindicate, subject to exceptio doli if

1 Inst. 2. 1. 34. Another test (41. 1. 27. 1) is, on whose account the addition was made,
but this is not helpful. 2 G. 2. 77; Inst. 2. 1. 33; D. 6. 1. 23. 3. The case is rather like
specificatio, post, § LXXIX. 3 G. 2. 78; Inst. 2. 1. 34; D. 41. 1. 9. 2. 4 6. 1. 23. 3. 5 This
is matter for the law of obligations, but is discussed here in the Institutes. 6 Arg. 41.1.
7. 12. 7 3. 5. 44. pr. 8 G. 2. 77; Inst. 2. 1. 33. 9 12. 6. 33; 41. 1. 7. 12; h. t. 9. pr.
10 Inst. 2. 1. 26. 11 6. 1. 23. 5, interp. 12 6. 1. 23. 4. It is said on the strength of
6. 1. 23. 5 that there was an actio ad exhibendum in some of these cases. 13 G. 2. 78;
Inst. 2. 1. 34; D. 41. 1 9. 2.

14—2

212 ACCESS10 [CH.

he did not pay the value of the tablet. This no doubt means, though it
is not said, if he was in good faith. If the painter possessed, the old
owner had an actio utilis for the tablet subject to his paying impensam
(or pretium) picturae, whatever that means, if the maker was in good
faith. If not he had an actio furti. This actio utilis was presumably a
vindicatio utilis and it was odd enough. If impensa means the value of
the picture he had no remedy except on purchase of the picture which
he might not want. If it means merely the cost of the materials, then
he got what might be a valuable picture for practically nothing. And,
on the rules as stated, each could recover it from the other1.

The next case of accessio to consider is to land apart from buildings.
The rules can be briefly stated. Imperceptible deposit of soil on a man's
boundaries by the action, e.g. of a river, belonged to him2. An island
arising in the middle of a river belonged to the owners on each side, to
the middle line3. Apart from temporary inundation, if a river changed
its bed, the old bed belonged to the owners on each side and the new bed
became public, reverting if the river reverted4. If a solid identifiable
piece of land was carried on to A's borders by the force of the river, the
ownership was unchanged, until trees rooted in it struck root in A's
land, when it became his5. In the same way anything sown or planted
in a man's land was his6.

In the case of alluvio we hear nothing of compensation, for obvious
reasons. In the case of plants rooted in land, the little we are told7
suggests that, as we should expect, the rules were as in the case of
moveables.'

The rules of alluvio, etc., harmonise with the doctrine that the
owners of land on the banks owned the soil to the middle line, and this
is strengthened by the fact that they did not apply if the land concerned
was ager limitatus, i.e. defined by straight lines by authority, having no
necessary relation to natural features, as was commonly the case with
lands granted by the State 8. The same is true of the rule as to insula
nata, which was on the same level as alluvio (while an island in the sea,
the bottom of which certainly belonged to no one, was res nullius9} and
cannot be thought of as accessory to the land or ceding to it, unless the
right extended to the middle line. It was laid down by Celsus that the

1 These rules do not deal with the possible case in which the fusion is effected by
one who owned neither the principal thing nor the accessory. This case might easily be
very complicated. 2 G. 2. 70; Inst. 2. 1. 20; D. 41. 1. 7. 1. 3 G. 2. 72; Inst. 2. 1.

22: D. 41. 1. 7. 3, 4. 4 41. 1. 7. 5; Inst. 2. 1. 23. 5 G. 2. 71; Inst. 2. 1. 21; D. 41.

1. 7. 1, 2. The Institutes speak of the tree only. See also 6. 1. 5. 3. 6 Common, if rooted
in two estates, G. 2. 74, 75; Inst. 2. 1. 31, 32; D. 41. 1. 7. 13. 7 G. 2. 76; Greg. Wis. 6. 1 ;
Inst. 2. 1. 32. 8 41. 1. 16. As to practical difficulties and temporary departure from

these principles, see Cuq, Manuel, 261, and literature there cited. See also Costa, Le Acque
nel dir. M. 4 sqq. 9 Inst. 2. 1. 22.

v] ACCESSIO 213

soil belonged to owners on each side and was public only quoad usum1.
On the other hand there are texts which make the bed public2, and
Girard points out that even so late as Labeo there were controversies
as to riparian owners' rights to islands3. There are, as we have seen,
other traces of differences of opinion on many of these points4. The
better opinion seems to be that the classical lawyers were reaching the
doctrine that the bed belonged to the riparians5.

LXXVIII. Passing to the case of buildings, the texts discuss two
hypotheses :

(a) A built on his own land with fi's materials. The house belonged
to the builder: superficies solo cedit6. But the Romans were here
capable of a rather metaphysical distinction. Though the house was
A's, B's materials were still his7, subject to the limitation, based on
the XII Tables, that so long as they were absorbed into the house, even
though separable, he could not reclaim them8. His ownership was
inoperative, but capable of renewed effect. If, however, they had been
used in bad faith, the old owner had an actio de tigno iniuncto, also based
on the XII Tables, for double their value9, and even after bringing this
action he could still recover the materials if the house fell or was pulled
down10. The act would seem to be furtum, but if the actio furti were
brought, no doubt that de tigno iniuncto was barred. If, though the
builder was in good faith, the materials had been actually stolen by
someone, the old owner could either bring the actio de tigno iniuncto or
reclaim the materials when the house came down, but not bothu. If
there was no theft, but all was in good faith, he had the same right to
reclaim when the house was pulled down. The Institutes, and an inter-
polated text in the Digest12, give him the alternative of de tigno iniuncto,
but most of the texts, the nature of the action itself, and the language
of the relevant title in the Digest13 leave little doubt that, at least for
classical law14, this action never lay unless the materials had been stolen
by someone. This leaves no remedy, in case of good faith, beyond the
very poor one of eventual reclaim. It has therefore been suggested, on

1 41. 1. 30. 1. 2 See p. 212, n. 4. 3 Manuel, 332; D. 41. 1. 65. 4. 4 41. 1. 7. 5;
In 7. 1. 9. 4 Ulp. gives usufructuary the usufruct of alluvio, but denies him any right
in insula nata, though he agrees that it belonged to the owner of the land. He rests his
view on Pegasus but seems to give his own reason which is that such a thing is not within
the intention of the original grant. 5 The rule stated by Paul (41. 1. 65. 3) is somewhat
adverse. 6 G. 2. 73; Inst. 2. 1. 29. 7 Thus usucapio of the house was not usucapio
of the materials, 6. 1. 23. 7; 41. 1. 7. 11. 8 41. 1. 7. 10; Inst. 2. 1. 29. 9 47. 3;

24. 1. 63. 10 41. 1. 7. 10. 11 24. 1. 63; 47. 3. 1. pr., h. t. 2. 12 Inst. 2. 1. 29; D.
6. 1. 23. 6. 13 D. 47. 3. 14 It may be doubted, in view of the other texts, whether
the two texts (see n. 12) which can be so interpreted really intend to extend the actio de tigno
iniuncto to cases of good faith, throughout. In 46. 3. 98. 8 Paul says (there is nothing
about theft) that the pretium can be recovered; cf. 47. 3. 1. 1.

214 ACCESSIO [CH.

the authority of a text which appears to be interpolated1, that, as in
the corresponding case in moveables, there was an actio in factum for
the value of the materials2.

The possible case in which the building passed into the possession of
the owner of the materials before any of these proceedings were taken
is not discussed. Presumably the builder (owner of the land) could
recover only on paying for the materials, without prejudice to his
liability for theft in case of bad faith.

(b) B built with his own materials on A's land. There are many
difficulties in this case. There are indeed several possible cases, but no
analysis of them will provide a coherent story from the texts. There was
evidently evolution and difference of opinion among the jurists them-
selves.

(i) B still in possession was in good faith, i.e. reasonable error, all
through. If the owner vindicated, B could by an exceptio doli get reim-
bursement of his expenses3. If the place came down while still in fi's
possession the materials reverted4. But here difficulties begin. Celsus
says that if the work was what the owner would have done, he must
refund either cost or value, whichever was the less5. This is rather
favourable to him, though it is stated as a concession to the builder.
Celsus adds that if he was too poor to pay this, he might let the builder
take away the material, so far as this could be done without damage.
To this is added a clause, certainly of Justinian, that he might instead pay
what the matter would be worth to the builder when removed, so that
the latter was prevented from destroying for mere malice, e.g. by
erasing frescoes. Words are added which seem to mean that these
various alternatives did not apply if the owner had a customer for the
house: here he must pay the added value. This ius lollendi has caused
much difficulty. Three other texts mention it, but they look interpolated6.
It is in conflict with the principle so often laid down that it was forbidden
to pull down houses. But it looks genuine in this text and it occurs in
other branches of the law7. In any case it was clearly law under Justinian8.
1 Arg. 6. 1. 23. 5. 2 Under Justinian the owner of the materials seems to have

been allowed to bring vindicatio and ad exhibendum at once. But the texts are in conflict
(47. 3. 1. 2, 2; 6. 1. 23. 6; 41. 1. 7. 10; Inst. 2. 1. 29) and the rule, which conflicts with
the principle laid down by the XII Tables, can hardly be classical. 3 41. 1. 7. 12; 44. 4.

14; Inst. 2. 1. 30; ius retentionis. 4 C. 3. 32. 2. 5 6. 1. 38. 6 6. 1. 27. 5; h. t.

37; C. 3. 32. 5. 7 See Pernice, Labeo, 2. 1. 384. 8 Celsus tells us, or is made to

tell us, that "without damage" means that the premises are left no worse than they
were before the matter was added. Some writers harmonise the texts by holding that,
in classical law, the ius tollendi applied only to additions to a house, not to complete
buildings; see Pernice, Labeo, 2. 1. 386. It is sometimes held that the whole notion of
ius tollendi is Byzantine. See Beseler, Beitrage, 2. 39 and reff. One text says that any
fruits received while the builder was in bona fide are set off against the ius retentionis,
6. 1. 48.

v] ACCESS1O 215

(ii) B, still in possession, was in bad faith. There was no question of
furtum, for there is nofurtum of land. Here we are told that he had no
ius retentionis, for which the reason is assigned that he was construed as
having given it1. And he had no ius tollendi in classical law, though two
interpolated texts give this right2. The same principle would exclude
any right in him if the place fell down. But it must be supposed that
though he built knowingly on another's land, if he did it as an act of
gestio for the owner, reasonably, this would be a case of negotiorum
gestio3.

(iii) The owner of the land has recovered possession. Here, in no
case, apart from negotiorum gestio, had the builder any action, a rule set
down to the fact that there had been no negotium*. From this point of
view good or bad faith was immaterial, though we are told that if he
had bought the land in good faith these expenses would come into
account in his claim on eviction5. Nor had he, as it seems, any ius
tollendi, even under Justinian. If however he was in good faith, since
he could not be supposed to have intended a gift, the materials reverted
when the house came down6. If he built in knowledge that the land
was not his, the Institutes and Digest say that it was construed as a
gift and he had no such claim 7. But a text in the Code modifies this by
saying that, whether it was in good or in bad faith, the materials re-
verted if the house came down, unless it appeared that the erection was
donandi animo8. That is a very different proposition: in general he did
not intend a gift, and the rule about donandi animus was a legal fiction
to penalise a wilful wrongdoer. The form of the provision in the Code
suggests interpolation.

The texts do not consider the very possible case of a building by A
on B's land with C's materials 9. If the house was still in the builder's
possession it was, as between him and the owner of the materials, as if
it were his own land, and, as between him and the owner of the land,
as if they were his own materials. If the land was in its owner's posses-
sion, the owner of the materials was not affected by the good or bad

1 Greg. Wis. 6. 2; Inst. 2. 1. 30; C. 8. 10. 5. 2 C. 3. 32. 5, if impensae were utiles.
Another text of Ulpian (6. 1. 37), but probably interpolated, gives him the ius tollendi
if he acquired possession in good faith, but built after he knew the truth. 3 Post,
§ CLXXXV. 4 12. 6. 33. 5 C. 8. 44. 9. But 19. 1. 45. 1 says that as he need not
have given up possession without receiving "impensam aedificiorum" he has no claim
in respect of this against his vendor. 6 C. 3. 32. 2. 7 41. 1. 7. 12; Inst. 2. 1. 30.

8 C. 3. 32. 2. 9 The case occurs. The squatters in Epping Forest built huts on land

not their own out of materials taken from the forest, the property of the Lord of the
Manor. A builder erecting a stable in his yard builds the back wall by accident or design
beyond his proper boundary. In taking materials from his yard he used some which
were in fact the property of a customer. Such facts as these might give rise to difficulty
in applying the rules. If the owner of the land on which the back wall is built uses it to
support a roof, which of the parties is in possession of the wall ?

216 SPECIFICATIO [CH.

faith of the builder, but was bound by the rule that the house might not
be pulled down. His only right against the landowner was, apparently,
to vindicate if the house came down. If the builder had used them in
bad faith there would be de tigno iniuncto against him (for possession is
not necessary, so far as appears), as an alternative to actio furti, and
condictio furtiva if there had been no vindicatio. If the builder had used
them innocently, there was no remedy against him, any more than in
the case of any other bona fide possessor who had ceased to possess, sine
dolo malo. But if, on handing over, he exercised his ius retentionis there
are indications that an actio negotiorum gestorum utilis would lie, for in
claiming the ius retentionis he managed the owner's affair thinking it
his1. If he did not claim it, and was in good faith, there was no claim
against him.

LXXIX. SPECIFICATIO. This can be described as the acquisition
of a new thing by making it out of materials wholly or partly another's.
The name is a medieval invention, and, as we shall see the institution
had close affinities with accessio, with which it is very much entangled
in the Sources. The general notion is simple. Where A made a definitely
new thing out of material of B's the Sabinians held that there was no
change of ownership : the ownership of the materials was decisive. The
Proculians held that a new thing, having come into existence, had a
distinct identity and belonged to the maker2. But Justinian tells us
that there had been many opinions and that he adopts the media
sententia of those who had held that the nova species (where species
means specific thing) should belong to the maker if not capable of
reduction to its original form, but, if so capable, should still belong to
the owner of the materials. It is clear that this media sententia is not
due to the compilers themselves3.

The first question is: what is a nova species'! This is independent of
the question whether it can be restored : a statuette cast out of another's
bronze was a nova species, but being reducible, did not go to the
maker4. A nova species is nowhere defined, but instances are given from
which modern definitions have been framed. There were cases in which
the Romans had difficulties. Some imported the idea of irreducibility.
Ears of corn, they said, could not be restored after threshing, and thus
grain was a nova species. But the view which prevailed, according to
the Digest, though the Institutes give the other, is the rational one that
it was the same thing taken out of its wrappings5. Grapes plucked were
not new things, but wine was. To kill a pig, and even to cut him into
joints, does not make a nova species. But sausage would be a nova

1 See 3. 5. 48, post, § CLXXXV. 2 G. 2. 79. 3 Inst. 2. 1. 25; D. 41. 1. 7. 7.

4 Ibid. 5 Inst. 2. 1. 25; D. 41. 1. 7. 7 in f.

v] SPECIFICATIO 217

species. A broken egg would not, an omelette would, be a nova species.
What then is the test? The matter is discussed at length by Czyhlarz1
and Windscheid2, who cite various opinions3. Perhaps it is best to
accept Windscheid's view that there is no juristic answer: it would
never give great difficulty in practice.

There is difference of opinion on another requirement. It is some-
times said that there was no acquisition unless the act of manufacture
was done in good faith. No text expressly concerned with the law of
this topic says anything to suggest this. There was no such requirement
in accessio, where good faith was material only on the question of com-
pensation. Specificatio has close affinity with accessio. Where the maker
used his own and another's materials it might be difficult to say which
it was. If, as some hold, it was essentially a case of occupatio (a point
discussed below), good faith ought to have been immaterial, since it
was none the less a res nullius. And though no text says that good faith
was not necessary, the concluding words of the principal text in Gaius*
allow of specificatio, where the matter was stolen, but are not conclusive,
as it is not said that the maker was the thief. What the view of Gaius
himself was does not appear. On the whole the better view seems to be
that bona fides was not needed, though modern opinion is much divided5.

What was the basis of this right of acquisition? According to a view

1 Op. tit. 248 sqq. 2 Lehrbuch, § 187. 3 Fitting (Archivf. c. Pr. 48. 6) holds

that the question is whether the product is of a new kind, conies under a new "begriff."
C. rightly rejects this, as, if I take your vase and melt it and cast it into a new one exactly
similar, it is yet a nova species. He. himself, holds that the test is whether the work has
resulted in a new creation which did not before exist, but this seems little more than
saying that a new thing is a new thing. Fischer says (Bresl. Festg. fur I her ing, 2. 70, cited
Windscheid, loc. cit.) that the labour expended on the thing must be economically more im-
portant than the material since the whole rule is intended as a reward for labour. Platinum
worked from the form of a dipping rod to a spatula is unquestionably a new thing but the
material is worth tenfold the labour. And this view confuses nova species and acquisition,
which are distinct points. And a nova species is not necessarily the reward of labour.
Vinegar from wine is a nova species and the acetic fermentation often occurs without any
labour. 4 G. 2. 79. 5 The chief texts cited in favour of the view that bona fides was
needed are the following: 13. 1. 13 (but here there is no specificatio on the media sententia.
the condictio furtiva would be available in any case, and the inclusion of the added value is
only the usual rule against a thief. The position of Paul and his authority Fulcinius on
the subject of specificatio is not clear); 13. 1. 14. 3 (where there is no nova species, and the
author is a Sabinian): 47. 2. 52. 14 (same case, the old owner has condictio furtiva, but that
he would have in any case. No doubt "soli domino competit," but that is the old ownership.
He would still have it if the thing had ceased to exist): 10. 4. 12. 3 (Paul, who may be a
Sabinian on the matter. The text has been suspected of interpolation, and apart from this
the language is such as to shew disputes and as stated is much too wide for the truth.
Windscheid, a supporter of this view, says (Lehrb. Sec. 187, n. 3) that it gives no certain
result); 41. 3. 4. 20 (Paul again, and it really makes against this view, for in order to give
condictio furtira where the thing has been made into a new species, he says: verius ext ut
substantiam spectemus et idea vestis furtiva erit).

218 SPECIF1CAT1O |CH.

widely held, it was occupatio1. A new thing which had no owner was
"occupied " by the maker. This is more or less supported by the language
of the Digest in expressing the Proculian view: "quia quod factum est
antea nullius fuit2." There is also the fact that, both in the Digest and the
Institutes, the case of occupatio is followed by the cases of alluvia and
the like and then by this topic. Czyhlarz3, with others, rejects this view.
He says that, though the Proculian view speaks of res nullius, it says
nothing of occupatio, but as the fact is given as the reason of the ac-
quisition, the inference to occupatio is the only one which suggests itself4.
On any other basis the absence of ownership would be not the reason
but the occasion. He adds that, if it were open to occupatio, someone
else could so acquire it and the maker would not get it, and that is not
so. But the creation and the occupatio occurred at the same moment.
There was no measureable time in which it was a res nullius: even if
the maker was not on the spot at the moment of completion, he was in
possession and became owner. If he waived his right shortly before
completion, no doubt, any one could "occupy" it. The competing view
is that the act of making sufficed: the acquisition was by creatio. This
is held by most of those who require good faith. The distinction is not
unimportant. If the acquisition rested on the fact that it was a res
nullius, this must be equally true even if the material was the maker's.
But creatio is an arbitrary notion on which it is possible to set limits, as
Czyhlarz does, and to say that acquisition by creatio did not apply if the
material was the maker's5.

On the question of compensation we have little information. Gains
says that if the thing had been stolen, there was condictio furtiva against
the thief and some others6. As this could not lie against an innocent
maker it has been suggested that in this case there was condictio sine
causa7, but this is without textual support. Another text gives a vin-
dicatio utilis, like that in the case of the picture, where a woman made
clothes out of wool which her husband had given her8. But gifts between
husband and wife being void, this, even if genuine, may be no more than
a means of enforcing that special rule 9. That the old owner should have
no remedy seems so unfair that many writers appeal to the general

1 See Czyhlarz, op. cit. 315. 2 41. 1. 7. 7. 3 Op. cit. 314 sqq. 4 Express

reference to occupatio as such is unusual. We get " occupantis fit " and the like sometimes
(41. 1. .3. pr. ; 43. 12. 1. 6, etc.). Most of the texts actually dealing with occupatio do not
use this word, or occupare. 5 Fitting, cited Windscheid, Lehrb. § 187, n. 2, holds

the singular view that it was occupatio in classical law but creatio under Justinian. It is
difficult to see in creatio, which cannot be extended to other cases, anything more than
a label. 6 G. 2. 79. He may mean only the heredes. 1 Witte, Bereicherungsklage,

329, cited Czyhlarz, op. cit. 380. 8 24. 1. 30; it is probably interpolated. 9 Girard,
Manuel, 32G.

vj TREASURE TROVE 219

notion of enrichment and condictio for the remedy. But there is no
evidence for this application of that principle. In a case of bad faith
there were the actio furti and condictio furtiva, but it may be that in
cases of good faith there was no more remedy than where a bona fide
possessor had ceased to possess, sine dolo malo.

The ownership of the new thing in a new person must be a new
ownership. How far was it affected by rights in third persons which
attached to the material in the hands of the old owner? It is clear that
a usufruct of the material was destroyed1, and we have no evidence as
to the position of the usufructuary in matter of compensation. We
know however that he had no condicto furtiva, though he could sue for
the theft2. A legacy of the material was not a legacy of the thing, but this
does not turn on the rules of specificatio, but on construction of the prob-
able intent of the testator3. We are told4 that a pledge of the material
was ended by specificatio5.

LXXX. THESAURI IXVENTIO. This is a principle under which
treasure found by anyone goes to him in whole or part under a number of
conditions. Treasure means valuables that have been deposited for so long
that all trace of their present ownership is lost. As to what are valuables,
Paul speaks merely of pecunia6. The C. Theodosianus calls them monilia,
which is understood to mean precious metals and stones and the like7.
Justinian incorporating the enactment calls them mobilia8, which may
be a mere slip or may be intended to widen the class: in any case it
means things of very special value. Deposited seems to mean intention-
ally placed there, which would exclude an ornament accidentally
dropped and dug up long after9. The purpose of the deposit is immaterial.
Concealment was a common case, but a pious offering may have been on
the same footing. HOWT ancient it must be cannot be said: what was
needed was that there should be no means of determining to whom it
now belonged. It was none the less treasure because, in the deposit, the
name of the depositor was found, if it could not be said who represented
him to-day. Most of the texts speak of it as found in land10, and none
suggests that there could be a right, as treasure, to what was found in a
moveable11.

There is much controversy as to the juristic ground of the acquisition.
A thing which has no traceable owner is much like one which has none,

1 7. 4. 10. 5, 6. 2 47. 2. 46. 1, etc.; 13. 1. 1. 3 32. 88. pr.; cf. h. t, 5. 4 13. 7.
18. 3. 5 There are many other questions arising out of specificatio, especially where

the material was that of the maker. See Czyhlarz, op. cit. 266 sqq. 6 41. 1. 31. 1.

7 C. Th. 10. 18. 2. 8 C. 10. 15. 1, included in another statute. 9 The whole point was
elaborately discussed from the point of view of modern law in the case of Attorney
General v. British Museum Trustees (1903), 2. Ch. 598. 10 See the reff. in Czyhlarz, op.
cit. 212. 11 Some writers hold that the rule applied there.

220 TREASURE TROVE [CH.

and this suggests occupatio. It was certainly acquisition by taking, and
it can hardly be doubted that the notion of occupatio played some part
in it. But if it is occupatio it is occupatio with special characteristics. It
is confined to one person (the finder) like specificatio. The share that the
landowner took cannot have been acquired by occupatio, for he acquired
though he knew nothing about it. His share vested in him at once: it
was not a case of a duty in the finder to hand over a share to the owner1.
It rested entirely on imperial enactment, based we are told on natural
equity2, where it is difficult to believe but that occupatio was present to
the mind of the legislator. It hardly seems worth while to seek a juristic
idea behind that, but Czyhlarz holds that as to the finder's half it rested
on inventio, just as in specificatio he makes the acquisition rest on
creatio3. The landowner's half was acquired, he holds by accessio*, but
as he was regarded as acquiring only at the moment of finding, it was a
peculiar case of accessio. Accessio rested on the addition of something
to a unit of property: its basis was merger or absorption. But this
acquisition occurred at, and by the act of, separation. As to what was
meant by finding, the general effect of the texts is that the acquirer was
not the person who first saw it, but he who first got effective control5,
which recalls occupatio. But it does not seem necessary that he should
intend to acquire it, which differs from the rule in that case6.

Justinian's history of the matter begins with Hadrian, and the earlier
state of things is uncertain. A text in the Digest7 suggests that in the
republic treasure belonged to the owner of the land, not as treasure, but
as part of the land, and a passage in Plautus8 makes slightly in the same
direction, but other views are held. A story about Nero is supposed to
shew that in principle all treasure was the property of the Fiscus, but
it really proves nothing9, though such a rule would be quite in accordance
with the financial policy of the time. Finally, we are told that the
Emperor Nerva decreed that treasure should in all cases go to the owner
of the land10.

1 41. 1. 63. pr., Inst. 2. 1. 39. See Czyhlarz, op. cit. 221 sqq. 2 Inst. 2. 1. 39.

3 These are of course reasons which led to the introduction of the rule, but there seems
little purpose in erecting them into juristic bases unless there is evidence that the Romans
so conceived the matter, and that they can be utilised to explain any other institution:
neither appears to be the case. 4 Loc. cit. 5 Czyhlarz, op. cit. 229 sqq. 6 The
placing of this method under those iure naturali, though it rests on enactment, is justified
by the repeated allusion to naturalis aequitas (C. Th. 10. 18. 2. 1; Inst. 2. 1. 39) coupled
with the fact that it is not part of the ancient formal law. 7 41. 2. 3. 3. 8 Plautus,
Trin. 150 (Goetz and Schoell), see Girard, Manuel, 324. 9 Sueton. Nero, 31; Tacit.

Ann. 16. 1. The story involves the assignment of the treasure to a known past owner,
whose rights had vested in the Roman State. The present owner was therefore known.
Bonfante shews (Mel. Girard, 1. 123) that the claim of the fiscus is not due to Nero, but
is older, and suggests that the finder's half is a bribe to informers. 10 Zonaras, 440,
cited Gothofredus ad C. Th. 10. 18. 1.

v] TREASURE TROVE 221

Hadrian legislated comprehensively. According to the Institutes1
he provided that if a man found treasure on his own land it was his.
So too if he found it, by chance, on solum sacrum or religiosum. If he
found it on another's land, by chance, he shared with the owner, with
Caesar if the land were Caesar's. And Justinian continues that it is
consistent with this that if he found it on land of a city or the fiscus,
half should go in the same way to these2. We learn from other sources
that if the finding was the result of search the finder had no right, but
the owner of the land took all3, and, presumably in such a case, if the
land had no owner, the fiscus took all. M. Aurelius and Verus provided
that where treasure was found on public or religious or Caesar's land, or
in monumentis, half should go to the fiscus, half to the finder, provided
he duly reported it, otherwise all to the fiscus. But there wras no duty to
report where the fiscus would not have any claim4.

An enactment of Constantine5 lays down the same rule as that of
M. Aurelius and Verus, but does not expressly say anything about the
place of discovery. Presumably it means any land in respect of dis-
covery on which the fiscus had a claim under existing legislation. Late
in the fourth century there was further legislation apparently lessening
the rights both of the fiscus and of the landowner, but Justinian does
not preserve this6.

A constitution of A.D. 480 (Leo) preserved in Justinian's Code7,
dealing only with private lands, allows a finder to keep all he finds on
his own lands, even on search, provided he used no sacrifices or forbidden
arts, and a half of what he finds, by chance, on another's land. What
he finds there on search goes wholly to the landowner. This agrees with
Hadrian's rule, stated in the Institutes, so that, as to private lands,
Justinian's rule is that of Hadrian. But as to what may be loosely
called public land, he preserves both Hadrian's rule and that of M.
Aurelius and Verus8, and they do not agree. Where the discovery is on
land which has no owner, Hadrian gives all to the finder, while the
other rule gives half to the fiscus, and where it is on land belonging to
cities (publica loca) Hadrian gives half to the city, as to other owners,

1 Inst. 2. 1. 39. 2 This does not seem to have been expressly stated in the enact-

ment. Spartian, Hadr. 18, gives a slightly different account. 3 C. 10. 15. 1. 3. 4 49.
14. 3. 11. Alexander Severus made an enactment (vita Alexandri, 46) which is hardly
intelligible, but seems to have benefited the finder at the expense of the fisc. At some
unknown time in the third century this was reversed (Gothofredus, loc. cit.) and towards
the end of the century it was restored: the finder kept the treasure (Arg. C. Th. 10. 18.
1, Gothof.). But these vague literary allusions do not tell us whether he took it all, and
whether the rights of private landowners were affected. 5 C. Th. 10. 18. 1. Not

preserved by Justinian. 6 C. Th. 10. 18. 2, 3. The owner has only a quarter, and

apparently the fiscus has no claim where treasure is found by chance on fiscal lands.
7 C. 10. 15. 1. 8 49. 14. 3. 10; Inst. 2. 1. 39.

222 ACQUISITION OF FRUITS [CH.

while the other rule suppresses the right of the city and gives half to
thefiscus1.

A usufructuary was not owner, and thus if he found treasure on the
land he got only the finder's half and had not even a usufruct in the
other half2, as it was not part of the land. So also a pledge creditor in
possession had only the finder's half. But if he had, before the finding,
taken the proceedings established by Severus for having the property
declared his, (foreclosure)3, the rule was that if the property had been
definitely assigned to him, and the time within which the debtor could
get the foreclosure set aside had elapsed, he was owner and took the
whole. If it was after he had begun to hold as owner, but while the
debtor had still a right to redeem, he would have only the finder's half
if the debtor ultimately did redeem, otherwise the whole4.

LXXXI. ACQUISITION or FRUITS BY ONE NOT OWNER OF THE THING.

These cases break into two groups. In one the acquisition was by
gaining actual control of the fruits, fructuum perceptio. In the other it
was by the separation of them from the fruit-bearing thing, no matter
by whom effected, fructuum separatio. The most likely explanation of
the distinction is that in the two cases of perceptio (conductor and usu-
fructuary) the person who was to acquire had not possessio of the thing
itself, while in the cases of separatio (emphyteuta and bona fide possessor)
he had.

Fructuum perceptio. The conductor. The exact moment at which
fruits were "gathered" was a question of fact: reaping without stacking
was enough5. The principle was that the acquisition rested on the assent
of the dominus6. By their separation, which first gave them a separate
existence, they vested in the owner of the soil. He allowed the tenant
to take them — in effect a case of traditio brevi manu}. As assent was the
essence of the matter, if the landlord revoked his assent, the property
would not vest in the tenant8, though the revocation might be a breach
of contract, e.g. where the land was let for a certain time. It was the
consent of the person entitled which was material, so that, if the land
was sold, the new owner must assent, either tacitly or by an express
relocatio9. The assent must have existed at the time of the perceptio,

1 It is to be noted that one account of Hadrian's legislation in a non -legal work
(Spartian, Vita Hadriani, 18) says that if treasure is found in any public place (which seems
by the context to mean any place not privately owned) half goes to the Fiscus, i.e., the
owner's half, agreeing on this point with the rule of M. Aurelius and Verus, but not with
the Institutes. Spartian's account is however inaccurate : he speaks of a duty in the finder
to give a share to the landowner, but, as we have seen, the share vests in the landowner
by the finding. In systems of law which have had to apply these rules in practice, it seems
to have been generally held that the rule of M. Aurelius and Verus, being the later, must
be applied. 2 Arg. 41. 1. 63. 3. 3 Post, § CLXVII. 4 41. 1. 63. 4. 5 7. 4. 13.
6 47. 2. 62. 8. 7 Post, § LXXXIII. 8 39. 5. 6. 9 Arg. 19. 2. 32.

v] FRUCTUUM PERCEPT 1O 223

which logically leads to the conclusion that if the locator became insane,
or died, there could be no such acquisition1. The texts do not say this,
or the contrary, but convenience seems to require that, where the
tenancy continued, the assent should be held to continue till there was
someone who could give or revoke it2.

As to what are fruits for this purpose, there is no great difficulty in
the case of land: they would be the ordinary agricultural produce3. If
the tenant sublet the land the rent was his: there was no question of
perceptio*. Where slaves were hired there would usually be no question.
Their children were not fructus5. If the hirer sublet, any money he received
was his but was not fructus, and if the slave sublet himself and received
the wage, it may be that a kind offructuum perceptio would apply6.

The usufructuary. He too acquired fructus only by perceptio 7. But
there is much difference between this case and the last. Here the right
did not rest in any way on the assent of the owner, and there was thus
no question of a traditio brevi manu. It rested on his ius in rem.
If the fruits were separated by someone else, and carried off, the
fructuary, not being owner, could not vindicate or bring condictiofurtiva*.

What amounted to perceptio was, here too, a question of fact : it was
some act amounting to exercise of the right of ownership. Gathering
them is the typical case9. It is a disputed question whether any such
act was needed in the case of young of animals10.

As to what were fruits, this is matter for the law7 of usufruct: a few
words here will suffice. The young of animals were fruits: the children

1 So Czyhlarz, op. cit. 462. 2 Other cases in which the principle of continuance of

assent is applied, and acquisition based on a sort of tradiiio brevi manu, e.g., digging from
a chalkpit, 39. 5. 6. 3 As all depends on agreement there may be variations, a question
of fact in each case. There may be agreement that the tenant will not remove the straw,
or some of the crop may be reserved as rent, 47. 2. 83. 1 ; 19. 2. 19. 3. 4 19 2- 7. Owner-
ship will depend on delivery. 5 6. 1. 16. pr. ; 7. 1. 68. Disputes. 6 If subletting
was forbidden in the original agreement the crops would not go to the subtenant, and any
fructus civiles through the slave would go to his owner, Arg. C. 4. 65. 6. 7 7. 4.
13; Inst. 2. 1. 36. 8 7. 1. 12. 5; 13. 1. 1; probably he had actio furti, for what
was stolen was part of the thing in usufruct. Why perceplio is needed is disputed.
What the rule expresses is a need for reduction into possession, as fructuary does not
possess, but this does not seem to be logically required, as there is no question of assent
or traditio. Girard (Man. 328) treats it as a sort of occupatio, but as, between separatio
and percfptio, it is the property of the dominus (1. 1. 12. 5), not a res nullius, it is not
easy to apply this notion. Czyhlarz (op. cit. 423). holds that as the right rests on his ius,
it accrues only by an exercise of it, but this would be equally true of emphyteuta or of
owner himself. The point does not seem to be proved by shewing that usufruztus infruendo
consistit (7. 3. 1. pr.). It is not a usufruct that he is acquiring. 9 Reaping is enough,
7.4. 13. 10 The material texts seem to be Inst. 2. 1.37 and the slightly different
rendering in 22. 1 . 28 which puts bona fide possessor and usufructuary together as acquiring
"tftah'ra." As the former variant does not mention fructuary, the text is not conclusive
for classical law. Czyhlarz holds (op. cit. 42) that no act is necessary.

224 FRUCTUUM PERCEPT1O [CH.

of ancillae were not1. One ordinarily thinks of fruits as taken in kind,
and if the fructuary sold the crops, in the land, these still were the
fruits and would or would not be available for the buyer according as
they were or were not percepti when the usufruct ended. But if he
leased the usufruct then we get what are sometimes called fructus
civiles, the rent, and there were special rules, which have nothing to do
with fructuum perceptio. If all the crops of the year had been gathered,
the fructuary was entitled to all the rent, though the year might not
have ended. If none, then he got nothing: if part, then proportionately2.
If it was a slave whom he had let out on hire, he was entitled to the
hire for so many days as had expired when the usufruct ended3. All
this has nothing to do with acquisition of ownership. The money was
due under contract, and if he or his heres received more than he ought,
it was none the less acquired, by traditio, not by perceptio, and the rights
of those to whom it ought to go must be enforced by actio in personam.
The rule that the young of animals were fruits and went to the
fructuary was modified in one common case. Where a usufruct was of
a universitas, e.g. a flock of sheep, the fructuary must keep up its num-
bers, so as to be able to hand over the flock undiminished at the expiry
of the usufruct. He was bound to replace those which died, from the
young or otherwise — the usual course was to do it from the young4.
This obligation summittere might be construed in either of two ways.
It might have been looked at as matter of obligation : the young were
his, and if he did not use them to replace the missing, this was merely a
breach of his duty as a usufructuary, against which the owner normally
held security 5. This view is indeed taken in one text, which says that if
there was a case for summissio, the lambs from which the substitutes
were to be taken were the fructuary's, but when he had effected the
summissio , the lambs concerned ceased to be his and vested in the
dominus6. This may be regarded as a traditio, the summissio being some
act of incorporation into the flock. But according to another rule else-
where laid down and declared to be the correct rule, if there was a
shortage in the flock, and there were lambs, the ownership of these
lambs was in suspense till it was certain which were summissi. The act
would determine the ownership of these and of the others 7. The rule,
which does not look convenient, gives the duty of summissio a real and

1 7. 1. 68; P. 3. 6. 19. 2 7. 1. 58. pr. 3 7. 1. 25. 2; h. t. 26; 45. 3. 18. 3. Here

the slave made the contract: it was acquired pro rata by fructuary and dominus. If fruc-
tuary had made it, the right, so far as he was concerned, would be the same. But, apart from
relocatio, nothing would vest in the dominus. 4 P. 3. 6. 20; D. 7. 1. 68. 2, 69. Those

members of the flock which die are thus at the risk of the fructuary and become his
property, though of course they are not fruits, ih. 1. 1. 18. 5 Post, § xcv. 6 7. 1.
69. 7 7. 1. 70. 1.

v] FRUCTUUM SEPARATIO 225

not merely obligatory effect. There was however a limitation. A lamb
born before the vacancy occurred was not subject to the rule: it was
only those born after of which the ownership was in suspense1.

If the fructuary gathered fruits before they ought to be gathered,
which does not mean before they were ripe, since some fruits ought to
be gathered unripe, they were none the less fruits and they were his2.
But this was not acting like a bonus paterfamilias and, presumably, if
the usufruct ended before the proper time of plucking, the owner would
have a claim for damages, though no text says this3.

LXXXII. Fructuum separatio. Emphyteuta. Of this case we are
merely told that a holder of agri vectigales, which in Justinian's time is
understood to cover emphyteusis*, acquired fruits by separatio5. The
acquisition rested on his ius, but here he had possession, and was much
like an owner, since he commonly held in perpetuity6.

Bona fide possessor. This is the most important case, and the most
discussed. The general rule is simple: a bona fide possessor of property
became entitled to the fruits, by separatio, by whomsoever effected7.
Apart from theory, a practical reason why, if he was to have the fruits,
he should have them by separatio, is that, the owner not being known,
any other rule would benefit a malefactor who knew that the possessor
was not owner.

It is not so obvious why he should have them at all, and it was
indeed formerly held that he acquired not dominium but usucapion
possession, the same "right" in fact that he had in the thing itself.
But the texts are clear that he acquired ownership8, and it has been
sought to make this a legal consequence, on the view that he was a
kind of bonitary owner and took the fruits accordingly9. But no text
so states the matter or equalises him with the bonitary owner. His
right to the fruits was of a different kind10; he acquired in certain events,
but he could not complain if the owner prevented him from having
them. Moreover he would have them in some cases in which he
could not usucapt, and thus would not have the actio Publiciana, e.g.

1 7. 1. 70. 4. If none are born afterwards the gaps will of course have to be filled up
either from earlier lambs or from outside sources (Czyhlarz, op. cit. 442), but we a.re
dealing only with ownership. 2 7. 1. 48. 1. See Roby, De. Usufructu, 98, 216.

3 See 7. 1. 62. 4 See Czyhlarz, op. cit. 613. As to emphytensis, post, § xcvii. 5 22.

1. 25. 1 in fin. 6 And thus, like owner, acquires the fruits as soon as they come into

existence separately. Though possession and no possession is probably the deciding point
in the distinction, it must not be forgotten that this is not logically pushed home. The
owner acquires the fruits, even though at the moment he is not in possession, unless
there is some adverse claim such as that of a bona fide possessor. 7 41. 1. 48. One

who receives a res mancipi from a woman without tutor's auctorltas is a b. f. p. as she
can alienate possession without auctoritas. Vat. Fr. 1. 8 E.g. Inst. 2. 1. 35, etc.

9 Brinz, B. F. Possessio, 1. 548, cit. Czyhlarz, op. cit. 506. 10 Czyhlarz, ib.

B. R. L. 15

226 FRUCTUUM SEPARATIO [CH.

where the res was incapable of being usucapted1. The Institutes suggest
a better explanation2: the fruits went to him because they were the
result of his labour. This is true in general, though not of those which
were maturing when his possession began or of those, fructus naturales,
grass as opposed to corn, which need little cultivation, and there is
indeed a text of Pomponius which limits the acquisition to those fruits
which were the result of labour3. That view did not prevail, but its
existence is confirmation of this opinion as to the origin of the rule4.

Fructus properly so called are the natural, and, usually, periodic
products of the thing. But property is capable of giving other forms of
profit, and these are sometimes described as fructus civiles. We have
had occasion to mention these in connexion with usufruct. The same
questions arise in the present case. If the bonafide possessor let the land,
or e.g. a horse, and received hire, there was no question of fructuum
separatio: if he received the rents it was by way of traditio. They were
his, and it may be added that he was under no obligation to account for
them: the owner was entitled, in general, to what he would have had if
the thing had been handed over at the moment of joinder of issue5.
These points and others of a similar type arose especially in the case of
bonafide possessio of a slave and will be considered later6.

A person who obtained possession in good faith would ordinarily
acquire the thing by usucapio, even though he learnt that he was not
entitled7. The question arises whether he still acquired the fructus

1 Post, § LXXXV; 41. 1.48. 1. 2 Inst. 2. 1. 35. 3 22. 1. 45. See however

for a narrower interpretation of this lex, Pernice, Labeo, 2. 1. 358, n. 2. 4 This opinion
is cited from Ferrini (Bull. 2. 218) by Girard (Manuel, 329) who however adds another
possible explanation. He suggests that the possessor has naturally been living as if these
things were among his resources, and that it would be a hardship to make him account
for them. But this is rather like robbing Peter to pay Paul, and it is noteworthy that, where
a similar point arose in connexion with b. f. possessio of a hereditas, this view was expressly
rejected. 5. 3. 25. 12. Czyhlarz (loc. cit.} cites other utilitarian explanations. Forlhering
(Jahrb. 12. 320) it is with a view to trade: men can buy fruits with the same confidence
that their title will not be disturbed as they feel when they buy ordinary manufactured
goods. It is pointed out by Czyhlarz that this is inconsistent with the emphasis laid on
good faith. From the point of view of the purchaser from him, whom, on this hypothesis,
the rule is intended to protect, the state of knowledge of the vendor is immaterial. In
modern systems, specially protected market purchases do not depend in general on the
good faith of the vendor. It has also been said that it is to protect the possessor who has
sold the fruits in good faith, and there are texts which limit his acquisition to fructus
consumpti. But, as we shall shortly see, classical law gave him all, and it is objected by
Czyhlarz that such a rule is too wide for the purpose. This is perhaps hardly conclusive:
a rule making his ownership begin only at the moment when it also ceased is extremely
artificial ; indeed the whole conception is rather artificial and there is no textual evidence in
its favour, for classical law, in which the principle of the rule must be sought. As to a
later view of Ihering, see Czyhlarz, op. cit. 509. 5 6. 1. 20. 6 Post, § xci.

7 Post, § LXXXVII.

v] FRUCTUUM SEPARATIO 227

received after he knew that he was not entitled. Julian held that he
did, not only from the point of view of fructus properly so called, but
also with regard to acquisitions ex re et operis of a slave so possessed1.
Ulpian denied this, with special reference to the latter case2, and Paul,
citing Pomponius, denied it for fructus3. This was therefore, presumably,
the doctrine of later law4.

The acquisition of fruits is complicated by another point. Some
texts speak of the acquisition to the bonafide possessor as definitive : they
were his and there the matter ended5. Others say that though they
were his he must account for them to the dominus, so far as they were
unconsumed, or, what seems to mean the same thing, say that "fructus
consumptos suos facit6." Strictly it is absurd to say they became his by
ceasing to exist: the meaning is that the economic advantage was his
only on consumption, as, till then, he might be called on to account for
them. The effect was not to make an exception to the rule of acquisition,
but to create an obligation to restore, or compensate for, those still
existing7. The fact, that some of the texts which mention this duty of
restoration have clearly been altered, long since caused the general
adoption of the view that the rule was not classical, but it was still
supposed to be not much later, since an enactment of Diocletian8, in
the Code, which has no sign of alteration, states it as settled law. But
it has been shewn9 that an enactment of 366, in the Theodosian Code,
explicitly gives the bona fide possessor all fruits received before litis
contestatio, in the vindicatio by the owner10, and that there is a text in
the Digest which states explicitly the same doctrine11. The result is
that the rule requiring restoration of unconsumed fruits was very late,
possibly as late as Justinian12. It may be that it was an extension to
rei vindicatio of a rule already existing in the hereditatis petitio13.

The question then arises: what is consumption If the corn was eaten,

1 22. 1. 25. 2. 2 41. 1. 23. 1. 3 41. 1. 48. 1. 4 It gives however a very re-

markable result. If the knowledge supervened soon after the taking, and the period of
imucapio elapsed, the old owner will have no claim to the property itself but will be
entitled to claim compensation in respect of fruits accrued after the date at which the
possessor knew he was not entitled. This does not look very practical. It would pre-
sumably be a condictio, and the plaintiff would have to prove the date of supervening
knowledge. 5 22. 1. 25; 22. 1. 28, etc. 6 41. 1. 40; 41. 3. 4. 19, etc. 7 These are
the texts which led to the old view, already mentioned, according to which there was no
real acquisition of fructus, but only bona fide possessio with a resulting right of usucapio.
8 C. 3. 32. 22. 9 Alibrandi, cited Herzen, Mel. Girard, 1. 523; see also O.yhlarz,

op. cit. 559 sqq. 10 C. Th. 4. 18. 1. 11 6. 1. 48. 12 Albertario (Bull. 26. 250 sqq.)
treats the new rule as an expression of the tendency of Justinian to legislate against causeless
enrichment. 13 See post, §cx. It is generally held that under the sc. luventianum the

bona fide possessor of a hereditas had to restore all existing fruits. It has however recently
been maintained by Albertario (toe. cit. p. 275) that in this case also the possessor was not
bound in classical law to restore fruits received before litis contestatio.

15—2

228 TRADITIO [CH.

that was of course consumptio. But, if it was sold, was the price the
fruits in a new form or was sale consumption The question is not directly
answered1. The little evidence which exists is in favour of the view
that sale was consumptio, and that even under Justinian the owner
could not claim the proceeds2. Any other view leads indeed to inextric-
able difficulties, since the fate of the price would have to be investi-
gated3.

LXXXIII. TRADITIO. This is the only mode of the iure naturali class
which is clearly derivative and voluntary. It is described as the proper
method of transfer for res nee mancipi*, but as it is definitely assigned
to the ius naturale or gentium by the texts5, it is said by some writers
that it did not give civil law ownership, even in res nee mancipi, till the
recognition of ius gentium. On the question how, if at all, civil ownership
was acquired in such things in early days various answers have been
given6.

Traditio was the transfer of ownership by transfer of the thing
itself7. In general it may be said to be transfer of possession, but there
were cases in which the ownership was transferred though the trans-
feree had not yet technically acquired possession. Thus a man acquired
ownership of a thing given to his slave for him, at once, though he did
not possess till he knew the fact8. Where, as might be the case in later
law, the acquisition was through an extraneus9, the texts appear to
presuppose either authorisation or knowledge10.

Since traditio was, in effect, the giving of control, it might take other
forms than that of simple delivery. Other acts had the same effect, e.g.
putting the thing in the transferee's house or a place indicated by
him, or handing it to his nominee11. Traditio longa manu was pointing
out the thing to the transferee, and authorising him to take it, in such
conditions that it was in his immediate power to do so12. Traditio brevi

1 This itself is strong evidence that the rule of restitution did not exist in the classical
law. 2 See Czyhlarz, op. cit. 565. 3 Texts dealing with hereditatis petitio do face a

similar difficulty, but do not surmount it very satisfactorily, 5. 3. 23 and 25. 4 G. 2.

19; Ulp. 19. 7. 5 G. 2. 65; Inst. 2. 1. 40; D. 41. 1. 9. 3. 6 Cessio in iure has been

suggested (so Poste, in earlier editions of his Gaius). But this was still more formal than
mancipatio and cannot have been applied to small matters. Nor is there evidence of its
extreme antiquity as a mode of conveyance of property. It is also said that there was
no civil ownership, but such things were vindicated in a form without the words: "e.r iure
quiritium." This is not evidenced. On another view the only protection was the law of
theft, this being then wide enough to cover the case of one who refused to return a thing
when it was shewn that he had no right to it (Poste, Gaius, ed. Whittuck, 137; Muirhead,
Roman Law, § 10). This is the primitive state of things in many systems, but it belongs
to a stage much earlier than any possible date for the recognition of ius gentium in Rome.
See Clark, Hist, of Rom. Law, iii. p. 547. 7 Delivery of the thing by one who had

only an undivided share was delivery of his share, 21. 2. 64. 4. 8 Inst. 2. 9. 3; ante.

§ LXXHI. 9 Post, § xcix. 10 Ib. 11 41. 2. 1. 21. 12 Ib.

v] TR ADIT 10 229

manu was effected by a declaration allowing the transferee to hold as
his own a thing which was already physically in his control1. Con-
stitutum possessorium was the converse of this. Where the vendor was,
as part of the bargain, to retain the thing, e.g. as a hirer, it might be
agreed that in future he was to hold it as a mere detentor, avoiding the
absurdity of handing the thing over and taking it back again2. Approxi-
mate delivery was giving the transferee the means of control, e.g. the
key of the place where the thing was. This was formerly called symbolic
delivery, but the key was more than a symbol : it was the actual means
of control. It was not a real means of control, if the act was in one place
and the store in another, and some texts say that it must be on the spot3.
Probably the rule was that the circumstances must be such that the
key did give actual and practically immediate control. The common
element in all these cases was the actual putting of the transferee in
control of the thing.

Since mere delivery may mean many things, there was no transfer
of dominium unless there was on both sides the intent that it should
have that effect. This might present itself at a different time from that
of delivery, as in the case of traditio brevi manu. Intent being a
mental matter, a furiosus could neither make nor take a traditio*,
and there could be no acquisition by a traditio either by or to an insane
slave5.

There must also be iusta causa*. This however was not a requirement
independent of intent : it was the motive or the evidence which accounted
for the intent. It was the external fact shewing the existence of the
intent. To describe the iusta causa as the primary notion, and as covering
the conception of intent is to reverse the order of significance. What
was material was the intent : the causa was the only evidence of it which
was wanted or indeed could ordinarily be had. Hence it is that a
putative or imaginary iusta causa was enough. If the parties thought
the thing was due on a sale, and so made traditio, this was valid: the
ownership passed, even though there was no such sale and the value
could therefore be recovered by condictio indebiti7. The belief that there
was a sale accounted for, and indicated, intent to transfer ownership.
So too if one handed over the thing as a gift, the other taking it under the
impression that he was to give something in return, the traditio was
valid, though there was no real transaction at all8. Ulpian indeed ex-

1 41. 1. 9. 5. 2 41. 2. 18. pr. 3 18. 1. 74; 41. 1. 9. 6. Cf. Inst. 2. 1. 45. 4 G. 3.
106. 5 41. 2. 1. 9, 10. No doubt if the slave were merely a messenger his insanity

would be immaterial. 6 G. 2. 20; Ulp. 19. 7. 7 41. 1. 36. 8 Ib. If A

hands B a book and a guinea, intending a gift and B takes them as a loan, the owner-
ship of the guinea passes, since in loan of money the property passes, and thus B in-
tended to acquire. But that in the book does not, for in such loans ownership does not

230 TRADITIO [CH.

presses a contrary view in cases where the parties had different causae
in view1. He seems to regard it as material that the iusta causa, con-
sidered as the basis, should really exist, whereas, on the view which
clearly prevailed, it was just as good evidence of intent, whether it
really existed or not2.

Intent to transfer ownership being enough, the question arises what
was to happen if, while A did in fact intend to transfer ownership to C,
and was acting as representative of B, the state of facts was such that
the alienation if valid would transfer the ownership of A and not of B.
For instance, B authorised A to transfer a thing for him: A delivered
it: it was in fact A's. Did ownership pass? A tutor delivered, thinking it
the ward's, what was really his own. It is said in two texts of Ulpian
and of Paul, citing Pomponius, that on such facts the ownership did
not pass3. The contradiction in a text attributed to Marcellus may be
only apparent4, but Africanus seems to declare such an alienation
valid5.

There must be intention to transfer dominium in the actual thing
handed over. If our respective agents had agreed for the sale of a certain
thing, and we met and I handed over to you a thing which we wrongly
supposed to be what was sold, the ownership passed: it was a case of
putative causa. But it is different if there was error as to the identity of
what was delivered. Where A agreed to sell Stichus to B and by mistake
delivered Eros, if this was in the wrong belief that he had sold Eros, the
traditio was good. But if A thought Eros was Stichus, it would appear

pass, and thus B did not intend to acquire ownership. The same would be true if the error
was the other way, but there would be a condiclio for recovery of the money.

1 12. 1. 18. pr. The texts are suspected of interpolation, see, e.g., Beseler, Beitrage*
3. 56, 57. 2 The same is true even if the transaction were not merely void or non-

existent, but for an illegal purpose. If A gives B money to commit a crime, the
ownership passes. D. 12. 5 passim. Not if the act of transfer itself is forbidden. 24.
1. 3. 10. 3 41. 1. 35; 18. 1. 15. 2; cf. 12. 4. 3. 8. 4 17. 1. 49. If acting as procurator
for A, B sells a thing which is in fact his own and delivers it, he cannot afterwards vindicate
it. The most generally accepted view of the matter is that the rule is as stated by Paul
and Ulpian. It does not in strictness turn on error, but on the fact that a person, acting
under authority to transfer the property of A, cannot transfer the property of B and that
this is not less true if he himself happens to be B. If he knew the facts, he would not be
acting under the authority and the property would pass. The text of Marcellus does not
say that the ownership passes, but that the selling procurator, whose property it in fact
was, cannot vindicate it. The point of this is that in contract there was no agency. In
conveyance one could act for another, but his contract was his own, and therefore bound
him personally. He cannot therefore be allowed to recover the thing in defiance of his own
obligation to deliver the thing under his contract of sale, and therefore the vindicatio will
be refused to him, no doubt by an exceptio rei renditae et traditae. If in handing it over
he had not been under any such contractual liability he could have recovered it by
vindicatio. But the text has been much altered. See Schulz, Z.S.3. 38. 137 sqq. 5 12.
1. 41 med. See Ulp. in 12. 4. 3. 8 fin., which may not be genuine. Cf. 22. 6. 8.

v] TRADITIO 231

to be bad. But on these questions of error the texts are far from
clear1.

There might be error as to the identity of the other party. There
might indeed be no specific person at all : traditio to an incerta persona
was valid, as in the case of coins thrown to a mob2. But the case is
different if a specific person was intended and another received. If,
having sold to A by correspondence, I handed the thing to B, thinking
he was A, there was no traditio3.

As traditio was an informal transaction, and not an actus legitimus,
it might be subject to condition and dies*, and in that case the ownership
would not pass till the condition was satisfied, or the day had arrived.
If the traditio was the result of a sale, ownership did not, at least in
later law, pass on delivery, unless the price was paid or credit agreed on,
or security given5. This rule is declared to rest on the XII Tables6, but
if so it must have originally referred only to mancipatio, and its wider
application must be a juristic extension, a view which is suggested by
the fact that Justinian, after stating the origin of the rule in the XII
Tables, adds that it is a rule of the ius gentium or naturale7.

If the thing sold was a res mancipi, traditio did not pass dominium
in classical law, but only bonitary ownership8. Although in general
this was effective, there were disadvantages. The bonitary owner of a
slave could not free him so as to make him a civis9, till usucapio had
ripened his ownership. It was only if there was mancipatio that the
actio auctoritatis lay for a defect in title10. It was not possible to
attach a fiducia to a conveyance by traditio11. It was not possible to
create a usufruct by deductio in a conveyance by traditio12 in classical
law.

1 See 41. 2. 34. pr. 2 41. 1. 9. 7; Inst. 2. 1. 46. We have seen that derelictio was

sometimes explained in the same way. 3 Arg. 47. 2. 52. 21, 67. 4. As we have seen,

if a thing is handed to a procurator for his principal, or to a common slave for one owner and
he takes it for another, there is no traditio. 41. 1. 37. 6. The contrary text, 39. 5. 13, is
probably interpolated. Ante, § Lxxni. 4 7. 9. 9. 2; 41. 2. 38. 1. But not, at least in
classical law, what are called resolutive conditions, under which the dominium was to
revert in certain events, ante, § Lxvm. 5 Inst. 2. 1. 41 ; D. 18. 1. 19; h. t. 53; C. 4. 54. 3.
It does not seem to be stated that part payment transferred ownership in an undivided
part. It has recently been maintained (Pringsheim, Z.S.S. 35. 328 sqq. ; Kauf mil fremdem
Geld, 1916, see the review by Mitteis, Z.S.S. 37. 369 sqq.) that, so far as traditio is con-
cerned, the notion is post-classical, that payment of price was first made a condition at
some post-classical time, and that Justinian puts surety, agreement for credit, etc., on
the same footing. The language of Gaius is inconsistent with the rule (G. 2. 19-20) and the
author shews that many rules inconsistent with it are retained in the Digest. Others
consistent with it, he shews to be interpolated. As to P. 2. 17. 1, post, § LXXXVI. 6 Inst.
2. 1. 41. 7 The rule is not applied, even in the Digest, to cases under the Publician.
6. 2. 8. As to mancipatio, post, § LXXXVI. 8 G. 2. 41; Ulp. 1. 16; 19. 7; ante, § LXX.
9 Ante, § xxvu. 10 Girard, Manuel, 565; post, § CLXXI. 11 G. 2. 59. 12 Vat.

Fr. 47. Some of these points could not arise under Justinian. The actio auctoritatis was

232 TRADITIO [CH. v

On the other hand, traditio, being informal, could be carried out by
representative. That possession could be acquired through authorised
persons was recognised in classical law, and the inference that if possession
could be so acquired, ownership would pass also, if the necessary intents
were present, was soon drawn1.

When traditio superseded mancipatio in the sale of lands, the absence
of any requirement of witnesses seems to have led to frauds. Con-
stantine required a public announcement to the neighbours, and later
there appears, whether legally necessary or not, an introductio, a solemn
perambulatio of the bounds in the presence of witnesses, all this and the
fact of delivery being recorded in the acta2.

These written evidences of transactions served another purpose. A
sale of land is not usually quite a simple matter. Besides the well-known
warranties, it would often be necessary to embody all sorts of subsidiary
arrangements, restrictions on user, reservation of servitudes and so
forth, which it would not be safe to trust to memory.

It must, finally, be noted that in the Byzantine empire the use of
written documents led to a further development. Delivery of the docu-
ment tended to replace physical transfer of the property, and we get
conveyance by epistola traditionis, traditio cartae, etc. How far it pro-
ceeded is not clear but it seems to have applied to dotiatio3.

obsolete (post, § CLXXI). Fiducia also had gone (post, § CLI). As to deductio, the rule ex-
cluding it in traditio no longer existed, 7. 1. 32; 8. 4. 3.

1 See post, § xcix. 2 Vat. Fr. 35; C. Th. 3. 1. 2; Costa, Storia del Dir. priv. Bom.

226. As to special rules in cases of donatio, see post, §§ LXXXVI, xci. 3 The matter is

discussed by Riccobono, Z.S.8. 33. 259; 34. 159. The history of the limitation may be that
mancipatio was compulsory for donatio of land, after 355 (post, § LXXXVI), that mancipatio
degenerated to a written form and that thus there was no great change in the new rule.
Riccobono's thesis is that in Justinian's Law, but not before, tacit or fictitious traditio
replaces the actual traditio of the older law in many cases. Besides delivery of title-
deeds he cites, e.g., traditio clavium, not on the spot, instrumentum dotis, the transfer of
the property of the socii in societas omn. bon., etc., and he adverts to other cases such
as appositio custodis (41. 2. 51) in which though the rule is classical the point of view is
altered, and it is valid not because it is in effect taking control, but as a symbol of
delivery — traditio ficta.

CHAPTER VI

THE LAW OF PROPERTY (cont.). IURE CIV I LI MODES OF
ACQUISITION. SERVITUDES. AGENCY

LXXXIV. Cessio in iure, p. 233; LXXXV. Mancipatio, 236; LXXXVI. Res Mancipi,
239; Later history of Mancipatio, 240; LXXXVII. Usucapio, 242; usurpatio, 243; bona
fides, ib.; LXXXVIII. iusta causa, 246; Non-usucaptible property, 248; LXXXIX.
Longi temporis praescriptio, 249; XC. Adiudicatio, 252; lus accrescendi, ib.; XCI. Donatio
inter vivos, 253; Lex Cincia, 254; Donatio mortis causa, 256; XCII. Servitudes, 258; XCIII.
Praedial servitudes, 260; XCIV. Acquisition and Loss, 264; XCV. Personal servitudes,
267; Usufruct, ib. ; XCVI. Acquisition and Loss, 271 ; Usus, etc., 272; XCVII. Emphyteusis
and Superficies, 274; XCVIII. Restrictions on alienation, 276; Alienation by non-owner,
ib. ; XCIX. Acquisition through the act of another, 277; Peculium castrense, quasi-
castrense, bona adventitia, 279.

LXXXIV. The iure civili modes of acquisition, as stated by Gaius,
were all part of the ancient law, and are, indeed, more or less directly
referred to the XII Tables1. The two most important voluntary modes
were intensely formal, not only in the sense that their ceremonial was
elaborate, but in the sense that form was the essential binding element :
consent (and therefore error) was in strictness not material, a principle
of which, as might be expected, the praetorian law destroyed most of
the significance2.

CESSIO IN IURE. The form of this transaction was modelled on
that of a "real action " (vindicatio) under the ancient system of legis actio,
i.e. sacramentum. The intended transferee claimed the thing, using the
words which would be employed in an actual vindicatio: "I declare this
thing to be mine by Quiritian Law." In an actual claim the other party
would now make a contravindicatio, but, here, on the praetor's enquiry
whether he made any claim, he said, "No," or was silent. If he did this
in a vindicatio, there would be no judgment: the plaintiff would take
the thing, but there would be no res iudicata to bar a later claim by the
defendant: it was essential to the effective legis actio that both parties
should claim. But in cessio in iure a step now occurred which was not
found in a vindicatio. The praetor "addicted" the thing to the claimant3.
We are not told that there was an actual touching of the thing with a
wand4 (festuca, vindicta) as there would be in an actual claim. Thus
there are essential differences, and though we speak of the proceeding as
a case of fictitious litigation, it has been contended5 with some force

1 As to donatio, post, § xci. 2 See P. 1. 7. 6-9. The essence of a "formal" transac-
tion is stated by Leist (Mancipatio, p. 25) as being that it operates without reference to
any causa. 3 G. 2. 24; Ulp. 19.9-11. 4 It appeared however in manumission

vindicta. 5 Wlassak, Z.S.S. 25. 102.

234 CESSIO IN IURE [en.

that these variations have precisely the purpose of shewing that it is
not litigation. On that view it may be construed as conveyance by
State authority, using the machinery of the court, or possibly, as a con-
firmation by the court of a conveyance by the parties, the addictio
being an official confirmation of the conveyance, and not itself the
operative act. But the actual rules of cessio in iure cannot well be
harmonised with any single conception of the nature of the transaction.
Manumission vindicta1 was a case of cessio in iure, but it was not a con-
veyance: what the owner had was dominium,what the slave acquired was
civitos. The forfeiture of tutela cessicia2, from an attempt to cede it again,
gave the attempted cessio an effect different from that of a mere void
conveyance. Cessio in iure had effects which a judgment would not
have. If an agnate ceded the inheritance, after acceptance, he lost,
inter alia, his rights against debtors to the estate3, but these were not
parties to the judgment and a judgment had no force with regard to
third parties4. It was not an abandonment, for manumission vindicta left
rights in the manumitter, and the Proculians, who held that all rights
were lost in some cases of cessio to which the Sabinians did not apply
the rule5, held that derelictio was not complete till a third person had
taken possession6. These and other cases of difference of view as to the
effect of cessio in iure indicate differences of view and probably changes
of view, as to the nature of the transaction, with a tendency, on the
whole, to treat the matter more and more as one of conveyance. But,
especially in the matter of capacity, the fact that it was done before
the court led to the retention of rules belonging to the conception of it
as litigation. Thus it was open only to those who could be parties to a
legis actio, not, e.g., to slaves OTfiliifamilias7.

As to its antiquity we know little. We are told indeed that it is
confirmed by the XII Tables, but this need mean no more than that the
legis actio is there dealt with8. Apart from this, we hear nothing of it
till the last century of the republic 9, but it must be much older. Manu-
mission vindicta, a case of cessio in iure, is unquestionably a very ancient
institution10.

Ulpian tells us that cessio in iure could be used for both res mancipi
and res nee mancipi11. But except for this general proposition there is
little indication of its use for single things. Gaius tells us that it was
very rarely used for res mancipi12, in view of the more convenient

1 Ante, § xxvi. 2 Ante, § LX. 3 G. 2. 35. 4 44. 1. 10; C. 7, 60. 1. It

does not however follow that this had always been so, see Esmein, Mel. Gerardin, 229.
5 Post, §CXLI. 6 Ante, §LXXVI; D. 41. 7. 2. 1. 7 G. 2. 96; Schol. Sin. 49.

8 Vat. Fr. 50. Late and corrupt. 9 Varro, R.R. 2. 10. 4, which may refer to cessio

in iure hereditatis, and does not prove its use for single things so early. 10 Livy, 2. 5,
traces it to the beginning of the republic. 11 Ulp. 19. 9. 12 G. 2. 24, 25.

vi] CESS 10 IN IV RE 235

mancipatio, and this applies with still more force to res nee mancipi, in
view of traditio. In fact it can have been but little used for transfer of
property. Its field of usefulness was clearly for transfers which could
not be effected by direct means, of res incorporates1, of hereditates2, of
tutelae3, of children in the case of adoption4, etc. The form of the cessio
cannot have been the same in all cases. No doubt the words of the
claimant would be modelled on those used in the claim which was
simulated.

A cessio in iure could not be conditional, not merely because it was an
actus legitimus, but because a vindicatio necessarily asserted a present
right5. On the other hand it was possible to introduce a deductio6.
Since it was possible to vindicate dominium without the usufruct it was
possible to make this fictitious claim, deducto tisufructu: the effect would
be a transfer of the proprietor leaving a usufruct to the other party.
Whether the deductio itself could be conditional was debated7. It is
also clear that there might be a fiducia8, but this was no part of the
transaction. It was a separate agreement9. It does not seem that any
special terms (leges) could be embodied in the transfer10.

Like vindicatio per sacramentum, cessio in iure of ownership required
presence of the thing11, but probably here too it became sufficient in
the case of land to have a symbolic turf instead of going to the spot.
There was probably some of the progressive simplification which we
find in manumissio vindicta. We do not know how tutela was represented.

We are told nothing of the effect of error, but the probability is that
the form was everything, and that, so far as the transfer of the right
was concerned, error was immaterial12.

Cessio in iure seems to have been quite obsolete as a mode of transfer
of property or other res under Justinian: it was not abolished, but
simply ignored, and it cannot be surely traced later than the end of the
third century13. But the fate of some of its applications in the law of
persons is different. Manumission vindicta continued in a much simpli-

1 G. 2. 29; Ulp. 19. 11. 2 G. 2. 34. Here it operates in certain cases as a release
of debts. Post, § CXLI. 3 Ante, § LXXVI. 4 Ante, § xuv. 5 It might be

ad tempus, Vat. Fr. 48. We are told in 50. 17. 77 that there might be implicit conditions
in such a case. It might be suggested that a cessio in iure made by a non-owner would
be operative if he became owner. But a number of texts originally written of mancipatio
shew that in that case this was not so. 6. 1. 72; 21. 3. 2; 44. 4. 4. 32 (see also 21. 2. 17).
Bonitary ownership would pass if the res had been delivered but no more. Mere c. i. i.
must have been on such facts a nullity. But as in case of acceptilatio (50. 17. 77) it may
have been operative if the transferor had received a conveyance under a still pending
condition. 6 Vat. Fr. 47. 7 Vat. Fr. 50. 8 G. 2. 59. 9 Post, § CLI.

10 Even if the uti lingua nuncupassit clause of the XII Tables had this effect in mancipatio,
which is unlikely, there is no ground for extending the notion to c. t. i. See Girard,
Manuel, 295. 11 G. 4. 16. 12 40. 2. 4. 1. 13 Cons. 6. 10.

236 MANCIPATIO [CH.

fied form1. And in adoptio and emancipatio the old form was only
abolished by Justinian2. It is to be noted however that the constitutio
in which he abolishes the old form, while speaking contemptuously of
the sales, etc., does not mention the final cessio in iure3.

LXXXV. MANCIPATIO. This was the most important of the
direct modes of transfer of property in classical law. It is older than the
XII Tables4, and it was the appropriate mode of transfer for precisely those
things which are the chief belongings of a pastoral and agricultural
people such as were the Romans of the republic. The form of it is
described by Gains5. There were present not less than five adult cives as
witnesses6, and a sixth, a libripens carrying a balance. The transferee,
e.g. of a slave, holding a piece of metal (aes), said: "Hunc ego hominem ex
iure Quiritium meum esse aio, isque mihi emptus esto hoc aere aeneaque
libra." Then he struck the aes on the balance and gave it to the trans-
feror by way of price.

The declaration was in two separable parts, first, an assertion of
ownership, and then one of purchase by copper and scales, the assertion
of ownership being identical in form with that used in vindicatio and
cessio in iure.

The form would not be quite the same in all cases. It was varied
for the purpose of coemptio, and, in the familiae emptio for the purpose
of testation, it did not, as recorded by Gaius, contain the first member7.

So far as Gaius tells us the transferor said nothing, but there is
literary evidence that he did say something8. We know, however, that
a mancipatio was formally valid even though effected by force9, which
suggests that the transferor took only a passive part. In a release of
debt per aes et libram,it does not appear that the creditor said anything10.
In fact in nearly every case of formal transaction it was the person
benefiting who took the prominent part. In stipulatio the promisor
need only assent with a word. In the contract literis it was in the credi-
tor's book that the entry was made11. From the recorded instances of
mancipatio it would seem that the actual price was mentioned (no doubt

\ Ante, § xxvi. 2 Ante, §§ XLIV, XLVII. 3 C. 8. 47. 11. This had probably long
since taken the form which he prescribes for the whole process, entry on the acta.
4 Bruns, 1. 25; Girard, Textes, 15. 5 G. 1. 119; see G. 2. 22, 23; Ulp. 19. 3. 6 The

antestatus occasionally mentioned is merely the first witness (Will of Longinus Castor,
Girard, Textes, 804). See Mitteis, Rom. Prr. 1. 295. He figures however as a separate
person on some late texts in which the practice of using seven witnesses is illustrated.
Gai. Ep. 1. 6. 3. 7 Most modern editors however reconstruct the text so as to introduce
such a clause. 8 Varro, L.L. 5. 163, and Festus s.v. Rodus attribute to the vendor

the words " Raudusculo libram ferito." Some legal texts dealing with deductio say that
the vendor "dicit" the deductio, e.g. 19. 1. 7. In the emptio familiae he makes a nuncupatio,
but this is no part of the mancipatio, Ulp. 20. 9. See however Pernice, Labeo, 3. 97 sqq.
9 P. 1. 7. 6, 8. 10 G. 3. 174. 11 Dictio dotis seems to be an exception.

vi] MANC1PAT1O 237

in view of the actio auctoritatis in case of sale)1, though Gains does not
mention it2 .

The purpose of the first phrase has been variously explained. On
one view it was the essential part, the other being a later accretion3.
But this is not easy to reconcile with the facts that it did not occur in
emptio familiae as recorded by Gains4, that the Vatican Fragments5
omit it in an ordinary mancipatio, and that, where this was subject to a
deductio, that appeared in the emptio clause6. The more probable view
seems to be that the purpose of the first clause was to attach the liability
for double damages under the actio auctoritatis1.

There is some, at least apparent, illogicality in the form. The assertion
of ownership is made at a time when it is not true, and never may be
true, for the price may not be paid8. This is met by the argument that
the form must be treated as a whole not separating its parts9. Further
there is late authority for reading est instead of estow, which however
contradicts our MS. of Gains, and introduces a new illogicality. The
striking of the balance comes after the words, an order which suits
esto, but is wholly irreconcileable with emptus est.

The form as recorded11 calls for the presence of the res, but there might
be mancipatio of land not on the spot and even, it seems, of land not
in the possession of the mancipio dans12. Traditio is nopartof mancipatio:
the conveyance is complete whether the thing is handed over or not13,
though the vendor is of course bound to deliver — tradere possessionem.

It has been suggested14 that even in classical law the mancipatio had
ceased to be real, and was practically replaced by the written document
of which we have instances15. It is said that by the time of Gaius the
mancipatory will was merely a written instrument, and the case of the
written stipulation is cited in support. Bvit for stipulation we have an
express text and an express enactment16. Gaius tells us the form of the
mancipatory will17 and sharply differentiates the praetorian will as less
effective18: it is unlikely that if so great effect resulted from a

1 Post, §CLXXI. 2 Girard, Textes, 819 sqq.; Bruns, 1. 329 sqq.; Vat. Fr. 50.

3 See, e.g., Ihering, Evolution of the Aryan, transl. Drucker, p. 204. 4 G. 2. 104.

5 Vat, Fr. 50. 6 Vat. Fr. 50. 7 Post, § CLXXI. It may be said that the pre-

caution of selling nummo uno, where the sale was fictitious or gratuitous, so that the
guarantee would not be needed, would not have been required if this clause could be
omitted. But forms become stereotyped and the simple precaution would be very natural.
8 But see post, p. 240. 9 See for discussion, Schlossmann, In iure cessio and man-

cipatio, 13, and Stintzing, Mancipatio, 10. 10 Boethius, ad Top. 5. 28. 11 G. 1.
121; Ulp. 19. 6 (whether in 1. 119 G. says aes ie.ne.ns or rem tenens), 12 Ib. ; arg. G. 4.
117 a, where the action must be an actio in rem. 13 G. 2. 204; Vat. Fr. 311.

14 Collinet, iStudes Historiques sur le Droit de Justinien, 1. 257. 15 Bruns, 1. 329

sqq.; Girard, Textes, 819 sqq. 16 P. 5. 7. 2; C. 8. 37. 1, post, § c. 17 G. 2. 104.

18 G. 2. 119.

238 MANCIPATIO [CH.

mere difference of wording praetorian wills would have been important
in practice. There seems no reason to doubt that throughout the
classical age mancipatio retained its ceremonial, though it is possible that
this was at times neglected and people were content not to go behind
the written document1.

Before leaving the form we must speak of the clause in the XII
Tables: "cum nexumfaciet mancipiumque, uti lingua nuncupasset, ita ius
esto2." It has been generally held that they authorise the insertion of
subordinate clauses in the mancipatio, to which the name leges mancipii
was given. Thus Gains, speaking of civil bondage, says: "quern pater ea
lege mancipio dedit ut sibi remancipetur3." But there is no reason for
holding that this agreement was part of the mancipatio : it was an agree-
ment under which the mancipatio was made. There is no sign of sub-
ordinate clauses except such as defined what was conveyed, e.g. the
deductio4. The pactum fiduciae affords a strong argument against this
view : it is an agreement as to what is to be done with the res in certain
events, an exact parallel to the lex in Gaius, and it is clear that the
fiducia was not a part of the mancipatio, but a separate transaction5.
And we know that there could be no express conditions in mancipatio6.
It is not clear that the words of the XII Tables mean more than that
servitudes, etc., could be validly created for and over the land sold, by
inclusion in the statement7.

The witnesses (whom, in the mancipatory will, the testator's nun-
cupatio describes as Quirites)8 no doubt in some sense represent the
people. It is sometimes said that the number 5 shews that they represent
the five Servian classes, since the mancipatio, altering the wealth of
the parties, might affect their class. But there is very small evidence
for or against this view 9. In later law, in the decay of mancipatio, there

1 The ritual in a copyhold admission is probably sometimes neglected, though legally
necessary. 2 Bruns, 1. 25; Girard, Textes, 15. 3 G. 1. 140. 4 Girard, Man.

295. 5 Bruns, 1. 332; Girard, Textes, 821. 6 Vat. Fr. 329; D. 50. 17. 77. As to

error, ante, §LXXXIV; Wlassak, Z.S.S. 26. 403. 7 Girard, Man. 293, suggests that they
recognise mancipatio in the fictitious form in which alone we know it, i.e. with a pre-
tended weighing. But, unless details of legis actio are so regarded, the XII Tables do not
deal with forms. 8 G. 2. 104. 9 Apart from the above "quirites" the only evidence
for it is that Festus calls them classici testes (s.v.) in the mancipatory will. Girard sug-
gests (Man. 293) that the unit would have been the century, the voting unit. But that
is derivative: the census is not primarily concerned with voting, but with wealth, the
classes. He also says that it would have been a fixed number, not a minimum "non minus
quam quinque." So G. elsewhere describes it (e.g. 2. 104). The other form means that
surplusage is no error. The objection would indeed apply to any basis. The source of the
seven testes of the praetorian will is clear. Gaius (2. 14) speaks of them as seven, Ulp. as
" non minusquam septem" (28. 6). Girard also suggests that it was known to communities with
Latin right who had not this division of the people (/. Salpensana xxn). But a lex in the
time of Domitian no doubt contained many long since borrowed notions. The lex is.

vi] MANCIPATLO 239

seem to have been sometimes seven witnesses1, this being the number
required in many transactions. The additional two were the libripens and
an extra person to whom the name antestator was transferred2. But
there is no reason to suppose that seven were legally required.

As being within commercium, mancipatio was open only to those
who shared in this. Filiifamilias and slave could thus acquire for the
paterfamilias3, and, with authority, a filiusfamilias could so alienate.
On what appears to be the better view a slave could also, but this is
disputed4.

LXXXVI. Mancipatio was the appropriate mode of conveyance
for the most important elements of wealth in early Rome— res mancipi 5.
If moveable they must be on the spot and only so much could be man-
cipated at once as could be held or grasped6. On the question whether
the process could be used for res nee mancipi it is generally held on the
authority of Cicero7 that it could not be so applied. Literary texts
shew it so employed, but it is likely that there was delivery as well and
the form was mere surplusage8. We know that it was used for transfer
of the familia in the mancipatory will, and a hereditas would ordinarily
include res nee mancipi, and is not itself given under the list of res man-
cipi 9. But this is an exceptional institution from which it is not possible
to argue. It could be used for transfer of rights other than ownership,
e.g. for transfers of persons in potestas. But these were treated as
servorum loco, and slaves were res mancipi. Rustic praedial servitudes
could be so created but these are expressly stated to be res mancipi10,
and we know the urban servitudes could not be so created11. A woman
sui iuris cannot be a res, but coemptio, in which she sold herself, was a
much modified form, and throw's no light on the question. On the whole
the better view seems to be that res nee mancipi could not be mancipated.

Res mancipi, as we know them, were solum italicum, slaves, beasts
of draught and burden and rustic servitudes12. This did not cover ele-

moreover, far from shewing that the civil bondage was in fact created in the same way,
and we do not really know how widespread was the notion of classification by wealth.
1 Ep. Gai. 1. 6. 3. 2 Kniep, Gai. Inst. 1. p. 207. 3 Ulp. 19. 4. 18. 4 See

for discussion and reff. Buckland, L.Q.R. 34. 372; Mitteis, B.Pr. 1. 208. He holds that
a slave could not mancipate even with authority, but he does not appear to lay this down
for a filiutfamilias. 5 G. 2. 14 a, 22; Ulp. 19. 1. 6 G. 1. 121; Ulp. 19. 6. Of

land, several pieces in different places could be mancipated at once. 7 Top. 10. 45;

Ulp. 19. 3 is hardly conclusive. 8 Pliny gives a mancipatio of pearls (H. N. 69. 9.

35). The apparent case in Bruns, 1. 335; Girard, Textes, 825, seems rather to be a gift of
right of access to, and use of, what is contemplated as part of the land. 9 In the case
of transfer of the hzreditas to Jideicommissarius G. says nothing of mancipatio, though
the Autun Gaius does (67). See Consult. 6. 11 which shews that in the time of Diocletian
there was no way of transferring a mass as a unit. 10 G. 2. 17. 11 G. 2. 29.

12 G. 2. 14 a, 17; Ulp. 19. 1.

240 MANCIPAT10 [CH.

phants and camels, which were not in use when this list was first
drawn up1. But the list given is not as it stood at first. There was no
separate property in land in early Rome except for the heredium, or
houseplace, which was not alienable2. And it is probable that till the
Empire, only the four primitive rustic servitudes were res mancipi, i.e.,
iter, actus, via and aquaeductus3. There was dispute between the schools
on the question when a farm beast became a res mancipi, the Proculians
holding that it became such only when trained or in training, the
Sabinians holding that it was such from birth4. We do not know which
view prevailed. As to the reason why these things and no others were
included, it is generally held5 that they were the things essential to
the maintenance of the household in a regime passing from the pastoral
to the agricultural stage6.

The rule that, in case of sale, ownership passed only when the price
was paid or security taken or credit given, which is stated by Justinian,
no doubt with accretions, as a rule of the XII Tables7, is applied in
later law to traditio, but is commonly thought to have applied primarily
to mancipatio: it would constitute one of those tacit conditions which
can exist in actus legitimi6.

The later history of mancipatio is obscure. The distinction between
res mancipi and nee mancipi was formally abolished by Justinian9, but,

1 G. 2. 16; Ulp. 19. 1. 2 Girard, Manuel, 292, n. 2. 3 Post, § xcra. 4 See

n. 1. 5 Cuq, op. cit. 1. 92; Karlowa, R.Rg. 2. 354; Maine, Anc. Law, 211, etc. 6 The fact
that a peregrinus can have only one kind of ownership raises difficulties where a res mancipi
is delivered to him. If, after holding it some years, he alienates it to a civis, is the latter
dominus or is the old owner? If accessio possessionum applies (post, § LXXXVII) the new
owner is at once dominus. Apart from the question of usucapio an acquirer of a res mancipi
from a peregrine could not become dominus. This kind of difficulty has suggested the view
that a. res mancipi loses its special character in the hands of a peregrine. Two texts indeed
suggest this (Ulp. 1. 16; Vat. Fr. 47 a), but they are not conclusive, and the rule would give
the unlikely result that the forms of mancipatio could be evaded by using a peregrine
as an interposita persona. There would be no difficulty in arranging, by stipulatio, for the
same obligations a.s to defect of title, and so on, as would have arisen automatically
if there had been a mancipatio. 7 Inst. 2. 1. 41; D. 18. 1. 19, 53. 8 50. 17.

77. It seems reasonable to accept so much of Justinian's statement as indicates
that there was some rule about payment in the XII Tables. Its content is a different
matter. As the process involves a (fictitious) payment it has been said that the rule
had no real operation, and that this accounts for the fact that Gains does not mention
it. But it is difficult to reconcile this with P. 2. 17. 1. The text dealt with mancipatio and
the allusion to price may be compared with the next passage where the contrast with res
simpliciter traditae is obvious, and there price is not mentioned. In P. 2. 17. 7 (as to which
see Schulz, Z.S.S. 38. 123) the allusion is probably to sale of a fundus instructus, a res
mancipi. It is said by Pringsheim (ante, p. 231, n. 5) that "pretio accepto" is interpolated
by a later hand. The Sententiae nowhere apply the notion to traditio — the interpretatio
does, but that is a different matter (1. 13. 4; 2. 17. 14). It may be that the rule of the
XII Tables was that the actio auctoritatis did not lie unless the price was paid. Gaius does
not discuss this action. 9 C. 7. 31. 1. 5.

vi] MANCIPATIO 241

for moveables, mancipatio seems to have been out of use in the fourth
century1. The relevant texts deal with donatio, and may mean only that
delivery is needed without implying that it is always enough, but the
most obvious interpretation is that traditio is as good as mancipatio. The
survival of mancipatio for adoption and emancipation, till Justinian,
means nothing for the ius rerum — cessio in iure continued even under
Justinian for manumission vindicta2. But the Epitome of Gains says of
emancipatio : "mancipat — hoc est manu tradit3." For Italic \andmancipatio
had the advantage that it need not be on the spot. It existed in A.D.
355*, but it probably was not usual even then. The provisions of Con-
stantine, for traditio, seem designed to meet the fact that land was
commonly conveyed by this method5. As fiducia is mentioned later
and, so far as our traditions go, this involved cessio in iure or mancipatio,
this may seem to imply the survival of one and more probably the latter.
But in most , if not in all , of these texts , fiducia means no more than pledge 6,
and it is not certain that it remained impossible to attach a fiducia to
traditio7. On the whole the better view seems to be that mancipatio
had practically disappeared from commercial dealings even before 355 8.
But in the West at least the enactment of 355 seems to have been
treated as creating a special need of mancipatio in donatio of land, and
the documents collected by Marini9, even from the sixth and seventh
centuries, shew a simulacrum of mancipatio, but only in donatio10. In
any case there is no real mancipatio : the word is put in the present tense,
mancipo, mancipamus, not as in genuine forms "mancipio accepit11."

1 Vat. Fr. 263; C. Th. 8. 12. 1; C. 8. 53. 25. Naber, Mnemosyne, 1889, 394 sqq., shews
that mancipatio was still the proper form of conveyance for res mancipi in the time of
Diocletian. 2 Ante, §§ xxvi, xxx. 3 Ep. Gai. 1. 6. 3. 4 C. Th. 8. 12. 7. 5 Vat.
Fr. 35; C. Th. 3. 1. 2. 6 See the reff. in Girard, Manuel, 535, n. 4. 7 Girard holds
(op. cit. 531) that, if it had been possible in traditio, fiducia would have been retained
by Justinian. But it had long been used only in mortgage and perhaps in gifts ut
manumittatur. In his desire for simplicity and solicitude for debtors he would hardly
retain what, so far as it differed from pledge, was severer, and the other institution
is provided for by the actio praescriptis verbis and the condictio ex poenitentia (post,
§ CLXXXVII). See besides the above texts (n. 6) C. Th. 2. 29. 2; C. 4. 3. 1; Naber, Mnemos.
17. 349; Collinet, Etudes Historiques, 1. 225; Girard, Manuel, 298. 8 C. Th. 8. 12. 7.

The enactment of 394 (C. Th. 2. 29. 2) has on the face of it nothing to do with mancipaiio.
In saying that delivery is essential it is adding to its rule that in a gift of the kind it
mentions, suffragium (Dirksen, Manuale, s.v.), traditio does for moveables, but a writing
is necessary for land, a warning that it must not be supposed that writing alone will do.
Justinian's lex, cited by Collinet (C. 8. 53. 37) to shew the survival of mancipatio, shews
only, as indeed it says, that old forms of words were still in use in documents in which
they had no meaning. 9 See Collinet, 254, 255. 10 Marini 's collection contains many
conveyances on sale in sixth and seventh centuries. These are always by traditio or epistola
traditionis (ante, § LXXXUI). Two of them mention mancipatio (120, 123?) but only in the
traditional clause against dolus, a survival of common form. Thus two of the sales ( 1 14, 1 18)
record the payment of "nummus unus," quite out of place in a sale. 11 Collinet (-'

B. R. L. 16

242 USUCAPIO [CH.

LXXXVII. USUCAPIO. Usucapio was the acquisition of dominium
by possession for a certain time1. As we know it, it was based on a rule
of the XII Tables: "usus auctoritas fundi biennium est. . .ceterarum rerum
omnium. . .annuus est usus2," in which expression usus means acquisition
by use, and auctoritas no doubt means liability to the actio auctoritatis on
eviction in case of sale, a liability which would end at the moment of
usucapio3. The rules as we know them were no doubt gradually evolved
on the basis of this general proposition. It was a civil law mode of
acquisition and of course gave dominium*. The acquisition rested on
mere lapse of time, not on the fiction which appears in some systems,
under which time is evidence of a lost grant5. Gaius tells us that its
purpose was to enable us to acquire what had been transferred by a
non-owner6, but it had other applications, e.g. where a res mancipi had
been transferred by mere traditio"7, and in some cases of missio in pos-
sessionem under praetorian law8.

The first requirement was uninterrupted possession for two years of
land, one year of moveables9. The brevity of the time is explained by
the fact that when it was introduced the whole State was very small,
and the control of property therefore much closer than it would be in
modern conditions10. The possession required is in general the technical
possession which is needed for interdictal protection11. The exact mean-
ing of usus, the form employed in the XII Tables, is not known, but it
was probably much the same. As the acquisition depended on actual
possession, and not on mere non-possession by the owner, it must have
continued through the whole period12, and it must be one uninterrupted
continuous possession. Thus if a man lost possession and regained it
later he could not add the two durations together: he must begin afresh13.
This point is illustrated by .the rules of accessio possessionum. If one in
via usucapiendi died, and his heres entered in the ordinary way, he

cites a Lombard sale of later date with the old words, "emit, mancipio accepit." But it
is the word, not the thing: it must be read in the light of G. Ep. 1. 6. 3, mancipat, hoc
est manu tradit.

1 This has nothing to do with the barring of action for recovery: it is a definite mode
of acquisition. The acquirer becomes dominus, and though his right may in some cases
be set aside, there is no question of his having become owner against A and not against B.
2 Cicero, Top. 4. 23. Probably only an approximation to the original. 3 Post, § CLXXI.
See Girard, Manuel, 305. 4 Not identical propositions: iure gentium modes may do

this. 5 Faint suggestion of a lost grant in 39. 3. 1. 23 which, however, is concerned

with 1. temp, praescriptio. 6 G. 2. 43. 7 Ante, § LXX. 8 Post, § CCXLV.

9 G. 2. 42; Ulp. 19. 8. Land in the XII Tables, buildings by interpretation. 10 G. 2. 44.
11 Thus if I rented land, I did not possess and could not usucapt though I thought
privately that it was my own. We have seen however that if a procurator has taken
possession the principal may have interdict possession before he has usucapion possession
(ante, § LXXin). And, conversely, the heres will be usucapting before he has interdict
possession (post, p. 243, n. 1). 12 41. 3. 3; h. t. 25. 13 41. 3. 15. 2.

vi] USUCAPIO 243

stepped into the legal shoes of the deceased and could complete the
usucapio1. It was regarded as one continuous possession. There was
no new initium and thus the bona fides of the heres was immaterial. But
if one in via usucapiendi sold or gave the res, the receiver did not repre-
sent the old holder as a heres did, and thus the possession was a new
one. But there had been no interruption (usurpatio} or interference
with possession, and thus the two possessions could be added together,
if the new holder himself satisfied the other conditions of usucapio2.
But if the second holder came into possession without the consent of
the first, either by ejecting him, or taking possession without his consent,
then there had been interruption, and even if the new holder was
capable of usucapting, he could not count the earlier time3. This accessio
possessionum, for buyers and the like, is not found till late in the classical
age. It applied at first to praescriptio*, was extended to usucapio by a
buyer by Severus and Caracalla5, and was perhaps not generalised till
Justinian 6.

Usurpatio might be either natural, mere loss of possession, or civil,
a claim at law. It is not always easy to say what amounts to loss of
possession, e.g. where physical possession was held by a subordinate
holder7, e.g. a colonus, and where a holder in good faith leased the res to
the true owner. In this last case it was held that the possession
was lost, on the ground that the contract was a nullity8. In the case of
usurpatio civilis, the difficulty on the texts is to say at what moment
the usurpatio occurred. Apparently in the republic any formal claim,
even short of litigation, was usurpatio9. But in classical law, even
joinder of issue (litis contestatio) was not, for we are told that usucapio
might still be completed between this and judgment10. But this meant
little. The index decided by the state of things at litis contestatio11. He
would therefore give judgment for the plaintiff, and the defendant must
transfer or pay the value12. Civil usurpatio did not need actual dis-
turbance of possession. If a possessor was sued and judgment given
against him, but his de facto possession was undisturbed, he could not
now usucapt, for it was a new possession, and it did not begin in good
faith13.

The next requirement is bona fides1*, difficult to define. It did not

1 4. 6. 30. pr. ; 41. 2. 23. pr. ; 41. 3. 40; 41. 4. 2. 19. 2 41. 3. 14; 41. 4. 2. 17. 341.
3. 5; 44. 3. 14, 15. 4 C. 7. 31. 1. 3; see P. 5. 2. 5. 5 Inst. 2. 6. 13. 6 In one way the
buyer is better off than heres, who is barred by defect in the possessio of the ancestor,
immaterial to buyer. 44. 3. 11; C. 3. 32. 4. 7 Ante, § LXXIV. 8 41. 3. 21. See

also h. t. 33. 5. 9 Cicero, de Or. 3. 28. 110. 10 6. 1. 17-21. 11 The rule omnia

indicia absolutoria (post, § ccxvn) does not apply. G. 4. 114. 12 6. 1. 18. The rule

may have been otherwise in 1. t. praescriptio, post, § LXXXIX. 13 Arg. C. 7. 33. 1. I.

As to Justinian, post, § LXXXIX. 14 G. 2. 43, 93 ; Inst. 2. 6. pr.

16—2

244 USUCAPIO [CH.

consist in thinking one was dominus, for one who received a res mancipi
by traditio knew he was not this. It was not enough to think he was in
rightful possession: a pledge creditor thought that. It was not neces-
sarily a belief that no one had a right to take it from him, for a missus
in possessionem for damnum infectum could usucapt though he knew the
owner could redeem on putting matters right1. Most of the difficult
cases are disposed of by the maxim: "gui auctore Praetore possidet, iuste
possidet2." Subject to this, bona fides may be described as belief that the
holder had a right to hold it as his3. Apart from the praetorian cases
and that of the bonitary owner, it is at bottom a case of mistake. The
error must be reasonable and of fact4. Indeed, in many cases, where
there was an error of law, the transaction was void, and usucapio was
excluded for absence of iusta causa, e.g. where one bought from a pupillus
thinking that auctoritas was not necessary, or could be by ratification5.
Here the transaction was void and there was only a putative causa,
which fact barred usucapio6.

Where the acquisition was through a slave (or procurator7), the rule,
apart from peculiumB, seems to have been that both must have been in
good faith, the slave when he took, the master when he knew. Pom-
ponius indeed says that, where the acquisition was domini nomine, the
master's state of mind was the material one 9. This may refer to acquisi-
tion under express instructions, for the other rule is laid down for sons10,
and bona fide servientes11.

In classical law bona fides must exist at the initium, the moment
when possession began, but there were some exceptional cases.

(i) In sale, bona fides was needed at the time of the contract and at
that of delivery12. This probably dates from the time when the two
were contemporaneous and was carried over to the new state of things
owing to the double meaning of the word emere, which means both to
buy and to acquire. The Digest, purporting to give the edict on the Pub-
lician, says: "gui bona fide emit13.''' The rule remained in Justinian's law.

(ii) In the case of lucrativa usucapio, resulting from gift of a res
aliena, there are three texts which shew that here bona fides must
persist throughout the possession, and that Justinian abolished this
rule14.

1 39. 2. 5. pr. 2 41. 2. 11; 50. 17. 137. 3 Some texts shew a wider concep-

tion. Where a man in collusion with an authorised procurator buys at an absurdly low
price he is not a buyer in good faith. 41. 4. 7. 6; h. t. 8; C. 7. 33. 6 (praescriptio). It is of
course not necessarily bad faith to buy through a nominee. See Greg. Wis. 7. 4 22.

6. 4, 6; 41. 3. 31. pr. 5 41. 3. 31; 41. 4. 2. 15. 6 So the matter is stated in an

adjoining t«xt by the same writer. 41. 4. 2. 16. 7 Arg. 41. 4. 7. 2. 8 Here, utilitatis
causa, the slave can usucapt without the master's knowledge, 41. 2. 1. 5; h. t. 44. 1;
6.2.7.10. 941.4.2.11,12. 1041.3.43. 1141.4.7.8. 1241.4.

2. pr. 13 6. 2. 2. 7. 11. 14 6. 2. 11. 3; C. 7. 31. 1. 3; Bas. 15. 2. 11 (Heimbach, 2. 171).

vi] U SUC API O 245

Gains gives several cases in which bona fides was not needed. The
case of usucapio lucrativa pro herede is ancient, no doubt older than the
rule requiring bona fides. Where the content of a hereditas was not yet
actually held by the heres (there being no heres suus or necessarius, who
was in without acceptance), anyone might, by taking the property or
part of it not yet possessed by the heres, become owner by holding it
(even land) for one year without good faith1. The rule that one year
sufficed even for land was a perversion of the rule of the Tables that for
"ceterae res" one year sufficed. A hereditas was cetera res, and therefore,
said the Pontiffs, a part of it was, even if it were land. According to
Gaius the reason for this "tarn improba usucapio" was that it compelled
the heres to enter promptly so that debts and sacra might be attended to.
He says also that originally the usucapio was of the hereditas itself,
though in historic times it was only of the specific things2. But the real
reason and early history of the institution are obscure and disputed3.
Hadrian destroyed the importance of the rule by providing that the
heres could set aside the usucapio. It was treated as extinct in the time
of Caracalla, and probably earlier4.

Another case was usureceptio ex fiducia5. A res conveyed subject to
fiducia could be reacquired by getting possession without good faith and
holding for a year. Where this was cum amico, e.g. a res was handed over
to be looked after (superseded in classical law by depositum], this is
reasonable. So too, where it was cum creditore, by way of mortgage6, if
the debt had been paid. Where it had not, the rule applied only if it
was held otherwise than by hiring or precarium from the creditor, but
it is difficult to see why it was allowed at all, or rather, as no doubt it
antedates the rule of bona fides, why it was allowed to survive in a time
when, unlike usucapio pro herede, it served no useful purpose, but was
a mere injustice. Presumably the rule was originally general and the
limitation in mortgage is an equitable restriction.

There is the same difficulty about usureceptio ex praediatura'1 '. Where
property had been lawfully seized and sold by the State to a praediator,
the old owner could reacquire, without good faith, but here the ordinary
times of usucapio must have expired. Unless the praediator must have
been recouped, which is not said, the rule seems a gross injustice8.

Another case, usucapio ex Rutiliana constitutiane9, where a man
bought res mancipi of a woman without auctoritas tutoris (to which the
ordinary times applied), did no injustice, for he had paid, and the
usucapion could be rescinded on repayment.

1 G. 2. 52 sqq. 2 Cicero, ad Alt. 1. 5. 6, probably does not mean hereditas in a strict
sense, but res hereditariae. 3 See Sohra (Ledlie), § 1 10. 4 C. 7. 29, 1. 5 G. 2. 59, 60.
6 Post, § CLXVI. 7 G. 2. 61. 8 Perhaps merely to compel the buyer to take

possession promptly, Poste, ad O 2. 61. 9 Vat. Fr. 1. See G. 2. 47 for the older law.

246 VSVCAP1O [CH.

Bona fides was presumed, i.e. need not be proved1, but could of course
be disproved2. The rule means less than it seems to, for iusta causa
must be proved, and a valid form of conveyance is all that could ordin-
arily be given as proof of bona fides. To prove bona fides is to prove that
certain facts were not known, and a negative can hardly be proved3.

LXXXVIII. Iusta causa. This means that the taking must have
been based on some fact which is ordinarily a basis of acquisition. In
general this is a fact having legal effect, e.g. legacy or sale, but it need
not be — a pact to give sufficed4. The iussum of the praetor was enough.
This iusta causa, or iustus titulus must be proved. The chief rule, over
and over again laid down, is that the causa must be real5: a putative
causa did not serve. This distinguishes it from the iusta causa of traditio.
If a thing was handed to one in the belief that there was a legacy to him,
but there was none in fact, the property passed if it belonged to the
transferor6, but if it did not he would not usucapt, for there was no
iusta causa7. There are however evident signs of either differences of
opinion or exceptions. Neratius is quoted as saying that putative causa
should suffice, because it did in traditio, and Pomponius approves this8,
thus identifying the two cases of causa. No other text goes so far, and
there are many inconsistent with it. Each causa may have had its own
rules, but it is probable that these writers are here expressing a personal
view, based on a false analogy, and that, in general, a real causa was
needed, but that in sale, on grounds of commercial convenience, some held
that putative causa served, and that the ultimate rule was that, in sale,
it sufficed if there were reasonable grounds for the belief9. It is not quite
easy to say what is a putative causa. There might have been a sale, but
it did not cover this thing. There might have been a legacy, revoked by

1 C. 8. 44. 30. Mala fides never presumed. 2/6. 3 A buyer from a pupillus

without auctoritas, in knowledge of the facts, is not a 6. /. emptor (18. 1. 27). But in what
may be the original of this text we learn that, if it was a woman, he is a b.f. emptor even
though it is a res mancipi, as a woman can alienate possession without auctoritas, and if he
has paid he will usucapt (Vat. Fr. 1). This raises the question whether, in general, good faith
required payment. If the traditio was conditional on payment before a certain day, and it
was not so paid, there was no sale and thus no iusta causa, but if credit was agreed on,
usucapio might proceed: this was not a conditional sale, though it might be a resoluble
one (41. 4. 2. 3. Post, § CLXXITI). But this says nothing about bona fides, or about a sale
in which nothing was said about credit, but the price was simply unpaid. The praetor did
not name payment of the price as a requirement of the actio Publiciana (6. 2. 7. 16, h. t.
8). And Vat. Fr. 12 clearly contemplates usucapio though the price is due. This seems
to imply that it was not essential. But other views are held. See Karlowa, R.Rg. 2.
396,7.* 441.6.1. 5 41. 3. 27; Inst. 2. 6. 11. 6 12. 6. 3; h. t. 46. 741.8.2.
8 41. 10. 3. Esmein (Melanges, 204) adds 41. 3. 48, and 41. 4. 2. pr., in both of which
there may have been a causa, not referable to that res. His other text, 41.3. 46, is not
in point. 9 41. 3. 33. 1; 41. 4. 11; 41. 10. 5. 1. A purchase from a furiosus was void,
but usucapio was allowed, utilitatis causa, 41. 3. 13. 1; 41. 4. 2. 16.

vi] USUCAPIO 247

a codicil unknown at the time. Some of these cases are actually dis-
cussed1.

Justinian discusses some of the causae under separate titles : his list
is not complete, but on some of them there is something to be said.

U. pro derelicto. This would occur where a thing was abandoned,
but by one not in fact owner. If only supposed to be abandoned there
was no usucapio for lack of causa'2'. This differs from other cases in that
there is no mutual act3.

U. pro emptore was subject to special rules as to bona fides and iusta
causa. It included at least one case which was not sale: payment of
damages in an action for the thing4. There was some difference of opinion
whether it covered anything but what was actually bought, e.g. the child
of an ancilla born after the sale5.

U. pro donato had special rules as to bona fides till Justinian6. There
must have been a real donatio. If a father gave to his son in potestas
there was no usucapio: if after the father's death the heredes assented,
time would then run 7. A gift to the donor's wife was null : there was no
usucapio, unless, it was suggested, on the facts the donor was not im-
poverished8.

U. pro herede was unimportant in later law: it applied only where a
true heres took possession of what did not in fact belong to the deceased :
it did not apply to one who thought he was heres but was not9.

U. pro soluto does not mean merely what was handed over in dis-
charge of an obligatio, which would be, e.g., pro empto. It would apply
where a thing was handed over in lieu of the price, or under a stipulatio10.
But in fact it overlaps the other causae.

U. pro suo has two senses. In one sense it covered nearly all11. But
it had a narrower sense. If dos was handed over before the marriage
there was no usucapio pro dote, till the marriage, but Ulpian says there
could be usucapio in the meantime, pro suo12. If an ancilla furtiv a had
a child, apud bona fide possessorem, some texts make this pro empto,
others pro suo13. If the father divided his property inter vivos, and on his
death the heirs agreed to abide by the division, any usucapio would be
pro suo1*.

As usucapio was a civil institution, it did not exist in favour of

1 41. 2. 34. pr.; 41. 4. 2. 6; 41. 5. 3: 41. 8. 2-4; 41. 10. 4. 2; 41. 3. 27. 2 41. 7. 2.

pr., h. t. 6. 3 If it be regarded as traditio to an incerta persona, it would be pro

donate. There is of course no pro occupato; that is not the titulus, but the act of acquisition.
4 41. 4. 3. 5 Buckland, Slavery, 25. 6 Ante, § LXXXVH. 7 41. 6. 1. 1; h. t. 4.

8 41. 6. 1. 2; h. t. 3. 9 41. 5. 3. 10 41. 3. 46. It is not expressly included in

Justinian's series, 41. 4-10. But in early editions of the Digest the last four leges of 41.
3 are treated as a separate title pro soluto. 11 41. 10. 1. pr. It would not cover

praetorian inissio in possessionem. 12 41. 9. 1, 2; cf. h. t. 2, "aestimata res."1 13 6. 2.
11. 4; 41. 3. 33. pr.; 41. 10. 2; h. t. 4. 14 41. 10. 4. 1.

248 USUCAPIO [CH.

peregrines, or over provincial land, or things not capable of private
ownership (res sacrae, sanctae, religiosae1). But it applied to everything
else, unless it had a vitium or defect which barred usucapio, or the
owner was specially protected by law. The vitia were few. The most
important was that res furtivae or v i possessae could not be usucapted
till they had returned to the owner with his knowledge2. The XII
Tables and an early I, Atinia forbid it in the case of res furtivae^, and
the I. lulia et Plautia in that of res vi possessae*, the last piece of legisla-
tion reflecting the fact that there was no theft of land. The return which
purged the vitium, was complete if the owner knew where the thing was
and there was no obstacle to his vindication of it5. But he must know.
To put it secretly in his house was not enough, unless he had never
known of the theft6. It must be to the dominus, who is not necessarily the
person from whom it was stolen7, though there were complications if it
was stolen from a slave or a conductor or a pledge creditor8. Restoration
to a vendee of the dominus, or payment of the value would equally
purge the vitium9. The child of an ancilla furtiva \\asfurtivus if conceived
apudfurem10, and, notwithstanding the rules of specificatio, it seems that
not only wool of a stolen sheep was furtiva, but also a garment made of
it11. As land could not be furtiva, usucapio of land was more common
than that of moveables, for if moveables are in the wrong hands there
will frequently be a theft in the background. But Gaius gives as in-
stances, in moveables, the heres dealing with things he wrongly believes
to be part of the estate, or sale by a man who by error of law thinks a

1 G. 2. 46, 48. 2 G. 2. 45, 49; D. 41. 3. 41. 3 Ib.; Inst. 2. 6. 2. See, however,

Huvelin, Etudes sur le Furtum, 1. ch. vi, who holds that the XII Tables contained no
such rule and that the /. Atinia dealt only with cases of " .<iubreptio," i.e. actual direct
taking by the thief, the application of the rule to all forms of theft being a later de-
velopment. 4 Inst. 2. 6. 2. 5 41. 3. 4. 6; h. t. 33. 2; 47. 2. 57. 4; 50. 16. 215. Or
his tutor unless the tutor was the thief, 41. 4. 7. 3. It is not enough that it gets back to a
procurator, 41. 3. 41. 6 41.3. 4. 7sqq. 7 41.3.4.6. 8 If my slave steals and replaces
my article, I knowing nothing of the matter, the vitium is purged (41. 3. 4. 7), but it is not
enough if he holds it as peculium, unless it was before, or I assent (h. 1. 9). Paul seems to
add that vitium is purged even if I knew of the theft, if the res was peculiaris with my
consent, but the text is confused (h. 1. 7). See also Julian (47. 2. 57. 2). Same rule applies
where depositee sells and gets it back: whether owner knew or not the vitium is purged
(41. 3. 4. 10). Where stolen from pledgee or commodatarius, it must return to dominus if
thief a third party (41. 3. 4. 6). The case of theft by debtor from pledgee was one of
difficulty: the texts record doubts. The rule reached is, probably because the rule is
statutory, and the statute speaks of return to dominus, that where a res is stolen by the
owner from a bona fide buyer or usufructuary, or a pledge creditor, it does not become
furtiva (41. 4. 5; 47. 2. 20. 1, Paul). But 41. 3. 49, also Paul, says that it is a res furtiva
and the vitium is purged by return to creditor. Vangerow holds (Pand. 1. 586) that
here the debtor was a non-owner: in the others owner. This does not shew why return
to creditor purges the vitium, nor is it indicated. In C. 7. 26. 6 the debtor sells a res
hypothecate: this is furtiva. 9 41. 3. 32; h. t. 4. 13, 14; 47. 2. 86. 10 41. 3. 10. 2; 47.
2. 48. 5. Buckland, Slavery, 26. 11 41. 3. 4. 20.

vi] LONGI TEMPORIS PRAESCRIPTIO 249

thing is his1. Another case of vitium is that of a gift to a praetor or
proconsul, these being forbidden. There was no usucapio till the gift
returned to the donor2.

The chief cases of specially protected property were :

(a) The property of the fisc or the Emperor, but this did not apply
to the property of a vacant hereditas not yet reported to the authorities3.

(b) Res mancipi of a woman in agnatic tutela, subject to the Rutilian
rule4.

(d) Dotal land, a result of the /. lulia which made it inalienable6

(e) In late law, land devoted to religious or charitable purposes7.
Probably anything inalienable was incapable of usucapio9, but it is

impossible to be sure that the rules covered usucapio or only prae-
scriptio.

A completed usucapio could, in certain circumstances, be rescinded,
by a rescissory action brought within one year of the time when it was
first possible, i.e. where the usucapio had run against one who, from
absence on State service, imprisonment or the like, could not sue, or in
favour of one who, from some similar cause, could not be sued 9.

LXXXIX. LOXGI TEMPORIS PRAESCRIPTIO10. Usucapio was
essentially iuris civilis, Longi temporis praescriptio wras a system
based, not on the Edict, but on imperial enactments, to give protection
in cases which usucapio did not cover, especially, and at first probably
exclusively, the holding of provincial lands11. The principles were to a
great extent the same, but there are differences to be noted.

(a) The method of protection was different, and less effective.
Usucapio was a mode of acquisition : it was not merely a bar, but made
the usucaptor owner. It was positive or acquisitive. Praescriptio was
in principle merely negative or extinctive12. It gave the holder a defence

1 G. 2. 50, 51; Inst. 2. 6. 3-6. 248.11.8. 341.3.18. 4 G. 2. 47.

5 41. 1. 48; usucapio of res mobiles pupilli, 27. 5. 2; no usucapio of res pupilli (? im-
mobiles}, 41. 1. 48. pr. A minor could get restitutio in integrum. C. 7. 35. 3. C. 2. 40.
5. 1. Restrictions on alienation of res pupilli (ante, § LV), and probably nothing
inalienable was usucaptible. 6 23. 5. 16; see 50. 16. 28. pr. 7 Nov. 111. 1; 131. 6;

Girard, Manuel, 314. 8 See 50. 16. 28. pr. 9 Inst. 4. 6. 5; D. 4. 6. 21 sqq. The

edictal grounds seem to have been (Lenel, E.P. 116) absence compelled by metu*,
or in good faith on public service, vincula, including imprisonment, lawful or unlawful
(4. 6. 9), apparent slavery and captivity (4. 6. 1) and such absence of defendant as made
action against him impossible. 10 Partsch, Longi Temporis praescriptio. 11 Intro-
duced it seems about the end of the second century. See C. 7. 33. 1, and the rescript of
which two copies are given in Girard, Textes, 201, 901. Partsch, cit. 105 sqq. 12 Partsch,

cit. 100, considers that it is, properly, not a mere bar, but positive evidence of title,
though available only in defence (see 39.3.1.23, "veluti iure imposita"), based on
Greek practice in which such facts were persuasive but not conclusive evidence.

250 LONGI TEMPORIS PRAESCRIPTIO [CH

if sued for the res, but did not make him owner, though no doubt there
was, besides the defence, the not very effective protection of the posses-
sory interdicts1. At some time before Justinian, however, probably
long before, it became acquisitive2.

(b) The time was much longer: ten years if the parties were
"present" in the same district, twenty if they were not3. Presence
is explained by Justinian to mean being domiciled in the same
province, but he does not discuss the effect of change of domicile. In
the longer period there was of course much more likelihood of the
thing being temporarily incapable of such acquisition, e.g. belonging to
a pupillus *.

(c) Its field was different: it applied primarily to things capable of
hire gentium, but not of iure civili, ownership, though the rules as to
vitium, etc., seem to have been the same5. As its effects were not quite
the same as those of usucapio, it might be useful in iure civili cases, e.g.
it barred pledge, which usucapio did not, and there is evidence of its
application before Justinian to Italic land6, and to moveables from the
time of Caracalla7, though most of these latter texts may have applied
originally to peregrines and res mancipi.

(d) The better view seems to be, though the matter is disputed, that
litis contestatio interrupted praescriptio8.

(e) The rules as to accessio possessionum in the case of buyers,
etc., were applied first to praescriptio, and gradually extended to
usucapio 9.

(/) Usucapio did not destroy servitudes over the land, except so far
as they expired from non-use10, and did not affect hypothecs11. Prae-
scriptio had the same rule as to servitudes, but a hypothec might be
destroyed by lapse of time, if, when possession began, the possessor did
not know of its existence12.

1 Ante, § LXXII; post. § CCXLIX. 2 Justinian says (C. 7. 39. 8) that "veteres leges"

if properly looked into gave a vindicalio, which looks like a juristic perversion of a lex,
perhaps an actio ficlitia. We are told that there was a modified Publician (6. 2. 12. 2), but
the text is thought to be interpolated. On the face of it this would refer to interim pro-
tection, which would indicate, a fortiori, protection after the time had expired. No
difficulty under Justinian: all ownership is alike. 3 P. 5. 2. 3; C. 7. 33. 9; C. 7. 33. 12,
which settles other points: domicile is matter of province, not of town: the position of
the property is not material. For presence, the document cited p. 249, n. 11, uses the indefi-
nite word " Siarpe^ocras." 4 On these cases of suspended praescriplio, post, § cxcn. As
to res becoming dotales, 23. 5. 16. 5 C. 7. 33. 2, 4. 6 Partsch, cit. 151. 7 44.

3. 3; h. t. 9; C. 7. 36. 1. 8 P. 5. 2. 4, 5; C. 3. 19. 2; C. 7. 33. 10. Partsch, cit. 32 sqq.

Cuq, Manuel, 288, holds that it was interrupted by mere protest, citing C. 7. 33. 2; C.
7. 35. 4, but they are far from conclusive. Under Justinian, protest to the praeses or
certain other public authorities sufficed. See C. 7. 40. 2. 9 See Krueger, Z.S.S. 26. 144.
10 41. 3. 44. 5; 7. 4. 19. 11 41. 3. 44. 5. 12 44. 3. 5. 1. It would be useful for move-
ables in this case, for usucapio did not bar pledges.

vi] LONGI TEMPORIS PRAESCRIPT1O 251

(g) Bona fides (as opposed to iusta causa) is not mentioned in the
earliest evidence we have, but seems soon to have been required1.

Under Justinian the two systems were more or less fused, an obvious
result of the abolition of differences in ownership and civil status. The
new system appears to have followed the rules of praescriptio, but the
period for moveables was fixed at three years, it was directly acquisitive2,
and probably, though this is disputed, it was interrupted by litis con-
test atios.

Apart from this regular system there was introduced in the later
empire a system which acquired the name of longissimi temporis
praescriptio. Two unsatisfactory texts4 tell us that in the reign of
Constantine, or his sons, it was enacted that 40 years' possession should
give extinctive protection, whatever the origin of the possession. The
enactment of Theodosius5, which cut down actiones perpetuae to 30
years, gave, in effect, an extinctive protection after 30 years, and ex-
pressly said that there was no further protection for women or absentes,
but only for impuberes. There was no question of fides or causa or vitium.
It is clear that in some cases6 40 years were required, but not what
these were. Justinian further provided that if the possession had been
bona fide, the protection was acquisitive and gave a vindicatio, what-
ever defects or vitia there might be7.

In A.D. 544 Justinian laid down a new rule8. If a bona fide buyer
from a mala fide holder held the res for 10 (or 20) years, and the
person who thought he was entitled took no steps, the thing was ac-
quired by usucapio. It is not clear what is new here, for if he knew and
could vindicate, this would have purged the furtivity in older law9. He
adds that if the old owner did not know, it would be acquired only by
30 years, which was the existing law for moveables, but new for land,
which could not befurtiva10.

There were special rules as to sales by the fiscus11. Where the fiscus
lawfully sold an estate, but wrongly included property not part of it,

1 The rescriptof Severus and Caracalla, ante, p. 249, n. 11, speaks only of iustum initium,
but a document of a few years later uses words which, though obscure, are supposed to
shew that bona fides was needed (Girard, Textes, 901). In any case a rescript of not much
later requires it. C. 5. 73. 1. 2 Inst. 2. 6. pr. ; C. 7. 31. 1. 3 It is less probable for the
praetorian scheme. Inst. 4. 17. 3. In the fusing enactment he retains the name usucapio
for moveables, and does not say that the rules are to be the same (C. 7. 33. 1). In the
Inst. (4. 17. 3) his language suggests that in usucapio, litis contestatio was still not a
usurpatio. This may be a survival from the original source, but may indicate a difference
between moveables and land. C. 7. 40. 2 seems to put both cases on the same footing.
4 C. Th. 4. 11. 2; C. 7. 39. 2. 5 C. Th. 4. 14. 1 ; C. 7. 39. 3. 6 C. 7. 39; Rubr. 5. ti.

7. 7, etc. 7 C. 7. 39. 8. Very little is known of the details of these schemes. There

were exceptions which may have been numerous. 8 Nov. 119.7. 9 Ante, § LXXXVIII.
10 It might mean that, now, mere knowledge where the thing was, purged the vitium, but
this is unlikely. 11 Inst. 2. 6. 14; C. 7. 37. 2, 3.

252 ADIUDICATIO [CH.

M. Aurelius provided that if the buyer held for five years he should have
an exceptio against a claim by the owner. This is longer than the period
of usucapio, and thus seems to apply only where there was vitium, or
bad faith in the buyer. It left the fiscus still liable for five years to
claims for defect in title. Zeno provided that any acquirer, by sale or
otherwise, from the fisc, should have a good title at once, free of all
charges, but owners or pledgees who suffered might claim from the fisc
for four years. Justinian applied this to all alienations by officials of
his, or the Empress's, household.

XC. ADIUDICATIO1. In three actions (commonly called divisory
actions), communi dividundo, for dividing property held in common:
familiae erciscundae, for dividing a hereditas : and finium regundorum, for
regulating boundaries, the index had a function beyond giving a judg-
ment. He had to make an adiudicatio. In the first two he had to dis-
tribute what was held in common among the claimants, in proportion
to their rights, so that each would now own a part separately, instead
of an undivided share. His decree vested the property and was thus a
mode of acquisition. He might have to do more. It might be necessary
to create easements, e.g. rights of way over one part, in favour of another,
or to give one a life interest over a part and another the dominium
subject to it, but he could not create such rights except over the property
submitted to him2. It might be impossible to make a completely fair
adjustment by division, and thus he might have to order equalising
payments. This was no part of the adiudicatio : it was a condemnatio and
created only obligations3. In the third case he might have to shift some
boundaries from the present position, where the object was to make
them more convenient, giving here and taking there, with the same
need of adiudicatio*. As an adiudicatio could not affect those not parties
to it, if one of the common owners had given a pledge of his undivided
share, this would still burden every part of the property5. If the action
was a indicium legitimum6, the adiudicatio created civil ownership 7, other-
wise it gave only praetorian ownership which would ripen by usucapio*.

I US ACCRESCENDi. This expression, found in many connexions,
here refers to a rule, obsolete under Justinian, to the effect that where a
slave was owned in common by two or more, an act of formal manu-
mission, by one, merely destroyed his right and increased that of his
co-owners, without making the man free9. If it was done informally the

1 Inst. 4. 17. 6, 7; Ulp. 19. 16. 2 10. 3. 7. 1; h. t. 18. 3 Post, § CLXXXVI.

4 10. 1. 2. 1. 5 10. 3. 6. 8. 6 Post, § ccxxxn. 7 Vat. Fr. 47 a. 8 See 10. 2.
44. 1. 9 Fr. Dos. 10; Ulp. 1. 18; P. 4. 12. 1. If a common owner makes a/c. of liberty
to the slave, the co-owner is compelled by the praetor to sell his share to the fiduciary.
C. 7. 7. 1. 1 a; D. 40. 5. 47. 1. As to the difficulties where it is a direct gift, see Buckland,
Slavery, 575 sqq.

vi] DON AT 10 253

act was a nullity, because the accrual was a civil law mode of acquisition
and thus did not occur unless all the civil law requirements of manu-
mission were satisfied.

LEX. This is a general term used by commentators to group together
a number of cases in the sources, which are not expressly classed. We
even find accessio placed here, though it is certainly not the creation of
any express enactment. More reasonably the conception is applied to a
number of cases in which a statute has regulated the matter1. But even
this is not the language of the Sources2. In fact lex as an express mode
of acquisition plays a very small part in the texts. It seems to be given
only by Ulpian. He mentions legacy, as based on the XII Tables, and
"caducum vel ereptorium" under the /. Papia Poppaea3. He is dealing ex
professo with acquisition of single things, and seems to be finding a
basis for dealing with those cases of acquisition of single things which
are illogically but conveniently treated under acquisition per univer-
sitatem, and there seems no purpose in giving it a wider scope. In the
Digest he carries, or is made to carry, the matter a little further, but in
the same field, where he says that hereditas itself may be said "non im-
proprie" to be acquired lege*.

XCI. DONATIO. This is in general not a mode of acquisition : it is a
iusta causa. If A gives B a book it becomes his by traditio : if he promises
a book, there may be a "right" to it, but ownership will not pass without
delivery5. It is not certain why Justinian treats it as a mode of acquisi-
tion6. It may be because in certain cases in later law property did pass,
as we shall see, without delivery, but it is probable that he had no
logical reason, but found it a convenient way for grouping the special
rules affecting gratuitous transfers7. It is to be noted that a donatio was
not necessarily a transfer of a ius in rem. It might be a promise, or a
release (acceptilatio)8, or a delegatio, i.e. the acceptance by the donor, by
formal agreement between all parties, of a liability of the donee to a
third party, or a similar undertaking by a third party to pay to donee
instead of donor9.

Donatio inter vivos10. The first point to notice is revocation. Where
a gift was made sub modo, i.e. to be applied in certain ways, and
was not so applied, it could be recovered by condictio, on ordinary

1 Girard, Manuel, 321; Cuq, Manuel, 279. 2 Cuq includes Thesauri inventio, which
is a statutory creation. But this is to make it a civil mode of acquisition, while Justinian
(Inst. 2. 1. 39) treats it as iure gentium. 3 Ulp. 19. 17. 4 50. 16. 130. 5 He is
not under the same obligations as one delivering under a sale. He need give no warranty
against eviction. If he-does, Paul says it is not binding (P. 5. 11. 5), C. 8. 44. 2 says it
is. Some correct P. ; some limit the lex. 6 Inst. 2. 7. pr. 7 He does not treat it
with modes of acquisition in the Code. 8 Post, § cxcv. 9 Post, § cxciv. 10 As to
the special rules affecting gifts between husband and wife, Ulp. 7; P. 2. 23, and ante, § XL.

254 DONATIO INTER FIFOS [CH.

principles1, but from the third century on wards it seems to become possible
to recover it by a vindicatio utilis, which looks very like a revocable
ownership but does not go quite so far2. From the third century onwards
there is much legislation dealing with revocation of gifts for ingratitude.
Till Justinian, these rules appear to have been limited to cases of gift to
children or grandchildren or liberti3. The revocation was allowed to the
donor, but not to his successors, or against successors of the donee4. There
was a judicial enquiry into the allegation of ingratitude5, and it is not quite
clear whether the effect was to revoke the gift in rem or to give a remedy
in personam. The former is perhaps the more probable, but this is for-
feiture, not ipso iure termination. Under Justinian the rules applied to
gifts in favour of anyone6. An enactment of A.D. 355 introduces the
remarkable rule that if a patron having no child made gifts to liberti,
and afterwards had a child, these gifts were ipso facto revoked, and
apparently, though the law is very vaguely expressed, the revocation
directly restored the dominium7.

Restrictions on the amount of donationes were imposed by the
/. Cincia of about 200 B.C.8, certain near relatives being exempted from
its operation9. The rules under it were a creation of the jurists and gave
a somewhat complicated result. There was a general overriding rule,
perhaps a later growth, not in the lex, that only the donor himself, not
his successors, could take advantage of the statute, Cincia morte re-
movetur10. The governing principle was that the provision could be
enforced only by way of defence. This was an exceptio legis Cinciaen.
Broadly it was only where the claimant must come into court, if he
wanted his gift, that the lex was effective. If it was a gift of land and it
had been mancipated and handed over, there was no more to be said,

1 In a promise, revocation would be by exceptio doli. In other cases it would presumably
be rest, in inleg. from a release, and condictio for payment or release where there had been
acceptance of liability to a third person. Similar machinery, Inst. 2. 20. 13; D. 17. 1. 45.
2; C. 8. 55. 7. Where it was sub modo, and the application was stipulated for, there was
no need for revocation: it could be enforced. If not, there was a condictio, C. 4. 6. 3, 8
(but its classicality is disputed), and if the ultimate purpose was in any way for the benefit
of the donor it was, in later law, an innominate contract (C. 8. 53. 9, 22. 1). 2 Making
it utilis is a formal reservation of the principle. In the actual case the purpose was
alimenta to donor (C. 8. 54. 1) and the rule is declared to have been laid down by earlier
Emperors. See however Pringsheim, Kauf mil fremdem Geld, 123 sqq., who holds all
vindicatio utilis to be Byzantine. 3 Vat. Fr. 272; C. Th. 8. 13 and C. 8. 55 pass. ;

the Vat. text though it speaks of ingratitude does not make this essential, in terms, but
the later legislation does, and so does its reproduction in C. 8. 55. 1. 4 C. 8. 55. 1. 3,
7. 3. 5 In the action for revocation. 6 C. 8. 55. 10. 7 C. 8. 55. 8: as to revoca-
tion of excessive gifts in fraud of querela inoff. testam., post, § cxv. 8 Girard, Man. 951.
9 Cognates to first cousins, any female cognate for dos, affines, and acting tutores, Vat. Fr.
298—305, 310; other cases Vat. Fr. 307-9; it did not apply to rewards for service gratuit-
ously rendered in emergency, P. 5. 11. 6. 10 Vat. Fr. 259. Perhaps Caracalla, Vat. Fr.
266. 11 Vat. Fr. 266.

vi] DONATIO INTER V1VOS 255

but if, though mancipated, it was still in the possession of the donor,
and the donee vindicated, he could be met by the exceptio1. If land had
been handed over without mancipatio, as the ownership had not passed,
the donor could vindicate, and if met with exceptio rei donatae et traditae
would have replicatio legis Cinciae2. The donee being compelled to
come into court to protect his interest the lex was available. If it was
a gift of land, deducto tisufructu, then, if there had been a mancipatio or
cessio in iure, the conveyance was complete and no question arose. If
there was even a valid contract this could be enforced against the heres,
for he had not the exceptio3. If the thing given were a res mobilis, duly
conveyed and handed over, the possibility of the exceptio was not ex-
tinct. For, by the interdict utrubi, a possessor could get the thing back
if he had held it for a greater part of the last year than that for which
the donee had held it. In such a case the donor could regain possession
by the interdict, and meet the donee's vindicatio by the exceptio legis
Cinciae*.

These rules disappeared in the later Empire5, having been replaced
by a system of registration (insinuatio) for all gifts. Under Justinian a
gift exceeding a certain amount, ultimately fixed at 500 solidi, was void,
if unregistered, as to the excess6, apart from certain excepted cases7. If
the thing had been transferred the ownership passed only pro parte, the
larger interest, whichever it was, having the right to buy out the other.

1 Vat. Fr. 311. 2 Vat. Fr. 313. C. Th. 8. 12. 7. 3 In Vat. Fr. 313 the case is coin-
plicated by the fact that donee is a libertus. 4 G. 4. 160; Vat. Fr. 293, 311. If the gift
is perfect the /. Cincia does not affect it, and thus if it has been completed the fact that
it has got back to the donor does not entitle him to use the exceptio 1. Cinciae (arg. P. 5.

11. 2, 4). Presumably if it was a usufruct which was given and duly conveyed, and
the donor then vindicated the thing, he could not reply to the exceptio ususfructus by
a replicatio legis Cinciae. If the gift was a promise the exceptio would be available.
A gift by way of acceptilatio is perfect, and the exceptio is barred (C. 8. 43. 2). But a
mere informal release, enforceable only by an exceptio, could be met by a replicatio legis
Cinciae (20. 6. 1. 1. interp.). Formal taking over of a debt is a completed gift (delegatio,
39. 5. 21. pr.). So too if in the same way a debt to donor is transferred to donee (h. t.
33. 3). But cases of this type create a difficulty. In 44. 4. 5. 5 a donor whose gift was
the taking over of a liability has a condictio for return or release according as he has paid
or not. In 39. 5. 21. 1 a similar right is given where the gift was the transfer of a claim
against a third person. These texts are variously explained as a survival, on the assump-
tion that the original remedy under the lex was an action, as an interpolation, and as a
special remedy for these cases, rendered necessary by the fact that, though the gift is still
in the stage of promise and therefore the lex ought to be applicable, it is in fact barred
because in each case the promise by the delegatus is one of an existing debt (Gide,
adopted by Duquesiie, Mel. Girard, 1. 389, who discusses the various views). 5 The
lex may have been in force in 355; C. Th. 8. 12. 7. 6 There was much legislation
requiring registration, with variations as to conditions and effect; Vat. Fr. 249; C. Th. 8.

12. 1 sqq. ; C. Th. 3. 5. 1 ; C. 8. 53. 34, 36; Nov. 162. 1, etc. 7 The excepted cases under
Justinian seem to be piae causae up to a specially high limit, donationes ante tiitptiaa, or
for dos, gift by the Emperor (C. 8. 53. 34, 36), and some others.

256 DONATIO INTER V1VOS [CH.

Where the gift took an indirect form (delegatio) there was condictio for
the excess1.

Donatio inter vivos afforded some exceptions to the rule that owner-
ship passed only by traditio or formal conveyance. A gift by pater-
familias to one in his potestas was a nullity2. But if he died in the same
mind, without revoking the gift it was confirmed and operated as
donatio mortis causa*. From Diocletian onwards the texts mostly
require express confirmation on the will4. Justinian allowed non-re-
vocation to suffice if the gift was below the amount requiring insinuatio,
or was duly registered, in other cases he required express confirmation,
with some further distinctions5.

Gifts between parent and child, where there was no potestas, were in
earlier classical law like other gifts. But there was confusing legislation
about them of which the story may be as follows. From the time of
Pius they were valid and enforceable however informally expressed6,
though, of course, mere declaration did not transfer ownership7. This
remained in strictness the law even under Justinian. But he, perhaps
following predecessors, made such informal pacta donationis binding
even between extranei8. In both cases traditio remained necessary9. But
by an evolution which may have begun under Constantine10 for gifts
between parents and children not in potestas, but was not generalised
till Justinian, the delivery of instrumenta came to be regarded as a valid
traditio of the thing itself, in cases of donatio11.

Gifts for charity (piae causae) and to the church were the object of
special provision under Justinian12. In one enactment13 he laid down
a rule which may mean that the mere promise to give gave a real action,
indeed this is its most obvious meaning. But the enactment does not in
fact say anything of the formalities needed, and its main purpose was
the extension of the period of limitation. Its meaning has been disputed
for centuries14.

Donatio mortis causa. This was a gift made in expectation of death,
either general or on a certain event15, to be absolute only if and when

1 See p. 255, n. 4. 2 Vat. Fr. 295, 6; Greg. Wis. 8. 2, not a basis of usucapio (41. 5. 2. 2;
41. 6. 1. 1). It is confirmed by emancipatio without ademption of peculium. 39. 5. 31. 2; C.
8. 53. 17. 3 P. 5. 11. 3; Greg. Wis. 8; Vat. Fr. 274, 277, 278, 281. etc., subject therefore to
/. Falcidia and quereln inofficiosi (post, §§ cxrv, cxix). 4 Vat. Fr. 292-296. But one of Pap.
requires confirmation (Vat, Fr. 294; but see Vat. Fr. 250), one of 315 (Vat. Fr. 274) seems to
treat non-revocation as enough. 5 C. 5. 16. 25. 6 P. 4. 1. 11; cf. C. Th. 8. 12. 4.

7 Vat. Fr. 263, 266 a, 268, 285, 287; cf. Vat. Fr. 265. 8 Post, § CLXXXIH. 9 C. 8. 53. 6.
10 C. Th. 8. 12. 4, 5. 11 See Riccobono, Z.S.S. 33. 259; 34. 159; M&. Girard, 2. 415.

C. 3. 29. 2 is in part Justinian. The development is probably connected with the fact that
mancipatio was necessary for donatio of land and gradually degenerated into a mere
memorandum. Thus no actual delivery was needed. Ante, § LXXXVI. 12 Ante, § LXV.
13 C. 1. 2. 23; cf. C. 8. 53. 36. 14 See Riccobono, Z.S.S. 34. 195. 15 39. 6. 1-6.

vi] DON ATI O MORTIS CAUSA 257

the expected death occurred. It might be a gift of property, a promise, a
release or adelegatio1. It was essentially revocable, and was revoked ipso
facto by insolvency of the donor, or predecease of the donee 2. This revoca-
tion would operate differently in the two types of such gift, which are :

(i) Under a suspensive condition. Here in a gift of property the res
was handed over but the ownership was not to pass unless and until the
expected death occurred3. Here no difficulty arose. Whether the
revocation was express or by insolvency, death of donee, or non-occur-
rence of the expected death, the ownership not having passed, the thing
could be vindicated.

(ii) Under a resolutive condition. The property passed on delivery
but on failure of the gift it was to be restored. The ownership did not
revert ipso facto, in classical law, but there was an obligation to restore.
Under Justinian the reversion operated ipso facto* and the thing could
presumably be vindicated5. It is not clear that this was absolutely new,
though it is post-classical6.

The I. Cincia had no bearing on these gifts and, owing to their opera-
tion only on death, they were free from some of the restrictions on gifts
inter vivos. Thus they could be made from father to son, between parties
to a marriage, indeed to any person to whom it was lawful to give a
legacy7. As to form we have no direct information for classical law, but
an enactment of Constantine suggests that, then and later, the rules
were the same as for gifts inter vivoss. Justinian however laid down a
remarkable rule. He prescribed a certain form, with five witnesses, in
fact the form he required for codicils9, and provided that where such a
gift was so made it should have the same effect as legacy, the point
being that it would transfer property on the death, but not till then,
without any transfer of possession10. It was transfer by mere agreement.
This does not mean that such gifts were void unless made in this form :
if the thing was actually handed over or created in the way appropriate
to its nature the old rules would presumably apply.

This was a part of his general policy of bringing together legacy and

They probably originated in mancipatio cum fiducia. See Senn> N.R.H. 1913, pp. 169
sqq. He draws from this origin and from a distinction between gifts to be returned if
the expected death does not occur, and gifts not to be returned unless the donee dies
before the donor, some conjectural conclusions as to the evolution of the institution.

1 See for indirect forms, 39. 6. 18. 2, 24, 28, 34. 2 It has been suggested that the

texts making it revocable at will are interpolated ; see Cuq, Manuel, 800. There could
be no difficulty in gifts of the first class. P. 3. 7. 1, 2; Inst. 2. 7. 1; D. 39. 6. 1, 13, 16, 17.
3 39. 6. 2. 4 39. 6. 18. 1; h. t. 37; C. 6. 37. 26. 1. 5 The point did not arise in

"indirect" gifts, by acceptilatio or delegatio. The special remedy here, where one was
necessary, was condictio. 39. 6. 18. 1; h. t. 24, etc. 6 See discussion, Girard, Manuel,

963. 7 39. 6. 9. 8 Vat. Fr. 249. 3. 9 C. 8. 56. 4. 10 L>. 6. 2. 2 puts dunatio

on a level with legacy in this respect.

B. H. L. 17

258 JURA IN RE ALIEN A [CH.

donatio mortis causa, of which we are told several times that it is similar
to legacy1. The assimilation was no doubt progressive. A senatusconsult
made such gifts subject to the II. caducariae2. Severus made them sub-
ject to the /. Falcidia3. But even under Justinian there were many
respects in which they differed from legacy. Thus they did not depend
on a will4, a filiusfamilias could make them, consentiente patre5, the
regula Catoniana did not bear on them6, and they were not lost by un-
successfully7 attacking the will8.

XCII. JURA IN REM, LESS THAN OWNERSHIP. Of these by far
the most important class were servitudes.

A servitude 9 was essentially a right or group of rights forming part
of dominium, but separated from it and vested in some person other than
the dominus. From another point of view it was a burden on ownership,
a ius in rerfi in another person, to which the owner must submit. This
point of view suggests itself in connexion with praedial servitudes which
are rights over one piece of land vested in one, not owner of that land,
but of other adjacent land to which, rather than to him, it is attached, so
that if he alienates the land the servitude goes with it 10. The conception
is reflected in the terminology. The land under servitude is spoken of as

\ Inst. 2.7.1; D. 39. 6. 17, 37, etc. 2 39. 6. 35. pr. 3 C. 6. 50. 5. 4 39. 6. 25

and thus did not wait for entry of heres. 5 39. 6. 25. 1. 6 Arg. 39. 6. 22; post, § cxxi.
7 34. 9. 5. 17, post, § cxxi. 8 As has been assumed in the course of the discussion

of modes of acquisition, the action for the enforcement of the right is the vindicatio.
The various forms and main characteristics of this action will be considered under the law
of procedure (post, § ccxxvm), but some points should be mentioned here. The plaintiff's
claim is always that he is the dominus, the Quiritian owner, and in early law the defendant
made a similar claim. This last point leaves a trace in the early classical law. The action
does not in early classical law lie against a mere detentor: it should be brought against
the person under whom he holds — the possessor, and if this is the plaintiff himself an
action in personam based on the negotium between them is the proper remedy. Ulpian allows
the real action (6. 1. 9). The detentor could avoid liability, under Constan tine, by declaring
of whom he held (C. 3. 19. 2). In later law, but probably not till Justinian (see Girard,
Manuel, 348, and generally on the action, 342 sqq.), it lay against one who had fraudu-
lently parted with possession (an extension from hereditaiis petitio), and against one who
falsely alleged that he possessed. The defendant, if defeated, must restore the thing,
its accessories (causa) and the fruits received since litis contestatio : his further liabilities
varied according as he was in good or bad faith and historically, post, § ccxxxvi.
Vindicatio utilis, or actio in rem utilis is occasionally found. It is not an extension of
the remedy to cases of inferior forms of ownership, but to cases in which a change of
ownership which has taken effect is rescinded, and in most cases it appears to be due to
Justinian, outside slave law (lust. 4. 6. 6; D. 6. 1. 5. 3; 24. 1. 30, 55; 26. 9. 2; 39. 6. 30;
41. 1. 9. 2; C. 3. 32. 8; C. 8. 54. 1, etc.). 9 This name is probably not very ancient, even
Gaius uses it (2. 14, 17) as a secondary name. Cicero uses it in this sense (Ad Quint,
fr. 3. 1. 2 (3)). Primarily it is a ius. For early lawyers it is a right existing independently
of ownership, with its own remedies. The analysis is the work of the classical lawyers.
This old view led to the rule that it could be acquired by usucapio, and the I. Scribonia
(post, § xciv) which abolished this may mark the change of view. 10 8. 4. 12.

vi] SERVITUDES 259

praedium quod servit1 and hence have been formed the expressions
praedium dominans and serviens. It is indeed more correct to speak of
it as a burden on the land than on the ownership, for a servitude might
exist over land which had no owner. If a praedium dominans was
abandoned by its owner, a right of way over it did not cease to exist2.
But there could be no servitude on res sacrae or religiosae — that was
inconsistent with religion3.

The chief general principles of servitudes are these :
(i) Servitus infaciendo consistere non potest. It could not impose an
active duty4. This results inevitably from its nature. It was a right in
rem and all such rights are negative : there cannot be a right that every-
one shall do something. There can only be a right that everyone shall ab-
stain from doing something. It might be a right to prevent anyone from
doing something — ius prohibendi5—-a negative servitude, such as a right
to ancient lights, or a right to do something without being interfered
with — ius faciendi — a positive servitude, such as a right of way6. There
was however one remarkable exception. The servitude oneris ferendi
was a right to have one's wall supported by a neighbour's, and it im-
posed on him the duty of keeping the support in repair7. This is an
active duty8. But it can hardly have been a part of the servitude, for it
was not available against all : a third party could not be made to repair
the wall. It is therefore sometimes explained as having originated in an
agreement, at first express, and later implied9. But this agreement
would bind only the promisor and his heres, while this duty lay on any
owner for the time being. And it was enforced by the ordinary actio
confessoria for enforcing a servitude10. And Labeo says that the servient
owner could avoid the liability by abandoning the wall, as it was a duty
on the land rather than on him11. It is in fact an anomaly, of which the
explanation must be historical. It may conceivably have been an old
customary institution, the lines of which were settled before the con-
ception of servitude was fixed12, but its existence was still matter of doubt
at the end of the republic13. It may have been recognised on grounds of
convenience: it was better that the owner should do it than that he
should have to submit to entry of an outsider to do it14.

(ii) Nulli res sua servit15 — a man could not have a servitude on his

1 8. 2. 30, 32. 2 Arg. Ulp. 1. 19. A servus sine domino may be subject to

usufruct. Fr. Dos. 10. 3 A res cannot be religiosa without consent of all having

iura in rem, but there are difficulties in res sacrae, as to which we are not informed ; see 8.
1. 14. 2. 4 8. 1. 15. 1. 5 8. 2. 15. 6 Active duties could of course be imposed
on a transferee, but this is contract and would not bind third parties. 7 8. 5. 6. 2.

8 8. 5. 8. 2. 9 See Elvers, Servitutenlehre, 56. 10 8. 5. 6. 3. 11 8. 5. 6. 2.

12 Girard, Manuel, 365. 13 8. 5. 6. 2. 14 See also, Elvers, op. cit. 62. 15 8. 2. 26;
8. 6. 1.

17—2

260 SERVITUDES [CH.

own land. This is plain — servitude is essentially a right in a non-owner.
A result was that if the two ownerships came together, the servitude
was merged and did not, in general, revive if the ownerships again be-
came separate1. There were apparent exceptions to the principle. If
having two adjoining properties A gave B a usufruct over one, reserving
a right of way, this was not really a servitude over A's own property: it
was part of his ownership, and the usufruct he had given was less than
the normal to the extent of that right2.

(iii) Servitus servitutis esse non palest. There could be no servitude
on a servitude. Any servitude was a burden on the ownership. There
might be two servitudes over the same land3, and there was the same
apparent exception as in the last case.

(iv) Servitus civiliter exercenda est — it must be so used as to cause as
little inconvenience as possible4. Hence there was no servitude unless
it was advantageous to the property. There could not be a servitude
merely to annoy a neighbour, or for a personal advantage not affecting
the land5.

(v) A servitus was a res incorporalis and thus could not be possessed.
This means less than it seems to, for enjoyment was much the same as
possession and was protected by similar interdicts6. In later law it
was "quasi-possessed7." The fact that some servitudes could originally
be acquired by usucapio is not an application of the notion of quasi-
possession. It is a rule framed on the notion of use, before the theory
of possession had been evolved, and it disappeared before the classical
age. And the references to quasi-possession of praedial servitudes are
probably all interpolations8.

Servitudes were divided into two broad classes: Praedial and Per-
sonal, so distinct in character that they scarcely seem to belong to the
same branch of the law. Praedial servitudes applied only to land, were
perpetual, were almost innumerable and gave only limited definite
rights. Personal applied also to moveables, were limited in duration,
were very few, and gave indefinite rights including physical possession
of the property concerned. But the characteristic difference was that

1 8. 6. 1. As to exceptions in practice to this last rule, see Elvers, op. cit. 126;
Windscheid, Lehrb. § 215, n. 10; D. 8. 1. 18, etc. 2 The distinction is not meaningless.
It could not for instance be lost by non-use unless the land itself was lost by usucapio.
3 We are told that there cannot be a usufruct of a right of way, for the reason, probably due
to Justinian, that there cannot be a servitude on a servitude. The text adds that effect
can be given to it by praetorian remedies (33. 2. 1). See post, § xcvi. 4 8. 1. 9; 8. 5. 8.

6; 8. 1. 15. pr. The servitude in 8. 1. 19 (Labeo) may be a survival, or may be allowed
as being of potential value to the land though useless for the time being. 5 8. 1. 8. 1 ;

h. t. 9; h. t. 15, etc. Its enjoyment may be limited to certain times, 8. 1. 5. 1. 6 E.g.
43. 19. 7 See Albertario, Bull. 27. 275 sqq. 8 See Albertario, loc. cit. The quasi-

possession of G. 4. 139 can hardly stand, on linguistic grounds.

vi] PRAEDIAL SERVITUDES 261

praedial servitudes belonged to a man, only as owner of a praedium to
which they attached, so that they were spoken of as belonging to the
praedium : personal servitudes attached to a man personally.

XCIII. PRAEDIAL SERVITUDES. These then were rights vested in a
person as owner of one piece of land over another piece, effective not only
against its owner, but against all: they were iura in rem. Land subject
to such a servitude was said servire, a terminology which treats them as
burdens. But in speaking of the servitudes themselves the other aspect
was commonly looked at: they were called iura praediorum1. Their
nature, coupled with the general principles of servitudes, accounts for
most of their special rules. They were perpetual and could therefore exist
only over what was capable of perpetual duration2. There was some
discussion as to what was so capable, but it seems that if a thing was
practically such, but not technically, the classical law admitted the
servitude3. The principle of perpetuity had one modification. If the
ownership was liable to resolution by law, any servitude imposed by
the interim owner ceased when the ownership ended. The only recorded
case is that of a heres where property had been left by a conditional
legacy. If the condition occurred any servitude created by him was
destroyed4. But it is to be noted that there were in this case doubts as
to the interim ownership5. Dos affords a contrast. We are told that
where a husband sought to create a servitude on dotal land, this was
void, as, under the /. lulia, he could alienate no interest in it6. If a
vendor before delivery created a servitude it was good, but he was
liable to his buyer7. On the other hand, a servitude could not be created
conditionally or ex die8, nor was it possible to create one, ab initio, to
end at a certain time or in a certain event, at least in classical law. But
if such an agreement were made, effect could be given to it, in praetorian
law, by an exceptio doli or pacti conventi. Even in Justinian's law the
principle was so far preserved that the servitude was not ipso facto
ended by the arrival of the time or occurrence of the condition, but only
by way of equitable defence 9.

From the principle that servitudes were allowed only so far as
advantageous to the tenement came the rules that the praedia must be
near together, though not necessarily adjoining10, and that they must be

1 G. 2. 29. 2 8. 2. 28. See Perozzi, Riv. It. p. I. Sc. Giur. 14. 175. 3 8. 2.

28; 8. 3. 9; 8. 4. 2. 4 8. 6. 11. 1. 5 G. 2. 200. 6 23. 5. 5; C. 4. 51. 7; ante,

§ XL. 7 He must deliver it as it was at the time of the contract. 18. 1. 59. 8 Cessio
in iure and mancipatio, the ordinary civil methods, could not be suspended, and the same
is true of adiudicatio, Vat. Fr. 49. There might of course be modus in the sense of any
limitation on the right. 8. 1.4. 2, etc. As to creation by pact and stipulation, and quasi
traditio, post, § xciv. 9 8. 1. 4. 10 There must not be intervening a piece of

land over which there could not be such a servitude, 8. 1. 14. 2; 39. 3. 17. 4.; h. 1. 3;
a right of way blocked by an intervening praedium is null, 8. 3. 7. 1.

262 PRAEDIAL SERVITUDES [CH.

used only with that tenement1. Thus water drawn under a ius aquae-
haustus might not be sold2.

Praedial servitudes were indivisible. The chief results of this arose in
connexion with loss of servitudes by confusio3, but there were others.
Thus if it extended over two fundi it was not lost by non-use over one,
if it had been used over the other4. If one, of several persons entitled,
sued in respect of it, he claimed the whole5. If, having afundus, A assigned
an undivided part, he could not deduct a servitude6. Many consequences
followed from the fact that of common owners of a fundus all must
assent, to produce any change in acquisition, abandonment, imposition
or release of a servitude7.

There were a great number of these servitudes. The oldest are the
four rights, iter, via, actus and aquaeductus, which probably go back to
the XII Tables8. Others were added from time to time, till in later law
they were almost innumerable. Not everything could be a servitude9.
It must be in the interest of the fundus, and actually beneficial to it.

Praedial servitudes were of two varieties, Rustic and Urban10. There
is no certainty as to the exact principle of distinction. But as in Roman
usage the epithet was attached to the praedium dominans and not to
the servitude (ius rustici praedii11) it seems that the distinction turned on
a characteristic of the dominant tenement. It is therefore commonly
held that urban servitudes were those which primarily contemplated a
building on the dominant land, while the others were rustic. But there
are odd texts which raise difficulties. Aquaeductus, usually called rustic,
is once called urban12. Ius altius tollendi, usually called urban, is called
rustic byNeratius13. This has led to the view that a servitude, irrespective
of its nature, was urban if it was in connexion with a building, and rustic
if it was not14. But the general language of the texts is against this.

1 8. 4. 7. 1; 8. 1. 15; 8. 3. 5. 1; h. t. 24. 2 8. 3. 5. 1. 3 Post, § xciv. 4 8. 3. 18:
8.5.9.1. 5 8. 1. 17; 8. 5. 4. 3, 4. 68.4.5,6.1. 7 8. 2. 30. 1 ; 8. 3. 34. 8 See
Bruns, 1. 27; Girard, Textes, 16, 17; D. 8. 3. 1. pr.; cf. h. t. 1. 1. Aquaeductus originally
only from the source, but later from any point in the stream. 43. 20. 1. 7, 8; h. 1. 38; 8.
3. 9. 9 Not for mere personal enjoyment 8. 1. 8. pr. 10 Inst. 2. 2. 3. 11 Ib.;
Inst. 2. 3. pr.; D. 8. 2. 2. 12 6. 2. 11. 1; cf. 8. 2. 18. 13 8. 3. 2, with others that

look urban. 14 See Girard, Manuel, 369; Cuq, Manuel, 329. But it is difficult so to
understand such texts as 8. 2. 2 and 8. 3. 1. The difficulties are plain. If I acquire a right
of way to land, and then build a house, does the servitude cease to be rustic and become
urban? If 1 had previously pledged it, would the pledge cease to exist ? The well-known
text of Neratius (8. 3. 2) which is the main stumbling-block does not expressly suggest this
view, nor apparently does any other text. For if 43. 19. 1. 1 is so interpreted it conflicts
with the rubric and leaves no interdictal protection to a right of way leading to a house.
And Ulpian, twice in the title, refers to use of the easement by a "hospes" (43. 19. 1. 7;
h. t. 3. 4). Indeed the explanation does not account for the text of Neratius, who gives
as other instances of rustic servitudes, protectum kabere, and doacam habere, which seem
to assume buildings on the dominant tenement. Indeed his list is much more like a list
of urban servitudes.

vi] PRAEDIAL SERVITUDES 263

(There are indeed texts which raise a similar suggestion with regard to
the relation between praedial and personal servitudes1.)

It should be observed that the distinction already noted between
positive and negative servitudes agrees nearly with that between rustic
and urban, and that to some jurists the distinctions were apparently
identical2. Servitudes have also been classed as continuous and discon-
tinuous, those which do not, and those which do, require an act for
their enjoyment, a distinction which also agrees somewhat nearly with
those just mentioned.

The four original rustic servitudes were iter, actus, via and aquae-
ductus, the many others, e.g. the right to draw water, the right to burn
lime, to dig sand, to pasture cattle, or to take cattle to water, were later
additions3, differing fundamentally in character. The original four were
easements : they gave mere use of the land for specific purposes, taking
nothing from it. Most of the rest were "commons" or "profits": they
involved taking some of the produce of the land. Since a usufruct might
be limited in extent it is easy to see that such a right as pecoris pascendi
was very like usufruct, a point to which we shall recur4. All rustic
servitudes seem to have been positive. They were res mancipi5, which,
as they could not be alienated, seems to mean that they could be created
by mancipatio. It is possible that only the original four were res mancipi :
indeed there is reason to think that, for the Sabinians, only the original
four were rustic servitudes at all6. We learn also that they could be
pledged7, which no doubt originally meant that they could be manci-
pated cum fiducia8 with the land to which they were attached. In
classical law it meant more : it was possible to give a rustic servitude to
a creditor who had a near praedium, on the terms that he was to enjoy
it till the money was paid, and if it was not, might sell it to some other
neighbouring owner9. Thus it ceased when the debt was paid, and was
transferable, both, as Paul notes, anomalies. The text has been the sub-
ject of much discussion10. All that need be said now is that its express
limitation to the four old rights is confirmation of the view that only
these four were res mancipi, for some jurists.

The urban servitudes were even more numerous. Most of them were
negative but a few look positive : all were apparently continuous. Some
of them were much alike11, and there is uncertainty in the texts, in
some cases, as to their exact definitions and distinctions, into which it

1 Post, § xcvi. 2 Post, § xciv. 3 8. 3. 1. pr., 1. Iter is footway; uctus, a right
of way for animals and vehicles; via, a right to a made roadway. Inst. 2. 3. pr. ; D. 8.
3. 8. 4 Post, § xcvi. 5 G. 2. 17. 6 8. 3. 1. pr.; Inst. 2. 3. pr., 2; Karlowa, R.Rg.
2.357. 7 20.1.12. Only the original four are mentioned. Urban could not. 8 Post,
§ CLI. 9 Ib. 10 Post, § CLXVUI. 11 Lumen and ne luminibus ojficiatur (8.2.
4). See Elvers, Servitutenlehre. 444. Tigni immittendi and oneris ferendi.

264 PRAEDIAL SERVITUDES [CH.

is not necessary to go1. There is no authority for holding that they
could be pledged. Some of them present peculiarities. Of oneris ferendl
mention has been made2. Altius non tollendi, obligation not to build
higher, ne luminibus qfficiatur, not to obstruct your neighbour's light,
and stillicidium, to receive your neighbour's drip, are all simple, but
each of them had a peculiar looking counterservitude, altius tollendi3,
luminibus qfficiendi*, and stillicidii non recipiendi5. All these seem to
be rights which would exist apart from servitude. They have been ex-
plained in many ways. On one view they were modes of release from
an existing servitude, but they were unnecessary for that6. Another is
that they were releases from local laws concerning constructions7, but
the evidence for such laws in the three cases is slight, and that a private
person should have a right to release from a law is unusual. There is
evidence for such laws as to altius tollendi9, and for such agreements.
But it is post-classical and altius tollendi was known to Gaius 9. Another
view is that it was a partial release, e.g. a counterservitude to build five
feet higher. For this too there is some evidence10. As servitudes were
indivisible it is not easy to see how they could be partially released
except by counterservitude11.

XCIV. Acquisition of servitudes. Rustic, or some of them, could be
created by mancipatio^, and all praedial servitudes by cessio in iure13,
both of which were gone under Justinian, by adiudicatio1*, by legacy or
the like15, and they were acquired by acquisition of the praedium to
which they attached. On alienation of the land, the servitudes must
pass, or they would be extinct16. To this extent even urban servitudes
could be acquired by mancipatio. Servitudes could also be acquired by
reservation in mancipatio or cessio in iure of the land17 to be servient,
and, in Justinian's time, even in traditio18. They could be acquired by
usucapio till a I. Scribonia, probably late in the republic, which forbade
this19. Finally there were under Justinian certain other methods of the
history of which something must be said.

1 The chief urban servitudes are set out in 8. 2. 2 and the neighbouring leges.
2 Ante, § xcn. 3 G. 2. 31; 4. 3; D. 8. 3. 2. 4 8. 2. 2. 5 Ib. 6 All are urban
and release by cessio in iure is as simple as creation of a counterservitude in the same
way. 7 Girard, Manuel, 367. 8 C. 8. 10. 12. See Accarias, Precis, 1. 676.

9 See n. 3. 10 44. 2. 26; 8. 2. 11. 1. 11 Cuq, Man. 330, citing 8. 2. 11. pr. and C.

34. 1, holds them to be releases by way of counterservitude from the rule requiring new
buildings to conform to the ancient state of things, as to lights, etc. But the first text has
been held to be due to Justinian and the other merely says that a servitude of light may be
acquired by lapse of time. 12 G. 2. 29. 13 G. 2. 29, 31. 14 Arg. Vat. Fr. 47.

15 8. 2. 31. 16 41. 1. 20. 1. 17 8. 4. 3, 6. pr. Not called deductio. 18 8. 4. 3.

Even before Justinian deduct-to of a usufruct might effect a traditio of the land. C. Th.
8. 12. 9 = C. 8. 53. 28. 19 Some texts suggest (P. 1. 17. 2; D. 8. 1. 14. pr.; 41. 3. 4. 28) that
only the four original were usucaptible and that the lex did not destroy this for water rights.
But the text (P. 1. 17. 2) does not shew that such a right could be so acquired de novo.

vi] PRAEDIAL SERVITUDES 265

There were some servitudes or quasi-servitudes which were not ad-
mitted at civil law but yet existed. Such were the rights to water not
from the caput aquae, but from an intermediate point1, and also similar
rights in public lands and rivers2: indeed these may be the only cases.
Clearly they could not be created by civil law methods, and the question
therefore arises by what methods they were created, and how far and
with what effect these methods were applied to other servitudes in
classical law. The relevant texts are largely interpolated and the matter
is one on which there is a " chaos of opinions3." It must suffice to indicate
the modes recorded in the Sources and to state what seem the more
probable conclusions.

Quasi Traditio. There seems to be no evidence that deductio in
traditions was available before the later empire, or that, conversely, a lex
could be attached to a traditio, for the creation of a servitude over other
land of the vendor, with praetorian remedies4. But several texts, taken
at their face value, suggest that traditio and patientia of, e.g., a right of
way, did in fact give rise to praetorian protection. In classical law res
incorporales were incapable of traditio5 and the texts all shew signs of
interpolation or have to do, not with the question of creation, but
with the distinct question of enjoyment necessary to the interdicts6. But
it is at least not impossible, and it is in the line of natural evolution
that, as seems to have been the case in usufruct7, the praetor did give a
remedy in such cases, perhaps an actio infactum8.

Pact and stipulatio. On a fair reading of Gains9, it is to be con-
cluded that this method (which was presumably the Greek method of
agreement, reinforced for Roman practice by stipulatio10) was applied
only in provincial land, in his time. It does not follow that no change
occurred before the end of the classical age, and though the texts which
mention this method are disposed of as either interpolated or referring
to provincial land, this is hardly proved in all cases11. It is however
possible that it did not give a ius in rem, even praetorian, in classical
law, since, on the view suggested above, quasi traditio sufficed. In the
normal case the two would be combined, in positive servitudes. But it

1 8. 3. 9 (interp.); 43. 20. 1. 7; cf. 8. 4. 4. 2 (interp.). 2 43. 13. 1. 1; h. 1. 9; Costa,
LeAcque, 24 sqq., Elvers, Servitutenlehre, 267 sqq. 3 See especially Rabel, Mil. Girard,
2. 387 sqq.; Peters, Z.S.S. 33, 595. 4 See, however, Collinet, Mel. Girard, 1. 185 sqq.
5 G. 2. 28. 6 Chief texts: 6. 2. 11. 1; 7. 1. 3; h. t. 25. 7; 7. 6. 3; 8. 1. 20; 8. 3. 1. 2;

43. 19. 3. 8. Interdictal protection is usually admitted. 7 Post, § xcvr. 8 Girard,
Manuel, 383. In Vat. Fr. 61 "tuitione praetoris" can hardly apply, as Rabel holds, to
provincial lands. 9 G. 2. 31. 10 Probably originally a stipulatio for a penalty.

11 The texts are 7. 1. 3. pr.; h. t. 25. 7; h. t. 27. 4; 8. 3. 33. D. 7. 1. 27. 4 is not discussed
by Rabel or by Collinet (&t. Hist. 1. 161 sqq.) and is said by Peters to refer to provincial
land. He gives no reason. It seems to give the slip, an effect in rem. But it is not con-
clusive: it may turn, like the text which follows it, on the duties of fructuary.

266 PRAEDIAL SERVITUDES [CH.

is difficult to apply the notion oftraditio to negative servitudes, and there
is nothing in the texts to exclude the possibility that in this case the
stipulatio operated in rem. Pact and stipulatio were in any case recog-
nised by Zeno in terms which imply that it was a known institution
before the time of his predecessor Leo1.

Longi temporis praescriptio. The notion of long enjoyment as a root
of title to a servitude seems to have its basis in an old rule that no further
proof of title was wanted than an immemorial enjoyment2. Ulpian
supposes aquaeductus to be acquired by long continued enjoyment3.
He does not specify the term, but the ordinary ten or twenty years term
was applied by analogy, then or soon after4. From the fact that he
merely requires that the enjoyment shall not have been clam vi aut
precario, it is to be inferred5 that the requirements of iusta causa and
bona fides did not exist. It gave a utilis actio6.

All these methods seem to have given full title in the law of Justinian
and probably did before.

The ways in which a servitude could cease to exist were numerous.
Cessio in iure extinguished it in classical law7. Renunciation, either
express or by authorising acts inconsistent with it, did the same under
Justinian8.

It would end by confusio. But here there are distinctions to be
drawn. If the confusio was itself set aside, by operation of law, the
servitude might revive in practice, e.g. where the fieres conveyed the
dominant property to the owner of the servient, in the belief that there
was a fideicommissum of it, or the transaction which caused the confusio
was set aside by restitutio in integrum9. But a mere voluntary recon-
veyance did not revive it. And, as the servitude attached to the whole
praedium, the acquisition of a particular part of the dominant by the
owner of the servient did not affect it10. Where the dominant owner
acquired part of the servient, if it was a defined right of way. the effect
would depend on the question whether the whole of the way was included
or not11. The acquisition of an undivided share in either, by the owner of
the other, did not, it seems, affect the servitude12.

It ended by the destruction of either praedium, or by such an altera-
tion of the conditions of the servient that there could be no servitude

1 C. 8. 10. 12. 1, 4. 2 39. 3. 1. 23. 3 8. 5. 10. Rabel suggests that the rule

may apply only to aquaeductus, but this seems arbitrary. 4 C. 3. 34. 2. 5 Girard,
Manuel, 384. See also Partsch, Longi temporis praescriptio, 96. 6 8. 5. 10. pr. ; 39. 3.
1. 23. 7 Arg. G. 2. 30. A rustic servitude might no doubt be released by remancipatio.

8 8. 2. 21; 8. 3. 20. Before him it would have given an exceptio pacti conventi.

9 8. 1. 18; 8. 4. 9; 21. 1. 31. 3; 23. 5. 7. 1; 30. 116. 4. 10 8. 2. 30. 1; 8. 6. 15, or the
acquisition of a usufruct. 11 See 8. 6. 6. 12 Ib. and 8. 3. 31. The point is however
disputed.

vi] PRAEDIAL SERVITUDES 267

on it, or by the disappearance of the subject of the servitude1. Thus
aquaehaustus ceased if the stream permanently dried up2. But in this
case, if the original state of things was restored before expiry of the
period of non-use, the right revived3.

It was lost by non-use for two years before Justinian, ten or twenty
under him4. For rustic servitudes, mere abstention from exercise of the
servitude was enough, but for urban there must also have been something
done (by the servient owner5) inconsistent with the servitude6. In
purely negative servitudes there was in fact no non-use till something
inconsistent was done. A right to light was not lost by not looking out
of window. This is the main illustration of the point that for some
purposes, and for some jurists, negative and urban meant the same
thing. It is difficult to reconcile this with the view already mentioned
that any servitude might, in appropriate circumstances, be rustic or
urban7. The distinction, between those lost by non-use and those lost
only by a contrary act, was expressed by the proposition that the
former were lost by non-use, the latter by usucapio libertatis. This last
name looks at the matter from the point of view of the servient tene-
ment: a right detached had returned, a burden had been released8. As
it was a case of usucapio, it had the characteristics of usucapio. Thus if
the owrner of the servient land ceased to possess it, time ceased to run in
his favour9. Bona fides was not needed, not having been an original
element in usucapio10, but, if the adverse act was done precario, time
did not run against the holder of the servitude11. The rule as to possession
had no application to the case of non-use. It is a singular result of the
rules as stated that a ius tigni immittendi was not lost by removing the
beam. Time did not run till the servient owner plugged the hole in which
it rested12. The same was no doubt true of the other similar
servitudes.

XCV. PERSONAL SERVITUDES. These were servitudes belonging to a
man personally, not as owner of anything else, applying to moveables
as well as land, limited in duration, few in number, and giving indefinite
rights, including physical possession of the property subject to the
servitude'. They were usufruct and two or three others derived from it.
They did not originate in the needs of agricultural life, but in the much
more advanced idea of provision for dependents, and the introduction
of usufruct, the earliest, was probably associated with prevalence of

1 E.g. 7. 4. 24. 2 8. 3. 35. 3 8. 6. 14. Imperial relief if too late, 8. 3. 35. This

seems to be the practical effect of the texts. 4 P. 1. 17. 1; C. 3. 34. 13. 5 So the

texts say, but if done by a third party the effect would presumably be the same. If
by the dominant it would presumably be abandonment. 6 8. 2. 6; h. t. 32. 7 Ante,
§ xcin. 8 P. 1. 17. 1; D. 8. 2. 6; 8. 6. 18. 2, etc. 9 8. 2. 32. 1. 10 Ante, § LXXXVII.
11 8. 2. 32. pr. 12 8. 2. 6.

268 USUFRUCT [CH.

marriage without manus. It was well recognised in the time of Cicero1
and even earlier2, but is not to be found in Plautus3: the others seem
to be later. Much later than the introduction of these rights was their
recognition as a class of servitudes. No legal text independent of
Justinian calls them servitudes. Gaius sharply distinguishes them4, and
Justinian in the Institutes, following him, does the same5. So do the
rubrics in the Digest6. The expression personal servitude is rare7, and
usufruct is called a servitude only about six times8, and most of these
texts are under suspicion of interpolation. It is therefore possible that
the conception of usufruct as a servitude is due to Justinian 9. But the
texts which use the notion seem to be all from late jurists and it may be
that the idea appeared late in the classical age. In any case the remedies
for usufruct were the same in character. It was a ius and was claimed
by actio confessoria10.

Usufructus was the right to enjoy the property of another and to take
the fruits, but not to destroy itu. or fundamentally alter its character12.
It was usually for life, never more, and, sometimes, for a fixed term13.
Where it was given to a corporation its limit under Justinian was 100
years14. Even if a term was fixed, death of the holder ended it15.

The fruits were the ordinary organic produce of the thing and did
not include accidental acquisitions through it. The young of animals
were fruits but, by an exception set down to respect for human dignity,
the children of ancillae were not16. An insula nata was not fructus and
the fructuary had not even a usufruct in it17. As to what were fruits,
something depended on the nature of the estate. Trees were not ordinarily
fruits, but they were in a "timber estate" where timber was the normal
source of profit. The same was true of minerals, but new mines might be
opened up, if this did not alter the character of the property18. The
fructuary's right to rents, etc., the so-called fructus civiles, has already
been considered19. He had the use of all tools, accessories, etc.20. He
might improve the property, provided he did not alter its character21, but

1 Top. 3. 15; pro Caec. 1. 19, etc. 2 Cicero, de fin. 1. 4. 12. 3 For various

opinions as to its antiquity, see Costa, Storia, 264. 4 G. 2. 14; see G. Ep. 2. 1. 3.

5 Inst. 2. 2. 3. 6 D. 7 and 8. 7 8. 1. 1; 34. 3. 8. 3. See also, 8. 1. 15. pr. 8 See
Longo, Bull. 11. 281. The fragment supposed to be of the Regulae of Pomponius (Coll.
Lib. iur. 2. 148; Girard, Textes, 220) uses servitus generally in a way which clearly excludes
usufruct. 9 See Girard, Manuel, 363. 10 Post, § ccxxvm. D. 7. 6. 5. 6. Vat. Fr. 47,
55, 56, etc., shew that at least the affinity with servitudes was recognised. 11 7. 1. 1.
12 P. 3. 6. 21. 13 7. 14. 3. pr. 3. 14 7. 1. 56. 15 Arg. 7. 4. 3. pr., 3; 7. 1. 51.
16 5. 3. 27. pr.; P. 3. 6. 19; D. 22. 1. 28. 17 7. 1. 9. 4. Alluvio is not fructus, but the

usufruct applies to it. P. 3. 6. 22. The difference is a question of probable intent. As
to acquisitions through slaves, post, § xcix. As to lambs in a flock, summissio, ante
§ LXXXI. 18 7. 1. 9. 2, 13. 5, 13. 6. He must maintain woods and nursery gardens, 7.
1. 9. 6, 10. 19 Ante, § LXXXI. 20 7. 1. 9. 7, 15. 6. 21 7. 1. 13. 7.

vi] USUFRUCT 269

he might not remove what he had erected1. He must keep the premises
in repair2: he must cultivate the land and keep it in proper heart and
condition3. As he took the profits he must pay the outgoings4. All
these and similar requirements were summed up in the proposition that
he must deal with the land as a bonus paterfamilias wrould. The praetor's
edict required him to give security for this and for return on expiration of
the right5, a rule first established for the case of legacy, always the
commonest type, but later applied to all cases6. It is disputed whether
the obligations as specific duties of a fructuary were themselves created
by the praetor, or existed at civil law and were merely better protected
by him7.

Usufruct was inalienable, but the effect of an attempted cessio in
iure by the fructuary to a third party was disputed. On one view it
was an admission that he had no right : it worked a forfeiture and the
right lapsed to the dominus. On the other it was a nullity8. But
though the right itself could not be transferred, there was no objec-
tion, in classical or later law, to letting or selling the actual enjoyment,
the position and responsibilities of the usufructuary9 being, however,
retained.

Usufruct being, at least in appearance, limited ownership, there was
room for differences of theory as to the true conception of its relation
to dominium. The question was discussed whether it was a separate right,
contrasted with ownership, or a fraction of ownership — a pars dominii.
The point was of practical importance and was not always decided in
the same way. A pact not to sue for an estate could be used in defence
to a claim for the usufruct, as usufruct was pars dominii10. If an estate
Avas due to me on contract and I released a claim to the usufruct this
was a nullity as usufruct was not a part11. To some extent the divergence
merely shews that words are being used in different senses. To say that
it is pars dominii is to say that it is a group of rights which, \vith others,
make up the bundle of rights constituting dominium. To say that it is
not a pars dominii means that dominium is none the less dominium
because rights are cut out of it. But there are real conflicts. Julian says
that one who stipulated for land and then for a usufruct in it, or vice
versa, was like one who stipulated for a whole and then for a part or

1 7. 1. 15. pr. 2 7. 1. 7. 2. But need not rebuild old buildings which fall. For

repairs he may use materials from the estate, 7. 1. 12. pr. 3 7. 1. 13. 2. As to his right
to punish slaves, Vat. Fr. 72. 4 7. 1. 7. 2. 5 P. 3. 6. 27; D. 7. 9. 1. pr. 6 7. 9.

1.2. 7 Praetorian origin. Girard, Manuel, 376; civil origin, Karlowa, R.Rg. 2. 539.

The distinction is less important than it might appear. Doing what he was not entitled
to do with the property would usually be a delict. See Girard, loc. tit. 8 See ante,

§ LXXXIV. 9 7. 1. 12. 2; Vat. Fr. 41. 10 2. 14. 27. 8. 11 46. 4. 13. 2. For the

principal texts, see Roby, De usufructu, 42.

270 USUFRUCT [CH.

vice versa, and holds the stipulatio for the usufruct to be void1. Ulpian
says that one who, having stipulated for land, gave a release of the claim
to usufruct produced no effect since the usufruct was not a part2.
Julian could hardly have so held. If the stipulation for the usufruct
was void because the usufruct was a part, the release must have been
good for the same reason3.

Usufruct being an incorporeal ius in rem could not be possessed. In

later law the notion of quasi-possession was applied to it4. There was no

.special interdict for protection of enjoyment as there was in the cases

of rights of way and water, but we are told that the interdict uti possi-

detis was available with the necessary modifications5.

Unlike praedial servitudes, usufruct was divisible6 (though the other
personal servitudes were not), a rule with important results. There could
be common ownership of a usufruct. A usufruct might be granted in an
undivided share of property7. It might fail pro partes. Where several
held a usufruct in common there might be ius accrescendi, but not where
two held each a usufruct of half by independent gifts 9. This ius accre-
scendi was subject to special rules based on the proposition that in usu-
fruct accrual was to the person, not to the portio10.

As one of the obligations of the usufructuary was to return the thing
in good condition, it follows that there was no usufruct of perishables11.
The earliest usufructs were commonly over all a man's goods, which
would usually include perishables, but as to these the gift seems to have
been void12 till early in the Empire, when a senatusconsult13 provided
that, where a usufruct created by will covered such things, they should
belong absolutely to the legatee, who must give security for return of
their value at the expiry of the usufruct14. Usufruct of money could be
so left and by the end of the first century there might be quasi-usufruct
even in a ius in personam. It was possible to leave a life interest in a
debt due to the testator, to the debtor or to a third person, in effect, a
loan for life of the money without interest15.

1 45. 1. 58. 2 46. 4. 13. 2. 3 Paul says a pact not to sue for land bars action
for usufruct, and his comparisons shew that for him it is a part. 2. 14. 27. 8. 4 Ante,
§ xciv. In classical law fructuary was "in possessione," cf. 41. 2. 12. pr. 5 43. 17. 4;
Vat. Fr. 90, 91; G. 4. 139. 6 7. 1. 50. 7 Ulp. 24. 26. 8 7. 1. 49, 50; 7. 4. 14; Elvers,
Servitutenkhre, 542. 9 For accrual there must be a joint gift. A legacy of usufruct

had many special rules, post, § cxxrn. 10 See 7. 2 passim; 7. 3. 1; 7. 4. 18; 33. 2. 13;

45. 3. 26; Vat. Fr. 75 sqq., and post, § cxxm. 11 Ulp. 24. 26. 12 Arg. Cicero,

Top. 3. 17. The text is however consistent with a right in the legatee to detain, e.g. the
contents of a cellar of wine, though not to consume them. 13 Ulp. 24. 27. 14 Inst.
2. 4. 2; D. 7. 5 passim. 15 7. 5. 3. In the first case it is a defence: in the second the
heres must authorise the legatee to claim the debt or interest; procuratio in rem suam.
It is only because these are in wills that they are thought of as quasi-usufruct. If I make
a pact that I will not sue my debtor for interest or till his death, no one would call this a

vi] USUFRUCT 271

XCVI. Originally usufruct was always by legacy, and this remained
much the most usual mode, but, subject to some limitations, the methods
for urban servitude were applicable. It could not be acquired by
acquisition of the praedium to which it was attached, for it was not so
attached. Longi temporis praescriptio was applicable to it under Justin-
ian1, and he is clearly regulating an existing institution. But we have
no earlier evidence2, and we do not know whether, like praescriptio for
ownership, it required bona fides and iusta causa, or, like praedial
servitudes, was free from these requirements3. There were also cases in
which usufruct arose by law without express creation, e.g. the usufruct
of the paterfamilias, in later law, in bona adventitia*, the usufruct of the
emancipating father under Justinian5, and various cases in late law in
connexion with second marriages6.

It ended by cessio in iure to the owner7, but not, though some lawyers
disagreed, by attempted cessio to a third person8. In later law any
voluntary release sufficed. It ended if the two interests came together
in the same hands, here called consolidatio9, not as in praedial servi-
tudes, confusio. It ended by death or capitis deminutio of the holder,
limited by Justinian to maxima or media10, and by the expiry of time,
where it was for a fixed period11. It was lost by non-use for the period
of usucapio12. It was of course lost if the title of the owner who created
it was invalidated in any way13. And, finally, it ended if the property
was fundamentally altered14. On non-use and capitis deminutio, there is
something to be said. It is sometimes said that for loss by non-use the
owner must have been in possession, at least under Justinian, but the
evidence is on the whole against this15. But non-use is not here quite a
simple idea. If a third party had taken profit or done any act in relation
to the thing, in the fructuary's name, this was use even though it was
not authorised by him16. If the enjoyment of the right had been sold

quasi-usufruct, though the effect is the same. There is of course no question of actio con-
fessoria, or care of bonus paterfamilias.

1 C. 7. 33. 12. 4. 2 The history is probably as in praedial servitudes. 3 Ante,

§ xciv. Did usucapio apply to it in classical law? See Beseler, Beitrdge, 3. 171, 4. 78.
4 C. Th. 8. 18. 1 =C. 6. 60. 1, see post, § xcix. 5 Inst. 2. 9. 2; post, § xcix. 6 E.g.
C. 6. 61. 4. 7 P. 3. 6. 28 sqq. 8 G. 2. 30; Inst. 2. 4. 3; D. 2. 3. 3. 66. 9 P. 3. 6.
28; Vat. Fr. 83; D. 7. 2. 3. 2; h. t. 6. pr. (In 7. 4. 27 the word confusa is used.) The
difference of terminology suggests that when it was framed, usufruct was not thought of
as a servitude. 10 Vat. Fr. 61, 62; C. 3. 33. 16. 2. 11 7. 4. 3; Vat. Fr. 52, by lapse
of 100 years if to a corporate body, 7. 1. 56. 12 P. 3. 6. 30; under Justinian only by

such lapse of time as would bar a claim to dominium; C. 3. 33. 16. 1. 13 35. 1. 105.

14 P. 3. 6. 28 sqq. Where land was in usufruct and the dominus built a house on it, the
usufruct ended, but he was liable to the fructuary, 7. 4. 5. 3; h. t. 10. 15 It is suggested
by the term of two years, which hints at usucapio libertatis. But that notion does not
seem to be applied: it is always non-use. See n. 12 and D. 7. 4. 25; C. 3. 34. 13; Inst. 2.
4. 3. But C. 3. 33. 16. 1 suggests the other view. 16 7. 1. 12. 2 sqq.; 7. 4. 29.

272 US US [en.

for cash it was now impossible for it to be lost by non-use1. Destruction
by capitis deminutio, especially minima, caused much inconvenience,
and the lawyers found ways of evading it. One method was to give the
usufruct with a provision for another gift to take effect if the first failed
by capitis deminutio, and so on whenever it should happen2. Another
was, since usufruct could be for a term, to give it "in singulos annos," i.e.
a new one for each year, so that the deminutio would affect only the
current year3. Traces of these safeguards appear in the Digest4, but
capitis deminutio minima no longer affected usufruct.

Usufruct could be acquired through a slave or afiliusfamilias: if inter
vivos, there were in classical law no special rules, but if by legacy,
though it was of course acquired by the paterfamilias and failed on his
death, it failed also on the death, sale or manumission of the slave, death
or capitis minutio of the filius*. This special rule is laid down only for
legatum per vindicationem6 : it would not cover legatum per damnatio-
nem or fideicommissum, as these were completed inter vivos. The rule
was gone under Justinian, but he provided that a usufruct acquired
through a filius who survived the father, should go to the son till his
death7. These rules are applications of the principle of which there are
many other traces, that, in gifts by wTill to a subordinate, his personality
was primarily considered though the gift went to the paterfamilias*.

Usus was essentially a fraction of usufruct. The rules as to modes of
acquisition, destruction, security and remedies were the same, but the
rights were less. It seems to have been of recent introduction in the time
of Labeo9. It was looked at as usufruct without fructus. There could be
no right of fructus without usus, so that, if usus was left to one and
fructus to another, the latter shared the usus and had the fructus10. It
was indivisible, so that it could not be created in undivided shares, or fail
pro parte11. Its main rules express the principle that the right was to
use, but not to take fruits, relaxed in various ways, starting from the
proposition that there are things of which there is no use but by taking
fruits. The usuary of a house might live in it, with his household and
guests, but might not sell or let it, as this was in the nature of taking

1 7. 1. 12. 2. 2 Vat. Fr. 64. 3 Vat. Fr. 63. This led to very puzzling questions
of accrual where there were joint fructuaries. Post, § cxxm. 4 7. 4. 1. 3; h. t. 3. pr.

( =Vat. Fr. 63); 33. 2. 23. 5 Vat. Fr. 57. 6 Post, § cxvii. 7 C. 3. 33. 17. At this
time the paterfamilias had the usufruct in what the son acquired from outside, post. § xcix.
8 31. 82. 2. In all legacy of usufruct, whether to a paterfamilias or subordinate, dies
cedit only on entry of the heres (post, § oxx), so that if the actual donee is then dead the
gift fails. 9 Its content was still matter of controversy. See 7. 8. '2; h. t. 4. 1.

Q. Mucius is mentioned: he "primus admisit" a certain rule. 10 P. 3. 6. 24, 25; D.
7. 8. 14. 2. But see as to fructus without usus, Accarias, Precis, 1. 693. 11 7. 8. 19.

It is difficult to reconcile the rule that usus cannot be created pro parte indivisa with that
stated in the texts cited n. 10.

vi] USUFRUCT AND US US 273

fruits, but from early times he might take paying guests, provided he
did not himself vacate the house1. Of the produce of an estate he might
sell nothing. At first he could take nothing, but this was gradually
relaxed2, and the rule of the Digest was that he could take produce for
the needs of his household but no more3. Usus seems commonly to
have been created by legacy4.

The rights of usufructuary or usuary were not necessarily so wide as
those stated: they might be limited by the instrument of creation5. If
the right were very limited it might not be easy to say whether it was a
personal servitude, extinguished by the death of the holder, or, if it
was given to the owner of an adjoining praedium, a praedial servitude,
extinguishable only ope exceptionis (doli)6. There is a group of texts all
dealing with gifts by will which contemplate rights of this kind. Paul
says there cannot be usus or usufruct of a praedial servitude, and adds
that such a legacy will give an action to the legatee to compel the heres
either to allow the enjoyment, which makes it a mere ius in personam,
or to create the servitude, with security for surrender at death, making
it a praedial servitude7. The first method is probably what is con-
templated in another text of his, in which he says that where a man left
the use of wrater to his brother, by name, this was personal and would
not go to his heir8. This is probably the meaning of Papinian, who says
that rights of pasture and watering were prima facie praedial, but if
the beneficiary was named personally, they would not go to a heres or
buyer9. If Paul is correct, Papinian cannot mean that it was usus of
pasture or watering, nor is it easy to regard it as a very limited usu^s of
the land. It was presumably a mere ius in personam. A text of Pom-
ponius cites Proculus as saying that a building may be left in usufruct
with a servitus ne altius tollatur imposed on it, for the benefit of another
property in the heredita-s10. Elvers offers much the same explanation
of this11, but the text makes it an actual servitude, and, apparently, over
res sua12. Ulpian carries the matter further in a text which is self-contra-
dictory, but is usually understood to mean that a fideicommissum may
be made of a right to water, to one who has no praedium dominans, and
that this will be a servitude13, which must therefore be usus of a right
of water. But the latter part of the text is supposed to be a gloss : if
that is so, Ulpian makes it only a ius in personam1*.

\ 7. 8. 2 sqq.; h. t. 8; 10. 3. 10. 1. 2 7. 8. 12. 2. 3 7. 8. 12; h. t. 15. We are

told in an interpolated text (7. 8. 12. 1) that one could take the fruits of a villa of which
he had ILSUS for supply of his house in town. 4 All the instances are, but it need not

be. 7. 8. 1. 5 7. 1. 15. 6. 6 Ante, § xcm. 7 33. 2. 1. 8 8. 3. 37.

9 8. 3. 4. 10 7. 1. 19. pr. 11 Serritutenlehre, 704. 12 Roby, de usufrurtu,

144, is inclined to accept Elvers' view. The transaction is plain and rational: it is only
the word servitus which makes difficulty. 13 34. 1. 14. 3. 14 In 43. 20. 1. 43, Ulpian
B. B. L. 18

274 HABITATIO: OPERAE SERVORUM [en.

Habitatio was a modification of usus of a house or lodging, probably
only temporary at first, and given with no intention to create a ius in
rem, as where habitatio was given to a liberties by his patron's will. It
dates from the republic: there was an old question whether it was for
a year or for life1. It was gradually differentiated from usus and it may
be that its recognition as a distinct servitude was due to Justinian. It
could apparently be created only by will or codicil2, and had more
liberal rules, based on presumed intent of the testator. It was for life3.
It was not lost by non-use or capitis minutio*. Justinian provided that
the right might be let, but not sold or given away5. It is not clear how
these rather unreasonable distinctions can be inferred, as the testator's
intentions, from his saying habitatio rather than usus6.

Operae servorum vel animalium had the same relation to usus of
these as habitatio had to usus of a house. But there was a special reason
why the right was not lost by capitis deminutio, or non-use7. An opera
is a "daywork," and such a legacy can be regarded as a series of legacies
of dayworks8. Thus these events would affect only the current day. The
text tells us that it did not fail by death of legatee, as it was not usufruct,
the later legacies being thus ex die. The whole interpretation is one of
intent. The text adds 9 that it was destroyed by usucapio of the slave (or
animal10).

XCVII. Of three rights usually treated as an appendix to the law of
servitudes, pignus will be considered under the law of contract. It was
logically a ius in rem, as it gave possessory rights, but the Romans did
not so treat possession and the texts point out the importance of keeping-
distinct the notions of possession and property11. The others are emphy-
teusis and superficies. They resembled servitudes, as they were rights in
rem over property of another, analogous to personal servitudes, but they
differed in that while of unlimited duration, like praedial servitudes,
they gave indefinite rights like personal servitudes. But the real reason
why they were not treated as servitudes is probably that they belonged
only to late law: they were not known to the civil law.

discusses a grant, by the Emperor, of right of water. It may be, he says, to a praedium or
a person : in the latter case it dies with him. But such a grant is not a servitude.

1 7. 8. 10. 3. 2 Justinian says (Inst. 2. 5. 5): "si habitatio legata she aliquoalio modo
constituta est," which may refer tofideicommissum or the divisory actions. 3 Vat. Fr. 43.
4 7. 8. 10. pr. 5 Inst. 2. 5. 5; D. 7. 8. 10. pr. 6 The classics were doubtful about

these distinctions; Inst. 2. 5. 5; D. 7. 8. 10; C. 3. 33. 13. 7 33. 2. 2. 8 Ante, § xxxn;
post, § CLX. 9 A rule which probably applies, mutatis mutandis, to habitatio of a house.
10 As to the remedies in connexion with servitudes, by action and interdict, post,
§§ ccxxvm, ccxLvm. 11 41. 2. 12. 1, "nihil commune habet proprieias cum posses-
sione"; 41. 2. 52. pr., "nee possessio ac proprietas misceri debent"; 43. 17. 1. 2, "separata
esse debet possessio a proprietate." Ihering (Grund d. Besitzessch. § vi) discusses these texts
from the point of view of his theory of possession.

vi] EMPHYTEUSIS: SUPERFICIES 275

Emphyteusis originated in ager vectigalis, which, in the early Empire,
meant land of the State or a city granted either in perpetuity or for a
long term at a rent fixed in kind. It was thought of as locatio, but,
before Hadrian, its long duration caused it to acquire the characteristics
of a praetorian ius in rem, very like ownership, transferable by traditio,
and protected by interdicts and actiones fictitiae. In the fcrurth century
the name emphyteusis was applied to grants of imperial domains for long
terms on like conditions. In the fifth century these institutions were
fused and by its end the method was adopted by private owners. Zeno
found it necessary to settle a dispute by deciding that it was not locatio
or emptio but a contract sui generis1. Justinian settled its rules, largely
by interpolations.

It could be created by any form of agreement (followed by entry),
or by will. The holder (emphyteuta) might deal freely with the land pro-
vided it could be returned unimpaired if the interest ended. An existing
emphyteusis could be left by will or sold, subject in Justinian's time to
a right of pre-emption in the dominus, and a fine or premium of 2 per
cent, on the price, if the option was not exercised2. It might end by
agreement, lapse of term, destruction of the land, death of holder, with-
out successors, and forfeiture, which might be for irretrievable damage,
non-payment of rent for (usually) three years, or failure for the same
period to pay the taxes3.

Superficies originated in building leases by the State and cities. In
the Empire it was not always locatio: it might arise by emptio or even
donatio mortis causa. Before Hadrian it had come to be granted by
private persons4 and there were edictal remedies, in rem. Besides giving
an interdict de superficiebus5, the Edict provided that the praetor would
give any action which might be necessary6, but, at least in later law,
such an action was not available unless the right was perpetual7. Else-
where we hear of other special actiones utiles, hypothecaria, confessoria,
communi dividundos: in fact all the ordinary relations could arise in
connexion with these interests and would give the appropriate remedy
in utilis form. No surviving classical text refers to a case between private
parties9. It seems to have undergone little change in later law10.

XCVIII. The Institutes close the discussion of dominium and
servitudes with a statement of cases in which the maxim "dat qui habet "

1 C. 4. 66. 1. 2 H. t. 3. 3 The chief legal sources on this topic are C. 4. 66;
C. 5. 17. 13; C. 11. 63. 1; C. Th. 5. 15; D. 27. 9. 3. 4; Inst. 3. 24. 3. See Girard, Manuel,
392 sqq.; Costa, Storia, 281. 4 The provisions of the Edict shew this. 5 Lenel,

E.P. 459; D. 43. 18. 6 43. 18. 1. pr. Lenel thinks this an actio in fact um. 7 43.

18. 1. 3. 8 Lenel, op. cit. 460. 9 Vat. Fr. 61 is apparently a public case.

10 Doubts have, however, been thrown on the classicality of other than purely con-
tractual effects. See, e.y., Beseler, Beitrdye, 1. 100; 2. 99; 3. 169.

18—2

276 ALIENATION BY NON-OWNER [CH.

did not hold, cases in which an owner could not alienate and cases in
which a non-owner could. The chief cases in which an owner could not
alienate were the following:

(a) A husband, though technically owner, could not alienate dotal
land1.

(b) Pupilli, women in tutela, as to res mancipi, furiosi and prodigi
inter dicti, could not alienate2.

(c) Persons who were owners for the time being, but in such circum-
stances that their right might determine by operation of law (e.g. a
heres where a res was the subject of a conditional legacy, or the owner
of a statuliber), could alienate only subject to the rule that any right
created by them would determine by the legal determination of their
ownership3. But a mere restitutio in integrum would not end an owner-
ship which had become vested in persons not parties to it4.

(d) Res litigiosae. Property the subject of litigation was under
special rules to be considered in connexion with the law of actions5.

(e) It was not in general possible to convey property to a man on the
terms that it should not be alienable. Such an arrangement would be
a mere contract and would not nullify an alienation6. But in the Empire
there was legislation on the matter, affecting fideicommissa, associated
with a considerable development of family settlements by will, which
will be considered later7. And Justinian made any prohibition on
alienation in a will or by agreement operative to annul transfers8.

The chief cases in which a non-owner could alienate were these :

(a) Guardians of various types had powers of alienation, differing
in different cases, already considered9. In general this must be by lure
gentium modes, but curator furiosi could alienate by mancipatio10.

(b) Filiifamilias could alienate for the paterfamilias if authorised11,
but not by cessio in iure, as they could not take part in a legis actio12.

(c) Slaves, duly authorised, could alienate for their owners, but not
by cessio in iure or adiudicatio, as they could take no part in legal pro-
ceedings13. Similarly a slave in usufruct could alienate for his holder14.

(d) A pledgee could alienate the res if the debt was not paid, when
due, at first only where an express agreement to that effect had been
made (but even where the debtor revoked his authority15), but later as
an implied incident of the transaction16. It could not be by a civil law

1 Ante, § XL. 2 Ante, §§ LVI, LX, LXI, LXII. 3 Ante, §§ xxvn, Lxvrn. 4 Post,
§ ccxiiv. 5 Post, § CCXLTV. 6 Exception (ante, § Lxvm) in case of slavery.

7 Post, §§ cxxv, cxxvn. 8 C. 4. 51. 7. 9 See n. 2. 10 See Mitteis, R.Pr. 1. 208,
who considers also the case of other guardians. 11 See e.g. 6. 1. 41. 1. 12 Schol.

Sin. xvm (49); see G. 2. 96. 13 50. 17. 107. 14 7. 1. 25. 1.; 24. 1. 3. 8. Mitteis

holds that a slave could not alienate by mancipatio. Ante, § LXXXV. 15 G. 2. 64.

16 I'O. 5. 4. Details and restrictions, post, § CLXVI.

vi] REPRESENTATION IN ACQUISITION 277

method. The agreed power of sale appeared early1, the implied power may
be a transfer from mancipatiocumfiducia, in which the creditor was owner.

(e) Alienation by a third party agent. Possession was lost even if a
third party handed over the thing. It is therefore held by many authori-
ties that even in the republic, if the necessary intents existed, a third
party could alienate for the owner2. This is logical, but it means less
than might appear. If the owner intended to transfer ownership to X
and told me to deliver it, the ownership would pass, but I was a mere
nuntius. The difficult case would be where the authorisation was, e.g.,
to sell to whom the agent liked, on what terms he liked, subject to
liability for a careless bargain. It does not seem likely that if there had
been such a possibility and practice as is supposed, Gaius wrould have
spoken of alienation by procurator (i.e. general agent) as one of the few
cases3. It is clear that in later classical law a man with general authority
could alienate, and sale4 and delivery within a mandate transferred
ownership5. But there seems little evidence of an earlier development
than in case of acquisition.

XCIX. The cases in which a man acquired through the act of another
were these :

(a) Free persons not in his possession. The gradual development of
the rule that possession could be acquired by the act of an extraneus has
already been considered6, and it seems clear that, in the later classical
law, ownership would be acquired if the necessary intents were present.
No classical texts mention such a rule, though they speak of possession7.
But Diocletian speaks of it as an existing institution8, and it is of course
clear for later law9. Delivery at the buyer's request to a third person
is not however acquisition through him. It does not appear how far,
under a general authorisation to acquire, there would be acquisition
through & procurator, by occupatio or the analogous iure naturali modes.
Servitudes could not be acquired through a procurator in classical law,
since the modes of acquisition were primarily civil. As to the informal
methods, quasi traditio and praescriptio would presumably be possible,
but even if pact and stipulation gave the right10, it would not be avail-
able, for there was no agency in contract11.

1 20. 1. 35. 2 See e.g. Mitteis, R.Pr. 1. 213. 3 G. 2. 64. 4 41. 1. 9. 4; Inst.

2. 1. 42. 5 17. 1. 5. 3. This is Paul, who in Sent. 2. 15. 3 appears as saying that, even

though the mandate is not followed, the alienation is good. Though it is the earlier
authority it can hardly be correct. As our MS. is only the /. Romano, Wifigothorum, it
is likely that this is a fourth or fifth century addition. If I send a man to sell articles in the
street at a certain price with no power to give undertakings, and he so sells, the alien -
ation is not, properly speaking, by an agent, any more than it would be if the thing were
done, as it constantly now is, by a slot machine. 6 Ante, § Lxxin. 7 G. '2. 95; P.

5. 2. 2. 8 C. 7. 32. 8, " utilitatis causa." 9 Inst. 2. 9. 5. 10 Ante, § xciv.

11 Mitteis, R.Pr. 1. 213.

278 ACQUISITION THROUGH SLAVES [CH.

In acquisition by a representative, if the state of mind is material,
the question would arise whether the agent's or the principal's must be
considered. The texts are contradictory and are certainly to some
extent interpolated. The most probable view in an uncertain matter
seems to be that in classical law where the property passed directly,
even though the mandate was general, only the state of mind of the
principal (scientia, etc.) was material, but the compilers tend, incom-
pletely, to make the state of mind of principal and agent material1.

(b) Slaves possessed by their domini. What they acquired went to
the owner, but a slave, as he was incapable of taking part in a judicial
process, could not acquire by cessio in iure or adiudicatio2. He acquired
for the bonitary, not for a merely quiritary owner3. If owned in common
he acquired pro rota though it were in the affairs of one owner4, but if
expressly in the name of one owner this barred acquisition by an}*1 other5.
This was not representation, for it operated invito domino6.

(c) Slaves in usufruct, the rules being in general the same for persons
bona fide possessed. They could acquire possession and ownership for
the fructuary7 subject to the limitation that it must be ex operis or ex re
fructuarii. and that what the holder did not acquire went to the owner8.
"Ex operis" covers only the case of a slave hiring out his services to a
third person9. The hire was acquired by the fructuary, ex operis. "Ex re"
is more important. It covers all property received in the affairs of the
holder, buying with his money, borrowing for a purpose of his estate10,
etc. Inheritances and legacies given to the slave did not concern the
fructuary. They were clearly not ex operis11, and though some texts
suggest that intent to benefit the holder made them ex re12, this was not
the view which prevailed13. Many texts say also that the fructuary

1 Schulz, Z.S.S. 33. 37; see also Debray, X.R.H. 1914, 396, reviewing Solazzi, Errore
e Rappresentanza. 2 G. 2. 96. 3 G. 2. 88. 4 G. 3. 167. (As to effect of

nominatio or iussum, see Buckland, Slavery, 392.) The matters will be adjusted in communi
dividundo. 5 41. 1. 37. 3; Inst. 3. 28. 3. Gifts to slave by one owner vest in the other
pro parte (45. 3. 7. 1) apart from nominatio. If one of common owners leaves the slave a
legacy, it is wholly valid for the other (33. 5. 11 ; 35. 2. 49. pr. As to reason see Buckland,
loc. cit.). The rule applies equally in classical law whether there is a manumission or not,
for that is void, P. 3. 6. 4. As to effect under Justinian, ante, § xc. 6 41. 1. 32.

7 G. 2. 86; Vat, Fr. 51. 8 G. 2. 91, 92; Ulp. 19. 21; P. 5. 7. 3; Vat. Fr. 71 b; Inst. 2.

9. 4. 9 Salkowski, Sklavenerwerb, 118. It has nothing to do with results of labour on
property of the holder. This belongs to holder but is not acquired through the slave. It
does not cover earnings where the fructuary made the contract. 10 E.g. 41. 1. 23. 3;
2. 14. 19; 46. 4. 11. pr. 11 41. 1. 19; 29. 2. 45. pr. 12 7. 1. 21; 29. 2. 45. 4; 41. 1. 19
(interp.). 13 G. 2. 92; Inst. 2. 9. 4; C. Th. 4. 8. 6. 6; D. 6. 1. 20; 28. 5. 60. pr.; 41. 1.

10. 3,4; h. t. 19; h. t. 54, etc. It is maintained by Herzen, Mel. Oirard, 1. 523 sqq.,
that the fructuary could not acquire such things, but that in the case of bona fide
possessor the expression "ex re" was differently construed, and that intent to benefit b.

f. p. made it ex re. But his definition of "ex re domini" in this case would make all

•hereditotes go to 6. /. p.

vil ACQUISITION THROUGH FILIIFAM1LIAS 279

could not acquire a donatio1, but several say that intention to benefit
the holder made it ex re2.

These rules were much modified where there was nominatio or iussum.
If there was nominatio of anyone, no other could acquire. If it was ex re
fructuarii, but nominatim domino, the owner acquired : he could acquire
anything3. In the converse case, i.e., ex re domini, but nominatim
fructuario, it was void : nominatio excluded the dominus, and it was not
ex re fructuarii, or ex operis*. If it was iussu domini, ex re fructuarii, the
dominus acquired5. If it was iussu fructuarii ex re domini, the dominus
acquired, since it was not ex re fructuarii or ex operis and iussum had
not the privative effect of nominatio*.

(d) For persons in manus or bondage the rule was as in case of slaves 7.

(e) It is commonly held, though the evidence is defective, that
guardians could acquire by traditio for their wards, from early times.

(/) In the case of the filiusfamilias8 there is a long history. In the
republic the position of a son in this matter was the same as that of a
slave. He could have a peculium, like a slave, but when, under Augustus,
a new kind of peculium appeared this old peculium was distinguished :
peculium profectitium is a convenient, though apparently unauthorised,
name. The new institution was the peculium castrense9, a fund
which consisted of what was given to the man for the purpose
of military service or had been acquired by him as a result of it10.
While the son lived, the father had no interest in itu. The son could
alienate it freely even by will (though, till Hadrian, he must, for this, be
still on service12, in which case a military will sufficed13). For the pro-
tection of it he had the rights of action of a paterfamilias1*. If he sur-
vived the father, he kept it. If he was emancipated or adopted, he took
it with him15. If he made a will of it, it was an inheritance, but if he did
not, and died in the family, it reverted to the father as peculium16.
Under Justinian, even if the son died intestate, his issue and his brothers
and sisters were preferred to the father17, and this was real succession,
the property being bona adventicia in their hands. If it went to the father,
it is not quite clear whether he took it as hereditas or as peculium, a
point of some practical importance18.

1 41. 1. 10. 3, 4. 2 41. 1. 19 (interp. passage); 7. 1. 22, 25; 41. 1. 49. The interpo-
lations shew that this was the rule of later law. 3 41. 1. 37. 5. 4 45. 3. 1. 1;
h. t. 22. 5 7. 1. 25. 3. 6 45. 3. 31. As to condictio for adjustment, 45. 3. 39.
Further texts and details, Buckland, Slavery, 349, 363. Where the slave made a purchase
the ownership might be in suspense till it was clear out of whose money it was paid for.
See Buckland, cit. for this and analogous cases of suspense. 7 G. 2. 86, 90; UIp. 19. 18.
8 As to peculiar rules in the case of dos of a filiafamilias, ante, § XL. 9 Its rules
were a gradual development. Fitting, Das peculium castrense. 1049.17.11. 11 14.
6.2. 12 Tnst. 2. 12. pr. 13 Inst, 2. 11. 3. 1449.17.4. 1549.17.12
16 49. 17. 2. 17 Inst. 2. 12. pr. 18 Post, § cxxxit-

280 ACQUISITION THROUGH FILHFAMILIAS [CH. vi

The peculium quasi castrense was an extension of the same idea,
beginning under Constantine1 and applied to earnings in certain public
services. It was extended from time to time to new posts and professions :
it is not certain that the rules were in all the cases identical, as the legisla-
tion is only imperfectly known2. The two funds were clearly similar and
the only known difference between these rules and those of peculium
castrense is that in general no will could be made of peculium quasi
castrense. In the privileged cases in which it was devisable the will
must be in ordinary form3. Under Justinian it was freely devisable in
this form4.

Bona materna. Bona adventitia. Constantine provided that what a
child inherited from its mother should belong to it, and not be merged
in the father's estate, though he had a usufruct5 of it. Successive Em-
perors extended this to other acquisitions6, and under Justinian the
rule was that all acquisitions of a child which were not from the father,
or under the preceding heads, were to belong to this class of bona ad-
ventitia7. While the son was in the family the father had the usufruct
with no power of alienation8, and the son had no special capacities in
regard to it as he had in castrense and quasi castrense9. He could make
no will of it : on his death it went to his father, at first no doubt as pecu-
lium, but, later, in some cases at least, as hereditas10. Justinian provided
that it should be an inheritance for his issue and brothers and sisters,
and, failing these, for his paternal ancestors11. If he was emancipated
(and probably if adopted) Constantine gave him two-thirds, the father
keeping the rest. Justinian gave the father the usufruct of half, all
going ultimately to the son12.

1 C. 12. 30. 1=C. Th. 6. 35. 15. Name not found till Justinian; see for full account
Fitting, op. cit. 388 sqq. 2 See the principal texts, Accarias, Precis, 1. 772. 3 Inst.
2. 11. 6. Consuls, praefecti legionum, praesides provinciarum and some others. C. 3. 28. 37.
1 a. Under Justinian this, like the soldier's will, was not subject to the querela inofficiosi
testamenti, h. t. 37. If. 4 Inst. 2. 11. 6. The father was not liable de peculio on contracts
connected with these funds, 49. 17. 18. 5. Post, § CLXXXIV. 5 C. 6. 60. 1 =C. Th. 8.

18. 1. 6 See C. Th. 8. 18 passim. 7 C. 6. 61. 6. In a few cases, the so-called

botm adventitia irregularia, it was provided that the father had no rights of enjoyment.
See Windscheid, Lehrb. § 517, nn. 17 sqq. 8 C. 6. 61. 4. pr.; h. t. 6. 2. 9 Nor

the father any exemption from actio de peculio. 10 Inst. 2. 12. pr. ; Nov. Theod. 14.

1. 8; C. 6. 61. 4; h. t. 7, which lays down elaborate rules as to what is to be done in case
of inheritance and legacy where one of them wishes to take it and the other does
not. 11 C. 6. 61. 6. 1 c. 12 C. 6. 61. 6. 3. See further, post, § cxxxin.

CHAPTER VII
ACQUISITION PER UNIVERSITATEM. SUCCESSION BY WILL

C. Nature of Will, p. 281; Forms of Will, 282; Early forms, ib. ; Testamentum per aes
et libram, ib.; CI. The Praetorian Will, 284; Later forms, 285; Special cases, 286; CII.
Testamenti factio, 287; Capacity of testation, ib. ; Capacity to have a will, but not to make,
288; CIII. Capacity to be instituted, 289; lus capiendi, 291; Capacity to witness, 292;
CIV. Institutio heredis, 293; ad certam rem, 294; dies, 295; condition, ib.; shares, 297;
CV. Substitutio Vulgaris, 298; Subs, pupillaris, 300; Subs, quasi pupittaris, 302; CVI.
Classification of heredes, ib.; necessarii, ib.; sui et necessarii, 303; CVII. Extranei, 304;
Hereditas iacens, ib.; CVIII. Capacity of heres extraneus, 307; Institutio of slaves, 308;
CIX. Entry, 309; Cretio, 310; Informal entry, 311; CX. Legal position of heres, 312;
Bonorum separatio, 314; Indicium familiae erciscundae, 315; Hereditatis petitio, ib.;
CXI. Lapsed shares, ib. ; Leges caducariae, 316; Transmissio hereditatis, 317; CXII.
Exheredatio, 318; Civil law rules, ib. ; postumi, 319; CXIII. Praetorian rules, 321; Collatio
bonorum, ib.; exheredatio in later law, 322; CXIV. Material restrictions on power of
devise, 323; minor cases, ib. ; Querela inofficiosi testamenti, 324; CXV. Effect of Querela.
327; System of the Novels, 328; Querela inofficiosi donationis, dotis, 329; CXVI. Causes
of failure of validly made Will, ib.

C. The will of Roman Law had for its primary purpose in historical
times1 the appointment of a heres or heredes, a successor or successors in
whom the rights and liabilities of the deceased should vest as a whole.
No doubt it might and usually did contain a number of other matters,
appointment of tutor es, legacies, fideicommissa, manumissions, directions
as to the application of particular funds, and so forth, but its essence
was the appointment of a heres: testamenta vim ex institutione heredis
accipiunt, et ob id velut caput et fundamentum intelligitur totius testamenti
heredis institutio2. How ancient this principle is we need not here con-
sider, but it represents the law for historical times. Two further pro-
positions almost equally fundamental are (i) semel heres, semper heres:
a person who has once assumed or been invested with the position of
heres cannot divest himself of it, a rule which, e.g., greatly affected the
construction of an institutio ad tempus, and (ii) nemo pro parte testatus:
a will must cover the whole estate : a man cannot deal with part of his
property, leaving the rest to pass on intestacy. These principles were in
full force at the beginning of the Empire though there has been con-
troversy as to their actual antiquity3. It should be added that to all

1 For discussion of the original priority of succession by will or on intestacy, Scialoja,
Dir. Ereditario, 45 sqq. For the view that the original conception on death was devolution
of a chieftaincy of the corporate family, Maine, Ancient Law, 182 sqq.; Scialoja, op. cit.
25 sqq. 2 G. 2. 229. 3 For very divergent views see Lenel, Essays in Legal History,
ed. Vinogradoff, 120 sqq. and Ehrlich, Zeits. f. verg. Rechtsw. 17, pp. 99 sqq. See also
Appleton, Le testament Romain, p. 57, n. 5, and literature there cited.

282 FORMS OF WILL [CH.

these principles practical needs led to the admission at various times of
real or apparent exceptions1, but they are in no case such as to create
any doubt whatever about the principles themselves2.

FORMS OF WILL. Gaius3 gives us a brief account of two ancient
forms of will obsolete long before the beginning of the Empire, and
therefore needing for present purposes no full discussion.

Testamentum in comitiis calatis*. The close connexion of the familia
with the religious law made the transfer of the rights and duties to a
successor a matter of public interest. Any variation of the established
order of succession was therefore subject to the supervision of the
public authority. The comitia curiata, the assembly of the people,
curiatim, met twice a year for this purpose, summoned by a lictor and
apparently presided over by a pontiff, being called when meeting in this
way, for this and some other purposes affecting religion (inauguratio of
the rex or a flamen, adrogatio, detestatio sacrorum), comitia calata5. The
will was presumably approved by the pontiffs before its submission to
the comitia. Whether the comitia actually voted on the proposed will
or merely gave its solemn attestation is much disputed6. The will was
obsolete very early: there is no trace of it as existing in historic
times7.

Testamentum in procinctu8. This was a will made before his comrades
by a soldier, when a campaign was under way and no sitting of the
comitia was imminent. Whether this was contemplated as an assembly,
the centuriata, analogous to the comitia (curiata) calata, as is rather sug-
gested by the language of Aulus Gellius, or was an informal declaration
before his immediate comrades is uncertain, the former being the more
probable view, as the auspices were necessary9. It seems to have lasted
into the seventh century10, but Cicero describes it as obsolete11, though
having coexisted with the mancipatory will12.

Testamentum per aes et libram. Of these earlier forms of will, one could

1 Post, § cxv. The rule that sui, other than sons, omitted, can come in and claim
by ius accrescendi (§ cxn) is sometimes regarded as an exception, Scialoja, Diritto
Ereditario, 55. 2 As to relief against acceptance, post, § cix; as to a will operating only
on part of the estate, post, § cxv; as to a will in which all the institutiones are invalid
but the other provisions remain, in the latest law, post, §cxv. 3 G. 2. 101. 4 G. loc.
oil.; Aul. Gell. 15. 27. 1-5; Ulp. 20. 2. 5 Aul. Gell. loc. cit. 6 All sorts of views

are held, that the comitia voted the will, that they merely witnessed it, that the XII
Tables substituted witnessing for voting, that it did this and also destroyed the control
of the pontiffs, and so forth. See Appleton, Le Testament Romain; Greiff, De Vorigine
du testament Romain, and for a very instructive discussion, Girard, Manuel, 813 sqq.
7 It has been doubted whether it dealt with the inheritance at all (Lenel, Essays in Legal
History, ed. Vinogradoff, 120 sqq.). In reply see Girard, loc. cit., and lit. there cited.
See also Buckland, Law Quarterly Review, 32. 97 sqq. 8 G. 2. 101; Aul. Gell. 15.

27. 3. 9 Cicero, de nat. de.orum, 2. 3. 9. 10 Veil. Paterc. 2. 5. 3. 11 Cicero.

loc. cit. 12 Cicero, de or. 1. 53. 228.

vii] MANCIPATORY WILL 283

be made only on two days in the year, and perhaps only by patricians,
the other only in wartime. The inconvenience was met by the device of
mancipatio familiae : the whole property was mancipated to a familiae
emptor who, according to Gains, was in loco heredis1. Whether this
means that he took the property, subject to any instructions, not at
first binding, or whether, as is sometimes held, he was never more than
a sort of trustee, is much disputed2. At this stage the transaction did
not closely resemble a will. It was no doubt oral, made only at the point
of death, open, irrevocable, and perhaps taking effect at once. But its
character gradually changed. It became usual to write down the in-
structions, thus securing secrecy; they became enforceable, and variable.
The final stage is that which Gaius speaks of as existing in his day3,
though it was of course much older4. The familiae emptor was now a
mere formality. The contents of the document were the true will : they
were no longer directions to be carried out by the familiae emptor, the
gifts took effect of their own force5. This was the important will of the
classical law, the testamentum per aes et libram. Gaius tells us that6
there were present the testator, the familiae emptor, the libripens and
not less than five witnesses (as for an ordinary mancipatio). The actual
document had been previously prepared. The familiae emptor took a
formal mancipatio in words which may be thus translated: "Let your
familia and pecunia be bought into my mandate and custody by this
copper" ("and scale" according to some authorities, says Gaius) "in
order that you may be able to make a will in accordance with the public
statute." He struck the scale with the copper and handed it over by
way of price. The testator holding the written will said: "As these pro-
visions are written in these tablets so do I give and bequeath and make
my will, and so do you Quirites bear me witness."

The mancipatio, as thus stated, differs from the ordinary form. It
does not contain the usual first member declaring the right, though
many editors, observing corruptions in the text, emend it so as to intro-
duce such a clause7. Again, what. is said to be bought or acquired is not
the property but the guardianship of it, and the declaration of the pur-
pose "in order that you may make your will" is quite unlike anything
in the ordinary form. The words "secundum legem publicam " are obscure

1 G. 2. 103, "heredis locum obtinebat." 2 See, for diverse views, Lenel, Essays,

cit., and Ehrlich, cit. 3 G. 2. 103 sqq. 4 It is the usual will in the time of Cicero,
de or. (cit.). 5 It is impossible to fix dates for this evolution. The most diverse views
are held. For Lambert, Fonction du droit civil compare', 1. 496, the true mancipatory
will dates from about 150 B.C. For Mommsen it seems to be much older (Staatsr. 3. 319,
n. 2; D.P.R. 6. 1. 364, n. 1). See Girard, Manuel, 819 sqq.; Lenel, Essays, cit. 134; Grieff,
Origine du testament, 101 sqq.; Appleton, Le Testament Romain, 103 sqq.; Cuq, Recherches
historiques sur le testament per aes et libram; N.R.H. 10. 533 sqq. 6 G. 2. 104. 7 See
Krueger, ad G. 2. 104 in Coll. librorum jurisp. antei.

284 PRAETORIAN WILL [CH.

but may mean that the power of testation was regarded as based on
the XII Tables. The nuncupatio by the testator was not regarded as a
part of the mancipatio1. This was a true will, not necessarily open, am-
bulatory, i.e. not operating in any way till the death, and capable if not
of revocation, simply, of variation in any degree.

In practice it seems to have been almost always in writing, but there
is no evidence that this ever became legally necessary, though it would
seem that the various praetorian remedies were not in classical law
available except where the will was written, a fact which would ensure
the use of writing2. It has however been contended that if there was a
writing in due form the actual mancipatio was no longer in use in the
time of Gaius3, and it is at least quite probable that in a somewhat
later age, the parties were content not to go behind the formal document
alleging the mancipatio : it is another thing to say that they were com-
pelled by law to accept this4.

Like other formal acts the will must be in Latin5, till 439 when it
was provided that it might be in Greek6.

CI. The praetorian will. This is spoken of by Gaius as a testamentum1 ,
though hardly in strictness entitled to that name. The praetor, recognis-
ing that the formality of the mancipatory will was useless, provided by
his edict that a will sealed by seven witnesses (i.e. having all the substan-
tial safeguard of the mancipatory will) should be operative to entitle the
heres under it to obtain bonorum possessio, if the testator died a civis sui
iuriss. It did not make a heres, for, even though the testator used this
form, what the beneficiary got was not hereditas but bonorum possessio.
Moreover it was not till late in the classical law that this became cum re,
i.e. effective against the heres entitled in the absence of a will9. And a
will might do many things other than the appointment of a heres, which,
so far as we know, this instrument could not do. There is no evidence
that a tutor could be appointed by it, though one so appointed would
probably be confirmed in his office by the praetor. There is no trace of
manumission by it10. It operated under certain edicts which, so far as
appears, dealt only with giving possession of property to persons who

1 Ulp. 20. 9. 2 In C. 6. 11. 2 (A.D. 242) we are told that bonorum possessio can

be claimed under a nuncupatio. But this, even if genuine (see next page), is post-classical.
3 Collinet, Et. Hist, du Droit de Just. 1. 257 sqq. But Ulpian a generation later treats the
mancipatio as necessary (Fitting, Alter und Folge, 117; Ulp. 20. 9). On this point see the
remarks, ante, pp. 238 sq. 4 Cf. the English law of Surrender in Copyhold. 5 Except
for miles, post, § cxxvi. 6 C. 6. 23. 21. 6. 7 G. 2. 119, 147, and, according to

Lenel, in the edict (E.P. 336). 8 G. 2. 147; Ulp. 23. 6; 28. 5, 6. The simplification

is not great; only the formal acts are dispensed with. 9 Post, § cxxxix ; G. 2. 120.

10 It probably would not make the slave tuitiom praetaris liber (ante, § xxvn). It is not
clear that a testator would be able to despoil his heres and not himself -without full form.
Cf. 15. 1. 53; 33. 8. 8. 7. The Fr. Dos. which deals with the matter mentions no case

vii] LATE FORMS OF WILL 285

could shew gifts to them in a document authenticated by seven witnesses.
It was not only in case of defect of form that the praetor's intervention
was important. Where the consent of tutor to a woman's will had not
been obtained bonorum possessio was given without it. Bonorum pos-
sessio could be obtained where a suus omissus died before the testator,
where the will was irritum by capitis deminutio or non-entry, or ruptum
by agnatio of a postumus or by the making of a valid second will which
failed to take effect or was revoked with intent to revive the first1,
and other cases2. The circumstances in which this was cum re will be
considered later3. It may be noted here however that the bonorum
possessor must carry out the provisions of the will4, and that if, being also
entitled on intestacy he neglected the will, he would come within the
provisions of the edict, "si qui omissa causa testamenti5." It will be ob-
served that this bonorum possessio, at least so far as it was cum re,
prevented the application of the //. caducariae. But the bonorum possessio
could not be claimed if the testator had not testamenti factio6 or, it
seems, if the words of the institutio were looser than those necessary
for a true heres 7.

Later forms of will. In 413 two public forms were provided, one
apud acta, i.e. entered on the rolls of a court, the other deposited in the
State archives8. There was no need of further attestation. Soon after
this there was obscure legislation authorising a civil will without manci-
patio familiae, but with seven, sometimes five, witnesses9. An enact-
ment of 439 definitely settled the law by introducing the tripartite will10,
so called as deriving its rules from three sources. It must be made in
one operation, uno contextu11, with seven witnesses, both civil law re-
quirements12. The witnesses must seal, which was praetorian. They and

in a will. Such texts as 29. 4. 6. 10, 12, 17, 28 prove nothing for the purely praetorian
will.

1 G. 2. 118 sqq.; 2. 147 sqq.; Inst. 2. 17. 6 sqq.; 3. 9. pr.; D. 28. 3. 12. pr.; 37. 11. 3;
h. t. 11. 2; Ulp. 23. 6. 2 If testator lost and regained capacity before death, G. 2. 147.
It could not be given under the will of a woman in legitima tutela, before Hadrian, Cic.
Top. 4. 18. 3 Post, § cxxxix. 4 28. 3. 12. pr., legacies and fideicommissa. 5 28. 3.
12. pr.; post, § cxxi. 6 G. 2. 147; Cicero, Ad fam. 7. 21; Top. 4. 18. 7 37. 11. 6;

post, § civ. B. p. secundum tabulas exists in the time of Cicero (Verr. 2. 1. 45. 117). Its
original aim seems to have been to give possession to the person entitled at civil law, its
reforming effect being a later product, Girard, Manuel, 809, and the literature there cited.
8 C. 6. 23. 19. 9 C. Th. 4. 4. 3, 7; Lex Rom. Burg. 45. 1. There is an enactment of

A.D. 242 which speaks of a will with seven witnesses as fully valid without mancipatio
familiae, but it has in all probability been altered. C. 6. 11. 2. 10 C. 6. 23. 21.

11 The documents may be prepared before, but the witnesses must do their part
on one day, nullo actu inter veniente. 12 Seven becomes the normal number of witnesses
for most transactions; repudium in divorce, 24. 2. 9; grants of civitas to soldiers, ante
Sxxxvi; Girard, Textes, 124; Brims, 1.275; in many cases even in mancipatio itself
ante, § LXXXV. See for further illustrations, Levy-Bruhl, Le Temoignage instmmentaire

286 SPECIAL FORMS OF WILL [CH.

the testator must " subscribere1," a new imperial requirement. This is the
important will of later law and after its introduction we hear little of the
praetorian will2.

There were under Justinian less important forms of general applica-
tion. The public wills survived, and there was an oral will with seven
witnesses, mentioned in an enactment of 242 A.D., which however has
probably been altered3. It existed in and before the time of Theodosius,
and survived under Justinian, but was probably used only in cases of
extreme urgency4.

There were also a number of special forms of will. Thus in time of
pestilence the witnesses need not be in the same room with a testator
suffering from contagious disease5. In remote districts, where ewes
were rare, five, or even fewer, witnesses would suffice6. There were pro-
visions by which blind men could dictate their wills before seven wit-
nesses and a tabularius or, having had it written out before, have it
read to them before the witnesses by a tabularius (an eighth witness
being used if no tabularius was procurable), acknowledge it and have
it duty sealed by the witnesses and the tabularius7. There were also
special provisions for deaf mutes and other cases8, and a great number
of special rules for soldiers' wills9.

There was a general holograph will the history of which is bound up
with that of informal wills in favour of issue. Constantine provided
in A.D. 321 that males could devise their estate among liberi by an un-
attested will, and in A.D. 327 that a mother's informal division among
her issue should be valid10. In 439 Theodosius II provided that such an
imperfect will was to be good only among liberi, which suggests that it
had been used in a wider field11. Justinian recites these provisions,
treating the extension to women as being due to Theodosius, Con-
stantine's provision having been for arrangements inter vivos, which were
to be binding on the death12. In 446 it was provided by Valentinian that
a holograph will, i.e. written entirely by the testator, was to be valid for
all pvirposes without witnesses 13. Justinian adopted the enactment of
Theodosius with some corrections in statement14, but not that of

148 sqq. In our case the seven are the five witnesses, the libripens and thefamiliae emptor
of the mancipatory will.

1 Subscriptio is the writing of the name by the seal, with (usually) the word "sw&-
scripsi." If the will was in the testator's own hand and so stated, he need not subscribere.
Justinian added, and afterwards removed, some other formalities, C. 6. 23. 29; Nov. 119. 9.
2 C. Th. 4. 4. 7. 2 (see also the interpretatio of C. Th. 4. 4. 3) is earlier than the tripartite
will, but the praetorian will is mentioned in C. 6. 11. 2, which is probably altered by
Justinian. 3 C. 6. 11. 2. 4 Recorded cases of oral mancipatory will are cases of

urgency, Girard, Manuel, 823, n. 2. 5 C. 6. 23. 8. 6 C. 6. 23. 31, ruri conditum.

7 C. 6. 22. 8; P. 3. 4 a. 4. 8 C. 6. 22. 10. 9 Post, § cxxvi. 10 C. Th. 2. 24. 1, 2.
11 Nov. Theod. 16. 5. 12 Nov. 107. pr. 13 Nov. Val. 21. 2. 1. 14 C. 6. 23. 21. 3.

vii] CAPACITY OF TESTATION 287

Valentinian. But, in a novel1, he regulated the divisions among children,
providing that the essential parts must be in the testator's writing and
in full. Provision for others could be made, if declared before witnesses
(number not stated), without other formality, and any arrangement
inter vivos between father and children for division among them, sub-
scribed by all parties, was valid2.

CII. CAPACITY. Testamenti factio. W e are told that " testamenti factio
publici iuris est13," which seems to mean that the rules of wills, as to form,
capacity and effect, were governed by law and not variable by the
testator. It is clear that the will was contemplated as one of the greatest
elements in the commercium. The first question is of capacity of testation
(active testamenti factio}. In general any civis sui iuris over puberty
could make a will4, but there were several exceptions, the chief being:

(a) Those declared intestabiles as a punishment5.

(b) Deaf mutes from birth. This is Justinian's rule6. No deaf mute
could have made a mancipatory will, and perhaps before Justinian no
such person could make a will without imperial permission7.

(c) Those de statu suo incerti. The instances given are those of a
slave freed by will, or a films, who was not aware that the paterfamilias
was dead, but we are told that the rule applies to those who are dubi-
tantes vel err antes as to their status8. The rule seems to rest on a rescript
of Pius. The principle is usually held to be that, as testation is an act
involving intent as to patrimonium, one who is not certain that he has a
patrimonium cannot have this intent. Such a person, says Paul, "certain
legem testamento dicere non potest9."

(d) In early law a woman could not make a will : she could not appear
before the comitia. Libertinae could make mancipatory wills with consent
of the patron as tutor10, but ingenuae, except vestal virgins, could not,
unless they had suffered capitis deminutio and so passed under a tutor
fiduciarius12. The practical reason probably is that the tutor whose con-
sent was needed might not be the relative who would suffer by the will.
Though he were the nearest agnate at the time of testation, he might be
dead and those in another line the nearest at her death. And he might
be a testamentary tutor. The rule disappeared under Hadrian, who
allowed women to devise, with consent of their tutores13.

1 Nov. 107. 2 A will not satisfying the rules of form is t. imperfectum, Inst.

2. 17. 7. There is a great deal of legislation under J. as to details of form. 3 28.

1. 3. 4 G. 2. 113; Ulp. 20. 12; P. 3. 4 a. 2. Even though under punishment for crime,

P. 3. 4 a. 9. 5 28. 1. 18. 1; 28. 1. 26, which however had when written probably no appli-
cation to this matter. As to intestabiles, ante, § xxxm. 6 C. 6. 22. 10. pr. ; cf. D. _v
1. 7; Inst. 2. 12. 3. 7 Ulp. 20. 13. 8 Ulp. 20. 11; D. 28. 1. 14 and 15. 9 28. 1.

14. 10 G. 3. 43. 11 Aul. Gell. 1. 12. 9. 12 G. 1. 115 a; not even b. p. secundum
tabulas was possible. Cicero, Top. 4. 18. 13 G. 2. 112, 113, so that they could make

wills at twelve while males must be fourteen, P. 3. 4 a. 1; Ulp. 20. 15; G. 2. 118. It

288 CAPACITY OF TESTATION [CH.

There are cases in which a man's will might be valid, though he was
at the moment incapable of making one. A lunatic could not "test"
except in a lucid interval, but a wrill made before he was insane was
good1. The same rule applied to a prodigus inter dictus. The mancipatory
will was barred as being an act in the commercium, and the rule remained
in later law, for obvious practical reasons2. A captivus, being a slave,
could not make a will3, but one previously made was good by post-
liminium if he returned, and, if he died in captivity, it was good as the
result of a /. Cornelia, probably of the time of Sulla4. There seems to have
been an express provision, but there is endless controversy as to what
this fictio legis Corneliae exactly was5. Probably the lex did not declare
the will good, but provided that his estate was to be dealt with as if
he had never been captured, and on this the lawyers built the further
rule that the case was to be handled as if he had died at capture.

Some persons not cives sui iuris could make wills. On principle it
would seem that colonary Latins, having commercium, could do so, and
this is confirmed by the wray in which the exclusion of Junian Latins is
stated6, and, at least for some coloniae, by Cicero7. As each colonia had
its separate statute, it is possible that in some the power did not exist,
and it may be that the express exclusion of Junian Latins is to exclude
them from the rights of peregrines in their locality, for these could of
course make wills (though not Roman wills), if their local laws allowed
this8. Servi publici populi Romani could make wills of half their pecu-
lium9. Filiifamilias milites could devise freely their peculiurn castrense,
as, after Hadrian, could those who had been milites10: this case and
that of peculium quasi castrense have already been considered11.

The capacity of testation must have existed when the will was made12,
and capacity to have a will, at the death13. If, in the meantime, thepowrer
was lost and regained, the will was in general destroyed at civil law.
The furiosus was no exception, for he had not lost the capacity to have
a will, but the captivus was, and if a man condemned for crime was after-
wards pardoned and completely restored, his will was revalidated14, but
not if, as was most usual, he was merely pardoned15. But where
capacity was reacquired the praetor gave bonorum possessio. This
was sine re in classical law16.

may be that, since the process of emancipation involved sale and manumission from
bondage this was treated as making them, pro tanto, libertae. Cuq, Manuel, 690.

1 P. 3. 4 a. 5, 11; Ulp. 20. 13; Inst. 2. 12. 1. 2 Ulp. 20. 13; Inst. 2. 12. 2; P. 3.

4 a. 12. 3 P. 3. 4 a. 8; Inst. 2. 12. 5; D. 49. 15. 12. 5. 4 Ulp. 23. 5; Inst. 2. 12. 5;

D. 28. 1. 12. 5 For various opinions see Buckland, Slavery, 299, 308. 6 G. 2.

110; Ulp. 20. 14. 7 Pro Caecina, 35. 102. 8 Ulp. 20. 14. 9 Ulp. 20. 16. This

does not seem to have extended to servi publici of municipalities. 10 G. 2. 109; Ulp.

20. 10; P. 3. 4 a. 3. 11 Ante, § xcix. 12 28. 1. 2, 4. 13 28. 1. 6. 1, 8. 1, 18.

14 28. 3. 6. 12. 15 C. 9. 49. 4. 16 G. 2. 147-149; Ulp. 23. 6; D. 28. 3. 12. pr.

vn] CAPACITY TO BE HERES 289

CIII. Capacity to take under a will (passive testamenti factio). The
class of those who can take is wider, since it covers children and so
forth. In general anyone may be instituted who has commercium, but
there are so many special cases that it is simpler to enumerate the chief
classes who were at various times and for various reasons excluded.

(a) Peregrini and dediticii, not having commercium1. Unimportant
under Justinian.

(6) The Gods, in general. Exceptions were made from time to time,
but it is not certain why particular gods were favoured2. It is probable
that, so far as Roman Law is concerned, none of these exceptions much
preceded the Empire, for the formalities of cretio could hardly have been
complied with. The practical question in whom the hereditas vested is
answered by Mommsen3 in favour of the State, by whose officers it was
administered, though it was paid into the Temple treasury : the Temple
priests were not a corporate body. Constantine allowed the institution
of the Catholic Church4, and a little later we get institutions of particular
churches5. Under Justinian an institutio of Christ went to the church of
the district6.

(c) Women. By the Z. Voconia, of 168 B.C., women could not be
instituted heredes by a testator placed in the first class of the census by
wyealth7. The rule died out early in the Empire, probably because the
census itself was out of use and the lex applied only to those actually
censi8.

(d) Natural children and their mother. Legislation, beginning with
Constantine, prohibited, or restricted, the institution of such children,
if not legitimated, or their mother, the rules differing according as there
were or were not legitimate children. Justinian provided that in the
former case the naturales and their mother might not take more than
one-twelfth, or a concubina without children more than half this. In
other cases they might take all9, subject to the querela inqfficiosi testa-
menti10.

(e) Incertae personae. This expression would cover persons ambigu-
ously described, but its important application is to those whose identity
cannot be ascertained. The exclusion seems to have been, so far as the
illustrations shew, of those of whose identity the testator could have
formed no certain idea11, persons so defined that anyone might chance

1 Ulp. 22. 2. 2 Ulp. 22. 6. Girard observes (Manuel, 834) that they are nearly all
peregrine deities, and supposes this to mean merely that the national gods were provided
for. Perhaps it is merely the recognition for Roman Law of an existing practice. 3 Staatsr.
2. 60; D.P.R. 3. 68. 4 C. 1. 2. 1. 5 C. 1. 2. 15. 6 C. 1. 2. 25. 7 G. 2.

274. 8 Perhaps not originally confined to classici. Cicero applies it to all on the

census in any class, excluding only the poor and women testators. Verr. 2. 1. 36-44 (90-
114). 9 C. 5. 27, passim; Nov. 89. 12 sqq. 10 Post, § cxiv. 11 Cf. 28. 1. 14.

B. B. L. 19

290 CAPACITY TO BE HERES [CH.

to come within the terms, e.g. "whoever shall be first at my funeral."
The fact that the individual person who might benefit was uncertain
was no objection if he was of a class clearly defined, e.g. "whoever of
my cognates shall be first at my funeral1." Justinian allowed institutio
of incertae personae already conceived 2.

(/) Postumi. These are described by Gains as incertae personae*, but
are sometimes treated as a distinct class4, as in fact they are. There is
nothing uncertain about "the next child of such and such parents."
The real objection to them was that they were essentially persons not
existing when the will was made, so that they could not then be capaces5.
Postumi sui were dealt with by jurisprudence and legislation, to be con-
sidered later6. Postumi extranei could not be validly instituted before
Justinian, though the praetor would give bonorum possessio secundum
tabulas in such cases7.

(g) Corporate bodies. These seem to be excluded as incertae per-
sonae6, no distinction being drawn between the corporation and its
members. Other reasons are assigned from the same point of view. Thus
Ulpian, who says that universi cannot cern or pro herede gerere9, must
have been familiar with acts of administration in respect of property
conceived of as binding on the whole body though everybody had not
joined in it10. And legacies to municipia are found from the beginning
of the Empire11. From whatever cause, municipia could not be instituted,
apart from privilegia12, in classical law, except that sec. allowed them to
be instituted by their liberti13. In 469 it was provided that all "civitates"
could be instituted, and this is the law of Justinian's time14. No doubt

1 G. 2. 238; Ulp. 22. 4; Inst. 2. 20. 25. 2 C. 6. 48. It seems to have been in the

first Code, Inst. 2. 20. 27. 3 G. 2. 242. 4 G. 2. 241, 287 and the corresponding

passages in the Institutes of Justinian. 5 Even if already conceived, the rule, perhaps
rather late, that one conceived was treated as already born would not cover the case, for
that rule applies only so far as it benefits him alone, and this would benefit the testator
by validating his will, 1. 5. 7; 50. 16. 231. 6 Post, § cxn. 7 Inst. 3. 9. pr. In

another text (Inst. 2. 20, 28) he says that they could be instituted in earlier law, and
this is commonly explained as a loose reference to bonorum jwssessio. But the closing
words of the two texts cited suggest an entirely different explanation. The institutio
of a postumus extraneus though it could not take effect, as such, might nevertheless be
so far valid as to revoke an earlier will, though, for the reason stated, it did not itself
take effect. See post, § cvin., and Buckland, N.S.H., 1920, 560. 8 Ulp. 22. 5.

9 76. 10 Mitteis attributes it to a difficulty in admitting vote of the body for

private law, though it was familiar in public (Rom. Prr. 1. 379). Ulpian's difficulty in
cretio seems to be the practical one that "universi" could not do it — there would be
some who could not and in any case it would not be practicable. But the difficulty goes
really further. Cretio as an actus legitimus could not be done by representative and a
corporation is incapable of acting except by representative. 11 See the reff. in

Mitteis, op. cit. 377, n. 7; Ulp. 24. 28. 12 See Accarias, Precis, 1. 890. 13 Ulp. 22. 5;
of. D. 36. 1. 27. 14 C. 6. 24. 12. ? all municipia.

vn] IUS CAPIENDI 291

for similar reasons other corporate bodies could not be instituted, except
under privilegia or by their liberti1 (though they could receive legacies2).
It does not appear that there was a general power till the time of Justin-
ian3. The State, which does not differ in conception from a magnified
municipium, could not be instituted4 and, by the time municipia could
be, the State as an owner of property was superseded by the Emperor,
who was an individual man and could of course be instituted. As to the
case of piae-causae, the way in which these were treated in later law has
already been considered5.

There were other exclusions of less importance introduced at various
times. Such are those ofintestabiles6, heretics, children of traitors, women
remarrying within the year, etc.7

There were some persons who could be validly instituted, but were
disqualified from taking unless they satisfied certain requirements before
it was too late to claim. They had testamenti factio (passive), but not ius
caplendi.

(a) Junian Latins. By an express provision of the I. lunia they were
barred from taking anything under an inheritance unless they had
qualified by becoming cives before the time of claim had expired: in
that case they could enter8. This case lasted till Justinian abolished the
class 9.

(b) Coelibes, orbi, etc. The rules as to these are a creation of the
/. lulia and the 1. Papia Poppaea, designed to encourage marriage and
improve the birth-rate: it is hardly possible to distinguish, in this con-
nexion, what was done by each statute. A coelebs was an unmarried
person, male over 25, female over 20 10. Such persons could claim
nothing under a will11. Orbi were childless married persons. These could
take only half of any gift to them12. Pater solitarius seems to mean a
widower with children13: he was penalised to an extent which is unknown14.
As in the case of Junian Latins, those concerned could avoid the pro-
hibition and gain ius capiendi by satisfying the leges before it was too
late to claim15. There were some exceptions. Ascendants and descendants

1 C. 6. 24. 8; Mitteis, op. cit. 402. 2 34. 5. 20. 3 C. 6. 48. 1. 10. 4 Such

texts as Livy, Epit. Bk. 58; Aul. Cell. 7. 7. 6; Cicero, de I. agr. 2. 16. 41, prove nothing for
Roman law. 5 Ante, § LXV. 6 Possibly, but see ante, § xxxm. 7 C. 1. 5. 4. 2;

C. 5. 9. 1; C. 9. 8. 5. 1, etc. 8 G. 2. 110; Ulp. 22. 3. 9 Ante, § xxxiv. 10 Ulp.
16. 1. Not applicable to men over 60 or women over 50 unless they were not satisfying
the law when they reached that age. Ulp. 16. 3. 11 G. 2. 111. 12 G. 2. 286 a. The
rest governed by II. caducariae. A text of Ulpian rather suggests that women must satisfy
the requirement of ius liberorum to avoid this penalty; Ulp. 16. 1 a. But see G. 2. Ill, 286,
and D. 50. 16. 148. 13 Ulp. 13. rubr. 14 Vir et uxor inter se are under special

disadvantage. They can take from each other only one -tenth if they have no children, —
relaxations in respect of children of an earlier marriage or deceased children of the present
marriage, Ulp. 15, 16. 15 Ulp. 17. 1.

19—2

292 CAPACITY TO WITNESS A WILL [CH.

to three degrees were said to have ius antiquum, and, even though caelibes
or orbi, could take anything left to them, and their share of any lapsed
gift1. Relatives to six degrees could take anything expressly left to
them, and were said to have solidi capacitas2. Some relatives by marriage
were similarly exempted 3, as were women, who had been married, for a
certain time after the marriage ended4. The destination of gifts which
thus failed will be considered later5. There is controversy about details
and, from a comparison of the statements by Gaius and Ulpian6, it
seems likely that the rules were changed from time to time. In any
case the adoption of the Christian religion, which from very early times
regarded celibacy as a chief virtue, made it impossible to retain these
rules. It is clear from the devices framed for their evasion that they

•/

had always been unpopular, and, under Constantine all disabilities
attaching to celibacy or orbitas were abolished, at any rate as far as
express gifts were concerned7.

Capacity to witness a will. Ulpian lays down the principle that
anyone might be a witness with whom there was testamenti factio8, but,
as there were many exceptions not reducible to any one principle, it
would be more exact to say that no one could be a witness unless he
had testamenti factio. Gaius seems to limit the right to cives9, but Latins,
even Junian, could be witnesses10. Women were excluded11: they could
not be instituted in early law12 and apparently could not be witnesses to
mancipatio. For this reason deaf or dumb people were excluded, the
rule surviving, as often, the reason for it13. Prodigi interdicti were
excluded, apparently as an inference from their incapacity to make a
will14. Slaves, though there was testamenti factio with them, were ex-
cluded15, but if at the time supposed by all parties to be qualified their
attestation was good — error communis facit ius16. Lunatics and impuberes
were excluded for obvious reasons17 as also were intestabiles18. Apart
from these general exclusions there were cases in which one was excluded
because of his relation to the particular will. No one could witness a
will who was in the same family group as the testator or the familiae
emptor19. Gaius thinks it unwise, though not unlawful, to have as witness
the heres or one in his family group20. Justinian definitely excludes

1 Ulp. 1. 21; 17. 2. 2 Vat. Fr. 216, 217. 3 Ib. 218, 219. 4 Ulp. 14. 5 Post,
§ cxi. 6 Ulp. 13-18; G. 2. Ill, 144, 286 a; see also Vat. Fr. cit. 7 The expression
ius capiendi occurs under Justinian (e.g. 49. 14. 2. 2) but it now meant only testamenti
factio, C. 8. 58. 1. 8 Ulp. 20. 2; Inst. 2. 10. 6. 9 G. 2. 104. 10 There was

testamenti factio with them. 11 Inst. 2. 10. 6. 12 They could not have appeared

before the comitia. 13 Ulp. 20. 7; Inst. 2. 10. 6. 14 Inst. 2. 10. 6; D. 28. 1. 18. pr.
15 Inst. 2. 10. 6; D. 28. 1. 20. 7. 16 Inst. 2. 10. 7; C. 6. 23. 1. Probably of wider

application. 17 Inst. 2. 10. 6; D. 28. 1. 20. pr. and 4, except furiosus in a lucid interval.
18 Inst. 2. 10. 6; D. 28. 1. 18. 1, 26. 19 G. 2. 105, 106; Inst. 2. 10. 9. Or be libripens,

G. 2. 107; Ulp. 20. 3-5: domestici testes adhibendi non sunt. 20 G. 2. 108.

vii] INSTITUTIO HEREDIS 293

these1. But there was nothing to prevent legatees from witnessing2, and
all the witnesses might be of one family group3.

It is clear that the exclusion of various witnesses in the classical law
rested in general, not on considerations of prudence, but on formal
grounds. The familiae emptor and his family were excluded because they
could not have been witnesses in a mancipatio. The heres, the person
most interested in setting up a false will, could be a witness, though
Gains shews that the prudential point was beginning to be made, by
advising against this, but it was not till Justinian's time that the
exclusion was law. Even then any other beneficiary was a good witness.

The witness must have been capable when the will was made: the
fact that he afterwards became disqualified was immaterial4. The func-
tion of the witness must be noticed. With us he merely witnesses the
signature: he need not know that the document is a will. In Rome he
witnessed the transaction: he must know it was a will though he need
not know its contents5. The surviving witnesses would be wanted again
at the formal opening of the will, which was done before an official as
soon as possible after the death. Each witness acknowledged his seal
and said, "in hoc testamento interfui," shewing that he attested not
merely the sealing but the transaction6.

A will which broke the rules of testamenti factio or did not appoint a
heres was said to be iniustum or non iurefactum7.

CIV. Institutio heredis. This was the principal, perhaps at one time
the only, function of the will8; in classical law there could be no will
without an effective institutio heredis9. The will must cover the whole
property: nemo pro parte testatus10. We shall see that the law of the
querela provided exceptions to this rule11. And where the praetor upset
a will by giving bonorum possessio contra tabulas, the institutio ties failed,
but some other provisions remained good. This, however, is not a real
exception, for the will was still valid at civil law12.

In classical law the institutio must be at the beginning, not in the
sense that otherwise it was void — the desire to avoid intestacy led to a
different interpretation of this and other rules. The principle is ex-
plained by the exceptions. Nothing could come before the institutio

1 Inst. 2. 10. 10. 2 Inst. 2. 10. 11. 3 Ulp. 20. 6; Inst. 2. 10. 8. 4 28. 1. 22. 1.

5 P. 3. 4 a. 13; D. 28. 1. 20. 9. Descends from mancipatio. The whole system is coloured
by reminiscence of mancipatio. The principle is shewn by the exclusion even in late law
of surdi and muti. Nov. Th. 16. 1 in laying down that witnesses need not know the content
of the will is enacting nothing new. 6 Girard, Textes, 811, Bruns, 1. 317. P. 4. 6

describes the process. It is clear that it was designed to facilitate the collection of duties.
7 29. 2. 22; 28. 3. 1. 8 G. 2. 116. 9 G. 2. 229, 248. But we shall see (post,

§ cxxvi) that some things ordinarily in a will could be done by codicil without a will.
The rule remains in principle in later law. 10 Inst. 2. 14. 5. 11 Post, § cxv.

12 Post, § cxni.

294 INSTITUTIO HEREDIS [CH.

which could lessen the share taken by the heres, and any provision so
placed was void. Thus disherisons might precede the institutiones1, but
not legacies or manumissions2. As to appointments of tutores the Pro-
culians held that they might precede as they took nothing from the
heres, the Sabinians taking the other view, though their reason is not
recorded3. The whole rule seems a reminiscence of mancipatio familiae
in which the transaction necessarily began with the mancipatio of the
familia and, more remotely, of the comitial will. Under Justinian the
place of the various provisions was immaterial4.

In classical law imperative words were needed : " T. heres esto" or " T.
heredem esse iubeo" or the like. Even "T. heredem facio" or "heredem in-
stituo" was not enough and,a/orta*on',precative forms such as "T. heredem
esse volo" were excluded5. In 339 it was provided that any form sufficed
if the intent \vas clear6. And, a century later, it was provided that a will
might be made in Greek7. The institutio must make it clear who was to
be heres, but even in classical law any description sufficient for identi-
fication sufficed8.

As the heres was universal successor an institutio ex certa re was
inadmissible. It was not void, but, in order to preserve the will, the
limitation was ignored in the case of a sole heres9. But the case might
be more complicated and the main rules appear to have been the
following10.

Where there were two heredes each instituted to specific things only,
so expressed as to cover the whole, Ulpian, in the Digest, says that
nominally they shared equally so that each was liable for half the debts,
but the index in the action for division, familiae erciscundae, confined
each heres to what was expressly given to him, so that, if debts were
heavy, one might get nothing at all. This was to give them each a half
subject to a praelegatum to each of what is expressly left to him, and we
may suppose the same rule to apply where the things stated were not
the whole11.

Where one was instituted for a certain fraction of a fundus and the
other for a fraction of the same or another fundus, the fundus and the
shares were ignored and the case was dealt with on the lines of Ulpian's

\ 28. 5. 1 (Trajan); .28. 3. 3. 2. 2 G. 2. 229, 230; Ulp. 1. 20; 24. 15, but the rule

did not apply to fideicommissa, Ulp. 25. 8. 3 G. 2. 231. Perhaps because tutela originally
conceived of as a right, of which heres is thus deprived. 4 Inst. 2. 20. 34; C. 6. 23. 24.
5 G, 2. 117; Ulp. 21. 6 C. 6. 23. 15. Even in (later) classical law defective words were
sometimes treated as mere error of scribe, 28. 5. 1. 7 C. 6. 23. 21; as to miles, post,
§ cxxvi. 8 P. 3. 4 b. 3. 9 28. 5. 1. 4. Exceptional rule of Severus, post, § cxvi.

10 The texts are from the Digest: it is uncertain how far they represent classical law.

11 28. 5. 35. As these gifts are praelegata, they will however be subject, so the text seems
to say, to the 1. Falcidia. The text is corrupt and probably largely due to Justinian.

vn] MODALITIES IN INSTITUTIO 295

rule above stated1. Where some were appointed ex certa re, and others to
shares in the hereditas, Justinian declares the former mere legatees2.
The language indicates that the rule was not essentially new, though in
classical law they may have taken shares, being under a fideicommissum
to hand over to the others all but the specific things3.

A heres might not be instituted from a certain day — the day was
struck out4. It may have been regarded as too definite a breach of the
continuity between deceased and heres. It could have served little
purpose — the result would be a mere wanton postponement of other
claims under the will5. For other reasons a heres could not be appointed
till a certain day — the limit was struck out as an infringement of the
rule: semel heres semper heres6.

Dies incertus, i.e. a time certain to come but uncertain as to date
(certus an, incertus quando} had in wills the effect of a condition. This
does not involve a necessary breach of continuity. Thus the ordinary
illustration taken, cum T. moreretur, might happen at once7.

A heres might be appointed conditionally, i.e. subject to an event
both future and uncertain8. A gift to X "if St Paul's is 400 feet high"
was not conditional: it was either valid or not according to the facts.
A gift "if X becomes Consul" was conditional and there could be no
acceptance of it, aditio, till X was consul, which might never happen.
Conditional institutions were subject to many restrictions. An impossible
condition was bad and was struck out, the institutio being treated as
absolute, on the principle of maintaining institutiones9. An impossible
condition is one not in the nature of things, clearly not a very exact
idea, but shifting from time to time with the advance of scientific
knowledge: many of the modern achievements of science would have
been set down as not in the nature of things by the Romans10. Im-
possibility to the person concerned was immaterial if the thing could
conceivably happen. "If he becomes Consul" was not an impossible
condition, though it might in the given case be most unlikely. Im-

1 28. 5. 9. 13; h. t. 10. 2 C. 6. 24. 13. 3 Cf. the rule in Inst. 2. 17. 3, post,

§ cxvi. 4 28. 5. 34. 5 Windscheid, Lehrb. § 555, n. 3. 6 28. 5. 89; h. t. 34;

Inst. 2. 14. 9. 7 35. 1. 75; C. 6. 24. 9. Dies certus quando incertus an, e.g. if or when

he shall reach the age of fourteen, is a condition, 28. 6. 33. pr. But see post, § cxix. As to
institutio " cum ipse morietur, " see Brunetti, Dies incertus, 130-143, with special reference
to C. 6. 24. 9. He holds that this was not treated as condition, but, exceptionally, allowed
to be valid as dies. His point is that otherwise it must fail in the case of an extraneus
as he could not possibly enter. 8 Inst. 2. 14. 9; D. 28. 7 passim. 9 28. 7. 1;

Inst. 2. 14. 10; in contract a different rule is applied: there the impossible condition
vitiates the transaction, post, § cxLvm. As to history of word "impossibilis" and the
conception of impossibility see Rabel, Mel. Ge"rardin, 473 sqq. 10 The common

instance is "to touch the sky with one's finger." In one case it is said, after hesitation,
that a condition "if be build a tomb within three days" must be treated as impossible,
28. 7. 6.

296 CONDITIONS ON INSTITUTIO [CH.

possibility is initial impossibility1. Supervening impossibility (casus)
was on a different footing, and was treated in institutiones as failure of
the condition2. Immoral or illegal conditions also were struck out3.
This is a very strong illustration of the desire to save institutiones, for
one might have said that a testator who imposed such a condition
deserved that his will should fail4.

To the rule, that impossibility to the person concerned did not cause
the condition to be struck out, there was an important exception. If
a paterfamilias instituted a son whom he wished to exclude, on a con-
dition not technically impossible, but one that in practice the son could
not satisfy, e.g. "if he is praetor at the earliest possible age," this was
not an omissio (which would upset the will5) or an exheredatio (which, if
unjust, gave the querela6), but the son would be excluded. The rule was
modified in the sense that a son in potestas could be instituted condition-
ally only on a condition in his power. Other conditions were treated as
omissions, and even one in his power was so treated if it outraged natural
affection. If it was in his power and he neglected it, he was excluded.
The question of fact, what is or is not in his power, gave difficulties in
some cases7.

Where an institutio was under a resolutive condition the latter was
struck out, as conflicting with the rule: semel heres semper heres (e.g.
"until he goes to Capua8"). This applied equally whether it was an event
or some act to be done by him, but, at least under Justinian, a way was
found by which the testator in this last case could achieve much the
same result. Where he was instituted "if he does not do so and so" the
institutus took the estate at once, giving security that he would return
it if he did the act barred. He would not cease to be heres, and, no doubt,
what he had to restore was the nett assets, as he was liable for the
debts 9. This was the cautio Muciana, probably due to Q. M. Scaevola of
Cicero's time10, but, as it seems, originally applicable only to legacies and
extended to institutiones only under Justinian, or at any rate in post-

1 Difficulties where the condicio assumes a non-existing state of facts, 28. 5. 46; 40. 4.
16; 40. 7. 19; h. t. 28. pr., Buckland, Slavery, 490. 2 9. 2. 23. 2. As to some apparent
exceptions (29. 7. 3; h. t. 4), post, p. 297. 3 28. 7. 14; P. 3. 4 b. 2. 4 It was suggested
that such a thing was evidence of insanity which would upset the will. 28. 7. 27. 5 Post,
§ cxn. 6 Post, § cxiv. 7 28. 2. 28. pr. ; 28. 5. 4. pr. ; 28. 7. 15. Not applied to other
sui heredes. Perhaps at one time no condition could be imposed on institutio of a son.
It was permissible in classical law to impose any condition, such that it must be determined
in his life, provided there was an exheredatio in the contrary event, 28. 2. 28. pr. The rule
in the text (above) may have applied to all postumi who, in classical law, upset the will
if not provided for. Post, § cxn. 8 28. 5. 89; Inst. 2. 14. 9; D. 28. 5. 34. 9 35. 1.
7. pr. 10 See Girard, Man. 839. It seems to serve little purpose in institutiones, for one
conditionally instituted could get bonorum possessio in any case on giving security, 37.
11. 6. Post, § cxxxv. 37. 11. 6; 2. 8. 12; 28. 5. 23. pr. As to a possible difference in
effect, Girard, Manuel, cited.

vii] CONDITIONS ON INSTITUTIO 297

classical times1. There are difficulties as to the exact limitation of its
application, i.e. to what kinds of negative conditions it was applied,
but these will best be considered under legacy2.

Some conditions vitiated the institutio. Such were institutiones
captatoriae, institution of A on condition that he instituted the testator,
or likely so to operate3, and conditiones perplexae, self-contradictory
conditions. The instance given is : " Let T be heres if X is and let X be
heres if T is4." Technically this must be impossible, for neither can take
till the other has, and they cannot accept together, for aditio cannot
be made while a condition is outstanding5. Why it was so harshly
treated is not clear6.

The condition, "heres esto, si volet," is null; it adds nothing7. An
institutio in the terms "quos T. volet" or "si T. volet" is void ; an institutio
may not be at the absolute discretion of a third party. But the result
might be reached by making the institutio depend on a trifling act of a
third party, e.g. si T. capitolium ascendent, which was quite valid8.

The condition must be satisfied before entry, but it was usually
indifferent how or when. If however it was an act to be done, of such a
nature that it could be done many times, it was inferred to be the
testator's intent that it be done after the death9. But circumstances
might release the heres from the obligation to satisfy the condition.
Where a man was instituted under a condition of swearing to do some-
thing, the praetor remitted the condition, but, at least in Ulpian's time,
refused the hereditary actions till the thing had been done10, which is
nearly the same as substituting the act for the oath11. So too if a con-
dition required the co-operation of a third party and he would not act,
the condition was regarded as satisfied12. And if the heres was pre-
vented from satisfying it by one who had an interest in his not doing so,
the condition was treated as satisfied13. But there was no relief where
the act was to be done by some third party independently of him14.

A man might institute as many heredes as he liked, and vary the

1 H. Krueger, Mel. Girard, 2. 1 , shews that most of the texts applying it to institutiones
were written of legacy (35. 1. 7. pr., 1 ; h. t. 18), and shew signs of interpolation. 28. 7. 4. 1
does not appear to have been so written, but it is not clear that it refers to c. Muciana. See
35. 1. 7. 1. 2 Post, § cxix. 3 28. 5. 72. 4 28. 7. 16. 5 28. 7. 13, 14; 29. 2.
18; h. t. 21. 2; h. t. 32. 1; as to b. p., post, § cxxxv. 6 Bufnoir, Conditions, 31, says it
is as not seriously meant, but there seems no ground for this. 7 28. 7. 12. 8 28. 5. 32;
h. t. 69. 9 35. 1. 2; h. t. 11. 10 28. 7. 8. The remission operates ipso iure (h. 1. 8).
It produces full civil law effect, Pernice, Labeo, 3. 1. 54. 11 Not identical: he is heres
at once and can enter before doing the act. 12 28. 7. 3; h. t. 11; 35. 1. 14. Must be

distinguished from the case of supervening impossibility, ante, p. 296, and from the case
(n. 8) in which the condition is an act to be done independently by a third person.
13 50. 17. 161. It must have been intended to prevent. See 40. 7. 38. Prevention is
essentially interference with the action of donee. 14 40. 7. 4. 7. See n. 8. As to

evolution in the conception of conditional gifts, see Vassali, Bull. 27. 192.

298 SHARES IN THE HEREDITAS [CH.

shares as he would, subject to the claims of sui heredes. It was the usual
practice, borrowed from the system of weights, to regard the whole as
an as, of which one or more unciae (twelfths), called uncia, sextans (2
unciae), quadrans (3), triens (4), quincunx (5), semis (6), septunx (7),
bes (8) (two-thirds1), dodrans (9), dextans (10), deunx (11), as (12)2,
were assigned to each heres. They might be subdivided, the smallest
name recorded being scriptula, the twenty-fourth part of an uncia3.

There was no rule requiring division into 12: the testator might
make his testamentary as of as many unciae as he pleased. As he could
not be partly testate, if he gave only nine shares there would be nine
unciae. And if 12 were allotted and a heres having one uncia refused or
was disqualified, there would be only 11 unciae covering the whole, or,
what is the same thing, his uncia would accrue to the others4.

If nothing was said of shares, the heredes took equally. If some had
shares allotted and others had not, those to whom no share was named
took all unallotted out of 125, but in this case if 12 or more were
allotted, the as was doubled and assumed to have 24 unciae (dupondius),
and they took all unallotted out of 246. This gave an odd result, for if five
were allotted to A, six to B and C was merely instituted, C took one
uncia, but if six had been given to A. C would have taken 12, i.e.
a half.

CV. SUBSTITUTIO (subinstitutio). One of the many safeguards against
intestacy was the rule that a testator might institute others to take if
the institutio did not take effect. This at least was the purpose of the
most usual, though possibly not the oldest, form of substitutio, substitutio
vulgaris. In its simplest form this would run "T. heres esto, si heres nan
eris C. heres esto7.'" Technically, T. was said to be heres in the first grade,
and C. heres in the second8. It might be more complex, e.g. there might
be a further substitutio, tertius gradus9. Heredes might be reciprocally
substituted, the purpose being not to avoid intestacy, which this would
not do, but to avoid the operation of the II. caducariae10. The substitute
might have a different share, or two might be substituted to one11. In
general, as appears from the form, if the institutus took, the substitute

1 Duae (paries') assis, but see Varro, L.L. 5. 172. 2 The names for 9, 10 and 1 1 are
derived from dempto(a) quadrante, sextante, uncia. 3 Semuncia (£), binae sextulae (J),
sicilicus ($), sextula (£), dimidia sextula (^), sescwnx (1£ unciae =% as), uncia duae sextulae
(£ as}. Symbols for these fractions, see Volusius Maecianus (Huschke, Jurisp. Anteiust.
(5), 411). 4 Inst. 2. 14. 5, 7. 5 Inst. 2. 14. 6. 6 Ibid. 7 Inst. 2. 15. pr.

The institutio in the first grade would often be conditional. As to the security which
substitutus could claim from such a heres who had obtained bonorum possessio (post,
§ cxxxv) see P. 5. 9. 1. 8 G. 2. 154; P. 3. 4 b. 4. 9 G. 2. 174; Ulp. 22. 33; D. 28. 5.
54; 28. 6. 1. 10 Post, § cxi. 11 Inst. 2. 15. 1, 2. There are difficult questions on

the point whether if a suus is disinherited in an institutio, this must be repeated in the
subslitutio, 28. 2. 8. The text is corrupt. See post, § cxrr.

vii] SUBSTITUTIO VULGARIS 299

was excluded. But there were exceptions. If a man instituted a slave
thinking him a freeman, and substituted X to him, Tiberius decided in
the case of his own slave, Parthenius, that the slave's owner and the
substitute divided1. And where an insolvent instituted a heres neces-
sarius, a slave, and substituted to him, the substitute was preferred if
he was willing to take, for it was only where no other heres would take
that an insolvent might free a slave by will to the detriment of his
creditors2. If a common slave was instituted and one owner refused,
that share would go to a substitute if there was one3, so that the slave
and he would both take. But another text denies this ; there is some
difficulty on the question whether the institutio of a common slave is one
institutio or two4.

The chief rules of substituted vulgaris were these :

(i) The testator, in substituting, might vary shares, conditions and
charges as he liked, but in general the substitute took the share with its
burdens5.

(ii) It was in effect a conditional institutio; thus the hereditas was
delata to the substitute only when the condition was satisfied by failure
of the institutio, so that the substitutio would fail if the substitutus was
not then alive and capax6.

(iii) As the institutio might be simple and the substitutio was neces-
sarily conditional, and might have a further condition, the two gifts are
distinct institutions . The question arose whether an institutus, also
substituted to another heres, could accept one share and refuse the other.
It is clear that one instituted for two separate shares accepted both by
accepting one7. The same rule applied here8, though one text, plainly
corrupt9, seems to deny it. One who had entered under an institutio
could not refuse a share to which he was substituted and the one entry
sufficed. So also if he entered under the substitutio first10.

(iv) Substitutus substituti instituto substituitur11, i.e. where B was
substituted to A and C to B, C was also substituted to A if B should
fail, whether they were also coheredes or not. If B was dead, or refused
before ^4's share fell in, C would not get this, apart from the present
rule. If the events happened in the other order the rule would pre-
sumably not be wanted12.

1 Inst. 2. 15. 4; 28. 5. 41, where a theoretical justification is attempted. 2 Ulp.

1. 14. 3 28. 6. 48. pr. 4 29. 2. 65. Buckland, Slavery, 384. The law of cretio im-

perfecta provides further apparent exception, but it really illustrates a different principle,
post, § cix. 5 31. 61. 1. 6 29. 2. 69; 38. 16. 9. 7 29. 2. 80. 8 29. 2. 35, 76.

9 29. 2. 80. 1: "si tamen delatae sint." 10 29. 2. 76. The difficulty which would result
in this case if the spatium deliberandi of the institutio had expired is not discussed.
11 Inst. 2. 15. 3. The rule is here attributed to Severus and Caracalla, but else where it
is laid down by Julian, 28. 6. 27. It is based on presumed intent of the testator: hence a
limitation mentioned and rejected by Papinian, h. t. 41. pr. 12 See Papinian, lac. cit.

300 SUBSTITUTIO PUPILLARIS [CH.

(v) Coheredes might be substituted to each other1. The effect of this
was that if one refused, his share passed to the other. This was much
what would have happened in early law even if they were not reciprocally
substituted. But the substitutio was material in several ways.

(a) The testator could vary the shares, conditions and charges.

(b) Substitution, being express institutio, was subject to all its rules.
It follows that, as the delatio did not occur till the institutio had failed,
the substitute must still be alive and capax, or he could not take it;
institutio failed if heres died before delatio. Thus the benefit was personal.
If, having entered for his own share he died before the other institutio
failed, the substitutio failed and the share would be divided among the
other heredes2. If there had been no substitutio his representatives would
take the part of the lapsed share which would have come to him had he
still been alive3.

(c) The //. caducariae, which excluded coelibes, etc., exempted
relatives4 so that they could take in solidum, but, except as to ascendants
and descendants, this applied only to what was expressly given to them.
Thus if heredes were reciprocally substituted, and one was a bachelor
brother, he would take his share of a gift which fell in, as there was an
express gift of it. But if there were no substitution, and a share fell in,
the //. caducariae excluded him from any share in it5.

Substitutio pupillaris. This was of narrower application and different
purpose. Where a man had a suus heres, born or unborn, he was allowed
to provide in his will for the case in which this suus survived him, and
so inherited, but died under puberty, and thus unable to make a will.
The father might, in his will, substitute a person to take the inheritance
of the child in that event6. This was in effect making a will for the child7.
It is an ancient institution; at first it seems to have required that the
child should have been instituted, and to have covered only what came
from the father. But in the Empire it covered the child's whole estate,
and it was allowed even though the child was disinherited8. It had a
practical purpose, besides avoidance of the child's intestacy. If a father
had disinherited a suus for misconduct, and an instituted son survived
him, and died impubes, the property might, but for this provision, go
to that disinherited suus. It was usually coupled with a substitutio
vulgaris in favour of the same person, either or neither operating, ac-
cording to the event9. The substitutio vulgaris was usually in the will, but
the pupillaris was preferably put in a separate document, not to be

1 Inst. 2. 15. 3, etc. 2 28. 6. 23. 3 Subject to the II. caducariae., post, § cxi.

4 Ante, § cni; post, § ex. 5 Though solidi capaces they had not the ius antiquum

or praemia patrum. See G. 2. 207; Ulp. 17. 2. 6 G. 2. 179; Ulp. 23. 7; Inst. 2. 16.

Not possible in any other case, G. 2. 184. 7 Cicero, de inv. 2. 21. 62; G. 2. 180.

8 Cicero, loc. cit.; G. 2. 182; Ulp. 23. 8; Inst. 2. 16. 4. 9 See Inst. 2. 16. pr.; G. 2. 179.

vii] SUBSTITUTIO PUPILLARIS 301

opened unless the child died under puberty, to avoid the risk that, for
what might be many years, someone would have an interest in making
away with the child1. But it was so usual to make both institutions in
favour of the same person that, from the time of M. Aurelius onwards,
one kind of substitutio implied the other unless the contrary appeared2.

The person so substituted might also be an institutus in the father's
will. Hence the question arose whether, as the substitutio might cover
property not in the father's hereditas, the case was to be treated as two
wills or one, i.e. whether one who had accepted the institutio, was
bound to accept the substitutio as no more than a further share, which
he could not refuse, or whether it was a distinct will under which he
might refuse if he liked.

The view which prevailed, a survival on this point of the original
notion, was that it was one will, so that having accepted the institutio
he could not refuse the substitutio3. Ulpian went so far as to say that a
slave made heres necessarius of the father and substituted to the impubes
was heres necessarius of the latter also4. The older lawyers held indeed
that even if the institutus, also substitutus, died before the pupil, but
after accepting the institutio, his representatives took under the sub-
stitutio5, but Ulpian laid down the ride that it was a distinct institutio,
in so far that it failed if he was not alive when the impubes died6. There
were other difficulties of the same kind resulting from the notion that
it was one will and two hereditates. The language of Justinian shews the
confusion 7. Finally he decides that acceptance or repudiation as to one
binds as to the other8.

The chief rules of substitutio pupillaris were these :

(i) Its validity depended on that of the father's will. If that totally
failed the substitutio failed 9. But if any validity was left to any of the
institutiones, this saved the pupillary substitution, e.g. if the will was
only partially upset by the querela10, or was upset by bonorum possessio
contra tabulas, which left it valid at civil law11. An inference drawn
from its dependence was that, if in a separate document, it must be made
after the will 12.

(ii) It must be in favour of a certa persona, except that it might be

1 G. 2. 181; Inst. 2. 16. 3. Safer still to put both in the separate document. 2 28.
6. 4. pr. The case of Curius seems to have raised the question : it is frequently discussed
by Cicero and others. For the texts, Meyer, Oral. Horn Fragg. 304, 318. 3 29. 2. 59;
28.6.10.3. 4 28. 6. 2. 4 inf.; h. t. 10. 1. 529.2.59. 628.6.8.1. There was
the same illogicality in s. vulgaris. No new entry was needed for the substitutio, for
it was no more than another share. But if the substitutus was dead when the subslitutio
was delata his representatives had no claim, 28. 6. 23. 7 Inst. 2. 16. 2. 8 C. 6.

30. 20. 9 Ulp. 23. 9; D. 28. 6. 1. 3; h. t. 2. 1. 10 28. 6. 31. pr. 11 28. 6. 34. 2.
Other cases, h. t. 2. 1, 2. 3, 38. 3. This last passage is corrupt. 12 28. 6. 16. 1.

302 NECESSARII HEREDES [CH.

"whoever shall be my heres," which was understood to mean heres
under the will, entering and surviving the impubes1.

(iii) It might be to a disinherited suus, but not to an emancipatus.
Thus it failed if the child was emancipated or given in adoption, or pre-
deceased the testator2.

(iv) It could not last beyond puberty, but it might be for less, and
different substitutes might be appointed according to the age at which
the child died3.

(v) It might be under condition, like any other institutio*.

(vi) If the substitute, knowing his position, neglected for a year to
get a tutor appointed, the substitutio failed, at least in later law5.

Substitutio exemplaris or quasi pupillaris. This is an extension of the
foregoing, for the case of insane descendants, not necessarily sui or
impuberes. The Emperors allowed testators, on petition, to substitute
heredes for descendants incapable of testation from insanity or other
defect. If the incapax died, still afflicted, the substitute took, but, if
he recovered, the substitutio was void and did not revive on relapse6.
Justinian, leaving other cases unaffected, allowed it without special
petition in the case of the insane. Any ascendant might appoint such a
substitute for anything to which he instituted the defective. The sub-
stitute must be a certa persona, a sane descendant of thefuriosus, if any,
if none some other sane issue of the testator. Failing these, anyone. If
several were so appointed it seems that each substitute would take
what came from his appointor, but the substitutio does not appear to
have affected what came from none of them. It is laid down as in
earlier practice that the defect must be perpetuum, and that the
substitutio is void altogether on recovery7.

CVI. CLASSIFICATION OF HEREDES. These are in three classes8:

Necessarii heredes. These are slaves of the testator freed and insti-
tuted by his will, so called because they are heredes with no power of
refusal9. The name applied to all slaves so freed and instituted, but its
most important application was to the case of an insolvent. Such a
man might name a slave as one of his heredes, so that, if the others
refused, the slave would be heres, and the disgrace of insolvency would

1 Inst. 2. 16. 7. 2 28. 6. 41. 2. So in strictness if he was adrogated after the death
of the father, though here there would be the Antonine security for restoration to the
substitute, as in all adrogatio of an impubes, ante, § XLV, and the substitutus had actiones
utiles, 28. 6. 40. 3 28. 6. 14; h. t. 38. 1. 2. 4 28. 6. 8. 5 C. 6. 58. 10, extracted

from Nov. Theod. 11 (A.D. 439). 6 28. 6. 43. 7 Inst. 2. 16. 1; C. 6. 26. 9. 8 G.
2. 152 sqq. ; Ulp. 22. 24, 25. 9 G. 2. 153; Ulp. 22. 24; Inst. 2. 19. 1. Those in mancipio
were also necessarii (G. 2. 160). One of whom testator had only bonitary ownership could
not be so utilised; he could not be heres as he would be only a Latin. Ulp. 22. 8. Where
a testator instituted a servus alienus with a gift of liberty and afterwards acquired the
slave the two gifts were void, liberty to a servus alienus being a nullity, 28. 5. 50. pr.

vii] SUI ET NECESSARII HE RE DBS 303

fall on him and not on the deceased1. The slave had indeed a certain
protection. The edict provided that he could apply for bonorum separatio,
so that anything acquired by him, either before or after the sale of the
estate by the creditors, would not be liable to the creditors2, who thus
took no more than if there had been no heres. And as the creditors suffered
to the extent of his value, no more than one could be so freed ; only the
first named was free. The rules under the I. Aelia Sentia did not apply
in this case3, but if the slave was incapable of freedom under any other
rule he could not be so utilised4. It must be a voluntary manumission. If,
e.g., the dominus held a slave under a fideicommissum to free him, the
slave was not necessarius and could be free without taking the in-
heritance5.

Sui et necessarii heredes. These were those in the potestas of the
deceased who became sui iuris at his death, and postumi who would
have been in that position if born soon enough6. The name sui is ex-
plained to mean that they were, in a sense, heredes to themselves, and
they were necessarii as being heredes without any question of refusal7.
But though this was the civil law, it was unfair that they should be
disgraced by their father's insolvency, and the Edict allowed them the
ius abstinendi, if they stood aloof, did not intermeddle, and shewed
that they did not mean to be heredes*. In that case the bonorum venditio
would proceed in the name of the deceased, and though the will was
technically valid the praetor refused any action against the suus9.
Pupillary substitutions were good10, as were manumissions11, and, if the
estate proved solvent, presumably legacies must be paid. Any surplus
belonged to the heres and not to the creditors12. In classical law the
suus could alter his mind and take the hereditas at any time before the
goods were actually sold, but Justinian limited this to three years,

• 1 Inst. 2. 19. 1. 2 42. 6. 1. 18; G. 2. 155. As to another case of bonorum separatio,
post, § ex. 3 G. 1. 21; Ulp. 1. 14. 4 28. 5. 84. pr. If alienated or freed, post

testamentum factum, he is not necessarius, but acquires for his new master or himself.
Ulp. 22. 11, 12; G. 2. 188; Inst. 2. 14. 1. 5 28. 5. 3. 3. 6 G. 2. 156 sqq., 183; Inst. 2.
19. 2. Ulp. 22. 14 and G. 1. 159 include a nurus in manu filii, but she will be a sua only if
the son dies vivopatre. 7 28. 2. 11; 38. 16. 14; G. locc. citt.; Inst. 2. 19. 2. It is objected
(Strahan Davidson, Problems in Rom. Crim. Law, 1. 86 sqq.) that this idea of condomi-
nium cannot be the ancient one. The absolute dominium of the paterf. over his family is
inconsistent with condominium of these in the family property. He adopts the suggestion
that it is a late piece of idealism. But it is implied in the language of the XII Tables (5. 4)
and in the ancient inalienability of the heredium. See Cuq, Inst. Jurid. 1. 287, n. 3.
8 29. 2. 71. 9; G. 2. 158; Inst. 2. 19. 2. G. gives ius abstinendi also to one ire manci-
pio, though he is not a suus but merely a necessarius (G. 2. 160). The right being lost
if the heres intermeddles (G. 2. 163), it was provided that one who did acts of piety or
urgent necessity might guard himself by declaring that he did not do them as heres. 29.
2. 20. pr. 9 29. 2. 57. pr. 10 29. 2. 42. pr. 11 40. 4. 32, if not in fraud of

creditors. 12 36. 1. 69. 2.

304 EXTRANEI HEREDES [CH.

even though the estate had not yet been realised1. If the attitude of
the heres was obscure, a creditor could sue him, when he would have to
take one position or the other. In the later classical law the beneficium
deliberandi seems to have been extended to him, i.e. he could, like an
extraneus, apply to have a time fixed within which to make up his mind2.

CVII. Extranei heredes. All other heredes could refuse. Some time
would elapse before they decided, and in that time the hereditas was said
to be iacens3, and to be offered to them (delata). Rules had to be
evolved to deal with the difficulties which resulted from the fact that
in the meantime the goods belonged to none, and yet must be protected,
and the business must be carried on. The immunity with which they
could be stolen or damaged would naturally strike the imagination
sooner than mere commercial inconvenience, and was provided against
in many ways. The remedy found was usually independent of any
notion of personality or ownership in the hereditas itself. There could be
no theft of res hereditariae, but a special machinery was invented, the
cnmen expilatae hereditatis*. On the other hand for damage to the
hereditas the heres was allowed to proceed by the Aquilian action, on the
ground, not elsewhere supported, that the word "owner" does not neces-
sarily mean owner at the time of the wrong5. There was a special
machinery for dealing with freed slaves who pillaged the hereditas before
their liberty took effect6. These various proceedings shew no coherence
among themselves, and express an evolution which had not yet reached
the point of vesting rights in the hereditas. One case is striking. Under
the interdict vi aut clam, the question whether the heres could proceed
in respect of acts done before acceptance is discussed in a long text7.
Early jurists are cited, and the rule arrived at is that he could. The reasons
assigned are independent of the personification of the hereditas ; it was
admitted that liereditas could not be owner. Then comes the remark that
besides all this, there is the fact that the hereditas could be considered
as the owner, no doubt an addition.

The conception of the hereditas iacens thus reached was of great
importance in the private law. It was an incomplete personification of
the hereditas, arising only in cases in which there was no heres necessarius,
and thus there would be an interval of time between the death and the

1 28. 8. 8; C. 6. 31. 6. 2 28. 8. 8. One not within either definition may be a

necessarius, i.e. a grandchild instituted by a grandfather who disinherited the lather.
He cannot refuse, but he is not a suus, as he would have no ground of complaint if
omitted (28. 3. 6. pr.) and he is not a slave. The cause of the defective terminology is no
doubt that the idea of disherison is not primitive, but is superimposed on the existing
classification. In classical law such an institution would simply benefit the father, but
probably under Justinian the property would be bona adventitia, ante, § xcix. 3 43.

24. 13. 5. 4 47. 19; C. 9. 32. 5 9. 2. 43. 6 47. 4. 1. pr. Other illustrations,

Pernice, Labeo, 1. 360 sqq. 7 43. 24. 13. 5.

vii] HER EDIT AS I AC ENS 305

entry of the heres1. During this interval the hereditas was offered (defero)
to the person entitled, hereditatis delatio. If he decided to accept, his
acceptance was aditio, and, as we shall see, it was sometimes declared
in a formal manner, called cretio2.

This quasipersonification gave rise to interesting questions. The
jurists did not go so far as to call the hereditas "persona ficta" ; that
expression is mediaeval. They said that the hereditas "personae vicem
sustinet " or the like. The compilers of the Digest were not very particular
on this point, and in fact the modern technical meaning of persona was
developing in their age. There are at least two texts in which the
hereditas is spoken of as dominus of res hereditariae3. These texts shew
clear signs of alteration, and, even so, there is none that goes the length
of calling the hereditas a person. Justinian in the Institutes makes it
clear that it is not4.

The hereditas represented a persona, but whose? On this point there
was disagreement among the classical lawyers. It is laid down by some
jurists, not exclusively representing either school, that it represented
the person of the future heres, and thus that the entry of the heres was
retrospective so as to date from the opening of the succession. The view
which prevailed, however, was that the hereditas represented the per-
sona of the deceased. But though this view is dominant in the Digest5,
there are texts which express the opposite view. Thus, on the question
whether a servus hereditarius could stipulate in the name of the future
fieres, both opinions are several times expressed6, and it is now generally
held that for most purposes the later jurists accepted the view that
entry was retrospective7, on grounds of convenience, however difficult it
might be to reconcile this with the view, also dominant, that the hereditas
represented the person of the deceased.

But the hereditas did not represent the persona of the deceased for
all purposes. The Institutes express a limitation in the words : inplerisque
personam defuncti sustinet8. This might merely mean that the hereditas
did not take up the political, social and family rights of the dead man,
but the restriction is much more significant. Its practical application
was mainly in limitations on the activity of servi hereditarily who were
the only people capable of acting on behalf of the hereditas (and were so

1 Where a suus is yet unborn, or a necessarius is instituted conditionally, the position
is much the same, and no doubt the rules were the same, but no text applies the theory
of hereditas iacens to this case. We have little discussion of the questions which must have
arisen, but on the texts hereditas iacens and heres extraneus are inseparable ideas. See,
e.g., 43. 24. 13. 5. 2 See G. 2. 162 sqq., and post, § cix. 3 9. 2. 13. 2; 28. 5. 31. 1.
4 Inst. 3. 17. pr. As to the general conception of personality in Roman Law, see ante,
§ LXIU. 5 41. 1. 33. 2, 34. 6 2. 14. 27. 10; 45. 3. 16; h. t. 18. 2; h. t. 28. 4; h. t. 35.

7 46. 2. 24; 50. 17. 138. 8 Inst. 3. 17. pr.

B. B. L. 20

306 HERE BIT AS I AC ENS [CH.

capable only through the principle we are considering), since ordinary
mandates were ended by death1. These limitations all express the fact
that the representation was not complete, but they do not all turn on
one principle ; there is usually a good reason for them, apart from any
theoretical one, a reason which is no doubt the real cause of the existence
of the limitation. A serous hereditarius could not acquire, for the hereditas
to which he belonged, another to which he had been instituted, as there
could be no authorisation2. If he was allowed to accept without authori-
sation the heres to whom he would ultimately go might find himself
saddled with a hereditas damnosa3. The slave could not stipulate for a
usufruct for the hereditas; there was in fact no life to which it could
attach4. He could not stipulate in the name of his late master, there
being no such person5, or as most jurists thought, but not all, in that of
the future heres, who was, as yet, an extranea persona6. But he could
stipulate in the name of himself or a fellow slave, or in no name at all 7.
On the other hand he could be examined as a witness in litigation
affecting the hereditas, though a slave could not ordinarily be heard
where his master was concerned; the hereditas was not his master, it
' only represented him8. In all these matters there was no strict adherence
to a theory. The rules were based on considerations of convenience;
logical justification is, at least for later law, little more than excuse.

However far we might wish to go, in endowing a hereditas with the
attributes of personality, there were inevitable limits. It could do
nothing involving a conscious act. It could not commit delict or crime,
or be privy to it. It could not authorise a contract, appoint an institor,
or grant a peculium. In strictness an institor would cease to serve and a
peculium to exist, but in practice this was not so. It is clear that peculia
continued, and that a contract with institor, even by one who knew of his
principal's death, bound the heres9. The continuance of peculium is im-
portant in the story of the changes of the law as to acquisition of
possessio. Animus being necessary to possession, a hereditas, having
none, could not possess10, and it could not acquire possessio through a
slave, for even where a slave took possessio for a living owner, the master
had not ordinarily possessio unless he knew the fact11 or had authorised.
These rules, however logical, were too inconvenient to stand. The

1 See, however, 14. 3. 17. 3 and post, § CLXXIX. 2 41. 1. 61. pr. 3 A legacy could
be left to a servus hereditarius and would vest in the hereditas (31. 55. 1 ; 30. 1 16. 3) but the
slave could not accept it, so as to bar repudiation by the person in whom it would
ultimately vest under the gift, since this would bar him from attacking the will under
which the legacy was made, as having accepted a benefit under it. 4 Vat. Fr. 55, 56;
D. 45. 3. 26. 5 12. 1. 41; 45. 3. 18. 2. 6 See p. 305, n. 6. 7 Inst. 3. 17. 1. 8 1. 8.
1. pr. ; 48. 18. 2. 9 14. 3. 17. 3 (but the words referring to knowledge may be corrupt);
1;~ 1. o. pr. 10 Ante, § LXXIT. 11 Ante, § LXXIII.

vii] HER ED IT AS 1 AC ENS 307

first inroad on principle was in the field of peculium, naturally, as it had
been in the case of a living owner. The texts give evidence of dispute
and change of rule1. It is clear that a servus hereditarius could, in

classical law, continue an existing possession, and even complete it for
the purpose of usucapio. But as to beginning possessio, the law is not
clear even in the case of peculium. Papinian is made to express con-
flicting views on the question whether a servus hereditarius could acquire
usucapion possession, even in re peculiari. The view most generally held,
and supported by various emendations, is that classical law allowed him
to begin usucapion possession for the peculium, but that Justinian first
allowed it in a wider field2. Probably, apart from peculium, even
interdict possession could not be acquired by him till the time of Jus-
tinian3.

Although servus hereditarius played for the moment an important
economic part, the facts did not alter his essential character, or increase
his faculties. His powers were still dependent and derivative. This
became important if the hereditas was not accepted. If no heres entered
under a will or on intestacy, all that the slave had done was void. Thus
the fiscus which took the property, subject to the rights of creditors,
would ignore obligations incurred since the death4. Further, since such
a slave could not bring any actions, any remedies that there were in
the region of civil, as opposed to criminal, law, must stand over till a
heres entered. Thus the discussions in the Digest take the form of enquiry
how far the heres could sue or be sued for what was done when the
hereditas was iacens.

CVIII. It is in relation to Jieredes extranei that the question of
testamenti factio arose. The institutus must have been capable of being
instituted at the time when the will was made, at the death (or in con-
ditional institutions, when the condition was satisfied), and thencefor-
ward till actual entry5. Loss of testamenti factio between these last dates
was fatal even though it was regained ; if delatio became impossible
while it was running, the delatio was destroyed. But it was immaterial
between the two earlier dates, if regained before the later of them —
media temp or a non nocent6, the rule as to capacity at the time of testation
being merely a survival from the mancipatio familiae.

1 41. 2. 1. 5; 41. 3. 45. 1; 44. 7. 16. 2 The chief texts are 6. 2. 9. 6; 41. 3. 20; h. t.

31. 5; h. t. 40: h. t. 44. 3; h. t. 45. 1. 3 The texts on the possessory interdicts do not
give any cases of dispossessed servi hereditarii, or discuss any cases in which they began
possession. But in 43. 24. 13. 5 already noted, it is said that the heres has "quod vi
ut clam" in respect of acts done while the hereditas was iacens, but this text does not
deal with the case in which a s. hereditarius had taken possession. On the position
generally, see Pernice, Labeo, 1. 360 sqq. 4 45. 1. 73. 1. 5 28. 5. 50. 1; Inst, ±

19. 4, etc. See however Schulz, Z.S.S. 35. 112 sqq. 6 28. 5. 60. 4; h. t. 6. 2, etc.

20- -2

308 INSTITUTIO OF POSTUMI [CH.

The cases in which testamenti factio did not exist have already been
considered1, but some remarks are needed as to postumi. At strict civil
law no postumi could be instituted. The extent to which this was relaxed
in the case of postumi sui will be considered later2. A postumus suus
was a person who would be a suus heres if born in the lifetime of the
testator3. But as he need not be even conceived when the will was made,
it was impossible to tell beforehand who might or might not be a suus
heres. It was therefore allowed to institute a future child of any woman,
not at present married to anyone else, who could afterwards lawfully
be the testator's wife. Such an institution was in any case so far valid
as to constitute the document a will which would revoke one previously
made4, but it did not operate positively if, in the event, the child born
was not such as to satisfy the definition of a suus heres, e.g. the child of
another marriage altogether. In that case he was a mere postumus
extraneus ; the institutio was not valid, but as we have said, he could
get bonorum possessio secundum tabulas5. But here, as in all cases of
succession, it was necessary that he be actually conceived at the time
of delatio6. Under Justinian7 any such postumus could be instituted.

Slaves had testamenti factio for this purpose, of course derivative.
Where a man appointed his own slave, the man was, as we have seen,
heres necessarius. In the classical law, notwithstanding the general
favour both of institutiones and gifts of liberty, the dominant view was
that the institutio was void unless accompanied by an express gift of
liberty8. It is clear that some jurists held a different opinion9, and
Justinian enacted that institutio should imply manumissio10. If sold
or freed before the will operated, the man was not a necessarius, but
might acquire iussu (novi) domini or for himself, as the case might
be11. We have seen that in classical law, if an owner freed a man in whom
another had a usufruct, he became a servus sine domino, at least for a
time, and it may be that the institutio was void. Under Justinian he
became free and no doubt, if instituted, took the hereditas12. The case

1 Ante, § cm. 2 In connexion with exkeredatio, post, § cxn. 3 G. 1. 147;

Inst. 1. 13. 4; cf. D. 50. 17. 73. 1. It will be observed that these statements differ in
form. Justinian defines one who is a suus; Gaius and Q. Mucius define one who can be
such. 4 28. 2. 9; h. t. 4; h. t. 28. 3. 5 D. 37. 1 1. 3. 6 Ib. 1 C. 6. 48. 1;

Inst. 3. 9. pr. 8 G. 1. 21; 2. 186. Thus if I institute my slave with no gift of liberty
and later free or sell him, he cannot acquire the hereditas for himself or his master. G. 2.
187; Ulp. 22. 12. 9 See C. 6. 27. 5. 1; Inst. 2. 14. pr. 10 C. 6. 27. 5. 1 b. sqq.

11 G. 2. 188; Ulp. 22. 12; D. 28. 5. 7. 1, 9. 16. 12 Ante, § xxix; Ulp. 1. 19; C. 7. 15. 1. pr.
Esmein holds (Mel. Gerardin, 233 sqq.) that this is an extension of a rule originally applying
only to vindicta, dependent on the (supposed) absolute effect of a judgment in early law.
There are elaborate rules for the case where a master frees and institutes, but one or both
of the gifts is or are conditional : they were in general so interpreted as to secure that the
slave should not get liberty without the hereditas, Buckland, Slavery, 510 sqq.

vn] INSTITUTIO OF SERVUS ALIENUS 309

of a servus communis presents some difficulties. If simply freed, in
classical law he vested wholly in the other owner1, but under Justinian
was free, subject to rules already discussed2. If instituted with no gift
of liberty, this was said to be "ut alienus" and the right to take vested in
the other owner3, who might even be made coheres with him4. If there
was also a gift of liberty, this was "utproprius," but we are not told what
happened in the classical law. It is generally held that the slave entered
for, and at the command of, the other owner. There are logical diffi-
culties5, but the upshot seems to be that the institutio took effect, and
the manumission did not. It is not however clear why Ulpian should
distinguish the two cases, if their effect was the same. Whatever the
classical law may have been, Justinian provided that the slave was free
and took the hereditas, the other master being compensated6.

Institutio of a servus alienus was, in general, institutio of the master,
with whom there must be testamenti factio 7 . The owner took, not one
with lesser rights, whatever the testator's intent8. If the slave changed
hands before entry, his new master acquired9. He must then have
testamenti factio, but it is not clear that he must have had it when the
will was made, if he acquired the slave later. There could be no entry
without the master's authority. If there were several owners they ac-
quired pro rota, and there might be several entries, or, if all approved,
one entry for all10. But though in general the institutio was equivalent to
that of the master, this was true only in relation to testamenti factio and
other broad principles ; the personality of the slave counted in many
ways. Thus the time allowed for claim (under cretio vulgaris) ran from
that of the slave's knowledge. And the slave himself must enter11.

CIX. ADITIO. ENTRY12. As entry could not be made by representative13,

1 P. 4. 12. 1; Ulp. 1. 18. 2 Ante, § xxix. 3 Ulp. 22. 7, 10. 4 28. 5. 90. 5 Salkow-
ski, Sklavenerwerb, 18 sqq. 6 C. 7. 7. 1. 1. For the case of one supposed to be free, ante,
§ cv. 7 Thus fideicommissa can be imposed on him. Ulp. 22. 9; D. 28. 5. 31; 36. 1.

26. 1. A gift of liberty accompanying an institutio of a ssrwis alienus was ignored. P. 3. 4 b.
7. If testator afterwards acquires the slave, the gift of liberty being a nullity the whole
gift is void. The rule is stated by Justinian from Florentinus (28. 5. 50. pr.), but it seems
out of place in Justinian's law. 8 29. 2. 45. 3, etc. There were doubts and conflicts,

7. 1. 21;seeawte,§xcix. 9 Inst. 2. 14. 1; D. 37. 11. 2. 9. Or himself if freed, G. 2. 1 89 ;

Ulp. 22. 13. 10 29. 2. 68; Inst. 2. 14. 3. 11 G. 2. 190; 29. 2. 26; h. t. 30. 7; h. t. 36;
31. 82. 2, etc. 12 In general the will may be opened and entry made at once. But, under
Augustus, the sc. Silanianum provided that, if there was suspicion that the deceased had
been killed by his slaves, there might be no opening or acceptance until there had been
enquiry and torture of slaves who might have been concerned — pain of forfeiture. P.
3. 5; D. 29. 5. As to state of knowledge essential to entry, see 29. 2. 17-19, 23, etc. The
II. caducariae did not allow rights to vest till the will was opened. Thus there could be
no entry till then and the gift might fail by death of institutus between death of testator
and opening of the will. Ulp. 17. 1. 13 29. 2. 36. It is an actus legit imus. But a

slave or son could enter if authorised, h. t. 26. Direction to him to enter for his share
could hardly be pro herede geslio for another share.

310 ADIT1O: CRETIO [CH.

it follows that if the heres was infans or furiosus the hereditas would be
lost at civil law, unless the infans attained intellectus or the furiosus re-
covered his wits. The difficulty was lessened by the fact that in classical
law the curator of a, furiosus could get bonorum possessio decretalis1 and
the tutor (or father) could, it seems, obtain actual bonorum possessio
secundum tabulas2.

Acceptance is called aditio. Gaius tells us that this might be either
by a formal act of acceptance called cretio (cernere) or by acting as heres,
pro herede gestio, or by mere expression of intent, nuda voluntas3. In
the Empire cretio was not necessary unless expressly required by the
will, but this was probably not the case in the time of Cicero4. Nuda
voluntas is not mentioned by any jurist but Gaius5. The formal declara-
tion, cretio, was made in a traditional form of words of which the essential
part appears to be "adeo cernoque6." It was usual to have witnesses, though
there is no evidence that they were required by law7. Like all formal
declarations it was required to be in Latin8.

The name cretio is also applied to the clause, sometimes inserted in
the will, by which the heres was required to accept in this manner. The
purpose of this was not primarily to secure an unequivocal acceptance,
but to make good a defect in the civil law, which set no limit of time
within which a heres must accept9. Thus it invariably set a limit of time
within which the cretio must be made10, and it might of course impose
other directions as wellu. The time was commonly 100 days, though
other times might be fixed12. The days ordinarily ran from the time
when the heres had notice and was able to enter; in this case it was
called cretio vulgaris. But the days were sometimes made to run from
the opening of the will ; here it was called cretio continua13. The form of
the requirement must be carefully looked at. It did not make cretio a
condition, but merely directed the heres to make cretio. As it stands this
would be empty in classical law, for if he did not "cern" there was
nothing to prevent informal acceptance. Thus it was reinforced by such
words as "si non ita creveris, exheres estou," so as to exclude him altogether
if he did not "cern." The exheredatio negatives the institutio altogether
in that event, and we may gather, from the way in which Gaius puts the

1 Post, § CXL. 2 37. 1. 7. 2 perhaps only decretalis. 3 G. 2. 167; Ulp. 22. 25.

4 Cicero never mentions pro herede gestio. D. 29. 2. 62 shews that nuda voluntas was not
known to Javolenus, but pro herede gestio was to Labeo. 5 It is copied into the

Institutes, 2. 19. 7, and it appears in C. Th. 5. 1. 1. 6 G. 2. 164-66; Ulp. 22. 28. The

forms differ only in the omission by U. of the useless words, "testamento suo." 7 See

Autun Gaius, 42. 8 Cp. Cretiones of Sarapias; Girard, Textes, 806. 9 G. 2. 164,

167. 10 G. 2. 170. 11 See Cicero, Ad Ait. 11. 12. 12 G. 2. 170. See for an actual
example of 60 days, Cic. Ad Alt. 13. 46. 3. If too much time was given the praetor might
shorten it, G. 2. 170. 13 In vulgaris, " quibus scieris poterisque," in the other these

words do not appear. G. 2. 165, 171-73; Ulp. 22. 31, 32. 14 G. 2. 165; Ulp. 22. 27.

vn] CRET1O 311

case, that these words were a matter of course. But, if there was a
ubstitutio, we lear n that there were two forms of cretio, perfecta and
simp erf ecta1. In theperfect form the words were, after the direction : "si
non ita creveris exheres esto et C. heres esto." Here even if the institutus (T.)
acted as heres, he was excluded, unless he made cretio, and the substitute
took. But if the words "exheres esto" were omitted, there were no words to
excludehim even if he did not "cern." But this was the condition on which
C. was to be heres. If T. made cretio he was sole heres ; if he did not, but
accepted informally, he and C. shared. This was the logical rule of earlier
classical law-2, but M. Aurelius provided that even if, in cretio imperfecta.
T. did not "cern," he would exclude C. if he accepted in any way3. He
seems to mean, within the fixed time, his point being that the practical
aim of the testator, to secure acceptance within a certain time, has been
realised.

Gaius notes a difference of opinion on another point. Some lawyers
had held that, in the imperfect form, if T., while the time was running,
acted as heres without formal cretio, he admitted C. to a share and could
not afterwards fall back on cretio and exclude him4. The logic of this
seems to be that the words "si non ita creveris" are understood to mean
"if you do not become heres by cretio," and he had made this impossible
by becoming heres otherwise, so that the condition on C.'s institution was
satisfied. But this is not the prima facie meaning of the words, and the
view of Sabinus, which was, probably, the accepted one, was that at
any time before the time limit had expired he could fall back on cretio
and exclude C. The point was rendered obsolete by the rule of Marcus
Aurelius.

How late the rules of cretio existed it is hard to say. A law of 339
may perhaps allow in its stead any declaration before certain officials5.
An enactment of 407 abolished it altogether, in terms, and is so stated
in Justinian's Code6. But in its original form it was part of an enactment
which dealt with inheritances coming to a child in potestas, and did not
necessarily apply to any other case7. But it is also possible that at this
date cretio was not in use except in cases of this kind, in which there is
evidence of a special requirement of it8. On any view it was gone
under Justinian.

If the will contained no cretio clause, any recognised form of entry

1 G. 2. 174 sqq.; Ulp. 22. 32-34. 2 G. 2. 177. 3 Ulp. 22. 34. 4 G. 2

178. 5 C. 6. 9. 9. Justinian refers it to B. P., cf. C. 5. 70. 7. 30 in f., but for earlier

law its language seems to exclude this, especially when it is compared with C. Th. 8.
18. 8, where closely similar language is used to denote entry as distinguished from claim
of B.P. In its present form it can refer only to B.P. Originally it may have dealt with
both. 6 C. Th. 8. 18. 8; C. 6. 30. 17. 7 Or even probably, Girard, Manuel, 885.

8 See C. Th. 4. 1. 1 and C. Th. 8. 18. 1-8.

312 PRO HEREDE GESTIO [CH.

sufficed. Pro herede gestio means doing some act as Jieres, a conception
perhaps not at first clearly defined1, but, in classical law, meaning some
act of administration. It was however permissible to carry out an act
of piety or urgency without being bound, by making it clear that it
was not done animo heredis2. But since apart from the cretio clause
there was no limit of time, the heres might delay as he would, with
resulting inconvenience to creditors and substitutes. The remedy was
found in the spatium deliberandi. The heres might himself apply to have
a time fixed, which might not be less than 100 days or, apart from
imperial sanction, more than nine months3. If he did not apply, a creditor
might sue him and, in court, submit an interrogatio "an heres sit." If
the heres was silent, this was a refusal. If he asked for a spatium, this
was given to him. If at the end of the time he had riot accepted, this
was refusal. If he accepted, the matter was clear4. It is to be
noted that if he did not answer, or allowed the time to pass, he was
excluded by praetorian law, but not by civil. But it would mean denial
of the actiones hereditariae, which comes, practically, to much the same
thing5.

If at any time within the spatium, if one was fixed, the heres expressly
repudiated the hereditas, by word or deed, not having intermeddled, he
was at once excluded6. But if there was a cretio clause, mere repudia-
tion within the time did not bar ; he could still fall back on the cretio 7.
The reason was probably that, as the substitute was admitted only "si T.
non creverit," his admission was not effective till this was impossible8.

Acceptance was in general irrevocable, but there were exceptions.
A minor could get restitutio9. Hadrian, by privilegium, relieved one who
had accepted in ignorance of heavy debt which afterwards came to light,
and this was made a ground of relief for milites, but not for others10.
And if a man was compelled by threats to accept or refuse a hereditas, the
praetor gave him restitutio in integrum11. In the case of dolus the
remedy in both cases was the actio doll ; the acceptance or repudiation
was not undone12.

CX. LEGAL POSITION OF THE HERES. The heres stepped, roughly
speaking, into the shoes of the deceased, so far as what may be called
property rights were concerned. There were of course many limitations.
1 In 29. 2. 62 there are traces of a view that any act shewing intention to be heres
was gestio. 2 29. 2. 20. pr. 3 28. 8. 1 sqq.; G. 2. 167; C. 6. 30. 22. 13 a. 4 C. 6.
30. 9; D. 39. 2. 69. 5 It does not appear that a substitute has the same means of

putting pressure. 6 P. 4. 4. 1; G. 2. 169; Ulp. 22. 29. 7 G. 2. 168; Ulp. 22. 30.

8 We have already noted that this spatium deliberandi was extended to sui in the later
classical law. 9 G. 2. 163; Inst. 2. 19. 5. 10 G. 2. 163; Inst. 2. 19. 6. Justinian

points out that the beneftcium inventarii (n. 9) makes this unnecessary. 11 4. 2. 21.
5, 6. But Celsus quoted by Ulp. in a text which is rather corrupt says that acceptance
under metus is void, 29. 2. 6, 7. 12 4. 3. 9. 1; h. t. 40.

viij LEGAL POSITION OF THE HERES 313

Some rights, e.g. usufruct, were extinguished. Some rights of action were
destroyed, e.g. the actio iniuriarum, if it had not reached litis con-
testatio1. The exceptio legis Cinciae was not available to the heres2. A
few contractual liabilities were ended, e.g. those as sponsor or fide-
promissor3, and such obligations as involved personal service. The heres
of a person entrusted with a mandate did not succeed him, though he
would be liable for any breaches of contract committed before the
death4. Delictal obligations did not pass at all, except so far as the
heres had benefited by the proceeds5. And, conversely, he had, or might
have, obligations that the testator had not ; the legacies and so forth
were clearly not binding on the testator. These he must carry out, sub-
ject to the /. Falcidia, etc., so far as the estate would go. But debts he
must pay in full, whatever the state of the finances6. Hence the power
of repudiation.

The situation in this respect was profoundly altered by an innovation
of Justinian, the beneficium inventarii. He provided that the heres must
make an inventory of the estate, to be begun within 30 days of his
knowing of his right and finished within 90. If he did this, he was not
to be liable beyond the assets 7. The spatium deliberandi was not abolished,
but the heres who preferred to rely on this was penalised ; he was to be
liable for all debts, and not to have the benefit of the /. Falcidia in rela-
tion to legacies, and if he let the time elapse he was regarded as accept-
ing8. It would be only in a minority of cases that this would be material,
for probably most testators were solvent, and few left away more than
three-quarters of the estate in legacies.

As the heres represented the deceased, it might be supposed that
each heres was liable for the whole. The XII Tables however provided
that each heres could sue and be sued only in proportion to his share9.
It was possible for the testator to vary this by charging specific debts or

1 Post, § cxxxv. 2 Ante, § xci. 3 Post, § CLVI. 4 17. 1. 27. 3. 5 G. 4. 112; D.
50. 17. 38. As to this, post, § ccxxxin. Things left per vindicationem belong to legatee on
acceptance of hereditas; as to this and the case where the legacy is conditional, post,
§ cxvii. The right of action for interference with the family sepulchre is available not
only to a heres who has accepted, but to sui who abstain, who are not heredes except in
form, i.e. not for any other practical purpose. Damages recovered by such a person were
not part of deceased's estate, 47. 12. 6, 10. 6 29. 2. 8. pr. 7 The mode of

administration seems crude. Apparently the heres pays creditors on the principle, ''first
come, first served." When no more creditors present themselves he may realise what is
left and pay legacies. If a belated creditor now appears he has no claim against here* or
a vendee, but can enforce hypothecs against legatees, and even bring condictio indebiti
against them. C. 6. 30. 22. 5. 8 C. 6. 30. 22.^12, 14, 14 b, 14 c. In earlier law one who

let the time pass was treated as refusing. G. 2. 167. 9 Debts, D. 10. 2. 25. 13 (Paul);

C. 2. 3. 26 (Diocl.); C. 4. 16. 7 (Diocl.). Claims, D. 10. 2. 25. 9 (Paul); C. 3. 36. 6 (Gord.). In
C. 4. 2. 1 Caracalla describes the rule as to debts as "explorati iuris." In C. 8. 35. 1 he
bases the rule as to claims on "antiqua lex."

314 LEGAL POSITION OF THE HERBS [CH.

any fraction of the debts on any particular heres to the benefit of the
others, but Papinian states the rule that this must not be done to the
practical exclusion of that heres1. A restriction was reached by treating
the charge as a kind of legacy. It must be found what would be the
share of that heres in the nett estate, if debts were distributed pro-
portionally and the total amount of debt imposed on him must not
exceed three-quarters of that. Thus where A, B and C were heredes in
equal shares and all debts were charged on A, the assets being 1000, the
debts 400, the nett value being 600, each share would be 200. Not more
than 150 could be charged on A so that he would get 50 and the others
275 each2.

The debts due to or by the deceased were now due, to the extent
stated, to or by the heredes personally. There was no fiction or other device,
and the name of the dead man would not ordinarily appear in the action
at all. If the heres was insolvent, the confusion of the two estates might
injure the creditors of the deceased, but the praetor gave relief by
bonorum separatio. The creditors, or any of them (even conditional), might
apply to have the estates kept distinct till the debts were paid. This
must be done within a reasonable time and before actual mingling of
the estates. The Digest, probably by interpolation, fixes a limit of five
years3. No creditor, who had in any way accepted the personal liability
of the heres, could claim separatio*, but if it was validly claimed, no
pledge created by the heres was good against the creditors5. The heres
was not barred from claiming any surplus, as he did not claim the
separatio6. On the question whether the creditors who had claimed it
could come on the heres for any deficit, the texts disagree. Paul and
Ulpian exclude them, as they have made their election7. Papinian allows
them to come in, but only after the creditors of the heres are
satisfied8.

If a heres, to damage his own creditors, accepted an insolvent estate,
there was no corresponding right, but, at least under Justinian, there
might in an extreme case be restitutio in integrum9.

The heredes owned the property in common and might of course go

1 10. 2. 20. 5. The limitation is sometimes said to be due to an interpolation.

2 Same result reached in a different way. Each share of gross is 333-j. Each normal share
of debt 133£. Nett for each, 200. But A being charged with all debts must pay the
others so much as the I. Fakidia allows, as if it were a legacy. This is 150, making 75 each.
Thus A gets 50, the others 275 each. The case might of course be much more complicated.

3 42. 6. 1. 12, 13. 4 h. t. 1. 10, 11. 5 42. 6. 1. 3. But a sale of the hereditas, bona-
fide, before the claim, was not affected, h. t. 2. As to missio in possessionem of a heres
suspcctus who does not give security, post, § CCXLV. We have already seen (ante, § cvi)
another case of bonorum separatio oi a different type. 6 42. (5. 1. 17. 7 Ib. ; h. t. 5.
8 h. t. 3. 2. 9 42. 6. 1. 2, 5.

vii] HEREDITAT1S PET1T10 315

on doing so, but this " consortium1'1'' would occur only where the heredes
were close relatives, and was almost out of use in the classical law. In
default of division by friendly arrangement2, the machinery was the
indicium familiae erciscundae3. Its primary purpose was the distribution
of iura in rem ; it was not concerned with debts either way. But the index
in adjudicating the various properties and issuing, if necessary, condem-
nations for equalising payments, took into account payments made or
undertaken by one of the heredes by agreement, and might himself assign
particular claims and liabilities to particular heredes^. This did not bind
the creditors, who, if they liked, could still sue the heredes separately.
But one action is more convenient than many, and it was the practice
for the heredes under such an arrangement, of their own or the judge's
making, to give the heres to whom a claim of debt was assigned
authority to act as procurator (in rem suam5).

Apart from claims against actual coheirs, the primary remedy of the
heres was the hereditatis petitio6, a general real action for the recovery
of all or any part of the hereditas held by one who claimed adversely to
be heres, or, setting up no title at all, held merely " pro possessor e." It
was indeed extended as an actio utilis against one who had bought the
hereditas or a fraction of it from a holder pro herede7, but apart from
this it did not lie against those claiming to hold under any other title.
Nor was it available for recovery of debts, except where these were due
from a holder pro herede or pro possessore, and of course he must restore
things in the hereditas, but not of it, e.g. things lent to the deceased, in
which there could be no question of a ius in rem8. Apart from this, the
heres must bring the ordinary actions. Hereditatis petitio thus differed
from an ordinary real action in scope. It differed also in its rules as to
damages. Before the sc. luventianum (129 A.D.) the possessor was
treated as having been administering for the true heres, bound there-
fore to account for any profits and damage caused by bad administra-
tion, and entitled to claim expenses reasonably incurred. It was hardly
possible to distinguish between mala and bonafide holder while usucapio
lucrativa existed. But the luventianum distinguished. Bonafide possessor
need account only for his enrichment, mala fide possessor must restore
all loss which his intervention had caused to the heres. And it allowed
the action against one who had dolo malo ceased to possess9.

CXI. Lapsed shares. If one institutio was void ab initio, e.g. a

1 17. 2. 52. 8. 2 See e.g. Cicero, ad Alt. 11. 13. 3; 11. 15. 4; 12. 38 a. 2; 13. 12. 4;
13. 13. 4; 13. 46. 3; 16. 6. 3, etc. 3 D. 10. 2. 4 10. 2. 2. 5-4. 5 10. 2. 2. 5, post,
§ CLXXXIX. 6 D. 5. 3. The action was tried before the centumviri in the late Republic
and early Empire. 7 5. 3. 13. 4, 5. 8 5. 3. 19. 9 5. 3. 20. 6 sqq. See on these
points, Girard, Manuel, 914 sqq. The case was of claim by facus, but 5. 3. 20. 9 applies
the rules to private cases. Sceptical view, Beseler, Be.itra.ge,, 4. 4.

316 LAPSED SHARES [CH.

peregrine was instituted, the will was simply construed without1 it.
This rule was never altered. But where a valid institutio lapsed from
any cause, there were great historical changes. In early law the will
was construed without it ; the shares of the other heredes were increased,
and they could not refuse this. Any legacies specially charged on that
institutio fell with it2, till Severus made such a lapse carry its burdens
with it, as a substitutio then did3. But the II. caducarioe, the I. lulia
and the /. Papia Poppaea had made a profound change. It will be
remembered that these laws introduced some cases of complete or partial
incapacity, and that the 1. lunia at about the same time introduced
another. The II. went further ; they set up a new destination for lapsed
gifts, whether the lapse was due to their provisions or not. Lapsed gifts
were divided into two classes, caduca, those which failed after the death,
and gifts in causa caduci, those which failed before the death4, though
both classes seem to have been treated alike. They wrent to other heredes
with children, failing these to legatarii with children, and failing these
to the Aerarium, the popular treasury5. Ascendants and descendants to
three generations were however entitled to ius antiquum, and could take
these lapses whether they had children or not6. Where they went to
coheredes, it may have been in proportion to their shares ; perhaps in case
of legatees it was in proportion to the size of the legacy, but it is more
probable that legatees took equally, and the same may be true of
heredes, the acquisition being a new gift, not a lapse.

At some time, not later than Caracalla and probably earlier, the
Aerarium was replaced by the imperial treasury, the Fiscus. According
to Ulpian, Caracalla suppressed the rights of heredes and legatees in
such windfalls, reserving those of ascendants and descendants with ius
antiquum. Failing these all went to the Fisc7. But this is doubtful,
since he elsewhere in the same book speaks of the "praemia patrum" as
still existing8. They were only completely abolished by Justinian9.
Caduca, etc., took their burdens with them ; he who benefited by them
must carry out the legacies and manumissions charged on them, and

1 It is pro non scripio, not a case of lapse. C. 6. 24. 1. 2 31. 29. 1, '2. 3 31. 61. 1.
4 C. 6. 51. 2 a, 4. It is not easy to see why they are distinguished, for though all the lapses
caused by the II. are in the first class, so are many others and they were treated alike.
Ulpian does not distinguish, 17. 1. 5 G. 2. 150, 207. 6 Ulp. 17. 2, 18. 7 Ulp.

17. 2. 8 Ulp. 25. 17. See also Ulp. 1. 21 ; Fr. de iurefisci, 3 cited by Accarias, 1. 1012.
Girard suggests (Man. 896; Textes, 495) that the praemia patrum were soon after reintro-
duced by Macrinus. Vita Macrini, 13, says that he deprived all the rescripts of his pre-
decessors of authority, and Dio Cassius (78. 12) says that he abolished the laws of Caracalla
on inheritances and manumissions (both cited by Girard). But our law can hardly have
been a rescript (apart from the badness of the authority), and the legislation mentioned
by Dio would seem to be that on taxes, and the Regulae appear to have been written
before the time of Macrinus (Fitting, Alter und Folge, 116). 9 C. 8. 51. 1. 4.

vn] TRANSM1SSIO HEREDITATIS 317

thus they might be refused1. It is important to note that, for these laws
to apply, the will must retain some validity ; if all institutiones failed
there was intestacy2. There were various ways of evading these laws.
Thus adoptive children sufficed till Nero3. The restrictions did not apply
to fideicommissa till the sc. Pegasianum, A.D. 714. A little later tacit
trusts not expressed in the will were forbidden and penalised5. And it
was always possible to avoid the leges by substitutions, and by making
the institutio of a coelebs conditional on his having qualified.

When the State adopted Christianity, \vhich regarded celibacy as a
virtue, it was impossible to maintain these severe penalties on it, and
Constantine abolished the incapacitation of coelibes and orbi so far as
direct gifts to them were concerned6. But he left the praemia patrum in
the case of lapse7, and the special rules between husband and wife.
These last were abolished in 410 8, and Justinian swept away the praemia
patrum9. Under him the old ius accrescendi was restored, but the rule
was maintained that such a lapse carried its burdens with it10.

There were however two sets of circumstances which would prevent
the operation of these rules : indignitas and transmissio hereditatis.

In some cases the law deprived a beneficiary of the advantage, on
the ground of indignitas. The gift was not treated as void, giving rise
to lapse or caducum, but as effective but forfeited. A tutor by will who
excused himself lost any benefit under the will11, as did anyone who
attacked the will unsuccessfully12, and one who accepted a legacy under
a secret trust in favour of one who could not take13. There are many
other cases. These forfeits were not all dealt with alike. Thus in the case
of the tutor the gift went to the child concerned, but usually it went to
the Fisc14.

There were some cases in which, though the person entitled died
without claiming, his rights passed to a successor. Most of them were
late, but even in classical law if a minor had failed to accept and died,
his heres was sometimes allowed to claim15. Pius applied a similar rule
where a father, whose son was instituted, had been entitled to restitutio
in integrum for absence16, the son having died meanwhile, and there
were other cases17. Later law carried the matter further. In 426 it was
provided that where a hereditas was delata to a child under seven, from

1 Ulp. 17. 3. They are claimed, "caduci vindication and do not accrue ipso iure. G. 2.
207; Vat. Fr. 195; Ulp. 25. 17. 2 Arg. G. 2. 144; Accarias, 1. 1013. 3 Tac. Ann. 15.
19. 4 G. 2. 286. 5 Ulp. 25. 17. 6 C. 8. 57. 1. 7 See e.g. C. Th. 13. 5. 7.

8 C. 8. 57. 2. 9 C. 6. 51. 1. 10 h. 1. 4. The enactment is very complex and

verbose. 11 34. 9. 5. 2. 12 34. 9. 5. 1, 3 sqq. 13 34. 9. 10. 14 See D. 34. 9
passim; C. 6. 35. 15 4. 4. 18. 5. 16 28. 2. 30. pr. 17 Where e.g. the delay was
caused by sc. Silanianum (ante, § cix), 29. 5. 3. 30, or incertitude as to status or absence
on public service. See Cuq, Manuel, 785, n. 4, for a list of cases.

318 EXHEREDATIO [CH.

his mother, and he died before the paterfamilias could enter for him, the
latter could still claim the hereditas1. In 450 it was provided that if
issue were instituted and died before the will was opened, their rights
passed to their issue, so that there was no lapse2. In 529 Justinian laid
down a general rule. If anyone to whom a hereditas was delata died
within one year not having made up his mind, his own successors could
come in and claim provided they did so before the expiration of that year3.

CXII. Restrictions on the power of devise. These were of two kinds.
There were rules requiring the testator, if he wished to exclude his issue,
to do so in express terms. This was the law of exheredatio, of formal re-
striction. There were other rules, not so ancient, the aim of which was to
prevent exclusions which satisfied the forms, but were essentially unjust.
These may be called material restrictions, and the most important case
was that of the querela inqfficiosi testamenti.

EXHEREDATIO. The original principle of these rules was that
the sui heredes were so closely connected with the hereditas that any ex-
clusion must be express ; it was an outcome of the omnipotence of the
paterfamilias that he could do this. It was not always with a view to
practical exclusion. Fathers disinherited young children and provided
for them by fideicommissum "ut eis consulant*." The rules changed
greatly under the influence of the tendency to diminish the importance
of agnation5.

Civil law rules6. Sons in potestas, if not instituted, must be disin-
herited nominatim, otherwise the will was void. Nomination does not
necessarily mean "by name"; "That thief, my wife's son," was enough
if there was only one7. The form was "exheres esto," but under Justinian
any other clear words sufficed8. If this exheredatio was before any
institutio there was no need to repeat it in other institutions and sub-
stitutions, nor was it necessary, if the son was instituted in the first
place, to disinherit him for the case of his abstention. And the will did
not fail if the son was not duly disinherited in each successive class of
institutions and substitutions, but those in respect of which he was not
disinherited were void9. Exheredatio of a son might not be conditional,
unless he was instituted on the contrary condition10. Other existing sui

1 C. 6. 30. 18. 1. 2 C. 6. 52. 1. 3 C. 6. 30. 19. 1. He says that Paul had laid

down this doctrine. 4 28. 2. 18. 5 A will which breaks these rules is testamentum
nullius momenti, 28. 5. 69. 6 Antiquity doubtful. The case of a miles omitted in the false
belief that he was dead gave rise to litigation in the late republic (Cicero, de or. 1.
38. 175, 57) which looks as if the rule existed, but was not settled. But Girard points out
that the question may have been whether the ceteri clause was enough for a son, and the
centumviri ruled that it must be nominatim; Manuel, 867, citing Holder and C. 6. 28. 4.
2. 7 28. 2. 1-3. 8 G. 2. 127; C. 6. 28. 3. 9 28. 2. 3. 3 sqq.; h. t. 8; h. t. 14.

Some of the texts are corrupt. 10 28. 2. 3. 1. A postumus, even a son, may be

disinherited conditionally, 37. 9. 1. 5.

vn] EXHEREDATIO 319

heredes might be disinherited by a general clause, "ceteri exheredes sunto,"
and if this was not inserted the will was not void, but the omissi came
in by a ius accrescendi1, which seems to mean increasing the number of
the heredes. The share they took is oddly stated. If the instituti were
sui, the omissi took equally with them (pars virilis); if extranei, the
omissi took half the hereditas. If there were both the omissi took pars
virilis as against sui and half as against extranei2. This way of calculating
would sometimes give an omissus more than the share of the instituted
suus and more than he would have obtained on intestacy3. There was
a dispute as to the effect where a suus filius omissus ultimately died
before the testator. The Proculians held that the will was saved; the
Sabinians that it was void, and this view prevailed4.

Difficulty arose if, after the will was made, a person came into existence
of the class requiring exheredatio or institutio5. This would upset the will,
since, as incapaces and regarded as incertae personae, they could not be
instituted or disinherited by anticipation6. It seems that whether male
or female, child or grandchild, the will was void 7, except that, probably
quite early, the rule developed that, if such a person died before the
will operated, he was ignored8.

Relief from the destructive effect of these rules was given partly by
juristic interpretation and partly by legislation. These postumi were
those who would have been sui heredes if they had existed when the will
was made. The same difficulty arose with those who became sui of their
grandfather by the death of their father between the making of the will
and the grandfather's death. The first class provided for, late in the
republic, were postumi legitimi. These were children and grandchildren
born after the testator's death, if, in the latter case, the father was
dead when the will was made. They might be instituted or disinherited

1 G. 2. 124, 128; Ulp. 22. 17; P. 3. 4b. 8. 2 G. 2. 124; Ulp. 22. 17. 3 Two sons
and an extraneus instituted equally, a daughter omitted. Sharing with her brothers she gets
two-ninths with them and one-half the third of the extraneus. This gives her seven-
eighteenths, more than either brother gets and more than she would get on intestacy. If
there were several omissi, it is not clear whether they took a pars virilis each or between
them, as against sui instituti. See Karlowa, R.Rg. 2. 890, for the latter view. But the
language of C. 6. 28. 4, which emphasises the point that under this system legacies were
wholly valid, while under the praetorian scheme (post, § cxni) some failed, and appears
to treat this as the main distinction in effect between the two systems as against sui,
hardly favours the view that there was this other great difference. And it is difficult
to reconcile with the not very high authority of L. R. Burg, 45, who says that they took
"in aequalem" with sui. 4 G. 2. 123; Inst. 2. 13. pr.; D. 28. 2. 7. 5 G. 2. 130-134

(defective); Ulp. 22. 18 sqq.; P. 3. 4b. 10. 6 Ante, § cm. 7 Ulp. 22. 18; Inst. 2.

13. 1. This exceptionally harsh rule may not be ancient. Cicero speaking of it applies
it only to sons, de or. 1. 57. 241; pro Caec. 25. 72. It can hardly be an application of the
praetorian rule, for Ulp. uses the word "ruptum." The fact that they are likely to have
been forgotten hardly accounts for it. 8 At praetorian law, 28. 2. 12. pr.

320 EXHEREDATIO [CH.

by anticipation1. To be quite safe there should be express disherison of
''what issue may be born of my wife (etc.-).'' but. if it proved to be a
girl or a nepos, the general ceteri clause sufficed, provided, says Ulpian,
something was left to them to shew they were not forgotten3. The next
class were postumi Aquiliani. Aquilius Callus devised a form for insti-
tuting or disinheriting grandchildren born after the grandfather's death,
whose father died after the will but before the grandfather, and this
was gradually extended to all remoter issue born after the death who
would have been sui if then alive4, e.g. great-grandchildren or grand-
children whose father had been emancipated.

The next step was a statute, the /. lunia Velkia. probably of A.D. 265.
It dealt with two cases : first, anyone born a suns between the making of
the will and the death (post urn i Velleioni. primi capitis). and. secondly,
grandchildren born before the will was made, becoming s-ui later, their
father passing from the family, in the grandfather's life, by death or
capitis deminutio (secundi capitis6). These are sometimes called quasi
postumi. They were not incerti. and could have been instituted, but
previous institution would not. apart from the statute, have saved the
will. The next to be provided for were the postumi luliani. Julian held
that on the combined effect of the two provisions of the lex, it was
possible to provide for grandchildren born after the will was made, but
before their father's death7. These covered most cases, and Tryphoninus
laid down the general rule that it was possible to provide by anticipatory
institutio or exheredatio for anyone who became a suus after the will was
made, in the natural course of things so far as he was concerned8. If he
became a suus by his father's emancipatio. this was within the rule;
there had been no juristic event touching him. But if he became a
suus by himself being adopted, this would not be9.

In this case. i.e. of persons voluntarily introduced into the family by
adoption, anniculi probatio or similar act of the paterfamilias, there was
no relief in earlier classical law10. Previous exheredatio of such a person
would be a nullity, and it seems to have been held, without any obvious
logical necessity, that previous institutio did not save the will11. Hadrian,
in an exceptional case of erroris causae probatio, allowed previous
institutio to save the will12, and the jurists generalised this, so that the
rule of later classical law, and after, was that such persons would not

1 Ulp. 2-2. 19. 2 Up. -22. 22; D. 28. 2. 28. 3. 3 lip. 22. 21. 4 28. 2. 29. pr.-o.
5 Girard, Manuel, 870. 6 Ulp. 22. 19: D. 28. 2. 29. 15. 7 28. 2. 29. 15. 8 28.

2. 28. 1. It was important so to frame the in-ititutio, etc. as to cover all cases, P. 3. 4 b.
9; 28. 2. 28. 2; Accarias, Pre'ci-i, 1. 907. 9 Inst. 2. 17. 1: as to mi&sio in po^sessionem
for the protection of the interest of nnbom heirs — mi-**io rentris (D. 37. 9), and for the case
of children whose legitimacy is doubted (ed. Carbonianum, D. 37. 10), post, § ccxi/v.
10 See the instances in G. 2. 138 sqq.; Ulp. 23. 3. 11 G. 2. 142. 12 G. 2. 143.

TII] EXHEREDATIO: PRAETORIAN RULES 321

upset the will if previously instituted, but that previous exheredatio,
being a nullity, would not save the will1. But there was no particular
hardship in requiring a man, who did such an act as adoption, to recon-
sider his will.

CXIII. Praetorian changes. The praetor could not affect the civil
law validity of a will ; he could not make or unmake a litres2. What he
could do was to give bonorum possessio to a person, heres or not at civil
law3, which gave him the poAver to take possession of the goods by appro-
priate steps. Here it was bonorum possessio contra tabulas, and its
effects will shortly be stated. The tendency of his changes was two-fold,
to put women claimants on the same level as men, which he did only
imperfectly, and to ignore the strict civil conception of the family, by
admitting emancipate and some others. His rules, which applied only
to male testators, were, shortly, as follows :

1. Male sui, sons or remoter issue, must be instituted nominatim—
the ceteri clause still sufficed for women5.

2. In either case, if this was not done, the will was upset. The
omitted person could get bonorum possessio contra tabulas6.

3. Persons other than sui admitted to the same right were, mainly,
those who would be sui but for a capitis deminutio and were not in
another family, with some others. Such were emancipate, children left
in the grandfather's family by the deceased when he was emancipated,
his children emancipated by the grandfather while he, the father, was
in potestas1*, or after, those not put under potestas when the father ob-
tained civitas8, and perhaps vestal virgins and famines, who passed out
of potestas without capitis deminutio9. If a father with an emancipated
son was adrogated, the son could not claim till later classical law10.
Adoptive children, emancipated, had no claim, as they were in their
original group11, but a child given in adoption to his father by the grand-
father could claim in the grandfather's estate, as not in another family12
from the praetor's point of view. Any liberi instituted, even a child
given in adoption into another family, could, by a special provision of
the edict, claim if there was some other person who had a claim, and
brought the edict into operation13, the point being that they might thus
increase their share.

The rules of collatio bonorum created an important restriction of this
right. Any of these persons who were sui iuris might have received

1 28. 2. 23. 1; G. 2. 140. 2 Inst. 3. 9. 2. 3 Inst. 2. 13. 3. 4 Ulp. 22. 23.

5 lb.; G. 2. 129. 6 G. 2. 125; Inst. 2. 13. 3; D. 37. 4. 3. 10. 7 Ulp. :?2. 23; G.

2. 135; Inst. 2. 13. 3; D. 37. 4. 3. 9; h. t. 6, 7, 17. 8 Ante, §§ xxxv, xxxvi; G. 3. 20,

25, 26; Coll. 16. 7. 2. 9 Arg. 37. 4. 1. 6. 10 37. 4. 17. 11 G. 2. 136, 137.

12 37. 4. 21. 1. 13 37. 4. 3. 11; h. t. 8. 11; h. t. 10. 6. The title contains other

analogous cases.

B. R. L 21

322 COLL AT 10 BONORUM [CH.

property when emancipated1, and had, in any case, had means of
acquiring property since then, such as a filiusfamilias had not. The
unfairness was met by the rule that if such persons claimed to share
with sui, but only in that case2, they must bring in for division what
they possessed, subject to the provision, indicated by the purpose of the
rule, that the collatio could be demanded only if the institutus was a
suus, and the coming in of the emancipatus benefited him and injured
the suus3. If a suus was instituted for a quarter and an extraneus for
three quarters, an emancipatus who upset the will benefited the suus,
who now got half4. There would be no collatio, but there would be if the
figures were reversed. If an emancipatus upset a will and lost legacies as
large as his share there was no collatio, as he had gained nothing5. There
might be liability to collatio in favour of one suus and not another. Where
a son in potestas was given half, and two children of the emancipatus, left
in the family, the other half, and the emancipatus upset the will, the son
was not affected as he took the same amount, but as the emancipatus took
half of what his children would have taken, they could claim collatio6.

There was another case of collatio — collatio dotis. A daughter who had
received a dos might, if the dos was to revert to her, have to make
collatio of it if she in any way claimed7 to succeed except ab intestato9.
As the dos was not directly available while the marriage lasted it was
allowed for in that case in arriving at her share9. The principles seem to
have been much the same, but the rule applied essentially to a daughter
in potestas, since in any other case the dos would come in under the
other rule.

The rule of collatio did not apply to what even a filiusfamilias
could acquire, e.g., peculium castrense. The change in the economic
position of Jiliifamilias greatly lessened the importance of this form of
collatio, which had indeed almost disappeared in the time of Justinian 10.

4. Bonorum possessio contra tabulas did not completely upset the
will ; this was still valid at civil law, but that meant little, as the bonorum
possessio became cum re soon after its introduction11. But some pro-
visions were unaffected; exheredationes, pupillary substitutions and
legacies to parents, children, wife and son's wife12. Manumissions failed,
apart from some exceptional cases 13. As to tutelae it appears that the
appointments needed confirmation14.

1 See 39. 5. 31. 2. 2 C. 6. 20. 9; D. 37. 6. 1. 5. 3 37. 6. 1. 4 sqq. Security may
be required, P. 5. 9. 4. 4 37. 4. 8. 14. 5 37. 6. 1. 4-7. 6 37. 6. 3. 6; 37. 8. 1.

17. Probably, though the texts are not conclusive, he need bring in no more than
would balance the loss, 37. 6. 1. 3, 8. 7 37. 7. 1. Difference in later law between

profectilia and adventitia, C. 6. 20. 4. 8 37. 1. 3. 9 C. 6. 20. 5. 10 37. 7. 1. 7; C. 6.
20. 4; h. t. 19. 1. A new kind of collatio, extended by Justinian to wills, will be more
conveniently considered under intestacy, post, § cxxvin. 11 Pott, § cxxxix. 12 37. 4.
10. 5; 37. 5 passim. 13 40. 4. 29. 14 26. 3. 3.

vii] RESTRICTIONS ON EXHEREDATIO 323

In the course of the Empire, before Justinian, the chief changes were
two ; Antoninus Pius provided that women sui heredes were not to have
more under the praetor's rides than they would have had under ius
accrescendi, which still existed. One entitled at civil law could proceed
under those rules, if he or she preferred. The rule of Pius was understood
to apply to emancipatae, in whose case it meant that they were not to
get more than they would had they been entitled to claim ius accre-
scendi1. The chief point seems to have been that under ius accrescendi
all legacies were due, while under the praetor's rule some were destroyed2.

The rules of exheredatio, under Justinian, may be shortly stated as
follows :

All exheredatio, of existing sui or postumi, must be nominatim, i.e.
express; the ceteri clause being abolished. If this was not duly done
the will failed, in the case of a suus omissus, altogether, in other cases
except as to certain provisions already mentioned. The principles of
collatio still applied but were of small importance3.

CXIV. Material restrictions. The power of exheredatio was not un-
limited. The general provisions for the case of unjust exclusion will be
stated shortly, but there are some minor provisions first to be dealt
with.

By a sc. Afinianum, of unknown date4, it was provided that one who
adopted one of three brothers was bound to leave him a quarter in any
event. This probably means a quarter of what he would get on intestacy,
though Theophilus makes it a quarter of the estate5. Failure to do this
did not upset the will (unless some other rule was broken, e.g. he was
omitted), but he had an action against the heres for the quarter. The
purpose of the rule is controverted6. Justinian abolished it in recasting
the law of adoptio7.

The adrogatus impubes had a right to the quarta Antonina8.

The patron had indefeasible rights, to be discussed under the law of
intestacy9, and the par ens manumissor seems to have been in the same
position. A widow without dos was entitled, under a novel of A.D. 537 10,
to one-fourth of the husband's estate, however many children there
were, subject to diminution in respect of her other means, and there

1 G. 2. 126; C. 6. 28. 4. 1 which puts it down to Caracalla. Kniep (Gains, ad 2. 126)
accepts this, holding the passage in G. a later addition, and P. and U. know nothing of
it. But it is clear that Pius did in fact legislate on legacies in b. p. c. t. 37. 5. 5. 6; h. t. 23.
2 Gains does not say what becomes of what she cannot take, accrual?, caducum'i He
does not tell us whether of two emancipatae, one omitted and the other instituted,
the institute, ranks as a sua or an extranea for the purpose of applying the rules of ius
accrescendi. 3 Inst. 2. 13. 5; C. 6. 28. 4. 6-8. 4 Inst. 3. 1. 14. 5 Ad Inst. 3. 1. 14.
6 For various opinions see Girard, Manuel, 183; Cuq, Manuel, 201. 7 C. 8. 47. 10. 3.

8 Ante, § XLV. 9 Post, § cxxxiv. 10 Nov. 53. 6.

21—2

324 QUERELA IN OFF 1C 10 SI TESTAMENTI [CH

was a converse rule for husbands without donatio. There seems to
have been a maximum limit of 100 aurei. In 542 it was provided
that the share should be a pars virilis if there were more than three
children1.

The remaining rule is much more important.

QUERELA INOFFICIOSI TESTAMENTI2. However formally exheredatio
was carried out, it might be unjust, and there were other cases in which
the law recognised a moral duty to make provision unless there was plain
reason for exclusion. The remedy devised was this guerela, a complaint
that the will was inofficiosum. It was nominally rested on the notion
that the testator must have been insane3, which would involve com-
plete nullity of the will, but the notion was not logically applied, for
there were cases in which the will was left partly effective. In classical
law the proceedings were before the centumviri*. The burden of proof
that the exclusion was unjust was on the claimant5. There is controversy
as to the exact nature of the proceeding. It seems to have been a basis
for hereditatis petitio rather than an independent procedure, but it
clearly involved a special preliminary enquiry, so that it can be treated
as a separate matter. It is not clear whether there was a separate
judgment or whether judgment in the hereditatis petitio followed directly
on the enquiry, but the better view seems to be that there was a separate
judgment6. As it involved some reflection on the testator, it was allowed
only as a last resort ; no one might use it if he had any other remedy.

1 Nov. 117. 5. 2 P. 4. 5; Inst, 2. 18; D. 5. 2. Neither Gaius in the Institutes

nor Ulpian in the Regulae has anything to say about the querela. There is a good deal
from Ulpian in D. 5. 2. 3 Inst. 2. 18. pr. ; D. 5. 2. 2; h. -t. 5. It is only "color insaniae."
4 5. 2. 17. pr. See as to an extension for the case of bonorum possessores and others,
not tried before the centumviri, Eisele, Z.S.S. 15. 256 sqq. 5 See 5. 2. 3. Not excluded
by pact inter vivos, P. 4. 5. 8. 6 Girard, Manuel, 874 and the literature there

cited. For the sixth century commentators it is not a distinct action, but a ground on
which hereditatis petitio can be brought, having its special rules and restrictions. The
aim being to make the case one of intestacy, it is like any other claim of the hereditas
against the institutus, and it may be that this is only the result of the disappearance
of the old classifications of actions and substitution of new arrangements. (See Collinet,
fitudes Historiques, 1, 192 and reff.) The question remains whether it ever was a distinct
action. The materials are scanty, as we have little information independent of the sixth
century writers. According to one view the Byzantine sj'stem represents no essential
change. It was never more than a particular basis for the hereditatis petitio. Querela is
unique for the name of an action, and there are other points in favour of this view. Others
hold that, though it was no more than a basis for the hereditatis petitio there were a separate
hearing and decision on which that of the hereditatis petitio would follow, since to bring
the querela is to shew that there is no other basis. Paul in the only classical text which
throws light on the matter (P. 4. 5. 8-10) seems to treat it as an independent procedure.
It cannot be extremely ancient. The equitable idea it expresses is not primitive, nor are
the centumviri. It is possible that, even if it was a distinct thing in classical law, it began
in the admission of unfairness in reply to or in support of hereditatis petitio. See Jobbe-
Duval, Mel. Gerardin, 355 and Mel. Fitting, 1. 437, where the literature is fulJy examined.

vn] QUERELA INOFFICIOSI TESTAMENT I 325

Thus a suus omissus, as he could proceed under the rules of exheredatio,
could not bring the querela1.

The querela might be brought by various persons, subject to the
principle which results from its relation to hereditatis petitio, that no
one might bring it who was not entitled on intestacy2. If a person not
really entitled brought it, and got judgment, either through judicial
error or because the defendant made no defence (e.g. knowing that though
this case was unfounded, there were others which would succeed), the
successful litigant benefited not himself, but the person really entitled3.
There were however exceptional cases in which one not heres on intestacy
could bring it for his own benefit. Thus, if the nearest heres failed because
he was justly excluded, the next could bring it, if he was within the classes
to whom it applied. The same was true if the nearer person refused to
claim. But these cases may be post-classical4.

The rules determining the classes who could claim, not all recognised
at the same time, express two distinct ideas, the old idea of common
property in the family estate and the later one of duty to consider
claims of near relatives.

The classes are5 :

1. Descendants, i.e., sui and other liberi, of a man, unjustly disin-
herited6, and descendants of a woman, unjustly omitted, including
postumi7.

2. Ascendants unjustly omitted8.

3. Brothers and sisters unjustly omitted, if some base person was
instituted 9. This is an early case. It was confined till Justinian to those
having both parents in common and still agnatically connected. Under
him it extended to all consanguineous brothers and sisters (i.e. of the
same father) whether the agnatic tie existed or not. But uterines
(i.e. having only the same mother) were always excluded. Turpes
personae are defined in the Codex Theodosianus in rather vague terms ;
they included infames and all who earned their livings in disreputable
ways10. Justinian is a little more precise: in particular, he adds liberti11.

The classical rule was that the persons entitled might bring the
querela not merely if wholly neglected, but if they took less than a fourth
of what they would have on intestacy, pars legitima. (This was sometimes
called the quarta Falcidia12, which has led to the view that the ride itself

1 5. 2. 23. pr.; Inst. 2. 18. 2. 2 5. 2. 6. But in that case— even against the

emperor heres. P. 4. 5. 3. 3 5. 2. 6. 1. 4 5. 2. 14; h. t. 31. 5 Querela trans-

missible in later law if proceedings actually started, though Us not yet contestatd.
Earlier law uncertain. 5. 2. 6. 2. 7 interp. 6 As to express exheredatio of emancipate,

see 5. 2. 23. pr. 7 Inst. 2. 18. pr. — 2; P. 4. 5. 2; D. 5. 2. 1, 5, etc. Even spurii,

h. t. 29. 1. 8 h. t. 15. pr. 9 C. Th. 2. 19. 1; C. 3. 28. 27. Restriction probably post-
classical. 10 C. Th. 2. 19. 1, interpretatio. 11 C. 3. 28. 27. 12 C. 3. 28. 31.

326 QUERELA INQFFICIOSI TESTAMENTI [CH.

was based on the I. Falcidia1.} If however the will, containing an
insufficient gift, contained also a direction that the amount was to be
made up, there was, from the fourth century, no case for the querela,
but an action lay against the heres to have the due amount made up—
actio ad supplendam legitimam2. There was a good deal of law as to
what sort of gift counted for the exclusion of the querela. All gifts under
the will and all donationes mortis causae counted3, but not, in general,
donationes inter vivos. Ulpian held indeed that such a donatio would
count if it had been expressly given with that aim, but this view was
not accepted, and was directly negatived by Justinian4. Zeno allowed
dos and donatio ante nuptias to count5, and Justinian added gifts to
defray the expense of obtaining a militia*.

Apart from the reorganisation in the Novels Justinian made several
changes in detail. He provided that any benefit under the will excluded
the querela, the aggrieved person being confined to the actio ad supplen-
dam legitimam, which did not affect the will ; in fact implying the direction
to make up the amount wherever it was needed 7. Soon after the pub-
lication of the Institutes he established a fresh minimum in the case of
children. They were to be entitled to one-third if there were four or less,
and one-half if more 8.

CXV. If the court held the exclusion just, the querela failed9, and
there were other circumstances which would exclude it. The chief
were :

(i) At first two years delay, later five, to run, not, as Modestinus
held, from the death, but, as Ulpian held, and Justinian enacted, from
entry of the heres10. The Emperor might extend it for good reason ; if he
did, any manumissions which had taken effect were good, the libertus
being bound, at least in later law, to pay 20 aurei to the successful
claimant11.

(ii) Any recognition of the validity of the will, as by accepting a
benefit under it12. A tutor was not personally barred by accepting a
legacy for his ward, nor did he bar the ward by accepting one for him-
self13. But one who volunteered to act as procurator to accept for another
was barred14.

1 The querela is older, but it is suggested that it was not till after the I. Falcidia
that an exact quota bound the court. As in the Falcidia, debts, funeral expenses and
value of freed slaves are deducted in arriving at the value of the estate, P. 4. 5. 6.
2 C. Th. 2. 19. 4; C. 3. 28. 36. pr. 3 Inst. 2. 18. 6. 4 5. 2. 25. pr.; 38. 16. 16; C. 3. 28. 35.
5 C. 3. 28. 29; cf. Greg. Wis. 4. 2. 6 C. 3. 28. 30. 2. In later law, militia includes certain
heritable and transferable offices about the court. See Brissonius, de verb, signif. s.v.
7 Inst. 2. 18. 3. 8 Nov. 18. 1. A hasty enactment: if there were four their legitim was
one-twelfth each: if five, one-tenth. 9 C. 3. 28. 11. 10 Pliny, Ep. 5. 1. C. 3. 28. 36. 2.
Pliny's language suggests that the two years were based on the period of usucapio. 11 5.
2. 8. 17; h. t. 9. 12 5. 2. 12. pr. 13 Inst. 2. 18. 4; D. 5. 2. 22. 1, 3. 14 5. 2. 32. pr.

vn] QUERELA INOFFICIOSI TESTAMENTI 327

(iii) Transactio. If the claimant made a valid compromise with the
scriptus heres and it was carried out, the querela was barred, and the will
valid1.

(iv) Death of the claimant without taking steps. But, at least in
later law, if he had taken steps clearly shewing intent to bring the
querela, and died without evidence of changed intentions, the claim
survived to his heres2. It is likely that in classical law he must have
definitely begun the action3.

(v) Abandoning the querela after beginning it, i.e. after definite
joinder of issue, but not where the withdrawal was due to fraud of the
scriptus heres4.

The question remains : What was the effect of the querelal This
varied with the facts, and only a few typical cases can be dealt with.

Where there was only one claimant and he succeeded against all
the instituti, the will was void ; manumissions and other gifts failed and
legacies already paid could be recovered as indebita, unless the scriptus
heres, when he paid, knew of the querela, in which case he was liable to
the successful claimant5. If however the decision was arrived at by
default, then, as in case of proved collusion, legacies and manumissions
were valid6. If he failed he lost all benefits under the will, and they
went, not to the heres, but, in general, for indignitas, to the fisc7. But he
did not suffer this penalty unless the matter went to judgment. If he
died or withdrew or compromised he did not lose his gift8. Nor did
he lose it if he was not acting on his own behalf. Thus, where a tutor was
acting on his ward's behalf, neither he nor the ward suffered9.

Where a claimant succeeded against one heres and failed against
another, we get the fact brought out that the querela was not necessarily
an arraignment of the whole will, but litigation inter paries, and a
decision against one did not affect others. The event might happen in
several ways. A brother might bring it against two heredes of whom
only one was a base person10. A claimant might bring it against different
heredes in different actions and the iudices decide differently (or one of
the instituti might have by the will only what he would have on intes-
tacy). Or he might withdraw it against one. The result would be that
the will stood partly good, so that, in effect, a man was pro parte testatus11.

1 5. 2. 27. pr. 2 5. 2. 6. 2; h. t. 7. 3 Paul in Cons. 6. 5. 4 5. 2. 8. 1 ; h. t.

21. pr. 5 5. 2. 8. 16. 6 5. 2. 17. 1; h. t. 29. pr. 7 5. 2. 8. 14. But fideicommissa
charged on him are unaffected, P. 4. 5. 9; D. 5. 2. 8. 14, and, in classical law, a substitute
of an institutus who failed in the querela would take in preference to the fiscus, P. 4. 5.
10. As this involved his institutio the case could not arise under Justinian. 8 5. 2.

8.14. 9 5. 2. 30. 1; 34. 9. 5.9; h. t. 22. 10 5. 2. 15. 2; h. t. 24. 11/6. He

did not in strictness die intestate; his will was not pro parte void, it was set aside pro
parte.

328 QUERELA UNDER THE NOVELLAE [CH.

Except so far as they were charged solely on the institutio which was
upset, legacies were good pro rata, and manumissions, which of course
could not be reduced, altogether1. Similarly, if he brought it only against
one of several heredes, the will was valid pro parte2.

The texts, on the case in which there were two or more prima facie
entitled, but only one acted, are obscure and to some extent in conflict3.
If the one who did not act was justly excluded or renounced his claim
or withdrew, the better view seems to be that the will was valid pro
parte, as in the last case. But what happened if one had simply not acted
is not clear. According to one view the will was void; on another it
was pro parte valid. In any case if the claimant failed he alone lost his
benefit; the other was unaffected. If two claimed and one succeeded
while the other failed, there is the same conflict in modern opinion4.

In 5425 Justinian made sweeping changes. In estimating the pars
nothing was to count unless the claimant was actually institutus for a
share, but if he was, all mortis causa capiones counted. In the case of
children the exclusion would be treated as unjust, and the will as
inofficiosum, unless it was on one of fourteen grounds, set out in the
Novel, and the ground was stated in the will. If the rule was broken,
the institutiones were void, but the minor provisions stood good, so that
there would be a will with no heres. There were corresponding provisions
for ascendants, eight grounds being stated, but brothers and sisters
were left under the old law.

The rule requiring exclusion to be express clearly tends to assimilate
omission and exheredatio, and there is some doubt as to the effect of the
change. Some writers hold that after this novel, the rules of querela and
exheredatio were fused, the new system superseding them both. But
those who take this view are not agreed as to the proper way in which
to state the result. On one opinion the real result was the survival of a
system based on the principles of querela, and substantial disappearance
of the law of exheredatio. Another opinion exactly reverses this. The
new rules supersede the querela, and are a remodelled set of rules of
exheredatio. The main practical difference would be that, if the rules are
those of querela, the proceedings would have to be brought ordinarily
within five years, while on the other view the claim would be barred
only by the ordinary period of limitations, then 30 years. But the lan-
guage of the novel itself seems in favour of the view that both sets of
rules survived, that omission of suus or emancipatus was still remedied

1 31. 76. pr.; C. 3. 28. 13. 2 5. 2. 19; h. t. 25. The former is one of the famous leges
damnatae and almost any conclusion can be drawn from one or other of the various proposi-
tions contained in it. 3 The chief texts are 5. 2. 8. 8, 16, 17, pr., 23. 2, 25. 4 See
for various views, Windscheid, Lehrb. § 584, nn. 24-26, and literature there cited. Accarias,
Prdcis, 1.963. 5 Nov. 115.

vii] FAILURE OF WILL 329

by ordinary hereditatis petitio or bonorum possessio contra tabulas, the
new rules applying only in cases which in earlier days would have
given rise to the querela1.

Querela inofficiosi donationis, dotis. As donatio mortis causa might
be cut down like legacy under the /. Falcidia, it may be that the amount
of such gifts was taken into account in arriving at the value of the estate
for the purpose of estimating the pars. It is clear that donationes inter
vivos were not. But Severus Alexander, in a case in which such gifts had
been made on a large scale in order to defeat the claim under the querela,
ordered the gifts to be cut down by half2. Legislation, beginning in 245,
but mainly under Diocletian, laid down general rules for such cases3.
The effect was that in cases both of wills and of intestacy4 there was a
machinery similar to the querela5, by which immoderate donationes and
dotes might be set aside. As it was all post-classical, we have no juristic
discussion and the texts leave some questions uncertain. Some texts
require, as in the querela, only eventus, i.e. that successors in fact suffer,
others require intent as well6. It was the gift which was attacked, not
the will, and the texts are not in agreement whether the gift was wholly
revoked or only pro tanto — probably the real rule was the latter. It was
presumably under the same time-limit and general conditions as the
querela1. Justinian8 established a system, applicable only where the
donee was afilius, in which it is clear that the effect was to cut down the
gift, but it is expressed as a new system and throws little light on the
earlier rules.

CXVI. FAILURE OF WILL. A will validly made might nevertheless fail
to operate. We have just considered one case, that of the querela. The
expression, testamentum irritum, might be used to cover any of the cases,
but, in practice, it was confined to two, that of a testator who suffered
capitis deminutio, and that of a will under which no heres entered,
which was also called testamentum destitutum or desertum 9. Where a will
failed in consequence of the appearance of postumi or the like, it was
called testamentum ruptum, and this name was also applied to a revoked
will10. This case must be considered. Mancipatio was essentially irre-
vocable, but there was nothing in this to prevent the testator from
altering the written instructions which he had given to the familiae emptor.

1 For some account of the controversy see Windscheid, Lehrb. § 591. It is an old quarrel,
see Haenel, Dissensiones dominorum, 454. 2 31. 87. 3. 3 Chief texts: C. 3. 29. 1,
2, 3, 4 ( =Vat. Fr. 282), 5, 6, 7 ( =Vat. Fr. 280), 8, 9 ( -C. Th. 2. 20. 1); C. Th. 2. 21. I
( =C. 3. 30. 1); Vat. Fr. 270, 271; D. 31. 87. 3; Nov. 92. As to revocation by donor where
it appeared that legitim would be interfered with, see C. 3. 29. 5. 4 C. 3. 29. 3.

5 "luzta," "ad instar," "ad similitudinem," "ad exemplum," etc. 6 C. 3. 29. 1,8;

Vat. Fr. 270. 7 C. 3. 29. 6. 8 Nov. 92. 9 C. 2. 145-147; Ulp. 23. 1, 4; Inst. 3. 1.
7, 8. 10 Ulp. 23. 2. See as to the possibility of validity for certain purposes in a

testamentum irritum or ruptum, ante, § cxir and below, p. 330, nn. 2, 6.

330 REVOCATION OF WILL [CH. viz

Hence arose the rule of classical law that a will could not be revoked
at civil law except by making another1. Failure of the second, if it was
validly made, did not revive the first, except by special imperial relief2. If,
however, in the second will, the institutio was ad certam rem3, the rule
that the restriction was ignored was, in this case, set aside, in effect, by
Severus, who provided that though the old will was revoked, the heres
under the second was under a trust, fideicommissum, to give to those
interested under the first will all but the things mentioned, with enough
added, if necessary, to make up a quarter of the hereditas*.

The praetor took a different line. If a will or its material parts had
been destroyed by the testator, he would refuse bonorum possessio under
it5, and if a second will had been so revoked, he would give bonorum
possessio under the will which this second will had revoked, at least
if the revocation was with intent to revive the old will6. After the manci-
patory will was gone there was a change. Honorius laid down the strange
rule that a will should be revoked, ipso facto, by the lapse of ten years.
His reasoning is not clear but apparently he held that a man must have
changed his mind by that time7. A little later Theodosius provided that
a will would be revoked by a second will, even if, in this, the proper
formalities were not complied with, provided five witnesses were
prepared to attest its genuineness, but this applied only where the
instituti in the first will were not entitled on intestacy, while those in
the second will were 8. But it was only a revocation ; the new document
was not a will but was regarded as expressing the wishes of an intestate,
which no doubt means that its main provisions were treated as fideicom-
missa. Justinian adopted this, but for the rule of Honorius he sub-
stituted the more rational enactment that a will could be revoked
after ten years by a declaration, in court, or before three witnesses 9. The
praetorian rules were still operative.

1 G. 2. 144, 151 ; Ulp. 23. 2. 2 G. 2. 144. Any institutio which could possibly take
effect would upset the earlier will. Thus the institutio of a postumus, which failed because
in the event he proved to be an extraneus, would upset an earlier will, if he could have
been a suus. See 28. 2. 9. 4. 3 See ante, § civ. 4 Inst. 2. 17. 3. In 28. 5. 93

where a man, thinking his heres was dead, made another will, and gave this reason, and
the heres was not dead, Severus and Caracalla declared the first will good, but the heres
thereunder must pay the legacies in the second will. 5 G. 2. 151 a; D. 38. 6. 1. 8. A

hiatus in the text of G. is supposed to have laid down that if under such a will the
scriptus claimed, and no one was entitled on intestacy, it went to the fiscus. 6 37. 11.
11.2. 7 C. Th. 4. 4. 6. 8 Nov. Theod. 16. 7; C. 6. 23. 21. 5. 9 C. 6. 23. 27. 2.

CHAPTER VIII

THE LAW OF WILLS (eon*.). LEGACY, FIDEICOMMISSUM.
SOLDIER'S WILL. SETTLEMENTS

CXVII. Nature of legacy, p. 331; Forms of legacy, ib. ; Sc. Neronianum, 333; CXVIII.
Joint legacies and lapsed shares, 334; Leges caducariae, 335; CXIX. Principal rules of
legacy, ib. ; Cautio Muciana, 336; personal capacity, 337; Restrictions on amount,
I. Falcidia, 338; CXX. Vesting of legacy, dies cedit, venit, 339; CXXI. Failure of legacy,
Regula Catoniana, 341; Ademptio, etc., 342; Failure of the will, 343; CXXII. Remedies
of legatee, security, 344; Actions in classical law, 345; under Justinian, ib.; CXXIII.
Special types of legacy, 346 ; Legacy of usufruct, 348 ; Praelegatum, 349 ; Legatum partitionis,
ib.; CXXIV. Fideicommissa, ib.; Restrictions, 350; fideicommissa hereditatis, 351; Sc.
Trebellianum, ib.; Sc. Pegasianum, 352; Justinian's rules, 353; CXXV. Fideicommissa
of singulae res, ib. ; Justinian's assimilation of legatum and fideicommissum, 354 ; Falcidian
and Pegasian deductions by fideicommissarius, ib.; Cases of alimenta, 356; CXXVI.
Codicilli, ib.; Soldiers' wills, 357; CXXVII. Creation of limited interests by will, 358;
Family Trusts, 359; Justinian's restrictions, 360.

CXVII. The will, as we have hitherto been considering it, was a
document (or declaration) by which the hereditas of a deceased person
was transferred to a successor, who stepped into the shoes of the de-
ceased. But it served other purposes. Some of these, manumissions,
and appointments of tutors, have already been dealt with. We have
now to consider gifts of property (in the widest sense) by way of "singu-
lar," not "universal" succession1, legacies, together with fideicommissa,
which last however will be found to present in one, indeed the most
important, case, the characteristics of universal succession.

A legacy is a gift, chargeable only on a heres2, usually of res singulae,
having an assignable money value3. It must be in Latin, if contained
in the will itself, as opposed to a confirmed codicil4, till, in 439, it was
allowed to make wills in Greek5. Even where it took the form of a gift
of an aliquot part of the estate, it had nothing to do with universal
succession ; the legatee could not sue or be sued in respect of rights and
liabilities of the estate. As \ve have seen, a legacy was void, in classical
law, if it preceded the institutiones6.

FORMS OF LEGACY. In the classical law there were four forms7.

1. Per vindicationem. " I give the thing to X." The proper words were
"Do, lego," but Gaius says that in his time it was agreed that "sumito"

1 Treating it here is illogical but convenient, avoiding repetition, see G. 2. 191.
2 So that if son or slave is made heres it cannot be charged on the paterfamilias, as a
fc. can. Ulp. 24. 21. 3 Thus manumissio is not legacy. 4 Post, § cxxvi. 5 C. 6.
23. 21. 6 Ante, § civ. 7 Antiquity disputed: nothing learnt from Cicero. The first
two are no doubt much older than the others. The differences of opinion among the classical
lawyers as to the effect of the others suggest that they were recent. The /. Falcidia, as
cited by Paul in D. 35. 2. 1, seems to recognise only the two main forms.

332 FORMS OF LEGACY [CH.

or "sibi habeto" or "capita" served as well1 and produced the same effect,
which was to vest the thing in the legatee, so that he could "vindicate"
it, to which fact, he says, it owes its name2. The legatee could bring a
real action against anyone who held the thing, but, conversely, only
the quiritarian property of the testator could be so left, and, except
in the case of fungibles, the thing must have been his at the time
of testation3. There were school dissensions as to this form of legacy.
The Proculians held that the thing was a res nullius (not of course open
to occupatio), till the legatee accepted or refused. But the Sabinian
view prevailed, that it vested in the legatee on the entry of the heres
and devested if he refused4. Thus, at least in the law as finally settled,
he was entitled tofructus from dies cedens5. A more important divergence
arose in the case of a conditional legacy. This could not vest in the legatee
till the condition was satisfied. Meanwhile the Proculians held it a res
nullius, the Sabinians holding that it belonged to the heres, who would
thus get the fruits6. Apparently the Sabinian view prevailed, the
acceptance being only so far retrospective as to annul alienations and
charges created by the heres7.

2. Per damnationem. The strict form was "heres meus damnas esto
dare," but in classical law, "dato," "dare iubeo," "facito," "facere iubeo,"
or probably any other explicit command would serve8. This is in classical
law the most important of the forms, since anything could be left by it,
services, third persons' property, and res futurae9. It gave only a ius in
personam against the heres10. Like most other obligations which rested on
the words "damnas esto11," it had given a right, where it was for a cerium,
to manus iniectio, with double damages in case of denial, and though in
classical law manus iniectio was gone, the double liability remained,
whether the exact form "damnas esto" was used or not12.

1 G. 2. 193; Ulp. 24. 3. 2 G. 2. 194; Ulp. 24. 7. 3 G. 2. 196; Ulp. 24. 7. Hence

a modern controversy: was a legacy of pecuiium in this form valid if, as would usually be
the case, its content had changed? Probably, for this purpose only, it was treated as a
universilas. 4 G. 2. 195, 200; P. 3. 6. 7; D. 12. 1. 8; 34. 5. 15. 5 30. 36. 2.

6 G. 2. 200. 7 10. 2. 12. 2; 35. 1. 105; C. 6. 43. 3. 3. 8 G. 2. 201; Ulp. 24. 4.

9 G. 2. 197, 202, 203; Ulp. 24. 8; 24. 9; P. 3. 6. 10. 10 G. 2. 204; P. 3. 6. 17. 11 Post,
§ ccxii. 12 G. 4. 9. The forms make a difference on the question of position of the

gift. If it is between two institutiones which operate, Paul says (P. 3. 6. 2) that it is good,
if per damnationem (it is a direction to the first institutus), but only in proportion to the
share of the first heres if it is per vindicationem. It is effectively charged only pro parte. If
the first fails, the legacy fails : if the second, the legacy is good. But this seems to express
republican law. The II. caducariae provide (ante, §cxi; post, § cxvui) that gifts which
become caduca go to certain beneficiaries as heredes. Hence Ulp. says (Ulp. 1. 21) that
if the second fails and the lapse goes to the first, the legacy is good, but if it goes to
legatarii patres, they take as heredes and it will be as if both had operated. If the first
failed the legacy would fail as in old law. He adds that some ignored this point and applied
the old law. But the II. caducariae and the rules of position are gone in later law.

vm] FORMS OF LEGACY 333

3. Sinendi modo. "Heres meus damnas esto Lucium sinere rent capere."
This too gave only a ius in person-am1. It does not seem to have been
of great importance. Anything could be left by it which belonged to
the testator or the lieres at the time of death, as its words indicate, but
Gains says that the dominant view was that it could not apply to any-
thing acquired by the heres after the death2. It gave only a personal
action and, though the word damnas was used, we are not told that it
was ever in duplum, perhaps because it was first used in matters for
which there could be no manus iniectio. Gains also speaks of a doubt,
also due to the form, whether the heres was bound to make a formal
conveyance, or it sufficed, even for a res mancipi, to let the legatee take
it. The latter view prevailed3.

4. Per praeceptionem. "Titius rem praecipito*" As the form shews,
the legatee W7as entitled to the legacy before the estate was divided5.
The schools disagreed as to the nature of this legacy6. The Sabinians,
arguing from the name, held that it could only be to a heres, so that the
mode of enforcement would be the indicium familiae erciscimdae. It
must therefore be a thing in the hereditas, but it need not have been so
when the will was made and it might be merely in bonis. The Proculians
held that praecipito meant merely capita, and that it was a case of
vindicatio and might be made to anyone. Gains says, doubtfully, that
Hadrian confirmed this doctrine. On the Proculian view, if it was to
the heres, and had been quiritary property of the testator, it could be
vindicated. If only in bonis, familiae erciscundae wras applicable. If it
was to an extraneus, only the testator's quiritary property could be so
left, and it gave a ius in rem. Thus it still differed from the first form, in
that the res might have been acquired after testation, and, if to the
heres, in that it need not have been in quiritarian ownership at all.

The rule was simplified by the time of Ulpian who lays it down that
only what could be left by vindicatio could be left in this way7.

These rules were greatly modified by the $c. Neronianum8 (A.D. 64).
It provided that, wiiere a gift was made in a form not suited to it (minus
aptis verbis], it should be construed, if that would make it valid, as in
the most favourable form, i.e., damnatio, by which anything could be
left. There were disagreements as to the scope of the enactment. Some
held that it applied only to defects of form and not of capacity9. Some
of the Sabinians, who held that praeceptio could be only to a heres, thought
the sc. would not save such a legacy to an extraneus, but the wider

1 G. 2. 209, 213; Ulp. 24. 5. 2 G. 2. 210, 211, 212; Ulp. 24. 10. Not necessarily

property at all. P. 3. 6. 11. 3 G. 2. 214; G. Ep. 256. 4 G. 2. 216; Ulp. 24. 6.

5 This form is the precursor of the praelegatum of later law, post, § cxxm. 6 G. 217-
223; Ulp. 24. 11; P. 3. 6. 1. 7 Ulp. 24. 11. 8 G. 2. 197; Ulp. 24. 11 a. 9 G. 2.

218.

334 JOINT LEGACY: LAPSES [CH.

interpretation prevailed1. The forms did not however lose their im-
portance ; each had its own rules, e.g. in case of lapse, and these still
existed. In 339 it was enacted2 that no importance was to attach to
the exact use of words, which is understood to mean that, in deciding
which type of legacy was meant, the intent was to be followed whatever
the words used. Justinian provided that all legacies were to be of one
nature and enforceable by the same remedies3.

CXVIII. JOINT LEGACIES AND LAPSES. Legacies to two or more
may be joint in two ways. They may be :

(i) Re et verbis coniuncti (coniunctim). "I give Stichus to X and F."

(ii) Re coniuncti (disiunctim). "I give Stichus to X. I give Stichus
to F." A gift in the form : " I give Stichus to X and Y in equal shares "
wras really two distinct gifts and is not here material, though the donees
are sometimes said to be "verbis tantum coniuncti*."

If a legacy to a single legatee failed from any cause the heres bene-
fited (apart from the II. caducariae), but in the case of joint gifts there
were complications, due to the different rules, in the different forms, as
to sharing among joint legatees. Thus the two sets of rules, i.e. as to
shares and as to the effect of lapse, must be taken together.

In vindicatio and praeceptio, whether coniunctim or disiunctim, "iure
civili concur su paries fiunt." Each had a right to all, cut down by the
other's right, so that if one failed the other benefited, not the heres5.
On the same principle if a res was left to A and B coniunctim, and also
to C disiunctim, if A or B failed B or A benefited, not C. If C failed,
A and B benefited, taking the lapse as disiunctim6. If A and B failed,
C benefited, if all three, the heres.

In damnatio, coniunctim, they shared, on presumed intent, but
lapses went to the heres, his obligation being treated as separate, not
solidary. In damnatio, disiunctim, each was entitled to all or its value ;
failure of one made no lapse7. In sinendi modo, the rules were the same
except that some held that if it were disiunctim, the heres was released

1 G. 2. 218. Where a man left a res, per vindicalionem, and sold it, this was not relieved
against under the sc., since if it had been originally left per damnationem and alienated
there would be an exceptio doli against the legatee, G. 2. 198. There is some evidence that
after this sc. the legatee per vindicationem had the same choice by juristic interpretatio,
and could bring either a real or a personal action. 30. 84. 13; h. t. 95. But it is probable
that these texts are interpolated and express the alternative given by Justinian. It is also
possible that the texts originally referred to what seems to have been a common case, a
gift made in both forms so as to avoid any difficulty. See the wills of Dasumius and C.
Longinus Castor (Girard, Textes, 798 sqq.). In any case only the nature of the remedy
was affected, not the extent of the right. 2 C. 6. 37. 21. 3 C. 6. 43. 1. As the

forms had different rules in various matters, he had to choose between them. He adopts
usually, but far from always, the rules of vindicatio. 4 D. 32. 89; 50. 16. 142. 5 G.
2. 199, 223; Ulp. 24. 12; P. 3. 6. 26. 6 30. 34. pr.; 33. 2. 26. 1. 7 G. 2. 205; Ulp. 24. 13.
It would benefit the heres, since he would only have one legacy to pay.

viii] LEGES CADUCARIAE 335

by letting one legatee have the res, as his only duty was not to prevent
his having it1. The point could not arise if the gift was coniunctim.

Except in the case of gifts void ab initio, as to a peregrine or person
already dead, which continued to be treated as pro non scriptis the law
was profoundly modified by the //. caducariae. All lapsed gifts, caduca
or in causa caduci2, went to those who would have had them in earlier
law, if they had the ius antiquum ; failing these, to collegatarii patres con-
iunctim; failing these, to heredes patres; failing these, to other legatarii
patres; and failing these to the Treasury3. Such windfalls need not be
accepted, but carried their burdens4. Apparently a colegatee disiunctim
did not count as a colegatee for this purpose5. The form was immaterial,
so far as the leges applied. But if there were joint legacies disiunctim
by damnatio, as each was entitled to all, there was no caducum. There are
difficulties and obscurities about these rules. The changes made about
the time of Caracalla, and when the empire adopted Christianity have
already been considered6. Under Justinian the forms and the leges were
gone. He restored the old ius accrescendi with some modifications7.
Apart from joint gifts, a lapsed legacy went to the heredes, carrying its
burdens with it, but if the legacy had been solely charged on a particular
heres, the lapse went to him. All joint legatees took in shares. Lapses
went, in first instance, to colegatees. If the gift was coniunctim they
might refuse, but if they accepted they took also the burdens. If dis-
iunctim, they must take, but the burdens failed. This rather strange
distinction is rested on the view that the testator by making them dis-
iunctim meant that no one was to be liable for more than his own burden8.
In the case of pro non scriptis the old law remained ; accrual was com-
pulsory but, in general, burdens failed9.

CXIX. PRINCIPAL RULES OF LEGACY. In Justinian's law there was
no longer need of formal words (legis modo10) ; so long as it was unam-
biguous the form of words and the place in the will were immaterial11.
The law of conditions was much the same as in institutiones, and the
preference for maintaining the gift and annulling the offending modality
existed here also, though it had not the same justification, since
failure of the gift would not imperil the will. The principle may be that it
is reasonable to apply the same canons of interpretation to different parts

1 G. 2. 215. 2 As to this distinction, ante, § cxi. A conditional legacy was a

caducum if the condition failed after testator's death, 35. 1. 31, altered. 3 G. 2.

20&-208; Ulp. 24. 12, 13. As we have seen the windfall is treated as hereditas. 4 Ulp.
17. 3. 5 Modern opinions differ. This seems however to be what Gains means, 2.

207, 208, and Paul, D. 32. 89, says the same. 6 Ante, § cxi. 7 C. 6. 51. 1.

8 h. t. 1. llg. 9 h. t. 1. 3, 3 a. As to merely verbis coniuncti, the express statement

of Paul (D. 32. 89) and the general language of G. 2. 207 suggest that, under the II. cadu-
cariae, they were treated as coniunctim. 10 Ulp. 24. 1; G. 2. 193. 11 P. 3. 6. 13;
Inst. 2. 20. 34.

336 CONDITIONS ON LEGACY [CH.

of the same instrument1. But though in general any condition which
would avoid an institutio would avoid a legacy, the rule that a son coiild
not be instituted on a condition not in his own power had no application
to legacy. And though by Ulpian's time it was clear that impossible con-
ditions and those grouped with them were struck out2, the Proculians
had held that they ought to vitiate the gift as in contract, and Gains,
himself a Sabinian, admits the distinction to be unreasonable3. Causa is
not condition ; a gift to a man for a stated reason which was not true
would not avoid the gift, unless the court thought that it was intended as
a condition ; falsa causa non nocet4. And misdescription did not avoid the
gift if it was clear who was to have it and what it was — falsa demonstratio
non nocet5. The law as to what amounted to fulfilment, and what pre-
vention excused non-fulfilment, was as in institutiones, but gifts of liberty
were more favourably construed. In legacy if impossibility supervened
after aditio, the gift failed ; a manumission took effect6. In legacy pre-
vention excused fulfilment only if it was by one interested in non-fulfil-
ment. In manumission, prevention by anyone excused7.

A negative condition, dependent on the act of the beneficiary, might
if strictly construed make the gift nugatory, for it might not be certain
till he died that he wrould not do the act. The cautio Muciana, introduced
probably by Q. Mucius Scaevola, gave some relief. The arrangement
was that the legatee took the gift at once, giving security for return if
he broke the condition8. It applied in classical law only in legacy, and
only to such negative conditions as were in the power of the legatee,
and, probably, among these, only to such as must otherwise remain
open for the legatee's life. In the Digest there are texts applying it to
all negative potestative conditions, and others confining it to the class
last mentioned9. Whether this represents a variable practice or the
wider application is due to Justinian, as is the extension to institutiones,
is matter of dispute10. In gifts of liberty there could be no cautio Muciana,
for the manumission could not be undone. Where the act was indifferent
in itself, there was a forced construction favor e libertatis; "si Capitolium
non ascendent" was understood to mean "cumprimumpotuerit11." Where

1 As to reasons for extending the "favor testamenti" to legacies, see Hoffmann,
Kritische Studien, 158. Conditions existed in legacies before they did in institvtiones,
but it is difficult to see why this rule should have developed for legacy. The language
of Gaius shews that its application to them was still disputed (G. 3. 98). From D. 28. 7. 1
(where, though the passage is from Ulpian, it is probably Sabinus who is speaking)
it seems to have been long settled in the case of institutiones. 2 28. 7. 14; 35. 1. 3.

3 G. 3. 98. 4 Ulp. 24. 19; Inst. 2. 20. 31. 5 Ulp. 24. 19; Inst. 2. 20. 29, 30.

6 35. 1. 94. pr.; 40. 7. 20. 3. 7 28. 7. 3; h. t. 11; 40. 7. 3. pr. 835.1.7. 9/6.;
h. t. 72. pr., 2; h. t. 106. 10 See H. Krueger, Mel. Girard, 2. 1, for a hypothesis as to
its origin and evolution. 11 40. 4. 17. pr. But the same writer, Julian, elsewhere (40.
4. 61. pr. ; 40. 7. 4. 1) says that such gifts are derisory and void. It is no doubt a
question of intent.

vin] CONDITIONS ON LEGACY 337

it was not indifferent, there was no relief, and it may be for this reason
that conditio iurisiurandi, remitted in other cases, was allowed in manu-

mission

Under Justinian much of the utility of the cautio Muciana was gone,
in legacy, since he allowed resolutive conditions with somewhat similar
security, and covering a wider field2.

Dies incertus was treated as a condition, as in institutiones, but the
extension of this principle to legacy seems rather late3. It may be noted
that dies incertus an, certus quando, which is properly a condition and
was so treated in institutio and legacy, was treated as dies in manu-
mission4. Dies certus was allowed in legacy5, and an uncertain day
(certus an, incertus quando}, certain to arrive within the lifetime of the
donee, was treated here as dies certus*. Thus the result was reached
that a legacy payable at death of legatee was valid, while one payable
after the death of heres or legatee was void, "ne ab heredis herede legari
videatur, quod iuris civilis ratio non patitur1 '."

There is not much difference, and Gains says the distinction is un-
reasonable. The truth is that the Romans solved the puzzling logical
question whether, at the moment of death, a man is alive or dead in
the sense that he is alive. A legacy payable so many days before the
death was void8, probably as being "praepostere conceptum." Justinian
legalised all these, as he did resolutive conditions and gifts ad diem9.

Modus is distinct from condition. A gift sub modo was an absolute
gift with a direction as to its application, but, if the direction was positive,
the legatee could not compel delivery till he had given security for its
application10. If negative, it might be treated as a case for the cautio
Muciana11.

The rules of personal capacity were in general as in institutio12, but it
may be remembered that some types of beneficiary, e.g. municipalities,
could receive legacies before they could be instituted13, and the /. Voconia
forbidding the institutio of women by classici, had no application to
legacies. The case of legacy to one in the potestas of the heres created a
difference of opinion. As a gift of his own property to a man was void,
and a gift to a slave was practically one to his master, the difficulty is
plain. Servius, ignoring the regula Catoniana1*, saw no objection to
such a gift, but held that it failed if at the time when it vested the

1 28. 7. 8. 6, 7; 40. 4. 12. pr. 2 C. 6. 37. 26. 3 There is much controversy

on this matter. See Brunetti, Dies incertus. 4 40. 4. 16; 40. 7. 19. 5 36. 2. 5. 1.

6 36. 2. 4. 7 G. 2. 232; Ulp. 1. 20; 24. 16; P. 3. 6. 5, 6; Inst. 2. 20. 35; see post, § CXLix.
8 G. 2. 232; cf. Inst. 3. 19. 14. 9 Inst. 2. 20. 35; C. 6. 23. 25; C. 6. 37. 26; C. 8. 37. 11.
Post, §CLIV. Legacy "si legatarius volet" 30. 65. 1; "si heres volet," 32. 11. 7 (interp.).
10 32.19. 11 At any rate under Just. Nov. 22. 43. 12 No legacy to po.itumus extraneus,
G. 2. 240, till Justinian, Inst. 2. 20. 28. 13 Ante, § cm. 14 G. 2. 244; post, § cxxi.

B R. L. 22

338 LEX FALCIDIA [en.

"honoratus" was still in the potestas of the heres. The Sabinians held, on
the principles of the regulaCatoniana, that the gift was good if conditional,
bad if simple. The Procnlians held it bad in both cases, because, says
Gains, we can no more owe to one in our potestas conditionally than we
can absolutely, which is giving the rule as a reason for itself, and ignores
the distinction taken under the regula Catoniana. Justinian adopts the
Sabinian view, adding the restriction, attributed to Servius, where the
honor atus was still in the potestas when the right vested, which was
probably also part of the Sabinian view1.

But the fact that a slave is not the same person as his master led to
some unexpected rules in this connexion. Thus a legacy of the property
of X to the slave of X was absolutely good2. And no legacy to a slave
was good unless it was of a thing which he could take if he was free. Thus
a legacy to him of a right of way was void, for the land to which it must
attach would not be his if he was freed3. The rule expressed by Paul
that "cum servo alieno aliquid testamento damns domini persona ad hoc
tantum inspicitur ut sit cum eo testamenti factio, ceterum ex persona servi
constitit legatum*" had other applications. The ride as to duae lucrativae
causae did not apply where A left a thing to B, and C made a donatio
of it to Z?'s slave5. A legacy to a slave post mortem domini was good6.
Where a will was upset by bonorum possessio contra tabulas, a legacy to
a slave failed, though his dominus was a person legacies to whom would
be saved 7.

Excessive legacies would tend to cause refusal of the hereditas and
intestacy. After ineffective legislation in the republic8, the problem
was solved by the I. Falcidia, of 40 B.C.9 Its main rule was that if
legacies exceeded three-quarters of the estate they might be cut down
pro rataw. The calculation was made as at the death, debts, funeral
expenses, and the value of slaves freed, being deducted11. If a legacy
was such as to be incapable of division, the legatee must refund pro-
portionately12. If there were several heredes and legacies were specially

1 Inst. 2. 20. 32; Ulp. 24. 23. The converse case of legacy to one whose slave was heres
gave no difficulty: it was valid whether simple or conditional, but failed if at dies cedens
he was still in potestas. G. 2. 245; Inst. 2. 20. 23. The difference is that in the first case
the legacy cedes at once on opening of will and the inheritance is also fixed on the master,
so that he is inevitably the person entitled to the legacy. In the second case the identity
is not inevitable, as the slave can be alienated before entry. In Ulp. 24. 24 it is supposed
that the "non" is an error. 2 31. 82. 2. It is treated as not affected by the Catonian in
anyway. 3 Ib. ; 33. 3. 5. The contradictory 32.17.1 is probably corrupt. 4 31.
82. 2. 5 Post, § cxcn; 30. 108. 1. 6 30. 68. 1. 7 37. 5. 3. 2. 8 L. Furia,

date uncertain, forbade legacies of more than 1000 asses, with some exemptions, with
manus iniectio (G. 4. 23) and fourfold penalty (Ulp. 1. 2). L. Voconia (168 B.C.) forbade
any legacy to exceed what the heredes took, sanction unknown, probably nullity. Gaius
(2. 225, 226) points out the defects of these laws. 9 35. 2. 1. pr. 10 G. 2. 227;

Inst. 2. 22; P. 3. 8; Ulp. 24. 32. 11 P. 4. 3. 3; I). 35. 2. 81. 12 D. 35. 2. 80. 1.

vin] DIES CEBIT: DIES VENIT 339

charged on particular heredes, the calculation was separately made for
each, so that even where some legacies were cut down, more than one-
quarter might remain with the heredes1. Conversely, the testator might
direct that any particular legacy should or should not bear the loss,
thus relieving or burdening the others2. The rule applied, at any rate
in later classical law, to donatio mortis causa3. In classical law the testa-
tor might not forbid the heres to keep this quarter ; a private agreement
with that aim was void4. Apart from the military will, the only cases
privileged from this reduction were one of a legacy of debt to the creditor,
not exceeding the debt5, and one of a slave, with nothing else, with a
trust to free6. There were controversies as to the mode of computation
of conditional debts, limited interests and so forth7, complicated by
the various types of legacy8. The heres was charged, in general, only
with what he got as heres, not, e.g., with a praelegatum9. The reduction
was ipso iure, so that a legatee per vindicationem, where a case for the
Falcidia arose, would be able to vindicate only a proportionate part of
the thing10.

It might happen that it was uncertain if, or to what extent, a deduc-
tion would be necessary. In that case the practice was to pay the
legacy, taking security from the legatee for the proper refund in case the
payment proved excessive11.

The chief changes made by Justinian were that he allowed the test-
ator to forbid the retention of a quarter12, and excluded it altogether
if the heres had not made an inventory13.

CXX. VESTING OF LEGACIES. The expressions dies cedit and dies
venit were used, in connexion with legacies, to express two critical points
of time in the acquisition of the legacy. The opposition is one of tense.
Dies cedit means "the day is coming," dies venit, "the day has come."
The use of different verbs makes a third term possible. The expression
dies cessit, cessisset, cesseritu means that dies cedens is past, but not that
dies venit.

At dies cedens the legacy "vested" with three principal effects. The
gift became transmissible, so that, if it was of more than a life interest,
the representatives of the legatee could claim the gift, though he had

1 35. 2. 77. 2 35. 2. 64; h. t. 88. 2. 3 C. 6. 50. 5. 4 35. 2. 27. 5 35. 2. 5.
6 35. 2. 33-35. 7 35. 2. 73. 1 speaks of alternative modes of calculation. It might

be estimated, market value of the gift as it is, or taken at value of the res, security
being given for either event by heres or legatee. See Vassali (Bull. 26. 52 sqq.) who holds
that the former system is due to Justinian ; see 35. 2. 45. 1, 66. pr., 73. 2, 88. 3. 8 See,
e.g., 35. 2. 30, 36-38, 45, 66, 68, 73, 1 sqq., 82, etc. 9 35. 2. 4. Some exceptions.

10 See 35. 2. 73. 5. Difficulties where a share lapses and its burden is carried over, 35.
2. 1. 13, 14; h. t. 78, etc. See Vangerow, Pandekten, § 535. 11 D. 35. 3. See Lenel, Mel.
Girard, 2. 79, as to the working of this. 12 Now. 1,2. 13 Ante, § ex. 14 E.g. 36.
2.31; 33.5. 10.

>•>••> 2

340 DIES CEDIT: DIES VEN1T [CH.

not yet accepted1. It might determine the destination of the gift, for if
the legatee was a slave it was his owner at dies cedens who could claim2.
And it failed if the legatee was incapax on that day3. It determined
what was left. If a flock or a universitas rerum of that type was left, the
legatee was entitled to it, in general, as it was on that day4. So too, if
two things were left together, of which one was clearly an accessory
to the other, and the principal thing had ceased to exist on that day,
the gift failed5.

When dies venit, the legacy was recoverable by action, unless it was
repudiated. It should be added that, at any rate in later law, dies cedit
and, a fortiori, dies venit without the knowledge of the legatee6. It is
noticeable that no time was fixed within which to claim. This is because
in the view which prevailed, an inchoate right to the legacy was acquired
by the legatee at dies cedens, though it devested, e.g. on repudiation.
But actual acceptance had some importance ; it was e.g. only this which
prevented a legatee from attacking the will 7.

There were elaborate rules as to the occurrence of these days. In
legata pura or sub modo, dies cedit on the death (or opening of the will),
dies venit on the entry of the heres. In legata ex die, dies cedit at the death,
dies venit at entry of heres or occurrence of the day, whichever was the
later. In conditional legacy, dies cedit on occurrence of the condition,
dies venit then or at entry of the heres, whichever was the later8. But
certain legacies were under special rules. Thus legacy of a life interest
(personal servitude), in which there was no question of transmission,
ceded only at entry of the heres, and if there was dies only from the dies9.
The same was true in legatum, with liberty, to a slave of the testator10,
as he could not be free, and thus no right could vest in him, till the
heres had entered. In the case of personal servitude, the rule had the

1 Ulp. 24. 30; P. 3. 6. 7. Sommer, Z.S.S. 34, 394, arguing from 31. 45. 1 holds that
dies cedens did not involve the existence of the liability. His explanation of 7. 3. 1.4 seems
inadmissible. In any case there is no doubt about the rules stated above in the text.
2 30. 91. 6. In institutio the slave carries the gift with him to the moment of acceptance
(ante, § cvm). Both this and the distinction last above mentioned turn on the fact that
legacy is acquired without any act of acceptance, while hereditas, apart from necessarii, is
not (37. 11. 2. 9; ante, § cix). 3 Ulp. 24. 30. 4 Inst. 2. 20. 20. 5 Inst. 2. 20. 17.
But a good deal depends here on intent, which is the governing factor in these questions
under wills. See 33. 7. 5. 6 See 36. 2 passim. "Vesting" does not imply that owner-

ship passes to legatee — this cannot occur till the heres has accepted. G. 2. 195. 7 34.
9. 5. pr. 8 Ulp. 24. 31. 9 7. 3. 1. 2; Vat. Fr. 60; D. 36. 2. 2, 3. Hence the unfair

result that fruits between death and entry go to heres. The non-transmissibility stated
as the reason of the rule is hardly adequate for this (36. 2. 3). Elsewhere the same writer,
(Ulp. D. 7. 3. 1. 2) explains it on the ground that usufruct, which consists in use, cannot exist
till it can be enjoyed. Elvers (Servitutenl. 726) explains it on the ground that it is
essentially conditional on the giving of security. But dies cedens does not await the
giving of security. 10 Or if he himself is left per vind. 35. 2. 1.4; 36. 2. 7. 6. 8.

vin] REGULA CATONIANA 341

practical effect that, even under Justinian, if it was to a slave the master
could claim nothing if the slave died before aditio of the heres.

By the //. caducariae, dies cedit not at the death, but only at the
opening of the will1. The purpose of the rule, which Ulpian attributes to
the I. Papia2, Justinian to see. based thereon, is obscure3. As it was
also provided that wills should be opened as soon as possible after the
death, it had little effect4. Justinian restored the old rule5.

CXXI. FAILURE OF LEGACY. The requirements of a valid legacy
have already been stated. The only point still to be mentioned in con-
nexion with them is the regula Catoniana6, to the effect that a gift
which would have been inutilis if the testator had died at the moment
of testation could not be validated by subsequent events. This is not
identical with, or a mere application of, the wider rule that "quod ab
initio vitiosum est non potest tractu temporis convalescere7," which avoids,
e.g., institutions of, or legacies to, a peregrinus 8. Though in one sense
wider, since it would avoid gifts which in classical law might in the
opinion of some jurists eventually be valid, if they had been institu-
tiones9, it was in application very narrow. It did not apply to funda-
mental defects, but only to those of a less basic type. Of the few cases
in which it is found applied, all but one were cases in which the gift
would be quite valid but for some relation of the parties concerned
(legacy to slave of testator or heres, legacy to a man of what was his10).
But one text puts on the same level a legacy of materials of a house,
which could not be left11, so that it is difficult to specify the exact limits
of application of the rule12. It did not apply to institutiones or to any
legacy which "ceded" only on aditio, of which conditional legacies were
the chief case13, or to the disabilities created by the /. lunia and the II.
caducariae1*.

If a legacy was given pure and was such that the regula avoided it,

1 Ulp. 24. 31. 2 Ib. 3 C. 6. 51. Lie. 4 P. 4. 6. 3. 5 C. 6. 51. 1. 1 c.

It is possible that the postponement under the 1. Papia did not apply where there was.
one heres only. So Pothier, ad 22. 6. 1. 4. See also Sommer, Z.8.S. 34. 394. 6 D. 34. 7

7 50. 17. 29. 8 Ulp. 22. 2; see ante, § cm. For these rules it was indifferent whether

the gift was simple or conditional. See also 32. 1. 1, 1. 5, 7. pr., 8. 1. In alternative
legacies, where one of the two is in any way conditional, dies cedit only on arrival of the
condition, or failure of it. 36. 2. 2. 14, 16, 25. etc. 9 G. 2. 123. See for this and

similar cases, Machelard, Regie Catonienne, §§ 25-27. 10 Inst. 2. 20. 32. 11 30.

41. 2. 12 Machelard says that the rule applied (op. cit. § 33) where "il n'y a qu'une

incapacite transitoire de nature a s'evanouir d'un jour a 1'autre." But a peregriniis is
as likely to become a civis, vivo leslatore, as a house is to be pulled down. Sommer (Z.8.S.
34. 396) holds that the rule assumes a gift "objectively and subjectively valid." It
seems most probable that the proper application of the rule is to relative obstructions,
due to the relation of the parties, and that the application to inateria aedibus iuncta is an
extension, late, like the prohibition itself, but out of keeping with the original principle.
13 34. 7. 3, 4. 14. 34. 7. 5.

342 FAILURE OF LEGACY [CH.

an ademptio of it under a condition which had the effect of making it
subject to the contrary condition, did not remove it from the operation
of the regula — an ademptio, being designed to lessen a legatee's right,
was not to be so construed as to increase it1. But if a legacy originally
conditional became purum by satisfaction of the condition, vivo testatore,
the effect would apparently be to bring it within the rule. This gave
rise to difficulties. Three cases are put; a legacy "if the legatee marry
X," who at the time of testation was under the age of marriage, and he
married her, vivo testatore; a legacy "if I die after such a date," and the
testator did so die ; a legacy to X of land which was his "if he alienates
it in my life," and he did so alienate2. In all these cases it had become
purum and, in strictness, if the testator had died when he made the will
the gift could not have operated ; in each case there was an obstruction.
In all the cases the gift was valid ; we are told that the rule is inaccurately
expressed3, but not how it should have been expressed. To make such
gifts void would be to make all gifts under condition void, if the con-
dition could not be satisfied at once, and was in fact satisfied vivo
testatore*. The regula existed under Justinian5, and applied then to
fideicommissa ; whether it did before Justinian is disputed6.

A legacy validly given might fail owing to later events, the chief
being :

(a) Ademptio. The proper method was an express statement in the
will or a codicil, following the form of the gift, which destroyed it ipso
iure7. But other causes adeemed it in effect by giving an exceptio doli,
and in most of these cases the ademptio seems to have been ipso iure
under Justinian. Such were extreme hostility arising between the parties,
erasure of the gift, informal ademption in the will, alienation, unless, in
later classical law, the circumstances shewed that there was no intent
to adeem8. But in these tacit cases the revocation was ambulatory;
if, e.g.. the hostility ceased, the gift revived9, though mere repurchase
would not revive a gift10. It may be added that giving the value of the
thing to the legatee, inter vivos, was in general in substitution for the
legacy11, and that ademptio might be conditional or partial12.

(b) Translatio, which is in effect ademptio. This is a change in the
thing left, or a transfer to another legatee, expressed to be in substitu-
tion. The first gift was destroyed, even though the second gift failed13.

1 34. 4. 14. 2 34. 7. 1. 1, 1. 2, 2. 3 h. t. 1. pr. 4 This does not negative

the rule that it became subject to the regula if it became purum. 5 D. 34. 7.

6 Machelard, op. cit. §§ 81 sqq. The rule is not referred to in the surviving texts of the
classical lawyers. 7 Ulp. 24. 29; D. 34. 4. 2. 8 34. 4. 3. 11; h. t. 16; h. t. 18;

Inst. 2. 20. 12; G. 2. 198; P. 4. 1. 9. Pledging does not destroy it. P. 3. 6. 16. 9 34.
4. 4. 10 h. t. 15. 11 31. 22. 12 34. 4. 2; h. t. 11 ; h. t. 32; C. 6. 37. 17.

13 30. 34. pr.; 34. 4. 6; h. t. 20.

vin] FAILURE OF LEGACY .343

But if the second gift was conditional, this was conditional ademptio, so
that if the condition failed the old gift stood, unless a contrary intent
appeared1.

(d) Debts, subject to the power of the testator to charge particular
debts on particular beneficiaries3.

(e) Operation of the /. Falcidia.

(/) Ereptio. The gift might be forfeited for indignitas. It went
usually to thejiscus, but there were exceptions4.

(g) Destruction of the thing. If this was not due to the heres, the
legatee got nothing5, as where a serrus alienus left as a legacy was
freed by his master6. But if the destruction was by the heres he must
give the value whether he knew of the legacy or not7. If several things
were left, destruction of one did not bar claim to the rest, unless they
were principal and accessory, and the principal thing was destroyed
before dies cedit8.

(h) Acquisition of the thing ex lucrative, causa. If, after the will was
made, the legatee acquired the thing by purchase, he could still claim its
value, but not if he had it by donatio or under another will 9. Thus where
land was left to X, and after the making of the will he bought the nuda
proprietas and received a gift of the usufruct, he could claim the value
of the land, deducto usufructu10. If a thing was left to him under two
wills, and he received its value under one, he could claim the thing
under the other, but if he received the thing under the first, he had no
claim under the second11.

(i) Failure of the will. To this there were exceptions. If an institutus
refused, in order to take on intestacy, or abstained for a price, legacies,
etc., were good12, as also if the will was upset by collusion13, and appar-
ently in all cases in which the hereditas passed to the fisc14. In case of
partial failure, gifts, specially charged on the institutio which failed,
were destroyed under the old ius accrescendi, but preserved under the
//. caducariae and Justinian15, and it seems that, in later classical law,
this was applied also in the cases to which ius accrescendi still applied,
the accrual being regarded as a sort of substitution16. This wrould occur
if the lapse went to one with ius antiquum17, and in a legacy of usufruct,

1 34. 4. 7. 2 Ante, § cxx. 3 Ante, § ex. 4 Ante, § cxi. 5 30. 47. 4, 5;

Inst. 2. 20. 16. 6 30. 35. 7 31. 63. The rule that he is liable even in ignorance

may be due to Justinian. 8 33. 8. 12. This is a matter of interpretation and very

fine lines are drawn. Where the gift was of fundus cum instruments, the inxtruminta were
accessories, but not where it was fundus et instrumenta. But the child of an ancilla was
never an accessory. 33. 7. 1; h. t. 5; Inst. 2. 20. 17. 9 Inst. 2. 20. 6. Post, § cxcn.

10 Inst, 2 20. 9. 11 Post, § cxcn. 12 29. 4. 1; C. 6. 39. 1. 13 49. 1. 14.

14 30. 96. 1. 15 Ante, § cxi. 16 A>ite, § cv. 17 Ante, § cxi. If all entitled

344 REMEDIES OF LEGATEE [en.

since it could not go to anyone but the person named1. If the gift which
failed was pro non scripto, it did not ordinarily carry its burdens at any
time2. It must however be remembered that all this depended on the
intent of the testator ; it was open to him to use words which shewed
that the legacy was not to be payable unless it fell on one particular
heres.

A second will revoked the first if it was validly made, even though
it never in fact operated3. If invalid ab initio, it did not, and although
legacies could be adeemed informally, a second testamentum which was
non iure factum, though it omitted or altered the earlier gift, did not
affect it4.

(k) Repudiation by the legatee, which might not be pro parte and
was irrevocable5.

CXXII. REMEDIES OF LEGATEE. Apart from his rights of action, a
legatee could claim, whether the legacy was immediate or deferred or
conditional, that the person liable should give him security for due per-
formance, unless the testator had prohibited this6. The security was not
mere cautio, but satisdatio, which in general means personal surety7.
If it wras refused, the legatee could get missio in possessionem of the
goods of the hereditas for custody8. He could not realise the estate
except to sell what must be dealt with at once, or turn out the heres;
the object, as we are unaffectedly told, was that he might so incommode
the heres as to force him to give security9. If, whether security had been
given or not, there was six months' delay in payment, Caracalla pro-
vided that a fideicommissarius might get missio in possessionem of the
property of the person liable, in which case he might use and enjoy the
property till he had satisfied his claim out of the fruits10. Justinian ex-
tended this to legatees11. In an early novel Justinian12 gave legatees and
others a still more drastic remedy. On application a index would decree
fulfilment within a year. On failure the heres wras excluded, except to
the extent of a pars legitima to which he might be entitled, his rights
passing to other beneficiaries who must give security. The order was,
generally, first, substitutes, then coheredes, then fideicommissarii here-
to caduca refused them, i.e. failed to vindicate them, they went to the fisc, who on general
principles would carry out the charges.

1 Post, §cxxra. 2 C. 6. 51. 1.3, "nisi perraro." 3 Ante, § cxvi. 4 32.

18. See for a suggestion of interpolation. Di Marzo, Mel. Girard, 2. 145. He holds that
in the original form the rule was that if it was not in the second will it was adeemed
"nuda voluntate," but if there was a change this was ignored, the revocation being con-
ditional on the validity of the new gift: this being void the old gift stood. 5 P. 3. 6. 12.
There can be no repudiation so long as the legacy is still conditional or sub die. 31. 45. 1.
6 Or the person liable is the fiscus; 36. 3. 1. pr.; h. t. 1. 18; h. t. 14. 7 36. 3. 1. pr.

8 36. 3. 1. 2; h. t. 1. 4; 36. Ipassim. 9 36. 4. 5. pr. 10 h. 1. 16, 17. 11 " Legatarios "
in the text is interpolated. See Mitteis, Z.S.S. 33. 206. 12 Nov. 1.1.

vmj REMEDIES UNDER JUSTINIAN 345

ditatis, then other legatees, etc., then any freed slaves, then the heres
ab intestato, not expressly disinherited, and then the fisc.

We have seen that in classical law the legatee had either an action
in rein or one in personam according to the form of the legacy1. The
action in personam was the actio ex testa mento, a strictum indicium, and
we are told that it was for double damages contra infitiantem, at least
if what was left was a cerium2. If there were several heredes, and the
legacy was charged on them generally, the legatee could bring his actio
ex testamento (or his vindicatio) against each in proportion to his share.
If the legacy was charged on some, but not all, the heredes, these were
liable in the proportion of their shares inter se3. But if some of the
heredes made liable were named personally, it appears that they were
liable equally4, though older lawyers took the view that they were
liable pro rata5, and the rule in the real action may have been either this,
or that, if charged only on some of the heredes, the gift failed pro parte6.

Justinian, by a sweeping piece of legislation7, provided that all
legacies were to have one and the same nature, and to be enforceable

by the same remedies, as to which he established a new scheme. Every
legatee was to be entitled to three distinct actions, between which it
seems he must elect. These were the actio in rem (vindicatio, if it was a
gift of property, confessoria, if it was a servitude), a personal action,
actio ex testamento, against the person liable, and an actio hypothecaria,
of which it was a new application. He provided that all the estate should
be under a hypothec for each legacy, and that no heres should be liable
for more than his share 8. If, as may be the case, this restriction did not
apply after partition, this gave the best remedy, for any given heres
might not have the thing or part of it, so that vindicatio was not available
against him, and by the personal action he would be liable only to his
share. By this action the whole could be recovered from one. There
were of course cases in which no real action was conceivable, e.g. a
legacy of a res aliena, or of a service to be rendered, or a legatum nominis
or liberationism, or of fungibles of which there were none in the hereditas.

1 Ante, § cxvu. 2 G. 2. 282; 4. 9; 4. 171; P. 1. 19. 1; lust. 3. 27. 7, probably

replacing an earlier liability to manus iniectio. Ulpian says (24. 33) that a legacy
wrongly paid cannot be recovered. Gaius, more in accordance with principle, confines this
to cases in which it is duplex contra infitiantem (2. 283). If there was no legacy at all, owing
to ademption, Paul says it could always be recovered, P. 3. 6. 92. Cf. P. 1. 19. 1; Inst.
3. 27. 7. The allusion in Inst. 2. 20. 25 is to J.'s new rules. 3 31. 33; 45. 2. 17.

4 30. 54. 3. 124. 5 45. 2. 17. 6 The texts cited to prove this are not conclusive, see,
e.g., Pothier, ad 30. 81. 4 and Pampaloni, Mel. Girard, 2. 348. In this text, if it is so under-
stood, there must be anachronism for Justinian, and there may be a point of construction
involved: the words about value are usually omitted by commentators on the text, see
Vangerow, § 52. 7 C. 6. 43. 1. As to the possible right of legatee per viiidiuitionem

to use the personal action; see ante, § cxvii. 8 G. 6. 43. 1. 5. 9 Post, § cxxm.

346 SPECIAL TYPES OF LEGACY [CH.

It should be added that legatees could claim bonorum separatio in
much the same way as creditors1, and that Justinian, nominally general-
ising the double liability on denial, practically nearly abolished it, for
while extending it to all kinds of legacy and fideicommissum, he enacted
thatit was to apply only where the beneficiary was the Church or a charity2.

CXXIII. SPECIAL TYPES OF LEGACY. Certain types of legacy had
special characteristics which need discussion.

Penal legacies. In classical law a legacy to X if the heres did a certain
thing (a penalty for doing it) was void3. Justinian abolished the rule4,
and allowed the condition unless it was unlawful or immoral, when, on
ordinary principles, it was struck out.

Legatum rei alienae. Anyone's property might be left, except the
legatee's, and even his, if the legacy was conditional, so that the regula
Catoniana did not apply, and it had ceased to be his at dies cedens5. The
fact that the testator thought it was the legatee's would not avoid the
gift, if it was really his own6, but in any case if it was a res aliena, the
legatee must shew that the testator knew it was not his own7. In that
case the heres must buy it or give its value8. But a legacy of a thing
incapable of ownership, extra commercium, was void 9.

Legatum generis and legatum optionis. The former was a gift of a
thing of a particular kind, e.g. a horse, but not any particular horse.
The legatee might choose, if there were things of the kind in the hereditas,
but might not choose the best10. If there were none in the hereditas, the
heres might choose one, but it must not be of the worst quality11. If a
choice was expressly given, this was legatum optionis, and the legatee
had free choice. If, however, the choice was to be by a third person
and he failed to act, the legatee might choose, but might not, under
Justinian, choose the best12. Till Justinian a legatum optionis was
conditional on personal choice, at least to the extent that it failed if
the legatee died without choosing. There are signs of dispute, and it is
not clear that it was conditional for all purposes13. Justinian allowed
successors to choose, and, if they disagreed, lot decided14.

\ 42. 6. 6. pr. 2 Inst. 3. 27. 7; C. 1. 3. 45. 7. 3 G. 2. 235; Ulp. 24. 17. The

rule, attributed to Pius, seems to rest on the notion that benefits must not also be
punishments. The conception has no application to appointments of tutores, and favor
libertatis caused doubts in case of manumissions (G. 2. 236, 237). 4 Inst. 2. 20. 36;

C. 6. 41. 1. 5 Inst. 2. 20. 4, 10; D. 30. 41. 2. 6 Inst. 2. 20. 11. 7 22. 3. 21; P. 4.
1. 8; Inst. 2. 20. 4 (exception, C. 6. 37. 10). 8 Ib. 9 Inst. 2. 20. 4; D. 30. 39. 10.

10 30. 37. pr.; h. t. 110; Inst. 2. 20. 22. This is Justinian's law, but from Ulp. 24. 14 it
appears that in classical law, if it was per damnationem, the heres chose, just as, in the case
of an alternative obligatio, inter vivos, the person liable had the choice (post, § cxcui). The
rule as to quality is probably not classical. 11 30. 110. 12 Ulp. 24. 14; C. 6. 43.

3. 1 b. 13 33. 5. 9; h. t. 19; 35. 1. 69; Inst. 2. 20. 23. The form of words might differ
and it may be that the disputes turned on this. 14 C. 6. 43. 3. 1. Same rule where

the legatum optionis was joint.

vin] SPECIAL TYPES OF LEGACY 347

Legatum rei obligatae. A legacy of a thing pledged by the testator, or
held by him subject to a charge or usufruct, was construed according to
his knowledge. If the testator knew of the charge the heres must free
it1. If he did not, the thing passed subject to the charge, but, in later
law, the legatee when sued on the charge could claim cession of actions2.

Legatum debiti. A legacy of the testator's debt, to the creditor, was
void unless it, in some way, increased his right, e.g. was absolute, while
the debt was conditional. If valid, it superseded the debt, but questions
of intent were material3. It was not subject to the I. Falcldia, nor could
a fideicommissum be imposed on it, except as to its excess value4.

Legatum nominis was a legacy of debt due to the testator. If due
from a third person, the legatee could require the heres to transfer his
rights of action5. It failed if there was no debt or it was paid vivo
testatore6. If it was due from the legatee (legatum liberationis), it was a
defence to any action and entitled the legatee to a formal release7. A
legatum liberationis might also be from a debt of the legatee to a third
person ; here the legatee could require the heres to procure his discharge8.

Legatum dotis to the wife was valid, though it would usually be hers
in any case. The point was that the legacy could be recovered at once,
while recovery of dos involved delays 9. A legacy of dos, simply, where
there was none, was void, but a legacy of any property was not avoided,
so decided Severus and Caracalla, merely because it was wrongly described
as dos10.

Legacy of an annuity for life was treated as a series of annual
legacies of which the first was purum, the others were conditional on the
legatee's living into that year. If the limitation to life was not expressed,
the words si vivat were implied11.

Legatum peculii, to an extraneus, entitled the legatee to it as it was
at the death apart from the II. caducariae, i.e., dies cedens. He would get
nothing but ordinary accretions after that. If the legatee was the slave,
he took all additions of any kind, up to the time of entry, when he was
free12. This also was dies cedens, but the rule did not depend on this, but
on presumed intent. It indicates that in Julian's view13 the peculium was
an artificial unity, retaining that character in the case of the slave, but
losing it at the death in the case of extraneus1*.

\ P. 3. 6. 8; Inst. 2. 20. 5. 2 C. 6. 42. 6. This has no application to the cause of

legacy of a thing subject to usufruct, 31. 66. 6. 3 30. 28. pr.; Inst. 2. 20. 14. 4 32.
7. 2; 35. 2. 1. 10. A legacy to one who is in fact a creditor is not of course necessarily a
legacy of the debt. 5 30. 105, and, if this is not done, an actio utilis in later law.

C. 6. 37. 18. 6 30. 75. 1; 34. 3. 31. pr. 7 Inst, 2. 20. 13. 8 Inst. 2. 20. 21.

9 Ante, § XL. 10 Inst. 2. 20. 15. Falsa -demonstratio non nocet, ante, § cxix. 11 33.
1. 4, 5. 8. Death would end it though it was for a term not yet expired. A promise of an
annuity was differently handled, post, § CLIV. 12 Inst. 2. 20. 20. 13 15. 1. 57. 1.

14 We are not informed as to the case of conditional legacy.

348 LEGACY OF USUFRUCT [CH.

Legatum ususfructus had many peculiarities. It did not cede before
entry1. When acquired through a son or slave it failed, in classical law,
on his death or, in the case of a son. capitis deminutio2, provided this
occurred after dies cedens3. As a gift of land included a gift of the
usufruct, it follows that, if the land was given to A and a usufruct to B,
A and B shared the usufruct, of which there were in fact two gifts4. We
have also noted the practice of repetitio, to avoid loss by capitis minutio
or 'non-use5. But the most striking peculiarities were in the law of
accrual. It does not seem to have been affected by the II. caducariae* ;
the classical texts treat the old law of accrual as still operating in this
case7, and it was substantially unchanged under Justinian8. There
were other exceptional rules. In general the rules of lapse applied only
where the gift failed altogether, but in usufruct (left per vindicationem)
there was accrual between joint usufructuaries, even where the lapse
occurred after enjoyment had begun9. Further, it was said "personae
adcrescere, non poriioni," the chief effect of which was that, if one of joint
fructuaries had lost his share by non-use, and another share fell in, he
could still claim accrual out of that. This accrual however would not
cover any part of that which he had lost, though that or some of it would
be vested in the man whose share had now fallen in10. These rules are
no doubt connected. The rationale given by Ulpian11 for the first is that
each is on the gift entitled to the whole (concursu paries fiunt), so that if
one disappeared, the other had all. He notes that the rule would apply
in any other case in which "concursu paries fiunt" and that there were
cases in usufruct in which there was no such accrual, as there were dis-
tinct gifts of parts12. For the second rule he gives the reason of Celsus
and Julian that "ususfructus cottidie constituitur et legatur, non ut pro-
prietas eo solo tempore quo vindicatur13." This hardly agrees with the rule
that, in legatum ususfructus, dies cedit once for all, as Ulpian himself
seems to note, and it would seem to make unnecessary the precaution
of repetition already adverted to14. The underlying notion seems to be
that, not being a res corporalis, usufruct had no real existence till it was
enjoyed — exfruendo consistit — what was lost by non-use was only what
had been acquired by enjoyment, not all rights under the legacy,
from which the loser was only excluded by the existence of the other.

1 Ante, § cxx. 2 Ante, § L; Vat. Fr. 57. 3 Vat. Fr. 62. 4 33. 2. 19. Similarly
as fructus cannot exist without usus, if there is a legacy of fructus to A and of usus to B,
A shares in the usus, of which there are two gifts. P. 3. 6. 24, 25. 5 Ante, § cvi.

6 Ante, § cxvin. 7 Vat. Fr. 75 sqq. 8 D. 7. 2. No doubt due to its personal

character: a life estate could not vest in any but the named person. 9 7. 2. 1. 3;

Vat. Fr. 77. 10 7. 1. 32. 1; 7. 2. 10, etc. 11 Vat. Fr. 78, quoting Neratius and

Celsus. 12 Vat. Fr. 78, 82; D. 7. 2. 1. pr. 13 7. 2. 1. 3. 14 Ante, § cvi.

viii] FIDEICOMMISSA 349

If that other ceased, the loser could claim his share by accrual, though
not what he had once lost1.

Praelegatum was legacy to a heres, meaningless if there was but one.
It was the old legatum per praeceptionetn freed of its doubts. As the res
was in part his, as heres, the legacy was void, so far as it was charged
on his share2. Thus where A was heres to one twelfth and B to the rest,
and a praelegatum was left to them equally, B would get only one-
twelfth of it and A the rest3. Where a praelegatee was also under a
fideicommissum hereditatis, he could keep only that part of the legacy
which was not void4.

Legatum partitionis. Legacy of an aliquot part of the hereditas*. The
legatee was called legatarius partiarius. The purpose of this ancient
institution is not certainly known ; it may have been to evade the rule
of the /. Voconia against institutio of women6. The legatee was in no
sense heres. He did not represent the deceased ; he could not bring
hereditatis petitio orfamiliae erciscundae, or sue or be sued as heres. But
as he was entitled to a part of each claim, and liable to a part of each
debt, it was usual to enter into agreements (stipulationes partis et pro
parte} with the heres that the heres should hand over the right part of
what came in, and that the legatee would refund the right part of what
creditors recovered from the heres1.

CXXIV. FIDEICOMMISSA. The primary purpose of these was to evade
the restrictions on institutio*. In the republic they were not enforceable,
but rested on the good faith of the heres9. Augustus ordered them to
be carried out in a few cases, not by the ordinary courts, but by the
administrative authority of the consuls, in some cases because the
testator had asked the beneficiary to carry them out "per salutem prin-
cipis," in others because of glaring perfidy. They were soon recognised as
legal institutions and a special praetor, praetor fideicommissarius, was

1 There was evidently much controversy among the classical lawyers, to some extent
on the general rules, but mainly on their application to a number of complex cases, see
Vat. Fr. 75 sqq. Naturally there has also been much controversy among modern commen-
tators. See Elvers, Servitutenlehre, 727-734; Vangerow, Pandekten, §554; Windscheid,
Lehrbuch, § 645 (who refers to earlier literature). Aa to the effect of a legatum of nuda
proprietas, the usufruct remaining with the heres, see Pampaloni, Mel. Girard, 2. 331
sqq. 2 Ulp. 24. 22. 3 30. 34. 12. 4 36. 1. 19. 3. Where one of two heredes has a
joint legacy with two others, not heredes, he can claim only one-half of his third, so that
the two others will share five-sixths. 30. 34. 11; h. t, 116. 5 Ulp. 24. 25. 6 Girard,
Manuel, 946. 7 G. 2. 254, 257; Ulp. 25. 15. School dispute on the question whether

he was entitled to the things themselves or only to their value, 30. 26. 2. When Justinian
fused legacy and fideicommissum (post, § cxxv) it seems that I. partitionis would be
merged in fideicommissum hereditatis. But it is still treated in the Digest as a distinct
institution, though the stipulationes partis et pro parte do not appear. 8 See the

cases in Cicero, de fin. 2. 17. 55; 2. 18. 58. 9 The cases enforced rightly or wrongly

by Verres seem to have been all with public objects with provision for forfeiture on failure
to perform.. Cicero, Verr. 2. 1. 10; 2. 2. 14; 2. 2. 25.

350 FIDEICOMMISSA [CH.

appointed to deal with them1. They are not necessarily connected with
codicils, but one Lentnlus, having made Augustus his heres, with others,
imposed fideicommissa on him and others, by codicil. Augustus ordered
them to be carried out and then asked the opinion of lawyers whether
codicils ought to be legally recognised. Opinion was in favour, and when
Labeo made them, they were definitely recognised as legal2. Fideicom-
missa thus were not a praetorian institution; they were iuris civilis,
juristic creations. The relations between heres and fideicommissarius
were handled by the praetor fideicommissarius. But the case was different
as between fideicommissarius and debtors and creditors of the estate.
He was not heres, and here occurred intervention of the ordinary praetor.
At first, fideicommissa could be created by codicil, only if there was a
will3, but, before Gaius, the further step had been taken of allowing
codicils in which they were imposed on the heres ab intestato*. But it
was still held that if there was a will, codicils failed, if the will failed5,
but Severus and Caracalla provided that, even where there was a will, an
unconfirmed codicil could create fideicommissa6. There were no rules of
form, and thus they might be oral7.

At first there were few restraints, but these were gradually imposed.
Peregrines, for whom they seem to have been introduced, were early
excluded, and Hadrian forfeited to the fisc anything so given to them8.
The sc. Pegasianum subjected them to the //. caducariae9, and Hadrian
forbade fideicommissa in favour of postumi extranei or personae incertae10.
But Gaius gives a formidable list of distinctions which still existed11.
They might benefit a wider class, e.g. Junian Latins and women barred
by the /. Voconia12. Freedom could be given to servi alieni in this way,
and a direction could be given that slaves under 30 should be freed at
that age13. They might be in Greek14, in an unconfirmed codicil, at any
point in the will15, and post mortem heredis1*. Where a son or slave was
made heres, a fideicommissum could be charged on the paterfamilias,
though a legacy could not17. No technical words were needed. Any
direction or words would suffice — volo, rogo, te daturum scio, etc. — but
there was no fideicommissum if it was clear that the testator meant it to
be quite discretionary, e.g., si volueris18. A fideicommissum might not,

1 Inst. 2. 23. 1. 2 Inst. 2. 25. pr. 3 Arg. the language of Inst. 2. 25. pr., 1.

4 G. 2. 273; Ulp. 25. 4; P. 4. 1. 4. 5 29. 7. 16; h. t. 3. 2. A/c. in a will which did not

appoint a heres was bad as the document was a nullity. G. 2. 243; Inst. 2. 23. 2. See how-
ever, as to claus^ila codicillaris, post, § cxxvi. 6 P. 4. 1. 10; Inst. 2. 25. 1. 7 P. 4. 1.
5, 6; Ulp. 25. 3. 8 G. 2. 285. Probably as they had been used to benefit departati,

Huschke, ad 1. 9 G. 2. 286. 10 G. 2. 287; Ulp. 25. 13. 11 G. 2. 268-283; Ulp. 25
passim. 12 G. 2. 274, 275. 13 G. 2. 272, 276; Ulp. 2. 10. 14 G. 2. 281; Ulp.

25. 9. 15 G. 2. 270 a; Ulp. 25. 8 16 76. 17 Ulp. 25. 10. 18 G. 2. 249; Ulp.
25. 1, 3; P. 4. 1. 5, 6; D. 30. 115; 32. 11. 2, 7. It might be conditional, G. 2. 250.

vin] FIDEICOMMISSUM HEREDITATIS 351

however, be given poenae causa, in classical law1, nor could anyone
make a fideicommissum who had not testamenti factio2.

It might be charged on any person who took a benefit by will or on
intestacy, not merely the heres, even on a fideicommissarius3, and, as it
might be post mortem*, even on the heres of the heres, thus providing a
means of making successive gifts of the property.

The action was always in simplum, not as in some cases of legacy,
in duplum, and if it was not due, condictio indebiti always lay for re-
covery5. Interest was due from mora, which was not the case in legacy,
except sinendi modo6. As the case was tried by cognitio before the
praetor fideicommissarius, an administrative procedure, not by formula7,
it could be heard at any time, even when the ordinary courts were not
sitting.

Fideicommissum of the hereditas was the most important case. It
might be charged on a heres (heres fiduciarius) or on a prior fideicommis-
sarius*, but of course not on a mere legatee. It might be of the whole
or of a part9. In the former case, the heres being technically still heres, and
liable for the debts, it was at first usual for him to make a formal sale
of the hereditas to the fideicommissary at a nominal price. This was
followed by stipulations, emptae et venditae hereditatis, the heres under-
taking to hand over all assets, and to allow the fideicommissary to sue
in any actions, as procurator (or cognitor) in rein suam, the fideicom-
missarius undertaking to recoup anything the heres was compelled to
pay, and to undertake any necessary defence10. If the fideicommissum
covered only a part, the stipulations were made partis et pro parte as in
legatum partitionis, but there was no question of procuratio to sue, or
be suedu. This system was unsatisfactory, since the heres, if he was to
get no benefit, might refuse to take, and so destroy the fideicommissum,
and if either was insolvent, the stipulationes would be poor protection.

A first attempt at a better system was the sc. Trebellianum, of prob-
ably A.D. 5612, which provided that the agreements should not be
necessary ; the handing over of the hereditas, effected by any expression

1 Ulp. 25. 13. 2 Ulp. 25. 4; D. 30. 2. 3 G. 2. 271. 4 Post, § cxxvu.

5 G. 2. 282, 283. 6 G. 2. 280. 7 G. 2. 278, 279; Ulp. 25. 12. 8 G. 2. 270, 277.

It must be on an actual beneficiary. A legacy of dos to wife could not be subject to any
fc. P. 4. 1. 1. It might be imposed on a postumus, P. 4. 1. 2. A man gave all his property
to an emancipatus by don. int. viv. stipulating that the son would restore on demand or
at his death to the father if alive or to his nominee. The father, moriens, sent an "epistula
fideicommissaria" to the son telling him to give a sum to X and to free Y. The son was
neither heres nor bonorum possessor. The fee. are binding. This is based on a rescript of
Pius (32. 37. 3). The principle appears in 39. 77. The fc. is binding on the heres. It is
thus pro tanto a release of the obligation to restore. The son is thus a beneficiary and
fee. can be imposed on any beneficiary on the death. 9 G. 2. 250. 10 G. 2. 251, 252.
11 Arg. G. 2. 254 in fin. 12 See Girard, Manuel, 947.

352 F1DEICOMMISSUM HEREDITATIS [CH.

of intent, should vest the property in the fideicommissarius, as prae-
torian owner, and the actions available at civil law, to or against the
heres, should pass to and against the fideicommissarius, the heres having
an exceptio restitutae hereditatis if he was sued, and being met by one if
he sued1. If only part was transferred, the actions passed pro rata2.
The fideicommissarius had also a hereditatis petitio utilis3. The sc. did
not affect the civil law liability; like many sec. it was a direction to
the magistrate4. He was to give the necessary actions and defences.
Thus the heres was still technically liable, and entitled, subject to
exceptio, and the actions of and against fideicommissarius were utiles.
The sc. speaks only of the actions available at civil law ; those conferred
by the praetor he could deal with, without authority, and we are told
that they too passed, and all obligations, natural and civil5.

This did not work well. Heredes seem to have still refused and
destroyed the fideicommissum ; possibly they demanded payment for
complaisance. At any rate a further remedy was found in the sc.
Pegasianum of about A.D. 73 6. It provided that the heres rogatus could
keep a quarter, as in legacy, under the I. Falcidia. If he refused to enter
he could be compelled, taking no benefit and incurring no liability,
actions passing as under the Trebellian. The entry was not dispensed
with, but compelled, no doubt by magisterial coercitio7. If the heres
entered voluntarily and there was no case for deduction, the Trebellian
applied. If he entered and deducted, the Trebellian did not apply and
stipulations partis et pro parte were needed8. If there was a right to
deduct, but it was not exercised, the texts conflict on the question
whether the stipulations were needed or not9. It should be added that
the rules applied separately to heredes pro parte, as under the /. Falcidia10.

It was usual, perhaps necessary, to declare under which sc. the sur-
render was made11. This is the basis of Paul's view, with which others
disagreed, that if more than three-quarters were left, but the heres did
not mean to deduct, he could make his surrender under the Trebellian,
so that actions would pass ipso facto12. The contrary view presumably
rests on the proposition of the Pegasian, which can be gathered from

1 G. 2. 253. 2 G. 2. 255; P. 4. 2. 3 G. 2. 253. 4 See G. 2. 253; D. 36. 1. 1,
2. Ante, § v. 5 36. 1. 41. pr. 6 G. 2. 254, 256; Ulp. 25. 14 sqq.; P. 4. 3; on the

lines of the Falcidia, P. 4. 3. 3. 7 G. 2. 258; Ulp. 25. 16; P. 4. 4. 2, 4. Missio in

possessionem by decree if heres failed to appear, P. 4. 4. 3. 8 G. 2. 257; Ulp. 25. 14,

15; P. 4. 3. 2. This curious rule seems to rest not on a rational basis, but, as Paul and
Ulpian suggest, on something in the Pegasian itself. Probably the language of Gains
reflects that of the sc. which may have provided that fee. should be cut down "as in
legacies." In that case there could be no question of actions passing. 9 G. 2. 257;

Ulp. 25. 14; P. 4. 3. 2. If he paid when he might have deducted there was no condictio
indebiti: it could not be said not to be due, P. 4. 3. 4. 10 G. 2. 259. 11 See, e.g.,
Ulp. 25. 14. 12 P. 4. 3. 2.

vin] FIDEICOMMISSA 353

Gaius1, that the Trebellian was to apply only if the fideicommissa
covered less than three-quarters.

Justinian simplified the system, repealing the Pegasian, and grafting
its rules of compulsory aditio and right to cut down on to the Trebellian,
of which he declares his rules to be a recast2. He thus got rid of the
notion that the case was to be dealt with as one of legacy, and actions
now passed wholly or pro rata, as the case might be, with no need for
stipulations. In a Novel he allowed the testator to forbid the retention
of a quarter3.

Where the testator, in directing transfer, reserved to the heres a
thing worth one-fourth or more, instead of a share, the heres kept it
and was treated as a legatee, all actions passing. If it was worth less, he
could have it made up. Before Justinian this was a case for the Pegasian,
and stipulations would be needed. Under him the actions passed in
proportion to the necessary supplement4.

CXXV. Fideicommissa of single things were less important. They
could be charged on any beneficiary5. If charged on a heres they were
liable to be cut dowrn under the Pegasian6, but presumably not if charged
on a legatee, there being no question of avoiding intestacy. There was
no question of compulsion to enter on account of such fideicommissa, or
of transfer of actions. Anything could be so left which could be left by
damnatio1. If there was a fideicommissum to buy a res aliena and give
it, the thing must, according to Gaius, be bought or its value given,
as in legatum per damnationem, but he remarks that some held that, if
the owner refused to sell, the gift failed8. Freedom might be thus given
to a servus alienus, either by directing the heres to buy and free, or by
giving the owner something and directing him to free. In the latter case
he was bound if he accepted. In the former the gift failed if the owner
refused to sell9, till Justinian provided that it should still operate if it
ever became possible to buy the man10. Gaius says that if a legacy was
given and a fidzicommissum imposed, this was void as to any excess
over what the legatee took11. But this was true only where they were
commensurable quantities. A man who received a gift of money with a
fideicommissum to hand over a fundus could not, after acceptance,
refuse to carry out the trust because the land was worth more12. Finally,
it is to be noted that fideicommissa of singulae res gave only a ius in
personam13.

1 Locc. citt. 2 Inst. 2. 23. 7, "exploso sc. Pegasiano" to get rid altogether of the
irrational interpretations of the wording. See p. 352, n. 8. 3 Arg. Nov. 1. 2. 2 in f.

4 Inst. 2. 23. 9. 5 G. 2. 260; Inst. 2. 24. 1. 6 G. 2. 254; Inst. 2. 23. 5. 7 Ulp.

25. 5. 8 G. 2. 262; ante, § cxxn. 9 G. 2. 263, 265. In the case of manumission

there could be no question of giving the value. 10 Inst. 2. 24. 2. 11 G. 2. 261.

12 D. 31. 70. 1; 35. 2. 36. pr. 13 P. 4. 1. 18.

B. P. L. 23

354 FUSION OF FIDEICOMMISSUM AND LEGACY [CH.

Justinian, by a sweeping enactment1, declared that for the future
there should be no difference between legacies and fideicommissa of
single things, but each kind of gift was to have all the advantages of
the other. In discussing the regula Catoniana* we saw that this is not
easy to interpret. In legatum per vindicationem the legatee was entitled
to fructus from aditio, as the thing was then his ; in fideicommissa, from
mora; in legacy by damnatio only from litis contestatio3. The first and
most favourable of these rules was never applied under Justinian,
though ownership passed at once. Again, till Justinian, fideicommissum
had in the main been construed like legacy by damnatio. Thus if it had
been made to two, disiunctim, each was entitled to the whole4, but under
Justinian the rule of vindicatio was applied and they shared5. In his
new system Justinian had a general leaning to the rules of vindicatio,
but he often departed from them and adopted the rule he thought most
rational, whether it tallied or not with the notion of giving both forms
the advantages of each. There were some respects in which legacies had
an advantage which was extended to fideicommissa. Thus ownership
now passed at once, apart from modalities. And the rule giving double
damages for denial, and refusing condictio indebiti, in gifts to the Church
and charities, applied both to legacy and to fideicommissum6.

But there remained an ineffaceable difference in the case of gifts of
freedom. A servus alienus could be freed by fideicommissum but not by
direct gift, and fideicommissa of liberty to slaves of the testator were
preserved7, though logically these ought to have been construed as
direct gifts. The point was that one freed directly was a libertus orcinus,
having no living patron — one freed by fideicommissum was the libertus
of the person who carried it out8.

There remain one or two difficult points, postponed for convenience.

If a fideicommissarius was himself subject to a fideicommissum the
question arises how far he could deduct the quarta Pegasiana or Falcidia.
The texts in the Digest have been so altered that it is difficult to say
what the answer is. On the whole the rules seem to be as follows. If
the heres could not have deducted anything, the fideicommissarius
could deduct nothing. If the heres might, but did not, the fideicommis-
sarius might, at least if the heres refrained in order that he might. If
the heres had deducted, so could he, unless he was a freedman of the
deceased, or there was evidence that the testator did not mean him to
have such a right. The principle seems to be that as the right of the

1 C. 6. 43. 1; h. t. 2; Inst. 2. 20. 3. 2 Ante, § cxxi. 3 G. 2. 280;

C. 6. 47. 4 (interp.). Damnatio gives a strictum indicium, G. 2. 204; see post, § ccxxix.
4 Vat. Fr. 85. 5 C. 6. 51. 1. 11. 6 Inst. 4. 6. 19, 26. 7 Inst. 2. 24. 2.

8 G. 2. 266, 267; Ulp. 2. 8.

mi] FIDEICOMMISSA AND LEX FALCIDIA 355

fideicommissarius was derived from the heres, he could have no right
which the heres had not1.

If there were legacies and the heres had handed over the whole
estate, could the fideicommissarius deduct the Falcidian quarter? The
relative titles shew the difficulty of this question2. It must first be deter-
mined whether the testator meant legacies to be charged on heres or on
fideicommissarius, the presumption being in favour of the latter rule, if
the transfer was to be immediate. If they were to be chargeable on the
heres, legacies andfideicommissa were treated as a whole and, if necessary,
cut down pro rota, the heres keeping a quarter and there being no ques-
tion of further deduction. If the heres entered under compulsion a
fideicommissarius of the whole might cut down legacies to three-quarters.
If they were to be chargeable on fideicommissarius, his fideicommissum
was regarded as being of the whole, less the legacies. The heres kept one-
quarter — the rest was distributed pro rata. Thus if the estate were 4,
legacies were 3, and there was a fideicommissum of the whole, the heres
kept one-quarter and of the rest the legatees took three-quarters, the
fideicommissarius the rest. If the heres entered only under compulsion
(coactus), the fideicommissarius would also get the one-quarter the heres
would have had. There was a governing rule that the fact that heres
entered under compulsion would not entitle legatees to more than they
would have had if he had entered voluntarily. If heres, entering volun-
tarily, refused the one-quarter, the fideicommissarius would not benefit
at cost of legatees, unless there was evidence that he refrained in order
to benefit the fideicommissarius3. Where it was a fideicommissum of
part there were very complex cases.

Paul tells us4 that in any case of fideicommissum, if the heres sold the
property, the fideicommissarius could get missio in possessionem against
a buyer who had notice of the trust, and the possessio would actually be
given to him, potestate praetoris5. Justinian abolishes this system as
ineffective and obscure, substituting a general hypothec in all cases of
legacy or fideicommissum6, and, as we have seen, making the fideicommis-
sum vest the ownership in the beneficiary so that the heres had no right
in the thing. If the fideicommissum was conditional or ex die, satis-

1 Chief texts, 35. 1. 43. 3; 35. 2. 25. 1, 32. 4 and 5, 47. 1; 36. 1. 1. 17, 1. 19, 57. 2, 65. 11
and 12, 80. 11. 2 D. 35. 2; 36. 1; C. 6. 49, 59. 3 For discussion and reference to
chief texts, Poste's Gaius, ed. Whittuck, 256 sqq. Refusal of heres to enter even under
Justinian's scheme may be a rational act. If the estate is insolvent and the fact is discovered
only after entry, the fideicommissarius may refuse the gift and the heres will he liable —
semel heres semper heres. His remedy against fideicommissafy, even though the latter had
previously agreed to accept, may be illusory. The inventory will protect the heres, but
if he is to get nothing it is not worth while, as he will have to deal with all the claims.
4 P. 4. 1. 15. 5 43. 4. 3. pr., giving usucapion possession. 6 C. 6. 43. 3; Nov.

39. pr.

23—2

356 CODICILS [CH.

faction of the condition or arrival of the dies avoided any alienation or
charge which the heres might have effected.

In the classical law it \vas common to leave lands as security for
legacies of alimenta and the like. Papinian says that this is in effect a
fideicommissum of the land, entitling the beneficiaries to the above
missio in possessionem1. Modestinus construes in the same way a simple
gift of land to provide alimenta2. But by his time a better security had
appeared. Severus and Caracalla recognised, as an existing institution,
an actual pledge of property for this purpose, probably confined to this
kind of provision3, and this would be valid as against any buyer, with
notice or not. If the land was not enough there was a claim against the
heres to make up the deficit4, and presumably any surplus would
go to him5. Justinian allowed such a pledge for any legacy over
all or part of the hereditas, but it was of little importance, in view
of his more general provision in the same enactment6 in which this is
mentioned.

CXXVI. Codieilli. In this connexion, these are informal documents
dealing with disposal of the estate on death. Their early history has been
considered7. The main point to notice here is the distinction between con-
firmed and unconfirmed codicils. Even in the latest law the latter could
do nothing but create fideicommissa8, while a codicil confirmed by will,
even by anticipation, could do anything that a will could, except dispose
of the hereditas 9. Under Justinian confirmation need not be in express
words, but might be implied10. A codicil was for most purposes treated
as forming one document with the will11. It could be made by anyone
with testamentifactio, andpostliminium validated one made in captivity12.
At first no form was needed. Constantine required the same number of
witnesses as for a will, where it imposed a fideicommissum on the heres
ob intestato13. Theodosius laid down the same for all codicils14. Jus-
tinian required five15, but provided that, though there were no, or not
enough, witnesses, the fideicommissarius having first sworn to the good
faith of his claim (iusiurandum calumniae) might put the person, sup-
posed to be charged, to his oath that the deceased had never mentioned
such a thing to him. If he would not take it he must carry out the
fideicom missum 16.

A will which failed, as such, could not be interpreted as a codicil.

1 33. 1. 9. Paul's final remark refers to refusal of heres to give security. 2 34.
1.4. 3 13. 7.26. pr.; 34. 1. 12. 434.1.12. 5 Arg. 34. 1. 4. pr. med. The

contrary decision here is due to the fact that it is construed as a gift of the property.
6 C. 6. 43. 1, 2. 7 Ante, § cxxiv. 8 Ulp. 25. 11; 29. 7. 3. 2. 9 Inst. 2. 25. 1, 2;
Ulp. 25. 8. 10 29. 7. 5. 11 29. 7. 2. 12 49. 15. 12. 5; 29. 7. 6. 3; and at death,

29. 7. 7. pr. 13 C. Th. 4. 4. 1. 14 C. Th. 4. 4. 7. 2. 15 C. 6. 36. 8. 3, interp.

16 Inst. 2. 23. 12; C. 6. 42. 32. A man might make more than one codicil, Inst. 2. 25. 3.

viii] MILITARY WILL 357

A text of Ulpian leaves it uncertain whether this rule could be dis-
placed by general evidence of intention1, but other texts and an enact-
ment of Theodosius suggest that it had been allowed to evade it by a
direct expression in the will of a wish that if it failed as a will it should
be good as a codicil. He provided that if there was such a clause (clausula
codicillaris}, the institutus might choose whether he would take it as a
will or as a codicil, but, except in the case of certain relatives, he might
not change his mind2.

The difference between a confirmed and an unconfirmed codicil
means little under Justinian, legacies and fideicommissa being assimi-
lated. Direct gifts of liberty could not be given by unconfirmed codicil,
and it is not clear that tutores could thus be fully appointed.

MILITARY WILL. The privileges attaching to the will of a soldier or
naval seaman3 are a growth of the first century of the Empire, their
scope being settled by the earlier classical lawyers, building on vague
rescripts of several emperors4. The privilege lasted all the time of
military or naval service, till Justinian limited it to the period of actual
service with the colours5. It confirmed, subject to intent, wills made
before the service began6, and a will validly made during service re-
mained valid for a year after discharge unless this was for misconduct7.
All privilege then ended, except that the fact that a condition could
not be satisfied within the year did not affect the validity of the will 8.

The chief privileges are these. No form was needed, but Trajan
provided that there must be some evidence other than the word of the
claimant9. A miles could "test," even though deaf and dumb10. He
could institute from or to a certain day, and the clausula codicillaris was
implied11. He was not bound by the rules of testamenti factio12, or
exheredatio13, or the querelau, or the Falcidia15, or the Pegasiana16, and
the restrictions, on institutio, of the II. caducariae and the I. lunia did not
apply to his will17. He could revoke his will, at civil law, by any ex-
pression18. He could substitute without a will19, and even make a
pupillary substitutio to an emancipatus or a pubes, but in such cases the
substitutio covered only what came from him20. He could be partly
testate21. Capitis deminutio minima did not affect his will (even, in later

1 29. 7. 1. 2 C. Th. 4. 4. 7 = C. 6. 36. 8; D. 29. 1. 3; 28. 3. 12. 1 ; C. 7. 2. 11. 3 37. 13.

I. 1. This title specifies precisely the persons to whom the privilege applies. It includes
alJ persons officially present in the camp, whether soldiers or not. 4 29. 1. 1; Inst. 2.

II. 1. 5 G. 2. 106; C. 6. 21. 17. 6 Inst. 2. 11. 4. 7 29. 1. 25, 26; Ulp. 23. 10.
8 29. 1. 38. 9 G. 2. 114; Inst. 2. 11. 1. 10 29. 1. 4; Inst. 2. 11. 2. 11 29. 1. 3
(corrupt); h. t. 15. 4. 12 G. 2. 109, 114; 29. 1. 13. 2. 13 29. 1. 7, 8, 33. 2; 37. 12.
1. 4. 14 5. 2. 27. 2; C. 3. 28. 37. 15 29. 1. 17. 4. 16 C. 6. 21. 12. 17 G. 2.
110,111. 18 29. 1. 15. 1, and see h. t. 19. pr. 1929.1.15.5. 20 29. 1. 5; h. t.
41. 4. 21 29. 1. 6.

358 SETTLEMENTS [CH.

classical law, if it occurred in the year after service ceased), nor did
media or maxima, where it was a military punishment1. There were
however some respects in which his will was subject to ordinary law.
He could not institute an incerta persona, till others could2. He was bound
by the II. Aelia Sentia and Fufia Caninia3. An institutio coptatoria was
void4. A captivus miles could not make a will5.

If the miles was a filiusfamilia-s, the power applied, even under
Justinian, only to bona castrensia and quasicastrensia, not to adventitia6.

CXXVII. LIMITED INTERESTS AND SETTLEMENTS'. The desire to
"found a family," to secure that the "family property" should remain
in the hands of descendants in perpetuity, existed in Rome as else-
where. The question thus arises how far this was possible— how far a
testator could "settle" his property so as to determine its devolution
in the future. Apart from fideicommissa the power seems to have been
little in the time of Gains. No incerta persona could be instituted heres
or receive a legacy and thus, though a testator could create a series of
usufructs, they must all be to existing persons, or at least to persons
already conceived, so that property could not be effectively settled in
this way for more than existing lives and the period of gestation. The
right to institute postumi was not a real extension of this power. All
postumi instituted, whether sui, who could be instituted at civil law, or
extranei, who could get bonorum possessio, must have been born or con-
ceived at the time of the testator's death8. The power to institute them
was not primarily intended to increase the power of testation and settle-
ment, but to prevent the intestacy which would otherwise result from
the agnation of a postumus. The rule as to postumi extranei, an analogous
extension, carries the matter no further for the present purpose9, the
possibility of holding over delatio for more than the period of gestation
does not seem to have been contemplated.

Fideicommissa however afforded a means of going further in this
direction. They could at first be made in favour of incertae personae,

1 29. 1. 11, 22, 23; 28. 3. 6. 13; Inst. 2. 11. 5. There were many other privileges.
2 Inst. 2. 20. 25. 3 29. 1. 29. 1. 4 C. 6. 21. 11. 5 29. 1. 10. They were subject
to other ordinary rules. 6 Inst. 2. 11. 6. 7 The practice of requiring the devisee,

where he was not a descendant, to take the name of the testator, is ancient. See Cicero,
ad Alt. 1. 8. 3. For some account of these family settlements, Buckland, Equity in R.L.,
83 sqq. 8 37. 9. 10; 38. 7. 5. 1. 9 The primary purpose of this praetorian

extension is not quite clear. It may have been in order to provide for the posthumous
children of emancipati, or a mere development from the rule, recognised at civil law, that
the slave of a postumus extraneus might be instituted, for this is involved in the institutio of
servi hereditarii, and is clearly recognised by Labeo for the similar case of the institutio by
a third party of a slave forming part of the hereditas the person entitled to which is a suus
heres yet unborn, 28. 5. 65. But it is more probable that it rests on the fact that it was
not always possible to say beforehand whether a child of a certain woman would be a suua
or an extraneus of the testator. See the cases discussed in 28. 2. 9.

vin] SETTLEMENTS 359

and, as there ccmld be fideicommissa on fideicommissa, it was possible to
burden each successive beneficiary with a trust to hand over the pro-
perty at his death to his son, and so on in perpetuity1. We know indeed
that such things were done. The will of Dasumius, made in A.D. 108, is
still in existence2. It gives lands to liberti, with no power to sell or
pledge them, with a right of accrual or survivorship, and a direction
that on the death of the last survivor the lands are to go to posteri on
the same terms. The last of these is to have the power of alienation.
This is substantially a complete perpetuity. It is not possible to say
whether such things were usual or not. The will, or the copy which we
possess, is inscribed on marble, a permanent record made perhaps on
account of the permanent nature of the relations set up. In any case
Hadrian forbade fideicommissa in favour of incertae personae3, so that
the power ceased.

Thereafter testators inserted in their wills directions not to alienate,
usually referring to specific properties4. If these were valid they would
produce much the same result, but Severus and Caracalla provided
that any such direction was a nullity, unless it was combined with a
fideicommissum5. Such a fideicommissum would usually be for members
of the family, and the Digest gives6 many illustrations of such family
trusts. They could not however be perpetual: they were not, it would
seem, binding in classical law except on donees alive at the testator's
death and their immediate issue7. Such restrictions seem to have had
a certain operation in rem, i.e. they not merely imposed a duty on the
heres and his successors, but they vitiated any sale by the fiduciary, at
any rate if there was an express prohibition of sale 8. In the absence of
such a prohibition, there was the missio in possessionem against a buyer
with notice already dealt with, abolished by Justinian as ineffective
and obscure9. Under Justinian, as we have seen, all property subject
to a, fideicommissum was by that fact rendered inalienable10.

But there was another change under Justinian, of much greater
importance. Gifts of all kinds could now be made to incertae personae11,

\ Fideicommissa for transference to other than issue at death were usually in absence
of issue, and if this limitation was not expressed, it was implied in later classical law.
35. 1. 102; C. 6. 42. 30. 2 Girard, Textes, 798; Bruns, 1. 304. 3 Ante, § cxxrv.

4 See Declareuil, Mel. Gerardin, 135 sqq. for a study of the social conditions which produced
these trusts. He thinks they originated in arrangements for tombs and the like enforced
usually by multae. 5 30/114. 14. 6 30. 114. 15; 31. 67. 3; h. t. 88. 16; 36. 1. 76, etc.
7 31. 32. 6; 32. 5. 1; h. t. 6. pr., etc. 8 31. 69. 1; 32. 38. 3, etc. But see Beseler,

Beitrdge, 2. 77 on 30. 114. 14. Security could be required from any person taking under
such a fideicommis&um, to carry out its further purpose, 31. 67. 6; 32. 36. 7. 9 Ante,

§cxxv; P. 4. 1. 15; C. 6. 43. 3. 2. This missio was not apparently available against
devisees, who indeed, as Declareuil points out (p. 142), were subject to the trust.
10 Ante, § cxxv; C. 6. 43. 3. 2a. At about the same time he made the testator's prohibition
of alienation operative in rem, C. 4. 51. 7. 11 Ante, § cm; C. 6. 48. 1

360 SETTLEMENTS [CH. vm

but as institutiones were still confined to persons conceived at the time
of the death1, and ususfructus sine persona esse non potest2, neither of
these could well be used to establish perpetuities. But, as in the time
before Hadrian, fideicommissa were available and were used for the
purpose. It was possible to direct the heres to hand over the property
on his death to his son, to direct the latter to do the same and so on for
ever. The only difficulty was the quarter which the heres might keep.
But it was easy to reserve enough for this, and in any case Justinian
allowed the testator to override this3. In a Novel4, Justinian states and
decides a case of this kind. Hierius had given specific estates, each to a
different son, on the terms that he was not to alienate it away from his
name and family. Those who had issue were to leave it to them, the
shares of those without issue going to the survivors on the same terms.
In a codicil5 he gave land to a grandson, on similar terms, but adding a
direction that it was to remain for ever in the family, thus, unlike the
will, creating a perpetuity. The grandson obeyed the directions, but his
son left the property, under conditions which occurred, to his wife and
mother jointly. A surviving heres of the original testator claimed the
property on the ground that the wife and mother were not of the family.
The decision was that, for the purpose, they were, so that there had
been no breach. Justinian then decided, or rather enacted, that it had
been going on long enough, that the present holders might do as they
liked with the property, and that for the future no such prohibition was
to hold good for more than four generations6.

1 C. 6. 48. 1. 2. 2 Vat. Fr. 55; 45. 3. 26. 3 Ante, § cxxiv. 4 Nov. 159.

5 It is not improbable that Hierius' will was made before the enactment authorising gifts
to incertae personae (p. 359, n. 1 1 ) and the codicil after. 6 This became the common

law of " fideicommissary substitutions" in the countries governed by Roman Law. See
Strickland v. Strickland, 1908, App. Ca. 551.

CHAPTER IX

THE LAW OF SUCCESSION. INTESTACY. BONORUM
POSSESSIO. SUCCESSION NOT ON DEATH

CXXVIII. Intestacy, general notions, p. 361;CXXIX. Succession under the XII Tables, 363;
CXXX. The Praetorian Scheme, 366; CXXXI. Imperial changes before Justinian, 368;
Sc. Tertullianum, ib.; Sc. Orphitianum, 369; Further changes, 370; CXXXII. The Scheme
of the Institutes, 371 ; The system of the Novels, ib. ; CXXXIII. Succession of the father,
372; Distinction between reversion of peculium and hereditas, 375; CXXXIV. Succession
to cives liberti, ib.; L. Papia Poppaea, 376; Justinian, ib.; Property of Junian Latins, 377;
Property of those in numero dediticiorum, ib.; further effects of distinction between re-
version of peculium and hereditas, 378; CXXXV. Account of working of Bonorum possessio,
ib.; B. P. contra Tabulas, 379; secundum tabulas, 380; Unde liberi, ib.; unde legitimi, ib.;
unde X personae, 381; unde cognati, ib. ; other cases, ib. ; under Justinian, 382 ; CXXXVI.
Machinery of scheme, ib.; Ex edicto and not ex edicto, 385; CXXXVII. Remedies of
'honor urn possessor cum re, 386; CXXXVIII. Remedies of bonorum possessor sine re, 389;
CXXXIX. Bonorum Possessio, when cum re, 391; authority which makes it cum re, 393;
CXL. Advantage of bonorum possessio sine re, 394; reason for granting B. P. sine re, ib.;
Bonorum Possessio Decretalis, 395; CXLI. Universal succession not on death, 396 ; Adrogaiio,
ib.; Manus, 397; Cessio in iure hereditatis, 398; Adsignatio liberti, ib.; CXLII. Addictio
bonorum libertatis causa, 399; Publicatio, ib.; Sc. Claudianum, 400; Bonorum Venditio, ib.

CXXVIII. The subject of Intestacy is, in one sense, or everi two
senses, of minor importance. Long before classical times intestacy had
become unusual, indeed a misfortune, and as early as Plautus1 a feeling
had developed which has been called a horror of intestacy. The very
artificial state of the law of succession on intestacy may account for the
desire to make a will, but hardly for the intensity of this feeling. There
have been many attempts to explain it, but they are little more than
conjectures: here as elsewhere it is difficult to be sure of the historical
origin of a social sentiment. Maine2 suggests that emancipatio is really
a reward, but has the unfortunate effect of excluding the son from the
succession, for which the will provides a remedy. Another explanation
is that the stern Roman mind saw a duty and a responsibility involved
in the right of testation. It is said also that the plebeians prized the right
of testation as their most striking triumph over the patricians, and that
what had been a plebeian became, with plebeian domination, a Roman
sentiment. But none of these explanations seems enough to explain the
intensity of the feeling, and it may be that, as has also been said, the
feeling is at bottom religious: a heres ab intestato could, by cessio heredi-
tatis, shift the sacra to the care of another, uninterested person, a heres ex
testamento could not3.

1 Curculio, 5. 2. 24. 2 Ancient Law, 222. 3 See e.g. Accarias, Precis, I. 840.

The fact that the will can do many things besides appoint a heres is also cited, but, like the
other explanations, is not adequate.

362 SUCCESSION ON INTESTACY [CH.

A second point of view from which the subject can be regarded as
unimportant is that of its juristic value. Apart from a few main principles,
it is a mass of detail, throwing little light on other parts of the law, and
for this reason it will be treated briefly.

Many of the subsidiary rules of succession applied to succession on
intestacy as well as to succession by will, e.g. the rules as to beneficium
abstinendi, spatium deliberandi, inventory, fideicommissa, hereditas iacens,
ius accrescendi, sc. Pegasianum, and so forth1. But the rules of the //.
caducariae had here no application2. Even if they had applied, they
would have been of less importance, since almost all relatives were so
far excepted that they could take their share, and, at least in the case
of ingenui, the heres on intestacy was a relative. But they did not apply;
thus, where an agnate refused, accrual existed in favour of the others in
the same degree, whether they were married or not3, while under a will
they would have been excluded from sharing in caduca or the like. And,
in a case of intestacy, there could be no question of a servus heres neces-
sarius.

In relation to collatio bonorum it is to be observed that, while the old
system applied in intestacy, it had, as has been said, lost most of its
importance in later law. But a new kind of collatio appeared. The old
collatio had turned on the notion that the emancipatus had means of
acquiring property, denied to the filiusfamilias, but collatio dotis, which
might be required from a daughter in potestas*, introduced two new
ideas: the person making collatio might be in the family, and the fund
out of which it was made commonly came from the father. Hence the
new form of collatio. It was a gradual growth: as we find it under
Justinian it was a rule that any descendant claiming in succession to
any ascendant must bring in for division (conferre) anything which had
been received from the father by way of dos or donatio propter nuptias,
or with a view to setting him up in life5. Till Justinian it had applied
only on intestacy, but in a novel he extended it to wills: the descendant
could not claim the gift without bringing in these previous benefits6.

The succession might not be immediate on the death. The significant
date was not the death, but that on which the succession "opened,"
the date on which it was clear that there would not be any heres under
any will7. It is plain that this might not be till long after the death. A
heres institutus might refuse only at the end of the spatium deliberandi,
or it might be long before it was clear that the condition on an institutio

\ G. 2. 157, 158; Inst. 3. 2. 7; C. 6. 30. 22. pr., 1 a; Ulp. 26. 5; D. 36. 1. 1. 5. 2 Ulp.
17. 1. 3 P. 4. 8. 24; Ulp. 26. 5. 4 D. 37. 7; C. 6. 20. 5 C. 6. 20. 17.

6 Nov. 18. 6. The unsatisfactory reason for the extension is assigned that the testator in
the hurry of making his will may have forgotten these gifts. For the earlier legislation on
this form of collatio, C. 6. 20. 17-21. 7 Inst. 3. 1. 7; Coll. 16. 3. 1-3; D, 38. 16 2. 6.

ix] SUCCESSION ON INTESTACY 363

would not be fulfilled. The importance of the opening of the succession
was that the person entitled at that date took, though he may not have
been the nearest at the time of death1. If A's brother survived him, but
died before the heres institutus had refused, his cousin might be A's
nearest agnate, though he was not when A died. But the date of death
was material in another way: no one could succeed on intestacy unless
he was born or conceived at the time of the death2. Postumi could claim,
as under wills, and we are told that one, in respect of whom anniculi
probatio or erroris causae probatio was made or completed after the death,
had the same right3. A child given in adoption might be emancipated
and so become an emancipatus of the deceased after the critical day. It
does not appear that he had any claim4.

The rules of succession on intestacy provide a mass of detail, under-
going constant change, the changes being nearly all in one direction.
A system resting absolutely on agnation was gradually superseded, at
first under the praetor's edict, but, at least as early as Hadrian, through
express legislation, by one in which natural blood relationship was more
and more regarded, till in Justinian's final legislation, in the Novels5,
there was no longer any trace of the old civil law notions.

The earliest rules we know are those of the XII Tables, and though
in the Empire these were largely superseded, the later changes are
scarcely to be understood without knowledge of them as a starting-
point. Indeed it was not till Justinian's final legislation that all trace of
them disappeared.

In the Institutes the order established by the XII Tables is adopted
as the basis of treatment, and an attempt is made to state the develop-
ment of the law by discussing the changes made in each class in turn,
with the substitution of cognatic succession for that of the gentiles. But
for brevity and clearness it seems better to take the law in periods, a
method which coincides closely in effect with that of treatment of the
changes in relation to the agency by which they were effected, for the
praetorian changes were almost over when imperial changes began6.

CXXIX. SUCCESSION TO INGENUI UNDER THE XII TABLES. The
order of succession is:

1. Sui heredes1. These were such persons as, having been in the
potestas of the deceased, became sui iuris by his death. It was immaterial
whether they were natural or adoptive 8. Grandchildren by a son, and

1 G. 3. 11; Inst. 3. 1. 7. 2 37. 9. 7. pr.; 37. 11. 3. 3 G. 3. 5; Coll. 16. 2. 5.

4 I.e. under the classical law of adoptio. If the nearest agnate adopted between the death
and the opening of the succession and then refused, it does not appear that the adoptatus
had any claim, even under the praetor's rules, either in classical law when it would have
benefited the adopter, or later. 5 Now. 118, 127. 6 Of course, the praetorian changes
were not all made at one time. 7 Inst. 3. 1. 1. 8 G. 3. 2; Coll. 16. 2. 2.

364 SUCCESSION UNDER THE XII TABLES [CH.

remoter issue generally, through males, were sui heredes if the intervening
links were dead or out of the family, and they took the share that their
father would have taken1. Postumi were included and, as we have just
seen, there were other cases of a similar type, e.g. children in respect of
whom there had been anniculi or erroris causae probatio, since the death 2.
On the same footing was a son, who having been in mancipio to a third
person, after a first or second sale, was released from it after the father's
death3. If it had been after the third sale, the agnatic tie being destroyed,
there would be no claim4. As we have already seen, sui heredes were
necessarii: they were heredes without any question of acceptance, and
they could not refuse. They were indeed not so much acquiring a new
property as succeeding to the administration of what was in a sense
theirs already. This is indeed, we are told, the import of the name suus
heres5. It is noticeable that the XII Tables do not expressly lay down
the right of succession of sui heredes: it is assumed in the famous
text: "si intestato moritur cui suus heres nee escit, agnatus proxi-
mus familiam habeto6." The fact that they were called sui heredes
implies that there were other heredes who were not sui. These were
probably the heredes scripti under the Comitial will, though this is con-
troverted7.

2. Proximus Agnatus. This right is expressed in the text above
printed. We have considered the definition of agnation: it will be recalled
that it is the tie connecting those related to each other, naturally or
by adoption, by legitimate descents from a male through males, un-
broken by capitis derninutio*, including postumi. The nearest agnates, if
more than one, took equally (per capita): there was no representation9.
Unlike the sui, agnates had discretion to accept or refuse10. They
were not heredes till actual acceptance, which was no doubt in
early law by formal cretio, but in the law of the Empire it is clear
that informal pro herede gestio did as well, and probable that cretio was
unusual.

It will be seen that the agnati are not described as heredes: the words
are not "heres esto," but "familiam habeto" This is usually interpreted
to mean that the agnate did not at first become heres: he was not per-
sonally liable for debts or sacra, and when in course of time he did so
become liable he came to be considered as heres. This view is indeed

1 G. 3. 8, by iuris interpretatio, G. 3. 15. 2 G. 3. 5; Coll. 16. 2. 3 G. 3.

6; Coll. 16. 2. 6. 4 As to some other cases see Accarias, Precis, 1. 1158. 5 G. 2.

157; Inst. 2. 19. 2. See as to this, Karlowa, R.Rg. 2. 880. 6 XII Tables, 5. 4.

Bruns, 1. 23; Girard, Textes, 14. 7 Ante, § c. 8 It may be created by capitis

deminutio, e.g., adrogatio, adoptio and even legitimatio. For the case of captivi, restituti, etc.,
Accarias, op. cit. 1. 1165 9 G. 3. 15; Inst. 3. 2. 5. 10 Inst. 2. 19. 5; 3. 2. 7; G.

3. 12.

ixj SUCCESSION UNDER THE XII TABLES 365

controverted1, but in any case the agnatus proximus was heres long
before the time with which we are concerned.

The word "proximus" had a limiting effect: it was only the nearest
agnate who had any right under the XII Tables. If he refused, the right
to claim did not pass to the next2. On the other hand, the nearest took,
however remote: there was no arbitrary limit of remoteness such as we
shall see in the praetorian scheme. But, late in the republic, a remarkable
restriction appeared; the rule that no woman could succeed as an agnate
except a consanguinea, a sister, a rule which had the effect of keeping
the property on the male side of the family3 and was, so far, an expression
of the agnatic idea, and an exception to the general tendency of change.
The rule was said to be based on "Voconiana ratio" and is obviously
similar in principle to the rule of the /. Voconia (B.C. 168) by which a
person in the first class of the census was forbidden to institute a woman
as his heres4. It is a civil law rule, but nothing is known as to the date
of its appearance. The earliest reference we have is by Gains, but it was
clearly no novelty5. It is Paul who attributes it to Voconiana ratio6, and
his language suggests, but does not prove, that it was subsequent to the
I. Voconia7.

3. Gentiles. The XII Tables, after dealing with proximus agnatus,
said: "si agnatus nee escit, gentiles familiam habento3." This rule was so
early obsolete — there is no trace of it in classical law — that we need say
little of it. We need not therefore discuss the nature of a gens, or the
question whether the gentiles took in common or as individuals9. All
that we need say is that from the language of the text it seems that it
was only in the total absence of agnates that the gentiles took, not in
case of their refusal, and that it is not quite clear that they were regarded
in strictness as heredes. There is evidence from Cicero 10 that the case was
rather looked at as one of return to a common stock, a conception which
also colours some of the texts which deal with agnatic succession11.

The language of the XII Tables is interesting from another point of

1 Lenel, Essays in Legal History, ed. Vinogradoff, 120 sqq., holds that the words heres
esto were avoided lest they should make the agnate a necessarius, that he was a true heres,
but became so only when he had actually taken possession of the property. See, however,
Bonfante, Bull. 27. 97 sqq.; Buckland, L.Q.R. 32. 97 sqq. 2 Inst. 3. 2. 7. 3 The

rule might seem to exclude agnates altogether where it applied, for a remoter male would
not be proximus agnatus. But in fact the point of view is that women agnates are excluded
altogether: consanguine* are by the lawyers treated as a distinct and prior class (see e.g.
38. 16. 2. pr., 1) so that agnate means male agnate. 4 Ante, § cm. 5 G. 3. 14.

See also Inst. 3. 2. 3 a "media iurisprudentia . . .imperiali sanctione anterior.'" 6 P. 4. 8. 20.
7 See Karlowa, R.Rg. 2. 883. 8 XII Tables, 5. 5; Girard, Textes, 14; Bruns, 1. 23.

9 See Karlowa, R.Rg. 2. 884; Cuq, Manuel, 111. 10 De Or. 1. 39. 176. 11 Cuq,

Institutions juridique-s, 1. 390, who besides literary texts cites 31. 69. pr.; 38. 10.
10. pr.

366 PRAETORIAN SCHEME OF SUCCESSION [CH.

view: it expresses a striking principle of the old law of succession. It
admits neither successio graduum nor successio ordinum. If the nearest
in a class did not take (a point which could arise only in connexion with
agnates, for there was no question of refusal among sui heredes) the text
expressly excludes the next: proximus agnatus familiam habeto. These
words give no right to any but the proximus, and whether, as some hold 1,
the agnatic succession was introduced by the XII Tables, or not, that
enactment was always regarded as expressing the fundamental law of
the matter. Thus there was no successio graduum. So also, if we are to
follow the text, a refusal by the agnates did not let in the gentiles: it was
only if there were none that the gentiles came in: si agnatus nee escit.
There was no successio ordinum. As we shall see, the methods of later
law were different.

CXXX. THE PRAETORIAN SCHEME OF SUCCESSION. It must be borne
in mind that the praetor could not give the hereditas. What he gave was
bonorum possessio: his edict declared that in the absence of a will he
would give bonorurn possessio to claimants under certain rules and in a
certain order. The nature and efficacy of this bonorum possessio will be
considered later2. For the present we are concerned only with the order.
This is:

1. Liberi. These included sui heredes, emancipati, children of de-
ceased emancipati, children left in a family from which the deceased had
passed by emancipatio3, in fact, substantially, those persons who could
claim bonorum possessio contra tabulas if a will failed to provide for them4.
It did not cover children given in adoption and still in the adoptive
family. In the praetorian scheme the distribution among liberi was
necessarily a more complex matter than that among sui at civil law.
When the praetor admitted emancipati, it is obvious that their claims
and those of any children they had left in the family would clash.
Logically it would seem that the rule should have been that if the
emancipated son claimed, his children should be excluded. But they
were sui, and a special edict so far respected their right as to make them
share with their father5. It is a remarkable fact that this rule was not
laid down till the time of Julian: it is the only clause which he is known
to have added to the edict6. The rule had the result that, as the coming
in of the father injured no heres except his own children, since he merely
took part of their share, he had no collatio to make in respect of other
sui, but only as against these children7.

1 E.g. Muirhead, Roman Law, § 32. 2 Post, §§ cxxxv sqq. 3 Ulp. 28. 7,

8; Inat. 3. 1. 9 sqq. 4 Not exactly the same class. It did not cover children given

in adoption and still in another family, though these under certain conditions could get
the benefit of bonorum possessio contra tabulas, 37. 4. 8. 11; ante, § cxm. 5 37. 8. 1.

pr.; h. t. 3. 6 37. 8. 3. 7 37. 8. 1. pr. in f.

ix] PRAETORIAN SCHEME OF SUCCESSION 367

2. Legitimi. As its name shews, this class covered those only who
had a statutory claim. The main case was the agnate, but there were
many others, details of which will be considered later1. As in this class
only those with a civil claim were admitted, there was no question of
successio graduum: refusal by the nearest agnate did not let in the next,
though, according to Gaius2, some jurists, inspired no doubt by the
praetor's practice in cognatio, took the contrary view. But it was no
part of the praetor's policy to extend the operation of the agnatic idea3.

3. Cognati. In the absence of claimants under earlier heads the
praetor gave bonorum possessio to the nearest cognates4, ignoring the
gentiles. Cognation was, broadly speaking, any kind of blood relation-
ship. It covered therefore relatives through females, agnates who had
not claimed as such, those who would have been agnates, but for an
emancipatio or the like, children given in adoption, female agnates re-
moter than sisters, and even illegitimate children, in succession to the
mother or her cognates, or vice versa, or to each other5. Although
cognatio was a natural tie, it covered even adoptive relatives so long as
the artificial agnatic tie existed, but, if that was broken by emancipatio
or the like, the cognatic tie also was destroyed6, even where the breach
occurred after the death, but before the claim7.

The nearest cognate was entitled, and if there were more than one
they shared per capita8: there was no question of representation of de-
ceased cognati by their children. But there was an arbitrary limitation
of remoteness, based no doubt on the principle of the excepted cases
under the I. Furia testamentaria9 , and the I. Cincia10. No one could
succeed as a cognate who was beyond the sixth degree of relationship,
or, in one case, the seventh, that of second cousins once removed, i.e.
the child of a second cousin11.

In this case the praetor allowed full play to successio graduum and
ordinum. If the legitimi refused, the cognates might claim, successio
ordinum12. It might well happen that those included in one class might
also be covered by another, so that they had two chances to claim. Thus,
sui who had failed to claim as liberi might still be entitled as legitimi or

1 Post, § cxxxv. 2 G. 3. 28. 3 As to b. p. unde decem personae, post, § cxxxv.
4 38. 8. 1. pr. The somewhat confusing language of Inst. 3. 6. 11, 12 appears merely
to mean that some persons who are cognates, but not the nearest, may nevertheless be
entitled in preference to the nearest cognates, e.g. remote descendants, unde liberi,
cousins, unde legitimi. If, however, they fail to claim under these heads within the time
allowed, the priorities of cognatio will apply. 5 38. 8. 2; h. t. 5. Milites could not

marry while on service : if they purported to do so, children had no right of succession to
the father. But Hadrian allowed them to claim as cognati. See the rescript in Girard,
Textes, 195. 6 38. 8. 1.4. 7 38. 8. 1. 6, 7; h. t. 3. 8 38. 8. 1. 10. 9 G. 2.
225; Vat. Fr. 298 sqq. 10 Ante, § xci. 11 38. 8. 1. 3; h. t. 9; Inst. 3. 5. 5.

12 38. 9. 1. pr.

S68 SENATUSCONSULTUM TERTULLIANUM [en.

cognati1. As to successio graduum he applied in general, apart from the
case of legitimi, the same principle. If the nearest cognati allowed the
time to pass, or if they refused, the next cognati might claim2.

4. Vir et uxor3. In the absence of claims of blood relatives the praetor
gave bonorum possessio to husband and wife reciprocally. This applied
essentially to civil marriage without manus, since a wife in manu came
under the head of liberi. But the law of succession before Justinian
went no further. Dos, and donatio ante nuptias, frequently supplemented
or replaced by a legacy of usufruct4, no doubt did what was necessary.
We have already considered Justinian's rules as to widows without dos5.

It must be noted that the foregoing is merely an outline of that part
of the praetor's scheme which dealt with ingenui, and, even so, it is
incomplete. The actual order, later to be considered6, is much more
complex.

CXXXI. IMPERIAL CHANGES BEFORE JUSTINIAN. Apart from privi-
legia such as that by which Claudius gave a mother who had lost her
children their property7, the enactments as to causae probatio, etc.8,
creating fresh classes of sui, and the legislation affecting succession to
liberti, to be considered later, there was no intervention by legislation
till the second century.

The earlier law of succession on intestacy is stated almost entirely
from the point of view of the paterfamilias, the rules of succession to a
woman being, in fact, implicit in what is said. The results arrived at
were so unjust that it is not surprising to find that the legislation which
now began was largely concerned with the case of claims of, or to the
property of, women. The earliest of this legislation dealt with succession
between mother and child.

Sc. Tertullianum. At civil law a mother, if not in manu of her hus-
band, had no claim, and, even at praetorian law, she was only a cognate.
This enactment, under Hadrian9, dealing however only with mothers
who had the ius liberorum, much improved her position. The ius liber-
orum rests on her having had three children (in the case of a libertina,
four) by separate births, it being immaterial whether they survived or
not10. The order of succession established by the senatusconsult11 was
(1) sui heredes, and those grouped with them, i.e. liberi; (2) the father,
whether parens manumissor or not, provided he was not in another
family; (3) consanguineous brothers and sisters, taking together; (4)
mother and sisters, the mother taking half. The deceased child need not

1 38. 9. 1. 11. 2 38. 9. 1. 6; h. 1. 10. Not where a prior cognate had accepted, and
received restitutio in integrum, h. t. 2. In such a case there was a caducum. 3 38. 11. 1.
4 See, e.g., Vat. Fr. 58, 69, 86-88. 5 Ante, § cxiv. 6 Post, § cxxxv. 7 Inst. 3.
3. 1. 8 Ante, § xxxv. 9 Inst. 3. 3. 2. 10 P. 4. 9. 1; 4. 9. 9. 11 Ulp.

26. 8.

ix] SENATUSCONSULTUM TERTULLIANUM 369

have been legitimate1, and the mother did not lose her right by a capitis
deminutio2. These rules were changed from time to time3. Constantine
improved the mother's position; in particular he gave her a reduced
share even if she had not the ius liber orum*, and there was further
legislation of similar tendency in A.D. 369 and 4265.

While the order under the sc. differed widely from that under the
earlier rules, it left these unaffected. The sc. in no way superseded the
older law, on which the rules, a direct creation of the enactment, in no
way depended. There were near relatives who had rights of succession
who were not mentioned in the sc. What rule was to be applied if, in
the given case, there were such persons? The answer to questions of this
kind is to be found in two governing principles \vhich controlled the
operation of the enactment. The first was that it was to be applied only
wrhere the claimants were those whom it mentioned, i.e. not if there
existed a claimant not mentioned in its order, who would, apart from it,
take before any person entitled under its provisions6. The second, even
more important, principle was that the enactment was not meant to
give any person other than the mother any greater rights than he or
she had under earlier law7. If in the given case there were persons who,
on the terms of the sc., would be preferred to the mother, the enactment
was not applied: the earlier law governed.

These principles are freely illustrated in the texts, but the cases must
be handled cautiously, because of the uncertainty whether the decision
is that of the original author or has been edited by Justinian in view
of his changes. In one case a grandfather emancipated a grandson, who
died, leaving surviving his father and mother and this grandfather. The
grandfather as parens manumissor had the prior claim apart from the
sc., and even under it the father excluded the mother, so that the common
law applied and the grandfather took, as parens manumissor — quasi
patron8. A man died leaving a mother, an agnatic cousin, and a father
who had been given in adoption in another family. Agnates were not
mentioned in the enactment, as recorded, but the reference to brothers
and sisters was understood as amounting to exclusion of remoter agnates9.

o o

It follows that the mother excluded both the agnates and the father,
who, being in another family, was not preferred in the sc.10

Sc. Orphitianumu. Children had no civil law right of succession to
their mother and were only cognates under praetorian law. This enact-

1 Inst. 3. 3. 7. 2 Inst. 3. 4. 2. 3 Inst. 3. 3. 3. 4 C. Th. o. 1. 1.

5 C. Th. 5. 1. 2; h. t. 7. For Justinian's changes, post, § cxxxn. 6 Inst. 3. 3. 3,

"scilicet cum inter eos solos de hereditate agitur." 7 See, e.g., 38. 17. 2. 20. 8 38.

17. 5. 2. 9 See Inst, 3. 3. 5, "legitimae personae." 10 38. 17. 2. 17. 11 Ulp.
26. 7; Inst. 3. 4.

B. R. L. 24

370 SEN ATU SCON SULTUM ORPHITIANUM [CH.

ment, of A.D. 1781, gave them the first claim in succession to the mother.
It was indifferent whether they were legitimate or not, provided they
were freeborn2, and the right was not lost by capitis deminutio3.

Where a woman died leaving both mother and children there might
be difficulties in applying these two sec. If there was a person with a
claim which, under the original scheme of the Tertullian, was preferred
to that of the mother, e.g. a brother, the children took the property as
of course, for, as brothers excluded the mother, the Tertullian did not
apply and the Orphitian gave the succession to the children. But if
there was no other claim than those of mother and child, their rights
were equal under praetorian law, both being cognates, and neither had
any right at civil law. The Tertullian standing alone would give the
property to the mother (for the children of a woman were not liberi in
the technical sense), while the Orphitian standing alone would give it to
the children. Accordingly they shared, until, in the later Empire, it was
provided that children should succeed to the mother notwithstanding
anything in the sc. Tertullianum*.

It is at first sight surprising that the simple rule that children can
succeed in first instance to the mother comes historically later than the
provision for what must have been a rarer case, that of the mother suc-
ceeding to her children. The explanation is that the two pieces of legis-
lation rest on quite different ideas. The Tertullian is a late part of the
elaborate legislation for the encouragement of marriage of which the
II. caducariae are the best known part. The Orphitian, on the other hand,
is an early part of that legislation which ultimately superseded the
agnatic idea altogether, so far as intestacy wras concerned.

The sc. Orphitianum gave no rights to remoter issue. This was
remedied by legislation of A.D. 389, which provided, on the one hand,
for grandchildren of a man through a deceased daughter, and on the
other, for grandchildren of a woman through a son or a daughter. In
the first case they were to take two-thirds of the share their mother
would have taken, as against surviving sui heredes, and three-quarters
of the estate as against agnates. The rule was similar in the second case,
except that it is not clear that there was any deduction for surviving
children of the grandmother, though there was for agnates5.

The law of agnation underwent a change consistent with the course
of earlier legislation, though not with the true principle of agnation.
Anastasius (A.D. 491-518) allowed emancipated brothers and sisters to
succeed as agnates, subject to a deduction if there were unemancipated
persons of the same class6. The terms in which Theophilus tells us of this

1 Inst. 3. 4. pr. 2 Inst. 3. 4. 3. 3 Inst. 3. 4. 2. 4 C. 6. 55. 11. 5 C. Th.
5. 1. 4. 6 Inst. 3. 5. 1.

ix] SUCCESSION UNDER JUSTINIAN 371

deduction are obscure1, but it seems to have been of one-third. The rule
applied of course only to brothers and sisters by the same father, and it
did not benefit children of deceased brothers and sisters2.

CXXXII. THE RULES OF THE INSTITUTES. The changes made by
Justinian, before the great reform in the Novels, can hardly be called a
system. A number of small changes were made, always in the direction
of rationalisation, but they were unsystematic and tentative and may
well have rendered the law even more confusing and complicated than
it was before. The chief changes were the following:

Grandchildren of or through a woman now took the whole estate as
against agnates, and the rule was extended to great-grandchildren.
There was still a deduction of one-third in favour of sui heredes3.

The sc. Tertullianum was remodelled. The ius liberorum was dis-
pensed with and the mother shared with the brothers, taking a pars
virilis, instead of being excluded by them4.

The exclusion of female agnates beyond sisters was abolished5, and
in this class successio graduum was introduced — if the proximus refused,
the next could take 6. The deduction in the case of emancipated brothers
and sisters claiming with agnates was removed7 and the right extended to
their children, to brothers, and sisters by the same mother, arid to their
children 8.

The most significant change was the recognition of cognatio servilis.
Even in classical law, in interpreting wills, the word "filius" had been
held to cover a son now free but born in slavery, where this seemed to
be the testator's intent9, but such persons had no right of succession on
intestacy. Justinian however provided that a freedman's children were
to exclude the patron, whether they were freed before or after or with
the father, or born free, and similar rights of succession were given to
them10 inter se, and to the parents to them, but no further.

THE SYSTEM OF THE NovELS11. About ten years after the publication
of the Institutes, a completely new system of rules was introduced, with
the definite aim, as Justinian tells us, of doing away with the unfair
distinctions between male and female which filled the old law of suc-
cession. The rules shew a complete breach with old notions: there is no
word of sui or agnati or cognati. The rules look modern and have indeed
found their way, of course much modified, into many modern legisla-
tions12. The order of succession may be shortly stated as follows:

1 Ad Inst. 3. 5. 1. 2 Inst. ib. 3 Inst. 3. 4. 1; C. 6. 55. 12. 4 Inst.

3. 3. 4;h. t. 5;C. 8. 58. 2. 5 Inst. 3. 2. 3; C. 6. 58. 14. 6 Inat. 3. 2. 7. 7 C. 6. 58.
15. 1. 8 h. 1. 2. 9 28. 8. 11. 10 Inst. 3. 6. 10; C. 6. 4. 4. See Nov. 18.

5 as to a limited right of succession to children by a concubina. 11 Now. 118,

127. 12 The English rules of distribution of personalty, though statutory, are based
on these rules, through the ecclesiastical law.

24—2

372 SUCCESSION UNDER JUSTINIAN |CH.

1. Descendants, without distinction of sex, remoter issue taking
their deceased parents' share.

2. Ascendants, the nearer excluding the more remote. If there were
several in the same degree, but in different lines, each line took half,
irrespective of number. Brothers and sisters of the whole blood shared
with ascendants, and it seems that in this case all took equally. Children
of deceased brothers and sisters represented their parents if there sur-
vived a brother or sister writh whom to take, i.e. the right of representa-
tion was allowed if there was some existing person who kept the class
alive. Thus if X left a father1, a brother, and a nephew by a deceased
brother, each took a third. If X left a father and a nephew, the father
took all. If he left only a number of nephews by different brothers and
sisters, all dead, the nephews took equally: if a brother survived, what
did not go to him was divided per stirpes.

3. Brothers and sisters, with the same rule of representation.

4. Half brothers and sisters, with the same rule. But if there were
half brothers or sisters and also children of deceased brothers or sisters,
the latter took.

5. The nearest relatives, whoever they were, per capita, with no
question of representation.

6. Husband or wife reciprocally2.

If there was no claim, the property passed to the Fiscus, subject to
the claims of creditors, but this is not a case of succession.

CXXXIII. It will be convenient to place here, by way of appendix,
some account of the rights of succession of the father, or paterfamilias,
in the various possible circumstances.

1. The father of one who died in potestas. Apart from the cases of
the adrogatus impubes, and the adoptatus under Justinian, already suffici-
ently stated3, there are only the cases of peculia castrense and quasi-
castrense and bona adventitia to be considered. The actual destination of
the peculia castrense and quasi has been considered4, and the only point
we need touch on is the question whether, under Justinian, the father, if
he took them, took them as peculium or as hereditas. Justinian says that
it was "iurc communi" Does this mean as inheritance, which, it is said,
had before Justinian's time become the method of treating bona adven-
titia5, or does it mean that, in absence of preferred claims, they reverted
as peculium'i The main arguments in favour of the former view are the
fact, if it be a fact, that bona adventitia were already so treated, that the

1 Nov. 127. 1. 2 Not stated in the Novel, but dealt with in Bas. 45. 5. 3 Ante,
§§ XLIV, XLV. 4 Ante, § xcix. 5 This appears to be inferred from Nov. Theod.

14. 8=C. 6. 61. 3, which can be interpreted the other way, indeed that is the most
natural interpretation. C. Th. 8. 18. 4 says that the father takes them iure palrio (339).
In C. Th. 8. 18. 10 (426) the attitude is the same.

ix] FATHER'S RIGHT OF SUCCESSION 373

words do not suggest that the father was to take in any way different
from that in which the children took, and that the beneficiaries are
called parentes, and not patresfamilias. In favour of the other view are
the texts in the Digest, which treat it as reversion of peculium1, and the
fact that Theophilus in his commentary on the Institutes so regards it2.
But both these may possibly be mere survivals of obsolete doctrine, and
neither view can be considered certain.

In relation to bona adventitia there was no question of succession till
the fifth century. If the child died they reverted to the pater as peculium,
and perhaps continued to do so in absence of preferred claims till
Justinian. But by the time of Theodosius the fund covered all successions
from the mother, all successions and gifts from a maternal ascendant,
and gifts from husband and wife of the child3. There were provisions
reserving to children of any marriage on death of either parent what had
come from the other parent by way of dos, donatio, or other gratuitous
acquisition4. Theodosius provided that all these were to go to the children
of the deceased child as hereditas and not to pater or avus as peculium5.
In 472 brothers and sisters were also preferred, with distinctions as to
whole and half blood6. Justinian extended the rule to all acquisitions
other than those from the pater, and in his time it is clear that it was
succession, for he provided that if the father was himself in potestas, it
was he who took it, and not the avus: in the hands of the father it was
bona adventitia7.

2. The case of an emancipatus. If the father manumitted him, he
had the rights of patron (quasi-patron), if there were no children, till
Justinian also preferred brothers and sisters to him8, while also providing
that all emaneipating fathers should have the rights of par ens manu-
missor9. If there were children but they were disinherited, he had, like
the patron, bonorum possessio of the whole (or half if there was a will),
but this right did not extend to his liberi10. If there was an extraneus
manumissor, the father had no civil claim, but in the absence of children
he had the first claim, unde decern personae11, at praetorian law.

If the grandfather was parens manumissor the quasi-patronal right
was with him, so long as he lived. The father's position if the emancipatus
survived the grandfather is not clear. Analogy suggests that there was
no question of the rights of liberi patroni. He was not tutor legitimus as
they were, and the right above mentioned to B.P. of a half, in certain

1 30. 44. pr.; 41. 1. 33. pr., 1. See Monro, De furtis, 65. 2 Ad Inst. 2. 12. pr.

3 Gifts from a betrothed put on same level later, C. 6. 61. 5. 4 C. Th. 3. 8. 2; C.

5. 9. 3. In 339 it was provided (C. Th. 8. 18. 4) that if the child died under 6, the suc-
cessions were to go back to the line from which they came. 5 Nov. Theod. 14.
6 C. 6. 61. 4. 7 C. 6. 60. 3. 1 (interp.). 8 C. 6. 56. 2 (interp.). 9 Inst. 3. 9. 5.
10 37. 12. 1. pr., 5; h. t. 3; post, § cxxxiv. 11 Post, § cxxxv.

374 FATHER'S RIGHT OF SUCCESSION [CH.

events, did not apply to him1. As an emancipatus had no agnates,
the father would be the nearest cognate, so that, on principle, in the
absence of children he would share with the mother, but there is evidence
that the Edict preferred him, as pater, to the mother, in this case2. This
may have been • ' unde decent personae," which on that view applied wherever
the father was not parens manumissor, and preferred father to mother.
This is more or less confirmed by the fact that, as, under Justinian, all
emancipatio by the father was held to be done in such a way as to give
civil succession3, the only case in which, in the absence of children, the
father would have bonorum possessio as opposed to hereditas would be
where the grandfather had emancipated4.

3. Where the grandfather had emancipated the father, but not the
son, his nepos. Here the father had only cognatic right and was excluded
by agnates. The same seems to be true if he had been given in adoption5,
or both had been emancipated.

4. Where either was emancipated by the avus and afterwards re-
adopted6. If the father was emancipated and, later, readopted, the
nepos, having become a suits heres of the avus, did not lose the position,
and thus, on the death of avus, he was not in his father's potestas7. The
father re-entered the family as an adoptive son8. The nepos was not a
suus of his father, but if the nepos died after the death of avus we are
not told the father's right of succession9. At the worst he was an agnatic
brother10, but most probably, though no longer father for the purpose of
potestas, he was still the nearest agnate11. The case of the nepos emanci-
pated and readopted does not seem to be dealt with. If adopted as
nepos, and son of his father, which needed the father's consent, the civil
relation was no doubt re-established for all purposes. But if readopted
as a son, his successoral relations to his own father are obscure12.

The readopted father or son might die still in potestas of the avus. If
the son died leaving p. castrense, etc., this went to the avus as peculium
before Justinian: under him, its destination depends on the meaning of
iure communi above discussed. As peculium the avus would take it. As
hereditas it seems probable that it would go to the father notwithstanding
the emancipation and readoption, and would be bona adventitia of his,
whichever of them had passed out and back13. Bona adventitia, on the

1 37. 12. 1. pr., 5; h. t. 3; post, § cxxxrv. 2 37. 12. 1. 6; 38. 17. 2. 15 aqq., not

an adoptive father, 38. 17. 2. 17. 3 Inst. 3. 9. 5. 4 See 38. 17. 5. 2 and especially

38. 16. 10. 5 38. 17. 2. 17; h. t. 18. 6 It was only adoptive children who might

not be readopted, 1. 7. 12; h. t. 37. 1. 7 1. 7. 41. 8 38. 6. 1. 7. Not quite for all
purposes, h. t. 4. 9 Nepos could claim unde liberi, arg. 38. 6. 4. 10 Unless

readopted as a nepos, 38. 6. 1. 7. 11 Arg. 38. 16. 12. 12 They were agnates,

probably the nearest, but the son could probably claim, unde liberi. 13 If the father

died the son would presumably take, unde liberi.

ixj SUCCESSION TO FREEDMEN 375

views adopted above, would go to the avus before Justinian, apart from
prior claims of children; under Justinian to the father1.

The distinction between reversion as peculium and hereditas was of
considerable importance, in the following, and other, ways:

(a) As peculium there was no question of aditio: it belonged to the pater-
familias, though of course he could abandon it, as he could any property.

(b) As peculium it would not render him liable for debts, except
within the limits of the edicts de peculio2, etc. As hereditas it would
render him absolutely liable on acceptance.

(c) As peculium there was no general action for recovery of it from
holders without title: the peculium was not a universitas for this purpose.
Each thing must be vindicated specially. As hereditas there would be
hereditatis petitio to recover it as a whole3.

(d) As peculium theft of it after the death would be ordinary furtum:
as hereditas, wrongful taking before acceptance was not furtum*.

(e) If the father was under potestas, as peculium it would go to the
grandfather, as hereditas it would go to the father, in whose hands it
would be bona adventitia, as it did not come from the paterfamilias.

CXXXIV. SUCCESSION TO FREEDMEN. A. Gives Liberti. As, at any
rate till Justinian, such persons could have no relatives but children,
the early law is simply stated. The order established by the XII Tables
was (1) Sui Heredes, (2) Patronus, (3) Liberi patroni5. A liberta could of
course have no sui heredes. The right of the liberi patroni was not in-
herited from the patron: it was an independent right, expressly created
by the Statute, so that the fact that a child was disinherited or had
refused his father's succession did not bar him6. For the same reason
extranet heredes of the patron had no claim7. The libertus could make any
will he liked as against the patron8, but the will of a liberta needed his
consent, so that as she could have no sui, he could not be excluded save
by his own act9.

The praetor, in giving bonorum possessio, somewhat improved the
patron's position. Born sui and emancipati excluded him (if the libertus
had not disinherited them, in which case they were wholly excluded),
but not adoptivi: against these and a wife in manu the patron was en-
titled to one-half, as he was against any outside claimant under a will10.

1 Nov. Theod. 14, where the word used is liberi. If it was the father who died, lucra
nuptialia went to the nepos (with other liberi) after 439 and all the bona adventitia did
under Justinian. 2 Ante, § xxm; post, § CLXXXIV. 3 Ante, § ex. 4 Ante,

§cvn;post, § cxcvi. 5 G. 3. 40; Ulp. 29. 1, 4; Inst, 3. 7. 6 G. 3. 58; D. 37. 14.

9. pr. See post, § CXLI, for another effect in the case of Assignatio libertorum. 7 G. 3.
58. 8 G. 3. 40; Ulp. 29. 1. 9 G. 3. 43. It will be remembered that libertae

could make wills with consent of tutor, at a time when an ingcnua in leyitima tutela could
not. 10 G. 3. 41; Ulp. 29. 1.

376 SUCCESSION TO FREEDMEN [CH.

Sons of the patron had the same right, but not a patrona or a filia
patroni1.

The /. Papia Poppaea (A.D. 9) established, as part of the machinery
for encouraging marriage and increasing the birth-rate, a very elaborate
scheme, of which it is not necessary to state the details2. The rights
varied according as the claimant was a patron, patroness, or son or
daughter of a patron. In the case of patron and his son the rights varied
according to the wealth of the libertus, in the other cases according as
the patrona, etc., were themselves ingenuae or libertinae, and according
to the number of their children, the rights of a patrona being greater
than those of patroni filia with the same number of children. They
varied also according as the deceased was a man or a woman with
similar subordinate variations. A notable characteristic of this legisla-
tion was that it gave what were, on the face of them, praetorian rights.
It declared, for instance, that an ingenua patrona, mother of two children,
was to have the edictal rights of a patron3. It is surprising to find express
legislation dealing in praetorian conceptions in this way4, a state of
things which leaves no doubt that bonorum possessio on intestacy was at
this time ordinarily cum re. Notwithstanding the disappearance of
other penalties on childlessness, this legislation seems to have survived
till Justinian substituted a simpler scheme.

The order laid down by Justinian in a verbose enactment5 is (1) Liberi,
whether sui or emancipati, but not adoptivi; (2) Pair onus or patrona6;
(3) Liberi patroni, not adoptivi, but including those emancipated or given
in adoption; (4) Cognati of the patron to the fifth degree, per capita,
with successio graduum. If the libertus possessed less than 100 aurei his
will was good against the patron, but if he had that sum then, unless he
had children, and left the hereditas to them, or they could upset the will,
the patron could claim a clear third, free of charges, and issue of the
patron, so far as great-grandchildren, had the same right.

It will be remembered that Justinian admitted servilis cognatio, so
that the liberi of the libertus would include those born in slavery, if now
free7. The succession of liberi patroni was still independent of the patron's
right. Thus if there were two patrons, both dead, leaving children, the

1 G. 3. 46. As to the case of Bonorum possessio turn quern ex familia patroni, post,
§cxxxv. 2 Chief texts, G. 3. 42-53; Ulp. 29. 3-7; Inst. 3. 7. 2. 3 G. 3. 50;

Ulp. 29. 6; see also G. 3. 47, 52. 4 It may he due to the notion that direct alteration

of the legislation of the XII Tables was not permissible. There is no trace till long after the
1. Papia of direct legislation modifying the law of succession on intestacy. The I. Voconia
did not affect intestacy. The rule excluding women agnates (ante, § cxxix) was not legis-
lation but interprefatio : from Inst. 3. 2. 3 it seems to be older than bonorum possessio
unde cognati. 5 Inst. 3. 7. 3; C. 6. 4. 4, reconstructed from the Basilica. 6 The
patron's right may be renounced and is subject to the mutual rights of succession of
paren ts and children noted ante, §cxxxii; C. 6. 4. 4. 1, 11. 7 C. 6. 4. 4. 11; Inst. 3. 6. 10.

ex] BON A LATINORUM 377

children would all take equally, not per stirpes1. And, if one of the
patrons had left only grandchildren, the surviving children of the other
would take all2.

B. Junian Latins. Here there was no question of succession: on the
death of the Latin he became a slave, and his goods, by an express pro-
vision of the Z. lunia, reverted to the patron3, or, if he was dead, to his
heredes whoever they were. Thus a disinherited child took nothing, and
of course the Latin's children had no claim. It must however be remem-
bered that it was so easy for a Latin so to arrange his marriage that he
and his family should all be cives that the case would not be common.

The sc. Largianum (A.D. 42) modified this system without benefiting
the child of the Latin. It provided that, if the patron were dead, any
issue of his not disinherited nominatim might take to the exclusion of the
extranei heredes*, with the practical effect of giving a claim to those dis-
inherited by the ceteri clause and to issue who had refused their share in
the patron's estate5. It is difficult to see the reason of the change, and
as these persons could have had no claim to peculium, the case looks
rather like inheritance. Gains repudiates this, but shews that there
were disputes on some points6. Liberi patroni took in proportion to
their shares in the patron's hereditas, under the /. lunia. What they took
by virtue of the sc. they took equally, and some held that where it came
into operation all was divided equally7. On the dominant, though not
undisputed, view, grandchildren through a daughter, and children of a
patrona, could not claim under the senatusconsult8.

Trajan enacted that if a Latin acquired civitas by imperial rescript,
without the patron's assent, the latter's rights remained9. The man's
civitas was so far recognised that he might make a will: he must indeed
institute the patron for the whole, but might substitute for the case of
his refusal10, but the will was probably not good against liberi patroni,
if the patron died before the testator. Hadrian excepted the case in
which, having so acquired civitas, he afterwards underwent a process
which would have made him a civis for all purposes, e.g., anniculi pro-
batio. The rule did not strictly apply to him as he was no longer a Latin,
but Hadrian ruled that gaining the inferior status should not bar him
from obtaining the better. The whole institution was obsolete under
Justinian11.

C. Persons in numero dediticiorum. Their children could have no
claim. The property went to the patron, and there was no power of

1 C. 6. 4. 4. 19 b. 2 h. 1. 19 a. This enactment retains the language of the old

system: the case is not handled in any extant Novel. 3 G. 3. 56; Inst. 3. 7. 4.

4 G. 3. 63. 5 G. 3. 65-67. 6 G. 3. 64 sqq. 7 G. 3. 70. 8 G. 3. 71. The

argument is that the sc. talks about children not disinherited, which is inappropriate to
such cases. 9 G. 3. 72. 10 Ib. in f. 11 See Inst. 3. 7. 4.

378 BON A DEDITICIORUM |CH.

testation1. Subject to this it may be said that there were no special
rules. If the manumission would have made him a civis, but for the mis-
conduct which caused him to be a dediticius, the property went to the
patron, as that of a civis libertus. If it would otherwise have made him
a Latin, the property went to the patron as that of a Latin, i.e. as
peculium reverting2. Presumably claims posterior to those of the patron
himself were admitted in this case as in that of an actual Latin.

Some practical effects of the distinction between succession and
reversion of peculium have been considered in the case of a son's peculia3.
Of others which could occur only in the case of a freedman, Gaius* cites
several, of which a few may be mentioned here by way of illustration.
The patron's extranei heredes might have a claim if it were reversion, but
not if it were hereditas: the patron's heredes had, as such, no claim if the
freedman outlived the patron. If there were two patrons taking as
heredes, they shared equally, taking it as peculium they took in propor-
tion to their shares in the man, which might not be equal. If one of two
patrons were dead, the other took all, in hereditas: in the other case he
shared with representatives of the dead patron. If both were dead,
leaving children, all would take per capita, if it was succession: each
patron's share would go to his children in the other case. If one had left
children and the other only grandchildren, Justinian says the surviving
children would take all if it were succession5. This would not be so in
case of reversion of peculium. These dediticii no longer existed under
Justinian.

CXXXV. THE SYSTEM OF BONORUM POSSESSIO*. The working of an
ordinary case of succession at civil law, the remedies of the heres, the
steps to be taken, and so forth, are in the main simple, but the corre-
sponding rules in a case of praetorian succession were of such a special
kind that a general account of the system must be given. It is not within
the present purpose to consider the origin of bonorum possessio7, and many
other controversial topics can only be lightly touched on. The subject of
discussion is the ordinary praetorian succession, bonorum possessio
edictalis, not b. p. decretalis8.

The praetor granted bonorum possessio to claimants in an order
which was not that of the civil law. If, as it happened, the receiver of a
grant of bonorum possessio was also entitled at civil law, his possessio
would be effective succession — bonorum possessio cum re. If, however,
he was not entitled at civil law, it might be effective against the heres or

1 G. 3. 75. 2 G. 3. 76. 3 Ante, § cxxxm. 4 G. 3. 57 sqq. 5 Inst.

3. 7. 3; see also G. 3. 60. 6 See Leist in Gltick's Erldutcrung, Serie der Biicher 37, 38.

7 See Moyle, In*t. Just, 'ill sqq.; Danz, Geschichte des R. R. § 176; Costa, Sloria, 468;
Girard, Manuel, 809. 8 As to this latter, post, § CXL.

ix] BONORUM POSSESSIO 379

not, cum re or sine re. The circumstances in which it was one or the other
will be considered later.

Where bonorum possessio was given to one also entitled at civil law
it was said to be given iuris civilis confirmandi (or adiuvandi) gratia. If
given to others with the heres, it was supplendi iuris civilis gratia, e.g.
where an emancipatus came in with sui. If given in disregard of a civil
law claim, it was said to be corrigendi (or emendandi or impugnandi) iuris
civilis gratia, e.g. where it was given to cognates to the exclusion of the
gentiles1.

There was a system of priority or order of claims, and a certain time
was allowed within which each of these claims might be made. If a
person had not claimed within the right time he was excluded, and if
there were no others in the class who could still claim, the next claim
could come in: but as we have seen, a person might conceivably have a
claim under more than one head, so that though he had failed to claim
in the first place he might still have an opportunity of coming in. This
was governed by the edictum successorium, which laid down the principle
that where one class was barred by time or repudiation, the next could
claim, and fixed the time for each class2. It might, however, chance
that he would have stood alone under the first head, but would now
have to share with others, e.g. a suus who had not claimed, unde liberi,
coming in, unde legitimi3.

In administering the estate the first question to be asked was whether
there was or was not a will. And if a will was produced, it could not be
acted on, under a system which imposed restrictions on testation, unless
it was clear that there was no one entitled to object to its provisions.
Accordingly the first bonorum possessio was

A. Bonorum possessio contra tabulas. We have seen where this was
available among ingenui in general, and have noted cases in which the
omission of one of the liberi, admitted, to share with him, any children
given in adoption, and thus not entitled to claim on their own account4,
and the case of those who, having obtained their "legitim" under
the will, could not complain, but would get their full share under
bonorum possessio contra tabulas5 if someone else effectively claimed it.
It was also available to patron or liberi patroni whose rights were dis-

1 Inst. 3. 9. pr., 1;G. 3. 41 ;D. 1. 1.7. 1;37. 1.6. 1. 2 D. 38. 9. See h. t. 1. 11.

3 A grandson would in that case have to share with brothers and sisters. There are how-
ever difficulties and it is contended by Beseler, Beilrage, 4. 158, that classical law did not
admit this further claim. 4 Ante, § cxni; 37. 4. 8. 11, possibly a rule of late law.

5 37. 4. 3. 11. If a child given in adoption is instituted and accepts, iussu patris adoptivi,
and is afterwards emancipated, he can claim contra tabulas, as he has not had the benefit,
h. t. 10. 2, 3. Conversely an emancipatus praeteritus who is adrogated before claiming,
loses the right, h. t. 3. 6. Cf. 38. 6. 9.

380 BONORUM POSSESSIO [CH

regarded1. The resulting state of things was not quite intestacy. Some
parts of the will were good, e.g., exheredationes and legacies to near
relatives2, so that this bonorum possessio must be stated as a distinct case
and cannot be fused with unde liberi. If there was no one who could
thus attack the will, there was

B. Bonorum possessio secundum tabulas*. This involved the produc-
tion of a will which satisfied the praetorian requirements of form,
whether it satisfied those of civil law or not4. Here two things must be
noted. This bonorum possessio could be claimed notwithstanding the
existence of an outstanding condition on the institutio of the claimant
(on his giving security to those entitled in his default), who would thus
not be entitled to make aditio on the hereditas, as such5. And this
bonorum possessio required a written and sealed document, while the
mancipatory will might conceivably be oral6. But in later law this
bonorum possessio could be claimed under an oral7 will. If there was no
such will or none claimed under one, the case was one for:

C. Bonorum possessio ab intestato. Here there was a lengthy list of
cases set out in order of priority.

(i) B. p. unde liberi. The word "unde" here as in other cases is not
part of the Edict. It is used by the jurists in referring to "that part of
the Edict in which" liberi (etc.) are entitled to claim8. We have already
considered what persons can succeed under this head9. The only things
that need be observed are that a child who was entitled to upset a will,
but failed to claim b. p. contra tabulas, and had thus let in claimants
under the will, coiild not afterwards obtain a valid grant unde liberi,
and that if no one had claimed under the will, so that he could still come
in, unde liberi, he must make good all gifts which would have been good
if he had claimed contra tabulas™.

(ii) B. p. unde legitimi. This applied to all cases of statutory claim,
e.g. to agnates and those entitled in later law to claim with them, to the
patron and his children, the parens or extraneus manumissor, and to
cases under the Tertullian and Orphitian, and their later extensions11.
As it covered all who were heredes at civil law, it availed to sui as well
as remoter claimants, so that if a suus had not claimed b. p.
unde liberi and no others had claimed it, he might still be entitled to
come in under this head to the exclusion of agnates, if he was nearer in

1 37. 14. 10. 2 Ante, § oxm. 3 As to the many cases in which this was

available, ante, § Cl. 4 G. 2. 119 sqq. 5 37. 11. 6; ante, § CIV; post, § cxxxvi.

6 Ante, § c. 7 Ante, § c in f . 8 Lenel, E.P. 343; D. 38. 6. 2. 9 Ante,

§ cxxx. 10 29. 4. 6. 9; 38. 6. 2. So where one entitled by will and on intestacy

claims only in intestacy, 29. 4. 1. pr. And he must make collatio (37. 6. 9), which he would
not have had to do if he had taken under the will. 11 38. 7. 2, 3.

ix] BONORUM POSSESSIO 381

degree1. This he would not necessarily be: a son is nearer than a
brother, a great-grandson is more remote.

(iii) B. p. unde decem personae. This was a special case. Where an
ingenuus in being emancipated had been finally manumitted by the
extraneus without remancipation to the father, the extraneus was heres,
and therefore, prima facie, entitled to b. p. unde legitimi. But the praetor
by a special clause in the Edict preferred certain near relatives to him.
The list and order, inter se, are given twice, not quite identically2. They
are roughly descendants, ascendants, and brothers and sisters of the
whole or half blood. As this mode of emancipatio could not occur under
Justinian, the institution was extinct3.

(iv) B. p. unde cognati. This was a purely praetorian4 creation: we
have already considered what persons it covered5. It need only be noted
that those entitled to claim as legitimi who had failed to do so, might
still be, alone or with others, the nearest cognati6.

(v) B. p. unde familia patroni (turn quern ex familia7). The purpose
of this is not certainly known. It appears at first sight to give rights only
to persons who might have come in earlier, which is of so little use that
it can hardly be the right explanation. Of the various explanations, that
of Lenel8 is supported by some textual authority. It is that the class
includes a patronus who has been capite deminutus, emancipated children
of the patron, and perhaps the par ens manumissor of the patron. The
praetor did give these a right9 (they had none at civil law), and there is
no other obvious place for them. But there is the difficulty that such
texts as certainly refer to this case do not hint at any but the civil law
meaning of "familia." It is therefore also held that it refers to
agnates of the patron, who have no civil law claim, and of whom
Theophilus says that they come in here10. A long text discussing
the word "familia," from a work commenting on these edicts, says
"communi iure familiam dicimus omnium agnatorum11." But there
is no direct reference to the case of libertus: it is not clear why the
praetor should have admitted agnates of the patron, and neither

1 38. 7. 2. pr.; 38. 16. 12. 2 Coll. 16. 9. 2; Inst. 3. 9. 3. 3 It is strange that

this 6. p. is stated after unde legitimi, of which in the only case in which it could occur
it takes precedence. It is therefore supposed by Lenel, E.P. 343, arguing from Ulp. 28. 7,
that it was not an independent clause in the Edict giving a definite class of 6. p., as Jus-
tinian states it, but a proviso in unde legitimi. 4 38. 8. 1. 5 Ante, § cxxx.
6 But as agnation was recognised however remote, and cognation was limited, an agnate
might be too remote to claim as a cognate, 38. 8. 9. pr. And where the agnation was adoptive
and had ceased there was no cognatio. 7 "turn quam," "tamquam," etc. As to the
proper reading Lenel, E.P. 344. 8 E.P. 345. 9 38. 2. 2. 2; h. t. 23. pr. 10 See
Roby, Rom. Priv. Law, 1. 278. 11 50. 16. 195. 2. For this view and some suggestions,
Accarias, Precis, 1. 1222.

382 BONORUM POSSESSIO [CH.

Gaius nor the historical part of Justinian's enactment1 refers to any
such right.

(vi) B. p. unde patronus patrona liberi et parentes eorum. There is
some evidence that this obscure case refers to manumission by one who
is himself a freedman2, and on that view this clause gives a right of
succession to the patron's patron, and the issue and ascendants of the
latter. This interpretation is supported by the language of Justinian's
reorganising enactment3, but it is not free from difficulties4.

(vii) B. p. unde vir et uxor. In the absence of relatives the praetor
gave bonorum possessio to the husband or wife of the deceased, as the
case might be5. This applied (like unde liberi and unde legitimi} to ingenui
and libertini alike6, but it is strange in view of this that the right of
cognates of the patron was postponed to it.

(viii) B. p. unde cognati manumissoris. In this last grade the praetor
gave bonorum possessio to cognati of the patron7 to the fifth degree.

There was another case of edictal b. p, which cannot be placed in
this scheme, as it was a single provision of the Edict applying to diverse
cases. This was bonorum possessio uti ex legibus9. There were cases in
which b. p. was given by statute: we have adverted to this peculiarity in
dealing with succession to freedmen under the 1. Papia Poppaea9, the
best known case. It was placed in the Edict after the others, but detached,
some subsidiary provisions being interposed. Not much is known of it,
but we are told that no previous grant of b. p. prevented a grant under
this head10.

Under Justinian the order was simplified. Unde decem personae was
obsolete. Unde familia pat roni, unde patronus patrona, and unde cognati
manumissoris were brought under unde cognati, so that on intestacy there
were left only unde liberi, unde legitimi, unde cognati and unde vir et uxor,
with the exceptional uti ex legibus11. The change would seem to have had
the effect of changing the relative positions of unde vir et uxor and unde
cognati manumissoris. Apart from this the placing of several degrees
under one head was of small importance. They were still in the same order:
the claim of a later, if an earlier refused, was presumably now successio
.gradus, not ordinis. The claims of cognates of the patron were still con-
fined to five degrees12.

CXXXVI. Before entering on the actual working of this system it is

1 C. 6. 4. 4. 2 Coll. 16. 9. 1. 3 C. 6. 4. 4. 23. 4 Lenel, E.P. 346.

5 D. 38. 11; Inst. 3. 9. 3, 7. 6 As did unde cognati under Justinian, Inst. 3. 6. 10;

C. 6. 4. 4. 7 Inst. 3. 9. 3, 6; Coll. 16. 9. 1. 8 38. 14; 37. 1. 6. 1, in f.; Inst.

3. 9. 8. As to the application of this to municipia succeeding to their freedmen, Lenel,
op. cit. 348. 9 Ante, § cxxxiv. 10 38. 14. 1. 1. One who could claim under
this head could also claim unde legitimi, 38. 7. 3. 11 Inst. 3. 9. 8. 12 C. 6. 4.

4. 14 e, f.

ix] BO NO RUM POSSESSIO 383

convenient to recall certain matters already mentioned. Though the
praetor's order was not that of the civil law there were points of agree-
ment. In some cases he admitted only those with a civil law claim (e.g.,
legitimi). In others he admitted those who had no such claim, to share
with those who had (e.g., undeliberi). In others he excluded those with
a civil law claim (e.g., gentiles}. It must be remembered also that it did
not follow that a person who had obtained a valid grant of b. p. would
in the long run be entitled to keep the property: there was such a thing
as bonorum possessio sine re. What this meant and how it came about
we shall consider later.

Bonorum possessio was granted by the praetor to claimants in a cer-
tain order, and a fixed number of days was allowed within which the
claimant in any class must apply. In general the time allowed was 100
days, but in the case of ascendants and issue, whether claiming under
a will or on intestacy, a year was allowed1. The days were dies utiles2,
and in each bonorum possessio the time ran only from the expiration of
that allowed for the previous claim3. These facts had important results.

(i) Only those days counted on which a demand for b. p. could law-
fully be made. This does not mean much, for the praetor heard and
granted such applications de piano, and without the use of the
formal words, do, dico, addico, which involved an actual sitting of the
court4.

(ii) The days ran only from the time when the claimant was certus
of his right, i.e. on matters of fact5, and was able to take the necessary
steps.

(iii) If, after time had begun to run, he became incertus of his right,
in the same sense, or became incapable of acting, the running of the
time was suspended6.

(iv) As a corollary, the times for different members of the same class
might expire at very different times7.

It appears therefore that in a case in which there was no will, and
there were no near relatives, who claimed, it might be a long time before
remoter claims, e.g. vir et uxor, could be put in. This might indeed be so,
and the resulting inconvenience led to the adoption of a number of
devices for shortening the time. Thus if a particular class was non-ex-
istent, the time for that class would be disregarded, so that if, for
example, a man had died intestate and unmarried, a b. p. unde legitimi,

1 Inst. 3. 9. 9; D. 38. 15. 2. 4; h. t. 4. 1; 38. 9. 1. 11, under whatever class they are
actually claiming. 2 38. 15. 2. pr.; Inst. 3. 9. 11. 3 37. 1. 9; Inst. 3. 9. 10.

4 38. 15. 2. 1. 5 37. 1. 10. As to children and/unost, see Accarias, Precis, I. 1259,

n. 3. 6 37. 1. 10; 38. 15. 2. pr. See Roby, Rom. Priv. Law, 1. 265. 7 Inst. 3.

9. 11.

384 BONORUM POSSESSIO [CH

given at once, would be valid1. Again, if all the members of any class
repudiated the right, the time for that class stopped at once, and claims
by the next class became admissible, the repudiation being irrevocable2.
In the case of those who had an annus utilis, the person entitled in the
next place could, urgentibus creditor ibu.s, ask them in court if they re-
pudiated. They need not answer, but if they did, and repudiated, and
there were no others of the class3, the next in order could claim. So too
if a whole class died out while its time was running, or was excluded
from any cause, the same effect followed4. But if any single member of
a class died or repudiated, the effect in intestacy, and, apart from the
II. caducariae, under wills, was to cause accrual in favour of other mem-
bers of the class5. The general result is that in an ordinary case no very
long time would elapse before the claim, however remote, could come in.

It must however be remembered that any bonorum possessio could
in fact be given at any time. The praetor gave it on application, without
serious enquiry, to anyone who set up a prima facie claim, on ex parte
evidence. The praetor knewr nothing about the facts. But such a grant
would be a mere nullity, for all purposes, unless the person to whom it
was made was the person or one of the persons entitled to it at that
time, i.e. as the technical expression ran, unless he had it ex edicto, in
accordance with the terms of the edict.

The demand for bonorum possessio would be made to the magistrate
and granted by him. It is sometimes spoken of as a judicial proceeding,
but in classical law, though there may possibly have been formal terms
in which the application must be made6, there is little of the judicial
about it, whatever may have been the case in earlier days. Even a
slave could obtain a grant7 for his master, though it is a commonplace
that he could take no part in judicial proceedings. In later law, though
not in classical law, the magistrate might grant it without any formal
application at all, any evidence of intent being enough, and the class of
magistrates who might grant it extended as time went on8. On another
point of detail in Justinian's law, there is dispute. He tells us that there
was no longer any need to demand bonorum possessio; it could be ob-
tained by any expression of wish9. The question is whether this means
that there was now no need to go before the magistrate. That is the

1 38. 7. 2. pp.; 38. 9. 1. 6. 2 38. 9. 1. 6. 3 38. 9. 1. 12. 4 38. 9. 1. 8.

5 38. 9. 1. 10. 6 The view that there was a form rests on Theoph., ad hist. 3. 9. 10

(which only shews that there must have been express claim), C. 6. 59. 1,2 (which say the
claim was made sollenniter) and C. 6. 9. 9 (which though in its present form it refers to
this may originally have had to do with cretio). 7 37. 1. 7, which also says that it

may be given without demand. See also the demand by messenger, Girard, Textes, 809.
It may be that in Justinian's law there was no difference between obtaining b. p. and
aditio hereditatis. See Biondi, Legitimazione proce-ssuale nelle azioni divisorie, 39 sqq.
8 Inst. 3. 9. 10. See Accarias, Precis, 1. 1258. 9 Inst, 3. 9. 12.

ix] BONORUM POSSESSIO 385

natural meaning of his words and would put the matter on the same

footing as aditio. But as he says that the rule was laid down by earlier

Emperors, and such a rule certainly was not, it is usually held that all

he means is that, as was already the law, no particular words were

needed, and the grant might be made by any magistrate1. The truth is

that while the grant was essential to further proceedings, it had no other

significance. The real question at later stages would not be merely

whether there was a grant, but whether the grant was ex edicto. Usually

there was no enquiry: it sufficed that the claimant shewed a prima facie

case, or even less. Thus on proof that there was a will, b. p. secundum

tabulas could be given without opening it2, though it was impossible to

know that the claimant was entitled under it. It follows that it might

often be given to a person not entitled to it and such cases are recorded3.

Thus it might be given under a forged will or one that had been revoked,

or on intestacy where there really was a will, the praetor being told that

there was none. Legitimi might, innocently or wilfully, allege falsely that

there were no liberi, or that their time had expired, or that they had

repudiated. In all these cases the bonorum possessio obtained, not being

ex edicto, granted, that is, to one not at the time entitled to it under the

Edict, was worthless: it did not enable the grantee to go any further.

It was merely like the issue of a writ to one who had no sort of claim.

The grantee would not succeed in the interdict quorum bonorum, or be

able to use effectively any of the edictal remedies4.

It is plain that as bonorum possessio was granted without serious
enquiry, a grant to one not entitled to it, a grant not ex edicto, did not
bar a grant to one entitled to it, in the same or any other class, and,
presumably, one who had a grant made out of due season was not
thereby barred from applying later for a valid one. As these later grants
would also be without enquiry, the rule practically was that no grant
was a bar to another grant, though we shall see shortly that this meant
little. It should be added that a grant to one of a class was not a grant
to all. Each person who wanted b. p. must ask for it5. Hence arose
cases of accrual. If, e.g., one of several liberi had received a grant, and
the others allowed the time to expire without taking steps, he would
have bonorum possessio of the whole6.

1 See 37. 1. 7. pr.; C. 6. 9. 8; C. 6. 9. 9. For different opinions, Girard, Manuel, SS6,
Moyle, Instt. Just, ad Inst. 3. 9. 3; Leist, in Gliick's Erlauterung, 38. 2. 314; Accarias,
Precis, 1. 1279. 2 37. 11. 1. 2. A conditionally institutus can get b. p. sec. tab. This
of course may be valid, ex edicto, but as it may not be cum re as the condition may fail,
a substitute may require security. P. 5. 9. 1; D. 2. 8. 12; 37. 11. 6; 46. 5. 8. 3 E.g. C.

8. 2. 1, 2. 4 See 37. 5. 5. 3. 5 The application need not be made personally.

Paterf. can apply for infans child (at least in later law), a tutor for his ward (though he
cannot repudiate), an "actor" for a municipality, and a representative duly appointed
for anyone. 37. 1. 3. 4; h. t, 7, 8, 16; 38. 9. 1. 4. 6 37. 1. 3. 9; h. t. 5

B. R. L. 25

386 BONORUM POSSESSIO [en.

Where bonorum possessio had been granted to anyone in accordance
with the terms of the Edict, ex edicto, it could not be validly granted to
anyone else, adversely to him (which means, practically, to anyone in a
different group), while the grant stood1. Such a second grant might be
made, but it was a nullity : it could not be ex edicto. A valid grant unde
liberi did not bar other liberi from getting a grant, but it rendered
nugatory any grant unde legitimi, unless and until all valid grants unde
liberi were revoked. Thus it may be said, with truth, but in different
senses, that one grant of bonorum possessio barred another, and that it
did not.

CXXXVII. The claim and grant of bonorum possessio operated some-
what like aditio at civil law: they entitled the beneficiary to take steps
to recover the property, but did not of themselves give him possession
of it. This is a question of, inter alia, physical control, and the grant
could not give him this ; there was no magic in it. Thus we have now to
consider in what ways it was made effective. We must remember that
there were two kinds of valid bonorum possessio, cum re and sine re. We
shall deal first with bonorum possessor cum re, the true praetorian suc-
cessor. His remedies and liabilities were as follows:

1. He might proceed by the interdict quorum bonorum2, of which
it is important to note the exact effect. It was by no means a universal
remedy. It applied only to matters of which possession was possible, or
at least, possessio iuris, as in usufruct3, and thus it was not a means of
recovery of debts. But it has a still more important and less obvious
limitation. It was available only against those who held pro herede, i.e.
who claimed to be heredes, or who refused to state any title at all4. Thus
it was of no use against a holder who claimed to have bought the thing5,
and thus to hold it pro emptore. On the other hand as against a holder
pro herede, or pro possessore, it was available not only as to what he
possessed, but as to things which he had fraudulently ceased to possess,
and even things he had usucapted6. It must be remembered that under
Hadrian usucapio pro herede was made ineffective against claimants of
the hereditas whether it had been in good or in bad faith.

To recover under the interdict, the mere issue of which, like a grant
of bonorum possessio, was made as of course, without real enquiry, the
bonorum possessor must shew that he was entitled to it, and it was at
this point that the validity of the grant of b. p. to him would be con-

i The case of uti ex legibus is no exception : if this is valid, the other one is not. 2 43. 2 ;
C. 8. 2; G. 3. 34; 4. 144; Inst. 4. 15. 3. 3 See 43. 3. 1. 8, which gives quod legatorum.

4 43. 2. 1. pr. 5 See ante, § ex, in heredi tatis petitio where a similar rule held. 6 43.

'2 1. pr. : C. 8. 2. 2. But it was not available if he had had possessio before, since the grant,
G. 4. 144.

ix] BONORUM POSSESS 10 387

sidered. The wording of the interdict brings this out. It orders that the
goods be handed over to the claimant who has a grant of bonorum
possessio ex edicto1, i.e. in accordance with the Edict. If for instance the
grant was unde liberi, then it must appear that he was one of that class,
that the grant was made within the proper limits of time, that there
was no previous valid grant to one or more of another group, still in
force, that the goods formed part of the estate of the deceased, and that
the defendant set up no title otherwise than as heres.

This interdict, like all possessory interdicts, was merely provisional2.
If the claimant proved his right to the interdict against the defendant,
the goods were, as the result of procedure which does not here concern
us, handed over to him. No question of title was thereby determined.
It did not follow that he would be able to keep the property in the long
run. The whole legal effect was that anyone who wished to recover the
property from him must bring the appropriate action against him and
prove his case.

Before leaving this interdict reference must be made to another
interdict of similar type, but less importance, called quod legatorum3,
available to the bonorum possessor against one who had taken possession
of property, alleging a legacy of it to him, without the consent of the
bonorum possessor. The bonorum possessor must, under this interdict,
give security for the restoration of the legacy if it should prove to be
due4.

2. He was entitled to the hereditatis petilio possessoria5. This was a
praetorian extension of the hereditatis petitio of the heres. Like the inter-
dict it was available only against holders pro herede or pro possessors,
and it covered the various iura in rent of the estate, of which the defend-
ant had possession (or possessio iuris), and, to a limited extent, debts6.
The action had the same general rules as the hereditatis petitio, which has
already been considered7. To recover under it the plaintiff must shew
that he had a grant of bonorum possessio, and that it was a valid grant,
but he need not shew that it was cum re, though, if it was not cum re, he
would fail if the defendant was the heres*. The judgment in this action
differed in force from that on the interdict. It was not merely provisional ;
like that on the actual hereditatis petitio it was final, dealing not merely
with the question of possession, but also with that of substantive here-
ditary right. As it called for the same proof as the interdict, covered

1 43. 2. 1. pr. 2 See Ubbelohde, Die erbrechtlichen Interdicte, 8 sqq. 3 As to

alleged availability of this remedy to heres, as such, post, § CCXLIX. 4 Lenel, E.P. 436 ;

5 D. 5. 5. As to difficulties of formulation, Lenel, op. cit. 177. 6 Ante, § ex.

7 Ante, § ex; D. 5. 5. 2, "tantundem consequitur bonorum possessor quantum superior ib a*
civilibus actionibus heres consequi potent" ; 37. 4. 13. pr. 8 This is not expressly stated

but may be inferred from 37. 10. 3. 13.

25—2

388 BONORUM POSSESSIO [CH.

the same property, and more, for the interdict dealt only with what
could be in some sense possessed, lay against the same persons and
gave a definitive result, it is not easy to see, at first sight, why a bonorum
possessor cum re ever preferred the interdict. The following considerations
will explain the matter.

(a) A bonorum possessor did not always know whether he was cum
or sine re. The texts speak of b. p. as being granted cum or sine re1, but
it was not so stated in the grant, and it was possible that no party con-
cerned might know which it was. As, in the case of b. p. sine re, if the
opponent was the heres the possessor would fail in the hereditatis petitio
possessoria, but win on the interdict, he would, if there was any doubt,
bring the interdict, leaving the heres to proceed against him afterwards
by hereditatis petitio. If, for instance, an extraneus was claiming under
a praetorian will, he might know that in fact no one had claimed bonorum
possessio contra tabulas, but this did not prove that there was no child;
there might well be one who was content to rest on his civil law claim.
The bonorum possessio would be no answer to hereditatis petitio brought
by such a child, but it would give the bonorum possessor the advantage
of the position of defendant. So also, he might not know whether the
opponent was actually the heres or not ; this was indifferent in the inter-
dict. Similar doubts might arise in a number of ways.

(b) Till Hadrian, hereditatis petitio was not available against one who
had fraudulently ceased to possess. The interdict was. Nor does here-
ditatis petitio seem to have applied to things of which the holder had
completed usucapio2.

(c) The interdict being prohibitory, the procedure involved spon-
siones. The payments under these were actually enforced; they were not
merely formal3. Thus success in the interdict might involve a profit.

(d) Even in later law, the interdict had the advantage of being sub-
ject to restrictions in the matter of appeal4.

3. If, having obtained the possession, he was now sued by the heres
by hereditatis petitio, he had of course no defence at civil law, but he
had an exceptio doli5.

4. He could recover property of the estate held by persons claiming
by some title other than inheritance, who were thus not to be reached
by the interdict or the hereditatis petitio possessoria. His remedy in this
case was an actio fictitia in which the fiction was that he was heres; the
index was directed to condemn, if the plaintiff would be entitled "si
heres esset6."

5. He could sue and be sued on account of debts by actions with a

i E.g. Ulp. 28. 13. 2 The heres might have completed usucapio since the death,

see 5. 3. 19. 1. 3 Post, § CCL. 4 C. Th. 11. 36. 22. 5 G. 2. 120. 6 G. 4. 34.

ix] BONORUM POSSESSIO 389

similar fiction1. These would cover the cases in which the heres himself
could sue or be sued in respect of events since the death, so that they
formed a complete scheme.

Here however there is a difficulty. Gains gives us the intentio of the
actions under this and the last head, and this says nothing about the fact
that the plaintiff is a bonorum possessor. What then was there to prevent
anyone from bringing such actions against a debtor, since the question
whether the plaintiff was bonorum possessor or not was not put in issue?
The fact of the grant would no doubt be on record, and the formula
would not be issued except where there was one. But it might not be
ex edicto, and the fact that the grantee was not really entitled to it
would not be brought out till the interdict or the petitio had been tried,
while there is nothing to shew that these actiones fictitiae could not be
brought in the first instance. The way in which this very material point
was raised is not certainly known. Lenel holds2 that it was by means
of an exceptio bonorum possessions non datae, mentioned by Paul, which
though he does not state its application seems suitable for the present
case3.

6. The acquisition of possession under the interdict or the petitio did
not of itself confer dominium, though Ulpian, in the Digest4, uses lan-
guage inconsistent with this. The bonorum possessor would become
dominus by usucapio ; in the meantime he had the protection available
to other praetorian owners. Under Justinian, bonorum possessio and
hereditas were almost fused, and the two systems of remedies coexisted
almost as alternative remedies for the same end. There was no longer
such a thing as praetorian ownership, so that these distinctions ceased
to exist5.

CXXXVIII. We can now turn to the bonorum possessor sine re, one
who had a valid grant, i.e., ex edicto, but who was not one of those whom
the praetor would, in the long run, protect against the civil law heres.
His rights and liabilities can be scheduled as in the other case.

1. He had the interdicts quorum bonorum and quod legatorum, and,
so far as these are concerned, he was in the same position as the bonorum
possessor cum re. The interdicts were effective as against even a true
heres or legatee6.

2. He had hereditatis petitio possessoria against anyone who held

1 G. 4. 34; 3. 81 (imperfect). 2 E.P. 178. 3 44. 1. 20. It seems surprising
that if, e.g., a creditor of the estate brings action against a person entirely unconnected
with the matter, his only answer should be an exceptio. In practice the formula would be
issued only where there had been an apparent grant, and the exceptio would raise the
question whether the grant was valid. 4 37. 1. 1. See also 50. 16. 70 (Paul).

5 Thus texts in the Digest give Quod legatorum to the heres as such. See post, § ccxux.
As to the possibility of b. p. nine re even under Justinian, post, § cxxxix. 6 G. 4. 144.

390 BONORUM POSSESSIO [CH.

pro herede or pro possessore, except the true heres. The intentio indeed
did not in terms exclude the latter, for we have seen that where the b. p.
was cum re this action was effective against the heres, and at the time of
issue cf the formula the praetor would not ordinarily know which it
was. Though we have not the actual formula it seems fairly clear that
the heres met the claim by an exceptio, which is thought by some writers
to have been an exceptio doli1.

3. If the heres sued him by hereditatis petitio, he had no reply, and
the action would cover all the property he had recovered by any of his
various remedies or without litigation — in fact everything which he
held as bonorum possessor, and, in some cases, what he had made away
with2.

4. He had the same actiones fictitiae against debtors and detainers of
property as if his b. p. were cum re, being of course liable to be called on
by the heres to restore what he had received, as just stated. This situation
raises a curious question. If a bonorum possessor had thus handed over
what he had received, he was still a bonorum possessor, ex edicto, since
the grant was valid and had not been revoked. Logically he might still
sue debtors. There is no authority, but analogy suggests that he would
be met by an exceptio doli.

5. He might be sued by creditors as if cum re. If, having paid debts,
he was ejected by the heres he could deduct from what he handed over the
amount of these payments3. If he was sued after the heres had recovered
from him, he had, presumably, an exceptio. Here too a difficulty might
arise. If, having a grant of bonorum possessio, he paid debts out of his
own pocket, intending to recoup himself when he got in the estate, his
expectation might be disappointed: the heres might step in and recover
the assets from those who were holding them, so that nothing reached
the hands of the bonorum possessor. Could he claim an indemnity from
the herest It was not a case of negotiorum gestio, for he was acting on
his own account4. It may be that as he was still bonorum possessor, he
could put pressure on the heres by recovering the property from him by
the interdict, and then, when sued by him by the hereditatis petitio or
any proprietary action, could set off the amount of the debts paid.

6. He could usucapt in the same way as the bonorum possessor cum

\ Accarias, Precis, 1. 1269, citing 37. 11. 11. 2, where however it was not a valid
6. p. See as to formulation of the action, Lenel, E.P. 177 sq. 2 Like any other posses-
sor of res hereditariae, ante, § ex. 3 5. 3. 31. 4 Post, § CLXXXV. (The texts are
however not quite clear on the actio negotiorum gestorum where A manages E's affair
thinking it his own.) Some texts suggest, but do not prove, that he had condictio indebiti
(12. 6. 2). There is however the difficulty that a bonorum possessor ex edicto is liable for debts,
so that it is not an indebitum. The fact that in the long run he gets no benefit out of it
does not alter that and make his act a payment in error of what was not due.

ix] BONORUM POSSESS 10 391

re, but was liable to have his usucapio interrupted by the intervention
of the heres.

CXXXIX. We have now to consider when bonorum possessio was
cum re and when sine re. The heres and the bonorum possessor might of
course be the same person. A suus Jieres was entitled to bonorum possessio
unde liberi. A claimant under a formal mancipatory will was commonly
entitled, since sealing was usual, to b. p. secundum tabulas. An omitted
suus could proceed either by hereditatis petitio or by b. p. contra tabulas1.
An agnate had hereditatis petitio or b. p. unde legitimi.

In Justinian's time every bonorum-possessio was normally cum re, a
fact which explains the existence of doubts on some points in b. p. sine
re. The heres was usually the person entitled to bonorum possessio, and
he might proceed either by aditio and hereditatis petitio, or by demand
of bonorum possessio and the foregoing remedies. The difference was
chiefly one of form. The Digest, though it gives titles to quorum bonorum
and hereditatis petitio possessoria, says, in these titles2, only a word or
two about each, which indicates that they still existed but had lost
their importance. But some cases might give difficulty even under
Justinian's law.

(i) For those entitled in both ways it mattered little in which form
they cast their claim. Though the limits of time were not the same, if
too late for one, they could fall back on the other. But there were still
cases in which bonorum possessio was the only course, and here, if the
time had gone by, total exclusion would result even under Justinian.
Such cases were few. The praetorian will was in effect obsolete. The
enactments extending the class of legitimi expressly gave all the rights
of agnates, i.e., hereditas as well as bonorum possessio3. On the other hand
Justinian expressly confined emancipati and emancipatae, who attacked
a will, to bonorum possessio contra tabulas4, and unde cognati and unde
vir et uxor remained, it seems, purely edictal5.

(ii) If one entitled to bonorum possessio let his time pass (at least if
he was the whole of a class) it is clear that the person next entitled
could come in6. On intestacy, the sui relying on their civil law right,
might not claim bonorum possessio unde liberi. When their time had
expired, could the agnates, etc., claim, unde legitimi! They could under
the old law, though of course it would be sine re, and there seems to be

1 The hereditatis petitio would be better, for b. p. contra tabulas left some of the pro-
visions of the will standing, ante, § cxm. 2 D. 5. 5; D. 43. 2. 3 See Inst. 3.
2. 4; C. 6. 58. 14. 6, etc. 4~ C. 6. 28. 4. 6; Vangerow, Pand. § 515. The reason probably
is the existence of the obligation of collatio. 5 No alteration is made in the position
of these by any legislation of Justinian, before Nov. 118. After this, cognati were heredes,
but vir et uxor are not mentioned and presumably remain on the old footing. 6 38.
9. 1; 38. 15. 1. 1.

392 BONORUM POSSESSIO [CH.

nothing in the Digest or Code to prevent their still doing so. But if they
could there would still be cases of bonorum possessio sine re1, though the
Digest expressly says that bonorum possessio is the right of getting and
retaining the goods2. In view of this, and as the Corpus iuris nowhere
says, even where such a statement might have been expected if it was
true, that quorum bonorum was available against the heres, it is generally
held that the interdict was now in such a form that it was ineffective
against the heres3. It seems more probable however that while the inter-
dict, or rather the possessory action which has taken its place4, was
still formally available, it would be paralysed by an exceptio doli, so that
practically this was not bonorum possessio at all. This would explain the
fact that Justinian, in discussing the interdict quorum bonorum, omits
the words "qui heres est," which are in Gains5, leaving the words "qui
putat se heredem esse."

In classical times every bonorum possessio was cum re if the claimant
was heres or there was no heres, and thus any bonorum possessio might
be cum re in some circumstances. In other cases various bonorum
possessiones were cum or sine re according to epoch (for there is much
historical change) and circumstances, of which circumstances the praetor
would not, and the parties might not, be informed when the grant was
made.

Bonorum possessio6 contra tabulas was, no doubt, cum re in the time
of Gaius though this is not expressly stated: the language of many texts
could not possibly have been used if there were normal cases in which it
was sine re. The system of collatio bonorum would be unintelligible if the
bonorum possessio of emancipatus omissus was sine re, liable to be de-
feated by the institutus. And the restriction laid down by Pius7 on what
a woman might take would not have been necessary, if she did not keep
what she took. It seems clear that it was cum re when Julian revised
the Edict, since the bonorum possessor was liable for some legacies under
that system8. Collatio was discussed by Cassius, a century before
Hadrian9. There is evidence that it was cum re when obtained by a
patron or his issue in the time of Cicero, in a case in which it was not
based on a civil law claim10. On the whole it seems that this bonorum
possessio was cum re by the beginning of the Empire.

Of bonorum possessio secundum tabulas there were many cases. If
the will was valid at civil law the bonorum possessio would of course be

1 Windscheid, Lehrb. § 532, n. 6, cites 37. 4. 14. pr.; 37. 5. 15. 2; 37. 6. 10. 2 37. 1.
3. 2. Put down to Ulp. but no doubt altered. Cf. Ulp. 28. 13. 3 Accarias, Precis,

1. 1280; he compares Inst. 4. 15. 3 with G. 4. 144 and Inst. 2. 17. 6 with G. 2. 148, 149.
4 Post, § CCLII. 5 G. 4. 144; Inst. 4. 15. 3. 6 As to all these cases, see Girard,

Manuel, 901. 7 Ante, § cxra. 8 37. 5. 2, ante, § cxm. 9 37. 6. 2. 5.

10 In Verr. 2. 1. 48, Girard, op. tit. 882, n. 2.

ix] BONORUM POSSESS 10 393

cum re. Under an ordinary praetorian will, the bonorum possessio would
be cum re if the instituti were the heredes or there were no sui or legitimi1.
If there were adverse claims of agnates, it seems to have been sine re
till Pius made it cum re against them, though it is possible on the texts2
that it may have already been cum re as against agnates remoter than
J 'rater et patruus. Hadrian made it cum re where the only defect was that
there was a postumus praeteritus who had died before the testator3.
Where the defect was that it was a woman's will made without consent
of her tutor fiduciarius the enactment of Pius made it cum re whether it
satisfied civil law rules of form or not, but if the tutor was legitimus, it
was still sine re*. Other cases of this bonorum possessio are discussed5,
but enough has been said to shew that there were many factors to be
considered, of which the praetor could not be informed when he issued
the interdict, and that up to the end of the classical age this bonorum
possessio was often sine re.

Unde legitimi, unde cognati, and unde vir et uxor were at all times
normally cum re. They excluded none but the gentiles, who were disre-
garded. If, however, these bonorum possessiones took effect merely be-
cause earlier claimants, entitled at civil law as well, had not troubled to
claim bonorum possessio, the bonorum possessio would be sine re, if the
other claimants had made, or, having still time, afterwards made,
aditio. If however they had renounced or were excluded by lapse of the
spatium deliberandi, the bonorum possessio would be cum re6. Similar
distinctions must be taken in regard to the bonorum possessio of the
patron and his relatives, in succession to a freedman. We know that the
I. Papia Poppaea7 gave statutory basis to some of them, which indicates
that they were normally cum re.

We are not told that unde liberi was cum re, but as contra tabulas was,
from early times, and this case affects nearly the same persons, is also
subject to collatio, and is older, it may be assumed that this too was
cum re. It is, a priori, probable that unde decem personae was cum re,
and this view is confirmed by the language of Ulpian, to the effect that
the XII Tables gave the hereditas to the extraneus rnanumissor, but the
praetor, on grounds of equity, preferred the decem personae to him8.

It was not always the praetor who made a particular bonorum
possessio cum re. In the case of the postumus praeteritus who was in
fact dead, it was Hadrian9. In bonorum possessio secundum tabulas,

1 Ulp. 23. 6; G. 2. 119. 2 G. 2. 120; Coll. 16. 3. 1. 3 28. 3. 12. pr. 4 G. 2. 122.
5 Ante, § ci. A will was destroyed by the testator but no other made. Pius provided
that bonorum possessio under it should be sine re. If a testator lost capacity after legislation
but regained it before he died, his will failed at civil law though b. p. could be obtained
under it, but was sine re in classical law, ante, § en. 6 G. 3. 37; 2. 149; Ulp. 26. 8;

28. 11. 7 Ante, § cxxxiv. 8 Coll. 16. 9. 2. 9 28. 3. 12. pr.

394 BONORUM POSSESSIO [CH.

against agnates, and where a testatrix had acted without consent of her
tutor fiduciarius, it was Pius1. The cases of the /. Papia Poppaea and
Justinian's changes speak for themselves. It may be that even in the
older cases, before the Empire, the praetor never of his own authority
made a bonorum possessio cum re except where there was no adverse
civil claim, but no such general statement is warranted; unde liberi and
unde decem personae are probably both republican, and may both owe
their efficacy to the praetor. The language of Cicero2 certainly implies
that the Edict could give an effective right as against civil law claims.
It must be remembered that a bonorum possessio not ex edicto was
neither cum nor sine re; it was a mere nullity, not for practical purposes
bonorum possessio at all3.

CXL. The foregoing statement raises two questions:
(i) What was the advantage of obtaining bonorum. possessio sine ret
There are obvious answers. One who was, or thought he was, entitled
to bonorum possessio might not know, on the facts, whether it would
prove to be cum or sine re, since this depended on circumstances which
might not, and in some cases could not, be within his knowledge. And
though he might know that it was technically sine re, it might yet be
effective because the person really entitled abstained, from whatever
cause, from taking steps against him. And a bonorum possessor who had
obtained actual possession under the interdict quorum bonorum, for
which result it was indifferent whether his bonorum possessio was cum
or sine re, had the advantage of being defendant if the property was
claimed from him by the heres, no small matter, as the burden of proof
was on the plaintiff.

(ii) Why did the praetor give bonorum possessio sine re, i.e. to one to
whom on his own principles the property was not ultimately to belong?
The final answer to this is no doubt to be found in the answer to the
other and unsolved question of the origin of bonorum possessio. But
apart from this there are several answers. So far as the original grant
was concerned the praetor could not know whether the possessio would
be cum or sine re; in appropriate circumstances any bonorum possessio
might be cum re, and the praetor had ordinarily never heard of the case
till the demand was made. Again, the fact that a bonorum possessio was
sine re is no evidence that the praetor wished it to be so. No doubt
every grant was originally sine re, if there was an adverse civil law claim.
The first step in the evolution of a new praetorian right of succession
would be to grant bonorum possessio and no more. Later, the praetor or
some other agency4 might make it cum re, by giving an exceptio doli if

1 G. 2. 120-22. 2 In Verr. 2. 1. 48. 3 The exceptio bonorum possessions non datae,
44. 1. 20, ante, § cxxxvii, must mean "non ex edicto datae." 4 Ante, § cxxxix.

ix] BONORUM POSSESSIO 395

the bonorum possessor was sued by the heres, and, in due course, the
hereditatis petitio possessoria against the heres, that is, by excluding
his exceptio doli. Again when the bonorum possessor brought the
interdict quorum bonorum, even if the b. p. was sine re, the heres was not
permitted to prove that fact in the interdictal procedure, but must
yield to the bonorum possessor, and, if he thought fit, bring hereditatis
petitio later, though the facts which he would then have to prove might
conceivably have been admitted, under an appropriate exceptio, in the
interdictal procedure itself. The plea of title was not admitted in that
procedure. This restriction is not peculiar to this case ; it runs through
all the possessory system. Taking this principle as a starting-point, it is
clear that bonorum possessio was necessarily granted without reference
to the question whether it would ultimately prove to be cum re.

If we go further and ask why title might not be pleaded in reply to a
possessory claim, we may find ourselves in difficulties. The most funda-
mental answer will have nothing to do with succession, probably it will
have nothing to do with Roman law specially1, for the same principle
is to be found in the ancient system of possessory remedies in English
law2, which do not seem to be connected with Roman law or to owe
anything to that system. It may however be suggested, that if bonorum
possessio sine re was only a first step towards bonorum possessio cum re,
there was an obvious reason for not facilitating proof of title. But the
praetor's aims in originating the system of bonorum possessio we have
not considered.

We have seen that the demand of bonorum possessio was analogous
in nature and effect to aditio. The time limits for claim, though not the
same, are similar. A hundred days, or even a year, seems very short as
a period of limitation, but one who had let these times pass could never
claim either as heres or as bonorum possessor. It is however to be observed
that in all cases of bonorum possessio, and where the praetor fixes a
spatium deliberandi, and, usually, where a will fixes the time, this runs
only from the date at which the party has notice of his right, and that
all he need do is to make a certain formal, or, in some cases (and always
in later law), informal, declaration or claim. When once he has done
that his right is an ordinary right of action, subject to none but the
ordinary rules of limitation or adverse prescription.

Bonorum possessio decretalis. The foregoing is an account of what
may be called routine bonorum possessio, bonorum possessio edictalis.
There was another form called bonorum possessio decretalis. In a few
\ See, however, post, § CCLII. 2 The remark of 0. W. Holmes (Common Law

210) that " English law has always had the good sense to allow title to be set up in defence
to a possessory action" pays the common law an undeserved compliment. See Pollock
and Maitland, Hist, of English Law, 2. 57 sqq.

396 ADROGATIO [CH.

cases, probably survivals of a much larger number, possibly representing
the original form of bonorum possessio, it was not given as a matter of
course, but only by a decretum of the magistrate given after investiga-
tion. It was given pro tribunali, in court, and not de piano, as in the
other case1. The applications of it were, in general, cases in which, for
some reason, ordinary bonorum possessio could not be given to the person
entitled, e.g. that of a lunatic, whose curator could get this bonorum
possessio for him, but not edictalis2, that of an unborn person, who would
be entitled to bonorum possessio if he came into existence3, and whose
mother could claim this for him, and that of a child whose legitimacy
was contested4. The purpose in all these cases was to provide for the
administration of the estate till the difficulty was out of the way. It
was essentially provisional in nature, and did not necessarily put the
holder into the position of a praetorian owner, but gave him usually only
such rights as were essential to administration, the extent of the rights
differing somewhat in the different cases5.

CXLI. Death created by far the most important case of universal
succession, but there were other occasions on which a man's universitas
was transferred. Each of them had its own special rules, which renders
it necessary to consider them separately.

ADROGATIO. The forms and restrictions ofadrogatio have already been
considered6, but only general notions as to its results have been men-
tioned and these must now be considered. Gains tells us that all the
res, corporales and incorporates, of the adrogatus passed to the adrogator,
so far as they were not destroyed by the capitis minutio7. But more than
this passed; rights which were not res passed also. Those persons in
his potestas and manus passed into thefamilia of the adrogator8. This of
itself shews that it is not to be thought of as a case of quasi-inheritance,
for such rights as this did not pass to a heres. And in that case the
obligations would have passed too but this is not what happened. The
iura in rem could be vindicated by the adrogator, as his own, and all
rights of action passed to him without need of any fiction9, while the

1 38. 9. 1. 7; 37. 1. 3. 8. Thus the same number of dies utiles covered a longer time,
for only days available for judicial proceedings counted. 2 38. 17. 2. 1 1. As to doubts

in classical law, C. 5. 70. 7. 3. 3 37. 9/1. pr., 1. 14. 4 37. 10. 1. pr.; h. t. 3. pr.

Tutor or pater for an infans are other possible cases, ante, § cix. 5 See Accariaa,

Precis, 1. 1274. 6 Ante, § XLV. 7 G. 3. 83. He states, as destroyed, usufruct,

operarum obligatio created by iusiurandum liberti and Us contestata iudicio legitimo.
8 Ante, § XLV. 9 G. 3. 83. The changes in capacity of a filmsfamilias to own

property make the acquisition somewhat unreal in later law. Seelnst. 3. 10. 2. The state-
ment sometimes made that Justinian reduced the right of the adrogator to a usufruct,
while it states the practical result, is a little misleading. It is '"ad similitudinem natura-
lium parentum." The acquisitions, not being from the property of the adrogator, are
adventitia, castrensia or quasi-castrensia, as the case may be.

ix] MAN US 397

obligations were, at civil law, extinct. The civil law principle applied,
more or less exactly, was that the adrogatus was regarded as always
having been under the potestas, and such praetorian modifications as were
applied were correctives. The contractual and quasi-contractual obliga-
tions did not bind the adrogator1; they would not have bound him as
paterfamilias at civil law. Delicts of the adrogatus continued to bind him
personally ; they would have bound him had he been a filiusfamilias,
and the obligation was not destroyed by capitis deminutio2. And they
bound the adrogator, noxally, as they would have bound him as pater-
familias, when they were committed3. Contractual obligations which
adrogatus had inherited bound the adrogator fully at civil law, not as
being heres to the adrogatus, but as having acquired the hereditas through
him, being heres to the person from whom he had inherited, as a pater-
familias acquires inheritances through his son4. The acquisition of the
hereditas involved acquisition of the liabilities.

So far as ordinary contractual debts are concerned, this civil system
gave an unfair result, since the adrogator acquired the property and was
not liable for debts. The praetor provided a remedy, not by extending
the fiction that there had always been potestas to the applicability of the
praetorian liabilities, de peculio, etc., which might not have served the
purpose, since the adrogator by not creating a peculium might have
evaded this, but by allowing an action against the adrogatus, with the
fiction that there had been no capitis deminutio. This of itself would be
of little use, for the adrogatus had no property, but the edict went on
to provide that, unless the action was defended5, the creditor might
enter into possession of the property which would have belonged to him
if there had been no adrogatio, and sell it to satisfy his claim6.

PASSING INTO MANUS. Where a woman sui iuris went into manus the
resulting position was, mutatis mutandis, much the same as in adrogatio.
There was the same praetorian action on previous contracts7, and the
same rule of absolute liability for inherited debts8. But it is not clear
that there was at any time a power of noxal surrender in this case;
certainly there was none in classical law9.

1 G. 3. 84. 24.5.2.3. 3 G. 4. 77. 4 G. 3. 84. 5 Lenel, E.P. 114.

6 G. 3. 84 in f.; 4. 80. 7 76. 8 G. 3. 84. 9 Inst. 4. 8. 7. In G. 4. 80,

one passing into civil bondage is put on the same level as a woman going into manus, for
the purpose of these rules of liability. But such a person could have had no property. The
case seems unintelligible. For various interpretations see Lenel, E.P. 406, Girard, Manuel,
134. The suggestion has been made (Desserteaux, Capitis Deminutio, 1. 276; 2. 1. 360 sqq. ;
N.R.H. 36. 460) that the goods affected will be those which he has acquired for the piiti r-
familias since the entry into bondage. But see D. 4. 5. 2. 2, and it is difficult to bring these
goods within the definition of "what would have been his if he had not entered into
bondage," and it is a heavy and unreasonable fine on one who has received the Jili «.•*-
familias by noxal surrender, and has employed him in his business. The text is defective

398 CESSIO IN IV RE HEREDITATIS [CH.

CESSIO IN IURE HEREDITA Tis1. If a legitimus heres, before acceptance,
made cessio in iure of the hereditas to another person that other became
heres for all purposes. If he purported to do it after entry, semel heres
semper heres, he remained liable. But the cessio transferred the goods
of the hereditas, and debtors to it were released. If a testamentary heres
attempted to cede before entry, his act was a mere nullity. If after, it
was as in the case of legitimus. If a suus attempted to cede, the Sabinians
held the act a mere nullity; the Proculians held that it produced the
same effect as attempted cessio by legitimus after entry. The whole
notion was obsolete in later law ; it was possible of course to transfer the
various properties, and make agreements as to liabilities, but there was
no question of transfer of the hereditas.

There are several points of interest in this matter. It will be noticed
that the universitas transferred was not that of the party, but that of
someone else in which he had an inchoate interest. We are not told the
reason of the difference of treatment between the cases of testamentary
and le'gitimi heredes, which look much alike, but from Ulpian's way of
stating the case it would appear to be matter of principle. It may be that
scriptus heres was not thought of as having a right at all, till entry, while
legitimus had an inchoate right under the statute. But it is also possible
to hold the opposite view, that heres scriptus being specially appointed
by the testator could not be allowed, in effect, to accept so far as to
exclude intestacy, and at the same time evade personal responsibility.
As to the case of the suus, the Proculian view seems the more logical,
but from the fact that Ulpian does not mention the case it seems prob-
able that the Sabinian view prevailed.

It is not obvious why debtors were released. If cessio was a mere act
of conveyance2, they ought not to be in any way affected; debts were
not assignable, but that is no reason why they should be annulled. If
it is thought of as a judgment, this ought not to affect them as they
were not parties, and a judgment, in general, affected only parties to
it3. It is hardly likely that it was contemplated as a kind of derelictio.

ADSIGNATIO LIBERT I. This was the right of a patron to assign the
succession of a living libertus to one or more among his issue, under a
senatusconsult of about A.D. 454. The assignee must be in thepotestas, and if

and it may be that the missing part excluded the person in mancipio. See Krueger, ad
G. 4. 80.

1 G. 2. 35-37; 3. 85-87; Ulp. 19. 12-15. 2 As to the nature of cessio in iure, ante,
§ LXXXIV. 3 Esmein (Mel. Gerardin, 229) in a study of c. i. i. accounts for the rules

in this and other cases by the view that it is litigation, and that in early law res iudicata
pro veritate est. That is : the effect is absolute, not merely relative to the parties, not in
the sense that the fact is proved, but that the parties are not allowed to dispute it even
against outsiders. 4- Inst. 3. 8; D. 38. 4. 1. pr.

ix] ADSIGNATIO LIBERTI : ADDICTIO BONORUM 399

he passed from it, or died without issue while the patron was alive, the ad-
signatio failed1. It might be by will or otherwise2. It was revocable and it
might be conditional or ex die, but there might be no charge on it3. The
sc. was needed to make this adsignatio possible since there is no such thing
as the succession to a living man4, and, moreover, if the libertus outlived
the patron the succession to him when he died was no part of the patron's
estate. The right of succession was in the liberi patroni, not by way of
succession to him, but as an independent right conferred by the XII
Tables5. This was a power therefore in the patron to transfer a uni-
versitas in which he had not even an inchoate interest, a universitas
which was not his own. Thus it needed express authorisation by statute;
hence the senatusconsult, and hence also the rule that he could impose
no charge on it. All he could do was to exclude some liberi ; he could not
benefit anyone else6.

CXLII. ADDICTIO BONORUM LIBERTATIS CONSERVANDAE CAUSA.
This was a rule, introduced by M. Aurelius7 and modified from time to
time, under which if liberty had been given by will or codicil, and no heres
entered, so that the creditors were about to sell the estate and the gifts
would fail, the estate might be assigned to any one of the freed slaves, or
(later8) any outsider, who gave security to the creditors9. The effect was
that the estate vested in him "as if he were bonorum possessor"; the
liberties directly given thereupon took effect and he must carry out the
others10. It was in effect a transfer of the hereditas, as in cessio in iure
hereditatis. Ulpian speaks of the addictee as acquiring the property like
a bonorum possessor11, but that would give him only a praetorian title,
and, in classical law, would not have enabled him to free slaves in whose
favour there was a fideicommissum of liberty so as to make them cives.
His title, resting on imperial rescript and addictio, was civil, but, debts
not being transferable, he had only the same rights against debtors to
the estate as a bonorum possessor had. As to his liability to creditors,
the better view on confused texts12 is that at first he could be sued only
by the person or persons to whom he had given security, but that, later,
creditors could sue him by utiles actiones.

PUBLIC ATIO. In various cases of condemnation for crime, in fact in all
cases of capital sentence, i.e. involving loss of citizenship, the property

1 Inst. 3. 8. 2; D. 38. 4. 1. pr. Modestinus (D. 38. 4. 9) lays down the contrary view
that there may be adsignatio to an emancipatus. 2 Inst. 3. 8. 3; D. 38. 4. 1. 3.

3 38. 4. 7; h. t. 13. 3. 4 There could be no sale of such a thing, post, § CLXIX.

5 Ante, § cxxxiv. 6 There was no such difficulty in the case of Latins. Their pro-

perty on their death was treated as if it had been peculium all the time, see G. 3. 56 in f.
7 40. 4. 50. 8 As to this and other details not affecting the present point, see ante,

§xxxi. 9 Inst. 3. 11. 1. 10 40. 5. 4. 5; Inst. 3. 11. 1. 11 40. 5. 4. 21.

12 40. 5. 4. 22; h. t. 3.

400 PUBLIC AT10. SC. CLAUDIANUM [en.

of the criminal vested in the State, with limitations and exemptions in
favour of children and others, into which we need not go1. Apparently
there was an administrative enquiry, and only if the estate proved to be
solvent did it vest in the fisc. If it was insolvent it was sold by the
creditors and the fiscus took no account of the matter. If it was solvent
it vested in the fiscus, which paid off the creditors and could claim from
debtors to the estate2. It is not clear whether the creditors could sue
the fiscus in the ordinary way or whether the matter was dealt with
by administrative methods. When the matters had been adjusted,
it was usual to sell the property en bloc to a buyer who resold in
detail, bonorum sector3. He had an interdictum sectorium to obtain
possession of the property4, but there is not usually any question of
universitas5. Our information as to bonorum sectio is however very
scanty.

If the forfeiture was total the publicatus was free of his old debts,
but if he was allowed to retain some of his property he remained pro
rata liable6. But in any case, if he was free, he was liable for his old
delicts7.

SUCCESSION UNDER THE So. CLAUDIANUM. In certain circumstances
women who cohabited with slaves were themselves enslaved and lost
their property with their liberty8 — successio miser abilis. We are nowhere
told what became of the property. The expression successio miserabilis
suggests that it went to children, and this would more or less agree with
the concessions made to children in later law where a criminal's property
was forfeited, but the sc. is older than the earliest known of these con-
cessions9. On the other hand the ordinary forfeiture for crime is to the
State. But as in this case the woman herself passed into private hands,
it is commonly held that her property went to the person to whom she
was enslaved, and that he was liable and entitled by means of actiones
utiles in respect of her estate, and no doubt also to noxal actions. The
whole institution was abolished by Justinian10.

BONORUM VENLITIO^. The details of this system will be most con-
veniently considered in connexion with its most important application,
execution of a judgment12. Here it is enough to say that in cases of
insolvency either inter vivos or at death, with rules varying somewhat in
the two cases, the estate was sold under the authority of the praetor by

i See Buckland, Law of Slavery, 406 sqq. See also as to sc. Claudianum, below.
2 48. 20. 4; h. t. 10. pr.; 49. 14. 1. 1; h. t. 6; h. t. 11; h. t. 17. 3 G. 4. 146. 4 Ib.

5 It is possible that at one time the bonorum sector bought the universitas and was liable
and entitled to utiles actiones, but there seems no clear evidence of this. 6 Ante,

§ xxxvi. 7 Post, § cxcvi. 8 Ante, § xxv. 9 See 48. 20. 7. pr. The sc.

is of A.D. 52. 10 See Inst. 3. 12. 1. 11 See a recent study by Kniep, Mel. Girard,

1. 623 sqq. 12 Post, § ccxix.

ix J BONORUM VEND1TIO 401

a magister bonorum acting on behalf of the creditors. He sold it en bloc
to a person called bonorum emptor, the sale being usually by a sort of
auction, the goods being " addicta" to the person who bid, not the highest
sum, but the highest dividend on the debts1. Our concern here is with
the position of this bonorum emptor regarded as universal successor.
Both Gains and Justinian so describe him2, but the case differs notably
from those already considered. These were civil in character, but here
the succession was purely praetorian, like bonorum possessio3. The
emptor had the goods in bonis, and he or his transferee would become
dominus only by usucapio. But there are other and more striking points
of difference. Properly speaking it was not universal succession at all.
The debtor underwent no capitis deminutio; he remained liable for his
old debts, since he could still be sued for the unpaid fraction4, under
restrictions which do not here concern us5. Indeed it seems probable
that if any creditor had not put in a claim under the venditio he could
sue for the whole debt, though he would not stand to gain anything by
his abstention. But, on such a state of the law, it is difficult to see that
the universitas passed. What passed were the debtor's commercial assets,
and these were technically still his, till the period of usucapio had run.
Thus the debtor's universitas did not vest in the bonorum emptor.
He became bonitary owner of the goods, having also an inter dictum
possessorium to get possession of them6. He could sue debtors to the
estate by praetorian actions, with the Rutilian formula, in which the
bankrupt's name was in the intentio, but the condemnatio was to pay to
the bonorum emptor, in an ordinary case of bankruptcy7, and by another
praetorian type of action, formula Serviana, with a fiction " si heres esset "
if the insolvent was dead8. He did not become liable for the debts, but
only for the proportion of them that he had promised, and this liability
did not rest on succession; it was a result of his contract with the
magister bonorum. It would be the logical result that he could not be
sued by the creditors at all, but was liable only to the magister bonorum
with whom he contracted. It is indeed observable that Gains in describ-
ing the actions deals only with those brought by him9, his other text,
very imperfect, carrying the matter no further10. But Theophilus says
he could sue and be sued by utiles actiones11, and Lenel cites several
texts which in their original form seem to have dealt with action against
the bonorum emptor, but are not quite conclusive on the point against

1 G. 3. 78 sqq. ; post, § ccxix. 2 G. ib. ; lust. 3. 12. pr. 3 G. 3. 80. 4 G. 2. 155
and see Lenel, E.P. 415. 5 See post, § ccxix, and Inst. 4. 6. 40. 6 G. 4. 145.

7 G. 4. 35, 86. As to his obligation of deductio, post, § ccxxxvm. 8 G. 4. 35. It is,

however, nowhere expressly stated that the field of these formulae was so divided. 9 G. 4.
35, 66. 10 G. 3. 81. " 11 Ad Inst. 3. 12. pr.

B. K. L. 26

402 BONORUM VEND1T10 [CH. ix

whom the action was brought1. There seems however no sufficient
reason to reject the statement of Theophilus and the argument from
analogous cases.

It is clear however that the notion of universal succession is of little
use in this case, or in the connected system of bonorum cessio, which is
identical in principle, though the debtor who had voluntarily surrendered
his estate to his creditors had some special protection in the case of
subsequent proceedings against him2.

1 Lenel, E.P. 412. 2 Post, § ccxix.

CHAPTER X

THE LAW OF OBLIGATIONS. GENERAL NOTIONS.
VERBAL CONTRACTS. CONTRACTS LITERIS.

CXLIII. Nature of Obligation, p. 403; Personal nature of obligation, 404; CXLIV. Classifica-
tion of obligations, 406; CXLV. Contract, 409; consensus, 410; interpretation, 411;
CXLVI. Fraud, 412; Metus, 413; Error, 415; CXLVII. Capacity, 416; possibility, 417;
CXLVIII. Dies, 419; condicio, ib.; resolutive conditions, 422; CXLIX. Contract for
heres, 423; for third persons, ib. ; causa as basis of contract, 425; CL. Nexum, 426; CLI.
Fiducia, 427; CLII. Classification of contracts, 430; Verbal Contracts, 431; Stipulatio,
ib.; Form, 432; CLIII. Capacity, 434; Stipulatio by slave, 435; CLIV. Content of stipu-
latio, 436 ; ad diem deberi non posse, 437 ; Exceptio non numeratae pecuniae, 438 ; CLV. Ad-
stipulatio, 440; CLVI. Adpromissio, 441; Sponsio, ib.; Legislation affecting adpromissores,
442; CLVII. Beneficium cedendarum actionum, 445; Beneficium divisionis, 446; Beneficium
ordinis, 447; Release of surety, ib. ; CLVIII. Plurality of principals, ib. ; Solidarity,
varieties, 449; Correality, 450; Regress, 451; CLIX. Simple solidarity, 452; Basis of
distinction, 453; CLX. Dictio dotis, 454; lusiurandum liberti, 455; CLXI. Contract literis,
expensilafio, 456; Varieties, ib. ; Form of the contract, 457; Written contract under
Justinian, 458.

CXLIII. The Law of Obligations is the law of iura in personam, of
rights and duties existing between two or more persons but having, in
general, and prima facie, no bearing on their relations to other people.
It has already been pointed out1 that, while obligatio is classed as a res
incorporalis, and so forms part of the ius rerum, there are not wanting
signs of a view according to which it was not a res but a conception with
a close affinity to the notion of actio. Such a notion makes it a con-
necting link between the two topics. Apart from the texts already cited
it may be noted that Ulpian's Regulae, in the form in which we have
them 2, stop at intestate succession, that both the Digest and the Code
contain the rubric, De obligationibus et actionibus3, and that the associa-
tion is helped by the use of the word "actio" to mean "right of action"
as in the maxim: minus est actionem habere quam rem*.

Justinian's definition of obligatio is: '''Obligatio est iuris vinculum
quo necessitate adstringimur alicuius solvendae rei secundum iura nostrae
civitatis5." The word "vinculum" expresses the tie between the creditor,
reus credendi, and the debitor, reus debendi. "Alicuius solvendae rei" must
be understood in a wide sense as covering any render or service which
could have a money value. The words "secundum iura," etc., mean
merely that it must be such an obligation as the law would enforce6.

1 Ante, § LXVU. 2 The original work covered the whole field; D. 44. 7. 25.

3 D. 44. 7; C. 4. 10. 4 50. 17. 204. 5 Inst. 3. 13. pr.

6 It is suggested that obligation in early law rested on transfer of property. Debere, on
this vie\v=de habere, and in credere the dare is obvious. Debitum and obligatio appear to

26—2

404 OBLIGAT1O |CH.

Obligatio^, like vinculum, implies a tying together, and the same
point of view appears in other terms, e.g., nexum, one of the oldest forms
of obligation, and contractus, an expression which, as a noun, denoted
only certain forms of binding agreement, but, in the form of a verb,
was wider: there were many ways other than contract in which a man
could contract an obligation2. It does not follow that both parties must
be alike bound. Thus in delict and in stricti iuris contracts only one was
obligatus. In such cases, indeed in all cases, an obligatio had two sides:
the right and the duty. Conceived of as a right, it was a res, and that is
the aspect of it which is considered when obligatio is mentioned among
the cases of res. As it was treated as a part of the ius rerum, we should
expect this aspect to be brought out in the definition, but that emphasises
only the duty. In the actual treatment of the subject it is primarily re-
garded as a right, and though this might make little difference, since
the right of A is the duty of B stated in another way, still this conception
of obligatio as a res did in fact affect the discussion. We are told how we
could acquire an obligation, the right, by the act of a subordinate, but
not, in the treatment of obligations, how such a person's act could im-
pose an obligation, the duty, on us. In contract the omission is not
surprising, as, at civil law, no such thing could happen3, but that is not
so in delict; noxal liability was recognised by the XII Tables. But
these matters and contractual liabilities of this type are discussed in
the law of actions, in the course of the explanation of special types of
action.

The intensely personal nature of obligatio was one of its most marked
characteristics. It was evidenced to some extent by the fact that it
could not be assigned, but few rights were assignable. More significant
is the fact that it was, in general, impossible at any stage in Roman Law
to acquire, directly, a right of this character through a transaction by a
third party4. The same rule had held at one time in iura in rem, but it

express one and the same idea, and are so used by the jurists. But it has been suggested
that the ideas are properly distinguishable, debitum (Schuld) signifying that a relation
exists under which one "ought" to pay, and the other receive, and obligatio (Haftung)
signifying that the liability can be enforced. See, for a recent statement of this view,
and some suggested applications, Cornil, Mel. Girard, 1. 199 sqq. Contra, at least as to
Roman Law, Duquesne, N.E.H. 37. 125 sqq. See also Koschaker, Z.S.S. 37. 348 sqq.,
reviewing Steiner, Datio in solutum.

1s The notion of obligatio as a bond is too abstract to be very ancient. The word is rare
before Gaius. Cicero uses it, but hardly in a juristic sense (e.g., Ep. ad Brut. 1. 18.
3). Obligare, as old as Plautus, is used by Cicero in a juristic sense (see, e.g., pro Caec. 3.
7; pro Mur. 2. 3). It is not till later that the notion of obligatio as such is disentangled
from actio, and the classifications of obligationes are later still. 2 See G. 3. 91, and cp.
Inst. 3. 14. 1. As to this notion of binding, in terminology, and its possible history, see
Beseler, Beitrdge, 4. 92 sqq. 3 Obligatio is essentially a civil conception in classical

law. Post, § CXLIV. 4 As to limitations and modifications, post, § CXLJX.

x] PERSONAL NATURE OF OBLIGATIO 405

had disappeared, as to iure gentium transactions, in later classical law1.
In contract it never did. If a man's procurator bought a horse for him,
the transfer to the agent vested the horse in the principal, in later law,
but rights and liabilities under the contract were in the agent, and would
have to be transferred by the device which evaded the difficulty that
such things could not be assigned2.

Obligatio was so intensely personal that it seems that, at one time, it
died with the party liable. This indeed was always so in delict, but in
very early law it seems to have been not less true in contract3. The
earliest forms of stipulatio that we know anything about are sponsio
and fidepromissio and neither of these bound the heres. Long before the
Empire, however, ordinary promises of res, certain or uncertain, bound
or benefited the heres. An essentially personal service, e.g. to paint a
portrait, could not be understood of the heres either way (apart from
action on a breach committed before the death). Some jurists seem,
however, to have carried the matter further and to have held that a
promise of service of any kind was essentially personal and did not pass
either way, but there is little trace of this in the texts4. Justinian ad-
verting to the dispute, provided th&tfacere and dare were equally trans-
missible both ways5, and no surviving prae-justinianian text adverts
to a contrary rule6.

Another kind of question brings out the personal character of
obligatio. If a slave made a contract, e.g. of hire, and the master dealt
negligently with the property, or vice versa, what were the resulting
liabilities? Obligatio being personal, could the act of A be breach of a
contract made by Bl In the first case put the rule seems to have been
that the master's culpa could not make him liable on the contract7,
though if he had damaged the thing he might be liable in delict, under
the /. Aquilia. Any dolus would subject him to the actio doli, and here
the law went further and allowed this dolus to come into account in any
bonae fidei transaction, under the "ex fide bona" clause in the formula9.

In stricti iuris contracts earlier law knew no remedy but the actio
doli, but later law, perhaps later classical law, gave an actio utilis on the
contract itself9, this way of dealing with it shewing that it was outside

1 Ante, § xcix. 2 Post, § CLXXXIX. 3 We hear at a relatively early date of

sons seized under a liability of their father (Livy, 2. 24). but the father is alive. See post,
§ CL. 4 22. 3. 9; 45. 1. 133; 46. 3. 31 have been cited in this connexion from the time
of the Gloss. 5 C. 8. 37. 13. There was of course no difficulty about liability for

breaches before the death. 6 See G. 4. 113. Contracts were of course often made

so as not to include the heres, e.g. 45. 1. 56. 4. 7 No text states such a liability.

8 13. 6. 3. 5; 15. 1. 36. In fiducia there was a special clause in the Edict, bringing into
account dolus by the paterfamilias of the actual fiduciary, Lenel, E.P. 234. 9 45. 1.

49. pr. It is not good authority. Demand seems to have been made under the liability de
peculio, putting the master in personal "raora."

406 CLASSIFICATION OF OBLIGATIONS [CH.

the true scope of the contract. The case of negligence of the slave under
the master's contract was the subject of much discussion. The earlier
view was that this gave no action on the contract, but only, in appro-
priate cases, a noxal action for delict, but there were early supporters
of another view, i.e. that action on the contract would lie, but that the
master could avoid liability by handing over the slave1. This was not
noxal surrender, since the action was not in delict, but it gave a similar
result. This view prevailed in the time of Justinian2; it recognises the
principle that in strictness the master is not liable.

CXLIV. CLASSIFICATION OF OBLIGATIONS. In his treatment of
obligatio Justinian follows, in the main, the order and treatment of
Gaius. But while Gaius has little to say of obligationes honorariae3,
Justinian at the beginning of his discussion states his "summa divisio"
as into two classes, civil and praetorian, the former created by statute
or recognised by civil law, the latter by the praetor, "ex sua iurisdic-
tione*." He then states what he calls a " sequens divisio" which is in
fact that of Gaius, based on the nature of the fact creating the obligatio,
amplified by the addition of the heads of quasi-contract and quasi-
delict. This is the division followed in his treatment, and though he does
deal with important praetorian obligations in delict, he says little of
them in contract, and nowhere marks them off as a class under the head
of obligatio5. Thus, for the purpose of statement of the law, the important
division is into four classes.

1. Contract, which can be loosely defined as actionable agreement.
This is not exact, as certain pacts gave actions but were not called
contractus. What Gaius means is those agreements which in classical
law gave a civil law action6. Justinian merely follows Gaius.

2. Quasi-Contract. This may be defined as an obligation which arises
without agreement or wrong done, but it is much more analogous to

1 Coll. 12. 7. 9; D. 19. 2. 25. 7; 47. 1. 2. 3; cp. 47. 2. 62. 5. The case is different if the
master had been negligent in choosing the man to carry out the contract. Coll. 12. 7. 7.
2 9. 2. 27. 11. 3 Gaius in fact knows nothing of obligatio honoraria. For him, and

probably for all jurists of that age, obligatio is a civil conception. He mentions obliga-
tions which are in fact purely praetorian (3. 192, 209), but these are offshoots of civil
obligation. He says nothing of obligations "quasi er delicto," and the only case of quasi-
contract he mentions is civil (3. 91). He treats only of civil modes of discharge: his
language in 3. 181 being very significant. What he has to say of what are in fact prae-
torian obligations he says under the law of actions. He contemplates the praetor as capable
of giving actiones, but not of creating obligationes. 4 Inst. 3. 13. 5 G. does not here
mention this summa divisio. Elsewhere (e.g. 4. 110) he speaks of actions given by the
praetor, and Paul (Coll. 2. 5. 4) speaks of actio honoraria or civilis, based on civil law or
praetorian jurisdiction, which means the same thing so far as it deals with obligatio, but
is wider. 6 Fiducia answered the definition, but was not called a contract; as to

the reason, post, § CIJ.

x] CXASSIFICATION OF OBLIGATIONS 407

contract than to delict. Its somewhat heterogeneous content will be
discussed later.

3. Delict. Obligation arising from a wrong, which may or may not
be in connexion with a contract. Not all delicts are expressly treated in
Gains or the Institutes, but only four important cases, all known to the
civil law. For though iniuria is, as we know it, mainly praetorian, Gaius
is careful to state its origin in the XII Tables1, and rapina is a deriva-
tive of furtum.

4. Quasi-Delict. This is not in Gaius ; the cases treated hereunder by
Justinian are all praetorian ; the principle of distinction from delict will
be considered later2.

Gaius admits that his division into two heads is inexact, and involves
treating under contract some things which are not contract3, and in the
Digest he appears as classifying obligations under three heads, contract,
delict and "ex variis causarum figuris*." There are long citations from
his "liber aureorum5" which are the source of Justinian's passages
dealing with quasi-contract and quasi-delict, and suggest that these
are what Gaius means by "variae causarum figurae," but do not suggest
that all obligations must come under one of these heads. But these
texts are in all probability very freely interpolated6.

These are not the only classifications we find. Modestinus says:
"obligamur aut re aut verbis out simul utroque aut consensu aut lege aut
iure h onorario aut necessitate aut peccato1 '." Here the first three are contract
and the others presumably cover everything else. But the classification
seems to pass from a basis in the fact creating the obligation to one in
the authority by which it is enforced, with resulting overlapping, so
that neither the classification nor his illustrations give much help.
The class "lege" is defined but not illustrated, as is the case also
with "iure honorario." There were in fact a great number of obliga-
tions which might come under these heads, in particular the latter8.

There were other distinctions of some importance. Leaving out of
account merely moral obligations, not recognised by law, not all which
the law would enforce were equally enforceable. Most were enforceable
by action, but there were a few cases in which the law did not allow an
action but did allow enforcement in indirect ways. There were cases in
which a claim could be enforced only by way of retention, not by action.
Thus the defendant in a real action could resist the claim unless reim-

1 G. 3. 223. 2 Post, § cciv. 3 He calls his division the siimma dirisio, 3.

88; 3. 91. But he does not mention quasi -delictal obligations at all. 4 44. 7. 1. pr.

5 44. 7. 1, 4, 5. 6 See Mitteis, Rom. Pr. 1. 86. 7 44. 7. 52. 8 Many

of them will appear under the head of actions: in this case, even more than elsewhere, for
historical reasons, the matter is persistently looked at from the point of view of procedure.

408 CLASSIFICATION OF OBLIGATIONS [CH.

bursed for certain expenses1, but could not recover them by independent
action. There was the same right where a creditor sought to enforce a
pledge against a bonafide holder2. The husband's right to deductions in
returning dos was in later law also enforceable by condictio, but the
existence of this latter right was still disputed in late classical law3.
The holder in commodatum or deposit had this right of retention appar-
ently before he acquired an actio contraria, and at the beginnings of the
contract of pledge this right of retention of the res was, it seems, the only
right conferred by it4.

There is also a classification into obligationes civiles, actionable at
law, and naturales, enforceable only indirectly, e.g. by way of set off5.
But the expression obligatio civilis is itself ambiguous. An obligation
might be enforceable by a civil law action or by an action given by the
magistrate. The former were obligationes civiles, in a narrower sense,
the latter being obligationes honorariae*. Again, of civil obligations
in this last sense, some were always such, having their origin
in the old civil law; others, originally praetorian, acquired civil
law actions only later. These are sometimes said to be "iure civili
comprobatae7 '/'

All these classifications are classifications according to the mode of
origin, but there are others of a different type. Thus obligatio might be
unilateral, where one party only was bound, as in delict and stricti
iuris contract, or bilateral, where there were duties on both sides, as in
sale and many other cases, or, while primarily unilateral, they might in
certain events create obligations both ways, as in deposit, commodatum,
mandate, tutela, etc. — imperfectly bilateral8. Again they might be either
to do or to give or to abstain. They might be principal or accessory, such
as those of a surety. They might be for a cerium or an incertum, a dis-
tinction having important effects in procedure, or bonae fidei or stricti
iuris9, with similarly important effects (a classification differing from the
others in that it is not exhaustive; there were many obligations which
were neither). Again they might be either divisible or indivisible, a
distinction obvious in its nature but not so simple in its application,
having its chief importance in connexion with performance (solutio)
with which topic it will be considered10. Or they might be simple

1 Post, § ccxxvm. 2 20. 1. 29. 2. See, for another case, 3. 5. 17. 3 25.

1. 5. 2, and perhaps is due to Justinian, Schulz, 235. 34. 57 sqq. 4 Post, § CLXVT.

5 Post, § CLXXXIX. 6 Inst. 3. 13. 1. 7 This name does not appear in the sources

but it is suggested by such texts as Inst. 3. 13. 1, though the class here spoken of as
comprobatae would cover all not based on statute, but recognised at civil law. 8 There
is no Roman authority for this description. It is of little value in any case, and on the
views now held by some writers as to some of these cases (post, § ccxxxiv) it would be of
very narrow application. 9 This distinction applies properly to the remedy, rather

than to the obligation. 10 Post, § cxcm.

x] CONTRACT 409

or alternative, e.g. to give A or B, a distinction which also will arise in
connexion with solutio1.

The very artificial nature of Justinian's classification should be
noticed, at the cost of some anticipation. He mentions four sources of
obligation. He gives four types of contract, omitting innominate con-
tracts and actionable pacts, which, in view of the late development of the
former and the praetorian character of the latter so far as they were
known to classical law, Gaius might reasonably do, but hardly Justinian.
He gives four contracts "re," and four consensual contracts, though
pacta praetoria and legitima are not really distinguishable under Justin-
ian. He gives four delicts, though in fact there were many others and
two of these four, furtum and rapina, were really one. He gives four quasi-
delicts. This symmetrical scheme obviously does not correspond with
practical facts.

CXLV. CONTRACT. A contract was, subject to a small correction
already indicated2, an agreement enforceable by action at law. It
involved a concurrence of two wills as to future conduct of one or both
of the parties. Such a concurrence, to be capable of proof, must be in
some way expressed. The law might hold that any expression sufficed,
that the moment agreement was proveable there was a contract. Roman
Law did not take this position ; it started from the point of view that an
agreement was not enforceable unless there was some reason why it
should be. At first, like other systems, it found this reason in Form.
The oldest contracts of Roman Law are formal contracts; owing their
validity to the fact that they are expressed in a certain way, with the
corollary that this form was the essential. If that was correctly gone
through it was immaterial whether real consent was present or not3.
But of those of which we have any knowledge it is probable that nexum
alone answers strictly to this conception. Consent is at any rate em-
phasised in stipulatio*. The contracts "re" mark a certain further ad-
vance; for a very limited number of transactions the principle was
recognised that the agreement became a binding contract if the subject-
matter was handed over for the concerted purpose.

A further development5 was the consensual contracts. For a small
but commercially important group of contracts the principle was ac-
cepted that mere consent, however evidenced, should suffice. All these
steps had been taken by the beginning of the Empire. This course of
progress, resulting in the existence of distinct groups of contracts makes

1 They may also be simple or subject to a modality, e.g., dies or condicio. See post,
§ cxLvm. 2 Ante, § CXLIV. 3 Thus, as we shall see, it was only gradually and

imperfectly that the law took account in these contracts of factors affecting the reality of
consent. 4 2. 14. 1.3. 5 Historically perhaps earlier.

410 CONSENT [CH.

it difficult to lay down any general theory of contract for Roman Law.
It is somewhat easier for the modern Roman Law in which formal con-
tracts have ceased to play a part, but for the classical and even the
Justinianian law there are at least two theories of contract, that of the
formal (or rather stricti iuris) contracts, and that of the bonae fidei con-
tracts1. In stating the general principles of contract this distinction has
constantly to be borne in mind.

A contract involves agreement, consensus, concurrence of two minds,
and this must exist at the moment when the contract is made. This
moment would be readily determined in nexum (assuming that this is to
be treated as a contract), and almost equally readily in stipulatio, where
the question and answer ordinarily occurred substantially together.
But even here there might be difficulty. If the offer and acceptance
were not at the same time (and essentially all contracts can be reduced
to offer and acceptance) it would be difficult to prove that the stipulator's
intent still existed at the time of the promise. Accordingly it was laid
down that they must be substantially continuous. Thus, says Ulpian,
if the stipulator left the room before the answer was given, there was no
stipulatio, unless indeed it was only for a moment, and he duly returned
and got his answer2. Again, if, after the question was asked, the stipu-
lator attended to other business, apromissio later in the day was useless3.
On the literal contract we have no information; we do not know how
the debtor expressed his assent to the entry, but in the actually re-
corded cases it seems to have been on the spot4. In the contracts "re"
there was ordinarily little difficulty, since the acceptance of the thing
was normally acceptance of the contract. But in the consensual con-
tracts and especially in sale and hire, it is obvious; that much business
was done by correspondence. Questions must have arisen whether an
acceptance was prompt enough, whether an offer was still open, and so
forth, but they are not represented in the legal texts5.

As the only possible evidence of a man's intent is external facts there
has been some controversy on the question whether the law is really
concerned with his intent, or whether it is not more exact to say that for
legal purposes there is no difference between a man's intent and the

1 Mutuum, loan of money, is a stricti iuris contract though not formal, but in fact
many of its rules were laid down before it was conceived of as a contract at all, post,
§CLXH. 2 45. 1. 1. 1. 3 45. 1. 137. pr.; 45. 2. 12. pr. 4 Cicero, o'e Off. 3. 14. 58.
5 There seems to be no evidence whatever on the rule which must have existed that an
offer could not be accepted after a reasonable lapse of time. There is no direct evidence, for
contract, as to the effect of death of a party on an unaccepted offer: the texts which can
be adduced dealing with other types of transaction suggest that either death of a party,
or death and notice of the death, usually caused the offer to lapse (e.g. 12. 1.41; 39. 5. 2. 6;
h. t. 19. 3; see Regelsberger, Pandekten, 1. § 150; Windscheid, Lehrbuch, 2. § 307).

x] INTERPRETATION 411

expression of it in external acts and events. The Romans do not discuss
this abstract question, ex professo, but appear to have taken the view
that where intent was material it was his real intent, and to have drawn
some remarkable conclusions1. But the controversy has played a con-
siderable part in the discussion of two practical questions which we must
now consider2: first, the interpretation of what purports to be a contract,
secondly the question how far, when the meaning has been made clear,
the agreement propounded represents a real "will" of the parties.

In dealing with formal contracts from the first point of view, stipu-
latio was taken as the type. Ambiguous stipulations are dealt with in
several texts. Some of these must be disregarded in laying down a
general rule, as they dealt with creation of dos, which had specially
favourable treatment3, and others, though they appear in the Digest in
a general form, applicable to all transactions, were originally written of
legacy, also exceptionally treated4, so that it is unsafe, even for Justin-
ian's law, and quite impossible for classical law, to apply them generally.
Setting these aside, the first rule was to look at the dealings apart from
the formal words so as to gather the meaning5. If this did not help, the
common local usage of such words must be considered6. If that failed,
there was a rule that the words must be so construed as to make the
transaction effective. Thus a stipulation for payment "on the Kalends
of January" meant the Kalends of next January, otherwise the debt
need never be paid7. If all these failed the rule was that the words were
to be construed in favour of the promissor, to lessen the obligation, not
to enlarge it8. But if the words were clear the promissor could not
insist on an interpretation favourable to him, other than the plain
meaning9.

The same question might arise in bonae fidei contracts, especially in
the loosely constructed consensual contracts; it is in fact discussed
almost exclusively in connexion with Sale. The rules were much the
same. The course of negotiations (quod actuin est) was of primary im-
portance10. Usage was also to be considered11. Apart from this, ambigu-

1 Post, § CXLVI. 2 Also in the question at what moment a contract made by

correspondence is complete. See Schuster, German Civil Law, 87, for the different solutions
reached by modern systems. 3 23. 3. 2; h. t. 70; 50. 17. 85. pr., etc. 4 50. 17. 12;

h. t. 56, etc. See Windscheid, Lehrb. § 84. 5 2. 14. 4. 3; 50. 17. 34. 6 50. 17. 34;

h. t. 114. 7 45. 1.41.pr.;h. t. 80; 50. 17. 67. 8 34. 5. 26; 44. 7. 47; 45. 1. 38. 18;

h. t. 99. pr.; 50. 17. 34; illustrations 2. 15. 5; 45. 1. 106. " Benignior" solution means no
doubt the same thing, so far as generally applicable, but these texts (e.g. 34. 1. 20. 1;
50. 17. 56; h. t. 168. pr. ; h. t. 192. 1) were written of legacy and dos and "benignior" is
a suspicious word. 50. 17. 96 was written of wills. 9 45. 1. 99. pr.; h. t. 110. 1 (which

looks like a contradiction but must be interpreted by the facts). The document is construed
as a whole and general words may be limited by other provisions, 50. 16. 126. 10 18. 1.

6. 1; h. t. 33; h. t. 40; h. t. 77; h. t. 80. 2; 18. 2. 2. pr.; 50. 17. 172. pr. 11 21. 1. 31. 20.

412 DOLUS [CH.

ities were to be construed against the party who formulated the pro-
posals, as in stipulatio, with the difference in effect that, there, this was
necessarily the stipulator, while here it might be either party. But the
texts laying down the rule commonly treat the vendor as theformulator1,
and where this is not expressly said but the ambiguity is construed
against him, the transaction is usually called a venditio, implying that
the proposals emanate from him2, probably the usual case. Some texts
which seem to deal with ambiguities and to give a different result are
merely assigning the recognised meaning to the expressions used in the
contract3. These rules were subject to an exception. If the difficulty
wras created by the mistaken or fraudulent act of the vendor's slave, the
vendor was not prejudiced. Thus where land was sold by description
and the vendor's slave, in pointing out the boundaries, included other
land, the land sold was what was covered by the description4, an applica-
tion of the principle that a slave could not, without authorisation, make
his master's position worse.

CXLVI. Assuming the real meaning of the agreement arrived at,
the question now arose, how far this represented a real intent. Was there
anything in the circumstances to suggest that there was no real consent?
Often, of course, the facts would shew that there was no intent to set
up a legal relation5; apart from such cases this is the question, whether
there had been any fraud (dolus), duress (metus), or mistake, and, if so,
what was its effect?

Fraud. Dolus. This may have caused such a mistake as would vitiate
the agreement even apart from fraud. In other cases the rule was
clear. A consent induced by fraud was none the less a consent. In
stricti iuris transactions the fraud had, till the time of Cicero6, no effect
on the liability. But thereafter the exceptio doll could always be pleaded
in reply to a claim on a contract induced by fraud, and there was an
actio doli where the matter had been completed7. In bonae fidei con-
tracts there was no difficulty; the words " ex fide bona" in the formula
of the action enabled the injured party to prove the fraud, if he was sued,
and, conversely, to claim on account of it if he sued. The result was not
the same in the two types of contract. In the last group, the index,
taking notice of the dolus could, in appropriate cases, diminish the con-
demnatio without actually absolving the defendant8. But in a strictum
indicium, if the exceptio doli was proved, the action was lost, and the

1 2. 14. 39; 18. 1. 21 ; 19. 1. 21. 6. 2 8. 3. 30; 18. 1. 33; h. t. 77; h. t. 80; 50.

17. 172. 3 18. 1. 40. 1; h. t. 80. 2; 50. 16. 90; h. t. 126; h. t. 169; h. t. 205; cf. 8. 2.

17. 3. 4 18. 1. 18. 1. 5 44. 7. 3. 2; h. t. 54. 6 De off. 3. 14. 58 sqq.,

"nondum enim C. Aquilius, collega et familiaris meus, protulerat de dolo malo formulas."
7 4. 3. 1. 1, if there was no other action, but condictio sine causa would sometimes be
available. 8 E.g. 19. 1. 41.

x] METUS 413

right of action consumed. It may also be observed that on the wording
of the exceptio doli1, the action was lost if any fraud was proved, even
though on the facts it did not induce the contract, e.g. was a minor
matter which would not have affected the decision of the party. But
we are told that the exceptio doli lay on the same grounds as the actio
doli, and that this action did not lie for small matters2.

Duress. Metus. The duress contemplated by these rules was not mere
threats of evil consequences, but an immediate menace of death or
extreme physical injury to the party or his family3. In the older texts
it is constantly coupled with vis*, and the line between physical com-
pulsion, which would certainly make the act unreal, and such threats as
these is not readily drawn. It might easily be held that consent given
under such pressure was no consent at all and the transaction therefore
a nullity, but that does not seem to have been the attitude of the law.
The chief points to be made out of the texts on the matter are these.

The ancient formal transactions were certainly valid at civil law,
even if they resulted from metus : the praetor, in historic times, gave the
necessary relief. A mancipatio, metus causa, was valid, but the res
remained "in bonis" of the victim5. This rule had however nothing to
do with consent ; it expressed the fact, already noted, that in the ancient
formal transactions if the form were duly gone through, consent was
immaterial6.

There are a few texts which speak generally of transactions affected
by metus as being simply void7. Some of these concern manumissions,
and as there could be no setting aside of a manumission which had taken
effect8, the only way in which to do justice was to declare it void ab
initio, so that these are not in point. The other texts are general in their
language and are commonly construed to mean only that relief was
given in such cases. But, for the most part, this is not their natural
interpretation, and one or two cannot be construed otherwise than as
excluding voluntas and declaring absolute nullity9. Other texts however
speak of consent thus obtained as nevertheless consent: "quamvis si
liberum esset noluissem, tamen coactus uo/ui10." And the titles dealing
with these matters contain a number of texts which treat the trans-
action as valid iure civili, but as subject to praetorian relief, restitutio in
integrum in some form. But the title in the Digest dealing with relief for
metus does not anywhere discuss bonae fidei transactions, though that

<, § ccxxra. 2 4. 3.9. 5 ; 44. 4.2. pr. 34. 2. 3sqq. 4 E.g. Cicero,

ad Quint, fr. 1. 1. 7. 21; cf. D. 4. 2. 1. 5 G. 4. 117; P. 1. 7. 6-8. 6 The same

consideration applies to fraud. 7 The chief texts on metus outside D. 4. 2 and

C. 2. 19 are G. 4. 117; P. 1. 7. 4-10; Fr. D. 7; Cons. 9. 3; C. 8. 38. 5; D. 23. 2. 22; 29. 2. 6. 7;
40. 9. 9; h. t. 17; 44. 4. 4. 33, 34; 50. 17. 116. 8 4. 4. 9. 6; Fr. D. 7; D. 40. 9. 9; h. t.

17. 9 Cons. 1. 3 sqq.; 29. 2. 6. 7. 10 4. 2. 21. 5.

414 ERROR [CH.

in the Code does contain late legislation assuming praetorian relief in
such cases1.

It seems at first sight on this state of the texts that bonae fidei
transactions affected by metus must have been simply void. But when
it is remembered that so long as the matter was in the contractual stage
and there had been no performance, the ordinary machinery of the
bonae fidei indicium gave protection, it seems better to accept what is
now the dominant view that in this case also the voluntas was supposed
to be present, though the praetor would if necessary relieve. But
the conflict in the texts cannot be ignored out of existence, and it
must be supposed that there was an opinion other than that which
prevailed2.

Error. Here the matter is from one point of view simpler. If
assent was given, on the assumption of the existence of certain facts,
and they were not as assumed, there may be said to have been consent,
not to what was actually proposed but to something else. Thus, wherever
mistake affected the contract, it did so on the ground that there was no
consent and the agreement was void. But on the important question
when mistake did so affect the contract, it is difficult to draw any
rational conclusion from the texts.

In the case of stipulatio a mere error in drawing up the usual cautio
could be corrected. If what the parties had intended to stipulate was
clear, the writing was overridden3, and it may be safely assumed that
the same rule applied elsewhere. But the question arises, where the
words of the stipulatio were clear, how far a party might plead that they
were not what he meant. We are told in several texts that error excluded
consent4, but that is not helpful till we know the limits of the rule. The
general effect of the texts is that where there was no doubt as to the
identity of the subject-matter the contract is valid whatever mistake
there may have been as to its qualities5. But where the parties were
actually thinking of different things, there, as there was no consent,
there was no contract6. This is clearly stated in the Institutes and the
Digest7. Naturally this does not mean that a mere assertion of the
error sufficed ; it must be proved. Even so it is a doctrine out of harmony
with the principles of formal contracts, and it is sometimes explained as
meaning that there was no contract even though the words were clear, if,
on the facts, they were understood by the other party as used in

1 C. 2. 19. 3, 4, 5. But in all these cases the property has been handed over, so that it
is relief against transfer of property, not contract. 2 Modern writers have produced

many theories, shewing nullity on one state of facts and relief on another, but there is no
agreement as to basis. See Windscheid, Lehrb. § 80, n. 2. 3 2. 14. 4. 3; 50. 17. 92;

C. 4. 22. 1. 4 2. 14. 1. 3; C. 1. 18. 9. 5 4. 3. 38; 12. 6. 32. 3; 45. 1. 22; h. t. 32.

6 34. 5. 3. 7 Inat, 3. 19. 23; D. 45. I. 137. 1.

x] ERROR 415

another sense. But this involves a forced interpretation of explicit
texts1.

There seems to be no direct information as to the effect, in stipulatio,
of error as to the identity of the other party, but from certain texts, in
the law of theft, it appears that if A agreed to lend money to X,
believing X to be Y, and stipulated for its return, the whole transaction
was a nullity2.

In bonae fidei contracts the rules in case of error are mainly stated
in connexion with Sale. At first sight the principles look very different.
The guiding rule was that fundamental error avoided the contract, but
when we have to determine what was fundamental error, there is nothing
for it but to enumerate the forms of error which are declared to vitiate
the contract. Error in negotio avoided it, e.g. where one party thought
it a sale, the other a loan3, a point which could hardly arise in formal
contracts. Error as to identity of what was sold avoided the contract,
if it was as to the principal thing, not where it affected only an accessory 4.
Error as to quantity or price avoided it if it was to the prejudice of the
party under the error, but not otherwise5. Error as to the person with
whom the contract was made does not seem to be discussed, but it was
material in some obvious cases and probably was so treated, e.g. where
A intended to let a farm to T, a good farmer, but the person who pre-
sented himself was another T, not such. No doubt the rule was as in
stricti iuris contracts6.

There remains the case commonly called error in substantia. The
texts do not tell a very consistent story, but the view generally held,
which gives on the whole the best account of the texts, is that error as
to the qualities did not affect the contract, unless it was of such a kind
that the thing differed so widely from what it was supposed to be as to
be in a distinct commercial category, e.g. where it was supposed to be
gold but was in fact copper or plated, vinegar instead of wine, an ancilla
instead of a man7. Another opinion is that the distinction must be such
as would have determined for or against the purchase8. But apart from
the indefiniteness of this it does not suit the texts, for many differences
which might well have put off the buyer did not affect the contract if

1 A similar rule is applied in wills where there is no question of the other party's
understanding, 28. 5. 9. pr. ; 30. 4. But here there is not the same difficulty. In wills,
intent rules. 2 Arg. 47. 2. 43. pr. -3; h. t. 67. 4; h. t. 76. Cf. 12. 1. 32, where it was

mutuum and the mistake of identity prevented the property from passing. 3 44. 7.

3. 1 ; 12. 1. 18. 1. This must be distinguished from mistake as to the legal effect of the trans-
action gone through. If a man buys by stipulation and counter-stipulation, is it any
defence to shew that he meant it to be emptio venditiol See 2. 14. 7. 12 (interp.). 4 18. 1.
9. pr.; h. t. 34. pr. 5 19. 2. 52. 6 See Savigny, System, 3, § 136. 12. 1. 32 is

in point. 7 18. 1. 9. 2; h. t. 11. 1; h. t. 41. 1. See the account of the authorities in

Moyle, Sale, 55. 8 See Windscheid, Lehrb. § 76, n. 9.

416 CAPACITY [CH.

it was actually made, e.g. the article was of low carat gold instead of high
carat1. But the explanation preferred above is only a rationalisation of
the texts: it is not formulated by the jurists, and probably was never
definitely conceived by them. Further, it was, at best, the rule of later
classical law ; there was an older view which refused to take mistake of
this kind into account at all as affecting the validity of the contract2.
Again, many texts raise the hypothesis in the form "si aes pro auro
veneat," and it has been contended3 that the texts are not dealing with
mistake at all, but with representations, express or tacit, made by the
vendor, innocently or not, and only lay down the rule that if, e.g., a thing
is expressly sold as gold and is copper, there is no sale. On this view
misdescription "in substantia" prevented a contract from arising, but
misdescription on a minor point merely gave a claim for compensation.
But there are texts which cannot be dealt with in this way4. Two further
remarks are needed. Even though the mistake (which has nothing to do
with fraud) prevented a contract from arising, another legal relation
might exist. Thus, if the thing had been delivered, the ownership might
have passed: there would be a condictio on the one hand to recover the
thing, and on the other for recovery of any price paid5.

CXLVII. Capacity. Since contract depended on consent the parties
must be capable of consent. We have already considered the capacity
of pupilli, women under tutela, lunatics, prodigi, Latins and peregrines6,
but something must be said of persons in potestas. Males over 14 had
full contracting power, but the right under their contract vested at once
in the paterfamilias, except so far as the contract concerned the peculium
castrense or quasi castrense, as to which they were treated as patres-
familias7. Conversely at praetorian law the paterfamilias was liable
under their contracts (with the same exception8), as in the case of slaves9.
But they themselves were liable at civil law. Their castrense peculium,
however, was not liable on contracts which concerned the paterfamilias,
so that the point became important only when the filius became sui
iuris. But if this was by emancipatio, the civil liability was destroyed
by the capitis minutio, and-, in any case, if the son did not succeed to
the father, the action might be unjust. The praetor dealt with the matter
in an edict which provided that if the son had not succeeded to the

1 18. 1. 10. It may be noted that 18. 1. 14 in f. seems in conflict with the general rule,
but it is not clear what inauratum means. 2 18. 1. 45; Mackintosh, Sale (2), 94. n.

3 Leonhard, Irrtum, § 26, as part of a wider thesis. See also Vangerow, Pandekten (7),
3. 266. Recent writers find Stoic notions at the bottom of this conception of error in sub-
stantia. See the review of Leonhard, 2nd Edn, by Henle in Gott. Gel. Anzeigen, 1908,
429 sqq. 4 E.g. 18. 1. 11; h. t. 14. 5 12. 1. 32; 12. 6. 7; h. t. 12, etc. Error

on the part of a representative, post, § CLXXXIV. 6 Ante, §§ xxxiv, xxxvi, LVI, LXI.

7 49. 17. 4. 1. 8 49. 17. 18. 5. 9 Post, § CLXXXIV.

x] POSSIBILITY 417

father, then, whether he had become sui iuris in such a way as to destroy
the action, or otherwise, an action would lie against him, subject to
" beneficium competentiae, " and only '''causa cognita," a restriction which
allowed the refusal of any action, or of an action in solidum, if the
circumstances called for this1. Action might indeed be brought while
he was still alieni iuris, but actio iudicati was deferred2. If he was under
14 at the time of the contract, it seems that he cannot have been liable
any more than one under tutela would, and there is no question of
auctoritas in this case. In the case of females there has been much con-
troversy. The better view seems to be that the rules were as in the case
of males, with however a very different result. They were capable of
acquiring by contract, but incapable of binding themselves, so long as
the perpetual tutela of women lasted3.

The only other general requirement of contract which need here be
considered is that it must be possible. The general rule was that an
agreement for an impossibilitj^ was void. Such impossibility might be
of either of two kinds ; physical or legal. Physical impossibility meant
inconceivability, what was contrary to the nature of things, a promise
to touch the sky with one's finger, a sale of a hippocentaur and so
forth4. Legal impossibility is exemplified, e.g. by promise or sale of a
res sacra or the Forum5. The mere fact that it was impossible to the
party was immaterial. If A undertook to paint a portrait as good as
one by Apelles or to sell land which was not his, both were in a sense
impossible, but that was no defence ; if he did not carry out his contract
he would be liable6.

A thing actually impossible in fact or in law might not be obviously
such. In this case the classical law, especially in case of legal impossi-
bility, and only in bonae fidei contracts, especially sale, gradually ad-
mitted a certain modification of the strict rules. Where one actually
free was sold, in good faith, as a slave, the later classical law gave an
actio ex empto, for which Paul's reason is that it is difficult to tell a slave
from a freeman7. Where ager religiosus was so sold, Ulpian says that
there was an actio infactums. This implies that there was no valid con-
tract, whereas in the case of the freeman it is clear that the transaction

1 14. 5. 2 sqq. 2 14. 5. 5. 3 See the discussion of this case by Girard,

Manuel, 475 sq. ; ante, § XLVHI. 4 G. 3. 97; Inst. 3. 19. 1 ; D. 45. 1. 35. 5 18. 1.

22; h. t. 4; 45. 1. 83. 5; h. t. 103, etc. 6 45. 1. 137. 5. As to the general notion of

impossibility, ante, § civ, and Rabel, Mel. Gerardin, 473 sqq. He discusses the history of
the word itself (impossibilis) which he holds, citing Wolfflin, to be not earlier than about
Trajan's time, the idea having been expressed by "not in the nature of things," etc. He
points out also that the general formula, " impossibilium nulla obligatio" (50. 17. 185), is
not expressly applied to b. /. contracts. 7 18. 1. 4-5. 8 11. 7. 8. 1. According to

Lenel (E.P. 221) this is edictal.

B. R. L. 27

418 POSSIBILITY [CH.

was a real sale. In later law, but perhaps not till the time of Justinian,
this and other similar cases of legal impossibility were on a level with
that of the freeman, and there was an actio ex empto1. If the buyer was
aware of the facts he had of course no remedy. Conversely the fact that
the vendor was aware of the facts would not bar the buyer, and it may
be inferred from other rules of sale that an innocent vendor had only to
return the price, while, if he was fraudulent, consequential losses might
come into account2.

In contracts stricti iuris none of these developments occurred. The
promisee had no remedy except those resulting from dolus, the actio doli,
or, if he had stipulated against dolus, an action on that stipulatio, which
had the advantage of being perpetual3. But this gives rather a false
impression. A stipulatio for a piece of land which was. in fact a res
religiosa would not usually be by way of gift ; other transactions would
be connected with it. Thus it might be that other property had been
transferred in return for the promise. In such a case this could be
recovered by condictio sine causa, even though the other party was
innocent 4.

Another type of impossibility was that in which a thing sold had
ceased to exist at the time of the contract. Here, whether the vendor
knew this or not, there was no contract and any price paid could be
recovered5.

There was however nothing to prevent the sale of a future thing,
though, in a sense, delivery was impossible. The question therefore arose :
was it possible to sell or promise a thing existing, but at present incapable
of sale, subject to the condition of its becoming saleable? In the case of
a freeman this was forbidden; it is improper to contemplate his falling
into slavery6. Elsewhere the same principle is applied to stipulatio and
to res sacrae1, religiosae and publicae and it may have been general.

So far we have been considering initial impossibility, but a contract
might become impossible after it was made (casus). A thing sold or
promised might cease to exist, or become religiosa or be expropriated
by the State. This differs from the foregoing cases in that there certainly
was a contract. The general rule applied was that if this occurred without
the act or fault of the person liable, and before he was "in mora" he
was released from his liability8. But the contract was not necessarily
destroyed ab initio. Thus in sale, though a vendor was released by
accidental destruction of the thing sold, the buyer must still pay the

118.1.4-6. 2 Arg. 19. 1. 13, etc. But see Girard, Manuel, 453 sq. 3 It is an

ordinary civil action on stipulatio : the actio doli, like most praetorian penal actions, was
annua, post, § ccxxxm. 4 12. 7. 1 ; h. t. 4. 5 18. 1. 57. pr. 6 18. 1. 34. 2.

7 45. 1. 83. 5. Clearly, there were disputes. As to sale of hereditas viventis, post, § OLXIX.

8 See Windscheid, Lehrb. § 264, n. 5.

x] MODALITIES 419

price1. What the rule was in counter promlssiones where one party was
released "cosw'' is not clear. Some texts suggest that the other party
could resist action or reclaim if he had performed, but it is by no means
clear that this was the case2.

CXLVIII. MODALITIES. A valid contract, satisfying the foregoing
requirements, might be subject to all sorts of restrictions created by the
parties. Of these, two, i.e., dies and condicio, need some consideration.

Dies (a quo) may be either certus or incertus, e.g. "on the kalends of
June" or "on the death of X," but it must be a futurity which is certain
to arise, otherwise it would be a condition. All that we need say of dies
in this sense is that it was perfectly admissible and that the obligatio
existed pendente die. though not yet enforceable3. Thus it could ordinarily
be paid at once4, and if paid before the day there was no condictio
indebiti5. The creditor could in some cases require surety6. He could
presumably claim in bankruptcy (bonorum venditio7).

Dies ad quern is on a very different footing. There was an overriding
rule, "ad diem deberi non posse8," which gave rise to difficulties which
will best be considered in connexion with stipulation. All that need be
said here is that the effect was not to nullify the obligation. The dies ad
quern was ignored at civil law, but, as this would clearly do injustice,
artificial constructions of the transaction were adopted which were not
the same in legacy and stipulation9.

Dies might occur in any of the contracts of classical or later law. It
does not appear that it could occur in nexum, as it certainly could not
in mancipatio. It also appears inconsistent with the character of the
contract literis, though a letter of Cicero's is supposed to indicate its
admissibility10.

Condicio is a more important matter. Of its nature it is enough to
say here11 that a conditional obligation is one subject to an event both
future and uncertain. There could be no condition in nexum or in the
contract literis12. Justinian speaks of doubts as to the admissibility of
condition in societas13, and a text of Gaius seems to shew that there had
been similar doubts for the other bilateral consensual contracts14. It has
been suggested that this doubt may have rested on the view that as the

1 Post, § CLXXI. The risk is with him. 2 See 12. 7. 1. 2 and cp. 12. 4. 3. 4.

3 G. 3. 124; Inst. 3. 15. 2; D. 45. 1. 46. pr. 4 46. 3. 70. This is dies certus. If it is

uncertain, since this was normally "on the death of X," it may be that this rule would
not apply as there might be obvious reasons for postponement, e.g. if X was the pater-
familias. 5 12. 6. 10. Such a debt could be secured by pledge, 20. 1. 14. 6 5. 1. 41.
7 For other results see Girard, Manuel, 480. 8 Inst. 3. 15. 3. 9 45. 1. 16.1;

33. 1. 4; post, §CLIV. 10 Ad Fam. 7. 23. 11 Ante, § civ. 12 Vat. FT.

329. The tacit conditions mentioned in 50. 17. 77 might occur in formal transactions,
23. 3. 43. pr.; h. t. 61. 13 C. 4. 37. 6. 14 G. 3. 146.

27—2

420 CONDITIONS [CH.

contract is based purely on consent, there could be no contract
at all till the consent was operative. There seem to have been no
doubts in the case of the contracts re. Thus in case of pledge
and mutuum (loan for consumption) it might be agreed that the
possessio or the ownership, as the case might be, was not to pass till
a certain event. But it must have been some contract in the mean-
time, and it is not easy to apply the notion of condition to deposit and
commodatum1.

The first point to be considered in relation to conditions is the
question of the attitude of the law to a conditional obligatio while the
condicio was outstanding. There were many rules which resulted from
the proposition that pending satisfaction there was as yet no complete
obligatio. Thus money paid in that time could be recovered as indebitum,
till actual satisfaction2. If a thing sold ceased to exist, by accident,
pendente condicione, there was no contract and the loss fell on the vendor3.
A contract to sell a man his own property was void, but if it was con-
ditional and the res was not his when the condition was satisfied, it was
good4. A conditional stipulation did not supersede by " novatio" a
pre-existing one till the condition occurred5. If either party ceased to
exist leaving no successor, before the condition arose, there was no
contract6. On the question whether an action, lost because brought
while the obligatio was yet conditional, could be renewed, the texts are
in conflict7.

But the transaction was not a mere nullity, in the meantime. It
could not be renounced (except in cases where a right of renunciation
was a tacit or express term in the contract8). The capacity to contract
must have existed when the agreement was made9. There was a " spes
debitum iri" which passed to and against representatives10. A condi-
tional creditor could claim bonorum separatio11.

These conflicting points of view, both that there was and that there

1 The only obvious condition is that a future event is to decide which of certain con-
tracts, e.g. deposit, or commodatum, or mandate, it is to be, but it will be one of them in the
meantime. See 16. 3. 1. 12 sqq. There are however texts which seem to shew a real condition
and others in which it is a mere lex or term, e.g. 16. 3. 1. 22; h. t. 33. The use of the word
condicio is not decisive. 2 12. 6. 16. pr. 3 18. 6. 8. pr. 4 18. 1. 61.

5 Conversely a conditional obligatio is not novated by a new stipvlatio, till the condition
occurs; till then there is no obligatio to novate. See post, § cxciv. 6 See Bufnoir,

Conditions, 271 sqq. 7 20. 1. 13. 5; 21. 1. 43. 9; Inst. 4. 6. 33, etc. See Bufnoir,

op. cit. 240 sqq. In case of dies the action could not be brought again in classical law,
G. 4. 53 sqq. Cf. Inst. 4. 6. 33 b; P. 1. 10. 1. Post, § ccxxxvn. 8 In mandate and

societas there is a tacit right of renunciation, post, §§ CLXXvm sq. 9 45. 3. 26.

10 18. 6. 8. pr. 11 42. 6. 4. pr. Ante, § ex. The right, where stipulans was a son or

slave vested in the pf. though the condition was not satisfied till he had passed from
potestas. 45. 1. 78.

x] CONDITIONS 42 L

was not an obligatio, naturally led to conflicts on certain points1. Thus
the texts disagree on the right to renew an action brought pendente
condicione'2, and on the right of a conditional creditor to get missio in
possessionem3. If a debtor of a res was "in mora" when it ceased to
exist, his obligation survived4. If, however, the obligation was novated,
this was said to purge the mora, but the texts seem to disagree on the
question whether a conditional novatio had the same effect5. If one who
was liable "pure" promised the same thing conditionally, there would
be novatio if the condition occurred, but there was difference of opinion
as to the effect of this on the original promise, e.g. whether the second
stipulatio amounted to a pact not to sue on the original one while the
condition was outstanding6, and whether if payment was made in error
there was condictio indebiti, the old promise being now subject to the
contrary condition of the new7. But all these questions are the subject
of much controversy8.

If, in an ordinary conditional contract, the condition failed the result
was that there was ab initio no contract at all. When the condition was
satisfied, if no intervening event had discharged the obligation, there
was a simple contract. Some texts say that the effect was retrospective9..
But though this proposition is in harmony with some of the rules10, it
is inconsistent with others11, and the better view is that it is not really
an expression of any actual principle of law12. In fact the various de-
cisions do not express any strict principle; they were a compromise — •
the needs of life were more important than theory.

On the question what amounted to satisfaction of the condition it is
to be noted that a condition could not be partly fulfilled — until it was
completely fulfilled it was not fulfilled at all13 — and that in some circum-
stances a condition was treated as satisfied where in fact it was not.
This occurred where the satisfaction was prevented by one interested in
the non-fulfilment14. The rule seems to have been that this must have

1 The distinction between debitum and obligatio, Schuld and Haftung, has been utilised
to explain these. See ante, § CXLIH. 2 Ante, p. 420. 3 42. 4. 6. pr. ; h. t,

7. 14; h. t. 14. 2. 4 Post, § CLXXXvm. 5 45. 1. 56. 8; 46. 2. 31; 46. 3. 72.

Bufnoir, Conditions, 250 sqq. 62. 14. 30. 2; 12. 6. 60. 1. 7 12. 6. 60. 1.

8 Vassali, Bull. 28. 192 sqq., holds that the texts, much interpolated, shew a tendency in
the compilers to assimilate the effects of a conditional transaction to those of one sub die.

9 18. 6. 8. pr. ; 20. 4. 11. 1. 10 E.g. a conditional contract by a slave remained with
his master at making though he was transferred, while a conditional legacy, where there
was no retrospection, passed with him. 45. 1. 78. pr. ; 50. 17. 18. But the theory is not
necessary to this. 11 It does not make a sale valid where the thing perishes between
the making and fulfilment of condition, 18. 6. 8. pr. It does not, on the better view, entitle
the creditor to fruits accrued before condition satisfied. Ib. Bufnoir, op. cit. 308 aqq,
12 Girard, Manuel, 486. 13 45. 1. 85. 6. Expression of principle that conditions are
indivisible, which has other effects, Bufnoir, op. cit. 73 sqq. See for stipulatio poenae, Cuq,
Manuel, 599. 14 50. 17. 161.

422 CONDITIONS [CH.

been in some way in bad faith, that the prevention must have been with
a view to prevention, but where there was a definite act of prevention
the intent was prima facie presumed1.

Conditions impossible in law or fact invalidated the whole trans-
action; they were not struck out, as in wills2. The same was true of
illegal or immoral conditions, i.e. such conditions as gave the transaction
an illegal or immoral tendency. Thus a promise to a man if he remained
a bachelor (in classical law), or if he committed a crime, was void3, but
there was no objection to a promise by a man if he did wrong4. A promise
by a man if he did not commit a wrong was void, as also was a promise
to a man on the same terms5.

Where a condition became impossible after the contract was made,
as where there was a promise to X if he married, or freed, S, and S died,
the condition failed6, apart from cases of prevention.

The conditions hitherto discussed were suspensive conditions, which
are in fact the only real conditions. But there were also what are some-
times called resolutive conditions, i.e. conditions the arrival of which
was to destroy the obligation. These, as we are told, were not conditions
on the contract, but on the discharge7, or rather resolutio, i.e., ab initio
destruction. But just as ad diem deberi non potest, so, ad conditionem
deberi non potest. Accordingly, at civil law, such a condition was ignored.
A stipulatio for 10 "nisi navis ex Asia venerit" was an absolute promise
but the praetor intervened and allowed an exceptio, if action was brought
after the ship arrived8. If the money was claimed before, as it could
be, for it was an unconditional promise, and the ship afterwards arrived,
the money could be recovered in any bonae fidei transaction9, and, pre-
sumably, on the principles of condictio sine causa, in a case of stipulatio10.
But consensual contracts were on a special footing in respect of resolutive
conditions. They might be dissolved by mere consent, and therefore by
a conditional consent. Such cases were prominent in the law of sale11,
but they could occur in the other consensual contracts. It is important,
however, to note a distinction. A hire might be for five years and would
end automatically. So also it might be till a certain event happened and
this is sometimes called a resolutive condition. But it is not one. A true

1 Arg. 35. 1. 24; 40. 3. 3. 16; h. t. 38. 2 44. 7. 31; 45. 1. 7; h. t. 137. 6; G. 3. 98;

Inst. 3. 19. 11. 3 P. 3. 4 b. 2; 45. 1. 123. 4 45. 1. 121. 1; h. t. 19 is only an

apparent exception. 5 2. 14. 7. 3; 12. 5. 2; h. t. 3; h. t. 8. The latter is a sort of blackmail.
No objection to a promise if a third person does a wrong: it is only insurance. Or if a third
person does not, e.g. to buy a house if my ship is not captured by pirates. 6 Arg.

from the rule in legacy, 35. 1. 94. pr. etc., ante, § cxix. 7 18. 1. 3; 18. 2. 2. pr.

8 44. 7. 44. 2. Similar rule in promise of annuity "quoad vivam," but there are
difficulties in this case, post, § CLIV. 9 41. 3. 19. 10 12. 7. 1. 2. 11 Post.

§ CLXxm.

x] CONTRACT FOR A THIRD PARTY 423

"resolutive condition" dissolved the contract ah initio, which was not
the case here1.

CXLIX. Contract, being essentially a relation between certain
parties, could in strictness produce no effect for or against those not
parties to it. Hence arose the rule that a man could not contract to
benefit or bind a third party. Detailed rules based on this notion will be
considered under the head of stipulation2, but some remarks may be
made here on the general principle. There was a maxim: "inelegans
visum est ab heredis persona incipere obligationem3." This principle would
exclude promises to bind or benefit the heres alone, and all promises
"post mortem" of either party. This does not seem to have been an applica-
tion of the foregoing principle. The rights and obligations of a heres
were inherited and there was a logical difficulty in regarding him as
inheriting those which could never on their terms have attached to the
deceased. This way of looking at the matter is confirmed by the above
passage from Gaius who rests the rule on an inelegantia, and not on the
rule against contracts for third persons, which he discusses separately4.
So too Ulpian distinguishes the heres from other third persons5, and
Justinian, in the enactment in which he abolishes this rule, does not
speak of that about third parties, but describes the rules he is
abolishing as independent regulae6.

However this may be, there is no doubt of the existence of the more
general rule. The acquisition by the paterfamilias of the rights under
contracts by sons or slaves was not a real exception7. How far classical
law did admit of exceptions is a debated question. In dealing with the
case in which a contract was definitely made in favour of a third person8
we have first to consider how far if at all it gave a right of action to the
third party. The texts giving such a right have been studied by Eisele,
who shews that in nearly all cases the right of action is due to interpola-
tion9. But there were other cases. Where a donatio was made on the
terms that after a time the thing was to be handed to a third party,
Diocletian gave the third party an actio utilis10, but it is shewn by Eisele
that this was condictio for recovery, not an action on the contract; it
was in effect a case of cessio legis, implied transfer of action11. Again if
an actor municipii or a curator or a tutor made a constituturn12 for payment

1 For examples of actual resolutive conditions, post, § CLXxm. 2 Post, § CLIV.

3 G. 3. 100. 4 G. 3. 103. 5 45. 1. 38. 1. 6 C. 4. 11. 1. 7 Post

§ CLXXXIV. 8 As to the effect in rem of pacta de non petendo, post, § cxcv. 9 Eisele,
Beitrage, 76 sqq. Deposit or commodatum by non-owner, on terms that it is to be returned
to owner. Owner has utilis actio, C. 3. 42. 8. 1 ; dos given on terms that it is to go to grand-
children: they have utilis actio, C. 5. 14. 7; sale by pledgee on terms that debtor is still
to have a right to redeem, debtor has actio utilis ex vendito, 13. 7. 13. pr. 10 Vat. Fr

286; C. 8. 54. 3. 11 Post, § CLXXXIX. 12 Post, § CLXXXII.

424 CONTRACT FOR A THIRD PARTY [OH.

to the municipium or ward, these could sue, utilitatis gratia1. This is
certainly an exception, explicable as such, says Eisele, by the fact that
in procedure these particular representatives had a closer relation to
their principal than other procurators, so that exceptional treatment is
not surprising2.

There were a few other cases in which a third party had an action
on the principle of cessio legis, to be considered later3, and a further case
in which a mandator had an action on the contract of his agent4. On
the other hand a third party might be liable to action under the actiones
institoria and exercitoria5, and a mandator might be sued6. There were
also some exceptional cases under the law of partnership7.

Apart from these not very numerous exceptions, the rule that a
contract did not bind or entitle a third party still existed in Justinian's
law8.

This question suggests another. If A stipulated with B that B should
give money to X or, conversely, that X should do something, it is clear
that X could neither sue nor be sued. But could A sue if the thing was
not done? In strictness he could not. In the first case A had no inter-
esse9. In the second, B had not promised to do anything. In this case
the difficulty was avoided by making a penal stipulation: B promised to
pay a penalty to A if the thing was not done10. But the classical law
went further than this ; it was ready to construe a promise that X should
do something as a promise that B would procure that he did, though,
so far as can be seen, only in a narrow range of cases, connected with
litigation11. In the other case, though the render was actually to be to
X it might well be that A had an interest in it, and this would entitle
him to sue, e.g. a contutor stipulating with his colleague, rein salvam
pupillo fore (he had an interesse, as he would be liable), and a stipulaiio
for payment to the stipulator's procurator, or to his creditor12. One text
adds several cases in which A, being under a contractual obligation to
X, contracted with B that B should do the service to X13, and shews that

1 13. 5. 5. 9. 2 Eisele remarks that it is an exception not to the present rule but

to that of nonrepresentation, but that rule is merely an application of the one under dis-
cussion. A man cannot contract to bind or benefit another, even though this was the intent
of all parties. 3 Post, § CLXXXIX. 4 Post, § CLXXXIV. The case in which money

of a principal is lent by an agent and the principal has a condictio (e.g. 26. 9. 2) does not
require this principle at all. The liability is created by the transfer of property, post,
§§ CLXH, CLXXXVH. 5 Post, § CLXXXIV. 6 Ib. 7 Post, § CLXXVH. 8 45.

1. 83; 50. 17. 73. 4; Inst. 3. 19. 3 and 4. 9 C. 4. 50. 6. 10 Inst. 3. 19. 3, which
points out that an express undertaking to see that X did it was enough to give A an
action. 11 This is clearly the proper interpretation of the stipulatio rent ratam

luibiturum, post, § ccxxxix. See also 45. 1. 81. pr. ; h. t. 83. pr. Girard (Manuel, 463) holds
that the same construction was freely applied in b. f. contracts. But there are no texts.
12 Inst. 3. 19. 20. 13 45. 1. 38. 21.

x] CAUSA IN CONTRACT 425

the necessary interesse existed wherever A was under a legal liability,
and probably wherever there was a pecuniary interest. It shews also
that here there was no difference between stricti iuris and bonae fidei
contracts. Whether an interesse affectionis was ever enough, outside
slave law1, is doubtful2.

There were agreements actionable in later, and even in classical, law,
which were never called contracts3, exceptions to a principle which
existed throughout the history of the law, i.e. that no action lay on mere
pacts as such. This principle is expressed in some well-known texts:
"Bed cum nulla subest causa propter (or praeter) conventionem, hie constat
non posse constitui obligationem. Igitur nuda pactio obligationem non
parit sed parit exceptionem." " Ut debitor vel servus domino vel dominus
servo intelligatur ex causa civili computandum est*." These texts indicate
the need of a "causa,'" over and above the mere fact of agreement. But
the word "causa" is a very unreliable instrument. Even where it is used
to signify a basis of right it does not always mean the same thing. The
iusta causa traditionis is not quite the same as the iusta causa usucapi-
onis5. In the words of Sacramentum, "secundum suam causam*," the
word may mean all the facts of title, the conveyance as well as the facts
leading up to it. It also means many things which have little to do with
a basis of right. It means a lawsuit7, the accessories of a thing
recovered by action8, cause, indeed the lexicons give a bewildering
number of meanings and shades of meaning. In the present connexion
it is taken to mean a pre-existing fact giving validity, with the
resulting rule that an action arose on agreement coupled with causa.

The causa was some characteristic of the transaction. Usually it was
the form employed. But, in the consensual contracts, there is the diffi-
culty that they had no necessary form; there was mere conventio, and
the main text expressly declares this to be insufficient. Maine surmounts
the difficulty by finding the causa not in the individual transaction, but
in the frequency or importance of such transactions as a class9. In the
contracts "re," the "causa" was delivery. But if that was a sufficient
causa, any agreement with delivery ought to have been binding. But
gratuitous delivery of an article for a temporary purpose would not
make a contract unless it was within one of the recognised cases. No
doubt it would frequently come within the conception of mandate10, but

1 See Buckland, Slavery, 69 sqq. No general inference can be drawn from these canes.
2 In 21. 2. 71 pecuniary interest is not wholly absent. 3 Post, § CLXXXII. 4 2. 14.

7. 4; 15. 1. 49. 2. 5 Ante, §§ LXXXHI, LXXXVHI. If putative causa had sufficed i«

general in usucapio, they would have been much the same. 6 But, as to these worda,

see post, §ccvm. 7 1. 18. 10. 8 10. 2. 44. pr. 9 Ancient Law, 333.

10 E.g. 16. 3. 1. 11 sqq.; 47. 2. 14. 17.

426 NEXUM [CH.

for that purpose delivery was indifferent1. The whole notion gives undue
importance to the word causa in the texts quoted. What Ulpian means
is that there can be no agreement on a mere pact as such — it must be
shewn that the agreement is one of those which the law makes action-
able. He is expressing a great difference between the Roman conception
and that of our law. To the Romans an agreement was not actionable
unless there was some reason why it should be. To modern English law
an agreement is actionable unless there is some reason why it should not
be. "Causa" thus means actionability and not something else inde-
pendent of actionability which produces that characteristic. Pacta
legitima2 had no causa except the fact that enactments made them
actionable.

CL. Before entering on the Contracts, as classified by Gaius and
Justinian, something must be said of two cases which do not appear in
the classification.

NEXUM. This highly controversial matter will be briefly dealt with
as the transaction was obsolete in classical law3. So little is really known
of it that it has been doubted whether there ever was such an institution.
No text expressly tells us that there was a contract called nexum, but
we have so little juristic literature of the republic that that is not sur-
prising. But we have texts which speak of nexum as creative of obliga-
tion, of nexum aes and nexi liberatio*, and many literary texts dealing
with debtors who were nexi5, so that it may be taken as certain that
there was such a transaction, per aes el libram, which in some way re-
duced debtors to a sort of slavery., that great hardships resulted and that
a /. Poetelia6, of somewhat before B.C. 300, practically ended this state of
things, presumably by requiring an actual judgment before sei?Aire.
The effect was not to abolish nexum, but, by depriving it of its chief
value, the power of seizure (executive force), to leave it with no ad-
vantages to counterbalance its clumsiness, so that it went out of use.

The problem of historians has been, how to formulate this trans-
action. The view propounded by Niebuhr7 was that the transaction was
essentially self mancipalio, to be operative only if the due payment of
money lent was not made. But self mancipation is not known to have

\ Mandate is consensual, post, § CLXXX. If delivery was a sufficient causa, permutatio
(post, § CLXXXI) should have been a civil contract long before it was. 2 Post,

§ CLXxxm. 3 See, for a full discussion of the texts and the literature, De Zulueta,

L.Q.R. 29. 137 sqq. ; Girard, Manuel, 487 sqq. 4 The chief juristic texts are definitions
by Manilius and Q. M. Scaevola, quoted by Varro, LL. 1. 105, Cincius and Gallus Aelius,
quoted by Festus s.vv. Nexum, Nuncupata pecunia; G. 3. 173, 174 of inferential value.

6 For reff. to the passages in Dion. Hal. see De Zulueta, op. cit. 138, n. 2. For those in
Livy, Roby, R.P.L. 2 297 sqq. 6 Varro, LL. 7. 105; Cicero, de Rep. 2. 34. 59.

7 Rom. Gesch. 1. 322 (ed. 1853).

x] NEXUM 427

been an institution of Roman Law, though its analogue is found in most
early systems1, and conditional mancipatio is at least in historic times an
impossibility. Another view, propounded by Huschke2, speedily became
dominant, and was to some extent confirmed by Studemund's new
readings in Gains. According to him nexum was a contract, made with
copper and scales, with a nuncupatio declaring the debtor " damnas" if
he failed to fulfil his obligation. This damnatio, in early law, whether in
a statute or in a will or in a contract, entitled the injured party to seize
the debtor by man us iniectio, without judgment, and carry him into con-
finement. There is no direct evidence of its application to anything but
debts of certa pecunia.

This hypothesis involves a good many assumptions. There is no
direct evidence for "executive" force in nexum, and Huschke's view
that this is due to its " publicistic " character, as carried out before five
witnesses representing the Roman people is of little weight, as involving
an improved assumption3. No text speaks of the seizure under nexum
as based on addictio and this was essential to manus iniectio in historic
times4. We are not told that the I. Poetelia abolished the executive
force of nexum, but only that it released next, and nexum went out of
use. But there is no doubt that nexi were seized and imprisoned, and
those who reject Huschke's views are driven to other explanations. Thus
Mitteis holds5, on the evidence of texts which suggest two stages, that
there was a loan per aes et libram which would lead to a judgment, and
the debtor subsequently mancipated himself to the creditor to avoid the
terrible consequences of an unsatisfied judgment. But this twofold
proceeding per aes et libram hardly helps and is neither necessary on the
texts nor consistent with all of them; accordingly Lenel rejects it6,
holding that the loan was not per aes et libram, and so gets rid of one of
the transactions per aes et libram. But as in fact texts speak of aes nexum
and of the money as due per aes et libram, Mommsen7 holds that the
process per aes et libram was part of the loan transaction but was a
mancipatio to operate only if the loan was not paid. But the difficulty
about self mancipation remains, and in addition there is no more direct
evidence for this view than for Huschke's, so that his doctrine cannot be
said to be overthrown8.

CLI. FIDUCIA. This was essentially an agreement appended to a

1 Ante, § XLVm. 2 Das Nexum. 3 Ante, § LXXXV. But it is not necessary

to his theory. 4 Post, § ccxi. 5 Z.S.S. 22. 96 sqq.; 25. 282; Bom. Pr., 1.

136 sqq. 6 Z.S.S. 23. 84 sqq. 7 Z.S.S. 23. 348 sqq. 8 For a number of

other opinions, mostly involving small variations, see De Zulueta, op. cit. His own view
is that Huschke's doctrine, as slightly modified by more recent writers, while not proved,
ie not disproved, and is not open to the objections to all the doctrines based on self mancipa-
tion.

428 FIDUCIA [CH.

conveyance of property, involving a direction or trust as to what was
to be done with it. The recorded cases are in connexion with mancipatio,
but we are told that it might be used with cessio in iure1. On the other
hand there is no evidence that it could be used with traditio.

The fiducia was not an integral part of the conveyance, but an agree-
ment made separately, though at the same time. It had no necessary
form, and the instances which we have2 shew that it might contain a
number of provisions. Its main pvirpose is the regulation of the ultimate
destination of the property, but it might also contain subsidiary pro-
visions, for instance, where it was by way of security, restrictions on the
right of sale, provisions as to what was to be done with any surplus in
the price, and so forth.

Fiducia was extant and important in the time of Gaius and long
after3. The question therefore arises why it did not figure in the list of
contracts. It was in fact not called a contract. It may be called apactum*,
but it differed from the actionable pacts known in the time of Gaius in
that it had an actio in ius, a bonae fidei indicium, so that it was not
merely praetorian. The reason for its non-appearance in the lists of con^
tracts may be its parasitic character ; it could not occur as an independent
transaction, but only as an appendage to a conveyance.

Fiducia had many applications. In the law of persons it occurred in
coemptio fiduciae causa, in adoptio and emancipatio, and in tutela fiduci"
aria5. Its applications in the law of things were still more numerous.
Gaius divides them into two classes— -fiducia cum creditore and fiducia
cum amico6. The first, much the better known, is mortgage, and its rules
will best be dealt with in treating the law of "real security" as a whole7,
Here it is enough to say that it was in full operation till long after the
close of the classical age and that a number of texts which, in the
Digest, deal with pignus have been shewn to have dealt originally with
fiducia9.

Of fiducia cum amico, before the introduction of the bonae fidei con-
tracts, deposit and, no doubt, commodatum and many forms of mandate,
were cases. So too it was common to transfer slaves with a fiducia for
manumission in order to evade restrictive legislation, till this evasion

1 G. 2. 59. 2 Girard, Texles, 819 sqq. 3 C. Th. 15. 14. 9. 4 The

expression pactiim fiduciae does not seem to be in the sources, but "fiduciam contrahere,"
"fiducia contracta," etc. are(G. 2. 60; Inst. 3. 2. 8etc.). But as to the verb " contrahere " see
ante, § CXLHI. 5 Ante, §§ XLIV, XLVH, Ln. 6 G. 2. 60. 7 Post, § CLXVI.

8 This is rather puzzling, since there must have been, in the time of the classical lawyers,
plenty of literature on pignus. Either the compilers altered the law of pignus by applying
to it the law of another and obsolete institution, or the rules of fiducia cum creditore had
in great measure been applied to pignus: the latter seems more probable. Buckland,
N.R.H., 1917, 45 sqq.

x] FIDUCIA 429

was prohibited1, and also in order to give the donee of the slave the
position of patron. It was also used for donatio mortis causa, with a
resolutive condition instead of the more usual suspensive condition2,
and other applications are suggested. As to most of these cases it seems
to have been out of use by the time of Gains, but it existed for gifts "ut
manumittatur" till the time of M. Aurelius3, and apparently later4.
And in donatio mortis causa it lasted at any rate till the time of Papinian5.

The rights under fiducia6 were not always the same. The cases under
the law of persons had to do with the destiny of free persons or with
liberty. It is plain that the actio fiduciae, a personal action for damages,
would not serve here. Damages were useless if a man to whom a son
had been mancipated in the process of emancipatio refused to manumit
him. There is reason to'think that the actio fiduciae had no application
to such cases, but that fulfilment was enforced by the direct intervention
of the praetor, using the power of coercitio possessed by all magistrates7.
In the case of gift "ut manumittatur," no enforcement was needed after
M. Aurelius provided that the freedom should take effect automatically
at the appointed time8. In the case of noxal surrender of a son we are
told that the praetor would compel the release of the man when he had
worked out the damages, and that there was no actio fiduciae here, but
it is not clear that there was any fiducia, though it is sometimes assumed9.

In fiducia cum creditore or amico in the ius rerum, the remedy was the
actio fiduciae with its actio contraria10. The formula is not recorded as a
whole, but has been reconstructed by Lenel. It was archaic in form,
which has led to the suggestion that the action existed in the legis actio
system11. But Lenel12 finds clauses which seem to involve a formula in
factum, as an alternative and probably a forerunner13 of the formula in
ius recorded in the texts, a bonaefidei iudicium, condemnation involving
infamia1*.

In the various cases of fiducia cum amico, it was reasonable that the
principal should have a right of withdrawal. We are told of this in some
cases15, and it no doubt existed in all. The effect of exercise of this right
would be, on the one hand, to make execution of the fiducia an actionable

1 See, e.g., 40. 9. 7. 1. 2 39. 6. 42. See Jacquelin, De la Fiducie, 359. 3 There
is no fiducia in the case actually dealt with in the enactment. See ante, § xxxi. 4 Vat.
FT. 334 a. 5 39. 6. 42, which was originally a case of mancipatio cum fiducia. 6 As to

good faith in usureceptio, ante, § Lxxxvn. 7 Jacquelin, op. cit. 103 sqq. ; G. 1. 137 a,

"cohere." 8 Ante, § xxxi. 9 Coll. 2. 3. 1. See Jacquelin, op. cit. 237. 10 P. 2.

13. See post, § ccxxxiv. 11 Pernice, Labeo, 3. 1. 122, n. 2. 12 E.P. 282 sqq.

13 Girard (Manuel, 534) observes that this actio in factum would negative the existence
of a legis actio. But opinions differ widely. See Girard, loc. cit.; Karlowa, R.Rg. 2. 560 sqq.

14 G. 4. 182. The edict contained a clause making "/raw*" of the paterf. material,
where the fiducia was with a subordinate member of the family. See Lenel, E.P. 284 sqq.

15 24. 1. 49, written of fiducia.

430 CLASSIFICATION OF CONTRACTS [CH.

wrong, so far as this involved more than return, and on the other, to
enable the principal to recover the property. The remedy would be a
condictio ob rem dati, which appears in the texts as condictio ex poeni-
tentia, but this name is post-classical, and is introduced to the texts by
the compilers1. In the case of gift "ut manumittatur" the revocability
continued after fiducia had ceased to be used, and was then applied also
where, so far as can be seen, fiducia had never been applied, i.e. where
the transaction was a genuine sale, but there was to be manumission
after a certain term of service2. There does not seem to have been any
right of revocation here in classical law3. So too the texts give a right
of withdrawal where a man had given an owner money to free his slave,
with a condictio ex poenitenticfi. It is no doubt in connexion with these
post-classical extensions that the name condictio ex poenitentia was
introduced.

CLII. CLASSIFICATION OF CONTRACTS. Justinian, following Gaius,
classifies contracts as of four types: re, verbis, literis and consensu. The
characteristics of each class will be considered in discussing the different
classes, but one or two remarks may be made here. Gaius is our earliest
authority for the classification5 and though he may have invented it,
it is more generally thought, and more probable, that he merely adopted
a traditional classification6. The question remains, on what this tradi-
tional order, which does not look very rational, actually rests. Of the
many views which are held7 the most probable is that it rests on the
edict. In the edictal scheme contract was placed under the rubric, " de
rebus creditis." Mutuum, loan for consumption, was the typical creditum
and its remedies therefore came first. It was immediately followed in
the Edict by the other real contracts, as stipulatio for a cerium and the
contract literis need no separate treatment from a procedural point of
view, their remedy being the same as that for mutuum. The actio ex
stipulatu, which was the remedy for the promise of an incertum, is in
another part of the Edict altogether. But in a discussion of the law of
contract the verbal and literal contracts must be dealt with, and they
come next as being the oldest. Last come the consensual8.

The classification, though serviceable enough for the purpose in view,

1 E.g. 12. 4. 3. 3. See Gradenwitz, Interpolationen, 146 sqq. The pact does not seem
usually to have contained an express provision for return, at least in case of /. cum credi-
tore, see post, § CLXVI. 2 E.g. 40. 8. 3. 3 See Buckland, Slavery, 633; Lotmar,
Marc Aurels Erlass, 320 sqq. 4 12. 4. 3. 2, 3. 5 G. 3. 89. 6 It is widely

held that his commentarii are largely built up of existing materials. For an extremely
iconoclastic view, see Kniep, Der Rechtsgelehrter Gaius, 30 sqq. 7 It has been said that
it is chronological, mutuum attracting the other real contracts, that the order is that of
relative simplicity, that it proceeds from those with the most obvious external sign, that
it is merely arbitrary, etc. 8 Accarias, Precis, 2. 19; Moyle, Instt. Just, ad 3. 13. 2.

x] VERBAL CONTRACTS 431

is not very scientific. All the verbal contracts and the literal contract
are forms: the real and consensual are not forms, but groups of informal
bargain which the law would enforce. This suggests a division into formal
and informal1, but this would need subdivision, for stipulatio in classical
law is a form or mould into which any transaction could be run, while
the other formal contracts are, each, a form for one particular transac-
tion. A classification which would express more clearly the actual dis-
tinctions would be into stricti iuris and bonae fidei, or what is the same
thing, unilateral and bilateral, contracts, the latter being either per-
fectly bilateral, sale, hire and societas, or imperfectly, pignus, deposit,
commodatum and mandate. But this cuts across the method of the
Institutes and it seems better to follow that, with the exception of taking
real contracts last but one, with the effect of bringing together the
formal contracts2.

THE VERBAL CONTRACTS. Of these the most important is:
STIPULATIO. This was a contract made by question and answer,
originally in Latin, and, probably, only in the form " Spondesne?"
"Spondeo," afterwards marked off as the form confined, in private law,
to cives3. The source of the contract has been variously explained;
perhaps the most probable view is that its first application was in pro-
cedural undertakings given by litigants4. In any case it seems to have
applied first to promises of certa pecunia, then, before the /. Calpurnia5,
to certa res, then to incerta, and finally to acts (stipulatio faciendi), but
all this was complete before the time of the classical lawyers6. It had
formerly been the practice to arrange for facienda by stipulatio for a
penalty if the act were not done, a method which left many traces in
the law7, and indeed continued in use for some purposes throughout
the Empire8.

The parties must be present together9, and as we have seen10, the
proceeding must be continuous. The law required no witnesses, though

1 Girard, Manuel, 487. 2 It must be noted that this criticism is relevant only for
the classical law. There was a time when stipulatio was a form for only one type of trans-
action, like the contract literis, indeed narrower still, for it seems to have been first applied
only to promises of security in litigation (see n. 4). Dotis dictio and iurata promissio
liberti have this character still in the law of the Empire. Again the imperfectly bilateral
contracts do not seem to have been bilateral at all at first : the actio contraria is a secondary
development. 3 G. 3. 93. 4 Mitteis, Aus Pom. und Burg. Recht, 107. See, however,
Collinet, Mel. Gerardin, 75, who suggests an origin in the promises of the statutory penalties
under the XII Tables For a variety of suggested derivations of the word stipulatio, and
theories of the origin of the contract into the service of which these etymologies have been
pressed, Costa, Storia d. dir. Rom. priv. 339, n. 5. 5 Post, § ccx. 6 It is held

by Girard (Manuel, 500) that stipulatio faciendi is as old as Cato (d. 149 B.C.). He refers
to R.R. 144. 2 and 146. 2. 1 E.g. pact and stipulatio in servitudes, ante, § xciv; reception
arbitri, post, § CLXXxm. 8 See Cuq, Manuel, 598. 9 45. 1. 1. pr. 10 Ante,

§ CXLV.

432 ST1PULAT10 [CH.

proof would be difficult without them, unless, as came to be the usual
course, a memorandum of the transaction was drawn up1.

Most of the rules underwent relaxation. Long before the Empire
other words might be used, "Dabisne?" " Promittisne ?" and so forth2.
In classical law any language might be used, and in late classical law
even different languages, all that was needed being substantial agreement
between question and answer3. But these must so agree. A conditional
acceptance, where there was no condition in the stipulatio, was void, as
was one which introduced fresh terms. Ulpian appears to add that if
the stipulator at once agreed to these fresh terms this was a valid new
stipulation, but it is generally held that this is due to the compilers4.
If there was substantial agreement the fact that the answer contained
useless further verbiage was immaterial — supervacua non nocent5.

The rule that question and answer must substantially agree was
subject to one peculiar exception. Gaius tells us, and Justinian repeats
the statement, that where the stipulatio was for ten and the promise for
five or vice versa, there was no contract for want of identity6. But in
the Digest we are told that in such a case the contract was good
for the smaller sum common to both. The view of Gaius rests on the
notion that five and ten are two different things. The other view treats
them not as things, but as quantities. Even so it is doubtful whether
this view is due to Ulpian or to the compilers7. The matter is complicated
by the fact that in an analogous case, that of a stipulatio for two things
and a promise of one, or vice versa, the contract was good for that one, the
words being construed as two stipulations of which one was completed8.
But where the stipulatio was for one of twro things, A or B, and was
accepted for one of them, the same construction was not adopted9,
though the choice would be with the promisor10. But a stipulatio
for quantities, ten or twenty, accepted for ten, was valid on the
principle that they were quantities and the greater included the
less11.

It was usual to express the stipulatio in a written note or cautio. By

1 The absence of any legal requirement of writing is in striking contrast with the rules of
Attic law which required writing in nearly all cases of contract, etc., evidence perhaps of a
different standard of commercial morality. See Collinet, Etudes Hist, du Dr. de Justinien, 61.

2 G. 3. 92; P. 2. 3. 1. See for illustrations from Plautus, Costa, op. cit. 340, n. 1.

3 G. 3. 93; D. 45. 1. 1 passim. Much of the relaxation seems to have been known to
Sabinus. Ulpian says that "Dabisne?" "Quidni?" is good, but a mere nod will not
serve, as it must be verbal, 45. 1. 1. 2. 4 45. 1. 1. 3. 5 " Dabisne?" "Arma
virumque cano, dabo," was good, says Ulpian, 45. 1. 65. pr. 6 G. 3. 102; Inst. 3. 19. 5.
7 45. 1. 1. 4 (interpolated). 8 45. 1. 1. 5; h. t, 83. 4; cf. h. t. 29. The texts appear to
be genuine. 9 45. 1. 83. 2. 10 Post, § cxcin. It is, however, not the same thing.
On the stipulatio the promisee, if one were extinct, would be entitled to the other, which
would not be the case under the promise. 11 45. 1. 83. 3. See, on these questions,
Riccobono, Z.S.S. 35. 243 sqq.

x] FORM OF ST1PULAT10 433

a rescript of Severus it was provided that if the cautio alleged a stipulatio,
even though it was not itself in the form of question and answer, and
even though it was defective in that it spoke of the promissor as having
promised but did not say that the stipulator had stipulated, an actual
stipulatio was to be presumed1, and Paul tells us that, at least where
there was a complete allegation of a stipulatio, this presumption was
conclusive2. Ulpian appears to modify this, by saying that on such
facts a party might still prove that a mere pact was meant, i.e. it was
a presumptio iuris, not iuris el de iures, but this is probably due to
Justinian. Even if it is classical the rule remains that no further evidence
could be required that the form had been gone through. In A.D. 472 a
rescript of Leo provided that all stipulations, even though not in solemn
words but in any words expressing the intent, should have full force4.
(The enactment contains the words " legibus cognitae " the meaning of
which is not very clear.) This may be, like many rescripts5, merely an
enunciation of existing law, but it is more generally held that it
suppressed the need of question and answer or express allegation
of question and answer altogether, all that was now needed being
some clear evidence of verbal assent6. But this is a somewhat extreme
interpretation of the rescript and the citation of it in the Institutes7:
the title in the Digest contains no interpolations expressing this
doctrine8.

These changes, whatever their extent, did not affect the rule that
the parties must be present together. Justinian however modified this
by a provision that where the stipulatio was embodied in a cautio
alleging presence, this was to be presumed, and could be rebutted only
by clear proof that one or the other party was absent, for the whole of
the day on which the cautio was made, from the place from which it was
dated9.

CLIII. Stipulatio was a unilateral contract, the questioner, stipu-
lator, being in no way bound, the promissor acquiring no right of action.
Like all other unilateral contracts it was what Justinian calls stricti
iuris, i.e. it gave rise to a strictum indicium. In any case of a promise of
a cerium this was a condictio, but where it was a promise of an incertum
or an act10, the remedy was an actio ex stipulatu, which differed from a
condictio, in that it stated, in the intentio. the basis of the liability, as

1 C. 8. 37. 1. The case suggests that the courts were already in the habit of accepting
a complete cautio as sufficient evidence. 2 P. 5. 7. 2. 3 '2. 14. 7. 12. As to

interpolation, see Berlin stereotype edition. 4 C. 8. 37. 10. 5 Ante, § vni.

6 Girard, Manuel, 498. 7 Inst. 3. 15. 1. 8 As to the view that as a result of

these changes stipulatio becomes a written contract, see Siegel, Archiv f. civ. Pr. 113. 6.
9 C. 8. 37. 14. 2. 10 As to the transmissibility of these, ante, § cxLin.

B. B. L. 28

434 CAPACITY IN STIPULATIO [CH.

condictio did not1. There was, in later classical law, an action called,
but perhaps only later so called, condictio incerti2, but it was not
applied to this case, probably because of the existence of this
special remedy, introduced when stipulationes for incerta were first
recognised.

Stipulations may be classified as divisible or indivisible, a distinction
which applies to all obligations and will arise for discussion when we are
dealing with performance of obligation3.

They are also classifiable as conventional and procedural4. The
former are the ordinary contracts with which we are here concerned5.
The latter are those undertakings or securities which could be required
in litigation, and in some other cases, e.g. tutela and legacy, on applica-
tion to the Court. They are described as Praetorian, Aedilician or Judi-
cial, according to the authority under which they are taken, and Com-
munes where, as in some cases, they might be ordered by a magistrate
or a index. As they belong essentially to other branches of the law,
mainly to procedure, we need not consider them here. All that need
be said is that in some cases a mere stipulatio of the party sufficed, while
in others there must be satisdatio, security of some type. Like the
English "contract of record" they were scarcely contracts at all,
though they assumed that form, for in many cases they could be
compelled, and we are told that praetorian stipulationes "ex mente
praetoris descendunt6," so that they could not be varied at the will of
the parties.

The general rules as to capacity have already been stated7, but, as
there were rules peculiar to stipulatio, the rules of capacity for this con-
tract must be stated though this involves some repetition.

1 . Since the contract was essentially verbal no one who was deaf or
dumb could take part in it, nor therefore could an infans. The rule
remained in Justinian's law8, notwithstanding the validity given to
cautiones. It could of course be evaded by utilising a slave.

2. Only cives could use the form "Spondesne?" " Spondeo9."

3. A stipulatio, or other contract, between paterfamilias and filius,
or between dominus and slave, gave no action, though it set up a
naturalis obligatio10.

4. Furiosi could take part in no contract, except in a lucid interval11.
We are not told if this applied to imbeciles, and we have no direct
information as to the effect of drunkenness. There is a text suggesting

1 Post, §ccxxi. 2 Post, §ccxxx. 3 Post, §cxcm. 4 45. 1. 5. pr. ;

Inst. 3. 18. 5 For the special rules of sponsalia, ante, § XLI. 6 45. 1. 52. pr.

7 Ante, § CXLVU. 8 G. 3. 105; Inst. 3. 19. 7. 9 G. 3. 93. 10 G. 3. 104;

Inst. 3. 19. 6; post, § CLXXXIX. 11 G. 3. 106; Inst. 3. 19. 8; C. 4. 38. 2.

x] STIPULATIO BY A SLAVE 435

that one who made a promise in a fit of extreme anger was not bound
if he withdrew it on cooling1.

5. A pupillus could contract so as to benefit, but not, without
auctoritas, so as to bind himself, subject however to liability for enrich-
ment and other protections of the other party, already mentioned2.

6. Persons in mancipio were incapable of binding themselves in the
time of Gains3, but there was presumably a naturalis obligatio.

7. A slave's stipulatio enured to his dominus or another having rights
in him according to rules already considered4: he himself acquired no
rights. Promissio by a slave is rather rare: we are told that at civil law
it was void, but there was praetorian actio de peculio on it5, and it
created a naturalis obligatio which survived manumission6. As it had
not the force of a verbal contract, Gaius doubts whether it could be
guaranteed by sponsio or fideprornissio7 . It is to be noted that where a
stipulation was made by a slave (or a son) the paterfamilias did not
always acquire the same right as if he himself had stipulated. He got
what was stipulated for, but no more. Thus if a slave stipulated for a
right of way, the paterfamilias acquired a right of way, but if the slave
stipulated that he be allowed to cross a certain field, what the master
acquired was permission for the slave to cross the field, not for himself
to do so. It was literally construed. This is rather obscurely expressed
in the Institutes in the words " cum factum in stipulatione continebitur,
persona stipulantis continetur8."

In the case of a slave there was a still further difficulty. A slave
could stipulate using his master's name or his own, or a fellow-slave's,
or none at all9. If however he used his own name, stipulated, that is,
"sibi," and it was for a ius of any kind, the stipulatio would be void, as
a slave could not have a right. The later jurists evaded this result by
understanding the word expressive of a right in a de facto sense10, but
this was not possible in all cases, as where a slave stipulated for a cessio
in iure to him, and where it was possible it gave a result different from
what was intended. The difficulty could be avoided by not naming the
slave's own personality in the stipulatio.

As the slave's capacity was derivative he could acquire by stipulatio
only for a master who was himself capax, not indeed to contract, since he

1 50. 17. 48. But the text is not on contract. Horace's "ira furor brevisest" is hardly,
conclusive. 2 Ante, §LVI; as to naturalis obligatio, post, § CLXXXIX. As tofilii and

filiae familias, ante, § CXLVTI. As to women in tutela, ante, § LX. 3 G. 3. 104.

4 Ante, §§ xxm, xcix. 5 G. 3. 119, 176; Inst. 3. 29. 3. As to de peculio, post, § CLXXXIV.
6 15. 1. 50. 2; post, § CLXXXIX. 7 G. 3. 119. In 3. 176 he says it is as if a nutto. But
this is a civil law conception and even so is too energetic, as the rule solutum non repetere
on a naturalis obligatio, such as this created (post, § CLXXXIX), was effective at civil law.
8 Inst. 3. 17. 2. 9 Inst. 3. 17. 1. 10 45. 1. 38. 6-9; h. t. 130.

28—2

43(3 CONTENT OF ST1PULAT1O [CH.

could acquire for an infant or lunatic master, but to acquire1. Thus, as
a man could not acquire a servitude for land not his own, his slave's
stipulatio for it was void2. A slave of a hereditas could stipulate on its
behalf, but the stipulatio was void, unless a heres capax ultimately
entered3. Where there were also rights in the man other than owner-
ship, the question for whom he acquired might sometimes be in suspense.
Thus where a slave in usufruct stipulated for a thing, the destination of
the thing would depend on the ownership of the peculium out of which
it was paid for4.

CLIV. Content or substance of stipulatio. Some of these matters
have already been dealt with, but there remain several points for notice.

It was a fundamental rule5 that a man could not stipulate for a third
person, more generally and accurately, that a third person could not
acquire rights or be subject to obligation under a stipulatio. The Institutes
deal with the case in which a third party was joined with the actual
contracting party in the stipulatio. Two cases are considered.

A stipulation between A and B provided that A would pay 10 to
B and C, or that A and C would pay 10 to B. On the Sabinian view, the
mention of C was mere surplusage and the stipulatio was good for the
whole amount between the actual parties. On the Proculian view it
must be construed as two stipulatio nes for five each, of which that con-
cerning C was void, as he was not a party to it, so that the stipulatio was
valid for five only between A and B. This view prevailed and was con-
firmed by Justinian6. Two points must be noted. If the case was one of
those in which the stipulatio for a third person was valid7 because the
stipulator had an interesse, then the part affecting the third party would
be valid. He indeed could not sue, but the whole would be due to the
contracting party.

The Proculian solution adopted in stipulation appears not to have
been applied in other cases. The text affecting the matter on sale tells
us that the addition of the third party was supervacuum and the whole
was due to the contracting party8, a sort of ius accrescendi.

If A promised B that he would pay to B or C this was valid: C was
said to be solutionis causa adiectus9. It was convenient for both parties
to arrange that payment might be made to the principal or to someone
for him, e.g. an argentarius in the debtor's town. Only the actual party
could sue, but the debt might be discharged in either way. The converse

1 41. 3. 28; 45. 3. 40; 27. 8. 1. 15. 245.3.17. 345.1.73.1. 47.1.25.1.

So too where the dealing is by a slave of a captivus who may or may not return with post-
liminium, 45. 1, 73. 1 ; 45. 3. 18. 2. 5 Ante, § CXLIX. 6 G. 3. 103; Inst. 3. 19. 4;

D. 45. 1. 110. pr. Analogous to the case in which the question includes more than the
answer, or vice versa, ante, § cm. 7 Ante, § CXLIX. 8 18. 1. 64. Same result

in 8. 4. 5, but servitudes are indivisible. 9 46. 3. 12. 1 ; Inst. 3. 19. 4; post, § cxcin.

x] CONTENT OF STIPULATIO 437

case of a promise by A that he or C would pay B was dealt with in the
same way1.

The rule of classical law avoiding contracts post mortem of a party,
or those purporting to bind or benefit the heres alone, which seems, as
we have said, to rest on a principle independent of that just discussed
and was abolished by Justinian2, did not of course affect promises
which, as events turned out, did in fact affect the heres alone: this might
happen in any contract for a future performance3. And a promise for
performance after the death of a third party was of course quite valid.

A promise for performance so many days before the death of either
party (e.g. pridie quam moriar) was void, the rule being abolished by
Justinian in the same enactment4. The reason for the nullity given by
Gains is that it cannot be told till after the death when the debt was due,
so that it is in effect one for payment after death, and therefore bad.
But a stipulation for payment at death is perfectly good, and Gaius
observes that the distinction, which existed also in legacies, was without
reason5. The "pridie" cases were in fact within the objection to stipula-
tiones praepostere conceptae ("si navis ex Asia venerit, hodie dari spon-
des?") which were void before Justinian but validated by him, without
the impossible part6, a rule clearly ancient though Gaius shews no
knowledge of it. The stipulatio, "cum moriar," was not. In holding it
valid, the lawyers decided that a man is alive at the moment of his
death: it is, as they say, "novissimum vitae tempus"*."

The rule "ad diem deberi non posse" is in itself rational: it seems
absurd to contemplate a debt which I am to owe you up to a certain
day, which must come. Yet it might be useful. A capitalist who invests
his balances periodically might reasonably promise to lend a man money
to complete a contemplated purchase, provided it was asked for before

1 At least in later law, Nov. 115. 6. 2 Ante, § CXLIX. One for payment after

capitis deminutio of a party was equally bad in classical law, G. 3. 101. 3 A man

could validly stipulate for payment to his son in the family, as this was to himself (Inst.
3. 19. 4), and it has precisely the same effect. But he could also stipulate post mortem filii,
as this was not himself, and if it was post mortem suam and filio, the son had in later
law an actio utilis (23. 4. 23; 45. 1. 45. 2. interp.) even though not heres. 4 C. 8.

37. 11. 5 G. 2. 232; 3. 100. 6 Inst. 3. 19. 14; C. 6. 23. 25. Leo had already

abolished it in a special case. Koschaker (Z.S.S. 34. 427) holds this cannot be the ground
and adopts that of Gaius. He gives no reason, and that of G., as we see, fails to account
for the rule in "cum moriar" ; a distinction so clearly recognised and undisputed probably
had some reason. Paul gives the rule in "cum moriar," Vat. Fr. 98. The "pridie" and
" praepostera" rules were abolished by the same enactment, and it is likely that the former
is treated as merely a special case of the latter. 7 G. 2. 232; 3. 100; cp. 28. 5. 5.

This seems conclusive as to their point of view. It has been described as a ''puerilite" of
commentators (Accarias, Precis, 2. 96). But it is Roman. And the discussion of these
"limiting cases" has attracted logicians in all ages. Accarias gives a list of cases in which
"cum moriar" or "moriens" are void (95, n. 3), e.g. a stipulatio for a usufruct "cum
moriar," which would be meaningless.

438 STIPULAT10 AD DIEM [CH.

the date at which his balances were usually invested1. And we shall
shortly see that the civil law itself recognised a liability of sureties
which ended in a definite time2. On the general rule Paul gives the
illustration "10 dare spondesne usque ad kalendas lulias?" and says
that the limitation was ignored at civil law, but that if the promise was
sued on after the agreed time there was an exceptio doli, orpacti conventi3,
so that the arrangement above outlined could be safely made. One
case is specially prominent. A man might be willing to undertake a
contingent liability but not that this should burden his heir. He might
therefore promise "quoad vivam" or "quoad vivas." This was treated in
the same way: the action was perpetual, but if action was brought after
the death there was an exceptio*. In the Institutes this is carried further.
We are told that a promise of "10 aureos annuos quoad vivam" was
essentially perpetual, the exceptio being available in the same way5.
This is a puzzling proposition. We are told elsewhere that a stipulatio
"in singulos annos quoad in Italia fuero" was quite good6. And locatio
could be for a limited time7. It appears to be a mere blunder8. A legacy
to a widow "in annos singulos quoad vivat" was good and was deter-
mined ipso facto by her death9, but nothing can be inferred from this.
Legacies were construed by intent. Thus a legacy in annos singulos, with
nothing about death, ended ipso iure by the death, being construed as a
number of separate legacies of which all but the first were conditional
on the legatee's being alive when they fell due, unless indeed it was left
to a corporation, when it was perpetual10. But! a stipulatio, "in annos
singulos," was one stipulatio, unconditional, incerta and perpetua, not
affected by the death of the promisee11.

The rule applied not only to dies certa or incerta, "usque ad
kalendas Iulia$" and "quoad vivam," but also to cases of condition, such
as "nisi Titius consul fiat," "nisi navis ex Asia venerit12."

Exceptio non numeratae pecuniae. Where the stipulator brought an
action upon a promise to repay a loan of money, but in fact the loan
had not been made, Gaius observes that this could be proved under an
exceptio doli13. But it is hard to prove a negative, and at some time not
later than A.D. 215 a better defence was introduced — the exceptio non
numeratae pecuniae1*. When an acknowledgment of loan was sued on
the defendant had this exceptio, under which the burden of proof was on

1 Any conditional promise where the condition must be determined by a certain time
is on much the same footing, but it is not so treated. 2 Post, § CLVI. 3 44. 7.

44. 1. 4 45. 1. 56. 4. 5 Inst. 3. 15. 3. 6 4. 6. 43. 7 Post, § CLXXIV.

8 Mitteis, Rom. Pr. 1. 193. 9 33. 1. 5. 10 33. 1. 4; h. t. 6. 11 45. 1. 16. 1.

But the above cited 4. 6. 43 shews that the insertion of a limit varies this construction.
12 See ante, § cxLvm. 13 G. 4. 1 16. 14 C. 4. 30. 3. Even if exceptio doli was used

the lex gave the same advantage, within the time allowed.

x] EXCEPTIO NON NUMERATAE PECUNIAE 439

the plaintiff, to prove the loan (contrary to the usual rule in exceptiones,
in which the burden of proof was ordinarily on the defendant), and
making the cautio a very poor security. Accordingly it was strictly con-
fined to this case and was available only for one year1. But since the
creditor by waiting a year could make it useless, it was further provided
that the alleged debtor could bring a condictio sine causa within the year
for return of the cautio 2, and presumably the same exceptional rule as
to burden of proof applied here. It was laid down by Alexander that the
creditor need not prove the money to have been paid in coin, but only
that there was a real debt, even a pre-existing one3.

The system underwent various changes. Diocletian extended it4 to
five years. Justin provided that if it was for a past debt specifically
stated in the cautio, the exceptio was not available without written
proof submitted to the index that the statement in the cautio was
untrue: on proof of this the creditor must prove that there was a real
debt5. Justinian limited it to two years, extended it to other loans for
consumption, and to some analogous cases (but here only within a very
short limit of time), to which it had already been sought to apply it, and
provided that, at any time within the two years, it could be made per-
petual by notice to the creditor, or in his absence to certain officials6.
In a Novel he excluded the system altogether if the creditor was an
argentarius'1 '. There does not seem to have been anything to exclude the
exceptio doli after the time had expired, but the burden of proof would
be the other way. It has been suggested that the system had no operation
under the formula, that it first applied only in certain cognitiones and
was generalised under or after Diocletian8.

1 Herm. Wis. 1. 1. 2 C. 4. 30. 4; h. t. 7. 3 C. 4. 30. 5. 4 Herm.

Wis. 1. 1. 5 C. 4. 30. 13. In an interpolated text in the Digest which seems to

be based on this enactment (22. 3. 25. 4) the rule is made to apply to any express
acknowledgment, whether the debt was a past one or then and there created.
6 C. 4. 30. 14. Some texts (apart from the Digest text mentioned in n. 5) of an earlier
date than Justinian refer to, or may refer to, this system of protest, and it is therefore
held by Girard (Manuel, 514) that this power of protest and perpetuation was older and
was merely reorganised by Justinian. But he appears to treat it as new; of the texts,
C. 4. 30. 9 has certainly been altered (see Krueger's edn. ad h. 1.), C. 4. 30. 8. 1 and 2
look like additions (sin vero, sin autem, legitimum tempus, minime are all suggestive more
of Justinian than of A.D. 228), and the C. Th. 2. 27. 1. 4 is too vague to prove anything :
it may well refer only to the condictio, and is not understood by the i nterpretatio to have
any reference to perpetuation. The names "querella," " querimonia " seem to have been
used generally to denote any of the steps. C. 4. 30. 4, 8, 9, 10. 7 Nov. 136. 6.

8 Pernice, Z.8.S. 13. 273 sqq. Since there is no mutuum unless the money has been lent
it is odd that, apart from the case of a promise, the defence should have been by exceptio,
which, in principle, admits a prima facie claim. In practice the rule is that such a cautio
is not admissible as evidence, without the consent of the defendant, unless a certain time
has passed, or, in Justinian's time, the acknowledgment is express (22. 3. 25. 4). And
in his time it may be excluded altogether by protest within the two years.

440 ADSTIPULATIO [en.

CLV. We have been dealing with stipulatio regarded as the principal
transaction, but have now to consider what may be called accessory
stipulations, cases in which the stipulatio is an appendage to another.
The cases are adstipulatio and odpromissio, an important form of surety.

Adstipulatio. In certain cases it was usual to reinforce the stipulatio
between the actual parties by one made with the promissor by an agent
or mandatory, who stipulated for the same thing (idem1). If the ad-
stipulator sued on his contract he would be liable under his mandate to
account for the proceeds to the principal or his heres, as the case might
be2. The cases were: (1) to provide against the fact that in the legis
actio system it was impossible to sue by representative3. If the principal
was away when it became necessary to sue, the adstipulator would sue
on his contract and account for the proceeds. This ceased to be necessary
with the disappearance of the legis actio, and Gains does not mention it4.
(2) Where the principal stipulatio was "post mortem" and therefore void.
The contract of the adstipulator being post mortem of a third party was
good5. This was no longer necessary when Justinian validated stipula-
tiones post mortem stipulatoris, so that the adstipulator did not appear
at all in the law of the Digest.

So far as this account goes, an adstipulatio was merely an ordinary
stipulatio which happened to be associated with another. But that does
not properly represent the matter: it was intimately bound up with the
other, as the adstipulatio was for "idem." It was practically a case of
correality. Payment to, or action by, or acceptilatio to, either of the
stipulatores extinguished the debt. This is why the second chapter of the
/. Aquilia imposed a penalty on an adstipulator who released the debt.
Gaius observes that this was not necessary, as the action on the mandate
would suffice, but notes that the former had the advantage that it im-
posed a penalty6. The real reason for the existence of this remedy is
that it existed before the contract of mandate was recognised. We do
not know how in those days the principal recovered from the adstipulator
what he had received: not to hand it over may have been theft under
the wide early conception of furtum"7. Adstipulatio has another mark of
extreme antiquity in its intensely personal nature. The rights of the
adstipulator did not pass to his heres8, which may have been true of all
early contractual rights9. Further, a slave or person in mancipio could

1 G. 3. 110. Practically all our information on the rules is from Gaius. 2 G. 3.
Ill, 117. 3 Post, §ccxxxix. 4 This application is nowhere expressly re-

corded, but see Girard, Manuel, 761. 5 G. 3. 117. Ante, § CXLIX. It does not seem

that it could be used in a case of "pridie mortis," for the objection to this was the same
whether it was the stipulator or a third party. 6 G. 3. 215, 216. 7 See post,

§cxcvi. Girard, Manuel 761. 8 G. 3. 114; 4. 113. 9 G. 3. 114. There is a

corresponding rule in the converse case of sponsor and fidepromisaor, post, § CLVI.

xj ADPROMISSIO 441

not be adstipulator1. If a person in patria potestas or manus was ad-
stipulator, the right of action did not vest in the paterfamilias, as it
ordinarily would. The adstipulator himself could not sue so long as he
was in potestas, and lost his right by passing out of it in any way involving
capitis deminutio, e.g. emancipatio2. Though these peculiarities have been
associated with the conception of the transaction as a case of mandate,
they seem rather to be survivals from extreme antiquity3.

As the adstipulatio was purely accessory to the principal contract it
could not be for more, though it might be for less, and it might be con-
ditional or ex die where the principal stipulatio was pura, but not vice
versa*. The adstipulator need not use precisely the same words if the import
was the same5.

CLVI. ADPROMISSIO. Adpromissores were accessories on the side
of the promissor, sureties, who undertook to pay if the principal
debtor did not. They were either sponsores, fidepromissores or fide-
iussores. The obligations were in all three cases created by stipulatio,
the respective forms being given by Gaius as "idem dari spondes?"
'"'idem fidepromittis?" "id fide tua esse iubes?" Gaius adds that he
wrill explain what is the proper name for those to whom the question
put is "idem dabis?" " idem promittis ? " "idem fades?" but so far as he
is extant he does not return to the matter6. Probably in all such cases
they were fideiussores.

Sponsio was the oldest of the forms. This and fidepromissio could
be used to guarantee verbal contracts only, and the antiquity of both of
them is shewn by the fact that the obligation did not in either case pass
to the heredes. Fideiussio on the other hand could be used to guarantee
any kind of obligation (itself however always a stipulatio), and the
obligation was not terminated by death but passed to the heredes. The
first two are a parallel to adstipulatio. Sponsio, involving the word
"spondeo." was confined to rives'7.

As in all cases of accessory liability, that of the adpromissor could not
be greater than that of the principal, though it might be less, and
it might be conditional or ex die where that was pura, but not vice
versa*. If the obligatio was undertaken for more than the debt, we are

1 G. 3. 114. 2 Ib. 3 Where a son extracted under mandate, the right

ordinarily vested in the paterfamilias, 14. 1. 5. pr. So would a contract by a slave, but
adstipulatio is a nullity (G. 3. 114). The rule that it fails on death, like the liability of
sponsor and fidepromissor, with which Gaius couples it, is not the same as the rule in
mandate: whatever the true extent of that rule, post, § CLXXIX. For if I contract under a
mandate my heres can sue on the contract. Indeed fideiussio, which is a typical mandate,
differs on all these points. 4 G. 3. 113, 126. 5 G. 3. 112. 6 G. 3. 115, 116.

See Girard, Manuel, 764, as to the form used by the fideiussor. 7 G. 3. 118-121

A peregrine fidepromissor bound his heres if this was the law of his cioitas. 8 4(>.

1. 8. 7.

442 ADPROMISSIO [CH.

told that the adpromissio was void1. If, though not for more than the
debt it was for more than the mandate imposed on the adpromissor,
it was good as between him and the creditor, but he could recover from
his principal only the smaller amount2.

But the rule that the adpromissor could not be liable for more than
the debtor had limitations. A sponsor or fidepromissor was liable even
though the main stipulation was void as being made by a person in
tutela, without auctoritas, or where it was post mortem stipulatoris3. This
does not seem to rest on the obligatio naturalis which sufficed to support
a surety, partly because there could hardly be a naturalis obligatio in
the last case, and partly becavise it is not clear that obligatio naturalis
was enough in the case of sponsio and fidepromissio. Its sufficiency is
stated by Gains as characteristic of the case of fideiussio 4. The present
rule is a survival of a time when the promise of a sponsor was not sub-
sidiary but superseded that, if any, of the principal5. Again, if the
principal debtor died without a heres the surety was still liable6. And
where a surety had released the principal, by making the render
impossible, he was still liable in the later classical law, though in earlier
days there was only the actio doli7.

It will be seen that, on general principle, a surety who had been called
on to pay had a claim against his principal as mandator. But he was
usually sued because his principal could not or would not pay, for
though the surety could be sued though no action had been brought
against the principal, this was unusual and might be an actionable
iniuria to the principal8. And as there was not necessarily any juristic
relation between different sureties for the same debt there would not be,
on general principle, any claim at all against co-sureties. These and
some other matters were regulated by an extensive series of enactments
now to be considered.

Sponsio is much older than mandate and the sponsor was provided,
by the I. Publilia, of early date, with a special remedy not applicable to
fidepromissor, the actio depensi, for which Gains is our authority9. This
was an action, if he was not reimbursed within six months, which at
first took the form of manus iniectio., and, on the disappearance of the
legis actio system, became in the ordinary way an action for double
damages in case of denial10.

1 46. 1. 8. 7. 2 17. 1. 33. 3 G. 3. 119. 4 G. 3. 119 a. 5 Mitteis,

Aus Rom. und Burg. R. 120 sqq. 6 46. 3. 95. 1. 7 For the texts shewing

the evolution of the rule, see Cuq, Manuel, 647. 8 47. 10. 19. 9 G. 3. 127 ; 4. 9; 4.

171; see also P. 1. 19. 1. 10 The name "depensi" indicating a weighing has been

held to indicate very early origin, and also (Girard, Manuel, 773) that the payment must
have been under a judgment, the formal satisfaction of which was in early law a payment
per aes et libram, G. 3. 174.

x] LEGISLATION ON ADPROM1SSORES 443

A /. Appuleia of about B.C. 200, applying to both sponsores
and fidepromissores, created a sort of partnership between co-
sureties, so that any one of them who had paid more than his
share could recover from the others1. The nature of his remedy is not
known.

A /. Furia de sponsu2, later, but apparently not much later, than the
/. Appuleia, came further to the relief of sponsores and fidepromissores
by providing that they should be released by the lapse of two years from
the due day, and that they were not to be liable for more than the
amount of the debt divided by the number of sureties still living at the
due day. This law gives rise to some questions. We are told that it applied
only in Italy3. The L Appuleia still governed such transactions in the
provinces, and Gaius doubts whether it still exists as an alternative in
Italy. From a recently discovered fragment of Ulpian4 it is clear that
"in Italy" means a surety given in Italy: it was immaterial where the
principal contract was made. Another point is more important. Gaius
tells us that the /. Furia also gave manus iniectio pro iudicato against a
creditor who exacted from a surety more than his share. This could occur
where the surety sued was not aware of the number of the sureties, a
state of things explained by the fact that, as lay literature shews,
suretyship was very freely undertaken as a sort of compliment with no
serious expectation of responsibility5. The provision was a way of com-
pelling the creditor to inform the surety of the number of his colleagues.
But it may indicate that the reduction or limitation was not "ipso iure,"
that the lex being minus quam perfecta6, manus iniectio was the only way
of enforcing the limit in the legis actio system, an exceptio being used
under the formula7.

A /. Cicereia8, of a little later date, provided for the same thing in a
better way. It required the creditor to declare openly beforehand the
amount of the debt and the number of sponsores and fidepromissores:
a surety could, within 30 days, have a praeiudicium to determine
whether this had been done: if it had not, the surety was released. This
reference to praeiudicium indicates that the lex is later than the /.

1 G. 3. 122. 2 G. 3. 121 ; 4. 22. As it assumes provinces it must be later than 240 B.C.
when the first province was founded. It is odd that Gaius speaks of Italy as a province
"ceteris provinciis." The fact that the /. Appuleia applied also to provinces suggests that
provinces existed when it was enacted. There is no probability of a materially earlier date.
3 G. 3. 121. 4 Girard, Textes, 491. 5 Cuq, Manuel, 642. 6 See Girard,

Manuel, 111, n. 1 for discussion of this and other points under this lex. See also Appleton,
M61. Gerardin, 1 sqq., who holds that the reduction was ipso iure, referring to the above
lex of G. and toUIp. D. 45. 1. 72. pr. 7 G. 3. 121 may be read as shewing an ipso iure
division. But the word obligantur is uncertain. The absence of reference to the exceptio
may indicate that in practice the praetorian remedies which applied also to fideiustior
were utilised. 8 G. 3. 123.

444 LEGISLATION ON ADPROMISSORES [CH.

Aebutia1. Gains tells us that the law makes no mention of fideiussores
but that it was in practice usual to make this declaration in that case
also2. It is probable that fideiussores were not yet in existence at the
time when the law was enacted.

The later legislation applied to all adpromissores.

A /. Cornelia, probably of Sulla, provided that no one might be surety
for one man to one man in the same year for more than the value of
20,000 sesterces, the surety being void as to the excess. The rule does not
seem to have applied to conditional debts and was excluded from the case
of surety for dos, or in litigation, or for claims under a will or for taxes.
From the language of Gains it seems that the obligation was reduced ipso
iure, so that if surety was undertaken for more, and the creditor sought
to enforce it, there would be a. plus petitio3. The rule has disappeared from
Justinian's law: nothing indeed is known of it beyond what Gaius says4.

The Sc. Vellaeanum5, usually dated A.D. 46 and certainly of about
that date, forbade women to undertake liability for others, either by
way of surety (cumulative intercessio} or by novatio6 or other mode
releasing the person primarily liable (privative intercessio). Edicts of
Augustus and Claudius had forbidden such intercessio on behalf of the
husband, and the sc. points out that the Courts had in practice general-
ised this prohibition, which practice it confirms7.

The intercessio was absolutely void, but, like all rules laid down by
early sec., the rule was, in form, a direction to the magistrates, so that it
was enforced by exceptio8. But the intercessio was so completely void that
there was not even an obligatio naturalis9. The sc. was interpreted very
widely. It barred not only surety or pledge or novatio for another, but
also the undertaking of a primary obligation for the benefit of a third
person10. If the intercessio was by novatio, the original obligatio must
necessarily be destroyed, but was revived by an actio restitutoriau. If
it was a primary obligation undertaken for another the praetor gave an
action against that other12. And the sc. applied where an attempt was
made to evade it by a mandate given by the woman to a third person
to act as surety13. By the practice of the jurists14 some cases were ex-

1 Girard, Manuel, 772. 2 G. 3. 123. 3 Post, § ccxxxvn. It has however

been held that it gave rise to an exceptio, and also that there was merely an action for
recovery, but there is no trace of such an exceptio or of the application to this case of the
general exceptio senatusconsulti (post. § ccxxm, Lenel, E.P. 492) or of the action for re-
covery, which seems to belong to an earlier stage of evolution. Condictio indebiti in case of
error. 4 G. 3. 124, 125. Lenel, however, finds rather dubious traces of it in Paul

and Ulpian, E.P. 208 (44. 7. 42; 45. 1. 73. 1; 50. 16. 34). 5 P. 2. 11. See Gide,

Condition de lafemme (2), 153 sqq. 6 Post, § cxciv. 7 16. 1. 2. 8 H. t. 6;

44. 1. 7. 1. 9 16. 1. 16. 1. 10 H. t. 2. 1; h. t. 2. 5. 11 H. t. 13. 2. The

name " rcstitutoria " is said to be due to Justinian. 12 H. t. 8. 14. 13 H. t. 30;

h. t. 32. 3. 14 I.e., not by express provision of the sc. See, e.g., 16. 1. 19. 5.

x] LEGISLATION ON ADPROM1SSORES 445

cepted from the rule. It did not apply if the creditor was a minor and
the principal debtor was insolvent1, or where it was to save the father
from execution of a judgment2, or where, though she appeared as surety,
it was really the woman's own affair3, or where it was to provide a dos
for her daughter4, or, by a rescript of Pius, where she had deceived the
creditor5. Mere mistake on the part of the creditor did not exclude the
sc. unless the transaction was a disguised one, so that, on the face of it,
it did not appear to be intercession.

Justinian made a series of changes in this matter7. His enactments
are confusing but the general effect seems to be this. He allowed such
surety generally for provision of dos, or where it was on behalf of a
slave who was to be free on payment of money. It was to be binding in
any case, if, after two years, the woman confirmed it, or if she was paid
for undertaking it, or even acknowledged in the instrument that she
was so paid, which makes the rule useless at the cost of a falsehood. He
provided however that in all cases there must be writing and three wit-
nesses8. Finally he provided that no inter cessio on behalf of the husband
should be valid, however often confirmed.

In the enactment by which he provided that a woman might be
tutor to her children he required such a tutor to renounce the protection
of the sc.9 This suggests that there had been a right of renunciation,
and a text of Pomponius implies the same10, while one of Ulpian, quoting
Julian, implies the opposite11. The better view seems to be that there
was no such right, except so far as it was provided by the rules of
Justinian above cited.

CLVII. We have seen that sponsores and fidepromissores had a
means of recovering from their co-sureties what they had been made to
pay in excess of their share. The I. Appuleia did not apply to fideiussores,
but, very early, probably under the republic, practice introduced the
beneficium cedendarum actionum, i.e. a surety could before payment, or,
in general, issue joined, require the creditor to transfer to him, by way
oiprocuratio in rem suam12, all his rights and securities against the debtor
or other sureties13. The cessio could not be demanded without offer of
full payment, but the demand must be made before payment14. As the
creditor was under no duty to the surety he need surrender only such
rights as he had: the surety had no ground of complaint if, e.g., the credi-

1 4. 4. 12. 2 16. 1. 21. 1. 3 H. t. 21. pr. 4 C. 4. 29. 12. 5 16. 1.

2. 3; h. t, 30. Another exception P. 2. 11. 2. 6 16. 1. 4; h. t. 11; h. t. 19. 5. 7 C. 4.

29. 22-25; Nov. 134. 8. 8 As the same enactment (C. h. t. 23) also contemplates

valid cases which are not in writing, its meaning is doubtful and much disputed. 9 Nov.
118. 5. 10 16. 1. 32. 4. 11 14. 6. 11. 12 Post, § CLXXXIX. 13 46. 1.

17; 46. 3. 76. 14 C. 8. 40. 11. It must be demanded and received: it was never

implied.

446 BENEFICIUM CEDENDARUM ACTIONUM [CH.

tor had previously abandoned a security which he held1. There was in
this system an obvious difficulty. If the creditor was paid, he had no
longer any rights to cede, and though he ceded them before payment,
the payment would destroy them. The difficulty was met by treating
the surety who paid, not as discharging the debt, but as buying it2. This
is simple if the transaction was without judicial process, or before
joinder of issue (litis contestatio3), and we are told that it was enforced
by an exceptio doli*, under which the action would be lost if the cessio
had not been made as demanded. But if there was real doubt as to the
amount of the debt and the creditor refused cessio on the view that the
offer was not enough, and at the hearing this proved to be so, and the
surety sued thereon amended his offer, there could be no effective cessio,
as some at least of the actions were destroyed by the litis contestatio. If
the creditor proved wrong he would lose his action, though a debt was
due and he had acted in good faith. It seems on the rules, as we know
them, that injustice must have been done to one or the other if there
was a real dispute as to amount, which could not be settled in
iure5.

The remedy just discussed affected the case of co-sureties only
incidentally: it was designed to give the surety the benefit of securities
held by the creditor. Hadrian reinforced it by the beneficium divisionis6,
similar to, but not identical with, the rule of the I. Furia. There was no
relation between sureties (apart from special contract) giving one any
rights against the others, but this rule provided that a fideiussor might
not be sued for more than the amount of the debt divided by the number
of sureties solvent when the action was brought7. The right was enforced
either by refusal of the action or by an exceptio "si non et illi solvendo
sints," and, if this was not claimed, his obligation being essentially in
solidum, the defendant surety would have no claim against the others,
nor, even if he was in error, any condictio indebiti9. The right to division
was lost by denial of the debt, and Papinian says that it did not apply
where the fideiussor was given by a tutor to his ward10.

The right applied only between sureties for the same debt and the
same debtor, to the same creditor, not, e.g., as between a surety and one
who was surety for him, fideiussor fideiussoris11. But it was indifferent

1 C. 8. 40. 17. 2 46. 1. 36. 3 Post, § ccxxxv. 4 21. 2. 65. 5 See

Girard, Manuel, 775. 6 G. 3. 121. Paul attributes it to the praetor, P. 1. 20. 1.

7 46. 1. 51. 4. Thus insolvency of a surety increases the burden of the others if it exists
when the action is brought, but not if it supervenes afterwards. 8 46. 1. 28; C. 8.

40. 10. 1. 9 46. 1. 26; h. t. 39; h. t. 49. 1. It is supposed that the rule was applied

in practice to sponsores and fidepromissores, out of Italy, as these could not avail
themselves of the 1. Furia. 10 46. 1. 10. 1 ; 46. 6. 12. 11 46. 1. 27. 4; h. t.

51.2.

x] BENEFICIUM DIVISIONIS, EXCUSSIONIS 447

that they had become sureties at different times, or that one was only
conditionally liable1.

It is not clear at what stage the solvency of the other sureties was
looked into. Probably it was usually in iure, in which case there is no
difficulty. But the use of the exceptio shews that this was not always so,
and if it was at the hearing there is the difficulty that if the defendant
surety proved the solvency of another who was not being sued, or had
not been allowed for, the action was lost and litis contestatio had destroyed
the right against the others. Various attempts have been made to avoid
the difficulty by appropriate formulation2.

The debt in the cases of all the sureties and the principal being the
same, action against any one destroyed the right against any other3, on
the principle of non bis in idem, and the novatory effect of litis contestatio.
We are indeed told by Justinian4 that in very early law the creditor who
had sued one, without satisfaction, could still sue the others. But this is
not reconcileable with what we know of the law under the legis actio,
and in any case had ceased to be true in the classical law5. The debt was
one and the same. All were equally liable: the creditor could therefore
sue whichever he would, but having sued one, could sue no one else,
except that if he sued only for a share under the beneficium divisionis
there was probably relief against the others. Suing a surety first was
convenient if the debtor was away or was insolvent, but unless there
was some such reason it was a reflection on the debtor's solvency, and
Gaius says that to sue a surety when the debtor was "paratus solver e"
was an actionable iniuria6. It became usual in later law, after the dis-
appearance of indicia legitima, for sureties to agree not to avail them-
selves of this extinction, so that if, when sued, they pleaded the exceptio
rei iudicatae, there would be a rcplicatio pacti conventi7. Another, more
ingenious, way was to make ihefideiussio in a different form, to promise,
not the debt but " whatever the creditor cannot recover from the debtor,"
which, in later classical law, was interpreted to mean "whatever he has
been unable to recover by action against the debtor" (fideiussio in-
demnitatis), so that the debtor must be sued first8.

Justinian provided that in all cases where several were liable for the
same debt, action against one should not ipso facto release the others9,
which ended the difficulty. Later, he provided that the debtor must be

1 46. 1. 27. pr.; h. t. 48. 1. 2 See Girard, Manuel, 772. 3 P. 2. 17. 16,

4 Nov. 4. pr. 5 Paul, loc. cit. ; Lex Rom. Burg. 14. 7. 6 47. 10. 19. It must how-

ever be remembered that for such an action there must be evidence of intent to insult, post,
§ccu. 7 C. 8. 40. 5; h. t. 28. 1. 8 45. 1. 116; 46. 2. 6. pr. The older view

seems to have been (Celsus, 12. 1. 42. pr.) that on such words the creditor could still sue
the surety first, and the index would have to determine how much could have been re-
covered from the debtor, but apt words would exclude this. 9 C. 8. 40. 28.

448 PLURALITY OF PRINCIPALS [CH.

sued first, but that if he was away, and the sureties were on the spot,
time must be given them within which to produce him. If they did not,
they could be sued, having a right to cession of actions. This is the so-
called beneficium ordinis vel excussionis1 .

It must be remembered that these adpromissores were not the only
forms of personal surety. Besides the praes and vas, who will be con-
sidered in connexion with procedure2, there are the cases of mandatum
credendae pecuniae3, the pactum de constitute, and the receptum of bankers4,
which will be considered later.

As a surety could not be liable for more than the principal5 was, it
follows that anything which ipso iure released the debtor also released
sureties. But here too there were exceptions. Thus as we have seen the
surety was not released by the enslavement, or death without suc-
cessors, of the debtor6. But in the case of release ope exceptionis, the
exceptions were more numerous. Thus where a debtor being without
means was also in a position to invoke the so-called beneficium com-
petentiae7, sureties were not released8. A pact not to sue him did not
release the sureties if it was clearly meant to be in personam9. A minor's
right of restitutio in integrum did not protect a surety who had con-
tracted knowing of the minority10. And in many cases the praetorian
release was not allowed to discharge the surety also unless, as he had a
right to reimbursement against the debtor, enforcement against him
would be indirectly enforcement against the debtor, so that his exceptio
would be unreal11. Some of these cases will recur.

CLVIII. PLURALITY OF PRINCIPALS. It might be that there was
more than one principal creditor or debtor in the transaction. This
represents the main case of Solidarity, with its distinction between Corre-
ality and Simple Solidarity. These relations are not confined to stipulatio,
but it is primarily in this relation that correality is presented to us in
the Sources12.

In general, where there were several parties to a divisible contractual
obligation, it was divided between them13: if it was intended that each

1 Nov. 4. The names are not Roman. The enactment contains very detailed provisions.
2 It is doubtful if they had any application outside procedural securities. See Cuq,
Manuel, 643. 3 Post, § CLXXX. Called by commentators mandatum qualificatum.

4 Post, §§ CLXXXH sqq. 5 46. 1. 37; h. t. 49. pr.; h. t. 68. 2. Ante, § CLVI. 6 46. 3.
95. 1 in fine, 16. 3. 1. 14; C. 8. 40. 20. 7 Post, § ccxxxiv. 8 44. 1. 7. pr.

9 2. 14. 22. As to pacta in rem and their effect, post, § cxcv. 10 4. 4. 13. pr. 11 E.g.
2. 14. 32. It will be understood that many of these rules might be modified in their
application by special agreements between the principals and the sureties and among
the sureties themselves. 12 Though the distinction between correal obligatio and

surety is clear, it must be borne in mind that the cases overlap. It was not unusual for
correal debtors to become sureties for each other, reciprocally. 13 45. 2. 11. 1; 38. 1.

15.1.

xj SOLIDARY OBLIGATION 449

should be liable or entitled to the whole, this must be expressed in the
transaction. This is well shewn in stipulatio. If there were several parties
on one side and it was intended that each was to be liable or entitled to
the whole, the creditor uttered the stipulatio and the prornissores all
answered together, or conversely, each creditor asked and the debtor
answered once for all1. If there were more than one on each side, each
stipulator asked and the promissores answered together. Some such form
as this was indeed the only way in which to make it one stipulatio ; any
other method would decompose into separate stipulations. But this
would not be necessarily so if the stipulatio was by written cautio. There
we are told that even if the cautio shewed that there were two stipulatores
or two promissores, they were not correi unless the cautio expressly
made them such — each would be liable or entitled only to a pars
virilis".

The common case, in which the obligatio was divided, does not here
concern us, and there was a case where all were liable, each for the whole,
which also does not concern us. This is the case where several were liable
for a penalty for a joint delict. If two persons engaged in a theft, each
was liable for the whole penalty. This may be called solidarity, but it is
not the case we are dealing with. Each was liable for the whole, and
would continue so liable though another had paid3, their liabilities being
entirely independent. This applied to all civil liabilities for a penalty,
but only to the liability for the penalty4. Thus in the case mentioned
there would also be a condictio furtiva for the value of the thing. Each
was liable for the whole but payment by one discharged the rest.

The case we are concerned with is that in which each of two or more
persons was liable or entitled to the whole, but it was due only once, so
that if the sum was once paid the whole was ended. This was what is
commonly called solidary obligation, a name coined from the Roman
expression, in solidum, which has no technical force, but is applied when
it is wished to emphasise the fact that a man is liable for the whole5.

Cases of this sort are numerous and familiar, though not always
readily associated with the notion under discussion. There are many
other than the primary case of joint contract. There are the cases of
sureties, inter se (subject to the legislative restrictions already noted), of
surety and principal, of adstipulator and principal, the liability of
common owners of a slave on his contracts or noxalty on his delicts, the
liabilities of dominus and free institor, each of whom is liable on the

1 Inst. 3. 16. 2 45. 2. 11. 1, 2. In the case of informal contracts, the intent to

exclude division must be clearly stated, h. t. 9. pr., 1. 3 47. 4. 1. 19; 9. 2. 11. 2;

C. 4. 8. 1. 4 See, however, as to the praetorian delicts, dolut< and rnetus, post, §§ CLIX.
5 Thus in de peculio the liability is limited, but in quod iussu it is in solidum. 14. 5. 1.

B. K. L. 29

450 CORREALITY [CH.

latter's contract1. So too it was provided that contracts by a member
of a firm of argentarii or of slave-dealers (venaliciarii), or by one of joint
exercitores in the business, were to be treated as made solidarity by them
all2. So too where A made a legacy to B of what C owed B, or where
several made a solidary deposit3, or where several were jointly liable to
pay compensation for a wrongdoing, as opposed to paying a penalty4.
Other cases are those of contutores, and there are many others5. The
possibilities of joint contract are endless.

These cases break into two groups, the essential difference being that
in classical law, in one group, the bringing of an action by, or against, one,
barred, or released, all the others. In the other group this was not so;
roughly speaking, only satisfaction ended the obligation. To the first
case the name correality may be applied, though it seems usual in modern
writers to confine it to those cases in which the correal relation was
expressly created by the parties, the others being spoken of as correal
in a wide sense. The second case is commonly called simple solidarity.
Where the plurality was on the creditor's side, it is called active cor-
reality (or solidarity), in the other case it is said to be passive.

We shall deal first with correality, confining ourselves to the typical
case of stipulatio, remembering that the same relation could also arise
in the bonaefidei contracts6 and in mutuum7, though we have no evidence
of it in the literal contract.

A correal obligation did not differ in content from any other; all that
we need consider are the modes and consequences of its ending. Like
all obligations, it ended by performance, and this destroyed it as against
all parties. It was also completely destroyed in classical law by the
novatio necessaria involved in litis contestatio in an action on it, between
any parties8. But many other events destroyed it. It may be said that
anything which completely destroyed it as to any one debtor, without
affecting his personality, i.e. as Paul puts it9, destroyed the debt, but
not the debtor, destroyed it altogether. Thus it was ended altogether
by novatio10 or acceptilatio11 between any parties, or by an oath tendered
and taken, that there was no debt12. It was ended by destruction of the
thing due without culpa or mora13 of a party. If it was by culpa or after
mora, it survived against the party concerned, but on the texts it was
extinct against the others in case of mora, but survived in that of culpau.

\ Or his owner, if he is servus alienus, 14. 3. 17. 1. 2 2. 14. 27. pr. ; 14. 1. 1. 25;

21. 1. 44. 1. 3 45. 2. 9. 4 C. 4. 8. 1. 5 E.g. 45. 2. 9. pr. 6 45.

2. 9. pr. 7 46. 1. 71. pr. But mutuum was usually reinforced by a stipulatio.

8 46. 1. 5. 9 46. 1. 71. 10 Post, § cxciv. 11 Post, § cxcv. 12 12. 2.

28. 3; 45. 2. 2. 13 Post, § CLXXXVHI. 14 22. 1. 32. 4; 45. 2. 18; 50. 17. 173. 2.

The distinction is however explained away by some writers as being unreasonable. See
for different solutions, Cirard, Manuel, 756, n. 3.

x] CORREALITY 451

On the other hand, other parties were not released or barred by de-
portation, or death without successors, of one of the parties, or by con-
fusio between one debtor and one creditor1. Conversely if one debtor
gave an acknowledgment to one creditor, which had the effect of
lengthening the period of prescription of the action, it was, under
Justinian, equally lengthened against all the debtors, and in favour of
all creditors2. A set off held by one was of no avail to the others3.

Praetorian defences, which did not destroy the obligation altogether,
give rise to some difficulty. A pactum de non petendo, if purely in per-
sonam did not affect other parties4: if in rem it might, according to dis-
tinctions to be later considered5. The same is true of transactio6. The
effect of pactum de constitute on the other parties is doubtful7.

Justinian put an end to the most striking of these modes of dis-
charge, by enacting that where there was a plurality of debtors, litis
contestatio against one should not discharge the others. He does not
mention plurality of creditors8, but the omission is probably mere
accident. For some of the cases there is no record of plurality of creditors ;
it is clear on the texts and on the facts of life that plurality of debtors
is the common and practical case.

The position of correi, inter se, gives rise to a question. If one creditor
had received all, or one debtor had paid all, was there any right or
obligation of contribution? The answer, notwithstanding much modern
controversy, seems to be9 that there was no such right so far as the
relation was merely one of correality. It is indeed suggested that, at
any rate in post-classical law, any debtor who paid the whole could
claim cessio actionum, as a surety could10. But such little evidence as
exists for this is lessened in force by the fact that it was not uncommon
for correi to agree to become sureties for each other, fideiussio mutua or
alterna11, and the few texts may well refer to this case.

But this harsh looking rule means little. Men did not become correi,
at any rate expressly, by chance, without previous negotiation, and there
were two well-known ways in which this inconvenience could be
avoided. They frequently became sureties for each other, which gave all
the various rights discussed in connexion with adpromissores. Or they
might be socii, permanently, as in those cases, argentarii, venaliciarii,
etc., already mentioned, in which correality was created by law, or for
the purpose of this transaction only, and there was contribution inter

1 45. 2. 19; 46. 1. 71. 2 C. 8. 39. 4. 3 45. 2. 10. 4 2. 14. 25. 1.

5 Post, § cxcv. 6 27. 3. 15. 7 13. 5. 10. Demangeat, Oblig. Solidaires, 86.

8 C. 8. 40. 28. 2. Elaborate legislation in the Novels, e.g. Nov. 99. 9 35. 2. 62.

pr.; 45. 2. 10. 10 C. 4. 65. 13; C. 8. 40. 11; D. 19. 2. 47 (?interp.). 11 45. 2. 11.
pr. See however on this text and on the matter generally, Oollinet, Eludes
1. 131 sqq.

29—2

452 SIMPLE SOLIDARITY [CH.

socios1. Correality did not destroy the right of "regress" where it ex-
isted. Thus there was no difficulty where, as ordinarily, the case was one
of consent, or where, though it was imposed by law, there was a societas.
And where the facts did not involve consent, they commonly created a
regress. A testator could impose this liability on his heredes2, but the
one who had paid had familiae erciscundae. A principal and his institor
(or the owner of the institor) were correally liable, but the institor, if
compelled to pay, had his remedy under his contract of mandate with
the employer. The liabilities of common owners of a slave on his con-
tracts and delicts were correal, but the matter could be adjusted in
communi dividundo3.

CLIX. Simple Solidarity. The main distinction between this and the
preceding case was that here litis contestatio between parties did not
affect other parties, while satisfaction did4. Beyond this we do not
know very much. It is clear that nothing would discharge which did not
in the case of correality. But it is not clear that the converse is true even
apart from litis contestatio. It has been maintained that acceptilatio
would not discharge5. As joint stipulatio involved correality, and
acceptilatio was release from promissio, it might seem that the point
could not arise, but this is not so. The liability of tutores was solidary,
not correal. Where a tutor had given security, an acceptilatio on the stipu-
lation would release him, and the question arises whether it would
release his colleagues. As it was tantamount to satisfaction, it seems
that it should do so. The same point arises in connexion with novatio and
oath, but we have no information.

The question then arises: when was an obligation simply solidary?
The first point is that no clear case can be shewn of this type on the side
of the creditor6; it was always "passive" solidarity. It arose in certain

1 There is good evidence of the frequency of societas among correi, 35. 2. 62. pr. ; 45. 2.
10. As to contribution inter socios, post, § CLXXVU. This societas modifies other rules of the
institution. The right of regress would make a pactum d? non petendo useless unless it was
available to all, and accordingly it was so available, 2. 14. 25. pr. For the same reason
a iransactio was available in the same way, 4. 8. 34. pr., and any socius could use a set off
of any other. 45. 2. 10. If there was confusio between one debitor correus socius and the
creditor, the others might use it to the extent to which they would have been entitled to
claim against the correus who had become creditor. 46. 1.71. pr. Probably similar modifica-
tions applied where they became sureties for each other. 2 45. 2. 9. pr. 3 10. 3.
15; 11. 1. 20. pr.; 14. 3. 13. 2. 4 E.g. 26. 7. 18. 1. 5 Girard, Manuel, 760,
citing Gerardin. The analogy of transactio does not seem convincing, 27. 3. 15. It is not
clear that this destroyed correal liability, in all cases. And it is a praetorian defence,
acceptilatio is civil. 6 The case of dos promised to vir and legata to uxor may be
one (23. 3. 29; 30. 84. 6). It is not correal, since these texts shew that action by one did
not bar the other. But it is not clear that it was solidary either, for the heres could claim
security from the wife suing, to indemnify him from action by the vir, so that payment
did not in principle discharge it either. The texts shew that the parties are forced by
indirect means to be satisfied with one payment. In strictness it is not " ead em res" at all.

x] SIMPLE SOLIDARITY 453

praetorian delicts, metus, dolus, in the actio de rationibus distrahendis
against tutors and perhaps some other delicts. It arose also in a group
of contractual and quasi-contractual cases, where the liability had resulted
from a breach of duty in a common undertaking, from culpa or dolus.
It appears from several of the texts, though not from all, but it is the
only rational rule, that this applied only if the fault was common to
them. Among the cases mentioned are tutela and most of the bonaefidei
contracts, including mandate. It is not stated in negotiorum gestio, but
common gestio, though it must have occurred, is rarely discussed1.

There was in general, as in correality, no recourse. But in the case
of tutores, any tutor sued, if he had not personally been guilty of dolus,
was treated like a fideiussor and given the beneficium divisionis and
cessionis, and even it is said an actio utilis where he had not taken cessio2.
A text, probably dvie to Justinian, gives an actio utilis in the case of
joint liability for deiecta et effusa, and says nothing about the beneficia3.
Tutela seems the only clear case4. It should be added that in the opinion
of some critics nearly all these cases of simple solidarity are due to
Justinian, the cases having been correal in classical law5.

It remains to consider why some cases were correal and others
solidary. The opinion most widely held rests on a subtle distinction. In
both cases there was only one object, one thing due, but in correality
there was also only one obligation, so that what ended it for one ended
it altogether, while in solidarity the obligations were distinct, and what
happened to one need not affect the others. But this is open to serious
objection6. It is not consistent with the facts. The same obligation could
not be both civil and merely praetorian, as was the case of the obligations
of employer and institor on a contract. It could not be both simple and
conditional as correal obligations could 7. And while there are texts which
speak of unity of obligation8, there are others which speak of distinct
obligations9. Moreover, it is merely giving the rule as a reason for itself,
for it does not shew why those who combined in a contract of stipulatio
created only one obligation, while those who combined in a wrong
created more than one. The expression correi is very rare10. The usual
name is duo rei11, a name equally applicable to any case in which two
are liable, and not suggestive of any fundamental distinction.

1 See Girard, Manuel, 158, for a full statement of the cases. 2 27. 3. 1. 11-13.

These texts are at least to some extent interpolated. 3 9. 3. 4. 4 It is sug-

gested that there was the same rule in deposit, 16. 3. 22. But here both heredes have com-
mitted dolus: they would not be liable for mere culpa (h. t. 10). The liability pro parte
mentioned in one hypothesis is not due to solidary obligatio, but to the fact that each has
committed dolus in respect of different property. 5 See Eisele, Archiv fur C. P. 77.

374 sqq. ; Albertario, Bull. 26. 106. But this author accepts interpolations very freely.
6 See Hunter, Rom. Law, (4), 561; Girard, Manuel, 753. 7 45. 2. 7; Inst. 3. 16. 2.

8 E.g. 45. 2. 3. 1. 9 E.g. 46. 1. 5. 10 34. 3. 3. 3. 11 45. 2. passim.

454 DICTIO DOTIS [CH.

Accordingly a much more simple explanation has been proposed and
is strongly supported. Whether there was one obligation, or more, there
was at any rate only one thing due. There was an ancient rule: non bis in
idem, and it follows that the same thing might not be claimed twice.
Thus the rule in correality was not a special rule for that case, but an
application of ordinary principle; it is the rule in solidarity which needs
explanation. The renewed action was bis in idem, for it was eadem res.
It is therefore suggested that there was no logical basis; it was an
illogical relaxation, a gradual historical development expressing the
idea that those who do wrong ought not to be released from their
obligation to compensate, except by satisfaction. No doubt the evolution
was gradual, and, as we see it, largely due to Justinian1. It may be
remembered that a similar difficulty was in some cases dealt with by
the praetor. One who had sued de peculio could not sue again, though
unsatisfied, but the praetor gave relief, as he did where buyer and seller
were both liable de peculio and one had been sued2.

CLX. There were some other verbal contracts.

DICTJO DOTIS. This is one of the three ways in which dos could be
created in classical law: datur aut dicitur aut promittiturz. But dictio
must be by the woman or her paternal ancestor or by a debtor to her,
under her authorisation*. It was a solemn declaration that a certain
thing or sum should be dos, made without need of any previous question.
It is possible that in early law dictio necessarily preceded the marriage,
but in classical law it might be later. It was obsolete under Justinian,
but many texts in the Digest which now speak of promissio were written
of dictio. Some of these preserve the form: " Stichus (or centum or fundus
Cornelianus) tibi doti erit5." The other party must be present, but need
not say or do anything6. Hence arise doubts whether it is properly re-
garded as a contract, at least for early law7. In any case it gave rise to a

1 History of the doctrine obscure. It has been inferred from 43. 24. 15. 2, that the idea
is later than Labeo but any inference from so corrupt a text is uncertain. The starting-
point is probably in dolu-s and metus. A. doli lies only si res aliter servari non potest, 4. 3.
1 . 8 ; h. t. 5. A . fortiori not where res servata est. The whole process is only for restitution.
A. metus does not lie si res restituatur, 4. 2. 14. 3. It is suggested by 4. 2. 14. 5 that
actual restitutio apart from process always freed others, but it was only by a later doctrine
that the same result followed from payment under condemnatio. See ref. ante, p. 453,
n. 5. 2 15. 1. 11. 8; h. t. 32. 1; h. t. 30. 4. 3 Ulp. 6. 1; 11. 20. 4 Ulp. 6. 2.

5 E.g. 23. 3. 25. 6 G. 3. 96. 7 Karlowa, R.JRg. 2. 579. It was a contract in

later law, Gai. Ep. 2. 9. 3. There were other institutions in Rom. Law presenting the same
character of being unilateral in the sense that they were binding on the person who under-
took them without need of any acceptance by the other side. It might be said that as the
very act of enforcing them is an acceptance we have, when they are enforced, all the
characteristics of a contract. The point is, however, that they are binding from the
moment when they are made, so that they cannot be recalled even before acceptance.
Such is Voturn, a vow of a gift to some divinity, if some event happens, common in

x] 1USWRANDUM L1BERTI 455

strictum indicium, but where it took the form of release from debt (quod
mihi debes, tibi doti erit) the debt was not ipso iure destroyed, but only
ope exceptionis1. It seems to have been a "formal" transaction. It might
be conditional2, and, no doubt, ex die.

It is mentioned in literary texts of the Republic3 and by Gains and
Ulpian4, and it appears in an enactment of 396s. It is supposed to
have been abolished by an enactment of 428 which validated any in-
formal promise or pollicit atio ofdos6, but as this did not abolish promissio
it seems rather to indicate than to cause the disappearance of dictio.

lUSlURANDUM LiBERTi. This also was a verbal contract, uno loquente,
but both parties present7. Where the manumission of a slave was other-
wise gratuitous and was voluntary (i.e. where the master was not under
an obligation to free, as under a fideicomrnissum), it was permitted to
require of the man an undertaking to render certain services8 — operae.
There was however the difficulty that no promise by a slave was binding
after manumission, and on the other hand a man once freed might
possibly refuse the undertaking. This was surmounted by requiring him
to take an oath before he was freed, which put him under a religious
obligation to renew the undertaking after he was free. The renewed
promise was also under oath, though a stipulatio would have served
equally well. In fact, though the iusiurandum survived into Justinian's
time9, it is clear that stipulatio had long been more usual. This had indeed
the advantage for the patron that presumably it would not necessarily
be destroyed by his capitis deminutio as the iusiurandum was10. There

Roman Catholic communities to this day. But in Rome it was enforced, in early law,
by legal, not merely religious sanctions (Karlowa, R.Rg. 2. 580), though we do not know
the machinery. The occurrence of the expression "voti damnas" suggests that it was by
manus iniectio. Such details as are known can be found in Karlowa, op. cit. 2. 580 sqq.
The institution existed in classical law in some form, but, though the word is found in the
Digest (50. 12. 2. 1), the institution itself was obsolete. Another such institution is
pollicitatio. This which means, in general, any undertaking or proposal, signifies in this
technical sense a promise to a municipality, usually in return for some honour conferred,
or to be conferred. This was binding of itself, but if it was made without any honour
or the like, it became binding only when the promisor had begun to carry it out (50.
12. 1. 1, 2). It seems to be a creation of imperial enactments about the middle of the
second century (50. 12. 1. pr.; h. t. 1. 5; h. t. 6. 2; h. t. 7, etc.). There is a title in the
Digest on it (50. 12). There are institutions of a somewhat similar kind in English law in
which they are regarded, when they are concerned with obligatio, as irrevocable offers
which will become contracts when accepted. The Romans do not analyse them at all.
Modern German analysis seems to see in them a type of obligation independent of con
tract.

1 23. 3. 44. 1. 2 50. 16. 125. 3 See the reff. in Costa, Storia del Dirt priv.

Rom. 14. 4 See p. 454, nn. 3, 4, 6. 5 C. Th. 3. 12. 3. This appears in C. 5. 5. 6,
but the reference to dictio is suppressed. 6 C. 5. 11. 6. 7 G. 3. 96; 42. 2. 6. 3.

8 38. 1. 7. 4; h. t. 13. 9 38. 1. 7. pr. 10 G. 3. 83; Inst. 3. 10. 1, which makes the

instruction otcur always. But see D. 33. 2. 2.

456 CONTRACT LITERIS [CH.

are traces of an opinion among early lawyers that the original oath
before manumission was actually binding1, but there is no evidence
that this was really so in historical times. The iusiurandum was a formal
verbal contract, capable of release by acceptilatio2, and perhaps capable
of guarantee by sponsio3. The oath was binding even though taken by
an impubes*. It must be made immediately on the manumission, other-
wise it could not be compelled, though if actually taken later, it would
be valid5. It was of course stricti iuris. Since we naturally think of
services as something to be done rather than given, we should expect a
formula in the form " dare facer ~e oportere." But in fact the indicium
operarum actually had the intentio in the form of condictio certi6: dare
oportere. As has recently been shewn, an opera — a day's work — was
conceived of as a unit of value and thus as a dandum, not a faciendum,
so that it had, properly enough, the formula of condictio certae rei"*.

CLXI. THE CONTRACT LITERIS*. A7 o MJNA T RAI \SSCRIPTITIA. Ex-
I'ENSILA TIO. Although we have evidence of the importance of this con-
tract, we know little of it. Our substantial sources are a brief account
in Gaius, a very different account by Theophilus9, one or two references
in other legal texts, a number of allusions in lay literature10, and a de-
fective inscription11, these last being in no way concerned to explain it.
The account by Gaius is, shortly, as follows: The contract was called
nomina trans scriptitia and was made in two ways. It might be "a re in
personam" in which what was due in some other way was transformed
into this contract by recording it as having been paid to the debtor. It
might be "a persona, in personam," in which case what was due from A
was entered up as due from B, A having "delegated" B. It must be
distinguished from nomina arcaria, which were similar entries but of
real payments, the liability arising not from the entry, but from the
actual loan. Peregrines had not this mode of bookkeeping, and the
Proculians held that they could not be parties to this mode of contract,
but the Sabinians held that if it was a re in personam they might be
debtors under it, though they could not be parties in any other way.

This tells us little of the nature of the contract. Elsewhere we are
told that it could not be conditional12, but it is inferred from a letter of
Cicero that it did admit of dies, though the brief remark is not quite
conclusive13. The debtor must consent to the entry14, and no doubt he
would normally make a corresponding entry in his own book, but this

1 40. 12. 44. pr. 2 46. 4. 13. pr. 3 38. 1. 8. 1 speaks only oifideiussio. 4 38.
1. 7. 5. 5 38. 1. 7. 2; 40. 12. 44. pr. (? interp.). 6 Lenel, E.P. 328. 7 De-

schamps, Mel. Gerardin, 157 sqq. 8 G. 3. 128 sqq. 9 Ad Inst. 3. 21. 10 Costa,
Storia d. Dir. priv. Rom. 346, 347. 11 Girard, Textes, 843. 12 Vat. Fr. 329.

13 Adfam. 1. 23. It may be that the entry would be made on the day chosen. 14 Gaius
does not say this, but it is inevitable.

x] CONTRACT LITERIS 457

does not seem to have been essential1. As it was essentially the acknow-
ledgment of a loan it was always for a sum certain. It was unilateral
and stricti iuris, the action being the actio certae pecuniae creditae. Th"
exceptio non numeratae pecuniae was available, but as the basis of that
defence was that the alleged loan had not been made, and the basis of
this contract was a fictitious loan, this seems, at first sight, to make th"
contract useless. But it was always made as a sort of novation or rec-i
of an existing transaction, or as a way of opening a credit for the debtor,
and the exceptio would be for use where the previous transaction had
never existed, or the business contemplated had not gone through2.

All this leaves the actual mechanism of the contract obscure. What
was the nature of the transscriptiot In what account book did the entry
appear? That there were twro entries and that one was based on the
other appears from the name and the fact that a single transaction
consists ofnomina in the plural3. Romans kept a daybook or adversaria,
on which the day's dealings were noted, and these were, it seems, copied
into the codex accepti et depensi from time to time4. It has been con-
jectured that transscriptio means transfer from the daybook to the other,
but it is clear that both entries were in the same book or, at any rate,
made at the same time. It has been conjectured that this book was a
special one kept for this purpose, and also that it was a ledger, containing
a statement of debts incurred and rights acquired, but both these views
are without evidence. The view most generally accepted is that it was
the ordinary cashbook, codex accepti et depensi— the statement of moneys
paid out and in. The loan being fictitious, the book would not balance.
It is supposed therefore that there were two fictitious entries, one stating
money received, the other, the expensilatio, on the other side. If it was
a persona in personam, the former would be an entry that the money
had been received from the other debtor ; if a re in personam, it would be
an entry of receipt of what was due under the earlier dealing. This would
apply even though the previous dealing was not binding, e.g. a sale
before the consensual contract existed. Where there was no previous
dealing, but it was intended to open a credit, we do not know anything
of the form5.

The contract fell into disuse with the practice of keeping private

1 In the case put in de officiis, 3. 14. 59, the transaction is completed by entries made
while the buyer is paying a call; he can hardly have had his account books with him.
and, as Girard remarks (Manuel, 509), the point would have been material to the defence
in the Pro Rose. com. 2 0. 4. 30. 5. 3 Cicero, de officiis, 3. 14. 59, "nomina

facit : ncgotium conficit." 4 Cicero, Pro Rose. com. 3. 8. 5 The foregoing

account represents what may be called orthodox opinion. But the evidence is very scanty
and different opinions are possible. Thus it has been recently maintained (Heck, Archiv
/. rn>. Pr. 116. 1:29) that there is no warrant for the conception of the contract as con-
sisting in entries in an account book, and that it was in fact merely a formal document.

458 CONTRACT LITERIS [CH. x

books, and disappeared late in the classical age1, having survived longest
among bankers, who of course still kept books2. Justinian observes that
these nomina were not now in use, but that there was still a sort of
written contract. He says that where a man had given a written ac-
knowledgement of a loan, not in fact made, and the time for the exceptio
non numeratae pecuniar was past he was bound by his writing, at least
if there was no stipulatio3. But though the practical effect was much
the same this is really a confusion4. The man was bound by the mutuum
and had provided evidence which barred him from denying that there
was a mutuum. The document was not the contract, but only evidence,
though in the circumstances it was conclusive evidence5.

1 It existed in Papinian's time, Vat. FT. 329. See Costa, Storia d. Dir. priv. Rom.
350. 2 Practically they kept their customers' books, see post, § CLXXVHI.

3 Inst. 3. 21. 4 See however Collinet, £t. Hist. 1. 59 sqq. But see also the argu-

ments assembled by Girard, Manuel, 511, n. 5. 5 The custom of embodying trans

actions in writing is borrowed from Oriental practice, and Gaius speaks of chirographa,
which seem to have been sealed by one, and syngraphae, sealed by both, as essentially
peregrine. But with the extension of civitas under Caracalla, such documents begin to play
a more important part under Roman Law. There are many forms with varying names
changing as time goes on (see especially Mitteis, Rom. Pr. 1. 290 sqq. for an account of
them), but they seem to be all, so far as Roman Law is concerned, merely evidentiary.
Justinian uses the word chirographum freely, but he seems to mean by it no more than
cautio, a memorandum of a transaction, usually sealed by one or both parties.

CHAPTER XI

OBL1GAT10 (cont.). CONTRACTS RE. CONTRACTS
CONSENSU. INNOMINATE CONTRACTS.

CLXII. Contracts Re, p. 459; Muluum, ib.; CLXIII. Sc. Macedonianurn, 462; Fenus
nauticum, 463; CLXIV. Depositum, 464; Special cases of deposit, 466; CLXV. Commodatum,
467; CLXVI. Pledge, 470; Fiducia, 471; Pignus and hypotheca, 472; CLXVII. Remedies
of creditor, 474; CLXVIII. Special rules of hypothec, 476; Priorities, ib. ; Varieties of
hypothec, 477; CLXIX. Consensual contracts, 478; Emptio vendilio, ib.; Consent, ib. ;
Subjects of sale, 479; CLXX. Price, 482; CLXXI. Duties of vendor, 484; Warranty against
eviction, 486; CLXXII. Warranty against defects, 488; Duties of vendee, 490; CLXXIII.
Special conditions, 491; CLXXIV. Locatio conductio, 494; of things, 495; obligations of
lessor, 496; CLXXV. Obligations of lessee, 497; Expiration, 499; CLXX VI. Locatio of
services, 500; operarum, 501; operis faciendi, 502; Special cases, 1. Rhodia de iactu, 503;
CLXXVII. Societas, 504; Duties of parties, 505; CLXXVIII. Termination, 507; Special
cases, 510; CLXXIX. Mandatum, 512; Duties of parties, 513; Termination, 514; CLXXX.
Mandatum as a consensual contract, 516; as agency, ib. ; as surety, 517; as a mode of
assignment of obligation, 518; CLXXXI. Innominate contracts, ib.; Evolution, 519;
Permutatio, 520; Aestimatum, 521; Precarium, ib.; Transactio, 523.

CLXII. The contracts "re." These (Mutuum, Commodatum, Deposi-
tum and Pignus) have as their common quality the fact that the binding
element is the handing over of the subject-matter. This cannot be re-
garded as a "Form" in the sense that the contract is formal, for we shall
see that, in many cases where the thing chanced to be in the hands of
the person who was to hold it under the contract, there was no actual
delivery. Nor can the contract properly be said to be binding by part
performance, for in mutuum the only person bound, and in commodatum
and pignus the person primarily bound, were those who received a
service by the handing over, while in deposit the person primarily
bound was one to whom the handing over was not a service. And that
way of putting the matter leads to the notion that part performance
made an agreement binding, a rule of much later development1. But,
however we look at them, these contracts involved a new conception ;
certain bargains were made binding, not certain ways of making bar-
gains.

M UTUUM. This was loan, not for use, but for consumption, the debtor
being bound to return, not the same thing, but the same quantity of
things of that kind and quality2. Thus it applied only to what the Romans
called res quae mutua vice funguntur3. Money is the most obvious case,
but it applied equally to any things such as are commonly dealt with by

1 Innominate contracts, post, § CLXXXI. 2 G. 3. 90; Inst. 3. 14. pr. 3 Res

Jungibiles is not a Roman expression.

460 MUTUUM [CH.

number, weight or measure — corn, wine and so forth1. It is conceivable
that anything might be the subject of mutuum if the parties so agreed.
The contract was purely unilateral, binding only the receiver. It was
stricti iuris, the remedy in case of money being the actio certae pecuniae
creditae, and in other cases condictio triticaria2. Questions of quality
would be material in these cases: no doubt the intentio stated the grade
or quality of the goods3.

Mutuum was the oldest of the "real" contracts and the only one
which was stricti iuris. It was not in practice very frequent, for it was
usually coupled with a stipulatio for return (not uncommonly with
interest — fenus), and where it was so reinforced it was superseded by
the stipulatio*. It does not seem probable that mutuum, conceived of as
a contract, is of great antiquity. But it has been pointed out5 that the
notion of an obligation to restore, where one man is wrongfully enriched
by the receipt of specific sums of money which should rightfully be
another's, the basis of the later system of condictio (sine causa6), is one
of extreme antiquity. The case of money handed over on an undertaking
to return it is an obvious form of this, and gradually, in the course of
evolution of legal analysis, takes shape as a specific contract7.

A mutuum might have subsidiary agreements in it. There would
usually be a day fixed for repayment, or a provision that the property
was not to pass, and mutuum arise, till some future day8. There might
be a solutionis causa adiectus, and a place fixed for payment, and there
might be conditions9. There might even be resolutive conditions, e.g.
that in certain events the money was to be a gift10.

It was of the essence of mutuum that dominium was transferred from
the lender to the borrower, but in the complex relations which arose in
trade it was inevitable that there should be some relaxation of this rule.
Some cases which look like relaxations are not really such but are ex-
pressions of the various forms which traditio might take. If A asked C
for a loan and C told him that B owed C money and that if A collected
it from B he might have it as a loan, there was a mutuum so soon as A
had collected the money. At first sight the actual money seems never
to have been C's, but in fact it passed to C, and was transferred from C
to A by traditio brevi manu11. But one case appears to go further. A

1 G. 3. 90; Inst. 3. 14. pr. 2 As to these actions, see post, § ccxxx. 3 12.

1. 3; Lenel, E.P. 233. 4 45. 1. 120. 2. 5 See Girard, Manuel, 516 sq., and

Pernice, Labeo, 3. 1. 220 sqq. 6 Post, § CLXXXVH. 7 Early express loans of money
no doubt usually took the form of nexum, ante, § CL. 8 12. 1. 8. 9 E.g. in

nauticum fenus, where the obligation to return does not arise unless the voyage is safely
completed. Post, § CLXIII. This appears to be a suspensive condition. See also 12. 1.
7; h. t. 10; 45. 1. 122. pr. 10 39. 5. 1. pr.; h. t. 18. pr. 11 See D. 12. 1. 2. 4; h. t.

9. 8; 45. 1. 126. 2, etc.

xi] MUTUUM 461

asked C for a loan and C got his debtor B to promise to pay A instead
of C; there was a mutuum to A. In the actual case there was an error
which vitiated the transaction, but it seems to be the opinion of Celsus
that there would be mutuum apart from this error1. It is not however
absolutely clear that the mutuum is contemplated as arising at the
moment of the promise. If it arises only on payment, there is nothing
exceptional2.

If, apart from these points, ownership did not pass, there was no
mutuum. It does not follow that there was no liability. If the lender
failed to transfer ownership because he was not able to alienate, he had
a vindicatio, or, if the property had been consumed in good faith, a
condictio. If it had been consumed in bad faith he had either this or, if
he preferred, an actio ad exhibendum3. If the failure was due to his not
being owner the true owner had the vindicatio, and if the thing had been
consumed in good faith, the lender (so to call him) had a condictio to
recover the money, and the owner, who had no direct claim against a
bona fide possessor who had ceased to possess, could demand cession of
these actions. If the property had been consumed in bad faith, the
owner had the actio ad exhibendum4.

As the actual thing lent had not to be returned, but its equivalent
in kind and quality, there was no question of negligence. Apart from
special agreement, whatever happened to the property lent, an equivalent
must be returned5.

Mutuum, as a result, perhaps, of its origin above stated, was gratui-
tous, but the Roman business man did not lend gratuitously. What the
rule meant was that interest, if any, and there usually would be6, must
be agreed for by a separate contract. This would normally be a stipulatio"1 ,
for a mere pact would not base an action, though a pact to pay interest
created a naturalis obligatio, which pacts ordinarily did not8. The rate of
interest was not unlimited and there were penalties for exceeding the
lawful rate9. The maximum rate for money loans in the Empire was
12 per cent. Justinian lowered it to 4 per cent, for private loans and
6 per cent, for ordinary business loans. Compound interest (anatocismus)
was forbidden10.

Where interest was contracted for by separate stipulatio it would of

1 12. 1. 32. 2 See however Girard, Manuel, 523. He cites other texts in

support of the view that the Romans were groping at, without grasping, the notion
of handling book credits as if they were money. 3 12. 1. 12; h. t. 13. 1. 4 12. 1-
11. 2. 5 C. 4. 2. 11. 6 Loan at interest is called fenus, but so far as the loan

is concerned it is the contract of mutuum. 7 Exceptional cases in which pact sufficed,
post, JJCLXXXVHI. 8 Post, §CLXXXIX; 46. 3. 5. 2; C. 4. 32. 3. 9 See, e.g., for

later law, C. Th. 2. 33. 2. In classical law what was paid in excess was imputed to the
debt, or could be recovered as an alternative, P. 2. 14. 2, 4. 10 C. 4. 32. 26, 28; D. 12

6. 26. 1. On the subject of interest generally, post, § CLXXXVHI.

462 SC. MACEDONIANUM [CH.

course be recovered by a distinct action. But a pact could not be sued
on ; it seems therefore to follow that the interest in those cases in which
pact sufficed would be recovered in the same action. Thus, in the case of
loans of grain, we are told that the fact that the value had in any case
to be estimated in the judgment permitted of the addition of the interest
also1. But in money loans by civitates (another case in which pact
sufficed) there wras an obvious difficulty. The actio certae pecuniae
creditae did not admit of any addition to the sum named in the intentio.
It was for certa pecunia. It is to be supposed that the interest due was
added to the amount of the loan in the statement of claim, i.e. the
intentio of the action.

CLXIII. Sc. Macedonianum. This enactment provided an important
restriction on loans. A lex lota under Claudius laid some restriction,
the nature of which is unknown, on loans at interest to filiifamilias,
payable at the death of the paterfamilias2. A little later, under Vespasian,
this senatusconsult (named, it seems, after the person whose mal-
practices led to its enactment3) provided, in the form, then usual in sec.,
of a direction to the magistrates, that no action was to be given to one
who lent money to a filiusfamilias, even though the paterfamilias had
since died. From the language it might be supposed that this would
lead to an enquiry (cognitio) by the praetor and consequent denegatio
actionis, but it is clear that the defence was raised by exceptio*. Suetonius
speaks of it as applying to loans at interest, but it applied equally to
gratuitous loans5.

The rule affected only loans of money to the filiusfamilias, and thus
not loans of other property, or other contracts, e.g. sale, even though
interest was to be paid on the price, nor even a case of surety for a loan
to a third person, or an expromissio on loan to a third person6. But all
these cases were subject to the rule that the sc. applied if they were
mere masks, i.e. frauds on the sc., the real purpose of the transaction
being a loan to a filiusfamilias1. The sc. did not apply where money
promised to a Jiliusfamilias was lent to him after he was a, paterfamilias8,
but, conversely, it did apply if the money, promised while he was sui
iuris, was paid to him after he was adrogated9. On the other hand if it
was essentially a loan to a filiusfamilias, the sc. applied even though
return was stipulated10, so that the mutuum was superseded.

The protection applied to all those alieni iuris, of either sex, and it
protected the paterfamilias against an actio de peculio — indeed this was

1 C. 4. 32. 1 1; h. t, 23. 2 Tac. Ann. 11. 13. 3 14. 6. 1. pr. 4 14. 6.

7. 10; cf. P. 2. 10. 1. 5 Suetonius, Vesp. 11; D. 14. 6. 7. 9. 6 14. 6. 3. 3; h. t.

7. pr., 3; h. t. 13. 7 14. 6. 3. 3; h. t. 7. pr.-3. 8 14. 6. 3. 4, 4. 9 14. 6. 6.

10 76.

xi] FENUS NAUTICUM 463

probably its primary purpose1. It also protected sureties for the filius,
at any rate if, as was commonly the case, they had a right to fall back
on him2. And the defence was available to and against heredes3.

The lawyers developed many rational limitations to the provision
of the sc. Thus it did not apply if the creditor had no reason to think
the man a filius, or was deceived by him, or he was generally thought
to be a paterfamilias*. It did not apply so far as the money was applied
to the father's concerns5, or was needed for, and applied to, reasonable
expenses such as the father ordinarily paid6, or if the father, knowing
of it, authorised it or did not prohibit7 it, or if it did not exceed the
peculium castrense or quasi castrense, or, under Justinian, if the loan was
to a miles8. It did not apply if the filius acknowledged it after he was
sui iuris, by part payment, or ratification or novation9.

The obligation was not absolutely void. There was a naturalis
obligatio on the son and his sureties10, but there was none on the father.
As to the son the effects of this obligatio were small, while he was a
filius, for, if he paid, his father could recover11. He could not ratify12,
while a filius, but he could give a surety13. After he was sui iuris he could
of course do all these things, but it does not seem that apart from
ratification the obligatio could be used as a set off against him. If the
surety paid under his natural obligation, he could not recover or claim
from the filiusfamilias1*.

Fenus Nauticum, Pecunia Traiectitia, was a complicated transaction,
on which a few words are needed. It was a loan for the purposes of a
voyage, usually to buy cargo, on the terms that the money was not to
be repaid unless the ship arrived safely. For the period during which
the risk was with the creditor, interest might be agreed on by mere
pact and was without legal limit, till Justinian, after some hesitation,
fixed it at 12 per cent.15 For the period before starting, and after arrival,
legal limits applied16. A slave was usually sent with the ship, and there
were formal rules as to his demanding the money on arrival17. Stipula-

1 14. 6. 9. 2; lost. 4. 7. 7. 214.6.9.3. 314.6.7.10. 4 14. 6. 3; h. t. 19.
5 14. 6. 7. 12. 6 14. 6. 7. 13; Greg. Wis. 10. 1. 7 14. 6. 7. 15; h. t. 9. 3; h. t. 12;

h. t. 16. The initium being the important thing, the classics doubted if ratification sufficed, or
if application to father's concerns of money borrowed for himself barred the sc. Julian
decided in the second case that it did and Justinian made ratification suffice. 14. 6. 7. 12;
C. 4. 28. 7. 8 14. 6. 1. 3; C. 4. 28. 7. 1. 9 At least, in the case of novalio, if he

did it knowingly, 14. 6. 7. 16; h. t. 9 (interp.); h. t. 20; C. 4. 28. 2. 10 12. 6. 40.

11 Difficulties where the thing has been consumed, 12. 1. 14; 14. 6. 9. 1. 12 Arg.

14. 6. 20. 13 14. 6. 9. 3. 14 14. 6. 9. 4. 15 P. 2. 14. 3; C. 4. 32. 26. 2.

16 '2'2. 2. 3, 4. pr. There are in fact two contracts, an ordinary mutuum till the voyage
begins, and a nauticum fenus to arise when the first is ended by the starting, a sort of com-
bination of loan and marine insurance. It is the source of respondentia and bottomry of
commercial la\v. The second contract is conditional on the starting. 17 22. 2. 2.

464 DEPOSIT [CH.

tions were usual for payment of the slave1 and for the case of delay in
payment2. It was allowed to agree that the creditor should be released
from the risk if the voyage did not end by a fixed time or unauthorised
ports were visited or unauthorised cargo was carried3. Whether the
remedy on this contract was the same as on ordinary mutuum is not
said. It was an importation from Greek law and, though it is sometimes
called mutuum*, it is treated distinctly in the sources5. It has therefore
been contended by different writers that it gave an actio infactum, that
it was an innominate contract, and that there was a condictio ex lege6.

CLXIV. DEPOSIT UM. This and the remaining "real" contracts were
of a different type. They were all praetorian in origin, simplifications of
fiducia. They gave bonae fidei indicia, and they were what is called
imperfectly bilateral ; it may be doubted whether their full development
greatly antedates the Empire.

Deposit was the handing over of a res mobilis, gratuitously, to be
kept in charge of the depositee. There was no transfer of ownership as
in fiducia, or even of legal possessio. It follows that even if the depositor
was not owner, the contract was valid : depositee must hand the res back
to him, unless it was claimed by the owner, even though the depositor
was a thief7. On the other hand there might be an agreement that it
should be handed to a third person8. But if the depositee was himself
the owner at the time of the deposit, there was no contract9. If the
deposit was by an owner incapable of binding himself, e.g. an unauthor-
ised pupillus, the depositee was bound, but not the incapax10, and where
a deposit was made to a pupillus, without authority, we are told that if
he was old enough to be capable of dolus, and committed it, he was
liable11. As depositor need not be owner, a redeposit by a depositee was
a valid contract, and might not be a breach of duty12. In such cases the
original depositor might sue his depositee, but if the redeposit was
reasonable, he could claim only cession of actions against the second de-
positee, against whom, however, hehad, in late classical law, an actio utilis13*

The depositee must restore the thing on demand, whether there was
a fixed term or not, together with its "causa," accessories, fruits, etc.14
He might not use the thing; to do so was furtum15. But he was liable
only for dolus, not for culpa16, so that if it had been lost by accident, or

1 22. 2. 4. 1. 2 22. 2. 9. There are obscure rules, fixing a limit on the total of these
two charges, 22. 2. 4. 1. 3 C. 4. 33. 4. 4 22. 2. 6; 45. 1. 122. 1; C. 4. 33. 5.

5 D. 22. 2; C. 4. 33. 6 See reff. in Bertolini, Obblig. (P. Sp.) 204. 7 16. 3.

1. 39; Coll. 10. 7. 1; 16. 3. 31; 5. 1. 64. 8 Who has under Justinian an actio utilis

depositi, C. 3. 42. 8. 1; cp. Coll. 10. 7. 8. 9 16. 3. 15. Contra, if he has become

owner since, C. 4. 34. 11. 10 16. 3. 1. 14. 11 16. 3. 1. 15. 12 16. 3. 16.

13 76. ; Coll. 10. 7. 8. 14 16. 3. 1. 24. 15 G. 3. 196; P. 2. 12. 5. 16 13. 6. 5. 2;
16. 3. 1. 47; Coll. 10. 2. 1; 10. 7. 6.

xi] DEPOSIT 465

slight negligence, he was not liable, but gross negligence " dolo aequi-
paratur1." The restriction on his liability is due to the fact that he did
not profit: the contract was wholly in the interest of depositor. Special
pacts might make him liable to any extent, even for casus, but a pact
to release him from liability for dolus was void2. And we are told that
one who offered himself as depositee was liable for everything but
casus3. If the depositee lost possession in a way which freed him from
liability, but afterwards regained it, he was now in his old position, even
though the recovery was after an action had been begun4. The fact that
the liability might be varied by pact, and that men do not adjust their
transactions to textbook classifications, led in many cases to doubts
whether the transaction was or was not deposit. If there was reward it
was locatio: the texts discuss many such cases5.

As it was for the depositor's benefit, he was liable for dolus and
culpa, and he must reimburse for all expenses involved in the care of the
thing and damage caused by it, which care on his part would have
avoided6. If the contract was for return at a place other than that of
deposit, he must pay any reasonable resulting charges. For the recovery
of expenses the depositee had besides the action a right of retention
analogous to pledge, but it is noteworthy that, while this-right of reten-
tion in other cases where it existed, gave an actio furti if the thing was
stolen from the holder, this was not so in the case of a depositee7.

The action against depositee was the actio depositi. The original
action was infactum8, but in classical law, though this still existed, there
was an alternative bonae fidei formula in ius which is held to have
appeared before it did in commodatum and pledge 9. From litis contestatio
the res was at his risk if he could have returned it10. If he allowed the
action to proceed to condemnatio, he was subject to infarnia11. On the
other hand the judgment freed him from further liability in respect of
the thing, which, if still in his possession, became his12. Under Justinian
there could be no set off13.

1 See on culpa lata, post, § cxc. 2 16. 3. 1. 6, 7; 2. 14. 7. 15. Where a holder

commits dolus in respect of the thing, there is condictio, apart from actio depositi, 16. 3. 13.
1. Albertario, Bull. '26. 15 sqq. holds that all such pacts varying the liability (2. 14. 17.
15; h. t. 27. 3) were void tillJustinian, but there is a great difference between pact against
liability for dolus and pact for release from liability for past dolus. 3 16. 3. 1. 35

(? interp.). 4 16. 3. 1. 47-3; h. t. 20. If he sell the thing and recover it and afterwards
lose it without fault he is liable: dolus perpetuates the liability, Coll. 10. 7. 10. 5 E.g.

16. 3. 1. 9-13. 6 13. 7. 31; 16. 3. 5. pr.; h. t. 23; Coll. 10. 2. 5 = D. 16. 2. 23.

7 Coll. 10. 2. 6. Justinian may have abolished this ius retentionis. C. 4. 34. 11.

8 Perhaps replacing a delictal liability to double damages under the XII Tables. 9 Lenel,
E.P. 279 sqq. 10 16. 3. 12. 3. As to modification in later classical law, Girard. Manutl,
1028, n. 4. 11 Coll. 10. 2. 4; 10. 6. 1 ; G. 4. 60; D. 3. 2. 1. 12 41. 4. 3. 13 C. 4.
34. 11. Earlier law not clear, see P. 2. 12. 12.

B. R. L. 30

466 DEPOSIT [CH.

The action against the depositor was the actio depositi contraria, a
nomenclature which expresses the fact that the contract created liability
primarily in the depositee: the contract was imperfectly bilateral. It
was a bonaefidei indicium and condemnatio did not involve infamy1.

Three cases of Deposit have very special rules:

Depositum miserabile. Where a deposit was made in time of riot,
fire, shipwreck or similar calamity, so that the depositor was unable to
choose his man, the depositee was liable to double damages for denial
or dolus, a survival of the general liability under the XII Tables2. The
heres was equally liable for his own dolus or denial, but there is a curious
rule that he was liable in simplum for his predecessor's dolus, but only
for one year, actions on contract being usually perpetual3.

Sequestratio. This was a deposit by several persons jointly. It arose
usually from a dispute affecting the thing, often a lawsuit4, and the
deposit was to be returned only when the dispute was settled, and to
the person in whose favour it was decided. But it might equally arise
in any joint deposit if the thing was to be returned to one, on a certain
condition5. Only one could have a right to it and he only when the
condition arrived6. For the sequester to give it up before was a breach
of contract7, but it was possible for him in some cases, on application
to the praetor, to give the parties notice to find another person, or, on
the same application, to deposit the thing in a temple8. The sequestra-
tion itself was at times ordered by a index, but in later law he was for-
bidden to order sequestratio of money claimed9. Sequestratio applied to
land as well as moveables and had the further peculiarity that it usually,
but not always, gave possessory rights to the sequester™. This would
prevent any party from acquiring it by usucapio. If the sequester had
not possessio, but only detention, usucapio might still be running for
the benefit of the winner11. The action bore the special name actio depositi
sequestraria12.

Depositum irregular e13. This was deposit of fungibles, usually money14,
commonly with a banker, on the terms that he was to return an equi-
valent on demand, so that the ownership passed to him15. It was very

1 3. 2. 1; 16. 3. 5. See post, § ccxxxiv as to the actio contraria. 2 Coll. 10. 2. 7;

10. 7. 3, 11. 3 16. 3. 1. 1-4; h. t. 18. 4 16. 3. 5; 50. 16. 110. 5 16. 3.

6. If he gave it to a third person, presumably any of them could claim. 6 Arg. 16.

3. 6. 7 C. 4. 34. 5. 8 16. 3. 5. 2. 9 2. 8. 7. 2; C. 4. 4. 1. 10 16. 3.

17. 1. Also a survival for practical reasons from the rule in fiducia — the fiduciary had
ownership and possessio, ante, § cm. 11 41. 2. 39. See Karlowa, R.Rg. 2. 607. 12 16.
3. 12. 2. Sequestratio is mentioned by Plautus, but it is not clear that it has legal con-
sequences. For Cicero it seems commonly to mean dishonest concealment, pro Clu. 26. 72 ;
in Verr. 1. 12. 36; 2. 2. 44. 108. For the word and the history of the institution, see
Muther, Sequestration und Arrest. 13 Not a Roman name. 14 As to corn see

19.2. 31. 15 19.2.31;16.3.7.2,3.

xi] COMMODATUM 467

like mutuum: indeed on the same facts it might be mutuum. It might
be agreed for instance that money was to be a deposit but that at any
time the depositee might turn it into a mutuum, and use it1. There is but
a fine line between this and the transaction we are considering, the differ-
ence being one of intent. This transaction was deposit throughout (though
its purpose was not merely that of ordinary deposit) and from this fact
many results followed, e.g., bonae fidei indicium and actio contraria, in-
fainia, absence of set off under Justinian, recoverability at any time,
and interest in any case from mora. Neither the sc. Macedonianum nor
the exceptio non numeratae pecuniae had any application2. It is suggested
by some texts that the subject-matter was at the risk of the depositor
till actual use3, but this is doubtful4. Where the money was to be used,
interest was due, recoverable in the actio depositi itself5. But this
involved one disadvantage. If the banker became insolvent, depositors
were entitled to payment before ordinary creditors, but this did not
apply where they had received interest6. It seems likely that the whole
institution is post-classical7.

CLXV. COMMODATUM. This was loan for use, the thing being re-
turned. It seems to have been originally called datio ad utendum8. The
lender was commodator or commodans, the borrower, " qui commodatum
accipit" or the like9. It was usually for a short agreed time10, and
almost invariably for a specified purpose. If the time was not stated the
purpose must be, or it would not be possible to fix a limit of time: it is
held indeed by some writers that the purpose was always stated and that
so far as land is concerned, this was the real difference between commo-
datum and precarium11. Commodatum was perhaps, at first, not applied
to land, but this application appears in classical law12. As the same thing
must be returned, it did not normally apply to things necessarily con-
sumed in use, but if the things were lent "ad pompom vel ostentationem,"
fruits lent for ornament in a procession and so forth, this was a valid
commodatum13.

The essential of the contract was the delivery, as in deposit, a mere
physical transfer, giving only detention14. Thus, as in deposit, there was

1 12. 1. 9. 9. 2 C. 4. 30. 14. 1. 3 12. 1. 10; 16. 3. 1. 34. 4 13. 6. 24; h. t. 26. 1.
5 16. 3. 28; h. t. 29. 1; C. 4. 34. 4. 6 16. 3. 7. 2. 7 The only pre-Justinianian

text, a late one, Coll. 10. 7. 9, says clearly that such a thing is mutuum though called
deposit. Some of the Digest texts are interpolated. See however Collinet, fitudes Historiques,
1. 114 sqq. who cites Papinian (16. 3. 24). But the only parts of this text which speak of
restoring " tantundem" say that in this case it is not deposit. See also the document in
Girard, Textes, 858. 8 13. 6. 1. 1. The edict says "commodasse," h. 1. pr. 9 Com-

modatarius is not a Roman word. 10 13. 6. 5. pr. 11 See Bertolini, op. cit.

266. 12 13. 6. 1. 1; 19. 5. 17. pr. 13 13. 6. 3. 6; h. t. 4. Just as in this

country exhibition fruits are sometimes lent for the decoration of a table. 14 6. 1.

9; 13. 6. 8.

30—2

468 COMMODATUM [CH.

a valid contract even where the lender was not owner, and what was
said as to deposit by a thief applies here also1. On the question whether
there could be coinmodatum of a res incorporates it is usually said that there
could not2, but this means merely that if A gave B, gratuitously, the
enjoyment of usufruct of land or a slave, this was not coinmodatum but
precarium. That rests on the doctrine that commodatum must be for a
specific purpose, but there was nothing in the law of commodatum to
prevent one who had a usufruct from giving a commodatum of the thing
to another, as one could who had no right at all. The commodatum was
valid though the act might be a breach of his duties as usufructuary.

The loan must be gratuitous: if it was not, and the reward was to be
in money, it was locatio rei. If the payment took another form it was
an innominate contract, permutatio or the like3.

It was normally for the benefit of the borrower alone, but wre learn
that cases might occur in which it was for the benefit of both, e.g. where
two people were giving a dinner in the rooms of one of them, and the
other lent him objects to decorate his rooms4. We are told even that it
might be solely for the benefit of the commodator, but the cases look like
benefit of both, e.g. where a man lent his bride ornaments to wear at
the wedding or where a praetor who is giving public games lends the
players some outfit, or, the text goes on to say, someone lends them to
the praetor5. We shall see that these distinctions were of some importance
in relation to the liabilities of the parties.

The borrower might keep the thing for the agreed time, or, if none
was agreed, for a time reasonable for the purpose of the loan6. This is
subject to the obvious limitation that the lender could at once reclaim
it if the borrower was misusing it in breach of the contract7. In early
classical law it was doubted whether the owner could bring vindicatio
against any but a possessor, but in later law the real action lay against
any who held the thing8. If the owner and lender vindicated from the
borrower, it is not clear whether the existence of the contract gave an
exceptio or whether the borrower must return the thing and rely on his
actio commodati contraria. The latter is the probable rule, except, indeed,
where he had a ius retentionis for expenses: in this case he had an ex-
ceptio doli in the vindicatio9. In practice however the owner seems usually
to have proceeded by the actio commodati, in which he had not to prove
title.

\ 13. 6. 15; h. t. 16; 5. 1. 64. 2 See Bertolini, op. cit. 262. 3 Inst. 3. 14.

2; 3. 24. 2; D. 13. 6. 5. 12. As to the history of the requirement of money consideration in
locatio, post, § CLXXIV. 4 13. 6. 18. pr. 5 13. 6. 5. 10. The last case may be

thought of as for the benefit of both, as the lender will see the games, but how it should
be thought of as for his benefit alone is difficult to understand. 6 13. 6. 5. pr. ; h. t.

17. 3. 7 Arg. C. 4. 65. 3. 8 6. 1. 9. 9 47. 2. 15. 2; h. t. 60.

xi] COM MOD AT UM 469

The borrower must return the thing at the proper time with its
"causa," i.e. accessories, fruits, fetus, etc., and any profits he had derived
from unauthorised use of it. If he lost it without fault he must transfer
any rights of action1.

In the normal case the borrower was liable for all damage to the thing
or its accessories, due to his culpa, having to shew the care of a bonus
paterfamilias*. There were however exceptions extending and limiting
this liability. If the loan was for the benefit of both, he was bound only
to shew the care he did in his own affairs3, and if it was for the benefit
of the commodator alone he was liable only for dolus*. Conversely, the
liability might be larger. As any pacts might be added it was possible
to agree for any degree of liability, e.g. casus, except that here as else-
where a pact excluding liability for dolus was void5. And he was liable
for all risks, including vis maior, after he was in mora6, for all casualties
resulting from unauthorised use of the thing7, and also for "fatum" i.e.
everything, if when he might have saved the borrowed thing he preferred
his own8. If condemned he could claim cession of any actions the lender
might have against third parties, and, as the thing became his, to security
for its deliverv if the commodator9 ever recovered it.

•/

If the thing was stolen from the commodatarius he had, in classical
law, an actio furti against the thief, and the owner had not. This is ex-
plained by Gains as being due to the fact that the owner had no interest,
since the borrower was responsible for the thing10. This implies liability
in any case apart from negligence, if the thing was stolen : this liability,
known as " custodia" will be considered later. Under Justinian a new
rule was introduced, for the case of commodatum. The dominus was to
have the choice. If he sued the thief, the commodatarius was freed from
further liability. If he brought the actio commodati, the borrower might
sue the thief. But if when the dominus brought the actio commodati he
did not know that the thing had been stolen, he could change his mind,
remit the actio commodati and sue the thief, unless the borrower satisfied
him, in which case he in turn could sueu.

The duties of commodator may be shortly stated. He must refund all
extraordinary expenses and all but the simple everyday medical ex-

1 Inst. 3. 14. 2; D. 13. 6. 5. 10; h. t. 13. 1; 22. 1. 38. 10. If the unauthorised use was
in bad faith, he was liable torfurtum, 13. 6. 5. 8. 2 13. 6. 5. 2; P. 2. 4. 3; Coll. 10. 2.

1. As to a possible further liability, for custodia, post, § cxci. 3 13. 6. 18. pr. In

early classical law probably only for dolus. As to the history of "diligentia quant in suis
rebus," post, § cxc. 4 13. 6. 5. 10, applied no doubt originally to both cases. 5 13.
6. 5. 2; h. t. 17. pr. Liability for casus implied if the agreement is expressly for return
at a stated value. 6 Post, § CLXXXVHI. 7 13. 6. 5. 7; h. t. 18. 8 13. 6.

5. 4; P. 2. 4. 2. Exact meaning controverted. See Bertolini, op. cit. p. 282. 9 13.

6. 13. pr.; h. t. 5. 1; h. t. 17. 5; 42. 1. 12. 10 G. 3. 203 sqq. As to the details and
limitations, post, § cxcvn. 11 C. 6. 2. 22.

470 COMMODATUM [CH.

penses, even though the thing became extinct1. He must compensate
for damages caused by defects in the thing of which he was aware, and,
generally, for dolusz, with the curious limitation, found in many contexts,
that he was not to be liable for dolus, if it was a slave, beyond the man's
value3. It is to be presumed that if the lender benefited by the loan
he would be liable for culpa. He was also liable for loss resulting from
his not allowing the borrower to enjoy the thing as agreed4. It must be
remembered that for impensae, and, according to one text, for any
claim, the borrower had a ius retentionis, till they were allowed for5.

A commodatum by an unauthorised pupillus was, on general prin-
ciple, binding on the borrower, but not on the pupil6, though it is to be
supposed that if he sued he could be met by an exceptio doll in respect
of expenses which had improved his property7. A commodatum to a
pupillus did not bind him in strict law at all, but a rescript of Pius gave
an actio utilis to the extent of his enrichment8. There was no direct
action even if the commodatum lasted after puberty, even for culpa after
puberty9, subject of course to ratification.

If several took a commodatum in common, the texts conflict on the
question whether the obligation was in solidum or pro parte, but the
dominant opinion seems to be that it was solidary, at any rate unless
the contrary appeared10. Coheredes of a commodatarius wrere of course
liable, under the rule of the XII Tables, only pro parte for fault of the
deceased11. Each heres was liable in full for his own culpa12, but we are
not told how far he could be sued on the culpa of another heres.

The lender's action was the actio commodati, with alternative formulae
as in deposit. The actio commodati contraria was wanted where retentio
was not available (that being obviously the more convenient remedy),
because it might be that on the facts no actio commodati lay, or they
might exceed the claim, or the index might have refused to take them
into account13.

CLXVI. PLEDGE. In connexion with this topic it is convenient to
give a short account of the evolution of real security, though it is only

1 13. 6. 18. 2, 4; P. 2. 4. 1; Coll. 10. 2. 5. 2 13. 6. 18. 3. 3 47. 2. 62. 6.

Mommsen emends, inserting a passage. 4 13. 6. 17. 3. 5 13. 6. 18. 4. 6 13. 6.
3; 26. 8. 5. pr. 7 Arg. 18. 5. 7. 1 etc. 8 See n. 6. 9 13. 6. 1. 2. 10 h. t. 5.

15-7; h. t. 21. 1. It seems rather to be indivisibility. 11 C. 2. 3. 26; D. 13. 6. 3. 3 says
that heres who has the whole may be sued in solidum. 12 On general principle.

13 13. 6. 18. 4. See post, § ccxxxiv, as to the actio contraria. The distinction between
deposit and commodatum and, e.g., mandatum would be less clear in practice than in texts.
A asks B to take care of silver in his absence, but he may use it if his own silver falls short
on a festal occasion. There is but one contract, but it is commodatum on such an occasion,
otherwise deposit. If A and B are common owners and A asks B to take care of the thing
with permission to use it, but to lose no opportunity of selling it, all three contracts seem
to be present, and perhaps societas as well. See D. 16. 3. 1. 11 sqq.

xi] MORTGAGE BY FIDUCIA 471

to a small extent part of the law of obligations. The essence of all these
transactions is the giving to a creditor some right, essentially a right in
rem1, over property, by way of security for the debt. In its first phase
this was effected by fiducia2: the ownership was transferred to the
creditor, who undertook to reconvey the property, if the debt was duly
paid, and it was usual to agree as to the circumstances in which the
creditor might sell it. We have in the so-called formula Baetica3 a model
form for such transactions. The fiduciarius was owner and had as a
consequence the rights of owner, any restrictions on them being matter
only of contract between him and the debtor. Thus if he sold before the
debt was due, or in any way contrary to his undertaking, he was liable
to the debtor, but the sale was good, and the buyer had a good title not
subject to the fiducia. Apart from sale, the debtor was deprived of the
use of the thing, though it was not uncommon, at least in the case of land,
for the creditor to leave it in the debtor's hands as a precarium*.

The creditor might not make profit out of the thing, and thus any-
thing he received by way of produce or rent or the like, was set off, in
first instance, against interest due, and any excess against the debt, any
further excess, e.g. on sale, going to the debtor5, with interest in case of
mora. He must not damage the thing and must restore it if the debt
was duly paid. If the debtor found a purchaser and was prepared to
pay off the debt the creditor must reconvey. An obvious means of op-
pression and fraud was checked by a rule that the creditor could not
become owner, free from the fiducia, even through an intermediary. An
agreement that the creditor should have no power to sell was void: he
could still sell on giving notice. If the creditor had improved the thing
he was entitled to the cost, and as account of this was taken in the
actio fiduciae, it was, in effect, added to the debt6.

The actions were the actio fiduciae of the debtor, and contraria of the
creditor, for expenses. As we know the actions they were in ius and
bonae fidei, but there are doubts about their history7.

Fiducia as a form of security was not superseded by the appearance
of pignus and hypotheca: it had such advantages for the creditor that it I
was kept in use8. It lasted throughout the classical age, and only dis- '

1 It does not belong to the law of iura in rem. The right of possessio is not treated by
the Romans as a res. It appears, in the institutional books, as part of the law of actions,
so far as it appears at all. In strictness security should be treated as a separate head, but
some repetition is saved by taking it incidentally, as is done in the case of personal
surety, ante, § CLVI. 2 Ante, § CLI. 3 Girard, Textes, 822. 4 See 2. 8.

15. 2. 5 P. 2. 13. 1, 2. 6 P. 2. 13. 1-7; P. 4. 12. 6; D. 13. 7. 6. pr.; h. t. 22.

Many texts in the Digest, there referred to pignus, were written of fiducia. 7 Ante>

§ CLI. 8 It must be remembered that fiducia could not be attached to traditio (ante

§ CLI) so that this form of security applied only to res mancipi. It is held by Manigk (Pauly-

472 PIGNUS AND HYPOTHEC [CH.

appeared with mancipatio: indeed it is possible that mancipatio and
cessio in iure were kept in existence for some time because they could
be used for fiducia1.

The protection of possession by the praetor paved the way for the
introduction of another form of security, Pignus2, in which possessio
passed to the creditor, dominium remaining with the debtor. It was in
full operation before the time of the Empire. This protected the debtor
from such wrongful sales as might occur in fiducia, but it still deprived
him of the enjoyment of the thing, unless the creditor allowed him to
hold it precario. The creditor's protection at first was only the right of
possessio protected by interdicts, and a right of sale, if this had been
agreed, but not otherwise3. There were so far as we know no special
interdicts, but the texts suggest that uti possidetis, utrubi and unde vi
were available4.

A further development was the agreement which ultimately acquired
the name of hypotheca, in which the possessory rights were vested in the
creditor, but the thing was not actually handed over to him. There
might or might not be an agreement that possession should not be taken
till the debt was due: in either case it was hypotheca till the thing was
actually taken over. The binding force of such an agreement was first
recognised in the case of rents. A tenant could validly agree that his
'''res" should be pledged for his rent, the expression covering all his
property "invecta et illata," except in passage, and the crops, after he had
acquired them by perceptio5. The landlord had an interdictum Salvianum
to recover them from the debtor as soon as rent was due6, without which
right his agreed security would have been worthless. He had also an
actio Serviana for their recovery from any one who held them7, and the
interdict was ultimately made effective against third persons8. Similar
agreements were made by urban tenants, but it is not clear that the
interdict was here available, and it is certain that the actio Serviana was
not. Early in the Empire, and perhaps before, this action was extended

Wissowa s.v. Fiducia) that the rules of this institution were so affected by reaction of those
of pignus that the fiduciary creditor had, in effect, only a limited ownership.

1 See Girard, Textes, 821 sqq., for a model and an actual case. They shew that there
might be various terms. In neither is it expressly said that the property is to be returned
on payment. 2 The word pignus is very ancient in lay literature (Champeaux, Mel.

Girard, 1. 161 sqq.) and there are legal consequences, but it is not the "real" contract of
pignus. The thing is to be forfeited in a certain event: it is in fact a conditional traditio.
3 20. 1. 35. 4 41. 3. 16; 43. 17. 2; h. t. 3. 8; 43. 16. 1. 9. The allusion in the first text

seems to be to utrubi. 5 20. 6. 14; 47. 2. 62. 8. 6 G. 4. 147. These pledges

arose without express agreement in the later classical law, post, § CLXvm. 7 Inst.

4. 6. 7. 8 43. 33. 1 ; C. 8. 9. 1. Girard holds (Manuel, 792, n. 2) that it was ultimately

extended to all pledgees. Chief texts, G. 4. 147; Inst. 4. 15. 3 and Theoph. ad h. 1.; C. 8.
9. 1, " debitor emve."

xi] PIGNUS AND HYPOTHEC 473

under the name utilis or quasi Serviana to other cases of hypothec,
probably first to urban landlords, later to all cases, when (or later) it
acquired the name of actio fn/pothecaria1, the pledge without actual
transfer becoming very usual.

Between hypothec and pi gnus there was in strictness no legal differ-
ence2, but there was the physical fact that in the former the thing was
left in the hands of the debtor, with the result that it was possible to
create successive charges on the same thing. But it was equally possible
to create hypothecs on a thing already held by a pledgee, and the obliga-
tion al rules were, mutatis mutandis, the same. We shall therefore deal
with the two institutions together.

The contractual aspect of the matter can be shortly dealt with. It
was a bonaefidei transaction. Each party was liable for culpa levis3 and
it is sometimes said that the creditor in possession was liable for custodia*,
but there is little evidence for this and some against it5. He must not
use the thing or make profit out of it, any thing so received being im-
putable against the debt6, as were damages received, e.g. for theft of it,
except where the debtor was the thief7. (To these rules antichresis was
an exception. This was an agreement, introduced towards the end of the
classical period, that the creditor should have the fruits in lieu of in-
terest8.) He must restore the pledge when the debt was paid9. On the
other hand he was entitled to reimbursement of expenses properly in-
curred in the care of the thing, and to compensation for damage to him
caused by the thing, if there had been culpa of the debtor10. If the thing
was not the property of the debtor, or, more generally, was in such a
legal position that the creditor was lawfully deprived of his possessory
right, i.e. of his security, the debtor was liable, under his contract,
whether he knew of the defect or not11. The actions were the actio
pigneratitia for the debtor and contraria for the creditor, with formulae
both in ius and in factum12. But the debtor could not bring his action

i It has been maintained that the words hypotheca, hypothecaria are always interp.
(Mitteis, Z.S.S. 31. 489). But Erman seems to shew that hypotheca is in origin merely a
Greek name for pignus (Mel. Girard, 1. 419 sqq.) and is used only in dealings with Greeks
till Severus. Later jurists use it more freely and as synonymous with pignus (20. 1. 5.
1). He does not shew how Ulpian comes by the distinction in 13. 7. 9. 2, which is that in
the text, but he regards it as older than Ulp. and merely a means of using both words.
Apart from terminology, pledge by agreement is as old as the Empire. As to its source,
see Girard, Manuel, 781. 2 20. 1. 5. 1. 3 13. 6. 5. 2; 13. 7. 13. 1; Inst. 3. 14. 4.

4 Heumann-Seckel, Handlexicon, s.v. custodia. 5 E.g. C. 4. 24. 5, 8, 9. 6 13. 7.

22. pr.; 47. 2. 55. pr.; 20. 1. 21. 2; C. 4. 24. 1. 7 13. 7. 22. pr.; 47. 2. 15. pr. 8 20. 1.
11. 1; 20. 2. 8. 9 13. 7. 9. 5; Inst. 3. 14. 4, with its causa. P. 2. 5. 2 says that such a

pledge does not cover "fetus vel partus." Others say the opposite, C. 8. 14. 3; 8. 24. 1 ; D. 29.
1.29. 1. P.'s text is probably defective. 10 13. 7. 8. pr.; h. t. 16. 1. 11 13.

7. 9. pr. 12 As in commodatum and depositum, Lenel, E.P. 246 sqq. See post,

§ ccxxxiv, as to the actio contraria. It is maintained by some writers (see Levy, Z.S.S.

474 PIGNUS AND HYPOTHEC [CH.

unless he had paid or otherwise discharged the debt, or was ready to
tender the amount when he asked for the formula1. The debtor's action
was the same whether the transaction was pignus or hypothec, though
there would be less occasion for it in the latter case2.

CLXVII. The creditor's means of enforcing his security are the
following:

1. Right of Sale. From early times a right of sale might be agreed
on3, but, later than Gains, though before Pa\il, things were reversed
and there was an implied right of sale unless it was expressly excluded4.
It does not appear that the creditor need have actually taken possession
before a sale, and though the creditor could not sell to himself, even per
interpositam personam5, the debtor could sell to the creditor6. There
could be no sale by the creditor till the debt was due7.

2. Foreclosure. In earlier classical law the creditor could not become
owner by lapse of time, i.e. there was no foreclosure except under an
agreement that the property should be his if the debt was not paid by
a certain day — lex commissoria8. This was modified by a practice, intro-
duced early in the third century, by which the creditor could apply to
the court to have ownership conferred on him — impetratio dominii.
There was an official valuation and, after notice and a year's delay, he
received praetorian ownership, being compelled however, if he took the
thing, to accept it in full discharge, though^the valuation was less than
the debt, and, if it was more than the dtebt,Ho pay the difference to the
debtor9. Further, the debtor could it seemsjstill redeem, before usucapio
was complete10. The lex commissoria was forbidden under Constantine11.

Justinian modified this law of sale and foreclosure in several wa}-s.
Either he, or some other late authority, provided that where there was
an agreement that the creditor should not sell he could still do so after
notice given three times12. He also provided that, subject to agreement,
there could be no sale till two years after notice or judgment. If no
purchaser was found a index would fix a time for payment. If payment
was not made by that time a further decree was issued on application,

36. 1; Biondi, Indicia bonaefidei, 233 sqq.) that in classical law there was only & formula
in factum.

i 13. 7. 9. 5. 2 The actio hypothec aria is a distinct action, not on obligatio, but

for the enforcement of the possessory right, and applies equally to pignus. See above.

3 It is possible that the earliest reff. (20. 1. 35; 47. 10. 15. 32) were written of fiducia.

4 G. 2. 64. If no agreement, triple notice to debtor, P. 2. 5. 1. 5 P. 2. 13. 4;
C. 8. 27. 10. 6 20. 5. 12; Vat. Fr. 9. 7 C. 8. 27. 14. On Cons. 6. 8, which says
that, if the creditor has sold the fiducia or pledge, the heres has no action unless it was
begun by the deceased, see Huschke, ad P. 2. 17. 15. 8 20. 1. 16. 9, where the
words "iusfo. . . aestimandam" may be interpolated. 9 The chief texts on this
institution are C. 8. 33. 1; h. t. 2; but these enactments assume earlier legislation which
we do not possess. 10 Arg. 41. 1. 63. 4. 11 C. 8. 34. 3. 12 13. 7. 4.

xi] PI GNUS AND HYPOTHEC 475

declaring the creditor owner. The debtor could still redeem within two
years by paying debt, interest and costs. On a sale any excess must be
paid to the debtor and if the price was less than the debt, the creditor
had still a claim for the rest1. He further provided that where the thing
had passed to a third person the creditor could not bring the actio
hypothecaria, etc., against him till he had exhausted his personal remedies
against the debtor and sureties2.

The normal subject of a pledge was a thing owned by the debtor. If
it was not his, he could not create possessory rights over3 it, but a pledge
to operate when it became his would be valid4. It could in any case be
ratified when it became his, and in later law was so validated, ipso
facto5. Praetorian ownership sufficed and even a bo na fide possessor
could pledge so as to bind himself, those claiming under him, and those
against whom he had the actio Publiciana6.

There might be pledges of rights other than ownership. A debt might
be pledged, and here there would be no question of possessory rights.
This was made effective by notice to the debtor, who could not then
validly pay the original creditor, and could be sued by the pledgee, by
actio utilis7. There might also be subpledge, pledge of a pledge, which
seems to be contemplated rather as a second pledge of the thing itself,
under powers implied in the original pledge8. There was also what is
known in English law as a "floating charge." a hypothec of all a man's
stock-in-trade on the terms that it was to apply to new stock as it came
in and to cease to apply to stock disposed of in the ordinary way of
business9. Usufruct, and no doubt emphyteusis and superficies, could be
pledged, but as nothing could be pledged which could not be sold, usus
and habitatio doubtless could not10. It was indeed possible to create a
potential usufruct by way of pledge, i.e. to authorise the creditor to sell
a usufruct in the property if the debt was not paidu, and this might
apply equally to usus and habitatio. There is a further remarkable case.
A right of way or water to be created could be pledged, though urban
servitudes could not. The creditor, if he was a neighbouring owner, could
use the servitude till the debt was paid, and, if it was not, he could sell
the easement to any other neighbouring owner12. Apart from the
creditor's right to enjoy the way, this is like the last case — a neighbour
might be willing to buy a right of way. But the text assumes it existing
in the hands of the creditor, and such a servitude cannot shift from one
praedium to another. It is sometimes explained as meaning that the

1 C. 8. 33. 3. 2 Nov. 4. 2. 3 13. 7. 2. 4 20. 1. 16. 7. 5 13. 7. 41.

6 13. 7. 29; 20. 1. 18. 7 20. 1. 20; 13. 7. 18. pr.; 42. 1. 15. 8; C. 8. 16. 4. 8 13. 7.
40. 2; 20. 1. 13. 2; C. 8. 23. 1, 2. 9 20. 1. 34. pr. It is excluded by the modern

Codes in France and Germany. 10 20. 1. 9. 1; h. t. 11.2, 3. 11 20. 1. 15. pr.

12 20. 1. 12.

476 PIGNUS AND HYPOTHEC [CH.

debtor has a servitude over adjoining land, and pledges that, but this
equally involves the apparently inadmissible giving to third persons of
rights over the servient land1.

Pledge was indivisible: so long as any part of the debt was unpaid
the whole thing was still pledged, and, where it had passed into several
hands, any of the owners was liable to actio hypothecaria for the whole2.

The pledge was ended if the creditor sold the thing or renounced his
right3. And the right of action might be barred, in later law, by a lapse
of 30, or, in some cases, 40 years4. It was also of course extinguished by
payment of the debt, but if the thing was in the hands of a third person,
and he, wrhen sued by the creditor for it, paid him off, he was regarded
as buying the debt, and was entitled to cessio actionum5.

It may be added that the texts shew, as might have been expected,
that pignus was mainly used for moveables, and hypothec for land and
iura.

CLXVIII. So far we have discussed rules applying to both forms:
we have now to consider points involving a hypothec.

The great difference between pignus and hypothec was that in the
latter the thing remained in the hands of the debtor. Hence it was
possible to hypothecate the same thing to a number of persons in suc-
cession, which did not necessarily, or usually, involve any fraud. This
institution, which seems to belong to the late classical age6, led to a num-
ber of special rides. It was " stellionatus " to give a hypothec without
declaring existing charges, or to alienate without declaring any charges7.
But the more important rules had nothing to do with fraud. If there
were several charges, it was necessary to determine their priorities. The
rule was simple: apart from privileged hypothecs, to be dealt with
shortly, the earlier in date had priority, even though a later had gained
actual possession8. This was modified by Leo, who gave priority to any
hypothec registered with the public authority or made formally before
three witnesses9.

The first hypothecary could effectively bring the actio hypothecaria
against the debtor or third persons (apart from the question of adverse
title) or later hypothecaries10. These had the same right, except against
earlier hypothecaries11. It was only the first creditor who destroyed the

1 The text is sometimes said to be mainly due to Justinian, Pomponius having in fact
said the opposite. Perozzi, Inst. di dir. Rom. 1. 487, cited Albertario, II pigno delta super-
fide, 4. 2 13. 7. 8. 2; h. t. 11. 3; C. 8. 27. 6; 8. 31. 2. 3 13. 7. 9. 3; h. t. 8.
1: 50. 17. 158. 4 C. Th. 4. 14. 1; C. 17. 39. 3. 5 20. 6. 12. 1. 6 Herzen,
Mel. Gerardin, 299 sqq., holds that it is not older than Marcellus. He explains otherwise 16.
1. 17. 1 and 20. 3. 3. In early classical law a second hypothec was presumably conditional
on discharge of the first. 7 13. 7. 36. 1; 47. 20. 3. 1. 8 20. 4. 11. pr. 9 G. 8.
17.11. 10 20. 4. 12. pr. 1120.4.12.7.

xi] PI GNUS AND HYPOTHEC 477

pledge by selling the thing1: he was entitled to pay himself out of the
price, giving any surplus to the later pledgees in order, and any ultimate
surplus to the debtor2. But all pledgees had a right of sale: if a later
one sold, the sale was not void, but the lien of prior creditors was not
affected: they could recover the thing from the buyer3; later ones could
not.

The order of priority might also be modified by successio in locum, a
principle under which a later charge could in some cases be put in the
position of an earlier one. These cases were apparently (1) where the
money was applied to discharge of the earlier incumbrance, at least if
advanced expressly for that purpose, and a pledge agreed for at the time
of the loan4, (2) under the ius offerendae pecuniae. A later charger could
step into the shoes of an earlier, by tendering to him the sum due to
him, the substantial difference between this and the former case being
that here the dealing was direct between the two creditors5.

Renunciation by one pledgee affected no one but himself, except
that it caused the next in order to step into his shoes6.

These rules of priority were much affected by the creation of privi-
leged hypothecs. Of these the clearest cases were those of a creditor
who lent money, under hypothec, to secure the preservation of goods7,
of the fisc for taxes (and, later, some other debts8), and, under Jus-
tinian, of a woman for her dos9. over the husband's whole property.
There were many privileged debts, i.e. taking priority of other insecured
debts. In some cases these were transformed into tacit hypothecs, and
it is hard to say in what cases they gained priority here too. The fisc, at
least for taxes, seems always to have had priority, but apart from this
it is disputed how priorities were arranged between privileged hypothecs.

Hypothecs may be classified as general, over a whole mass of property,
or specific, over a specific thing. They might arise by operation of law,
or, as in the ordinary contractual case, by express agreement. Of the
former class there were two types, and it will be seen that some of each
of these classes are specific and some general.

1. Those established by a Court. These were (a) pignus praetor in m,
resulting from various cases of missio in possessionem, which was hardly
a pledge till Justinian gave the actio hypothecaria on it10; (b) pignoris
captio under a judgment. In later law if a judgment was not satisfied,
the creditor could seize property of the debtor and ultimately sell it to
pay himself11.

1 20. 4. 12. 7; 20. 5. 5. pr.; C. 4. 10. 6; C. 8. 19. 1. 2 13. 7. 42; 20. 4. 12. 5.

3 20. 4. 12. 7. 4 20. 3. 3; C. 8. 18 passim. 5 P. 2. 13. 8; D. 20. 4. 19; 20. 5. 5;

C. 8. 17. 5; h. t, 10: C. 8. 18. 4, etc. 6 20. 6. 12. 7 20. 4. 5; h. t. 6. 8 49. 14.

28; C. 4. 46. 1; C. 12. 62. 3. 9 C. 5. 12. 30. 10 C. 6. 54. 3; 8. 21. 2; D. 13. 7.

26. pr. See Ramadier, Missio in bona, 131 sqq. 11 42. 1. 40; C. 8. 22.

478 CONSENSUAL CONTRACTS [CH.

2. Tacit hypothecs imported by law into certain dealings without
agreement. They might be general, e.g. that of the fisc for all debts,
dating at latest from Caracalla, covering all the debtor's goods, that of
wards over the goods of tutores and curatores, for debts in respect of
their administration, said to date from Constantine1, that of furiosi,
under Justinian, against curatores2, that of children over their parents'
property in certain events, to secure their rights to dos and certain suc-
cessions3, that of widows for dos*, that of legatee for his legacy over
all goods of deceased in the hands of the person liable5. Some of these
and several others were introduced by Justinian.

They might be special, e.g. that of landlord for rent over crops of a
farm, and, in an urban praedium, over bona invecta et illata6, that of
one who had lent money for repairs, over the house7, that of pupillus
over goods bought with his money by a third person8, etc.

A special hypothec had no priority over an earlier general charge,
but if the creditor was the same, he could not proceed under the general
hypothec, at least if it was later, till it was clear that the other would not
suffice9. It does not seem that A with a special hypothec had any I
priority over B with a general hypothec of the same date10.

CLXIX. The Consensual Contracts. These were transactions in which
the mere agreement was a binding contract. They were all bilateral,
though mandate was imperfectly so, and they were of great commercial
importance, a fact which accounts for the attribution of contractual
force to the mere agreement. They were Emptio Venditio, Locatio Con-
ductio, Societas and Mandatum.

EMPTIO VENDITIO. The most important of all contracts. It was essen-
tially sale for a price, the double name expressing the fact that it was
bilateral but the duties on the two sides were different. The only other
contract which had this characteristic was hire and that also was called
by a double name — Locatio Conductio.

The primary essentials of the contract were consent, object sold, and
price.

Consent. No form was needed: consent could be shewn in any way11,
but in classical and later times it was usual to embody agreements for
sale, if of any importance, in written documents12. These were good evi-
dence, but they were no more, till Justinian provided that, where it had
been agreed to embody the bargain in such a document, the contract

\ C. 5. 37. 20. 2 C, 5. 70. 6. 3 C. 5. 9. 6. 2; h. t. 8; 0. 6. 61. 6, etc. 4 Ante,

§ XL. 5 C. 6. 43. 1. 6 20. 2. 3; h. t. 4; h. t. 7; 20. 6. 14. 7 13. 7. 21;

20.2.1. 8 20. 4. 7. pr. ; C. 7. 8. 6. 9 20. 4. 2; C. 8. 27. 9. 10 But a

general hypothec, even to the fisc, was postponed to an earlier special hypothec. 20. 4. 8.
11 P. 2. 17. 13. 12 Instances, Girard, Textes, 843 sqq.: Bruns, 1. 329 sqq.

Xi] SALE 479

should not be binding till this had been completed1. But here another
factor came in. It was usual, as in all countries, to give something, as
it is said, to ''bind the bargain," arra, earnest, either money or some
article. In classical Roman Law there is no indication that ordinarily it
served any but an evidentiary purpose. In Greek law it was more im-
portant: forfeiture of it was often the remedy if the agreement was not
carried out, and it is likely that in the Eastern Empire the same had been
true in practice, at least in small transactions2. Justinian, in the Code,
provided that where there was arra and it was agreed that the contract
should be embodied in writing, a party who withdrew before the writing
was complete should forfeit the arra or its value, though he was not
liable on the contract. Such is at least the ordinary interpretation of
the provision, though it is not clear. In the Institutes, after saying that
in purely unwritten contracts of sale the arra is mere evidence, and that
he has made no change in these, he adds what seems to be a statement of
the enactment in the Code, remarking that it is to apply whether the
contract is in writing or not. The apparent contradiction has been ex-
plained and explained away by many writers3, but the matter is not
cleared up, and it remains uncertain whether under Justinian an un-
written contract, even complete, could be renounced without further
penalty than loss of arra, or whether the law of unwritten contracts was
unchanged.

Object sold. The main principles were that there was no sale without
an object sold and that anything could be sold which could enter into
the patrimonium*. Further, it must be a thing in which the buyer could
have an interesse. Thus a sale to a man of what was already his was
void, and if he did not know of the fact he could recover any price
paid5. If it was in part his, the sale was good for the rest6. And a man
might buy the right of possession of a thing which was his, if that right

1 Inst. 3. 23. pr. ; C. 4. 21. 17. The lex lays down the same rule for other transactions
and instances exchange and gift. 2 Collinet, Etudes Historiques, 1. 89 sqq. 3 Of

recent writers Collinet, loc. cit., holds that there is no real contradiction, but does not deal
with the opening words of the passage in the Inst. Cornil (Mel. Girard, 1. 255 sqq.) sees
a contradiction. Senn (N.R.H. 37. 575 sqq.) holds that in classical law forfeiture of arra
might serve as the sole penalty for withdrawal. Naturally the parties could so agree,
but he gives no texts. Those he cites merely say the arra shall be forfeited, and say nothing
of the rest. They are all on 1. commissoria, where the point could hardly arise, for here
breach gives vendor the option of enforcing or setting aside (18. 3. 2, 3). On avoidance
he will have only arra, but clearly vendee cannot set it aside on the same terms. He
holds J.'s rule as merely stating as law what had been practice. But if the rule in the
Inst. does actually allow the parties to a completed contract to withdraw with no penalty
but loss of arra, it is a change of great importance. 4 IS. 1. 34. 1. As to sale of things
in fact inalienable, post, p. 481. 5 18. 1. 16. pr. ; C. 4. 38. 4. If the ultimate object

was delivery of a thing for a price, the maker providing the materials, this was sale, not
hire of services, post, § CLXXVI. 6 18. 1. 18. pr.

480 SALE: SUBJECT-MATTER [CH.

was vested in another1. So too he might buy conditionally what was
his, the sale being operative only if it had ceased to be his when the
condition operated2. And he could buy what would be his on the
occurrence of a condition: he was in effect buying release from the con-
dition3. In cases of this kind, if he bought without knowledge of the
conditional right, and the condition was satisfied, he could claim the
price of the thing as if he had been evicted: he had, so to speak, evicted
himself4.

As there must be a real object, sale of a non-existent thing, e.g. a
hippocentaur, was a nullity5. The thing must be still existing. This
point is discussed in two much interpolated texts and the classical law
is not certain. The texts say that if the thing had wholly ceased to
exist, when the contract was made, the sale was void: this is no doubt
classical. If it had partly ceased to exist, and both were in good faith,
then if the major part still existed the sale was good, allowance being
made for what was lost6. Thus where land was bought in view of the
timber on it, and this was burnt at the time of the contract, there was
no sale7. If, in such cases, the vendor knew and the buyer did not, then,
if anything was left, the vendor must pay the interesse8.

A future thing might be sold, e.g. "my next year's crop9," and an
important distinction was drawn between emptio rei speratae, such as
this, in which case there was no sale unless the thing sold came into
existence, and an emptio spei, e.g. a shilling for the next cast of the net,
which was good though the net came up empty. The first case gave a
result which often recurs. If there was no crop, there was no contract,
but, if the vendor had prevented the crop from coming, he was liable
ex empto, i.e. there was an actio ex empto, though there was no contract10.

A hereditas might be sold, like anything else, but it must be one
already existing. The sale of the hereditas of a living or imaginary person
was void, and price and expenses could be recovered: it was not allowed
to speculate on chances of succession11. Under Justinian persons likely
to succeed to a person yet living could make valid pacts as to the ultimate

1 18. 1. 34. 4. 2 h. t. 61. 3 Arg. 19. 1. 29. 4 Ib. 5 Arg. 45. 1. 97.

pr. ; 18. 1. 8. 6 18. 1. 57. 7 18. 1. 58. So where two slaves were bought at

a lump price and one was already dead, the sale was void ; the unity of price implied that
the point was to get the two, h. t. 44. 8 18. 1. 57. 1. The text goes on to discuss

further cases, even the improbable one in which they are agreeing for the sale of a house
which both of them know to have ceased to exist. 9 18. 1. 8. pr. ; h. t. 39. 1.

10 18. 1. 8. pr. 11 18. 4. 1; h. t. 7. If there was a hereditas, not belonging to vendor,
then, apart from dolus, he must give its value. If no hereditas at all, price paid and ex-
penses (18. 4. 8). It was permissible to sell any rights in an existing hereditas, whatever
they might prove to be — emptio spei — but not if the hereditas was of a living man (h. t.
9-11). See Vassali, Miscell. crit. d. D. R. 1, but interpolations are somewhat freely
adopted. See review by Koschaker, Z.8.S. 36. 433.

xi] SALE: SUBJECT-MATTER 481

sharing of the succession, if the person whose hereditas was in question
assented. But this does not amount to sale, and he expressly restates
the rule that there can be no contracts affecting future hereditates1. It
is to be noted that in sale of an inheritance there were debts as well as
assets, and the same may be said of sale of a peculium.

The sale must be legally possible. Thus the sale of what was not in
commercio, a freeman or a res sacra or religiosa, was void, and it was not
thought fitting to allow the sale of a freeman "si servus erit2" But if
the buyer of a man thought he was a slave, classical law held that there
was a valid contract, because it was difficult to tell a slave from a free-
man, and the vendor was liable for eviction. The same rule, at least as
to the existence of a contract, was applied under Justinian to the other
cases3, but in classical law there seems to have been only an actio in
factum for the innocent buyer of res religiosa*, while another text, perhaps
altered by Justinian, tells us that an innocent purchaser of res sacra
religiosa or publica has an actio ex empto for his interesse, though "emptio
non teneat5." If only a small part of the property was such, this did not
affect the contract, but there was an actio ex empto for compensation6.

Not only must the thing be in commercio ; it must be one with which
the actual party could deal. It must be in commercio to him. Thus a
guardian could not buy his ward's property or a provincial official
property in the province7. It was forbidden to sell the materials of a
house, and thus a contract of sale was void8. It may be, as is sometimes
said, that the same was true wherever the law forbade alienation, e.g.
of dotal land, or of res litigiosae: it is at least consistent with the texts
to say that there was an actio ex empto to a buyer in good faith9. The
sale of fugitive slaves, who were res furtivae, was expressly forbidden,
so that this was void, in any event10. Of other res furtivae we are told
that if the buyer was in good faith there was a valid contract11.

There was nothing to prevent the sale of a third person's property.
It might be difficult to carry it out, but that was the vendor's fault.
It is plain that such a sale might be in good faith, with full knowledge
of the facts; the vendor might intend to acquire from the owner, or
induce him to convey to the buyer12.

A res incorporates might be sold, e.g. a usufruct or usus to be created
in favour of the buyer. The enjoyment of an existing usufruct might be

1 C. 2. 3. 30. 2 18. 1. 34. 2. 3 18. 1. 4-6; h. t. 34. 1. 411. 7. 8. 1

5 18. 1. 62. 1. Cp. Inst. 3. 23. 5. 6 18. 1. 22-24. 7 18. 1. 34. 7; h. t. 46; h. t.

62. pr. 8 18. 1. 52. 9 23. 5. 4, etc. See refL, Moyle, Sale, 20, 21. Analogy

suggests an evolution like that in the case of res sacrae. And probably a conditional
sale was valid as in the case of purchase of res sua. 10 18. 1. 35. 3. 11 18. 1. 34. 3.

Some things were excluded from sale for other reasons, e.g. poisons, except recognised
medicines, h. t, 35. 2. 12 18. 1. 28.

B. it. L. 31

482 SALE: PRICE [CH.

sold, but not of usus, which was inalienable and could not become
alienable: the buyer was presumed to know the law1. So a right of way
to be created might be sold2, and A might sell to B a right of way over
C's land, if B had adjoining land, though it might be difficult to carry
it out.

The sale need not be of a specific thing; it might be, e.g., of a choice
and it might be of a genus, i.e. a thing of a kind, without specifying the
particular thing. But a distinction must be drawn. We have instances
of sales of genera in the sense of so much, or so many, out of a given
quantity belonging to the vendor3, but no clear instance of a sale of that
kind not out of an existing mass. This fact, and a priori considera-
tions, have led to a general opinion that such a transaction was not sale.
It must have occurred ; it is found in stipulatio and legacy4, and a bonae
fidei consensual contract might be expected to be at least as widely
construed as a stricti iuris transaction5. But no such cases are
recorded. In a sale of an alternative, this or that, the vendor might
choose, but, if one ceased to exist before delivery, he must give the
other6.

CLXX. Price. The price must be in money, must be fixed, and must
be real. It must be in money, or it would be impossible to distinguish
buyer from seller and their duties were different. The rule and the reason
are given by Gaius as the Proculian view. The Sabinians held that it
might be sale though the price was not in money, and Gaius tells us
that Caelius Sabinus urged that if a thing was given, clearly as the price
for a thing offered for sale, the difficulty would not arise. But Justinian
did not adopt this7 and it is clear that the Proculian view prevailed8.
But the Code adopts an enactment of A.D. 238, which declares, on such
facts, not that it was sale, but that there was an action "ad exemplum
ex empto actionis9."

The purpose of the rule was served if some of the price was in money,
and this sufficed: it was still a sale, though something was undertaken
besides payment in money10. And where a money price was agreed,
there was nothing to prevent a subsequent arrangement that some-
thing else should be rendered instead, on the principles of datio in
solutumu.

The price must be cerium. An agreement to sell, with no price fixed,

17.1.12.2;7.8.8. 2 8. 1. 20; h. t. 80. 1; 19. 1. 3. 2. 318.1.35.5. 430.37.
pr.; 45. 1. 54; Ulp. 24. 14. 5 See Karlowa, R.Rg. 2. 616. See however, Haymann,
Haftungdes Verkdufers, 1. 71 6 18. 1. 34. 6. As to alternative obligations, post, § cxcm.
7 G. 3. 141 ; Inst. 3. 23. 2. 8 Gaius is definite, though he speaks of dispute as still existing.
See D. 18. 1. 1. 1 ; 19. 4. 1 . 9 C. 4. 64. 1. The thing given had heen handed over and

there was a complete permutatio. The action was, it should seem, praescriptis verbis.
Post, § CLXXXI. 10 18. 1. 79. 11 C. 4. 44. 9. As to datio in solutum, post, § cxcm.

xi] SALE: PRICE 483

was not a sale1, nor was one expressed as "at a fair price." The normal
price was a fixed sum, but there were other forms: "the price at which
I bought the other," "the rate fixed in the market to-day" would do
as well — id cerium est quod cerium reddi potest2. Although pacts might
be freely added to a contract of sale, a subsequent agreement that the
price should be altered in a certain event was regarded as creating a
substituted new contract in that event3. There was difficulty as to an
agreement for sale at such a price as a third party should fix. Labeo
and Cassius (of different schools) held that there was as yet no con-
tract. Others held that there was. Justinian held that there was a
contract conditional on the fixing of the price by the person named, but
only if a specific person was named4. It is also clear that there was no
sale if the price was left to be fixed by one of the parties5.

The price must be real. This rule was intended to prevent evasion of
rules on donatio6, by making the transaction look like a sale. It was no
sale if a price was named, but there was no intention to exact it7 ; it was
donatio, governed by the rules of donatio. There was some difficulty
where the price was absurdly low. Where the price was derisory, " nummo
uno" or the like, there was, no doubt, no sale, but a masked donatio, but
this is not stated for sale, though it is for locatio8. But where the price
was merely low, here, whatever the object, it was sale, if the price was
to be exacted, unless the parties were husband and wife, when it was
more severely scrutinised. On Julian's view the whole was void in this
case if the price was plainly too low. On another view, which seems to
rest on a rescript of Severus and Caracalla, there must be evidence that
it was donationis causa, and not in good faith. In that case it was void ;
otherwise it was pro tanto a donatio9, and therefore pro tanto void.

There was no rule that the price must be adequate10; the court
would not prevent ordinary people from making their own bargains.
To this there was in later law one exception, the so-called laesio enormis.
Two texts in the Code say that if land had been sold at less than half
its value, the seller could have the sale rescinded unless the buyer would
make up the price to the full value11. They are attributed to Diocletian,
but both shew signs of interpolation. The rule is not known to the framers

1 Inst. 3. 23. 1. 2 18. 1. 7. 1, 2. The parties do not know it, but it is certain what

it is. We are here told that a sale for " 100 and whatever more I may sell it for" is good:
there is a certum, with a further contingent right. See also Vat. Fr. 9. 3 18. 1. 72. pr.

4 Inst. 3. 23. 1; 19. 2. 25. pr.; C. 4. 38. 15; G. 3. 140. 5 18. 1. 7. pr. 6 Ante,

§ xci. 7 18. 1. 36; C. 4. 38. 3. 8 19. 2. 20. 1; h. t. 46. 9 18. 1. 38; 24. 1.

5. 5; h. t. 7. 6; h. t. 31. 3, 4; h. t. 32. 25. 10 As to temporary regulations of price,

e.g. of corn (L. Sempronia), see Moyle, Sale, 75. There were certain cases in which sale was
compulsory, and here there was sometimes a fixed price. See C. 6. 43. 3; 7. 7. 1. Buckland,
Slavery, 577. 11 C. 4. 44. 2, 8.

31—2

484 SALE: DUTIES OF VENDOR [CH.

of later leges in the Theodosian Code1, so that, in view also of the crude-
ness of the rule, it is likely that it is due to Justinian. It does not
appear to have applied to anything but land, and there is no reason to
think that the buyer had an analogous right in the converse case2.

CLXXI. Confining ourselves for the present to simple cases without
subsidiary terms, we have now to consider the duties of the parties.

Duties of the vendor. Sale was a bonae fidei contract in which both
parties benefited. The Vendor must abstain from dolus, and must take
care of the thing till delivery, being liable for culpa levis3, i.e. he must
shew the care of a bonus paterfamilias. He was also, we are told, bound
to " custodia*." It is a question to be considered later whether this
meant, here, merely maxima diligentia in preventing theft, or an absolute
liability if it was stolen. He was not liable for casus, apart from agree-
ment or mora. Thus if the thing was damaged by accident, after the
contract was made, or wholly or partially ceased to exist, without his fault,
he was bound only to deliver what \vas left and the buyer must still pay
the price ; the risk was on him5. The effect was to imply in the contract an
agreement that the maxim res peril domino was not to apply. The rule is
clear, but its supposed injustice has led to a great variety of explanations
of it, according to the writer's views on the origin of the contract of sale6.

To account for the origin of the rule on logical grounds is not to
justify or account for it at a time when it had ceased to be logical. It
may be a mere traditional survival7. The rule existed when sale and
transfer occurred at the same moment, and though sale changed its
character the rule remained. There is no doubt that this sort of survival
did occur ; fiducia left its mark on the institutions derived from it. But
there we can see that those which were undesirable disappeared. This
rule remained and seems to have raised no question. The fair inference
is that it corresponded to commercial needs8. It must be remembered
that the rule could always be excluded by agreement. We shall see later
that the rule as to total destruction did not apply if the sale was con-
ditional, or was not "perfecta" in other ways. On the sale of fungibles,
at so much a unit, the risk did not pass till the counting or weighing or
measuring was complete, and this whether what was bought was the
whole mass or part of it9. This required the presence or consent of the

1 C. Th. 3. 1. 1; h. t. 4; h. t. 7; cp. C. 4. 44. 15. 2 Exceptions, Moyle, Sale, 186.

The rule has been much discussed, Windscheid, Lehrb. § 396. Later continental systems
have adopted it with modifications. See Code Civil, §§ 1674 sqq. The new German Civil
Code does not adopt it. 3 18. 6. 3; Vat. FT. 13. 4 19. 1. 31; 47. 2. 14. pr.

5 18. 6. 8; 21. 2. 11; Inst. 3. 23. 3; Vat. Fr. 23 = C. 4. 48. 5. 6 See Dernburg, Pand. 2.

§ 96; Girard, Manuel, 556 sqq. ; Bertolini, op. cit. 508. Haymann (Z.S.S. 41. 44 sqq.) main-
tains that it is a Byzantine notion. 7 Girard, loc. cit. 8 Appleton (Rev. Gen. 36.
518) finds some advantages in it. The same rule exists in English law, but here it is logical,
as ownership passes, and where it does not, the risk does not. 9 18. 1. 35. 5, 7 ; 18. 6. 8. pr.

xi] SALE: DUTIES OF VENDOR 485

buyer. If he did not appear on the fixed day, or on reasonable notice
the vendor was no longer liable for culpa1, but only for dolus, so that all
risk passed to the buyer2.

The fact that the goods were the property of a third person did not
affect the law of periculum, unless the vendor fraudulently represented
them as his own: in that case it is commonly held that the risks were
with him3. And in all cases in which the risk was with the buyer the
vendor was bound to assign to him any rights of action he might have
against a third party in respect of the goods4, since the buyer, having
as yet no actual right in the goods themselves, would have no remedy
of his own5.

The next duty of the vendor was to deliver the goods, assuming that
the buyer had paid, or was ready to do so, or in some way had fulfilled,
or was ready to fulfil, his part. As the buyer took the risk of diminution,
so he had the benefit of increase ; he was entitled to the thing as it was
on delivery. All accessions and fruits since the contract was perfecta
went to him6. If, on land sold, a tree had since blown down, it belonged
to him7. There is however some doubt in the case of money received
under a contract of hire of the thing. Day to day earnings of the slave
sold in the meantime, the price offructus, ripe at the time of the contract,
received later, and other acquisitions of the same type went to the
buyer8. But where land sold was at the time let to a tenant we are told
that any rent paid belonged to the vendor, apart from agreement9.
These words, and the fact that other texts shew that such agreements
were made10, make it clear that this does not mean merely that the rents
were his, with a duty to account for them: though this is what we should
expect, since he was not to keep the commoda of the thing soldu. It
appears that he kept them. No doubt the rule applied only to cases in
which the agreement was made before the contract of sale.

The duty of delivery may be shortly stated thus. The vendor must
put the buyer into control of the thing ; he must give him vacua possessio,
and must in practice guarantee him against defects of title, but was not
bound to make him owner12. Why the rule was put in this way is un-

1 18. 6. 5; h. t. 18, and culpa fatal, post, § cxc. 2 Elaborate rules as to disposal

of goods thus left on vendor's hands, 18. 6. 1. 3, 4; h. t. 2. 3 Arg. 18. 1. 35. 4; 19. 1.

30. 1; 21. 2. 21. pr. (?interp.): the inference is rather uncertain. 4 47. 2. 14. pr. ;

h. t. 81. pr.; Inst. 3. 23. 3 a. 5 47. 2. 14. 1. 6 18. 6. 7. pr.; C. 4. 49. 2. 2; Inst.

3. 23. 3. 7 Arg. 18. 6. 9. Acquisitions from outside to peculium of slave sold cum

peculio, children born to a sold ancilla, P. 2. 17. 7; D. 19. 1. 13. 13. 8 Vat. Fr. 15;

P. 2. 17. 7. 9 19. 1. 13. 11. 10 E.g. 18. 1. 68. pr. 11 C. 4. 48. 1. 12 19.

1. 11. 2; h. t. 2. 1; 18. 1. 74. In 12. 4. 16, "dedi tibi pecuniam ut mihi Stichum rfare.9."
Celsus says that this is not sale, and the money can be recovered if the property in 8 is.
for any cause, not transferred. It is "ob rem datio." This seems to make a special agreement
that ownership should be given inconsistent with sale. It does not exactly conflict with

486 SALE: DUTIES OF VENDOR [CH.

certain. It can hardly have been in order to facilitate dealings with
peregrines, provincial land and things held in bonis', these were more
appropriately met by special rules. In permutatio, which was probably
common with peregrines, the rule was otherwise; ownership must be
given1. Probably it was in order to relieve the vendor from the obliga-
tion, which might be troublesome, of proving a perfectly good title
until it was disputed by a third person2.

To give vacua possessio was to put the buyer into exclusive possession,
not defeasible by interdict, and free from any burdens interfering with
it except such as had been agreed on3. The existence of praedial servitudes
grounded no claim (as they did not prevent possession) unless they
were known to the vendor and concealed, or the land was sold free of
them, optimus maximusgue*. Though the vendor was not bound to make
the buyer owner, the rule gives a similar result; the simple way of
satisfying the rule was to make him owner. The rule leaves one point
open ; it is true that the vendor had not to make the buyer owner, but
is it true that he had not to do what in him lay to make him owner? If
the owner of a res mancipi sold it, was he bound to mancipate it? This
might make a great difference, e.g. the buyer of a slave might wish to
free him so as to make him a civis. Good faith seems to require that the
vendor should transfer all the right he had so that the affirmative view
is the most probable5. If the law was so the system is convenient; the
vendor need not shew title, and could not be disturbed till the buyer
was interfered with, and the latter was protected.

The obligation to guarantee the buyer against eviction was a very
important part of his protection, with a long history6. Under the XII
Tables there was an action, probably called the actio auctoritatis, in all
cases of mancipatio, by which a mancipans who failed to defend the
right of his transferee (by successfully acting as auctor if he was sued)
was compelled to pay double the price, the action being barred by lapse
of the time of usucapio7. The action remained in use throughout the classi-

19. 5. 5. 1, where it is sale, as the expression is different, "«/ rem accipiam." But the rule
seems absurd. It has been explained as a corruption, pecuniam being properly some other
word, and as an interpretation of intent, the undertaking being expressly conditional
on transfer of dominium, but this is to give extreme weight to "w<." But the text can hardly
be accepted at its face value. See N.R.H. 1907. 100; 1910, 709.

\ Post, (JCLXXXI. 2 See Girard, Manuel, 650. 3 19. 1. 3; h. t. 11. 13; 21. 2. 1.
4 18. 1. 59; 19. 1. 1. 5 Girard considers it proved by the texts, and cites P. 1. 13 a.

4; G. 4. 131 a; D. 19. 1. 11. 2 (Manuel, 563). Bonnet (Mtl. Gerardin, 43 sqq.) adds 22. 1.
4. pr., but his argument turns mainly on the probable history of the evolution of sale
from mancipatio. 6 Our knowledge of this history is mainly the result of the

researches of Girard, summarised, with reff. to the actual essays, Manuel, 564 sqq. The
propositions in the text do no more than state his account in outline. 7 It does not

seem to have been possible to exclude the warranty in mancipatio, and thus when it was a

xi] SALE: DUTIES OF VENDOR 487

cal law1, but Justinian sought to delete all references to it in the texts.
It had nothing to do with emptio venditio as a contract; it is far older
than the contract. Where the thing, though a res mancipi, was not
mancipated, or where it was a res nee mancipi of considerable value, it
was usual from early times to exact a promise of double the price in case
of eviction. In some places, and in cases of small value, the stipulation
was merely "habere licere," for a simple indemnity. In time the rule
appeared that, in sale, as it was not good faith not to give the usual
undertakings, these promises or one of them could be required, and an
actio ex ernpto brought to enforce this, and then that it would be
implied, and damages recovered in ex empto as if such a promise had
actually been made2, but it was usual to make the promise expressly,
perhaps to avoid the doubt under which class the sale came. Later, but
still early in classical law, the rule appeared that apart from this implica-
tion the buyer had a right to an indemnity if he was in effect deprived
of the value of his purchase by reason of a defect in title3. When this
rule appeared, the stipulatio habere licere practically disappeared. There
were thus two cases, that of the stipulatio duplae, express or implied, and
that of simple compensation.

(a) Stipulatio duplae, where it was actually made or could be implied,
i.e. in cases of considerable value (including no doubt all res mancipi) in
those parts of the Empire where the promise was usual, which seem to
have been the most important. The action would be on the stipulatio or
ex empto, in effect for breach of the duty to make the promise. It was
normally for double the price, as in the actio auctoritatis*. It lay only if
there had been an actual eviction, i.e. judgment under which the buyer
had given up the thing or paid the damages5. If he abandoned it without
action, though he knew there was no defence, or if he compromised, he
lost the right6. If after the judgment the claimant, instead of taking the
res, gave it to him7, or died leaving no successor, there was no claim
under the rule. So if the thing ceased to exist before the eviction8. The
right was lost if the buyer allowed judgment to go without notifying his
vendor9. The eviction was not necessarily of the whole; evictio partis
gave a right to a proportionate part10, but as a part is not the thing, it
was necessary, and clearly usual, to stipulate for the case of eviction of

gift, or for any reason there was to be no warranty, an imaginary price, nummus unus, is
stated. See Girard, Texles, 826 sqq.

1 P. 2. 17. 1-3. 2 P. 2. 17. 2. 3 C. 8. 44. 6. 4 21. 2. passim. See

h. t. 56. pr. 5 21. 2. 16. 1; h. t. 21. 2. 6 21. 2. 24; h. t. 56. 1. 7 21. 2. 57. 1.

8 21. 2. 21. pr.; C. 8. 44. 26. 9 21. 2. 49; C. 8. 44. 8. It does not arise if the adverse

judgment was wrong through an error of the iudex, 21. 2. 51. pr.; Vat. Fr. 8. 10 21.

2. 1; P. 2. 17.4.

488 SALE: DUTIES OF VENDOR [CH.

"rem vel partem1." A part might be physical or legal, e.g. a usufruct,
but not praedial servitudes or mere accessories2.

(b) Cases in which the stipulatio did not apply. Here what was re-
covered was not a fixed sum, but the amount of the damage of all kinds,
an indemnity3. Thus it might be more or less than the price, according
as the thing had fallen or risen in value, though, in later law, it might
not exceed double the price4. But there need have been no actual
eviction. It was enough if the title was invalid, and the buyer held only
by another title, e.g. the owner had given it to him5. Thus there need
have been no action at all6. It applied also where what was lost was
only an accessory7. Apart from this, if the res aliena was sold knowingly,
and the buyer was in good faith, he could recover ex empto without
waiting for actual eviction8. If he had improved the property, he
could usually secure reimbursement by the ius retentiffnis, but where he
could not, e.g. not having possession, he could recover it in this action9.

All these rights might be varied by agreement10.

CLXXII. A further obligation of the vendor was warranty against
secret defects11. Here too there was much evolution. Apart from the
ancient actio de modo agrilz, the civil law knew no remedies for undis-
closed defect except that it was dolus to conceal important defects of
which the vendor knew13, a poor protection, since it would be difficult to
prove knowledge. The Edict, of the Aedites14 carried the matter further,
but only in a limited field. It dealt originally15 only with sale of slaves,
the slave-dealer having a very bad reputation. It provided, in classical
law16, that on such sale in open market the vendor must declare all of a
long list of defects that the slave had, mental, moral and physical. He
must further promise that no such defects (morbus, tritium) existed
other than those declared, and if he refused to do this an actio redhibi-
toria, to set the contract aside, lay for two months, and an action for
damages, perhaps the actio quanta minoris, for six17. The purpose of the

1 21. 2. 56. 2. See Girard, Manuel, 570, n. 4. If no stipulatio at all was made presum-
ably the complete form was implied. 2 21. 2. 43; h. t. 49; h. t. 16. pr. There is
much controversy as to evictio partis. See Bertolini, op. cit. 543, and his references. It
may be that the "pars" for which the insertion ia necessary is an undivided part or a
usufruct or the like. 3 21. 2. 8; h. t. 43; h. t. 44. 4 19. 1. 44 (interp.); 21. 2. 70;
C. 7. 47. 1. 5 21. 2. 9; P. 2. 17. 8. 6 19. 1. 29. 7 21. 2. 8. 8 Arg. 19. 1. 11. 12.
9 19. 1. 45. 1. 10 Vat. Fr. 17; D. 22. 1. 18. pr.; 19. 1. 11. 18. This last text seems
to imply that if the warranty was expressly excluded, there was no obligation even to
return the price (though Julian disagreed), the thing being treated as an emptio spei, the
vendor being however liable in full if he knew he had no title. 11 Bechmann, Kauf,
1. 361 sqq.; Eck, Festgabe fur Oeo. Beseler, 161 sqq. 12 P. 2. 17. 4. For double the
proportionate part of price, where area less than vendor stated, Lenel, E.P. 189. 13 18. 1.
43. 2. 14 Lenel, E.P. 529 sqq.; Biondi, Studi sulle Actiones Arbitrariae, 1. 119 sqq.
15 Aul. Gell. N.A. 4. 2. 1. 16 Original form, Aul. Gell. loc. cit. 17 21. 1. 28.

xij SALE: DUTIES OF VENDOR 489

promise is not clear since in any case if serious1 defects appeared, or
dicta or promissa made proved untrue, the actio redhibitoria was available
under the edict for six months to set the contract aside and the actio
quanta minor-is y for damages, for twelve2. It may be that the promise
represents an earlier phase in which there was no liability except on
actual promise.

The edict was soon extended to similar sales of any live stock, but
here it does not seem to have expressly required a promise, though in
practice it was so understood3, and the defects, morbus and vitium.
were all practically physical4. The action did not arise unless the defect
affected value5, or if the buyer knew or ought to have known of it6.
That the vendor did not know was immaterial7. The general effect of
the action was to end the transaction. The goods were returned, and the
price was repaid, with compensation for damage from the defect8. The
thing, with its accessories, and damages for any deterioration, and all
acquisitions through it, must first be returned9, so that the action did
not lie if the buyer had put it out of his power to restore, though, in
general, if the impossibility was not due to his culpa, he was still entitled10.
The price must be repaid with interest11. In circumstances which are
obscure the actio redhibitoria might result in a condemnatio in duplum,
but there is much controversy about this12.

The other action, quanta minoris, was available for damages, wherever
the actio redhibitoria was, and also after the six months had expired 13,
and presumably where it was a minor defect. If it was brought where the
defect was so great as to destroy the value of the thing, redhibitio might
be ordered instead of damages14. Bringing of the action for one defect
did not prevent its renewal, within the twelve months, for another15.

The Edictal system as stated covered only a small range of cases.
In the Digest the rules apply to all sales. Two texts attributed to
Ulpian say this, and one of them attributes the view to Labeo, but both
texts shew signs of interpolation16. Probably the extension was gradual,
first to sales of slaves and beasts not in open market, and then to all

1 Arg. 21. 1. 4. pr.; h. t. 6. 2 21. 1. 21; h. t. 43. 6; h. t. 48. 2; P. 2. 17. 5. 3 See

the edict, Lenel, E.P. 539, 541. 4 The edict contained other provisions. The date

of the introduction of the edict as to iumenta is uncertain. Varro does not know of it, for
he recommends buyers to get express warranties and speaks of customary stipulations,
and " prisca formula" resembling the terms of the edict, Res R. 2. 2, 2. 5. Cicero speaka
of the edict as to slaves (de off. 3. 17. 71) in a way which suggests that the other edict did
not yet exist. 5 21. 1. 10. 2; h. t. 12. 6 21. 1. 14. 10; h. t. 48. 4. 7 21. 1.

1. 2. 8 21. 1. 23. 7; h. t. 60; P. 2. 17. 1 1. 9 21. 1. 23. 1, 9: h. t. 25. pr.;

h. t. 31. 2, 3. 10 21. 1. 31. 11, 12. 11 21. 1. 25. 9; h. t. 29. 2; h. t. 30. 1. 12 21. 1
23. 4; h. t. 45. See Buckland, Slavery, 64, for discussion and reff. 13 21. 1. 19. 6; (,'.

4. 58. 2. 14 21. 1. 43. 6, ? within the six months. 15 21. 1. 31. 16; 21. 2. 32 I.

16 21. 1. l.pr.;h. t. 63.

490 SALE: DUTIES OF BUYER [CH.

sales. It does not follow that this is due to Justinian. A text of Ulpian
says that there may be redhibitio of land if it is pestilential1. But this,
even if genuine, does not expressly refer to the actio redhibitoria, and
may represent only what seems an early rule, that even in the actio ex
empto, if the thing was not substantially what was bargained for, and
there was dolus, it could be handed back in the actio ex empto2. But
Diocletian, in the Code, expressly gives actio redhibitoria in the case of
pestilential land3. It seems however probable that, in classical law, the
rights which could be enforced by the actio redhibitoria could also be dealt
with in the actio ex empto*, but the matter is obscure5.

The actio quanto minoris plays a small part in the texts. Though it
cannot be proved that redhibitoria lay for serious and quanto minoris
for minor defects, it is likely that they were so employed, and that the
actio ex empto absorbed the principles of quanto minoris before it did
those of redhibitoria. The texts dealing with measure of damages in these
cases are confusing ; their general effect seems to be that where there was
express warranty the vendor was liable for resulting loss of any kind,
but apart from this only for the difference between value and price,
unless he knew of the defect, in which case he was liable for the whole
inter esse6.

The rights could be varied by agreement. Sales in which all warranty
was excluded were called venditiones simplariae1.

The chief duties of the vendee can be shortly stated. He must pay
the price and make the vendor owner of it8. It will be remembered that
only when he had done this did the property vest in him, at least in
later law, even if the goods were delivered, apart from agreement for
security or credit9. Interest was due if payment was delayed beyond
the agreed time, at once, if the sale was for cash10. As he took profits
from the time of sale, he must pay expenses11 bona fide incurred by the
vendor since then. He was liable for culpa levis in his dealings with the
thing in any case in which the interest in it might under the rules revert
to the vendor 12.

As the obligations were concurrent, neither could compel the other
to perform unless he had done, or tendered, his own part13. Otherwise

1 21. 1. 49. 2 19. 1. 11. 3; h. t. 6. 4. The text does not require dolus, but Pernice,
Labeo, 2. 1. 180, considers this necessary. 3 C. 4. 58. 4. 4 19. 1. 11. 7,

Neratius. 5 See, inter alias, Partsch, Z.S.S. 33. 600, reviewing Haymann, Haftung

des Verkiiufers. 6 18. 1. 45; 19. 1. 6. 4; h. t. 13. pr.; h. t. 21. 2; P. 2. 17. 6, 11.

7 21. 1. 48. 8. Perhaps also excluding liability for eviction, see Esmein. Melanges, 414.

8 19. 1. 11. 2; Inst. 2. 1. 41. If the title is disputed before the price is paid, Papinian
says (Vat. Fr. 12) that it need not be paid even if vendor offers security. In the Digest
this is altered to "unless," 18. 6. 19. 1. See C. 8. 44. 24. 9 18. 1. 19; ante, §§ Lxxxni,
LXXXVI. 10 19. 1. 13. 20; P. 2. 17. 9; Vat. Fr. 2. 11 19. 1. 13. 22. 12 13. 6.
5. 2; 19. 5. 20. 1. 13 19. 1. 13. 8.

xi] SALE: CONDITIONS 491

he would be met by the so-called exceptio non adimpleti contractus. The
better view seems to be that this was not an exceptio, even implied, as
an exceptio would be in a bonaefidei indicium. It is clear that the plaintiff
must prove his performance, while in a true exceptio the burden of proof
was normally on the defendant1.

Apart from the special actions just discussed, the remedy was an
actio ex vendito for vendor, ex empto for vendee, both giving bonaefidei
indicia2.

CLXXIII. The obligations could be varied to almost any extent by
agreement, but an agreement excluding responsibility for dolus was void
here as always3, and it is sometimes said, on poor evidence, that an
agreement that dominium should be transferred was excluded in early
classical law4. Apart from this, there might be any number of pacts, and
they are prominent in the texts. Many of them were mere subsidiary
terms which appear only on account of difficulties of interpretation,
but there were others of a more important type. These amounted to
conditions, and as they were of great practical importance they need
discussion. We have already considered5 the nature and effect of con-
ditions, and the distinction between suspensive and the so-called reso-
lutive conditions, cases in which a contingency is stated in which the
agreement is to be inoperative: "pura emptio quae sub condicione
resolvitur6." It is necessary however to refer to some special points of
importance in the law of Sale. The risk of destruction did not fall on the
buyer till a suspensive condition was satisfied 7, but if the thing was merely
deteriorated this did not release the buyer, apart from culpa of vendor8.
The price was not due, and there was not even a naturalis obligatio, so
that price paid could be recovered if the condition failed9. The fact that
the res belonged to the vendee was no objection to the bargain if it
ceased so to belong before the condition was satisfied10. The buyer could
not usucapt pro emptore while the condition was pending11, and was not
entitled to fruits for that time12. The case was very different under a
resolutive condition. Here the contract produced its normal effects, so
long as the event did not occur. If it occurred before anything was done,
the whole was nullified, and there is nothing to be said. But if perform-
ance had already begun, machinery was necessary for undoing it. There
was a personal action, which seems to have differed in form in the differ-
ent pacts, by which, in general, the buyer could recover price and ex

1 There is no real authority for the name, and some of the reff. to the thing deal with
verbal contract. See Girard, Manuel, 544, n. 3. 2 G. 4. 62. 3 2. 14. 27. 3.

4 12. 4. 16. See ante, § CLXXI. 5 Ante, § CXLVHI. 6 18. 1. 3; 18. 3. 1, 2. 7 18.
6. 8. pr. 8 Ib.; Vat. Fr. 16. 9 12. 6. 16. pr. 10 18. 1. 61. 11 18.

2. 4. pr.; 41. 4. 2. 2. 12 18. 2. 4. pr.; C. 4. 48. 1; 4. 49. 2.

492 SALE: CONDITIONS [CH.

penses1, and the vendor the thing (or its value), presumably with com-
pensation for deterioration due to the buyer's fault, and fruits and profits,
or their value2. This implies, what might be expected, that the event
itself did not annul the transfer of property and its effects, but some
texts seem to imply that the rescission had effect in rem, the property
reverting ipso facto, and the cases must be taken separately.

Pactum de retrovendendo. The vendor was to have the right to buy
the thing back at an agreed price, usually, perhaps always, that at which
it was sold. With it may be taken pactum de retroemendo, an undertaking
to buy it back on similar terms in certain events. Texts disagree as to
the action. One gives a choice between action on the contract and the
actio praescriptis verbis*. Another gives actio in factum*. It may be
that classical law gave an action on the contract, the compilers adding
praescriptis verbis, but it is also possible that classical law gave only
actio in factum, the others being post-classical, but earlier than Jus-
tinian, the text, an enactment of the third century, being, on that view,
genuine. There was no effect in rem even under Justinian.

Pactum protimeseos, right of pre-emption. The vendor was to have
the right to buy at the price offered by any other bidder. The Digest
gives actio ex vendito5. There was no effect in rem6.

Emptio ad gustum. Pactum displicentiae. These look like two appli-
cations of the same kind of pact. In sales of wine, and similar commo-
dities, it was usual, almost a matter of course7, to make the sale depend
on approval by the buyer, a limit of time being commonly fixed. The
pact ordinarily created, as it seems8, a suspensive condition and the risk,
not only of destruction, but also of deterioration, was on the vendor till
approval or the dies praestitutus9. The rejection must be within the time
fixed, usually short, but if no time was fixed it seems that rejection might
be made at any time, so that the risks might be on the vendor for an
indefinite time10. It is to be observed that in this case the testing was a
momentary matter, not a question of continuous trial.

Pactum displicentiae was an agreement that the buyer might reject
the goods if, on trial, he found them unsatisfactory. His discretion
seems to have been absolute. It is found applied mainly to things of

1 18. 2. 16. 2 18. 2. 6. pr.; h. t, 16. Bertolini, op. cit. 479 sqq. 3 C. 4. 54. 2.

4 19. 5. 12. 5 18. 1. 75. 6 Difficult to distinguish from pact not; to resell

which in classical law may not have been valid unless tempered in some way. 19. 1. 21. 5.
7 18. 6. 4. 1; Cato, R.B. 148. 8 18. 6. 4; Cato, cit., where the ownership has not

passed. The contrary inference sometimes drawn from 18. 1. 34. 5 seems not justified.

9 18. 6. 4; 18. 1. 34. 5. The agreement in 18. 6. 1 is of a different character. It is disputed
whether the right to reject is absolute, or proof of non-merchantable character is needed.
The reference to periculum acoris vel mucoris (18. 6. 4. 1 ; see however Vangerow, Pandekten,
3. § 635) is not to be taken as excluding other risks or as limiting the right of rejection.

10 18. 6. 4. 1.

xi] SALE: CONDITIONS 493

which an extended trial would be needed, e.g. slaves or horses or land1.
Though it might be framed as a suspensive condition (si placuerit, erit
tibi emptus2) it was usually resolutive. It appears in more than one
form; it might be "si displicuisset inemptus erit3,''' or "si displicuisset,
reddatur," or " redhibeatur*," but it does not seem to be made out that
any difference of rule resulted5. The disapproval must be within the
agreed time. If none was fixed, it must be within 60 dies utiles6. The
power of rejection makes the rule of periculum rather illusory, for if the
thing was damaged by accident it would be rejected. If it was destroyed
by accident the loss, on the principles of resolutive conditions 7, ought to
fall on the buyer, but the rules applied seem to have been those of the
actio redhibitoria8, so that destruction without fault would not bar the
right to reject9, but this is hardly clear. All profits must be accounted
for10. The remedy was an actio ex empto or one in factum11. No text gives
any effect in rem and one expressly negatives it ; a hypothec created by
the buyer was not affected by his rejection of the thing12.

Lex commissoria. This was an agreement that if the price was not
paid by a certain time (it might perhaps be applied to other undertakings
of the buyer), the vendor might declare the sale void. It was not void
ipso iure, as this would enable the buyer to cry off, if he did not like his
bargain, by not paying the price 13. It might be suspensive or resolutive,
but was presumed to be the latter, so that risks were normally on the
buyer14. It seems to have been the rule, unless the contrary was agreed,
that if the clause came into operation, anything given as arra or part
payment was forfeited, and, conversely, that if such forfeiture occurred
the buyer need not account for profits15. The vendee must actually offer
the price unless this was prevented by the vendor16. The vendor must
exercise his right of rescission promptly, and having declared either way,
could not alter his mind : any act implying that the contract was still on
foot bound him17.

The personal remedy was the actio ex vendito18, but it is a vexed
question whether the rescission did not operate in rem, i.e. cause rever-
sion of ownership, ipso facto. A text of Scaevola and one of Severus
Alexander give vendor a vindicatio19 '. Another of the same emperor,

1 19. 5. 20; Vat. Fr. 14; C. 4. 58. 4. 2 Inst. 3. 23. 4; D. 19. 5. '20. 1. 3 18. 1.
3; 41. 4. 2. 5; 43. 24. 11. 13; Vat. Fr. 14; C. 4. 58. 4. 4 18. 5. 6; 19. 5. 20. pr.; 21. 1.

31. 22. 5 See however Windscheid, Lehrb. 2. § 387, n. 7. 6 21. 1. 31. 22, ex

tended for cause. 7 Ante, § cxLvm. 8 Ante, § CLXXII. 9 See 19. 5. 20

1, which seems to apply the ordinary rule for resolutive conditions. 10 13. 6. 13. 1
Vat. Fr. 14. 11 18. 5. 6. 12 20. 6. 3. The rules under these pacts are not fully

stated and have been the subject of much controversy. See Windscheid, Lehrb. 2. § 387
Girard, Manuel, 733 sqq.; Moyle, Sale, 80 sqq., 174 sqq. 13 18. 3. 2: h. t. 3. 14 18.
3. 1, 2. 15 18. 3. 4. 1; cp. h. t. 5 and 6. 16 18. 3. 4. 4. 17 18. 3. 4. 2;

h. t. 6. 2; h. t. T; Vat. Fr. 4. 18 18. 3. 4. pr. 19 IS. 3. 8; C. 4. 54. 4.

494 SALE: CONDITIONS [CH.

immediately preceding the last, expressly refuses it1. It may be that
in the first cases the ownership had not passed; an agreement that the
vendor may cry off if the price is not paid by a certain time is not
necessarily an agreement for credit2. On the whole the better view
seems to be that rescission had no effect in rem, even under Justinian,
but many views are held3.

In diem addictio. This was an agreement that the vendor should be
entitled to set the contract aside if a better offer was received by a
certain time. This too might be suspensive or resolutive, but was usually
resolutive4. We need not consider what amounts to a better offer; it is
however clear that it must be such: a vendor could not avoid the con-
tract by saying another offer was better, if it was not5. But he need not
take advantage of it unless he liked6, apart from special agreement
that the buyer might claim release, if there was a better offer, in which
case he was free whether the vendor took the other offer or not7. Where
he did propose to accept another offer, he must give the first vendee
the chance of improving his bid8. The personal remedy seems to have
been an actio ex vendito. But in this case there is a good deal of evidence
for an effect in rem9. It will be noticed that here and in the lex commis-
soria, the only two in which any case can be made out, the price would
not in the ordinary way be paid, so that, apart from the nature of the
condition itself, the ownership might not have passed. It is possible
that it is this fact which gives rise to the decisions which seem to give
an effect in rem to the pact. For the cases in which the price had been
paid, and a hypothec created by the buyer is declared to be void10, this
may it is said be due to the fact that though there had been traditio
there had been no mancipatio, and the traditio was invalid, since, the
condition having occurred, there was no causa11. But the general form
of the texts in the corpus iuris indicates that at least in the case of in
diem addictio, and perhaps in a wider field, Justinian inclined to recog-
nise an effect in rem1*. But all possible opinions are held13.

CLXXIV. LOCATIO CONDUCTIO. This was the contract of letting and

1 C. 4. 54. 3. 2 But as to this rule of payment of price see ante, §§ Lxxxm,

LXXXVI. 3 See Girard, Manuel, 735; Bertolini, Obblig. (Parte Sp.) 484 sqq.

4 18. 2. 2; 41. 4. 2. 4. Senn (N.fi.H. 37. 275) discusses the history of the institution; he
holds that as it dates from Plautus it cannot at first have been a condition, since there was
doubt as to the possibility of conditions till far later (G. 3. 146). See also Vernay, Servius
et son ficole, 206 sqq. 5 18. 2. 4. 5. 6 18. 2. 9. 7 Ib. 8 18. 2. 7; h. t. 8.

9 18. 2. 4. 3; 20. 6. 3; 6. 1. 41. pr. (prbb. interp.); 35. 2. 38. 2. 10 18. 2. 4. 3;

20. 6. 3. 11 Windscheid, Lehrb. 1. § 90, n. 1. But a traditio which is put out of action

ex pottfacto seems unroman and in fact this is giving the rule as a reason for itself. 12 See
the conclusions of Girard, Manuel, 735 sqq. 13 Ib. ; Windscheid, loc. cit. See Prings-

heim, Kauf mil fremdem Geld, 123 sqq., for a discussion of the various cases of vindicatio
utilis, on the assumption that they are all Byzantine.

xi] LOCATIO CONDUCT1O 495

hiring for a price, bilateral, and having a double name because the rights
and duties of the parties were different, as in emptio venditio. The trans-
action had three forms: locatio rei, the letting of an object to be used and
enjoyed; locatio operis, the letting out of a job, or contract; and locatio
operarum, the letting out of services.

Locatio rei, the letting out of a thing by mere agreement, for hire.
The letter is locator, the hirer conductor, but the names do not express
that distinction (and in one of the other types the conductor is not the
hirer), but are supposed to indicate what is evidenced in some other ways,
both for this contract and for that of sale, an earlier phase in which the
contract was completed only by handing over the res — a contract
"re1." In some cases it was difficult to tell whether the case was sale or
hire. Gains mentions leases in perpetuity, which he says were hirings2,
though in later law they merged in emphyteusis. Where gladiators were
hired at a certain sum for those who were returned and a much larger
sum for those who were killed, this, he says, was hire of the first, sale
of the others, a conditional sale, in fact, of all3. Where money was given
to a goldsmith, to supply a ring made of his own gold, Cassius treated
this as sale of the gold, hire of services, but it was finally held to be sale4.

The rules as to consent, object and price being much as in sale5, few
remarks are needed on these points. As to consent, there seems to be
no good evidence that Justinian's rule on the effect of agreement to
reduce the contract to writing applied here. As to object, this was as it
seems, always a res corporalis in the sense that there was a physical
thing. But there was nothing to prevent a usufructuary from letting the
enjoyment of the usufruct6, just as he could sell it. It might be a move-
able or an immoveable7, but not a consumable, except as in commodatum,
where it was hired "adpompam vel ostentationems" The hirer of a house
or part of it was called an inquilinus, one of land was a colonus9. The
rules as to what res may be the subject of locatio were much as in sale.
There is no evidence that the rule about error in the case of res sacrae
applied, and the letting of the services (it is not contemplated as locatio
rei) of a liber homo bonafide serviens was valid as a contract10. The rules
prohibiting sale or alienation of certain things, such as dotal land, did
not apply to locatio of them, since that was often the only way in which
they could be utilised11.

1 Locare and conducere both originally imply physical displacement. 2 G. 3. 145.

3 G. 3. 146. 4. G. 3. 147. Apparent exception, post, § CLXXVI. 5 Inst. 3. 24.

pr.-5; G. 3. 143; D. 19. 2. 46. 6 7. 1. 12. 2. 7 See 19. 2. 19. 1, 2. 8 Arg. 13.

6. 3. 6. 9 In later law colonus usually means colonus adscriptitius (ante, § xxxin),

who cultivated under persons who hired large tracts, conductors. But the free colonus
still existed, no doubt mainly near large towns. 10 See e.g. 41. 1. 19; h. t. 23. 11 23.
4. 22. pr. ; 23. 5. 4.

496 LOCATIO CON DUCT 10 REI [CH.

The rules on reality and certainty of price were as in sale, with two
modifications. The rent of land might be fixed in produce1. This raises
the question whether in classical law the "merces" or rent had to be in
money, though Justinian is clear that it must2. There was not the same
reason as in sale, since there was not the same difficulty in distinguishing
the parts. Gaius discusses the case of something lent in return for some-
thing lent, and doubts whether this is locatio or not3. Here the difficulty
did exist, but it does not seem that Gaius can have thought money an
essential, and he nowhere states it. On these grounds it has been held
that the rule is due to Justinian. Texts in the Digest which appear
genuine lay down the rule4, and perhaps the better view is that it was
a rule of late classical law5. Again, the merces .might take the form of a
proportionate part of the crop6, locatio partiaria. As Gaius tells us that
the merces must be certa7, this is an exception. It has indeed been con-
tended that locatio partiaria was really societas6, but the texts shew that
while it had affinities with societas it was really locatio, though subject
to some special rules9, and the facts of a given transaction might some-
times leave doubts whether it was locatio or societas or an innominate
contract10.

There was the same doubt where the merces was to be fixed by a third
party, settled in the same way11. The price was not necessarily a lump
sum; it was usually a number of periodical payments12, a point of some
importance in dealing with the rights of the parties.

Obligations of the Lessor. He must hand over the thing to the lessee
with the accessories, if any, usual in such cases13. The conductor had not
dominium or possessio, but only detention 14, which it was the duty of the
locator to maintain, so that he was responsible if the conductor lost it
either from a defect in the title of the locator, or because he had conferred
some ius in rem on a third person15, who would not be bound by the
contract. In that sense he had to guarantee the conductor against evic-
tion, and thus, if he sold the thing, he commonly made an agreement
with the vendee to respect the right of the conductor16. The locator must
maintain this detention throughout the term, which in the case of rural
leases was usually five years17. At the end of the term, if the tenant still
remained in possession, with consent of the locator, there was a tacit

1 19. 2. 19. 3. 2 Inst. 3. 24. 2. 3 G. 3. 144; cf. Inst. cit. 4 16. 3. 1.

9; 19. 5. 5. 2. 5 Ferrini, Archiv f. c. P. 81. 1, holds that it is Byzantine, but see

Longo, Mel. Oirard, 2. 105, who holds it classical. 6 19. 2. 25. 6, the metayer tenancy

of later times. 7 G. 3. 142. 8 See, however, Pernice, Z.S.S. 3. 57. 9 E.g.

47. 2. 83. 1. 10 17. 2. 52. 2; C. 2. 3. 9. 11 Inst. 3. 24. 1. 12 19. 2.

15. 4; h. t. 24. 2. 13 19. 2. 15. 1; h. t. 19. 2. 14 19. 2. 39; G. 4. 153; C. 7.

30 1. 15 19. 2. 15. 1, 2, 8; h. t. 25. 1. 16 19. 2. 25. I; post, p. 499. 17 Esmein,
Melanges, 219.

xi] LOG AT 10 CON DUCT I O REI 497

relocatio for one year, and so on 1. But in the case of houses, and wherever
there was no agreed term, any such relocatio might be ended at any time2.
Relocatio depended on consent: there was none if at the expiry of the
term the locator was insane3.

The locator, like the vendor, need not be owner4. Indeed it was a
very usual thing for the tenant to sublet, sublocatio, especially houses5.

The locator must keep the thing in substantial repair throughout
the tenancy, subject to agreement, not of course being responsible for
damage due to negligence of the tenant, who was liable for culpa levis6. The
lessor also was liable for culpa levis in relation to the thing, and must
compensate for damage due to defects, not disclosed, of which he knew
or ought to have known7. If the thing was in such a state that it did
not serve for the ordinary uses of such things, he was responsible, not
on any ground of negligence, but as he had not supplied what he con-
tracted to supply8. But the Aediles' Edict had no application to
locatio conductio^.

He must refund to the conductor any expenses. This does not mean
the ordinary expenses of husbandry, etc., but money spent, either
necessariae impensae, or, as it seems, even utiles, in maintaining the
thing, expenditure, that is, for the benefit of the permanent interest in
the thing10. He must also pay taxes and other public charges11.

CLXXV. Obligations of the hirer. He must accept delivery and
enter into possession. He must deal with the thing as a bonus pater-
familias, being liable for culpa levis12. In particular, he must keep agri-
cultural land in proper cultivation, not abandoning it, as land out of
cultivation lessens in value13. A question arises as to his liability for
culpa of employees, slave or free14. The texts are confused and inter-
polated. The better opinion seems to be that the dominant classical
view was that where a slave committed culpa under his master's contract,
the master was not liable, ex contractu15, but there was another view, which
prevailed under Justinian, that he was liable, but could release himself
by surrendering the slave16. All this of course assumes that he was not
himself negligent in the choice of slaves to do the work17. For free em-
ployees, on the same assumption, he ought not to be liable beyond

1 19. 2. 13. 11. 2 Ib. The case of lease in writing is excepted. The text is very

obscure. See Monro, Locali cond ucti, ad h. 1. 3 19. 2. 14. 4 19. 2. 9. 5 19. 2.

7; h. t. 30. A whole block, insula, is hired and sublet in "flats." As to rural holdings, see
ante, § CLXXIV. 6 19. 1. 15. 1; h. t. 25. 2; P. 2. 18. 2; Inst. 3. 24. 5. 7 19. 2.

19. 1. 8 E.g. if he supplies jars which will not hold water, 19. 1. 6. 4 in f . 9 21.
1. 63. 10 43. 10. 1. 3; 19. 2. 55. 1. As to utiles impensae it is possible that he has

only a ius tollendi, h. t. 19. 4. But see h. t. 55. 1. 11 39. 4. 7. 12 19. 2. 25. 4.

13 19. 2. 25. 3; h. t. 51 ; h. t. 55. 2; P. 2. 18. 2. 14 Ante, § CXLHI. 15 19. 2. 45. pr. ;

h. t. 60. 7. 16 9.2.27. 11; Coll. 12.7.9. 17 9.2.27. 11; 13.6. 11; 19.2. 11. pr;

Coll. 12. 7. 7.

B. B. L. 32

498 LOCATIO CONDUCTIO REI [CH.

cession of any actions he might have against them, while they might be
liable ex delicto. But there are texts of Ulpian and Alfenus which make
the conductor absolutely liable for culpa of outsiders, apparently on a
sort of implied contract in the hiring. If this was law it seems to have
applied only to this contract, and societas1.

The conductor must not change the character of the res: he must
restore it at the end of the tenancy in its original condition, subject to
ordinary wear and tear2. He must not deal with it in unauthorised
wavs3.

•/

The risk of accidental destruction was on the locator*, not in the sense
that he had still to provide the thing, but that he could claim no rent
unless the tenant could enjoy5. This is true whether the cause was his
refusal to permit enjoyment, or the operation of some external cause,
other than one due to culpa of the tenant6. This principle, that the rent
was in respect of enjoyment, allowed the tenant to claim a rebate if
climatic or other conditions had been such that he had not been able to
utilise the land properly, or his crops had been destroyed or much
damaged7. Small damages, such as might be expected, the tenant bore,
but anything more fell on the locator9. If, however, such a rebate had
been allowed, and later years proved profitable, the arrears which had
been released must be paid9. But where the bad year was the last, no
account was taken of previous profitable years10. Where a man was
entirely prevented from enjoying, the rent was not due even naturaliter,
so that if paid it could be recovered11. If sureties had been taken for the
rent, and, the term having expired, there was a relocatio, express or tacit,
they were not liable, but any "real" security the tenant had given was
still under the charge12.

On expiration of the hiring the thing must be restored, and the tenant
was not allowed to dispute his lessor's title, so that if he claimed the
thing as his own, in which case the locatio would be void, he must still
give it back and raise the question of title independently13. An enact-
ment of Zeno seems to have imposed a double penalty if he did not14,
but these rules did not affect the right of retainer for expenses15.

1 19. 2. 11. pr., 30. 2, 41; post, § CLXXVH. 2 19. 2. 11. 2. 3 Inst. 3. 24. 5; D. 19.
2. 25. 3. 4 If accessories received at a valuation, the risk of them is on conductor,

19. 2. 54. 2. As to the liability for custodia, i.e. absolute responsibility if the thing is stolen,
post, § cxci. This possible liability, and the fact that fruits are the tenant's only when
percepti (ante, § LXXXI) and are usually hypothecated to the landlord (ante, § CLXVIII),
create difficulties in the law of theft where the crops are stolen, post, § cxcvii. 519.

2. 33; h. t. 60. pr.; h. t. 9. 1. 6 P. 2. 18. 2. 7 19. 2. 15. 2, 3; h. t. 27; h. t. 34.

8 19. 2. 25. 6. 9 19. 2. 15. 4. 10 Ib. So at least the text is commonly under-

stood, but it may mean the exact opposite, which would be a more rational rule. 11 19.
2. 19. 6. 12 19. 2. 13. 11. 13 C. 4. 65. 25. 14 C. 4. 65. 33. 15 19. 2.

61. pr.

xi] LOCATIO CONDUCTIO REI 499

Locatio c&nductio being essentially a terminable relation, we have to
consider how it might end. As it was essentially a ius in personam, it is
sometimes said that it ended if the property was in some way alienated
to a person on whom the contract was not binding. But that is not so:
the contract was still binding, but the lessor by conferring a ius in rem
on a third person had made it impossible for himself to fulfil it. For this he
would be liable, and thus it was usual in such a case to make the trans-
feree agree to respect the tenant's rights1. If there was such an agree-
ment the tenant if ejected could no doubt get cession of the lessor's
action, though it does not appear that this would release the lessor2. If
the transfer was not due to his act, e.g. he was a usufructuary and died,
the term was ended, on the assumption of a tacit agreement that it was
subject to his survival. But if he concealed the fact that he was a usu-
fructuary, the term continued and his heres would be liable3. There was
another side to the rule. The tenant was not bound to a buyer. If he
refused to continue, the lessor, having no interesse had no action to cede
to the vendee4. If he had agreed with vendee to keep the tenancy going
this might give him an interesse, so that if the tenant gave up the land
he could cede his action to the vendee. But the effective plan was to
make the colonus a party to the arrangement.

Death of a party did not affect the contract unless expressly: we are
told that if it was agreed that the tenancy should be as long as one
party chose, the death of that party would end it5. Apart from this the
main causes of determination were:

Expiration of the term, apart from renewal express or tacit6.

Renunciation by either party if there was no agreed term. Even if
there was a term, in late classical law the locator might renounce in the
case of a house if he had personal need of it or if it wanted repair, without
incurring any liability on the contract7. But a renunciation must be at
a reasonable time: if a tenant was ejected from land, apart from breach
of contract on his part, except at the end of a year (so that he could save
his crops), there would presumably be a claim for damages. Mere release
from further liability for rent would not do justice. He might for in-
stance have incurred heavy expenses in reliance on his contract in
respect of a business to be carried on on the premises, all rendered useless

1 19. 2. 25. 1. The same point arises if the locator creates iura in rem in any other
way, e.g. gift of usufruct (7. 1. 59. 1), or by a legacy (19. 2. 32). 2 As to later history
of the rule, Meynial, Me.l. Gdrardin, 413, with special ref. to C. 4. 65. 9. The rule no doubt
had no application to colonus adscriptitius, but there seems no ground for the view that
the free cultivating tenant had wholly disappeared in later law. 3 19. 2. 9. 1. 4 19.
2. 32. 5 19. 2. 4. May have ended by death in early law, h. t. 60. 1. Vermond, Posses-

sion, 276. See Inst. 3. 24. 6; C. 4. 65. 10. 6 C. 4. 65. 11. 7 C. 4. 65. 3

(?interp.).

32—2

500 LOCATIO CONDUCTIO REI [CH.

by the landlord's re-entry. But the whole rests on a single text in the
Code, probably interpolated1.

Destruction of the subject-matter. If it was not imputable to either
party there were no liabilities. If it was due to dolus or culpa of either,
he was liable for the full interesse2. No doubt the rule of determination
applied where the property was expropriated by the State3.

Forfeiture, at discretion of locator, notwithstanding the existence of a
term, for gross misuse, or non-payment of rent for (in an actual case
stated) tw-o years4. Conversely, the tenant might end the tenancy, not-
withstanding the existence of a fixed term, if the locator refused to allow
enjoyment or made it impossible. The locator was not entitled to exclude
him from one year on undertaking to give him another later on5. But a
mere temporary interruption, not substantially affecting his enjoyment,
did not entitle the tenant to determine the lease6. The term was equally
ended if the prevention was by a third person, but, here, if the locator
was in no way privy, there would be no other liability, while if it was
with his concurrence or privity he would be liable in damages7. To bring
these rules into operation the deprivation need not be total, but must be
substantial.

If the locator was not the owner and the title vested in the conductor,
he was entitled to be discharged from further liability8.

Here, as in sale and societas, there were doubts whether there could
be conditions on the contract9. The doubt is mentioned by Gains10 in
connexion with the ever recurring question whether a given transaction
was sale or hire.

The actions were: locati for the locator and conducti for
the conductor11; bonae fidei indicia, and it may be added that any
pact could be added to the bargain except a pact not to be liable for
dolus12.

CLXXVI. We have now to consider the other forms of locatio con-
ductio, operis or operarum. Before distinguishing these it must be noted
that not all service could be the subject of this contract: it must be such
service as "locari solet13." This excludes, in the first instance, all liberal
arts: for these a direct wage was unseemly, but gradually, in one case
after another, it became possible to recover an honorarium in respect of

1 76. An enactment of Zeno (C. 4. 65. 34) allows renunciation by either party with-
out liability, within one year of the commencement of the tenancy, even where there was
a fixed term, unless there was a pact not to take advantage of this right. Not applied to
houses till much later. See Cuq, Manuel, 486. 2 19. 2. 9. 4; h. t. 19. 6; h. t. 30. pr. ;

C. 4. 65. 29. 319.2.33. 4 19. 2. 54. 1; C. 4. 65. 3. 5 19. 2. 24. 4; h. t

60. pr. 6 19. 2. 24. 4. 7 19. 2. 25. 2. 8 19. 2. 9. 6. 9 Ante, § CXLVIH.

10 G. 3. 146. See D. 19. 2. 20. 11 Lenel, E. P. 290. See, e.g., 19. 2. 9. 6; h. t. 10.

12 2. 14. 27. 3. 13 19. 5. 5. 2.

xij LOCATIO OPERARUM 501

them, when they were, in some cases, regarded as mandate1. It is not
always obvious what is a liberal art: the Roman and our points of view
are not the same: it was not thought that painting pictures was a liberal
art2. Some other services were excluded from various historical causes.
A mensor, a surveyor, did not " locate " his services, perhaps from religious
associations in early days3. In general the contract was confined to
work on a material object, and this is sometimes held to have been the
rule, on the strength of a text which does not treat as locatio a case of
employment as a messenger4. But no such rule is stated, and it is hardly
consistent with the fact that Cicero mentions among the illiberal or
sordid arts those of attendants on fashionable people5. In any case the
overwhelming majority of cases would be for work on a material
thing6.

Where a slave was the subject of such a contract it is difficult to dis-
tinguish it from locatio rei: usually an agreement by the master that a
slave should work for hire for a third person was called locatio servi7,
while if a freeman contracted to do the same thing it was locatio oper-
aram8.

The contract of service for hire took two forms: locatio operarum,

/the letting of services, as in locatio rei, the locator being the person who

Jet the services and took the hire9, and locatio operis faciendi, in which

'the names were inversely applied: the man who did the work being the

^conductor and taking the hire. The probable cause of this is that in the

usual case something was handed over to be worked on and "conducere"

means "to take with you." But the names are confused: in one text a

. party is called both conductor and locator™. The case of locatio operarum

-was in general that of a worker at a day wage, or of that type: the other

"has more responsibility in it.

Locatio operarum11. The general principles being the same it is neces-
sary only to mention a few points. Both parties were liable for culpa,
Jand it was culpa in the workman not to be competent for the work he
-undertook12. He must carry out his work, but there was a rule that if he
'was prevented from doing the work by some cause extrinsic to himself,
.he was still entitled to his wage, unless he had succeeded in getting other

1 See post, § CLXXIX. Some work, e.g. that of professor of philosophy or law, was too
dignified even for this in classical law, 50. 13. 1. 4, 5. 2 19. 5. 5. 2. 3 11. 6.

1. pr. 4 12. 4. 5. pr., but this is only construction of the meaning of a particular

arrangement, and the text has been altered. 5 De Off. 1. 42. 150. In the case of

a beautifier, the material object must be the employer. 6 19. 2. 19. 10 may be

read to shew that comites of a legate "located" their services, but it was mandate, 50. 13.
1. 8. 7 19. 2. 42; h. t. 43; h. t. 45. 1; h. t. 60. 7. 8 19. 2. 19. 9; h. t. 22. 2;

h. t. 38. 9 P. 2. 18. 1. 10 19. 2. 22. 2; cf. 19. 3. 1. pr. 11 See on this

contract Deschamps, Mel. Oerardin, 157 sqq. 12 19. 2. 9. 5.

502 LOCAT10 CONDUCTIO OPERIS [CH.

work1. The death of the employer, where the service \vas personal, was
such a case, and here (and probably in all cases) death of the server
ended the contract2.

Here, as in locatio rei, the merces accrued due from time to time,
which has one noticeable result. If a slave let out his services, the con-
tract was not affected by alienation of the slave, but the right to the
wage for the period after the alienation was in the new master, though
not the right to sue for it3. The rule would apparently be the same if the
master had made the contract4.

Locatio operis. This was the putting out of a piece of work on contract.
It differs from the last case in that here what was contemplated was not
services but a completed piece of work5, a house to be built, a slave to
be trained, a coat to be dyed, and so forth: practically it was always a
piece of work with a physical subject-matter. We have seen that where
a man was to make a thing out of his own materials, the contract was
sale6, but there was an exception. One wrho contracted to build a house,
finding the materials, was a conductor opens'7, perhaps because the site
was part of the finished product so that he only provided part of the
material, or because the result of his work merged in the land, and had,
when the work was finished, no independent existence.

Work of this kind was not necessarily, or usually, done by the con-
tractor himself, so that death of either party did not affect it8. The
conductor (redemptor) must do the work properly, being liable for culpa
levis, including imperitia, as in the last case9. The same questions arose
as to his liability for culpa of his assistants as in locatio rei, and no doubt
the answer was the same. The price fixed might be a lump sum or so much
for each part of the work: the latter arrangement did not of itself prevent
the locator from claiming for bad work when the wiiole was completed,
unless it was arranged that the work should be approved at each stage10.
The work must be done in the agreed time, or, if none was fixed, a
reasonable time11.

It was usual to agree that the work should be such as to satisfy
the locator or a nominee. This means what ought to satisfy: the
judgment must be that of a bonus vir. If the approval was obtained
by fraud it was void, which seems to mean that there could still be
a claim for fraudulently concealed defects after the work had been
approved12.

1 19. 2. 19. 9; h. t. 38. pr. 2 Arg. 12. 6. 26. 12. 3 19. 1. 13. 13. 4 If instead

of a sale it was the ending of a usufruct, the owner could sue on the outstanding part of
the slave's own contract, for he could acquire through the slave when the contract was
made, 45. 3. 18. 3. 5 50. 16. 6. 1. 6 Ante, § CLXXIV. 7 19. 2. 22. 2.

8 Arg. C. 8. 37. 15. 9 19. 2. 51. 1. 10 76. 11 19. 2. 13. 10; h. t. 58. 1.

12 19. 2. 24. pr.; h. t. 51. 1.

xi] LOCAT10 CON DUCT 10 OPER1S 503

The employer must accept the work when completed, and if, as was
usual, it was subject to approval, must approve within a reasonable
time on demand1. This is important on the question of risks, on which
the conclusions to be drawn from the texts2 appear to be the following.
Apart from special agreement the risk was on the locator (i.e. he must
pay the merces, whatever happens to the work) so far as it had been
approved, or, he having delayed approval (rnora), was such that it
ought to have been approved, and this, at least pro tanto, if the approval
was of a part. Further, it was at the risk of the locator if, though not
approved, it was destroyed by vis maior, e.g. earthquake, on the prin-
ciple that this loss would have happened if it had been approved or not,
and the conductor was not bound to supply more than the locator would
have had if he had done the work himself, and also if the destruction
was due to defect in the material or basis supplied by the locator. Apart
from this it was at the risk of the conductor, so that the merces would not
be due if the work was destroyed. Thus, as it was primarily on him, the
burden of proof that the case came under one of the other heads was on
him.

Two special cases of locatio conductio need mention.

Locatio irregularis (so-called). This occtirred where the conductor
received property, to return not the same but an equivalent, as in
depositum irregulare. Such cases were those of the goldsmith who re-
ceived gold to make a ring but might use other, of the same fineness,
and the carrier who received grain in bulk on his ship, having to deliver
not to each consignee his own, but the right amount out of what was on
the ship3. The important point is the question, whose was the risk? As
the ownership was in the conductor, it ought logically to be his, and no
doubt this was so in the case of the goldsmith. But in the carrier's
case it seems that it was a term in the contract that apart from culpa
he was liable only for goods which arrived safely. We have, however,
very little information4.

Carriage by sea. Lex Rhodia de iactu5. There was a rule said to be
adopted from Rhodian sea law, that where goods were thrown over-
board to save a ship in peril from storm or other cause, and the ship was
saved, the loss was shared between all those concerned. As this
included the shipmaster and all who had goods aboard, the rule was
enforced by the actiones conducti or locati. The owner of the sacrificed
goods proceeded against the owner of the ship and he in turn against

1 Implied in 19. 2. 36. 2 19. 2. 36; h. t. 37; h. t. 59; h. t. 62. But see Monro.

Locati Conducti, ad h. t. 36. 3 19. 2. 31; 34. 2. 34. pr. in f. 4 On the old adio

oneris aversi which seems to have lain for failure to deliver the cargo, Huvelin, fitudessur
lefurtum, 1. 511 sqq. 5 D. 14. 2; P. 2. 7.

504 SOCIETAS [CH.

the various freighters1, a roundabout method which is supposed, though
there is no evidence, to have been superseded by direct actions for con-
tribution.

CLXXVII. SOCIETAS. This was essentially the union of funds, or
skill, or labour, or a combination of them, for some common purpose or
exploitation which might have, and usually had, but need not have,
profit for its aim. Mere common ownership was not of itself societas2:
the essence was joint exploitation. Thus if two men jointly bought the
land at the back of their houses in order to keep it clear of buildings
this was societas3. The relation involved "qffectio societatis*" and the
existence of this set up specially confidential relations sometimes called
"fratemitas5." It differed from English partnership in that it did not
necessarily aim at commercial profit, but still more in the fact that
while in our law partners are, within limits, agents for each other, and bind
each other by dealings with third persons, this aspect of the matter did
not appear in Roman Law in ordinary cases, since one man could not
in general contract so as to affect another6, and thus the law dealt almost
entirely with the relations of the socii, inter se7.

There were several types of societas8, the chief being:

1. Societas unius rei, i.e. in one transaction, which might or might
not be commercial. The above instance is of this type, and uncommercial.

2. Societas alicuius negotiation/is. This was probably the most usual
form. It was the carrying on in common of some one kind of business9.
A specially important case of this was societas vectigalis, partnership in
taxfarming. As it had special rules10 it will call for separate discussion.

3. Societas omnium bonorum quae ex quaestu veniunt. This was
societas in all business transactions, and there was a rule of construction,
that if there was a societas but no evidence as to its type, it was assumed
to be of this kind11. All business profits must be brought in, and all
business debts might be charged against the societas™. The texts shew,
and indeed it is obvious, that it might be difficult to say what was trade
and what was private profit13.

4. Societas omnium bonorum. All the assets of the parties formed a
common fund. Here, too, there were special rules which will need state-
ment14.

1 14. 2. 2. 2. 2 17. 2. 31. 3 17. 2. 52. 13; cf. 52. 12. 4 17. 2. 31.

5 17. 2. 63. pr. 6 Ante, § CXLIII. 7 Exceptional cases, post, § CLXXVUI.

8 G. 3. 148 gives only two types, alicuius negotiationis, and omnium bonorum. 9 17.2.

52. 4, etc. 10 E.g. 17. 2. 5; post, § CLXXvm. 11 17. 2. 7. There usually would

be evidence. 12 17. 2. 7; h. t. 8, etc. A legacy would not come in (h. t. 9) or house

hold expenses. 13 E.g. 17. 2. 7. How if one lets his house furnished? 14 Post,

§ CLXXvm. Apart from this case the classification is not important. It is not exhaustive.
A man might have joint dealings in more than one transaction of a type, but not in all,
in more than one type of business but not in all. But see 17. 2. 52. 14.

xi] SOCIETAS 505

The chief requirements of societas were the following:

Each must contribute something, funds, skill, or labour, or a com-
bination: otherwise it was donatio1. Contributions might differ in kind
and amount2. The purpose must be lawful and possible: one of a band
of robbers could not bring proceedings for division of the spoil3. All
must consent, thus no socius could introduce a socius without consent
of the others: if he sought to do so, he was personally liable for whal
the intruded person did4. It might be conditional5, though Justinian
tells us that the possibility of conditions had been doubted6. It was
possible to agree that the shares should be determined by a third person:
here there was no societas at all, even conditional, till this had been
done7. The agreement might be for a transaction or transactions, a term
or for life (perpetuum6). No form was necessary, and thus the consent
might be tacit (re9).

Effects of societas. It was perfectly bilateral, and, the duties on each
side being the same, it had only one name. It was bonae fidei, even in a
special sense, having a "fraternitas" which led to special rules. The main
points as to the relations of the parties are the following:

The agreed capital must be duly provided. In some cases the owner-
ship was to be common, in others only the use (societas quoad sortem,
quoad usum). In the former case the law of warranties was probably as
in sale, but the Edict of the Aediles did not apply10. On the same prin-
ciple the risks would be common, as if it were a sale, but if only the use
was to be common, the rule was perhaps as in locatio rei: the risk was
on the owner, and destruction, though it did not impose on him a duty
to replace, gave him no right to contribution11.

The shares might be unequal, at least if the contributions were12,
and, after dispute, it was settled that a man's share in the profits need
not be the same as his share in the losses13. He might even be wholly
excluded from loss, which was not donatio, for his co-operation might be
worth buying at that price14. But he could not be excluded from profit:
this was a societas leonina15. The shares might be fixed by an arbitrator,
and if his decision was unfair the societas was not void, but the assign-
ment might be corrected16. It might even be left to one of the parties,

1 G. 3. 149; D. 17. 2. 5. 1. 2 17. 2. 6; h. t. 80. 3 17. 2. 3. 3; h. t. 57.

4 17. 2. 19; h. t. 23. 5 17. 2. 1. pr. 6 C. 4. 37. 6. 7 17. 2. 75 sqq.

8 17. 2. 1. pr. 9 17. 2. 4. pr.; cp. Inst. 4. 1. pr. 10 On the question when it

was quoad sortem and when quoad usum (the expressions are not Roman) views differ.
It is a matter of interpretation of the contract and of the nature of the contribution, see
17. 2. 52. 3;h. t. 58. 1. 11 There is little textual authority on the matter. 12 17.2.

29. pr. 13 17. 2. 30; G. 3. 149; Inst. 3. 25. 2. 14 17. 2. 29. 1. 15 17. 2.

29. 2, from the well-known fable. More complex arrangements, h. t. 44; h. t. 52. 7.
16 17. 2. 76 sqq.

506 SOC1ETAS [CH.

a result of the fraternitas, for the rule has no parallel in any other con-
tract1. Here too it must be done fairly, or was corrected. If no shares
were agreed, they were equal whatever the contributions: if inequality
was wanted it must be agreed for2. Where one's share in loss differed
from that in profits, the periods at which accounts were taken
would be material3. It is commonly held that account was taken at
the end of the partnership, with, no doubt, interim drawings, which
would be inconvenient if the societas was for life or a long term. The
difficulty did not arise if the societas was for a transaction or transactions.
There is no textual authority.

Apart from agreement each shared in the administration, and might
use the firm property, but the business might be left to a manager who
might or might not be a socius4. Apparently any socius might veto an
administrative proposal of any or all the others, so as to make per-
sistence in it a wrong5, but if the prohibition was unreasonable or dolose,
he would be liable for any resulting loss. Contracts of a socius could, on
general principle, bind and entitle only himself, subject to account, but
he could alienate firm property, with authorisation, \vhich might, no
doubt, be tacit, e.g. in the case of ordinary stock in trade6.

Socii were liable for culpa levis"1, and could not set off, against
damage due to this, profit resulting from other activities8. They were
liable, exceptionally, for the culpa of slaves or others employed by them
in the business9.

They were bound to account for receipts on firm business10 and en-
titled to contribution for expenses properly incurred11. They must pay
interest on firm property in their hands if they were in mora or had used
it, and the liability was not limited to the ordinary rate of interest, but
went to the full inter esse of the socii12. The texts conflict as to the position
of the socius if he had not used the money and was not in mora13. If one
had sold firm property and received the price he must divide it, but
might require security in respect of anything he might have to return,

1 17. 2. 6; cf. 18. 1. 35. 1. 217. 2. 29. pr. ; C. 4. 37. 3; G. 3. 150. 3 If A

was to have half the gains and a quarter of the losses, and in the first six months the
firm made £100 and in the second lost £100, on an annual account A gains and loses
nothing, on a six -monthly he gains £25. 4 17. 2. 24; h. t. 67. pr. 5 See 10. 3. 28.

6 17. 2. 44; h. t. 58. pr. See Perozzi, Mel. Girard, 2. 355. In 17. 2. 68. 1 the allusion is
to sale of his share. 7 P. 2. 16. 1; D. 17. 2. 36; h. t. 52. 2. In h. t. 72 Gaius limits

this to the care he shews in his own affairs, and gives the reason that a man who takes a
careless partner has himself to blame: this is no reason, for it would apply to any contract;
so far as the limit exists it may be because it is pro tanto his own affair, or it may be an
application of ins fraternitntis, but it is probably due to Justinian. See post, § cxc, and
Inet. 3. 25. 9 where the passage recurs. 8 17. 2. 25, 26. 9 17. 2. 23. 1, ius

fraternitatis. As to liability for custodia, post, § cxci. 10 17. 2. 8-11; h. t. 52. 5: h. t, 74.

11 P. 2* 16. 1; D. 17. 2. 27; h. t. 38. 1. 12 17. 2. 60. pr.; 22. 1. 1. 1, ius fraternitatis.

13 See the same passages.

xi] SOCIETAS 507

e.g. in quanta minoris, and if one of his socii was insolvent, this increased
the liability of the others to him1. Thus they were in effect sureties
inter se. There might be difficulties as to what expenses were properly
chargeable. Thus where a stock in trade of slaves revolted, and a socius
was hurt in quelling the outbreak, Labeo held that his doctor's bill
could not be charged, but Julian rejected this view2.

The general remedy for enforcing these claims was the actio pro socio,
a bonae fidei indicium, which usually ended the societas, but could be
brought, where occasion arose for adjustment of disputes, without this
effect3. There might be other remedies. If the wrong done was a delict,
there was the appropriate action ex delicto. More important was the
indicium communi dividundo, which, as it aimed at division, could be
regarded as ordinarily ending the firm, but could be brought as a friendly
suit to settle how a particular thing ought to be shared4. And there
might be other contractual actions: a socius might have given another
a mandate in firm business5.

In general the socii were, as against third persons, so many individual
men: one who had contracted with one of them had no right or liability
as against the others. If all took part in the contract all were liable or
entitled, either pro rata6, or, if they were correi, in solidum. And there
were exceptional extensions. The actiones institoria and exercitoria lay in
solidum agamst any of them7. If a socius wras acting under a mandate of
another or others, the actiones utiles which arose out of mandate would
apply8. Some special types of societal created solidary liability9. And
under Justinian, but probably not before, a creditor of one could sue
the others by an extended actio de in rem verso10.

A socius could not, by taking a partner, himself add him to the
societal. If he took such a partner, and allowed him to deal with firm
business, he was responsible, as we have seen, for his acts, and could
not get rid of liability by ceding his actions against him11. As between
its parties the subpartnership was valid. An actio pro socio on it would
not affect the main societas12, but, so far as the subpartnership was formed
merely in respect of the concerns of the principal firm, it was necessarily
ended if that ceased to exist.

CLXXVIII. Termination of societas. The principal causes of termina-
tion were:

1 17. 2. 38. pr.; h. t. 67. pr. 2 17. 2. 60. 1; h. t. 61. 3 17.2.65.15. As to

actio pro socio as destroying the relation, post, § CLXXVIH. 4 1 7. 2. 38. 1 . 5 On the

question how far one action bars another, post, § CCXLJI. 6 Doubts as to principle of

division: 14. 1. 4. pr.; 45. 2. 11. 1 ; 45. 3. 37. 7 14. 1. 1. 25; 14. 3. 14. 8 Post,

§CLXXX. 9 Post, p. 510. 10 Arc. 17. 2. 82. The interpretation of the text is

disputed, see Von Tuhr, De in rem verso, 307. 11 17. 2. 21 ; h. t. 23. pr. 12 17.

2.22.

508 SOCIETAS [CH.

Death of a socius, with notice1. This resulted from the personal rela-
tion, and it was impossible to agree ah initio that the heres of a socius
should come in2. As always, what ended the socletas for one ended it
altogether: if the others continued, even if it had been agreed ab initio
that they should, it wras a new societas^, into which the heres might of
course be admitted as any other person could. But though the heres
was not a socius, the rights and liabilities already existing descended
on him, so that he might be a party to the actio pro socio. He must
complete what was half done and shew the same care as a socius*. The
end of the societas was not of course the end of the business: what it in
effect meant was that there must be an adjustment of accounts, and the
estate of the deceased socius had nothing to do with future happenings5.

Renunciation. It could of course end by mutual dissensus, but the
rule went much further. Any socius could, even in defiance of an agree-
ment to the contrary, end the societas altogether at any time by renoun-
cing it6. But though he ended the firm, he might be liable for damages.
If he did it fraudulently, e.g. to keep an impending acquisition for him-
self or avoid an impending loss, he must account, whether it was for a
term or not: he freed his socii from him, it is said, but not himself from
his socii1. So too if, without fraud, he insisted on doing it at a time
disastrous to the firm8. If there was an agreement not to renounce, it
might still be done, with the same liability in the case of fraud or dis-
astrous choice of time9. Hence Pomponius says that an agreement not
to renounce is a nullity10, but that is hardly the case. It seems to follow
from the texts that apart from fraud or special circumstances he would
in such a case be liable for damages if, e.g., the loss of his services or
capital made it impossible for the firm to go on11. Similar rules appear
to have applied where the societas was for a fixed term12. On the other
hand, there were circumstances, such as gross misconduct by a socius,
or long and necessary absence on public affairs, which completely
justified renunciation even where there was a term or a contrary agree-
ment13. Renunciation might be express or tacit: alienation of the share
was the chief case of tacit renunciation14. Such a sale was a breach of
an agreement not to divide and the rules of renunciation applied15.

1 17. 2. 4. 1 ; h. t. 63. 10; 65. 9, 10, etc. 2 17. 2. 35; h. t. 59; G. 3. 152; Inst. 3.

25. 5. 3 17. 2. 65. 9. 4 17. 2. 37; h. t. 40; h. t. 63. 8; h. t. 65. 9. It must be

remembered that though not a socius he is probably a common owner. 5 There was

nothing to prevent all members of an existing firm from agreeing with a specific outsider,
that on the death of a certain, or any, socius, a new firm should come into existence of
which he should be a member, at least after the doubt about conditions was settled.
6 17. 2. 4. 1 ; h. t. 63. 10, 64. 7 17. 2. 65. 3; G. 3. 151 ; Inst. 3. 25. 4. 8 17. 2.

65. 5. 9 17. 2. 65. 6. 10 17. 2. 14; cp. h. t. 17. 2. 11 Arg. 17. 2. 17. pr.;

h. t. 65. See Monro, Pro Socio, ad h. t. 16. pr. 12 17. 2. 14; h. t. 65. 5. 13 17. 2. 14;
h. t. 16. pr. ; h. t. 52. 13. 14 17. 2. 16. 1 ; h. t. 17. pr. 15 17. 2. 16. 1.

xi] SOC1ETAS 509

Capitis deminutio. In later law this meant maxima or media, i.e.
enslavement or deportation, with loss of property1. For Gaius, minima
sufficed, though the parties could agree to renew2. Where there had
been a capitis deminutio minima and the societal continued, there were
complex questions as to the rights of action on events before and after
the change. In fact capitis deminutio is of very small importance in
later law, as a separate head, for we are told that bonorum venditio or
amissio bonorum in any form, of which c. d. is ordinarily only one case,
ended a societas3.

Lapse of agreed time, arrival of determining condition, completion
of purpose and destruction of subject-matter need only mention4.

Actio pro socio. The normal purpose of this action was contribution,
but litis contestatio in it ended the societas, where it was brought as a
general action on the contract5, though it could be brought as a friendly
suit to adjust particular points without affecting the contract as a
whole6. In any case it of course novated the rights on the actual points
brought into issue7. It was bonae fidei8, directa on both sides, and sub-
ject to "beneficium competentiae" : the socius was not condemned beyond
what he could pay, except where he had fraudulently made himself unable
to pay. This rule seems to have applied at first only to societas omnium
bonorum9, and it never applied where the action was against a heres.
What was unpaid remained due10. Condemnatio in the action involved
infamy11, but it is probable that this was so only in case of dolus. It may
be noted that Paul says that societas is destroyed by actio where either
an action is brought on it, or it is otherwise novated by stipulatio12. This
odd statement is explained on the view that actio here is used in its
widest sense to denote any juristic act13.

It must be remembered that socii were commonly also joint owners,
and thus the actio communi dividundo1* also was available between them
for adjustment of liabilities in respect of the property. As it affected only
property questions and adjustment, i.e. not debts and credits, it was
narrower but it contained adiudicatio, which pro socio did not. It

1 17. 2. 4. 1. 2 G. 3. 153. From 17. 2. 58. 2; h. t, 65. 11 it seems that there was a

tendency even in classical law to ignore the cap. dem. minima. 3 17. 2. 4. 1 ; h. t. 63. 12;
h. t. 65. 1 ; G. 3. 154. A relegatus did not suffer c. d., but relegatio might involve confiscation.
What Modestinus exactly means by "egesta-s" (17. 2. 4. 1) is not quite clear. If a deportatus
was allowed to keep part of his property (ante, § xxxvi) the societas would nevertheless
be ended, which justifies the appearance of capitis deminutio as a mode of termination.
4 17. 2. 63. 10. Knowledge of occurrence of the condition, completion or destruction
would presumably be necessary. From h. t. 65. 6, it seems that even if a time was fixed
the societas did not determine ipso facto on expiry of the time, but there must be express
withdrawal. Cp. 19. 2. 14. 5 17. 2. 65. pr. 6 17. 2. 65. 15. 7 17. 2.

63. 10. 8 17. 2. 52. 1. 9 17. 2. 63. pr.; h. t. 63. 2; 42. 1. 16. 10 17. 2. 63. 4, 5.
11 3. 2. 1 ; Inst. 4. 16. 2. 12 17. 2. 65. pr. 13 Girard, Manuel, 591. 14 Post, §CLXXXVI.

510 SOCIETAS [CH.

did not necessarily end the societas under Justinian: whether it did so in
classical law is uncertain1.

We have now to consider some types of societas which have special rules:

Societas venaliciorum. Partnership of slavedealers, who, we are told,
were usually rascals2. The Edict of the Aediles was first introduced for
them, and there was a rule that where one of them sold, the aedilician
actions lay in solidum against any socius whose share was not less than
that of any other3.

Societas argentariorum . Banking firms. These were at the other
extreme of commerce. They were a privileged and important body,
through whom was done most of the serious business. Their books were
relied on as records, and they were bound to produce them in litigation
concerning their clients4. Of the many special rules affecting them only
one bears on societas. It is that a contract by a firm of argentarii created
a correal obligation both ways, whether so intended or not5, and that a
contract literis by any one of them had the same effect6.

Societas vectigalis. This was a societas for taxfarming, and it seems
that similar rules applied to other societates contracting with the State,
e.g. for exploiting mines and quarries7. The contract with the State
was usually for five years. The chief special rules are the following:

1. Besides the socii there might be investors (participes) whose
position is imperfectly known8, and who are not traceable in late law.

2. Death of a socius did not end the firm as to the others, unless the
deceased was the manager or held the contract with the State9. This
does not imply unusual permanence, as the societas was probably only
for the five-year contract.

3. It was possible to agree, ab initio, that the heres of a deceased
socius should become one10. Apart from such agreement, he would,
unlike the heres of an ordinary socius, take his share of the rights and
liabilities after the death, though, like a particeps, he had no voice in
the management11.

4. On some obscure texts12, it is sometimes said that there was no
right of renunciation.

5. On certain texts13 it is suggested that such firms were corporate

1 17. 2. 43. Perhaps interpolated. 2 21. 1. 37. 3 21. 1. 44. 1. 4 2. 13. 4;
h. t. 6; h. t. 10. 5 2. 14. 9. pr.; 4. 8. 34. pr., etc. Probably extended to all money

loans and promises. Similar rule for joint exercitores, ante, § CLXXVH; post, § CLXXXIV.
6 Rh. ad Her. 2. 13. 19. 7 3. 4. 1. pr. All called societates publicanorum, but

vectigalis more strictly applied, 17. 2. 63. 8; 50. 16. 16. 8 Monro, Pro Socio, 79.

9 17. 2. 59. pr. ; h. t. 63. 8. The others were frequently "sleeping partners," providing
capital but not service. The passage speaking of the exceptional case in which death
dissolves the societas has been altered by the compilers, but the rule is probably classical,
Mitteis, R.Pr. 1. 413. 10 17. 2. 59. 11 17. 2. 63. 8. 12 17. 2. 63. 8; h. t. 65. 15.
13 3. 4. 1. pr.; 37. 1. 3. 4.

xi] SOCIETAS 511

bodies, i.e. the rights and duties attached to the corporate body and not
to the individuals. But there is much controversy. The chief views are
that they were corporate, that they might be, but were not necessarily,
that the rule in either form did not apply to them but to sodalitates
among the workers, that this last was the classical view, but that under
Justinian, it applied to the societates, and finally that it applied not to
societates vectigales, which usually had but a short existence, but to
financial groups of a more permanent character which provided capital
for them1.

Societas omnium (universorum) bonorum. Partnership in all property
and undertakings. It was not corporate. It was probably the oldest
form of societas, descending from consortium, an early practice by which
heredes, instead of dividing, kept the hereditas together and enjoyed it
in common2. It did not necessarily cover future acquisitions. The con-
tract had the exceptional effect, derived no doubt from its origin in con-
sortium, that all res corporales of a member vested, by the mere agreement,
in the firm as a whole3. How the lawyers constructed this tacit transfer
is not clear4. lura in personam could not be transferred and thus must
be accounted for to the firm5. Future acquisitions, if they came in, had
to be transferred6, but nothing acquired by wrong came in7. There were
special rules for cases in which the interest was terminable or inalien-
able, e.g. dos and usufruct8.

As the property belonged to the societas, that body bore expenses9.
But it was not responsible for penalties for delict or losses in gambling
or the like10. This does not mean that the creditor would not be paid,
but that, if the socius paid out of firm property, the whole was charged
against his share, and it is clear that in such societates there was money
belonging to individuals11. Revenue shared out was no doubt at the
disposal of the party. Even apart from this, if judgment was obtained
on such a liability, and was not satisfied, creditors could proceed to
bonorum venditio, which would end the societas and make the debtor's

1 See Mitteis, Rom. Privr. 404 sqq. 2 10. 2. 39. 3; 17. 2. 52. 6; cp. h. t. 52. 8.

The origin suggests — since consortium affected only present possessions, the hereditas,
which in case of sui was all they had — that s. o. b. would cover only present possessions.
In fact many of the texts say nothing of future acquisitions, and of those which clearly
do, two suggest that it was exceptional, and of these one deals only with one specific future
acquisition and excludes the rest (17. 2. 3. 2); the other, h. t. 73, speaking of "universarum
fortunarum," required a gloss, "id est earum quoque rerum quae posted adquirentur."
Clearly cases dealing only with present property did occur, and they were probably the
most usual so far as capital contribution is concerned, a much more reasonable sort of
partnership. 3 17. 2. 1. 1. 4 The tacit traditio of Gaius (17. 2. 2) and the

constitutum possessorium sometimes suggested are unsatisfactory, for it appears to have
applied to everything, not merely to what was actually possessed by a party. 5 17. 2.

3. pr. 6 17. 2. 73. 7 17. 2. 52. 17; h. t. 53. 8 A usufruct could not be

transferred. 9 17. 2. 73. 10 17. 2. 52. 18. 11 17. 2. 52. 18.

512 MANDATVM [CH.

share available. There would usually be no need to proceed to this
extreme: the amount would be paid out of the common fund and charged
against the socius concerned.

The ordinary modes of ending the societas applied. Thus it might be
renounced1. As in other cases the transactions were the transactions of
the party himself: it was he who must sue and be sued2.

CLXXIX. MAN DATUM. This was the undertaking, by request, of a
gratuitous service for another. The appointor was called mandator:
mandatarius is a convenient though unauthorised name for the other
party. The service might be of any kind connected with patrimonium,
provided it was lawful and possible3. In recorded cases, it usually in-
volved entry into legal relation with a third party, but this need not be
so. Thus we read of a mandate to a fullo who was going to do the work
for nothing4. Mandate seems to have begun as an isolated friendly
service5, to act as adstipulator, or surety, or as representative in litiga-
tion, but in classical law it had a much wider scope. It might be general,
the management of the principal's affairs, the holder of such a man-
date being properly called a procurator, though in the late classical law,
this name is applied to mandatories for a single service6, the earliest
application of it in this sense being to a procurator ad litem. Mandate
might be subject to dies or condition, and of course to a limit of time7.
It might be express or tacit8.

Mandate was gratuitous9. No agreed reward could be recovered in
the action on mandate, but in classical law it was possible, where
remuneration had been agreed, to recover it by a cognitio extraordinaria10.
This makes its gratuitous character rather unreal but not unimportant:
it would not be possible for a mandatory, sued on his mandate, to set
off a claim for the honorarium, or to defend on the ground that it had
not been paid. It was no part of the contract.

The mandate must concern the mandator: he must have an interesse11.
This rule leads to a classification of mandates according as they interest
mandator, mandatarius or a third party, or any combination of these.
The classification would have had little meaning in the republic, but as

1 17. 2. 65. pr., 3. 2 See, e.g., 17. 2. 52. 18; 47. 2. 52. 18. 3 17. 1. 6. 3;

G. 3. 157. 4 Inst. 3. 26. 13. 5 See, however, Karlowa, R.Rg. 2. 665.

6 3. 3. 1. See Karlowa, loc. tit. 1 17. 1. 1. 3. No sign of doubts as to conditions.

8 17. 1. 53; 50. 17. 60. 9 17. 1. 1. 4; G. 3. 162; Inst. 3. 26. 13. 10 These

cases of recognised solaria, honoraria, grew more numerous as time went on, and
services of almost any kind were dealt with in this way (50. 13. 1). It is not, however,
clear that the notion of mandate was correspondingly extended, i.e., that, e.g., an actio
mandati lay if the service was faultily rendered. Gaius and, even more clearly .Justinian
treat mandate as confined to cases which might have been locatio (G. 3. 162; Inst. 3. 26. 13).
See 17. 1. 7; C. 4. 35. 1. The general language of h. t. 6. pr. is of small weight. Doubtless
the limits of mandate and locatio operis were not precisely defined. 11 17. 1. 8 6.

xi] MANDATUM 513

mandate grew commercialised the distinctions became more important1.
Any of the forms was valid if there was an interesse of mandator, but a
mandate in the interest merely of mandatarius or a third party, or both,
gave no actio directa2. We are told that mandate in the interest of
mandatarius alone was mere advice and no mandate at all3, but we are
also told4 that if it was a thing he would not have done, but for the advice,
there was an actio contraria on the mandate. The words must be taken to
represent Justinian's law5, but they are probably interpolated, the
classical law giving only an actio doli in case of fraud. The rule that it
must not be in the interest of a third party alone is rather unreal. There
might be an indirect interest, not apparent on the contract. Thus where
A gave B a mandate to assume a certain liability for X, X might be
indebted to A and this would save him from insolvency. And it is said
that in any such mandate the mandator was interfering in the affairs of
the third party, liable ex negotio gesto, and thus interested6. It was
agreed in classical law7 that a mandate to lend money to a particular
third person gave an action against the mandator, at any rate if it was
at interest8. This form of mandate became an important form of surety9,
and it does not appear that it was confined to cases of loan at interest.
In fact the doctrine that the mandator must have an interest rests mainly
on a text of Ulpian10 which requires it not for the existence of a valid
mandate, but for an actio mandati directa. No one had an action who had
no interesse. The limitation is denied by the same writer elsewhere11, and
is not hinted at by Gains in his exceptionally full treatment of the matter12.

The powers of the mandatary might be very varied: their extent
must be judged by the terms of the mandate. In general he might do
whatever was necessarily or reasonably involved in the mandate or
ancillary to it, but a general mandatary, procurator, had not necessarily
any power of alienation13. He could not of course in any case do things in
which direct representation was impossible, e.g. convey his principal's
property by mancipatio.

Subject to a right of renunciation, the mandatary must carry out
what he undertook14. As he might not profit, he must account for receipts
and transfer proceeds in whatever was the proper form15. In the execu-
tion of the mandate he was liable in early law only for dolus16. This

1 Justinian's classification is much more elaborate than that of G. in his Inst., though
it purports to come from him. G. 3. 155; D. 17. 1. 2. 2 Ib. ; Inst. 3. 26. 1-5.

3 G. 3. 156; Inst. 3. 26. 6; D. 17. 1. 2. 6. 4 Ib.; 17. 1. 6. 5. 5 See also 17.

1. 16. 6 Arg. 17. 1. 1. 2. 7 G. 3. 156. Servius had disagreed. 8 Ib.; 17. 1. 2. 5.
9 Post, §CLXXX. 10 17. 1. 8. 6. 11 17. 1. 6. 4. 12 G. 3. 155-162. There

might be actio contraria without the direct action. 13 3. 3. 63. This needs "adminis-

tratio" 14 Inst. 3. 26. 11. 15 17. 1. 8. pr.; h. t. 10. 3; h. t. 20. pr. 16 And

culpalata! Post, § cxc.

B. R. L. 33

514 MANDATUM [CH.

agrees with principle, as he did not profit. But in later classical law he
was liable for culpa levis, both views appearing in the Digest1. The change
is probably due to the fact that his services were only nominally
gratuitous2. He was responsible not only for positive damage, but for
damage resulting from neglect to perform3. A rule that he must not
exceed his powers4 gave rise to questions. Where he did so in a divisible
operation, e.g. lent, or became surety for, a larger sum than was autho-
rised, it was early agreed that he could recover ex mandato to the limit
of the authority5. But there had been disagreement. Thus, where he
sold for less or bought for more than the authorised price, the Sabinians
gave him no claim, but the Proculian view prevailed, on which he could
claim, if he bore the difference himself6.

The mandator, who was liable for culpa levis7, must accept perform-
ance, and take over any rights properly created on his behalf, and
indemnify the mandatarius in respect of any liabilities8 incurred, by
payment or transactio, or taking them over by novatio, etc.9 He must
reimburse the mandatary for expenses properly incurred, with interest,
for the mandatary as he must not profit, must not lose either10. But
there was an illiberal rule that personal losses which had nothing to do
with the mandate were not chargeable even though they would not have
occurred but for the mandate11.

Mandate ended of course by completion, impossibility, arrival of
term or condition, mutual waiver, and so forth, but also by:

Revocation or renunciation. This right resulted from the confidential
aspect of mandate. So long as nothing had been done, the mandator
could revoke with impunity, but if he did so when the mandatary had
incurred expenses or liabilities he must take these over12. The mandatary's
power of acting within his authority lasted till he had notice of the
revocation13, while persons dealing with him were entitled to treat him
as mandatary, till they had notice14. The mandatary could renounce, re
Integra, so long as his renunciation did not prevent the principal from
conveniently getting the thing done at all15, or in any case if he was
attacked by illness16, or had hostile interests17, or the principal was
insolvent18. If, apart from this, he renounced after having acted, he
would still be, in a sense, within his rights, but was more likely to injure

1 17. 1. 10. pr. ; h. t. 29. pr. ; 19. 5. 5. 4; 50. 17. 23. 2 It can hardly be due to the

confidential nature of the transaction, for the rule appears only when mandatum is be-
coming commercialised. 3 17. 1. 8. 10; h. t. 12. 10; h. t. 5. 1. etc. 4 See Greg.
Wis. 1. 1; Inst. 3. 26. 8; D. 17. 1. 5. 5 17. 1. 33. 6 G. 3. 161; P. 2. 15. 3; Inst.
3. 26. 8; D. 17. 1. 3. 2, 4. 7 47. 2. 62. 5. 8 17. 1. 12. 9; h. t. 15; h. t. 26. 6.
9 17. 1. 45. pr.-5. 10 17. 1. 15; P. 2. 15. 2. 11 E.g. a man travelling under man-
date is robbed by highwaymen, h. t. 26. 6. 12 17. 1. 15; G. 3. 159; Inst. 3. 26. 9.
13 17. 1. 15. 14 46. 3. 12. 2. 15 17. 1. 22. 11. 16 17. 1. 23; P. 2. 15. 1.
17 Ib. 18 17. 1. 24, 25; P. 2. 15. 1.

xi] MAN DATUM 515

the mandator, in which case he would be liable for damages. He must
therefore give prompt notice of any revocation1, and in any case he
must not leave a transaction half completed2.

Death of either party, as it was a personal relation, with similar rules
as to notice of death in the case of the mandator*, the heres of a deceased
mandatary being bound to attend to uncompleted matters4. Here
however mandate for performance after the death of either party raises
a certain difficulty. Such a thing is said to be void because an obligatio
cannot begin in the heres5, and so far as death of the mandatary is con-
cerned, this is clearly stated6 and nowhere denied. There is the further
reason that the confidence one has in a man does not extend to his
unknown heres. , But it is different in the case of mandate for perform-
ance after the death of the mandator. The personal reason does not
apply. The rule is not stated by Gaius, but is by Paul, in the Digest,
with the reason that mandate ends by death of either party7. One
text may possibly imply that a mandate to conduct my funeral gives
no actio mandati8, but another gives it on a mandate to build my monu-
ment9, not easily distinguished. Another gives it on a mandate to buy
land for my heres after my death10, and Gaius gives it for adstipulatio on
a stipulatio post mortem11. In one text in which the mandate was
operative after death of mandator, the reason is assigned that on the
facts (the text was written offidiicia) the mandator might have an action
in his life so that the obligation did not begin in the heres12. In another,
corrupt, it is said similarly that mandatarius might incur expense, with
a right of reimbursement, before the death13. It is not easy to see why it
should be possible to incur expense on a monument before the death,
and not on other/wweran'a14. In fact since it is not easy to find a mandate
in which it was not possible for money to be expended before the death,
or, failing this, for the mandator to have some claim, the exceptional
case practically negatives the rule.

The actions resulting from mandate were bonae fidei indicia. They
were the actio mandati, against the mandatary, condemnation involving
infamy15, and actio mandati contraria for reimbursement16.

1 17. 1. 22. 11. 2 Arg. 17. 2. 40. 3 17. 1. 26. pr.; G. 3. 160; Inst. 3. 26.

10. In C. 4. 35. 15 it is said "mandatum re intcgra domini morte finitur," a much more
limited proposition. 4 Arg. 17. 2. 40. 5 Ante, § CXLIX. 6 G. 3. 158 (he

gives that reason); D. 17. 1. 27. 3. 7 46. 3. 108. 8 11. 7. 14. 2. 9 17. 1.

12. 17. 10 17. 1. 13. 11 G. 3. 117. 12 17. 1. 27. 1. In the original an actio

fiduciae on revocation, under Justinian a condictio ex poenitentia. 13 17. 1. 12. 17.

14 For the actio funeraria for expenses properly incurred in conducting a funeral, Lenel,
E.P. 223; post, § CLXXXVH. 15 G. 4. 62; Inst. 4. 6. 28; D. 3. 2. 1, probably only in case

oidolus. 16 17. 1. 41; notinfaming, D. 3. 2. 1. It is however maintained that the

actio contraria is post-classical: the actio mandati in classical law having an intent! o
raising the claims on both sides, "quidquid ob earn rem alterum alteri d.f. oportct, cxf. 6."
Biondi, Indicia bonae fidei, 61 sqq.

33—2

516 MANDATUM [en.

CLXXX. We have now to consider some special aspects of mandatum.

The position of mandate among consensual contracts seems at first
sight remarkable. It differed from the others in that it was gratuitous,
and, on the view that it gave an actio contraria, only imperfectly bilateral,
resembling in these respects the contracts re. It resembled them also in
that either party could withdraw before anything was done. And the
doubt about conditions which existed in the other consensual contracts
is not suggested here. It may therefore be thought that it should be
under the contracts re. But it differed from these in essential ways:
there was here no question of delivery. The matter is not mended by
regarding delivery as part performance, of which this is another case.
The mere agreement created a definite obligation, which justifies the
place of the contract. If A gave B a mandate, and B simply neglected
it, to A's loss, an actio mandati lay1. To avoid liability there must be
an express repudiation and this must be under such conditions as not
to upset A's plans. The mandator could withdraw only by revocatio2,
which implies something to revoke. Agreements for a right of withdrawal
were common on sale3, but sale was none the less a consensual contract.
There was a right of renunciation in societas*. The presence of considera-
tion is not an essential of consensual contracts: it is merely one of the
factors which made for recognition. Commercial importance was the
real test: most commercially important contracts would have con-
sideration, but not necessarily all.

Mandatum as agency. An agent is one who sets up relations between
principal and third party, himself taking no rights and incurring no
liabilities, but acting as a mere conduit. Roman Law never reached this
institution in contract, but approached it in connexion with mandate.
The praetor made an inroad on the principle that a contract affected
only the actual parties, by giving an actio institoria against the principal
who had appointed a man to manage a business and to contract in
relation to it5, a case of mandate. Papinian perhaps went further and
allowed an "actio ad exemplum institoriae," where the mandate was only
for an isolated transaction6: whether the third party must have known
of the authorisation in this last case is not clear7. But there was no
such principle the other way. One text indeed says that as the employer
was liable he must also be entitled8, but this is due to Justinian and
probably does not really represent the law even for his time. The princi-

1 17. 1. 6. 1. See also post, § coxxxiv. 2 Inst. 3. 26. 9. 3 Ante, § CLXxm.

4 Ante, § CLXXvm. 5 Post, § CLXXXIV. 6 14. 3. 19. pr. 7 In some

texts this is not mentioned (14. 3. 19. pr.; 19. 1. 13. 25). In two it is, but in both there is
another point. In 17. 1. 10. 5 the person seeking the action is one who did not make the
authorised contract, but guaranteed it. A surety is entitled to know what other guarantees
there are. In 3. 5. 30. pr. the same point arises for the fideiussor. 8 19. 1. 13. 25.

xi] MANDATUM 517

pal could not ordinarily sue on the contract unless he had taken an assign-
ment of the action in the way shortly to be considered. In some cases
of urgency, however, the matter was carried further: the principal could
bring the agent's action as an actio utilis, and in all such cases an action
by the mandatary after this would be met by an exceptio doli. This is
stated only of cases where there was no other way of protecting the
principal's interests, e.g. the agent was insolvent1. It has been suggested
on the analogy of the case of tutores, that the same may have been true
where the agent could not or could no longer be sued, so that there
would be no injustice in depriving him of his actions, e.g. in unilateral
transactions2. The texts make it clear that the principal did not in general
acquire the agent's rights of action3: the notion formerly held that,
where there was a right to have the action transferred, an actio utilis lay
without transfer, is unfounded4. Further, the mandatary was not pro-
tected from being sued on his own contract, so that his position was far
short of that of a true agent: the last point is important, for though
he was entitled to an indemnity from his principal, this might be
illusory.

Mandatum as a contract of surety5. The mandate to lend money,
mandatum credendae pecuniae (the so-called mandatum qualificatum) im-
posed on the mandator, like all mandate, the duty to indemnify the
mandatarius. If therefore the debtor did not pay, the mandator must,
so that he was in effect surety to the mandatarius for the debtor. It
differed from adpromissio in that it was created by an independent con-
tract before the principal debt, and in that the creditor, mandatarius,
owed duties under the mandate to the surety, the mandator, his principal.
And the duty of the mandator was not to pay a certain sum if the debtor
did not, but to indemnify the mandatary, which is not quite the same
thing. This led to some practical differences in the rules, of which the
chief were the following:

Action against the debtor did not release the mandator, since it was
not eadem res6.

Mandator, like fideiussor, could demand cessio of actions and se-
curities against the debtor, etc., but he was better off. The fideiussor
could claim only such as still existed7, but as the mandatary was bound
to look after the interests of mandator, the latter was released if the
mandatary had abandoned any rights8.

The mandator could withdraw before performance, while the fideiussor

1 14. 3. 1, 2; 46. 5. 5. 2 26. 9. 2; 45. 1. 79. Girard, Manuel, 689. 3 See, e.g.,
45. 1. 126. 2. 4 Post, § CLXXXIX. 5 Bortulucci, Bull. 27. 129; 28. 191. The

author shews that the rules of this institution involve no anomalies, but are applications
of the ordinary principles of mandate. 6 P. 2. 17. 16. 7 Ante, § CLVII. 8 46.
3. 95. 11.

518 INNOMINATE CONTRACTS [CH.

could not. The II. Cicereia and Cornelia1 are supposed not to have been
applied to mandatores, but this does not appear to be clear.

The mandator, being the originator, might be liable in circumstances
in which a fideiussor would not, e.g. where there was a mandate for a
loan to a minor who got restitutio in integrum2. A fideiussor would not
be liable if he did not know the debtor was a minor3.

Mandatum as assignment of contract. Procuralio in rem suam.
Obligatio, being personal, could not be assigned. This principle was
evaded by the use of mandate in the form of procuratio ad litem. The
assignment was effected by giving the assignee a mandate to sue on the
claim, on the understanding that he was not to be accountable for the
proceeds — procuratio in rem suam. In its simple form this was imperfect,
since the debtor could still pay the assignor and the assignor might
revoke the mandate, at least till litis contestatio*. And death of either
party revoked the mandate. All this was gradually remedied. If the
mandate was revoked by death, or expressly, the mandatarius was al-
lowed an actio utilis in his own name, though, in the last case, perhaps
not till Justinian5. Again, in one case in the third century, but perhaps
generally only under Justinian, it was provided that after notice given
to the debtor or part payment by him to the assignee, the original
creditor could no longer claim the money or release the debt, nor could
the debtor validly pay it to him6. There was now an effective transfer of
such assignable right as the creditor had. Anastasius introduced a
modification which must have done some injustice. He provided7 that
any one who had so bought a debt could never recover more than he
paid for it, whatever the amount of the debt8.

CLXXXI. INNOMINATE CONTRACTS9. These contracts are commonly
treated in close connexion with the contracts re, apparently as repre-
senting a generalisation of these, considered as resting on part perform-
ance. But the resemblance is remote and the evolution much later.

1 Ante, § CLVI. The previous declaration required by the I. Cicereia cannot well occur
in this case, but it is not unlikely that practice imposed on the mandatary the duty to
inform the principal. On the I. Cornelia there is no evidence. 2 See 4. 4. 13. pr. ;

17. 1. 12. 13. The case of m. credendae pecuniae must be distinguished from that of a man-
date to become surety, given by the debtor in every case of fideiussio. There might also
be a mandate to become surety for a third person. 3 Ante, § CLVH. 4 The

litis contestalio has brought the principal's right into issue and novated it, post, §§ ccxxxv,
ocxxxix. 5 3. 3. 55; C. 4. 10. 1, perhaps only where the revocation was unjustified.

Where the transfer was by way of gift it was still avoided by death of mandatarius before
litis conteslatio, till Justinian. C. 8. 53. 33. 6 C. 8. 41. 3. There must have been actual

procuratio, a mere agreement to assign was not enough. 7 C. 4. 35. 22. Justinian

legislates against evasions, h. t. 23. 8 See for a full discussion, Gide, Novatio, Pt 3,

and for another statement and criticism, Girard, Manuel, 743 sqq. 9 So called by

modern writers. The principal instances have names, but they do not belong to a named
class, and have no specially named actions, 19. 5. 3.

xi] INNOMINATE CONTRACTS 519

They represent a new principle, i.e. that in an agreement for mutual
services performance on one side binds the other. The essence was the
quid pro quo, which was absent in the contracts re. The service might be
a transfer, an act, or even an abstention, having no relation to the
delivery, which was the essence of the real contract, and might or might
not be a service.

There is still much controversy about the evolution of these con-
tracts1, but in its broad lines the story seems to be as follows. There
were cases in which it was clear that there was a contract, but not so
clear what contract it was : it might be looked on as, e.g., sale or hire. In
many such cases the doubt was settled and the action on one or other
of these contracts given2, but in others Labeo is said to have held that
an action should be given with a, formula in ius expressing a civil duty
(oportere) with words prefixed setting out the facts3. This may be called
" agere praescriptis verbis," but it does not appear that it was the specific
"actio praescriptis verbis" which we get later. Indeed it is not certain
what it was called in this its earliest appearance — possibly actio civilis
incerti*. But a more difficult case was that of transactions analogous to
existing contracts, but not really within the definition of any. There
was always the actio doli, if one party had done his part, and the other
refused to do his5, and if what had been done was the transfer of a res
there was a condictio ob rein dati for restitution6.

Neither of these remedies was enforcement of the contract. They
undid what had been done, putting the parties, so far as might be, in
the position in which they would have been if the agreement had never
been made. What was needed was to put them, so far as might be, in
the position in which they would have been had the bargain been com-
pleted.

The case of aestimatum, handing over a thing at an agreed price, for
sale or return, was dealt with in the Edict. A civil action of the type
just described was given and was called actio aestimatoria or de aestimato7.
There was a formula but no edict: it was a civil action, and the prin-
cipal text suggests that the transaction was contemplated as one of the
type in which the doubt was merely under which contract it came8.
This seems the proper view9, though another text of the same writer
seems to regard it as not under any contract and gives an actio in

1 See the literature cited, Girard, Manuel, 597. See also Partsch, reviewing Francisci,
Z.S.S. 35. 335 sqq. 2 G. 3. 145, etc. 3 19. 5. 1. 1. The language of Gaius

(n. 2) suggests that Labeo's method was little followed, and it has been suggested that the
word "civilis" in the text is interpolated. 4 19. 5. 6. Neratius. Cp. 19. 1. 6. 1.

5 19. 5. 5. 3. 6 12. 4. 16 and passim. 7 Lenel, E.P. 290. 8 19. 3. 1.

9 It is not afTected by acceptance of the suggestion of Gradenwitz (Interpolationen, 109)
as to interpolation. The named action differentiates it from the others.

520 PERMUTATIO [CH.

factum1. However this may be, other cases were protected only by the
negative remedies above mentioned and an actio in factum, which is
found very early2 and no doubt by the time of Ulpian protected all such
cases. But in some of these, as time went on, some jurists, at least,
admitted the possibility of a civil action, agere praescriptis verbis, and
while some of these cases were no doubt classical3, it is commonly held
that the general application of this action to all such cases was the work
of Byzantine lawyers, probably before the time of Justinian. The com-
pilers seem to have sought to fuse these remedies, and their terminology
presents an extraordinary confusion. They speak of actio in factum,
actio civilis incerti, actio praescriptis verbis, actio praescriptis verbis in
factum, actio civilis in factum, of which none is certainly classical as
applied to this action, though aclio praescriptis verbis, actio civilis incerti
and even actio civilis in factum* may be. No doubt the applications were
gradually extended. Thus it seems that in the hypothesis " facio tit des,"
Paul did not admit the action, while Ulpian did5.

The innominate contracts are usually grouped after Paul (or Tri-
bonian) under four classes: do ut des, do ut facias, facio ut des, facio ut
facias^, an imperfect scheme which ignores, in form, the possibility of
a service consisting in an abstention. The bargains were of innumerable
kinds, but only two or three were important.

Permutatio. Barter or exchange. When we remember that through-
out the classical age it was still matter of dispute whether sale involved
a money price, and whether it was distinct from permutatio or not, it
will be clear that we can know little of permutatio, as such, before
Justinian. The contract was made only by the actual transfer of the
ownership on one side7. Thereupon the risk in the thing undelivered
passed to the party who had delivered, the holder being liable only for
culpa8. As dominium must pass for the contract to arise, it passed
though there had been as yet no performance on the other side9, and
as the duties on each side were the same one who had duly performed
but had received only with a defective title, could proceed without
waiting for actual eviction10. The law as to compensation for defects was
apparently as in sale11. It was a bonae fidei transaction, but the rules as

1 19. 5. 13. pr. See Thaller, however, Melanges Appleton, 639 sqq. It is difficult to
understand how U. can have written both texts if the present one refers to aestimatum.
See post, p. 521. 2 19. 5. 1. pr. Julian who must have handled the actio de aestimato

gives an actio in factum in these cases, 2. 14. 7. 2. 3 2. 14. 7. 2. 4 See

Audibert, Md. Oerardin, 21. He thinks the last is Byzantine, Mel. Fitting, 1. 49. In
C. 4. 64. 6 we get "praescriptis verbis incerta civilis actio." 5 19. 5. 5. 3; h. t. 15.

Attempts to determine the order of evolution can be little more than guesses. 619.

5.5. 719.4.1.3. 8 19. 5. .3. 1. 9 C. 4. 64. 4. 10 Arg. 19. 4. 13; h. t.

1. 1, 2; 2. 14. 7. 2. 11 19. 4. 2; 21. 1. 19. 5.

xij AESTIMATUM 521

to laesio enormis did not apply. The action of the one who had performed,
if the other failed, is variously stated as a civil action, an actio in factum
and the actio praescriptis verbis1, variations indicating the evolution just
considered. There was also a condictio ob rem dati to recover the res, if the
corresponding render had not been made, even where the failure was not
imputable. Under Justinian it was called '''condictio causa data causa
non secuta2," and appears to have lain only where the actio praescriptis
verbis would3. Where one had delivered but, for some reason, ownership
had not been transferred, there could be no actio praescriptis verbis, as
there was as yet no contract4, but there was presumably a condictio for
recovery.

Aestimatum5. This was, essentially, an agreement under which a thing
was handed over by the owner to another person on the terms that he was
to restore it, or an agreed price, usually within a fixed time. There might
be variations in detail. Thus the profit of the receiver might consist en-
tirely in the difference between the price he had agreed to give if he did
not return the thing, and that at which he sold, or there might be some
sort of reward. He might either keep the thing, or sell it (which was the
real aim), or return it. It appears to be the only case in which the Edict
gave an action with praescripta verba, but it is not called actio praescriptis
verbis, but actio aestimatoria or de aestimato6. Its character has already
been considered. The affinities of aestimatum with various contracts are
discussed in the texts7. Nothing but the fact that the primary purpose
was not purchase by the receiver differentiated it from sale, and it can
be regarded as sale under a suspensive condition8. It is fairly clear that
unless by express agreement the ownership did not pass by the delivery
to the dealer, but it passed, presumably, on sale to a customer or on
expiry of the time limited for return. There is difficulty on the subject
of risks. In one text Utpian puts the risk on the intermediary9, and, in
another, on whichever initiated the transaction, for which he cites Labeo
and Pomponius10, and, as Paul says the same11, this must be taken to
have been the law. If the point of priority was not clear, Ulpian makes
the receiver liable for culpa, which leaves the risk with the principal12.

The transaction was bonae fidei13, and though we hear of an actio in
factum, it is not clear that the text is really concerned with aestimatum1*.

Precarium. This is commonly treated as an innominate contract, but

1 19. 4. 1. 1 ; 19. 5. a. 1 : C. 4. 64. 4. 2 Post, § CLXXXVII. 3 19. 4. 1. 4; C. 4. 64. 4.
4 19. 4. 1. 3. 5 See Thaller, Mel. Appleton, 639 sqq. 6 Ante, p. 519.

7 19. 3. 1. pr.; 19. 5. 13. 8 See Thaller, op. cit. 651. 9 19. 3. 1. 1. 10 19.

5. 17. 1. 11 P. 2. 4. 4. 12 19. 5. 17. 1. 13 19. 3. 1. pr. The allusion to

bonae fidei character is probably interpolated, but any civil action on such facts must
have been bonae fidei. 14 19. 5. 13. Authority to sell at a certain price ia not of itself
aestimatum.

522 PRECAR1UM [CH.

in fact we know little of it: it has been described as an enigma1. It seems
to have originated in gifts by patrons to liberti and clientes, of property
which they might hold and enjoy, but not alienate, revocable at will.
In classical law it had lost its connexion with liberti, but had not changed
its character. It was a gratuitous grant of the enjoyment of land or
goods, revocable at will, even though a contrary agreement had been
made2. It might be of a res incorporates, such as a right of way3. Common
applications of it were permissions by a creditor in fiducia or an unpaid
vendor, to the debtor, to hold the property4. It was like commodatum,
but differed in that it applied primarily to land, and gave a general use
and enjoyment, with the fruits5, and not, as commodatum usually did,
only a particular use. The precario tenens ordinarily had possessio, but
not always: it was a question of intent6.

It was essentially a liberality, not a mutual benefit, differing from
gift only in the right to take it back at any moment7. Thus the holder
was not liable for culpa but only for dolus8. The appropriate remedy for
recovery was the interdict de precario, and when this was issued, as the
precarium had ceased, the holder became liable for culpa and " omnis
causa" unconsumed fruits and the like9. The aspect of it as a gift is
brought out further by the fact that, as Paul and Ulpian tell us, there
was no special civil action against the holder: the rights under the
interdict were all the owner had10. Paul indeed, in the Sententiae, seems to
contradict this: he says there was a civil action as in commodatum11 ,
but this probably means only that there was a condictio for recovery, on
general principle, as there was a vindicatio.

As it was a personal matter, it ended, in strictness, on the death of
the holder. In classical law his heres did not hold in precario, and was
not liable to the interdict de precario^, nor was he responsible for the
dolus of his predecessor13. In later law the precarium was regarded as
continuing, so that he was liable de precario1*. But the death of donor
or even alienation by him did not end the precarium, though it could be
at once stopped15.

There is no sign of an innominate contract in this, but under Justinian
two texts give an action apart from the interdict, one giving a "condictio

1 Bertolini, op. cit. 420. 2 43. 26. 2. 2. 3 43. 26. 3. 4 43. 26. 6. 4;

h. t. 20. 5 43. 26. 8. 4. 6 41. 2. 10. 1. 7 43. 26. 1. 2. 8 43. 26.

8. 3. 9 43. 26. 8. 4, 6. 10 43. 26. 14; 47. 2. 14. 11. 11 P. 5. 6. 10.

12 P. 5. 6. 12. This text coupled with D. 10. 3. 7. 5 suggests that the here-s of precario
tenens, holding over, was liable to the interdict de clandestine!, possessione. On this inter-
dict, see Lenel, E.P. 453, n. 3. But Paul's text may merely mean that " uti possidetis"
is available as he holds "clam, ab alte.ro" 43. 26. 12. 1. 13 43. 26. 8. 8, except for

what he has received. 14 43. 26. 8. 8; at any rate if he knew, 44. 3. 11; C. 8. 9. 2.

See however Partsch, Longi Temp. Praescriptio, 16, n. 2. 15 43. 26. 12. 1.

xi] TRANS ACT 1O 523

incerti, id est praescriptis verbis1," the other2 an actio praescriptis verbis.
Both are interpolated. If we treat this action as the mark of an innomin-
ate contract we may say that under Justinian, precarium became one.
But it was essentially different, as the mutual element was entirely
wanting3.

Transactio^. Essentially the compromise of a dispute at law, im-
pending, existing or even already decided, if an appeal of any kind was
still admissible5. It was the abandonment of a claim in consideration of
something given or promised, or of a defence in consideration of being-
allowed to retain something6. In the former, the usual case, there would
be an Aquilian stipulatio, and an acceptilatio or a pact not to sue7, the
former extinguishing the claim altogether, the latter giving an exceptio
pacti. It was the usual practice, either as alternative to the formal
release, or in addition, to stipulate for a penalty in the event of disregard
of the agreement8. Such a penalty was usually in substitution for the
agreed compromise, but it might be provided that they were to be
cumulative9. In the case of legacy of alimenta or the like, as the class
affected was likely to be improvident and easily influenced, no transactio
was allowed without consent of the praetor10. If the money promised
was promised only informally, there was in earlier classical law only an
actio doliu: an enactment of Alexander purports to give an actio prae-
scriptis verbis, but it is probably interpolated12.

1 43. 26. 19. 2. 2 43. 26. 2. 2. The civil action mentioned in P. 5. 6. 10 is not

defined. It is probably the condictio for recovery. 3 And it is not easy to define the

scope of the actio praescriptis verbis under Justinian. See C. 4. 54. 2 (prob. interp.); D. 19.
5. 17. 2 (interp.). 4 Bertolini, Delia Transazione. 5 P. 1. 1. 5; D. 2. 15. 7. pr.;

h. t, 11 ; C. 2. 4. 2; h. t. 32. 6 C. 2. 4. 24; h. t. 38. 7 2. 15. 2. 8 P. 1. 1. 3;

D. 2. 15. 15; h. t. 16; C. 2. 4. 37. 9 2. 15. 16; C. 2. 4. 17. 10 2. 15. 8. pr.

11 C. 2. 4. 4; h. t. 28. 12 C. 2. 4. 6. See the adjoining enactments of the same

Emperor. But the rule is stated in an enactment of Diocletian, C. 2. 4. 33.

CHAPTER XII

OBLIGATIO (cont.). PACT A. INCIDENTS OF CONTRACTUAL

OBLIGATION. QUASI-CONTRACT. EXTINCTION OF

OBLIGATION. DELICT

CLXXXII. Pacta adiecta, p. 524; Pacta praetoria, 525; P. de constitute, 526; CLXXXIII.
Receptum argentarii, nautae, etc., arbitri, 527; Pacta legitima, 528; Compromissum, ib.;
pactum dotis, donationis, 529; CLXXXIV. Agency in Contract, ib. ; Actio de peculio et
in rem verso, ib. ; tributoria, 530; quod iussu, 531 ; institoria, ib. ; exercitoria, 532; CLXXXV.
Obligatio quasi ex contractu, 533; Ncgotiorum gestio, ib.; Guardian and Ward, 535; Heres
and legatee, ib. ; CLXXXVI. Common ownership, ib. ; Money paid by mistake, 537;
CLXXXVII. Actio funeraria, 540 ; Missio in possessionem, ib. ; disputed boundaries, ib. ;
Condictio ob rem dati, 541; ob turpem, iniustam causam, ib.; furtiva, 542; sine causa, ib.;
ex lege, ib.; ex poenitentia, ib.; Actio ad, exhibendti.m, 543; Aquae Pluviae arcendae, 544;
CLXXXVIII. Interest, 545; Mora, 546; CLXXXIX. Obligatio naturalis, 548; Transfer
of Obligatio, 550; CXC. Theory of Culpa, 551; CXCI. Custodia, 555; CXCII. Extinction
of Obligatio, Involuntary, 557; CXCIII. Voluntary, 560; Solutio,ib.; Alternative obliga-
tions, 562; CXCIV. Novatio, 563; CXCV. Release,* 567 ; exceptio pacti, 569; CXCVI. Obli-
gatio ex delicto, 571; Furtum, 572; CXCVII. Interesse in the actio furti, 574; CXCVIII.
Actions for penalty in Theft, 576; actiones ad rem persequendam, 577; CXCIX. Eapina,
Vi bonorum raptorum, 579; CC. Damnum iniuria datum, 580; I. Aquilia, ib.; CCL Exten-
sions of the action and analogous actions, 582; CCII. Iniuria, 584; Iniuria to a slave,
587; Iniuria atrox, ib.; CCIII. Metus, 588; Dolus, 589; Servi corruptio, 590; Fraud on
creditors, 591 ; Fraud on patron, 592; CCIV. Obligatio quasi ex delicto. 593; CCV. Responsi-
bility for another, 594; Noxal Liability, ib.; acts of familia publicani, 596; Delict by
slave in contract, 597; Pauperies, etc. 598.

CLXXXII. PACTA . In the preceding chapter the kinds of agreement
treated as contracts were discussed: we have now to consider what
efficacy was allowed to such informal bargains as did not come within
this conception, i.e. pacta.

The XII Tables contained a rule that proceedings for personal injury
were barred by pact1, and pact continued to be a complete civil defence
to an action on delict, in later law2. The Tables contained other rules on
pacts, which however do not directly concern us here3.

The praetors generalised the rule of the XII Tables: a pact not to
sue was a praetorian defence in any action, so that it could destroy an
obligation, though it gave no action: nuda paclio obligationem non parit,
sed parit exceptionem*. The next step was to allow pacts to vary obliga-
tions. The recognition of pacta adiecta, pacts added to contracts, was a

1 8. 2. Girard, Textes, 17; Bruns, 1. 29. 2 2. 14. 17. 1. 3 E.g. pacts by

way of compromise to avoid execution of judgment, pacts between members of a sodalita-s
as to its rules (XII T. 3. 5; 8. 27, see also 1. 6). 4 2. 14. 7. 4: P. 2. 22. 2. Pacts

must be lawful (Cons. 1. 7 sqq. ; P. 1. 1. 4). An exceptio pacti might be met by a replicatio
on a counter-pact revoking it, Cons. 4. 4.

CH. xn] PACT A 525

gradual process and their effect in classical and later law varied with
their nature and with that of the contract in connexion with which they
were made. They might be either continua (in continenti facto), made at
the same time as the contract, or ex intervallo, made later1. In an in-
formal bonae fidei contract, a pactum continuum was in effect a term in
the contract, and was thus enforceable by plaintiff or defendant, i.e.
whether it increased or diminished the obligation2. In stricti iuris con-
tracts there is some difficulty. In mutmim, as the contract rested on
delivery, any term or condition was in effect a pact, and the rule was as
in bonae fidei contracts3. As to stipulatio, all that can be said on the
authorities is that in later classical law where other agreements accom-
panied the stipulatio they might be treated as implied in it though not
expressed, and that concrete applications of this rule are found only in the
interest of the defence4, but general propositions of late classics shew
that the stipulator also might avail himself of such agreements5.

There is no evidence that pacta ex intervallo were effective except in
defence, a basis for exceptio pacti6. But the nature of the consensual
contract involved one great limitation on this proposition. Such a con-
tract might, before performance, be set aside by contrarius consensus7.
Similarly, the parties might agree to vary its terms, which would be in
effect to discharge the old and substitute a new contract. And where a
pact was made which substantially altered the contract it was so con-
strued, whether it benefited one or the other8. But a pact, to be so
treated, must affect essential terms, e.g. price ; a pact touching merely
subsidiary matters was not so treated and was good only as a defence9.
It was a question of fact in each case to which class the pact belonged.

The next step was to give an action on some pacts not connected
with a contract (pacta vestita), and this was done in several cases by the
praetor (pacta praetoria), who gave an actio in factum. Of these the
chief were10:

lusiurandum voluntarium. It was open to a party to any dispute,
whether litigation or not, to offer to the other party the opportunity to
take an oath as to the truth of his claims, or himself to tender such an
oath if the other party would allow it11. The other party need not take
the oath or accept it from the offeror12. But whoever did take the oath

1 2. 14. 7. 5. 2 Ib. 3 But, here as elsewhere, interest can usually be attached
only by stipulatio. Post, § CLXXXvm; D. 2. 14. 17. pr.; h. t. 29; C. 2. 3. 10. 4 2. 14.

4. 3; 12. 1. 40. 5 12. 1. 40; h. t. 7. Same rule as to interest. 6 2. 14. 7. 5.

7 Post, § cxcv. 8 2. 14. 7. 6; 18. 5. 2. 9 18. 1. 72. pr. 10 One has been

considered — pactum hypothecae (ante, § CLXVI). It differs from the others in that its special
action (actio hypotkecaria) is in effect an actio inrem. When ultimately the actio pignera-
titia, which has & formula in ius, was given on hypothec, it ceased to be, properly speaking,
a praetorian pact. 11 12. 2. 1-3. 12 C. 4. 1. 1; D. 12. 2. 5. 4.

526 CONSTITUTUM [en.

in such conditions had exceptio iurisiurandi1 if sued, and if he had to
sue to enforce his right, he could bring an actio iurisiurandi, an actio in
factum in which he need prove only that the oath was offered and taken2.
The whole institution was quite distinct from the iusiurandum neces-
sarium which could be required in certain cases3. Thus it could not be
offered back (relatum) so as to compel the offerer to take it4.

Pactum de constitute. This was an informal undertaking to pay an
existing debt, the promisor's or another's, at a fixed time5. It might
be to the original creditor or another person6. The action was the actio
de pecunia constituta7. It was akin to the actio certae pecuniae creditae
though it was an actio in factum: in particular there was (or might be) a
penal sponsio, here of half the amount in dispute8. It covered debts of
any origin, contract (or quasi) or delict9, but it was at first confined to
money, as the actio c. p. c. was, and extended, first to other things fun-
gible, and, under Justinian, to anything at all10. The undertaking might
be of less than the debt, or of one of alternatives due11, or, as in datio
in solutum1*, of something other than what was due, accepted instead.
But it was void as to any excess over the debt and interest due13. The
time fixed might be earlier or later than the due day of the debt, and
though in principle it needed a fixed time, it seems in classical law to
have been valid and to have given an action at once if no time was
stated14, but Justinian in such a case required a delay of ten days15. It
might be a promise, not of payment, but of security16. There must however
be a real debt, civil, praetorian or even natural, simple or ex die or con-
ditional17, and thus the promise was void if the original claim could be
met by an exceptio^. If the debt was conditional, the constitutum was
under the same condition19, but it was immaterial that the debt was
limited in time, e.g. that there was only an actio annua, and the year
expired before the time fixed in the constitutum20.

In later law the action was regarded as purely contractual, but there
are traces of an original penal character. The heavy penal wager is one.

1 12. 2. 9. pr. There is difficulty as to the extent to which this exceptio could be used
by others concerned, e.g. sureties, correi, etc. Beseler, Beitrage, 3. 115, 4. 174. 2 12.

2. 9. 1, 2; h. t. 11. 1; 44. 5. 1. 3. Remission of the oath by the party who had offered
the oath to the other was equally effective. 3 Post, § ccxv, as to this and the confusion
in the texts. 4 12. 2. 17. pr. 5 Inst. 4. 6. 9. 6 13. 5. 5. 2. 7 Inst. 4.
6. 8. Called actio eonstitutoria in 13. 5. 20. 8 G. 4. 171; Inst. 4. 6. 8. Not of one
third as in the other case. 9 13. 5. 1. 6; h. t. 29. 10 C. 4. 18. 2. 11 13.
5. 5. 1; h. t. 13; h. t. 25. 12 Post, § cxcm; 13. 5. 1. 5. 13 13. 5. 11. 1. 14 13. 5.

3. 2; h. t. 4. 15 13. 5. 21. 1. 16 13. 5. 14. 1, 2; h. t. 5. 3. 17 13. 5. 1. 7, 8;
h. t. 3. 2; h. t. 19. pr. 18 13. 5. 3. 1. 19 13. 5. 19. pr. There had been doubta
as to constitutum of postponed and conditional debts, 4. 18. 2. 1. 20 13. 5. 18. 1.
It was valid though the original render was now impossible, if the impossibility had left
an obligation outstanding, e.g. had supervened after mora, 13. 5. 21. pr. ; h. t. 23.

xii] RECEPTUM 527

Also in some cases (unknown) it had been annua1, and there had perhaps
been doubts whether it lay to and against the hercs2. But for Ulpian
it was clearly ad rem persequendam3, and the penal wager was gone in
later law, while Justinian, whose changes accompanied a fusion with the
actio receptitia, shortly to be dealt with, made it perpetua in all cases*.
The texts are not explicit on the question how far the action destroyed
the old obligation5: it is generally held that it did not, apart from
express intent. Where it did, as it was a praetorian defence, there would
be an exceptio6.

The most usual case was constitutum between the parties to the debt,
but there might be constitutum debiti alieni7. This was in effect a case of
surety, differing in some respects from fideiussio. Thus, though, as we
have seen, it seems usually to have left the old debt standing, it might
be made so as to operate as a praetorian novation. Where it left the old
obligatio standing, action against one did not release the other8. It had
no form, and it had consideration, i.e. suspension of the action. Hence
a fideiussio which failed for defect of form was not construed as con-
stitutum9. It could be used where there was no present debtor, e.g. on a
debt of a hereditas on which no heres had yet entered10. As to the //.
Cicereia and Cornelia the position is as in mandatum credendae pecuniae11.
The beneficium divisionis and excussionis are applied to it by Justinian12,
either of two constituentes having previously been liable in solidum.

Just as it might be by a new debtor, so it might be made by the
debtor to a new creditor13. This seems always to have novated, in the
sense that after it the debtor could not discharge himself from the new
creditor by paying the old, even where the new promise was made to
one of correi credendi in the old debt14.

CLXXXIII. Receptum. This is a group of three cases having in
common practically nothing but the name. Receptum argentarii was a
transaction like constitutum, but with a special actio in factum15, actio
receptitia, and confined to bankers16, and thus always for a third person's
debt. It seems to have been of later origin. It does not appear to have
had any penal wager. It applied even in classical law to any kind of
subject-matter17, and the banker was liable even though the original
debt was non-existent18. Justinian abolished it, fusing the institution
with constitutum19.

1 C. 4. 18. 2. 1. 2 76.: C. 4. 18. 1. 3 13. 5. 18. 2. 4 C. 4. 18. 2. 1. 5 13.

5. 10; h. t. 18. 3; h. t. 28; 15. 3. 15; 50. 8. 5. 1. 6 See Girard, Manuel, 615. 7 13.

5. 28; P. 2. 2. 1. 8 13. 5. 18. 3. 9 13. 5. 1. 4. 10 13. 5. 11. pr. 11 Ante,
§ CLXXX. 12 C. 4. 18. 3. 13 13. 5. 5. 2. 14 13. 5. 8; h. t. 10. But texts are
few and the matter is obscure. 15 See Lenel, E.P. 111. 16 Theoph. ad Inst. 4.

6. 8. 17 Theoph. cit. 18 Ib. 19 C. 4. 18. 2. Whether it was formal or
informal is much disputed; see Lenel, loc. cit.

528 PACTA LEG1T1MA [CH.

Receptum nautae cauponis stabularii. There are some puzzles about
this, but the better view seems to be that where the goods had been
received by the nauta, etc., with a special agreement "res salvos fore "
the receiver was liable in any event if the things were lost, no matter by
whom they were stolen1. Another provision, apart from this agreement,
will be discussed later2, but there is much controversy on the whole
matter.

Receptum arbitri. If parties agreed to accept an arbiter in a dispute,
and he accepted the responsibility, however informally, and the parties
had undertaken to obey the decision3, the praetor would compel the
arbitrator to act, apart from certain grounds of excuse4. This however
was not by action, but by a fine on him, enforced by seizure of pledges
and other administrative measures5. Any freeman, consularis, libertus,
in/amis, might be such an arbiter, but not a slave6.

Praetorian pacta, though in a sense unilateral, had in general a quid
pro quo. So soon as the agreement was made for iusiurandum there was
an agreement to abandon a claim or defence if an oath was taken. In
constitutum and receptum argentarii there was suspension of the action.
In receptum nautae the nauta was paid. Receptum arbitri may be an
exception but here no action was given.

Pacta legitima. Besides these pacta praetoria there was a small
group of pacts made enforceable by the Emperor — pacta legitima.

Compromissum. This was the above-mentioned agreement to submit
to arbitration. If it was informal the decision of the arbitrator (who
was not an arbiter in the technical sense) was in no way binding. If the
agreement was formal it was still true that the decision did not directly
affect the old rights. But it was usual to embody in the stipulatio an
agreement for a penalty, if the decision was not obeyed. This might be
what the parties chose, money, or "quanti ea res erit" and a mere
promise to obey the decision sufficed in classical law. In all such cases
there was an action on the stipulatio1. If the promise was to renounce
a claim if the decision was adverse, this was in effect a conditional
pactum de non petendo8. Or it might be a pact not to sue on some other
claim, with a like result: in cases of this type the agreement might be
informal9. This was the state of things in classical law10, but Justinian
provided, in 529, that the decision should be directly binding, if the
submission was under oath authenticated by writing11, and, in 530, that

1 47. 5. 1. 4; D. 4. 9. See on the controversies in this matter, Lusignani, Respons.
per Custodia, 1. 26; Lenel, E.P. 126, 322. 2 Post, § cciv. 3 4. 8. 11. 4. 4 4. 8.

9. 4 sqq. ; h. t. 15. It must be noted that the praetor does not force the arbitration on the
parties, but only at their demand on the arbitrator. 5 4. 8. 2; h. t. 3. 1; h. t. 7.

6 4. 8. 3. 3; h. t. 7. 7 4. 8. 27. 7; h. t. 28. 8 4. 8. 11. 2. 9 4. 8. 11.

3, on general principle. 10 4. 8. 2; C. 2. 55. 1. 11 C. 2. 55. 4.

xn] AGENCY IN CONTRACT 529

where there was no such oath, if the parties accepted the decision in
writing, or allowed ten days to elapse without notice of rejection, it
was to bind in the same way1. Later, he forbade the machinery by
oath, but left the provision of 530 2.

Pactum dotis. In 428 Theodosius allowed actionable validity to a
pact to give a dos3.

Pactum donation-is. Justinian allowed such validity to a pact to
make a gift4: here the notion of consideration was abandoned.

CLXXXIV. AGENCY IN CONTRACT. Roman Law did not readily
accept direct representation, i.e. the notion that a legal transaction by
A on behalf of B should bind or benefit B, leaving A without right or
liability. It reached it in procedure5 and in traditio of property6, but
not, generally, in contract: the personal nature of obligatio forbade such
effects. This does not exclude the use of messengers, and the like, and it
might on easily conceived facts be hard to say whether the intermediary
was a messenger and the contract the principal's, or a representative
and the contract his, though, in a practical sense7, assignable to the
principal. Apart from this, the principal steps were the following:

1. At civil law the paterfamilias acquired the rights resulting from
contracts by subordinate members of the familia. This rests not on
representation, but rather on the ancient view of these persons as his,
the results of their activity in this, as in other fields, therefore enuring
to his benefit8. But the slave's individuality was material in many ways.
If a slave bought a res litigiosa it was on his state of knowledge, not on
that of the master, that liability to the penalty depended9. It was his
knowledge which barred the actio redhibitoria10. If a buyer from a slave
was evicted he must ordinarily give notice to the slave himself11.

2. At praetorian law he was liable on their contracts to varying extents12,
(a) By the actio de peculio et in rein verso13 he was liable on their

negotia to the extent of the peculium at the time of the judgment, and so
far as his own estate had profited14. In estimating the pgculium he might
deduct anything due to himself or another member of the familia111, and
must add anything due from them, or him, or outsiders, to it and any-

1 C. 2. 55. 5. 2 Nov. 82. 11. 3 C. Th. 3. 13. 4; C. 5. 11. 6. 4 Inst. 2.

7. 2. The enactment referred to is probably the somewhat obscure and imperfect C. 8. 53.
35.5. 5 Post, § ccxxxix. 6 Ante, § xcix. 7 Not formally, post, § CLXXXIX,

and ante, § CXLJU. 8 See as to acquisition by fructuary and bonaefidei possessor,

ante, § xcix. 9 44. 6. 2. 10 21. 1. 51. 11 21. 2. 39. 1. See also 41. 3. 4.

17, and, on the general case of stipulatio etc. by representative, post, § CLXXXIV. 12 As to
persons in mancipio,see Desserteaux, Capitis Deminutio, 1. 284, who holds that the actions
were available against his holder. 13 For details as to this and the other actions,

Buckland, Slavery, 166 sqq. 14 15. 1. 30. pr.; 15. 3. 1. pr.; Inst. 4. 6. 10; G. 4. 69, 73,

and for his personal dolus, ante, § CXLIII. For slaves in the peculium of a slave (ricarii)
the actio de peculio was limited to peculium ricarii, 15. 1. 19. pr. 15 15. 1. 5. 4; h. t. 9. 3.

B. R. L. 34

530 AGENCY IN CONTRACT [CH.

thing he had fraudulently removed from the peculium1. But he could
not deduct for anything due to other creditors: the rule was, first come
first served2. It lay on any contractual or quasi-contractual liability3.
If the son or slave died or was freed or left ihefamilia, in any way, the
paterfamilias, if he still held the peculium, was liable for one year4. Any
holder of a slave with peculium, e.g. the man himself5, was liable, though
the debt might have been incurred when the man belonged to some one
else6. The de in rem verso clause was of little use in classical and later
law (except that it was perpetual though the slave was dead7), as money
spent on the master's affairs would ordinarily create a debt to the
peculium which came into account in the actio de peculio3. All this is
not agency, since the action lay even though there was no authority,
even if the negotium had been forbidden9, and there was a liability in
the actual contractor, natural in the case of a slave10, civil in the case of
a son, though he had a certain praetorian protection if he was emanci-
pated11. The true principle seems to be that one who provides the slave
with the means of obtaining credit ought to take the limited risk12.

(b) Actio tributoria. If a son or slave traded with the peculium or
part of it to the knowledge of the paterfamilias, the latter was liable so
far as that part of the peculium would go13, with no right to deduct for
debts due to him or members of the familia, the mode of estimation
being in other respects the same as in the last case14. The action itself
was the last stage of an elaborate process. Any creditor might call on
the master to divide the peculium concerned among the creditors, in-
cluding the master (vocatio in tributum15). This was a kind of bankruptcy
of the slave, the master being the administrator16, and it was this vocatio
in tributum which gave the action its name. This lay only if he acted
with dolus in the administration17. It had a certain delictal aspect and
was in fact penal to the extent that he must hand over what he would
have handed over apart from dolus18, and the fund may have lessened in
the meantime. But it was not treated as penal: Julian speaks of it as
essentially ad rem persequendam19 . It was perpetua even though the slave

1 15. 1. 7. 6; h. t. 9. 4; 15. 2. l.pr. 2 15. 1. 52. pr. 3 15. 1. 1. 2; P. 1. 4. 5.

Even on condictio furtiva, as this is quasi-contractual, 15. 1. 3. 12, and actio iudicali,eveii
though the original debt of the son was delictal, 15. 1. 3. 11. As to a few cases in which it
was barred, Buckland, loc. cit. 4 15. 2. 1. pr. ; difficulties as to what amounts to

retention of the peculium. 5 Disputes, Buckland, Slavery, 232. 6 15. 1. 47. 6.

7 15. 3. 1. 1. 8 On the suggestion that de in rem -verso lay only if the property had

been handed over with a view to such application, see Buckland, op. cit. 181 sqq. 9 15. 1.
29. 1. 10 15. 1. 50. 2. 11 14. 5. 2. pr.; Lenel, E.P. 269; ante, § L. 12 A fructuary
or b. f. possessor is liable de peculio etc. if the debt was within his field of acquisition,
15. 1. 2. 13 14. 4. 1. pr. 14 14. 4. 1. 2. 15 14. 4. 1. pr. Whether the vocatio

is the act of the creditor or of the praetor on demand is not clear. 16 See 14. 4. 6.

17 14. 4. 3: h. t. 7. 2; h. t. 12. 18 14. 4. 7. 2. 19 14. 4. 8.

xii] AGENCY IN CONTRACT 531

were dead1, but it lay against the heres only to the extent of his receipts2,
i.e. out of the property concerned. Only creditors of the slave could
claim, and it does not appear that they need have known of the master's
scientia or even existence3.

(c) Actio quod iussn. On a negotium by his authority (not mere
scientia) the paterfamilias was liable in solidum*, the authority being
revocable till the act was done5. This looks like representation, but it
does not necessarily rest on that idea, since it was confined to the family,
the legal unit, and the action did not exclude liability on the part of the
actual contractor. As the authority is an inducement to contract, it
would normally be communicated to the third party, but it cannot be
shewn that this was legally necessary6. It may be noted that this action
seems to be the least important of the group: it is treated with great
brevity7.

Gaius describes this system of remedies as available only for dealings
by slaves and filiifamilias. For women in manu and civil bondsmen he
tells a different story, puzzling by reason of the imperfection of the
text. On their contracts the paterfamilias might be sued, and if he did
not defend in solidum the goods which would have been the property
of the man or woman might be seized and sold8. This, we know, is the
lawr for contracts by an adrogatus before the adrogatio9, and the present
rule is no doubt for the analogous case. But neither a bondsman nor a
woman in manu who had been a filiafamilias could have had any
property and the text, probably corrupt, is amended in various ways10.
As to their contracts made while in the family we have no information11.

3. Outside the family there were further developments in commerce.

(a) Actio institoria. Where a man employed another, his slave or
servus alienus or freeman12, to manage a business undertaking, to be
institor, he was liable on the contracts connected with the business13.
The liability might be excluded by public notice, or express notice to
one about to contract14. The action was perpetua and lay both to and

i 14. 4. 7. 5; h. t. 8. 2 14. 4. 9. 2. 3 The contrary is sometimes held on general
principles of representation. 4 Inst. 4. 7. 1; P. 1. 4. 6. Ratification appears to be

enough, 15. 4. 1. 6. See however 15. 3. 5. 2. 5 15. 4. 1. 2. 6 Modern writers

frequently lay it down (e.g. Windscheid, Lehrb. § 482, n. 6; Karlowa, R.Rg. 2. 1165). This
is because they rest the liability on representation : communication is essential on con-
tinental notions of representation though not on ours. 7 As to the development
in classical law of a civil obligation (condictio) in this case, post, § ccxxx. 8 G. 4. 80.
9 Ante, § CXLI. 10 See, e.g., Krueger, Coll. libr. iuris anteiust. ad h. 1. and ante,
§ CXLI. 11 G. 3. 104 seems, but in a somewhat different connexion, to put them on
a level with slaves in this matter. Lenel (E.P. 267) makes the edict on such cases deal
only with those in "potestas," but his evidences are all from the Digest — which does not
speak of the obsolete cases of manus and civil bondage. 12 P. 2. 8. 1, 2. 13 Inst.
4. 7. 2; D. 14. 3. 1; P. 2. 8. 1. The restriction led to great subtleties of interpretation, see,
e.g., 14. 3. 5. 11 sqq. 14 14. 3. 11. 2, 5.

34—2

532 AGENCY IN CONTRACT [CH.

against heredes1. The third party must know that the contract was con-
nected with the business2, and it is widely held, though it does not
appear on the texts, that he must know of the principal's connexion
with the business. The basis of the action as stated by Paul and Ulpian,
i.e. that as we get the commoda we ought to bear the incommoda3, hardly
suggests this requirement.

(b) Actio exercitoria. If a principal (exercitor) set up a man, slave or
free, to manage a commercial ship (magister navis) he was liable in the
same way4, and, with some exceptions5, the principles are the same6.

These cases resembled agency in that they involved authority and
were outside the family. But they were not true agency. The principal
did not acquire rights under the contract, except, in late law, where
there was no other way of avoiding the loss in the institoria'' ', or by
special cognitio in the exercitoria8 ;. The actions would ordinarily have to
be assigned. And the institor and magister were liable9, which is incon-
sistent with true agency.

4. The furthest point reached as a general principle was in mandate,
already discussed10. The actio de in rem verso utilis, by which in some
cases, under Justinian, a third party with whom an unauthorised person
had dealt could sue the interested party to the extent of his profit11, had
nothing to do with agency.

In relation to these contracts by subordinates and agents a question
arises, difficult in itself and rendered almost unanswerable by the state
of the texts. The state of mind and knowledge of the parties is often
material to rights and liabilities, in case, e.g., of error, of redhibition for
defect, of dolus, of dealing in res litigiosae, and so forth. The question is:
whose state of mind is material, that of the principal or the actual con-
tracting party? The texts, which have certainly been in many cases
interpolated, tell a conflicting story. The point has recently been in-
vestigated by Schulz12, who concludes that in classical law, where the

114.3.15. 214.1.7.2. 3 14. 3. 1. pr.; P. 2. 8. 1. 4 14. 1. 1. pr.

5 Themagister might appoint a deputy, even against the will of the exercitor, whose contracts
would bind the latter in the same way, a rule less readily allowed in the case of institor
(14. 1. 1. 5). This rule makes against the conception of representation. Exercitores, if more
than one, were always liable in solidum (14. 1. 1. 25). Another text states a difference
where the exercitor, i.e. the principal, is alieni iuris, as compared with that of an institor
alieni iuris, but the cases are not parallel and it is difficult to see in what the difference
consists (14. 1. 1. 20). See also nn. 7 and 8. Paul tells us that contracts by "discipuli"
of an institor or magister bind him in solidum (P. 2. 8. 3). This is analogous to the actio
institoria itself. See 14. 1. 1. 2. Many difficulties might arise where the institor or magister
was a filius or slave of another paterfamilias and where the exercitor was such. See P.
2. 6. 1; D. 14. 3. 1; h. t. 11. 8; 14. 1. 5. 1, etc. 6 The same questions arise as to

knowledge of the principal by the third party, and see 14. 1. 7. 1, 2. 7 14. 3. 1-2.

8 14. 1. 1. 18. 9 14. 1. 1. 17; 14. 3. 7. 1. 10 Ante, § CLXXX. 11 See C. 4.

26. 7 and Von Tuhr, Actio de in rem verso, 293 sqq. 12 Z.S.S. 37 sqq.

xii] QUASI CONTRACT 533

representation was indirect, i.e. the contract did not directly bind or
entitle the principal, e.g. a contract by a mandatary, only the state of
mind of the mandatary was material, but where it was direct, as in case
of a stipulatio by a slave, that of the principal alone was material, except
where the slave was acting independently, there being however differ-
ences of opinion among the jurists as to the drawing of this distinction.
Sometimes the distinction is between contracts in respect of the peculium
and those domini nomine, i.e. on the master's account. Sometimes it is
between authorised and unauthorised. Sometimes it is between general
and special authorisation, but these various distinctions greatly overlap.
He holds that the compilers tend, but not consistently, to make the
state of mind of both material in all cases1.

CLXXXV. OBLIGATIO QUASI EX CONTRACTU. This is Justinian's
second head of obligatio, apparently derived from the "liber aureorum"
or "rerum cottidianarum" of Gains, but possibly interpolated in the text.
He selects a few cases among the numerous class of obligations covered
by the same conception, i.e. those having nothing delictal about them,
and not contracts, but analogous thereto. It seems impossible to find
any principle to which those he mentions can be reduced, or which,
admitting these, will exclude a number which he does not mention. The
cases he treats are:

NEGOTIORUM GESTIOZ. This maybe described as looking after another
man's affairs, without his authority (which would be mandate). The
primary action was negotiorum gestorum against the gestor, who had the
actio negotiorum gestorum contraria for reimbursement. They were bonae
fidei, but as the Edict promised a praetorian action there must at one
time have been an alternative formulation infactum3.

The service rendered might be of any kind, repair of a house, be-
coming surety, buying or selling stock in trade4, etc., but to entitle the
gestor to the actio contraria it must be shewn not only that the act was
a reasonable one, but that it was in the circumstances reasonable for the
gestor to do it, and not leave it to the person concerned5. It must also
have been done in the interest of the principal : if it was also in the interest
of the gestor he had the action only if he could have protected his own

1 The author perhaps hardly takes sufficient account of differences of opinion among
the jurists or of the possibility that the solutions applied in defence might not always be
the same as those in claim, or those in purely contractual actions the same as those in
essentially penal actions. But he seems to make out a strong case. 2 D. 3. 5 ; C. 2.

18. Partsch, "Negotiorum Gestio," Sitzungsb. der Heidelb. Ak. Phil. 4 (1913). 3 G. 4.
62. Lenel, E.P. 100. L. thinks (Z.S.S. 35. 210) the original formula infactum was confined
to the case of an absent principal. Partsch, op. cit. 10. P. also holds (op. cit. 4) that the
Edict was understood as giving the action both ways, the actio neg. gest. contraria being
post-edictal. 4 3. 5. 3. 2; h. t. 21; h. t. 29, etc. 5 E.g. absence, h. t. 2; Inst. 3. 27 1.

534 NEGOTIORUM GESTIO [CH.

interest without the other. Thus one of common owners who repaired
the house had not this action against his co-owner, but communi divi-
dundo1. It must have been useful when it was done, or have been
accepted as such by the principal2: in either case the fact that later
events destroyed its utility was immaterial3. On ratification the gestor
might treat it as mandate if he preferred, but it did not become mandate
ipso facto, the point of which is that it did not become an infaming action
and was not affected by the death of the principal4. It must not have
been prohibited by the principal5. It must not have been done donandi
animo6, or in execution of a pious duty7, or under mandate by, or legal
duty to, the principal8.

But the direct action lay in many cases in which the contraria did not,
e.g. where the act was forbidden9, or where it was not a reasonable act
of administration10, or where it was done for the purposes of the gestor,
P-, though an interpolated text gives the actio contraria even in this case,
^ to the extent of the principal's enrichment11. Mistake gave rise to several
questions. It was immaterial that the gestor was mistaken as to the
identity of the principal12. If it was the affair of the gestor, but he
thought it another's, neither had the action13. If it was another's, but
he thought it his own, he had no actio contraria, but if still in possession
of the thing he had a right of retention like any other bona fide possessor1*.
But this case may be affected by the fact that it was a building on the
land, bringing the rule of merger into play. In a case of another type
Africanus in one text15 gives the actio negotiorum gestorum to the person
really interested, where circumstances barred other remedies, and in
another a condictio to the extent of the enrichment16. This seems the
better view, gestio not entering into the matter at all.

The gestor must carry out what he undertook, and account for pro-
ceeds, his position not being affected by death of the principal17. He was
liable for culpa levis unless the affair was urgent, in which case he was
liable only for dolus18. The risks were not on him, unless the loss resulted

1 3. 5. 39; 10. 3. 6. 2. As to 3. 5. 30. 7; 10. 3. 19. 2, see Accarias, Precis, 2. 424. 2 3.
5. 8; h. t. 9. 1. 3 3. 5. 9. 1. 4 3. 5. 8. See Girard, Manuel, 637; Van Wetter,

Pand. 4. 304. It may concur with a mandate by a third party, 3. 5. 3. 11. Partscb,op.
cit. 14, holds that the Edict did not give the ordinary action in this case, but that there
was an actio utilis (3. 5. 20. 3; 3. 5. 27; 17. 1. 6. 1) and that later jurists ignored the point
(3. 5. 3. 11; h. t. 5. 6). 5 3. 5. 7. 3; 17. 1. 40. There had been disputes, C. 2. 18. 24.

6 3. 5. 43; 17. 1. 60. 1. 7 3. 5. 33; C. 2. 18. 5. 8 3. 5. 3. 10; 17. 1. 6. 1; C. 2.

18. 20. 9 See n. 5. 10 3. 5. 9. 1. 11 3. 5. 5. 5. 12 3. 5. 5. 1. 13 3.

5. 5. 6. 14 10. 3. 14. 1 ; 44. 4. 14. 15 3. 5. 48. Partsch, op. cit. 37, also cites 5.

3. 50. 1; 5. 4. 10; 11. 7. 32. pr.; 11. 7. 14. 11, as proving that the actio n. g. contraria lay
on such facts. But the last two are under another edict and the others deal .with carry-
ing out the wishes of a testator, and the language of some of them shews this as a deter-
mining factor. 16 12. 1. 23. 17 3. 5. 3. 7; h. t. 7. 1; h. t. 30. 2. 18 3. 5.
3. 9; P. 1. 4. 1; Inst. 3.27.1.

xn] COMMON OWNERSHIP 535

from his doing something the principal would not have done, in which
case he was liable for casus but might set off profit resulting from the
same administration1. The principal must take over liabilities duly
incurred and reimburse for "utiles impensae," though in the event they
may have come to no good2, the measure of damages being the benefit
at the time to the dominus rei, not the cost to the gestor3.

Tutor and Ward, Curator and Ward. The obligations in these quasi-
contractual relations have been considered in the law of persons4. In the
case of the tutor there were special remedies, but in that of the curator
the remedy was actio negotiorum gestorum5.

Heir and Legatee. The general nature of the obligation has already
been set forth6. According to Ulpian it had been disputed what degree
of care must be shewn, but he and Paul make the heres liable for culpa
levis7. Africanus lays down the same rule for legacy andfideicommissum,
with the corrective that if the person charged was getting nothing from
the hereditas he was liable only for dolus. As the text says8, this is
applying the rule of bonae fidei contracts, which is correct for fideicom-
missa, but seems more questionable for legacy, since in classical law the
personal remedy on legacy was stricti iuris, and the rules in ccmdictio
sine causa were different9. The obligation applied primarily to legacy
per damnationem, but so far as legatee per vindicationem could use the
personal action10, the same rule would apply to him. In the real action
the heres would be liable, as it seems, only for active interference with
legatee's rights.

CLXXXVI. COMMON OWNERSHIP. This is the relation where two or
more own a thing in common whether socii in the strict sense or not.
The duties were similar to those in societas, but less in scope. It might
arise in many ways, e.g. joint purchase, legacy or inheritance. The remedy
in the last case, i.e. the mode of enforcing the duties, primarily that of
dividing, was the iudicium familiae erciscundae: in all other cases it was
communi dividundo11, but so far as the present point is concerned, the
rules were in general the same. The action was a bonae fidei iudicium,
duplex, in the sense that its formula did not distinguish plaintiff and

13.5.10. 2 3. 5. 2;h. t. 9. 1;46. 7. 5. 6. 33.5.9.1. 4 Ante, §§ LV,

LXI. 5 Some texts make the remedy an actio n. g. utilis (C. 5. 37. 26. 1 ; C. 2.

18. 17; C. 5. 54. 2; C. 5. 51. 7). Others give the actio negotiorum gestorurn simply (26. 7.

5. 6; 27. 3. 13; 27. 3. 4. 3; C. 2. 30. 1; C. 4. 26. 1 interp.). The question which group
represents the classical law is answered both ways, e.g. recently by Lenel (Z.S.S. 35.
203 sqq.) in the sense that the description of the action as utilis is due to Justinian. This
seems on the evidence the better view (see however Partsch, op. cit. 66 sqq.). The reason
for the change is not very clear: Lenel holds that it was in order to differentiate this action
from the ordinary neg. gust. 6 Ante, §§ ex, cxvn, cxxn. 7 30. 47. 5; P. 3.

6. 9. 8 30. 108. 12. 9 Post, § CLXxxvn. 10 Ante, § cxxn. 11 D. 10.
3. As to the history of this action and its successive formulations, see post, § ccxxn.

536 COMMON OWNERSHIP [CH.

defendant: it was expressed to apply to all parties alike1, though, in
view of questions of proof, the claimant of the action was treated as
plaintiff2. We have already dealt with the peculiar function of the index,
that of adiudicatio, distribution of parts among the claimants, as a part
of the law of property3. In allotting, the index must follow the unanimous
wish of the parties, but if that failed he must divide fairly, any inequality
being adjusted by condemn ationes for equalising payments4. The action
need not cover all the property: a part might be divided without dis-
turbing the rest5, and it was possible for one or more of common owners
to claim division without affecting the community among the others6.

This division was the main, and at first, no doubt, the only, function
of the action, but as we know it, any question arising out of the rights
and duties of the parties as common owners might be brought into
account in the division7. Thus profits and expenses properly incurred
must be shared8, and any damage by one of them, due to culpa levis (in
concrete, at least in later law) must be allowed out of his share9. There
was no question of infamia. No co-owner might erect a construction on
the common property, without consent of all: the only way to get over
the difficulty was to divide10. The right of division was essential to the
relation, and an agreement never to divide was void11. But one not to
divide for a certain time was valid, if the court thought it advantageous
to common interests12, and it seems that the effect was not to allow
division with resulting liability for any loss to the others, but refusal of
division13. Apart from this there wras no liability for loss resulting from
division at a disadvantageous time, as in pro sociou. There was nothing
to prevent a co-owner from disposing of his share so that another would
take his place in the community15, or from pledging16 it or giving a
usufruct in it17. But he could not create a praedial servitude18. Apart
from this, his power of dealing with the property is the subject of con-
troversy on conflicting texts19. The relation was in no way affected by
the death of a party20.

1 Lenel, E.P. 204. 2 10. 3. 2. 1. 3 Ante, § xc. 4 10. 3. 3. 1 ; h. t. 6. 1 ;

h. t. 21; Inst. 4. 17. 4, 5. 5 10. 3. 13. Thus the action can be repeated, not sofamiliae

erciscundae. 10. 3. 4. 2; 10. 2. 20. 4. 6 10. 3. 8. pr. Exception, h. t. 19. 1. 7 10. 3.

3. pr. 8 10. 3. 4. 3; h. t. 11; h. t. 22. 9 10. 2. 25. 16; 10. 3. 14. 1, a much de-

bated text. See Berger, Entwicklungsgeschichte der Teilungsklage, 211, and review by
Fehr, Z.S.S. 33. 576 sqq. The usual view is that it was not till Justinian that the action
could be brought for these contributions alone, leaving the community undisturbed, but
see Fehr, loc. cit. 10 10. 3. 28. Perozzi, Mel. Girard, 2. 355, who rejects the view

that mere non-prohibition sufficed. 11 10. 3. 14. 2; C. 3. 37. 5. 12 10. 3. 14. 2.

13 Ib. 14 There is no fraternitas, but the index has a wide discretion. 15 10.
3. 6. 1; h. t. 14. 3; h. t. 24. 1. 16 10. 3. 6. 9; C. 3. 37. 2. 17 7. 1. 49.

18 8. 1. 2; 8. 3. 34. pr. 19 See Girard, Manuel, 640, n. 6. 20 10. 3. 4. 3; 17.

2. 65. 9.

xii]' CONDICTIO IN DEBIT I 537

The rights under the action applied only to matters accruing during
the community. It was not available for reimbursement of expenses
incurred before it began or after its end1, and we are told that if a
co-owner spent money, thinking he was sole owner, the principles of
bonae fidei possessio applied: he had a right of retention, but no right of
action, which here practically means that if another owner was the
plaintiff it would be allowed, but not where he himself was2. Where he
was mistaken as to the identity of the other owner, one text gives him
the action, the error being immaterial, while another gives him only an
actio utilis. But, as in negotiorum gestio, he had not the action if he did
the act for his own purposes3. There is a conflict also where the right
held in common was less than ownership, but the better view seems to
be that if it was usufruct, or any other "ius" in the strict sense, the
direct action lay, but a common pledge gave only the actio utilis*. As
it was essentially for division it could not lie where there was nothing
to divide5. It was not therefore available if the community had ceased,
from destruction of the res or any other cause, but an actio utilis lay for
expenses during the community6.

MONEY PAID BY MISTAKE. Condictio indebiti7. The principle was that
where a man made a payment in error, in discharge of an obligation
which did not in fact exist, to one who received in good faith, he could
recover by the condictio indebiti, a stricti iuris actio in personam. The
case was, we are told, analogous to a mutuum, except that the payment
made was in discharge, instead of creation, of an obligation. Thus it was
recoverable from a pupillus (or in classical law, a woman) only where a
mutuum would be8. But mutuum was always a transfer of fungibles,
while here the render may have been of any kind possible in any obliga-
tion9. Thus though the remedy was always condictio, it might be either
certae pecuniae, or triticaria or incerti.

There must have been no debt at the time of the payment. A debt
valid at civil law, but defeasible by exceptio peremptoria was no debt10.
Nor was a conditional debt so long as the condition was unsatisfied11.
But one ex die, even ex die incerto, was an existing debt, and irrecover-
able: it was only payment which was postponed12. And a naturalis
obiigatio always excluded condictio indebiti13. A debt due to X was an

1 10. 3. 4. 3; C. 3. 37. 3. 2 10. 3. 14. pr., 1. 3 10. 3. 6. 2; h. t. 29. 4 10.

3. 7, 8. 5 C. 3. 38. 9. 6 10. 3. 11. 7 D. 12. 6; C. 4. 5. 8 G. 3.

91; Inst. 3. 14. 1. 9 A security given may be recovered (12. 6. 31), and reimburse-

ment for service rendered (12. 6. 26. 12). 10 Vat. Fr. 266, for exceptions, where the

exceptio is of a penal character. See Accarias, Precis, 2. 436. 11 12. 6. 16. pr.

12 12. 6. 10; h. t. 16. 1; h. t. 17. As to a possible basis of these distinctions on that
suggested between debit um and obiigatio, see Cornil, Mel. Girard, 1. 205. But see ante,
§ CXLHI. 13 12. 6. 51; h. t. 38. 1.

538 COND1CTIO INDEBITI '[CH.

indebitum if paid to F, unless Y was solutionis causa adiectus, or in some
way authorised to receive it1. Payment of a debt due from a third
person was an indebiti solutio, unless it was paid in the name of the third
person, in which case the necessary error did not exist2. To pay one thing
when another was due was an indebiti solutio, unless it was by consent
as a datio in solutum3. If there was no real debt a datio in solutum was
indebiti solutio*. If, owing one of two things a debtor gave both, he
could condict one, and, after doubts, Justinian gave him the choice5.

There must have been a real and reasonable error. If the money was
paid with knowledge that it was not due, this was a gift6, even where
the payer intended to recover it. Though there is some doubt on the
texts it seems that in classical and later law it must have been an error
of fact, not law, except in the case of some specially protected persons7.
Where the payer was in doubt whether it was due or not the classical
rule seems to have been that he could recover by this action, unless he
paid on the understanding that he was to have it back, if it proved not
due — this, says Ulpian, was a negotium. Justinian decides that doubt is
to be on the same level as error8.

The receiver must himself be in good faith, otherwise his act was
furtum and the remedy condictio furtiva9, with the practical effect that
if it was a specific thing the risk in condictio indebiti was with the payer10,
in the other case with the receiver :fur semper in mora est. The restitution
must be with fructus, partus and accessories11, but expenses might be
deducted12, rules which created certain difficulties of procedure13.
Interest could not be claimed14.

The question arises whether the action was for enrichment or for
what was handed over. Where it was money, what was paid could be
recovered by condictio certae pecuniae, whatever had happened to it15.
Where it was a specific thing the receiver must return (apart from dolus
or culpa) only his enrichment, allowing for expenses16. But where what
was paid was fungibles other than money (condictio triticaria) the matter

1 12. 6. 22. pr.; C. 4. 5. 8. 2 12. 6. 44. 3 12. 6. 19. 3. Where the payment

was with another's property, by mistake, one text allows condictio of the possession,
another gives the payer no right, even where there was no debt. 12. 6. 15. 1 ; h. t. 19. 2.
Difficult cases, h. t. 26. 4-6; h. 1. 13. 4 Arg. 12. 6. 23. 2; h. t. 26. 4. 5 C. 4. 5.

10; post, § cxcin. They are at payer's risk. 6 12. 6. 50; h. t. 1; 22. 6. 6; 22. 6. 9. 2;

50. 17. 53. 7 22. 6. 9. pr.; C. 1. 18. 6; C. 1. 18. 10; C. 6. 50. 9; C. 4. 5. 5. Women

and children and probably soldiers and rustics ; 22. 6. 1 ; h. t. 9. pr. and 3. Error of law
seems to have been allowed where it was a point so difficult that it would not have been
easy to get safe advice (22. 6. 9. 3). This would usually be "subsumption of facts under
the rule" as Savigny puts it (Syst. 3, Beil. viii. v), but it is not clear why, as he suggests,
it should be called fact in this case. 8 12. 6. 2. pr.; C. 4. 5. 11. 9 13. 1. 18,

perhaps alternative. 10 See n. 16. 11 12. 6. 15. pr. 12 12. 6. 26. 12.

13 Girard, Manuel, 631, and for a similar difficulty, ante, § CLXH. 14. C. 4. 5. 1.

15 Von Tuhr, Aus Rom. und Burg. R., 301, on 46. 3. 66. 16 12. 6. 65. 5, 8.

xnj CONDICTIO INDEBITI 539

is not quite clear. In view of the analogy with mutuum, and of the
language of some texts1, the better view seems to be that the quantitas
had to be restored, irrespective of its fate, which hardly seems to be
negatived by a text which says that, corn being so delivered and con-
sumed, the pretium must be restored2.

The plaintiff must prove the payment and that the debt was not due3
(except that if the receiver fraudulently denied the payment and this
was proved, he must then prove that it was due, and the burden was in
general on the payee, if the payer was a minor, a soldier, a woman, or a
rustic4). It is a debated point whether having proved that it was not
due he had still to prove that he thought it was due, or whether this
was presumed, the creditor being allowed to prove that the payment
was made in knowledge of the facts. The better view seems to be that he
must prove the error, i.e. facts to account for the error. Unless these
were proved it is not easy to see how the rule that the error must be
reasonable was to be applied5.

There remains an important exception. If the debt was one of those
denial of which involved double liability, payment made in error could
not be recovered as indebitum*. Such \vere claims under the I. Aquilia,
judgment debt7, certa legata per damnationem in classical law, and any
legacy in favour of certain beneficiaries under Justinian8. The rule is
clear: its reason is obscure. It has been suggested that otherwise it
would be possible to dispute the debt without risking the double penalty.
The debt would be paid and condictio indebiti then brought. If the payer
lost he would be no worse off. But this was to take on himself the burden
of proof which would otherwise be on the creditor. It would require
proof of the facts which shewed that it was not due, and also proof that
he did not know these facts. And the case supposed is one of doubt,
and doubt was not enough in classical law9. A more probable suggestion
is that it was in the nature of a compromise. By paying he avoided the
risk involved in denial, and a compromise carried out ought not to be
undone. But it was an odd compromise, under which he paid all that
was claimed. In strictness there could be no transactio in such a
case10.

CLXXXVII. This completes the list of quasi-contractual obligations

1 12. 6. 7; 19. 5. 25; C. 4. 51. 6. 2 12. 6. 65. 6. See, however, Girard, loc. cit.

3 22. 3. 25. pr. 4 22. 3. 25. pr., 1. But the text is mainly due to Justinian.

5 See, however, Girard, Manuel, 631, who remarks that proof that it is not due ordinarily
involves proof of the facts accounting for the error. 6 C. 4. 5. 4; Inst. 3. 27. 7.

7 5. 1. 74. 2. 8 G. 4. 9; P. 1. 19. 1 ; Inst. 4. 6. 19. 9 Even though, as is probable,

the rule originated before distinction was drawn between fact and law in the matter, the
fact that doubt is not error remains. 10 P. 1. 19. 2. See hereon, Bertolini, Transazione,

364.

540 ACTIO FUNERARIA [en.

as given by Justinian, but there were many others, more or less analogous,
some of which need mention. Analogous to negotiorum gestio are curatio,
already dealt with, the actio funeraria, the creditor missus in posses-
sionem, and the case of protutela.

The actio funeraria is an actio infactum perpetua1, akin to negotiorum
gestorum,byvfhich one who had undertaken funeral arrangements without
legal liability could recover his expenses from the person actually liable2,
not exceeding what was reasonable in the given case3. The rules shew
that this was to provide for absence or negligence of the heres*. The cost
might not be excessive (since the heres paid the bill) even though the
deceased had wished the excess5. Conversely the action did not lie if the
thing was done so meanly as to be on the facts an insult to the memory
of the deceased6. It did not lie if the service was done out of piety
without thought of repayment7, or where there was no reason for inter-
vention8, or, in strictness, to one who thought he was heres and so was not
acting for another9. Prohibition by the heres did not necessarily bar the
claim, for he might be going to neglect the matter, and, e.g., a descendant
not heres might reasonably think it ought to be done at the expense of
the estate and so do it, not donandi ammo10. The claim was a privileged
debt, i.e. payable in preference to other unsecured debts, whether the
claim was on the estate of the deceased or on that of the person liable11.

Missus in possessionem. There were actions in factum to and against
a creditor missus in possessionem for his duly incurred expenses and for
profits received by him, and damage by his dolus12. There were many
other cases of missio in possessionem13, each with its own rules. In those
cases in which the missus was not the interested party, the actio nego-
tiorum gestorum and its actio contraria lay.

Analogous, but somewhat remotely, to common ownership was the
case of disputed boundaries. The action, finium regundorum, was of the
same double character, with an adiudicatio, but the quasi-contractual
points could not so readily arise. Still, where the judgment transferred
part from one to the other, the loser was liable for dolus affecting the
value of that part and for its fruits from litis contestatiou. Till then, if in
good faith, he was in the position of a bonafide possessor15.

Actio protutelae16. This action lay against one who had acted as tutor
without due appointment. The obligations were much the same as those

1 11. 7. 31. 2; Lenel, E.P. 224. 2 11. 7. 12. 2. Payable out of the estate, h. t. 1;

h. t. 14. 1. 3 11. 7. 12. 5; h.t. 14. 6. 4 tf.gr. 11. 7. 14. 13. 511.7.14.6.

6 11. 7. 14. 10. 7 11. 7. 14. 7. 8 Arg. 11. 7. 14. 13. 9 11. 7. 14. 11,

"ex causa"; h. t. 32, "utilia." Possibly the concession is Byzantine. 10 11. 7. 14.
13, perhaps due to Justinian, Beseler, Beitrdge, 1. 65. 11 42. 5. 17. pr. 12 42. 5.
9. pr. Heres of missus liable only to extent of profit, if it rested on dolus, 42. 5. 9. 7, 8.
13 Post, § CCXLV. 14 10. 1. 4. 1, 2. 15 76. 16 D. 27. 5; C. 5. 45.

xn] CONDICTIO SINE CAUSA 541

of an actual tutor. Accounts were rendered in the same way1. The same
degree of care must be shewn2. Interest was due3. The Digest expressly
declares the action to be edictal. Doubts were expressed by Pernice as
to the genuineness of this ascription4, and it has recently been main-
tained that the action is a Byzantine invention, the case being essentially
one of negotiorum gestio in classical law5.

More important are the cases analogous to condictio indebiti. That
case was merely an instance, perhaps the most important, of the applica-
tion of the principle that a man was not to enrich himself at the cost of
another. It cannot be said that there was any such general rule of law,
but many cases were provided for by giving a condictio called condictio
sine causa, using that name in its widest, perhaps the only classical,
sense6. The chief cases were:

Condictio ob rem dati or ob causam dati7, called under Justinian,
condictio causa data causa non secutas. It had, as its main application, the
case which ultimately became the commonest type of innominate con-
tract, where a res was handed over for some return to be made, and
that did not follow9. It had other applications, e.g. money given as dos
where the marriage did not follow10. The risk in what was handed over
was with the claimant11. If the counter render became impossible with-
out fault of the intended receiver, the logical view was that the res
could be recovered, but some texts express the doctrine, associating the
action with the notion of contract, rather than with that of unjust en-
richment, that the casus released the receiver from his duty, so that the
res could not be recovered12.

Condictio ob turpem causam, ob iniustam causam13. These actions were
available where money had been received for an immoral or illegal pur-

i C. 5. 45. 1. 2 27. 5. 4. 3 27. 5. 1. 8. 4 Z.S.S. 19. 163. 5 Peters,

Z.S.S. 32. 263 sqq. ; Partsch, Negotiorum Gestio, 62 sqq., who makes it n. g. utilis. The
name prolutelae is no doubt a late oriental coinage, but the texts suggest that it was in
classical law a special action, designed primarily for the case in which it was doubtful if
the gerens was tutor or not, promised, not in the edict on negotiorum gestio, but in the
edict on tutela, and called actio negotiorum gestorum pro tutors, (P. 1. 4. 8). There seems no
sufficient ground for thinking, with Partsch, that this name is interpolated. Any counter-
claim of the gerens was enforced by actio n. g. contraria (27. 5. 5) as was in all probability
any such claim by a tutor (Partsch, op. cit. 47; ante, § LIX). 6 Even this name is

not certainly classical, though it probably is. 7 C. 4. 6. In 12. 6. 52 Pomponius

distinguishes "ob causam" past and "06 rem" future, and Paul, in 12. 6. 65. 2, 4, makes
the same distinction. See h. t. 65. 3 and 12. 4. 1. 1, 2. 8 12. 4. rubr. See C. 4. 6. 5, 6,

where it is not treated as the name of the action. The grammatical construction of tin-
name is much disputed. 9 19. 5. 5. 1. 10 C. 4. 6. 1. Condictio for recovery of
donatio mortis causa is placed by Justinian under this rubric, 12. 4. 12. 11 Arg. 12.
6. 65. 4, etc. 12 12. 4. 3. 3-5. pr., 5. 4, 16; C. 4. 6. 10. Some of these deal with
payment in error; others have been altered by Justinian. See, however, Vangerow, Lehrb.
3, § 591. 13 In later law "turpis causa" seems to be purpose, "iniusla causa"
dishonest acquisition.

542 CONDICTIO SINE CAUSA [CH.

pose or by some illegal or immoral action, the two cases being on the
same footing. If the turpitude was on the side of the dans or of both,
as in the case of a thief who gave money to prevent the giving of in-
formation1, the money was irrecoverable, but it could be recovered
where the receiver alone was a wrongdoer, e.g. where money was paid
under a promise induced by "vis2," or to prevent a crime3, or to secure
return of what ought to be returned without it4. Here it could be re-
covered whether the event in view of which it was given followed or
not5. The risk was with the turpis persona*.

Condictio furtiva7. This was quasi-contractual, since the heres was
liable8 and the action lay de peculio on theft by a slave9. The risk was
on the thief and equally on his heres10. There was an analogous action, the
actio rerum amotarum, available where one party to a marriage had taken
property of the other, the notion of theft being excluded in such a case11.

Condictio sine causa. This name is applied by Justinian to a group
of cases, not all covered by the foregoing, in which a remedy was given for
causeless enrichment12. There was no general principle: the cases men-
tioned in the title in the Digest are those of promise without real causa,
or animus donandi13, of compensation paid by afullo for lost goods which
the owner had subsequently recovered14, of money given for dos where the
marriage did not follow15. The rules as to risk were no doubt as in con-
dictio indebiti.

Condictio ex lege. This action, which has a title in the Digest16, seems
to mean no more than the only text in the title says, that where a lex
created an obligation and gave no special remedy, this condictio lay: it
overlaps the previous cases, and is probably Byzantine.

Condictio ex poenitentia. This too seems to be a creation of Byzantine
law. In the system offiducia, if one who had made afiducia cum amico
for any purpose changed his mind before it was carried out, he could
recover the res by actio fiduciae17. When fiducia, disappeared, this was

1 12. 5. 3; h. t. 4. 1; C. 4. 7. 5. 2 12. 5. 6; h. t. 7. 3 12. 5. 2. pr. 4 12. 5.
2. 1 ; h. t. 9. pr. ; C. 4. 7. 6; h. t. 7. 5 12. 5. 5; C. 4. 7. 4, without interest. 6 C. 4. 7. 7.
7 See post, § cxcvni, and Monro, defurtis, App. n. The line between this exceptional case
where ownership has not passed, and c. ex iniusta causa, where it has, is somewhat blurred
in the Digest. See Pfliiger, Z.S.8. 32. 167 sqq. 8 13. 1. 5; h. t. 8. pr. 9 13.

1. 4; h. t. 19. 10 13. 1. 7. 2. 11 Post, § cxcvm. 12 D. 12. 7; C. 4. 9.

13 12. 7. 1. 2. 14 12. 7. 2. 15 12. 7. 5. Other cases are mentioned, 7. 5. 5. 1;

19. 1. 11. 6; Inst. 2. 8. 2; C. 4. 9. 2. Koschembar-Lyskowski, Condictio. sets out the various
applications of the action including those here given and others. In the majority of them
the case is one of what lias become or been shewn to be an indebitum after the event, e.g.
those in the text above, payment of one alternative without knowledge of right of choice
(12. 6. 32. 3), paying without making the Falcidian deduction (35. 3. 1. 9), payment of
legacy, the hereditas being afterwards evicted (12. 6. 3), etc. There are of course other types,
e.g. where condictio is given in supplement of what had been a mere right of retention.
16 13. 2. 17 See ante, § CLI.

xii] ACTIO AD EXHIBENDUM 543

replaced by a condictio. But the field of fiducia cum amico was very
narrow in later law. The only certain case is that of a slave transferred
to be freed, and even here there was not always a fiducia. The Digest
gives the condictio ex poenitentia in all such cases and in transactions
indirectly aiming at the same thing, e.g. gift of money to buy and free
a slave, though the texts are not quite consistent1. It was given in
another, unconnected, case, where a man had undertaken a journey for
reward paid beforehand : the text says there was a locus poenitentiae and
implies that there was one in all such cases, i.e. in all innominate con-
tracts2 (for there is no fiducia here). The general proposition is certainly
not true: there is no reason to suppose any general theory of condictio ex
poenitentia*.

It should be added that in the course of the second century the
praetorian obligations enforced by the actio quod iussu, institoria and
exercitoria appear to have been adopted into the civil law in the sense
that a condictio was given as an alternative to these remedies, at least
where the actual contracting party was a member of the family4. In
strictness this is a liability ex contractu, but it is not clear that it was so
thought of: the point of view may well be an independent one. A man
who sets his subordinate in the family in motion must accept the con-
sequences. On this view it may be called quasi-contractual.

There remain a group of cases which can hardly be called analogous
to those stated in the Institutes. Among these are:

Actio ad exhibendum. This was a proceeding calling for production
preparatory to another action. It was often essential to a right of action
that the other party be in possession of the subject of it, notably in rei
vindicatio, to which this preliminary was primarily applicable5. But it
was not confined to this6. It might be with a view to any real action,
including hypothecaria'' ', interdicts8, vindicatio in libertatem9, actio
furti10, actio noxalis11, accusation of a slave for crime12, examination of
a slave by torture13, and even in cases in which no litigation was directly
in view, e.g. to facilitate the exercise of an option in legatum optionis1*.
Indeed it seems that any real economic interest, not otherwise protected,
and not exceeding legal rights, would entitle to this action15. But
further action was always contemplated in the long run16. It was

1 See Buckland, Slavery, 632 sqq. 2 12. 4. 5. pr. 3 See Gradenwitz, In-

terpolationen, 146 sqq. 4 See Mitteis, Prr. 1. 227 (citing the principal texts). Von

Mayr, Condictio, 276. As to the so-called condictio generates, post, § ccxxx. 5 10. 4. 1.
As to the formula in the actio ad exhibendum, Lenel, Z.S.S. 37. 116 sqq. 6 10. 4. 3. 1,
l'multae sunt causae." 7 10. 4. 3. 3. 8 10. 4. 3. 5. 9 10. 4. 12. pr.

10 10. 4. 12. 2. 11 10. 4. 3. 7. 12 C. 3. 42. 2. 13 10. 4. 20. 14 10.

4. 3. 6; h. t. 10. 15 10. 4. 19. Cp. h. t. 5. 3-5; h. t. 18. H. t. 3. 9, in which the

right is stated very widely, is no doubt due to Justinian. Beseler, Beitrdge, 1. 1, 2. 128,
maintains that in classical law it was a preliminary only to real action. 16 10. 4. 3. 11.

544 ACTIO AD EXHIBENDUM [en.

available against any holder who had the power of producing, whether
possessor or mere detentor1, and anyone who had dolo malo ceased to
possess, e.g. by handing it to another2, or by changing its character, by
melting it down3. Where the claimant had an inter esse both at litis
contestatio and at judgment4, holding by the defendant at time of
judgment sufficed, though it began after litis contestatio, and con-
versely, if it was bona fide lost before judgment, the defendant
was entitled to absolutio5. It was not available to or against a
heres as such, but he might of course be liable or entitled on his own
account6.

The obligatio must be called quasi-contractual, for there need have
been no interference with right, and the plaintiff had not to prove that
he was really owner. In fact, except in case of dolose abandonment of
possession, which is not a primitive part of the scheme of the action, the
obligation arose only on litis contestatio, much as in interdicts, a point
which suggests a praetorian obligation. But as we know it the action
is civil7. It is supposed to be of great antiquity. It was in personarn8
and the formula contained an arbitrium clause9.

The obligation was to produce, and this was satisfied by production,
with the accessories10, even in a damaged condition, though, if the
damage was wilful or negligent, and the plaintiff proved to be
entitled, there might be the ordinary remedies11. If, though technically
in possession, the defendant was at the moment unable to produce,
e.g. it was a slave, in fuga, it was enough that he gave security
for production when it became possible12. But the production must be
"m eadem causa." If the holder had acquired the thing by usucapio
since litis contestatio in the actio ad exhibendum, he would not be entitled
to absolutio unless he was prepared to accept a rei vindicatio in which
the intentio was dated back to the litis contestatio in the actio ad exhi-
bendum (dies repetita)13, and similarly, if delay in production had caused
loss of a right, e.g. it was now too late to exercise an option14, or for the
slave whose production was claimed to enter on a hereditas15, the
defendant must make compensation.

Aquae pluviae arcendae16. There was an old civil law action for the
case in which work done on ^4's land was likely to cause damage by flow
of water over .B's, not superseded by the probably more effective remedy

1 10. 4. 3. 15-5. 2 10. 4. 5. 2; h. t. 9. 1; h. t. 14. 3 10. 4. 9. 3; h. t. 12.

3, but not where the dolus was his slave's without his privity. 4 10. 4. 7. 7.

5 10. 4. 7. 4, 5. 6 10. 4. 8; h. t. 12. 6. 7 19. 5. 16. 1. 8 10. 4. 3. 3.

9 Inst. 4. 6. 31. 10 10. 4. 9. 7, "causa" 11 10. 4. 17; C. 3. 42. 7. Sabinus

seems to have held that damage could come into account in ad exhibendum, 10. 4. 9. 3.
12 10. 4. 5. 6. 13 10. 4. 9. 6. As to did repetitio, see post, § CCXLI. 14 10. 4. 10.
15 10. 4. 11. pr. 16 Leist, Gluck's Erlduteruruj, Serie der B. 39, 40. 3.

xn] INTEREST 545

of operis novi nuntiatio1. The owner of the land was the person liable2.
The work must be not reasonably incident to cultivation of the land3,
and must not be so old that no one could say who did it, or whether
it was done intentionally or not4. It might be neglect, where for instance
there was an established water-course, and the owner neglected to repair
a dyke destroyed by a storm5. If the work was done by a colonus or
procurator without the owner's privity, this action did not lie unless the
owner obstructed the aggrieved party in putting it right6. The action
was barred by even tacit acquiescence7. The action was to have the
matter put right, and for compensation for damage since litis contestatio8.
It was noxal, but lay against the heres9.

As it seems impossible to find any positive basis for the classification,
a large number of other obligations might have found their place here.
Such are the obligations between patron and freedman10, the obligation
to give a do*11, and the countless edictal obligations. Many of these were
negative, e.g. most of those enforced by interdict. But there were many
others12.

CLXXXVIII. We have now to consider a number of incidental rules
of obligation, applicable mainly to the cases of contract and quasi-
contract.

INTEREST. The rules as to amount of interest have been discussed13,
and we have only to state the cases in which it was due. It might be
due in any transaction by express agreement14, a separate contract,
ordinarily stipulation5. But pact sufficed in nauticum fenus16, in loans
by cities17, in later classical law in loans of fungibles other than money18,
and, under Justinian, in loans by bankers19. Further, in any mutuum, a
pact for interest created an obligatio naturalis20. Where interest was due
under these rules in a separate contract, the fact that from any cause
the debt had ceased to be recoverable would not necessarily bar the
claim for interest already due, except that none was due if the principal

1 39. 2; post, § CCXLVI. For past damage the remedy seems to be "quod vi aut clam,"
39. 3. 1. 1; h. t. 14. 2, 3. 2 39. 3. 3. 3. In later law actio utilis against fructuary, h. t.
22. 2; cp. 3. 4. 3 39. 3. 1. 3; h. t. 1. 6, 8. 4 39. 3. 2. 8. 5 39. 3. 1. 22;

h. t. 2. 4, 5. 6 ''Quod vi aut clam" against the actual doer, 39. 3. 4. 2; h. t. 5.

7 39. 3. 19. 8 39. 3. 6. 6. 9 39. 3. 6. 7. No doubt thought of as delictal in

early law. See Girard, Textes, 17. The remedy overlaps "damni infecli" (post, § CCXLV) and
" operis novi nuntiatio " (post, § CCXLVI). 10 Ante, § xxxn. 11 Ante, § XL.

12 The restitutory interdicts require a positive act: some presuppose what is substantially
a delict, but not all ; see post, § ccxLVin. But the obligations to give guarantees against
possible damage of various kinds (operis novi nuntiatio, post, § CCXLVI, damni infecti,
post, § CCXLV, etc.) might be properly placed under the present head, and the same may
be said of the actio metus (post, § ccm), and those on fraud on patron's rights (ib.) in the
cases in which the defendant is no party to the wrong. 13 Ante, § CLXH. 14 19.

5. 24. 15 Ib.; P. 2. 14. 1. It might be a separate clause in the same stipulatio. 16 '2'2.
2. 7. 17 22. 1. 30. 18 C. 4. 32. 11. 19 Nov. 136. 4. 20 C. 4. 32. 3; post, § CLXXXIX.

B. R. L. 35

546 MORA [CH.

debt was void ab initio, and, under Justinian, if a debt was time-barred,
a claim for interest was barred too1. Apart from agreement interest
was due by law in certain transactions, e.g. in sale, from the delivery of
the goods2, in debts to minors3 and to the Fiscus*, in some cases of dos5,
and, under Justinian, in some charitable gifts6. A socius was entitled to
interest on his money applied to firm purposes, and was conversely liable
if he used money of the firm for his own purposes7. A mandatary or
negotiorum gestor or tutor could claim interest for advances, and conversely
was liable for interest on money he held and neglected to invest, or
used8, and, as it seems, for money he ought to have got in, though this
may be late law9. Finally, interest was due from mora in all bonae fidei
transactions, though it ceased to run if the mora was purged by tender
of what was due10. A similar rule applied in claims for fideicommissa and
some forms of legacy; under Justinian, all forms11.

Where the liability was not based on agreement, interest was recover-
able only in the principal action, so that if payment was accepted without
interest, or the debt was time-barred, the right to interest was completely
lost12.

MORA . This was failure to discharge a legal duty on demand made at
a proper time and place. This is sometimes called mora ex persona, as
distinct from mora ex re, where "dies interpellat pro homine." But this
latter expression is unwarranted. There was no mora ex re — in some
cases, some of the effects of mora were produced where there was, in
strictness, no mora, e.g. liability to interest on price from delivery of
goods sold. The expression is suggested by a text which says that where
there is no one from whom the demand can be made, there is mora in re13.
But this case and that of a defendant who holds a thing by theft or
similar delict, who is said to be always in mora1*, seem to have been the
only cases in which demand was not necessary.

The delay must be wilful and wrongful: there was no mora if the
debtor was unable, through no fault of his own, to be at the place15, or
if he had reasonable grounds for doubting that the debt was due, pro-
vided, in this case, he was ready to litigate at once16. Mora or no mora
was a question of fact rather than law: the index must decide it on all
the facts17. The principal effects of mora debitoris were these:

1. The thing was at his risk. This was modified, at least in later law,
to the extent that he was not liable unless the destruction involved a

1 12. 6. 26; 22. 1. 7; C. 4. 32. 26. pr. 2 19. 1. 13. 20. 3 Arg. 40. 5. 26. 1.

422.1.17.5. 5 C. 5. 12.31. 6 C. 1.3. 45. 4. 7 Ante, § CLXXVII. 83.5.

18. 4; h. t. 37; 26. 7. 7. 8. 9 26. 7. 15. 10 22. 1. 1. pr. At local rates, post,

§ ccxxix. 11 G. 2. 280; D. 30. 39. 1. 12 19. 1. 49. 1. 13 22. 1. 23. 1; 40. 5.

26. 1. 14 13. 1. 8. 1. 15 12. 1. 5; 16. 3. 1. 22; 19. 1. 3. 9. 16 22. 1. 21;

h. t. 24; 45. 1. 91. 3. 17 22. 1. 32. pr.

xn] MORA 547

loss to the creditor which would not have occurred if there had been no
mora1, not, e.g., for an accident which would have happened equally if
the res had been handed over, unless indeed the creditor could shew
that, if it had been delivered, he would have sold it, so that the loss
would not have fallen on him2. The debtor in bad faith was liable for
the highest value since the mora; it does not seem that this applied
elsewhere3. And there was of course no liability if the loss was caused
by the imputable fault of the other party4.

2. He was responsible, but only in bonae fidei transactions5, for fruits
the creditor would have received6, and for accessories.

3. He must pay interest in the case of money and other fungibles,
in the same case, at local rates, not exceeding the legal maximum7.

The creditor might be in mora, where he had not accepted a tender
of performance duly made by the debtor, at a proper time and place,
not a mere expression of willingness to perform, which might or might
not be realisable8. The mora would result from refusal, or absence at
the agreed time and place9, the fact, in the case of absence, being notified
in court by the debtor10. Mora of the creditor, like that of debtor, re-
quired fault. If refusal was due to reasonable doubt of the sufficiency
of the tender, and he was prepared to litigate at once, or if his absence
was not due to his act or fault he was not in morau. The chief effects of
his mora were these:

1. The debtor was liable only for dolus12, even where liable for culpa
before.

2. Thus the res was at the risk of the creditor, apart from dolus of
debtor13.

3. The creditor must pay any cost involved in care of the resu.

4. Interest running ceased to run if the money was officially de-
posited in custody of the court, but not otherwise, as the debtor still had
the use of it15.

Mora was said to be purged, i.e. its consequences no longer operated
and the original state of liability was restored, for the future, without
prejudice to any rights of interest, etc., already accrued, if the party

1 4. 2. 14. 11; 10. 4. 12. 4; 16. 3. 14. 1. 2 6. 1. 15. 3. 3 13. 1. 8. 1; 13. 3. 4.

4 4. 2. 12. pr. ; Inst. 4. 17. 2. Even for such as would have been due to special activity,
if the creditor usually shewed this. 5 And in fideicommissa and some legacies — all

under Justinian. 30. 39. 1. 6 22. 1. 3. 7 Ante, § CLxn. 8 46. 3. 39; h. t. 72. pr.;
C. 8. 42. 9. 9 C. 4. 32. 6. 10 Ib. 11 13. 5. 17; 46. 3. 72. pr.; C. 8. 27. 5.

12 18. 6. 5. 13 17. 1. 37; 18. 6. 1. 3; 33. 6. 8. 14 18. 6. 1. 3. 15 26. 7.

28; 22 1. 7; 22. 1. 1. 3; C. 4. 32. 19. Stated only of money, but no doubt applying mutati*
mutandis to other fungibles. But there is a rule in sale of specific things that if the creditor
refuses them, they are at his risk and the debtor, after notice, may throw them away (18.
6. 1. 3, 4, wine; h. t. 13, furniture). But the text shews that it is thought severe, and it
is denied in legacy of wine (33. 6. 8). Probably it must not be in any way generalised.

35—2

548 OBL1GATIO NATURALIS [CH.

entitled renounced his right under the mora1, or the debtor made the
tender he ought to have made, in reasonable time and place2, or the
defaulting creditor in the same way presented himself to accept it3, or
the debt was novated4.

CLXXXIX. OBLIGATIO NATURALIS. Hitherto we have dealt only
with civil and praetorian obligation. But at the beginning of the Empire
there was a new development. Any obligation contracted in accord with
reason, though not in accord with accepted forms and requirements,
might be given a modified validity. Not all such cases were so dealt
writh but there was a group, not numerous, and chosen, as it seems,
rather at hazard, to which the conception of obligatio naturalis was
applied. No action lay on them, but they could be made effective in
other ways, not all to the same extent. Indeed the only rule clearly
common to them all was that payment made could not be recovered:
a natural obligation always excluded condictio indebiti5.

The whole conception is later than Labeo, but perhaps not much
later6, and it is generally held that its first application was recognition
of an obligatio naturalis of a slave on his contract7. The chief cases were8:

(a) Negotia by a slave with his master or third persons. In general
there was no question of a right in the former slave even after freedom9:
it is only from the point of view of liability that the question arose,
except that his natural right against his master survived if he took his
peculium,10, but only to the extent of barring condictio indebiti. With
these restrictions it arose, broadly speaking, on any transaction of the
slave which would have been a valid contract if he had been free. Besides
excluding condictio indebiti (solutum non repeti) it might be a basis for
pledge, fideiussio or other surety, and perhaps novation11, and, if on a
verbal contract, it might be discharged by acceptilatio12. It does not seem
that a debtor to him could use it as a set-off, and it is doubtful whether
judgment, as apart from actual satisfaction, in an actio de peculio, had
any effect on the liabilh*y13.

(b) Transactions between pater and filiusfamilias or members of the
same family. So long as the filiusfamilias was in the family the rules of
peculium applied, but on release, if he took the peculium, he took with
it any claim he had against the father, but only to the extent of solutum

\ 2. 14. 54. 2 18. 6. 18. Here both have been in mora, 3 76. 4 13. 1. 17.
5 46. 1. 16. 4. 6 It is not clear that Javolenus (35. 1. 40. 3) and Seneca (de ben.

6. 4. 7) cited by Girard, Manuel, 652, contemplate any legal liability at all, but it is clear
in Neratius (12. 6. 41). See also Julian in 46. 1. 16. 4, etc. 7 Pernice, Labeo, 1.

150 sqq. 8 The cases are sometimes classified (Savigny, Oblig. § 9), but such a classi-

fication throws no light on the rules. 9 2. 14. 7. 18; 50. 17. 146. 10 12. 6. 64;

apparently only to exclude condictio indebiti. 11 12. 6. 13. pr.; 44. 5. 1. 4; 46. 1. 35.

12 46. 4. 8. 4. 13 15. 1. 50. 2; 44. 2. 21. 4.

xii] OBLIGATIO NATURALIS 549

non repeti1. Where the liability was the other way no doubt the same
rule applied as in the case of a slave. Where he contracted with an
extraneus the obligatio was civilis and has already been considered2.

(c) Nudum pactum. It is now generally held that a nude pact did
not create a natural obligation3, except a pact for interest, where there
was no condictio indebiti*, and a hypothec was good5. We know of no
other results6.

(d) Sc. Macedonianum. Action was barred on a loan to afiliusfamilias,
but there was a natural obligation. Payment could not be recovered7,
and there might be novatio, after he was sui iuris8. Fideiussio and
hypothec seem not to have been void, but to have themselves created
only a natural obligation9. It could not be used as set off10.

(e) Pupilli without auctoritas who had not profited. The texts
conflict, but a natural obligation seems to have been admitted in later
law; its extent is doubtful. It could not be used as set off11.

(/) Minors and prodigi interdicti. A minor who had obtained resti-
tutio in integrum, one who in later law contracted without his curator's
consent, and prodigus inter Aldus, were all probably bound by a naturalis
obligatio, but its extent is not known12.

(g) Civil bondsman and filiafamilias. These could apparently not
bind themselves in classical law, but there was probably a natural
obligation13.

(h) Effect of litis contestatio. In many cases litis contestatio destroyed
the old obligation, substituting for it the right under the action14. If
this proceeded normally no question would arise, but it might not, and
the question whether a natural obligation survived is material. If, e.g.,
judgment was not given within a certain time, it could not be given at
all15. It is clear that in classical law there was a natural obligatio in this
case with the usual effects, perhaps even a right of set off16. Where the
action was lost by plus petitio there was a natural obligation17, as also
where it was lost by error of the judge18.

(i) Capite minuti. Capitis deminutio destroyed at civil law all con-
tractual and quasi-contractual obligation. In c. d. maxima the present

1 12. 6. 38; 4. 5. 2. 2. 2 Ante, § cxLvn. 3 Girard, Manuel, 654, n. 1, cites 45.

1. 1.2; 46. 1.56. pr. 4> 46.3.5.2. 5 13. 7. 11. 3. 6 A slave's promise creates

a natural obligation. Gaius says it has not the force of a verbal contract (G. 3. 176). If
so it is a pact and is another exception. It must not be forgotten that a pact was good as
a defence. 7 12. 6. 40. pr.; 14. 6. 10. 8 C. 4. 28. 2. 9 14. 6. 9. 3 (interp.).

10 The fact that there was no obligatio naturalis under the Sc. Velleianurn shews how
partial was the recognition of this kind of obligation. 12. 6. 40. pr. gives reasons.

11 See 12. 6. 41; 45. 1. 59; 36. 2. 25. 1; 46. 3. 95. 4. 12 46. 3. 95. 3; C. 2. 23. 2;
Bas. 26. 1. 25 (Heimbach, 3. 97). 13 G. 3. 104; ante, § XLvra. 14 Post, § ccxxxv.
15 Post, § ccxxxn; G. 4. 104, 105. 16 46. 8. 8. 1. Machelard, Obi. Naturelles, 370 sqq.
17 20. 1. 27. Machelard, op. cit. 384. 18 See 12. 6. 28; h. t. 60. pr.

550 TRANSFER OF OBLIGAT10 [en.

point did not arise ; if the man was restored to his original position his
obligation revived: if he was not he was free of all, even though pardoned.
The same seems to be true of c. d. media if all the property was forfeited.
If only part, he remained liable to action pro parte, and not beyond at
all1. In c. d. minima an obligatio naturalis survived, but in the most
practical case, adrogatio, a better remedy was found2.

More or less doubtful cases are those of a claim barred by lapse of
time3, a creditor deprived of his claim by way of penalty4, and confusio
between debtor and creditor5, but these we need not here consider.

TRANSFER OF OBLIGATIO. As we have seen, obligatio, being of an
intensely personal nature6, was not thought of as transferable, but, in
connexion with mandate7, we saw how assignability was reached by an
indirect method based on the conception of the assignee as a representa-
tive of the assignor, procurator in rem suam. We have also dealt with the
automatic transfer of obligatio in various forms of universal succession8,
and in the case of guardianship, on the termination of the wardship9.

There were cases, too numerous to be set out in detail, in which one
in whom a right of action was vested was compellable to transfer it to
another, by this indirect method (cedere, mandare, transferre actionemw).
As familiar instances may be cited the vendor, who must cede, as part
of the commoda rei, actions acquired in respect of the res since the sale11,
the creditor paid by a surety, in certain cases12, the mandatarius, who
must cede all actions acquired in executing the mandate13, the pledge
creditor, who must cede actions he has acquired, as part of the commoda
rei1*, and so forth.

Where this cessio could be claimed as of course, the actual claim and
transfer might seem an idle form and the person entitled have been
allowed to proceed as if he had had a transfer. Some steps were indeed

1 C. 8. 40. 1, actiones utiles, ante, § xxxvi. 2 Ante, § CXLI. The same rule seems

to have been applied where a woman passed into manus, G. 4. 80, but as to difficulties,
see ante, ib. 3 Machelard, Obi. Nat. 464 sq.; Windscheid, Lehrb. 2. § 289, n. 2; Girarcl,
Manuel, 655. 4 E.g. 12. 6. 19. pr. See Machelard, op. tit. 512. 5 Post, § cxcii.
6 Ante, § CXLin. Even where the contract affected the enjoyment of land the benefit of
it did not pass with the land. Where a man let a farm with agreements as to proper
cultivation, and died leaving the land away from the heres, the legatee could not enforce
the covenants, nor could the heres, for lack, in this case, of interesse. If a legatee of land
ousted the tenant, his remedy was only against the heres. It was one of the obligations of
the deceased (19. 2. 32). 7 Ante, § CLXXX. 8 Ante, §§ ex, CXLI sq. 9 Ante,

§ LV. The texts record many cases in which A, being under a liability to B, may release
himself by transfer, in this form, of actions he has against third parties (e.g. 10. 2. 18. 5;
47. 2. 14. pr.). It is probable that many of these are interpolated, Beseler, Beitrdge, 3. 172
sqq. 10 Schulz (Z.S.S. 27. 82) in a careful study of the principles of forced cessio

(he does not discuss cessio legis, feigned cessio) gives a list of over 60 texts dealing with
such cases and the list is not exhaustive. 11 47. 2. 14. pr. 12 46. 1. 17; 46. 3. 76.

13 17. 1. 20. pr.; h. t. 27. 5. 14 20. 1. 21. 2; 20. 5. 7. pr.

xnj CULPA 551

taken in this direction, the action being however not one in which cessio
was feigned (actio ficticia), but an actio utilis suo nomine, visually an
actio infactum.

To this automatic transfer the name cessio legis has been given. The
notion no doubt starts from the cases of a transfer which had become
inoperative before it was acted on, discussed under mandate1, but it
gradually extended to cases where there had been no transfer. Thus as
early as Pius such an action was allowed to a buyer of a hereditas2, to
lieres ab intestato where legacies had been paid under a will afterwards
upset3, to tutor sued for negligence, against contutores*. So too in
classical law, if a depositee redeposited, the first depositor had actio
utilis against the second depositee5. Caracalla gave a judgment creditor,
where there was nothing to seize, an actio utilis against his debtor's
debtor6. Where a gift was to be restored to a third person, Diocletian
gave him an actio utilis'7. Later law allowed such an action in the case
of an agreement to sell, or a legacy of, a debt8. Justinian gave the prin-
cipal an actio utilis ex empto where a procurator had sold, and to a fidei-
commissarius who had paid off a pledge which should have fallen on the
heres9. But these cases represent no general principle. It is clear on
the texts that in general, where cessio had not been actually taken,
there was no right to sue: the case of surety is a well-known instance10.

CXC. THE THEORY OF CULPA. Dohis or intentional damage is not
perfectly easy to define, but as it was in itself a delict it will be con-
sidered later", and can here be left with the remark that in contract and
quasi-contract it always created liability.

Culpa was failure to observe the standard of conduct which the law
required, a standard varying in the different cases. In the texts we get
degree of culpa represented in three ways: culpa (culpa levis), failure to
shew diligentia maxima, failure to act as, in the given circumstances, a
bonus paterfamilias would act12; culpa lata, failure to shew any reasonable
diligentia, non intelligere quod omnes intelligunt13; culpa levis in another
sense, called by moderns culpa levis in concreto, not to shew the same
degree of diligentia as the party ordinarily did in his own affairs14. The
first two are objectively defined, but the last is taken from a different,
a subjective point of view. It was not a distinct degree of culpa, for it
might conceivably be greater or less than either of the others. A very

1 Ante, §CLXXIX. 2 2. 14. 16. pr.; C. 4. 39. 5. 3 5. 2. 8. 16. 4 27. 3. 1.

13. 5 Coll. 10. 7. 8. 6 C. 4. 15. 2. As to a similar but wider right of the

Jiscus, h. t. 3 and 4. 7 Vat. Fr. 286; C. 8. 54. 3. 8 C. 4. 15. 5; C. 4. 39. 7-9;

C. 6. 37. 18. 9 19. 1. 13. 25; 30. 57. 10 41. 2. 49. 2; C. 8. 40. 11. See also 45.

1. 126. 2; 14. 3. 1, etc. 11 Post, § ecu. 12 18. 6. 3; 13. 6. 18. pr. (culpa

levissima, 9. 2. 44. pr.). 13 Coll. 10. 7. 6. 14 10. 2. 25. 16, as opposed to

in abstracto.

552 CULPA [CH.

fastidious and careful person might fall short of this standard in a
particular case, while still shewing the care of a bonus paterfamilias, and
a worthless person might still satisfy this standard while shewing less
care than a reasonable man would. But in fact this standard was not
thought of as lower than that expressed by culpa lata1.

The general effect of the texts on liability in particular cases may be
stated in the following rather confusing propositions, omitting for the
present the stricti iuris relations.

1. A party benefiting by the transaction was liable for culpa levis,
e.g. both parties to sale, hire, pledge, and innominate contracts, the
depositor, the commodatarius and the principal in negotiorum gestio2.

2. One wrho did not benefit was liable only for dolus, and, according
to some texts, for culpa lata, on the ground that culpa lata dolo aequi-
paratur*.

3. In some cases a party was made liable for culpa levis in concreto.
In some of these, tutela, heres under fideicommissum and depositee4, we
should expect liability for dolus only, and some texts so state the
liability5. In others, common ownership, husband dealing with dos,
societas6, we should expect liability for culpa levis, and some texts so
state the matter7.

4. In some cases in which on principle the liability was for dolus,
and is so stated, we get in other texts a liability for culpa levis, e.g.
mandate, tutela and cura8.

5. The negotiorum gestor, though it was essential that the gestio
should not be for his benefit, was liable for culpa levis9.

6. The state of the texts makes it extremely probable that the
expressions culpa lata, culpa levisw, of which there is little trace in
prae-Justinian texts, were not used technically to denote degrees of
culpa till the Byzantine age.

On this story, which is really a record of historical changes, there
are several remarks to be made.

(a) The line between dolus and culpa is not so sharp as it looks. In
both of them external standards must be applied; the state of mind
must be inferred from conduct. If a man's standard of care in business
which affects another was plainly below what we expect in ordinary

1 See, e.g., 24. 3. 24. 5 2 13. 6. 5. 2; 50. 17. 23. See Coll. 10. 2. 1. 311. 6.

1. 1; 16. 3. 32; 36. 4. 5. 15; 50. 16. 226. 4 27. 3. 1. pr.; 36. 1. 23. 3; 16. 3. 32.

5 26. 7. 7. 2; 30. 108. 12; 13. 6. 5. 2; 16. 3. 1. 10, etc. 6 10. 2. 25. 16; 17. 2. 72; 23. 3.

17. pr. 7 17. 2. 52. 2; 24. 3. 18. 1; 10. 3. 26. 8 17. 1. 10. pr.; Coll. 10. 2. 3; D. 50. 17.
23; 26. 7. 7. pr.; 27. 3. 1. pr.; 26. 7. 25. pr. Thus for tutela we get the liability stated in all
three ways. 27. 3. 1. pr.; 26. 7. 7. pr.; h. t. 41; C. 2. 18. 20. 9 3. 5. 3. 9; ante, § CLXXXV.
We are not fully informed as to fiducia. 10 Neither expression occurs in any juristic
text independent of Justinian. In Coll. 12. 5. 2 we find lata neglegentia, in a criminal
matter. See p. 553, n. 9.

xii] CULPA 553

life, or of what he shewed in his own business, it may be called careless-
ness, but the suggestion of bad faith is obvious. Slight carelessness is
however to be expected occasionally, and does not suggest bad faith.
Thus, if damage occurred, culpa levis \vas presumed though of course it
might be disproved, but the presumption of dolus (or culpa lata) was
never made1; the facts relied on must be proved. We are expressly told
by Celsus that it is not good faith to shew in dealings affecting others
less care than in one's own affairs, and the same text shews similarly
that it is hard to distinguish between culpa lata and culpa levis in con-
creto: to shew in such matters less care than you do in your own is not
reasonable conduct2. It has been suggested that the only difference
between culpa lata and culpa levis in concrete is in the burden of proof.
The former must be proved; the latter is prima facie presumed3. But
this would still leave the conflicts in the texts.

(b) It has been shewn4 that culpa originally meant active conduct—
culpa infaciendo: negligent omission (culpa in nonfaciendo) being negle-
gentia, to which diligentia is the opposite5.

(c) We are several times told6 that culpa lata is on a level with dolus
and this was clearly so for Justinian's time. But the whole conception
of culpa lata is late7; the nearest approach to it in any surviving prae-
Justinian text is a reference to lata neglegentia in connexion with criminal
liability8, and in the same collection Modestinus, dealing with several
contracts, evidently knows only one degree of culpa9. Culpa lata has
little to do with contract; most of the allusions to it are in connexion
with criminal law or quasi-contract (especially heres and tutor), or in
the heterogeneous mass of praetorian obligations10. The only direct
allusions to it in relation to specific contracts are one or two on deposit11,
all suspicious, one in precarium, which also looks interpolated12, one on
mandate more than suspected13, and one on the sale of a hereditas also

1 22. 3. 18. 1. 2 16. 3. 32, interpolated in part. It is difficult to believe with

Lenel, Z.S.S. 38. 277, that the whole passage represents only Ityzantine thought. The
classical rule expressed seems to be that what purports to be negligence may be so gross as
to raise an irresistible presumption of dolus. 3 C. 4. 24. 5. 4 Mitteis, R. Pr. 1. 322.
5 See, e.g., 50. 17. 23. The distinction survives in stipulatio, post, p. 555. 6 44. 7.

1. 5, etc. 7 Mitteis, op. cit. 334, who analyses the cases in which it is found.

8 Coll. 12. 5. 2. 9 Coll. 10. 2. 1. Lenel holds, as it seems with great probability

(Z.S.S. 38. 263 sqq.), that the expressions culpa levis, lata, used technically to express
degrees of negligence, are post-classical. His article is a reply to Binding, who in Normen
(2) 2. 711, and again Z.S.S. 39. 1, maintains the thesis that these expressions are classical
but that they denote originally — and in the Digest — not degrees of negligence, but two
kinds of "Schuld" short of dolus, levis being negligence, lata, intentional conduct, with-
out self-seeking fraudulent intent. It is difficult to reconcile the view that the terms do
not, for Tribonian, represent degrees, with such texts as 41. 1. 44. 2. 10 Mitteis, op. cit.
334. 11 16. 3. 32; 44. 7. 1. 5; C. 4. 34. 1 =Coll. 10. 8, where culpa lata is not mentioned.

12 43. 26. 8. 6. It is not contemplated as a contract. 13 17. 1. 29. pr.

554 CULPA [CH.

doubtful1. Probably in classical law a gross failure in care was apt to
be regarded as dolus, as Celsus suggests and Paul explicitly says2.

(d) The cases in which one who did not benefit was liable for culpa
levis were all late extensions of liability dating, it may be, from the end
of the second century3. They were all cases of confidential relations and
it is said that this was the cause of the increased liability4.

(e) There was a group of contractual and quasi-contractual actions
condemnation in which involved infamia. Such were pro socio, fiduciae,
mandati, depositi and tutelae. In nearly all these cases texts give a
liability for culpa, either in abstracto or in concrete, and in some cases we
find both. It is harsh that mere negligence should have such an effect.
The difficulty is met by the view that infamia ensued only where the
condemnation was for dolus5, but it is repeatedly stated with no such
limit. A better view6 seems to be that in earlier classical law these actions
lay only for dolus and that the larger liability is either interpolated or
a development of late classical law, in which some cases of what texts
call lack of diligentia were readily construable as breaches of good faith7.
The transition to the rule of liability for culpa was a gradual one not com-
plete till the time of Severus8. But the evidence hardly amounts to proof.

(/) The cases of diligentia quam suis rebus, culpa levis in concrete,
mentioned in the texts seem to be fiducia (?) societas, common owner-
ship, tutela, husband in relation to dos, fideicommisswn and deposit9.
The last two are certainly due to Justinian and do not even represent
the law of his time as elsewhere stated, except so far as, in the actual
case, the failure to act as carefully as in his own affairs was in fact
dolus10. In tutela some of the later texts make a tutor liable for culpa
simply, and it may be that the liability for culpa levis in concrete was a
stage in the transition from liability merely for dolus to liability for
culpau. As to fiducia the rule is laid down generally12. In societas it
seems to have been the settled rule from Gains onwards13. In the other
cases, dos and community, principle requires liability for culpa, and it
may be14 that the lessened liability expresses a view, late classic or

1 18. 4. 2. 5. 2 16. 3. 32; 50. 16. 226. No doubt, as Lenel suggests (op. cit. 288),
in the original they were not stated with such generality, but with reference to the facts of
a particular case. 3 Mitteis, op. cit. 330. 4 See, however, ante, § CLXXIX, as to

mandate. 5 E.g. Bertolini, Obblig. (Parte Sp.) 785. 6 Mitteis, 324 sqq. 7 In the
case of tutela it may possibly be due only to Justinian, but it is more probably late classic.
8 For other views, see Girard, Manuel, 667. 9 The texts appear to be 16. 3. 32; 10.

2. 25. 16; 17. 2. 72; 18. 6. 3; 23. 3. 17. pr.; 24. 3. 24. 5; 26. 7. 33; 27. 3. 1. pr.; 36. 1. 23. 3;
44. 7. 1. 4; Inst. 3. 25. 9. 10 16. 3. 32; 36. 1. 23. 3; cp. 30. 108. 12. 11 Lusig-

nani considers the rule in all cases interpolated, Studi sulla respon.sibilita per custodia,
2. 97 sqq. 12 Coll. 10. 2. 1. The reason assigned is that both benefit. This is true

of /. cum creditore, perhaps the only case existing when the text was written, but not in
/. cum amico; no doubt whichever benefited was liable for culpa. 13 17. 2. 72.

14 Mitteis, op. cit. 333.

xn] CUSTODIA 555

Byzantine, that in an enduring relation the other standard is unfair.
\ It is observable that in all the cases in which the rule is well evidenced
it is in fact the defendant's own affair.

Passing to stricti iuris relations, it is to be observed that in mutuum
and the contract literis no question of culpa arose. In stipulatio to give
a certain thing the promisor was liable only for culpa in faciendo, a
survival of the old conception of culpa1, and only for such culpa in
faciendo as made delivery impossible, not, e.g., where his act had made
the res less valuable but still deliverable2. Of course the stipulatio might
be so framed as to express any liability the parties wished, and the texts
usually consider not the liability on stipulatio, but that on the particular
stipulatio under discussion; the actual words were material. Apart from
this there seems to have been no remedy for negligence or for active
culpa which merely lessened the value of the thing. If there was dolus,
the actio doli lay3, and gross negligence would no doubt readily be con-
strued as dolus. In the case of stipulatio faciendi the rule seems to be
that the care of a bonus paterfamilias was required, but the textual
evidence is scanty4. In condictio sine causa the rules were as in stipulatio
dandi5, while in condictio furtiva all risks were on the person liable; fur
semper in mora est6. The case of legacy has already been considered7.

CXCI. CUSTODIA. This is a conception which has given, and still
gives, much trouble. In many texts custodia (custodire) appears in its
plain meaning of setting a watch or guard8. These cases are unimportant.
But there are other texts in which it is used to denote a certain obligation
"custodiam praestare," meaning something more than to set a guard.
This obligation, whatever it may have been, is stated more or less
explicitly in a number of cases, e.g., commodatarius9, usufructuary10,
vendor11, nauta, caupo, stabularius (at least in some cases12), etc. It
appears to mean obligation to prevent theft and perhaps, though this
is not quite clear13, damage by third parties. But the extent and history
of this obligation have been and still are the subject of acute controversy.
In some texts dealing with specific cases it appears as an absolute obliga-
tion to prevent the theft, i.e. responsibility to the owner if the thing is
stolen, without reference to negligence14, and this point of view seems
to be represented by Gaius, who tells us that commodatarius and fullo
had an actio furti on account of their responsibility if the thing was
stolen, and the owner had none, as he had no interesse15, without any
reference to negligence. In other texts it appears as diligentia maxima

1 P. 5. 7. 4; D. 45. 1. 91. pr., sqq. 2 4. 3. 7. 3. 3 Ib. 4 45. 1. 137. 2, 3.

5 See 12. 6. 65. 8; 39. 6. 39 (Girard, Manuel, 669. See also op. cit. 668, n. 3). 6 13. 1. 8;
h. t. 16. 7 Ante, § CLXXXV. 8 E.g. Coll. 10. 7. 4; D. 6. 1. 21. 9 13. 6. 5. 5.

10 7. 9. 2. 11 18. 6. 12. 12 4. 9. 1. 8. 13 See Lusisrnani, Responsibility,

per Custodia, 2. 49. 14 E.g. 4. 9. 1. 8. 15 G. 3. 205-207.

556 CUSTODIA [en.

applied to the care of the thing against thieves1, an interpretation quite
in keeping with the evolution of culpa from an original meaning confined
to acts of commission, negligence leading to damage being separately
named as neglegentia, and avoidance of it as diligentia, and the obligation
to the same extent to prevent harmful intervention by third persons
would be called the obligation " custodiam praestare." Again there are
texts which, speaking of it as an absolute obligation, base it in certain
cases upon express agreement2. There is a further difficulty in that some
texts which treat it as an absolute liability have evident signs of inter-
polation3, and on the other hand some texts which speak of it as only
an aspect of diligentia are open to the same suspicion4.

It is obvious that many interpretations are possible, and in fact
there are wide differences of opinion. On one view, in all the above cases,
and in several others (in which the existence of the obligation itself,
apart from its extent, is very imperfectly evidenced), the classical law
imposed an absolute liability, and Justinian, by systematic interpolation,
cut this down to diligentia in custodiendo, not without leaving traces
of the older doctrine. Another diametrically opposed opinion is that
classical law knew no such obligation apart from diligentia, except as
created by express undertaking, but Justinian has interpolated a
number of texts so as to make the obligation absolute5. It is not obvious
that the meaning must be the same in all cases, and it is clear that an
absolute liability "custodiam praestare" might be imposed by special
agreement and was so imposed almost as a matter of course in the case
of carriers6. It may be that the same was the case with fullo and sar-
cinator7, and it is not unreasonable to impose such an obligation as a
matter of law on a commodatarius8. This would account for the language
of Gaius who gives commodatarius and fullo an actio furti in any case9,
which seems illogical unless there was a corresponding obligation to
compensate the dominus in every case.

The whole question must be treated as yet unsolved, but it may be
remarked that Lusignani seems to have shewn10 that no such absolute
liability existed in classical law in the case of vendor or conductor rei or
operis in general and that the extreme doctrine applying the absolute
liability over a wide range of cases does not seem probable in itself or
indicated by the texts11. It might have been expected that so important

1 E.g. 18. 1. 35. 4. 2 II).; 4. 9. 1. 8. 3 E.g. 13. 6. 5. 15. Lusignani, op. cit.

1. 62. 4 E.g. 18. 6. 3. See reff. in Berlin stereotype edition (13). 5 See

Lusignani, op. cit. 1. 1-23, for statement and criticism of various opinions as to the rule
and its historical changes. 6 See D. 4. 9. 7 The liability attached by English

law to the trades of carrier and innkeeper, for loss of the goods, without proof of privity
or negligence, does not however apply to other trades. 8 See 13. 6. 5. 5. 9 G. 3.

205 sqq. 10 It is the thesis of the work cited. 11 See, however, for a far-

xn] EXTINCTION OF OBL1GATIO 557

a liability would have been prominently stated in the classical texts,
but they repeatedly state dolus and culpa as limits1 for liability apart
from special agreement. Custodia as a form of liability occurs rarely,
and never with a clear indication that it involves insurance against
theft and damage2.

CXCII. EXTINCTION OF OBLIGATION. The modes of extinction of
obligatio are numerous and may be classified as Involuntary or Voluntary,
and as Civil or Praetorian. For clearness of statement, the first classifica-
tion will be adopted.

The principal involuntary modes are:

(a) Supervening impossibility, of which destruction of the subject-
matter is the typical case. This did not discharge if, at the time of the
destruction, the debtor was already in mora3, or the destruction was by
his act or with his privity, dolo or culpa (where he was liable for culpa),
with knowledge that the obligation existed4. For the rule to apply, it
must have been a specific thing which was due5. The texts do not deal
with other cases of supervening legal or physical impossibility, to which
the same principles appear to apply6.

(b) Death. Death of the creditor had in general no effect on the
obligation, except where it brought the rules of impossibility into play,
but we have seen an exception in the cases of adstipulatio7, and of
societas and mandate8. Here, death ended the contract, and till Justinian
the heres of a woman with a claim for dos could not sue9. The death of
the debtor was similarly ineffective, with some exceptions and modifica-
tions already noted, in societas, mandate, sponsio and fidepramissio10.
It may be added that a heres was not liable in a real action except so
far as he had himself possessed, not, for instance, where the deceased
had ceased to possess but was still liable11.

(c) Capitis deminutio minima of a creditor, as a rule, simply trans-
ferred his right to the person12 into whose potestas he passed, but this
belongs rather to the subject of succession otherwise than on death13.
Capitis deminutio minima of the debtor extinguished his contractual

reaching liability, Seckel, Heumann-Seckel, Handlexicon, s.v. ciistodia. Kuebler (Berliner
Festschrift fur Gierke, 2. 235 sqq.: Z.S.S. 38. 73; ib. 39. 172) arrives at the following
as the classical scheme. One who does not benefit is liable only for dolus. Where both
benefit each is liable for culpa. One who alone benefits is liable for custodia also and in
some cases for all risks. Haymann (Z.S.S. 40. 167 sqq.) considers liability for custodia
in the technical sense to have applied to commodatarius, the worker for hire (fullo, sar-
cinator), and to nautae caupones stabularii.

1 P. 2. 16. 1; Coll. 10. 2. 2 G. 3. 206, 207; P. 2. 4. 3. 3 Ante, § CLXXXVTU.

4. Inst. 3. 19. 2; 45. 1. 83. 5. 5 45. 1. 37. 6 As to alternative obligations, post,

§cxcm. T Ante, § CLV. 8 Ante, §§ CLXXvm sq. 9 Ulp. 6. 7. 10 Ante,

§§ CLVI, CLXXvra sq. 11 6. 1. 42; see 10. 4. 12. 5. A rule of late law in rindicatio,

ante, § xci. 12 Gaius gives the chief exceptions, 3. 82 sqq. 13 Ante, §§ CXLI sq.

558 EXTINCTION OF OBLIGATIO [CH.

and other non-penal obligations at civil law, subject to praetorian reliefs
already dealt with in the same connexion1.

(d) Prescription. Actions might be barred by lapse of time. The
civil law had no such rule except in a few cases, but many praetorian
actions were limited to an annus utilis. The matter will be considered
under the lawr of procedure2; here it is enough to say that leaving out of
account the cases of surety, which were under special rules already con-
sidered3, prescription began, in general, to run from the time when the
action could have been brought4, i.e. the first dies utilis, but it was
delayed till puberty of the plaintiff5, and, in late law, in other than
actiones perpetuae, till a minor plaintiff was of full age6. It was inter-
rupted, and must begin again, if the debtor gave any form of acknow-
ledgment7, and it ceased to run on litis contestatio, in classical law8,
and the institution of legal proceedings under Justinian9. It may have
been suspended if from any cause the ordinary sittings of the courts
were suspended. It is disputed whether its running, having once begun,
was suspended if from any cause action became impossible10, but if a
debtor was absent and so could not be sued, interruption could be caused
in later law by notice to a court11.

The lapse of a principal action might destroy subsidiary claims,
though they arose at a different time. Thus a surety was released if the
debt was time-barred12, and claims for interest were similarly barred to
the extent already stated13.

(e) Compensatio. Set off. The question, when set off might be pleaded,
and what sets off might be used, will be discussed later14; here we are
concerned only with the rules applied in cases in which it was in fact
available. The starting-point was the rule that, though set off was, so to
speak, apparent only when an action was brought, it really existed from
the time when the debtor's claim first became enforceable. Thus if
interest was due on one of the debts, whether on the other or not,
interest ceased to run "pro rata" as soon as the compensating debt
existed15. But a compensating debt must be fully due, i.e. not conditional

1 Penal liabilities were not affected, 4. 5. 2. 3 ; post, § cxcvi. Capitis deminutio maxima
and media have been considered in connexion with obligatio naturalis (ante, § CLXXXIX).
Here too, penal liabilities were not affected, 4. 5. 2. 3. 2 Post, § ccxxxin. 3 Ante,

§ CLVI. 4 C. 7. 39. 3. 1. 5 C. 7. 39. 3. 1 a; C. 7. 40. 2. 6 C. 2. 40. 5. 1. 7 C. 7.
39. 7. 5 a. 8 12. 2. 9. 3. 9 C. 7. 40. 2. 1. 10 As it is expressed, whether

the time was utile, ratione cursus, or only ratione initii. The latter view seems the better,
the other being difficult to reconcile with the existence of restitutio in integrum where an
action had become time-barred by absence (post, § CCXLIV). See Girard, Manuel, 741
(citing Ubbelohde, Berechnung der Tempus utile); Dernburg, Pandekten, 1. §90, and for
a different view, Savigny, System, 4. 433 sqq. 11 C. 7. 40. 2. 12 Ante, § CLVH.

13 Ante, § CLXXXVUI; C. 4. 32. 26. pr. As to naturalis obligatio surviving praescriptio,
ante, § CLXXXIX. 14 Post, § ccxxxvm. 15 16. 2. 11; C. 4. 31. 4.

xn] EXTINCTION OF OBLIGATIO 559

or ex die1, and it must be a real debt, not one open to an exceptio2. It
might be one already before the court in another case3.

We are told that one who had a set off, and yet paid, could recover
by condictio indebiti*. But this is a hasty extension, by the compilers, to
compensatio, of a rule laid down originally for deductio, in bonorum emptio,
where it was reasonable, as otherwise the creditor would get only a
part of his debt. Applied more generally it would mean that a debt was
extinct by the mere existence of a set off, but this was not so5. It might
be extinct if the debtor chose to plead the set off, but if he did not, his
right to sue on it was unaffected6, and even if it was pleaded the index
had discretion to ignore it, as being uncertain, or not easily liquidated,
or on any other ground, and this left it existing. If however he ruled
that it had no existence, this had the effect of a judgment, and any later
action on it would be met by exceptio rei iudicatae7.

(/) Lex. There were several cases, into which we need not go, in
which the law deprived a man of his right by way of penalty, e.g. where
a creditor seized the thing by force8.

(g) Duae lucrativae causae. There was a rule that two lucrative
causes of acquisition could not exist in respect of the same thing and
the same person9. If then the res, being due on, e.g., legacy and gift, had
been received under one, there was no claim even to the value under the
other. But both must be gratuitous and the res must have been received,
not its value, and any difference might be claimed. Thus if the legacy
was simple and it was received by the gift, under some charge, the differ-
ence in value could be claimed10. The rule is commonly based on im-
possibility, though the texts do not say this, and it is not clear why it
was more possible because he had paid for the res. It is replied that it
was equally impossible here, but there was equitable relaxation ; he was
entitled to be reimbursed what it had cost him11. Some writers treat it
as an interpretation of the donor's intent12. Most of the texts make it
clear that he must have the thing. One which does not is corrupt13.

(h) Confusio. Where the right and liability vest in the same person14,

1 Except where though it is due a index has given time for payment, 16. 2. 7. pr. ; h. t. 14 ;
h. t. 16. 1. 2 It may be a naturalis obligatio, but not all such could be used as set off,

16. 2. 6; ante, § CLXXXix. 3 16. 2. 8. 4 16. 2. 10. 1. 5 See Girard, Manuel, 721.
6 C. 4. 31. 14. 1. 7 16. 2. 7. 1. 8 Post, § cxcix. 9 44. 7. 17; Inst. 2. 20. 6.
10 45. 1. 83. 6. The Digest says, in words due to Justinian, that even if under one will he
has the res, he can get it under the second if the testator so intended, 32. 21. 1. In the
Inst. the contrary is stated, Inst. 2. 20. 6 in f. 11 Dernburg, Pand. 2. § 68.

12 This would justify 32. 21. 1 as against Inst. 2. 20. 6. For discussion of various views,
Windscheid, Lehrb. 2. § 343 a; cp. 50. 17. 139. 1. 13 30. 108. 4. It seems to make the
second gift void, though the first has not yet operated. It deals primarily with legal inn
debiti (alieni). See Scliulz, Z.S.S. 38. 176. The article deals with the whole question of con-
current obligations. See also Beseler, Beitrayc, 4. 326 sqq. 14 46. 3. 107.

560 SOLUTIO [CH.

the case being regarded, though not quite consistently, as one of auto-
matic payment. A common case was that of one party being heres to the
other, but it might also occur, e.g., by entry on societas omnium bonorum,
or where a noxal creditor acquired the guilty slave. That it was not
really discharge appears from the facts that if the kereditas was sold as
such the right revived1, that if one correal debtor was heres to the party
on the other side, the debt remained as against the others2, and while
confusio affecting the principal debtor released a surety, the converse
was not true3. Confusio might occur on the side of debtors or creditors
only, e.g. where one of joint debtors or creditors inherited from another.
He retained the two rights, or two liabilities, though satisfaction of one
discharged the other4. But if they were not equally advantageous, e.g.
one of them had a surety or pledge, the less advantageous was extinct5.

It is to be noted that compensatio, duae causae, and confusio
usually resulted from voluntary acts, but they are cases in which it is
an indirect and possibly undesired and uncontemplated result of the act.

CXCIII. Voluntary modes of extinction. Besides the obvious cases
of occurrence of dies., or some other event, which was to release on the
terms of the contract, there were three important cases.

Solutio. Performance. This was doing what the liability required.
By agreement something else might be substituted — datio in solutum—
and, on the Sabinian view, which prevailed, this was an ipso iure dis-
charge, the Proculian view being that it gave only an exceptio*. If the
substituted thing was not properly done, e.g. if ownership in the sub-
stituted thing was not given, the classical view appears to have been that
the original right revived7, though some texts, probably interpolated,
give an actio utilis ex empto for the substituted thing8. But of course a
performance defective in this way might be set right by usucapio9.

The solutio must be of the whole of that debt, with accessories, etc.,
and must be at the agreed place10. If none was agreed, there were
elaborate rules as to place of payment11. If there were several debts a
solutio was imputed to that named by the debtor12. If he named none
the creditor might then and there impute it to debt already due, but
must consult the interest of the debtor, choosing the most onerous.

1 18. 4. 2. 18; h. t. 20. 1. See G. 4. 78. 2 46. 1. 71. pr. If there was a right of regress
between the correi, e.g. socii, the debt was extinct to the extent to which reimbursement
might be claimed under this right. 3 46. 1. 21. 3. 4 45. 2. 13; 46. 1. 5. 5 Arg.

same texts. 6 G. 3. 168; Inst. 3. 29. pr.; C. 8. 42. 17. 7 46. 3. 34. pr. See

Francisci, Bull. 27. 311, citing Rabel. 8 13. 7. 24. pr.; 42. 4. 15; C. 8. 44. 4, etc.

9 In case of money debt, if the debtor had nothing but land, and could not sell that, the
creditor might be compelled, in late law, to take it at a valuation (Nov. 4. 3), and the
court might in late law compel the creditor to accept payment by instalments, 12. 1. 21.
The so-called bcneficium competentiae (post, § ccxxxiv) gives a similar result. 10 13.

4. 9. 11 See Van Wetter, Pandectes, 3. § 289. 12 46. 3. 1.

xn] SOLUTIO 561

Failing any distinction he might impute it to the oldest1. If he did not
impute, the court would, on the same principle2, and if no distinction
could be drawn it was proportional payment of all the debts3. Payment
might be made by a third person, unauthorised4, but it must be to the
creditor, his authorised representative, or a solutionis causa adiectus5.
Thus payment to a negotiorum gestor could be reclaimed by condictio
before ratification6. Payment to a creditor of a creditor might discharge
if it was a reasonable negotii gestio, but it operated only as compensatio,
not as solutio1. Of course both parties must be capaces9.

Payment extinguished the debt and released pledges and sureties9,
subject to what has been said as to cases in which payment was treated
as purchase of the debt, where a surety paid (beneficium cedendarum
actionum)w.

Attempted payment put the creditor in morau. If, after tender, the
thing was deposited in a public place, e.g. a temple, with, under Justinian,
the leave of a index, the debtor was released as by payment, though,
till the creditor took the thing, he could revive the debt by taking it
back12. If it could not be so deposited, e.g. live-stock, he might sell it for
the benefit of the creditor, and, apparently he was in no way responsible
if he let the thing go to waste, at any rate in sale13.

From the point of view of solutio there was an important distinction
between divisible and indivisible obligations. They might be indivisible
by agreement or by nature. Thus an obligation to do a piece of work,
to build a house or transfer an indivisible right, e.g. a praedial servitude,
was indivisible: there could be no partial solutio1*. So long as perform-
ance was incomplete the whole remained due and could be sued for15.
An alternative obligation was indivisible. If one who owed 100 or a
house paid 50, he could still be sued for 50 or a house. If the action was
limited to 50 or a half share in a house, the result might be the render of
a half share in a house which would not be what was contracted for16.

1 Ib. in f.; h. t, 2. 2 46. 3. 3. 1-5. pr. 3 46. 3. 8. 4 3. 5. 38;

46. 3. 72. 2. As to Labeo in 46. 3. 91, and the rule: "invito beneficium non datur" (50. 17.
69), see Z.S.S. 38. 317 sqq. 5 3. 5. 38; 46. 3. 12. 1; 50. 17. 180. Texts appear to

disagree on the question whether payment can still be made to sol. cau-sa adicctus who
has suffered capitis deminutio or in any way materially altered his position (45. 1. 56. 2;
46. 3. 38. pr. ; h. t. 95. 6). See Desserteaux, Mel. Girard, 1. 353; Capitis deminutio, "2.
145 sqq. His conclusion is that it was a question of intent with a general presumption
that the facultas was destroyed by any fundamental economic change in the status of
the adiectus, whether it amounted to c. d. or not. He handles it throughout, however, as
a facultas recipiendi rather than a, facultas solvendi. 6 46. 3. 12. 4. 7 44. 4. 6.

8 Inst. 2. 8. 2. As to pupils and minors, ante, §§ LVI, Lxn. 9 Inst. 3. 29. pr.

10 Ante, § CLVH. See also assignment, ante, § CLXXXIX, and successio in locum, ante,
§CLXvni. 11 Ante, § CLXXXvm. 12 22. 1. 7; h. t. 41. 1; 46. 3. 39; C. 4. 32. 2:

h. t. 6, 9, 12 and 19. 13 18. 6. 1. 3, 4; ante, § CLXXXVIII. 14 45. 1. 2. 1; h. t. 72. pr.
15 8. 1. 17. 16 45. 1. 85. 4.

B. B. L. 36

562 SOLUTIO [CH.

Apart from this case indivisibility was important chiefly where there
were several parties; it had the effect that, quite apart from solidarity,
each might be sued for the whole1. Where they were common owners
or socii or coheredes, and they would practically always be one or another,
adjustment would be made by pro socio or a divisory action. The same
point might arise in confusio. If A and B wrere under an obligation to
do a piece of work for C, and A became C's heres, he could, in that
capacity, claim performance from B, though in their mutual relations
he would have to bear half the cost. But indivisibility presented many
difficulties2.

Alternative obligations, to give A or B, also raised questions. The
transaction might make it clear which party was to choose3, but if it
did not, the choice was with the person liable, the promisor4, vendor5,
heres6, or the husband restoring dos7. But in legacy per vindicationem it
seems to have been with legatee8. The payment of a part of one alter-
native was not even a partial discharge: the case was pendent. If that
payment was completed the obligation was discharged: if the other pay-
ment was made, the part first paid could be recovered as indebitum9.
Acceptilatio in respect of one alternative discharged the obligatio, and
acceptilatio of part of one alternative discharged it pro parte if it was
divisible, and the rest could be satisfied by giving the proper proportion
of either, the point being that here there was no possibility of being put
off with part of each10. A pact not to sue for one alternative discharged
the obligation, iure exceptionis, unless it was really a pact to limit the
right of choice11. A choice by promissor could be varied till actual com-
pletion12, and probably the same was true in the other case13. The rule
was different in legacy: a declaration by the person entitled to choose
fixed his choice14. Consistently with this distinction, a, promissor who paid
one alternative object, not knowing he had a choice, could condict, but
a heres could not, nor could a legatee who had, in the same way, vindi-
cated one15. If a promissor paid both, in mistake, he could in later law
vindicate whichever he liked, at least where he had the original choice16.

If one of the alternatives wras ab initio impossible, the other was
alone in obligatione, so that if the other afterwards became possible, it

1 8. 1. 17; 10. 2. 25. 9. 2 Van Wetter, Pandectes, 3. § 337; Windscheid, Lehrb. 2.
§ 253 and literature there cited. 3 30. 8. 2; h. t. 84. 9, 11; 23. 3. 10. 6; 45. 1. 75.

8, etc. See on the whole subject, van Wetter, op. cit. § 326. 4 Inst. 4. 6. 33 d; D. 13.

4. 2. 3; 45. 1. 75. 8. 5 18. 1. 25. pr.; h. t. 34. 6. 6 30. 109. 1; 31. 15. 7 23. 3. 10.
6. A contract in which one alternative is contained in the other is not alternative; it is
for the lesser. 31. 43. 3; 45. 1. 12. 8 31. 19; h. t. 23. 9 12. 6. 26. 13, 14; 45. 1.

2. 1; h. t. 85. 4; 46. 3. 34. 10; 30. 8. 2; h. t. 34. 14; D. 31. 15. 10 46. 4. 17. But accepti-
latio is a nullity if what is dealt with was conditional, h. t. 13. 6. 11 2. 14. 27. 6
(?interp.). 12 45. 1. 138. 1. 13 45. 1. 112. pr. 14 30. 84. 9; 31. 11. 1.
15 12. 6. 32. 3; 31. 19. 16 There had been disputes, 12. 6. 32. pr.; C. 4. 5. 10.

xn] NOVATIO 563

was still a nullity1. If one became impossible after the obligatio was
created, without fault or mora, the other was simply due2, but if, e.g.
by declaration of the heres, the obligation had been fixed on one, im-
possibility affecting that one ended the obligation3. There is a suggestion
in one of the texts for legacy4 and an uncertain inference from another
for contract5, that where one had become impossible, e.g. by death of
the slave due, there was still the choice of giving the value of this, but
most of the texts are explicit that the other must be given6. If both so
died the obligation was at an end, but, as we saw, a buyer would still
have to pay the price7. If one was tendered and was destroyed while
the creditor was in mora, the obligation was completely discharged8.
If one died by fault of, or during mora of, the debtor he must give the
other where he had the choice9. If both died, the first by accident, the
second by his fault, he must give the value of the second10. If in the
other order the obligation was discharged, subject, at least in later law,
to an actio doliu.

This case of alternative obligation, in which both were inobligatione but
only one, it was uncertain which, was in solutione, must be distinguished
from facultas solutionis where the facultas was not in obligatione at all.
The solutionis causa adiectus is the most familiar instance12, but there
are others, e.g. in laesio enormis, the right of the buyer to avoid restora-
tion by paying the difference13, or the right of a third person, holder, to
pay off a pledge instead of restoring the thing to the creditor14. Such a
discretion might be attached to any contract; it might be a question of
interpretation whether it was facultas or alternative. The distinction
was important in that if the res in obligatione was destroyed or otherwise
ceased to be due, there was no liability to render what was in facilitate.

CXCIV. Novatio. This was the extinction of an obligation by the
substitution of another for it. To bring the rules of novatio into play the
new obligation must have been by way of stipulatio, in the law as we know
it, but it is probable that while it existed the contract literis served the
same purpose15. The notion of novatio is said to originate in the doctrine
that there cannot be two distinct obligations for the same thing between
the same parties any more than there can be two actions for eadem res.
This principle however is not well evidenced; the text mainly relied on

1 45. 1. 128; 46. 3. 72. 4. 2 18. 1. 34. 6; 23. 3. 10. 6; 30. 47. 3; 31. 11. 1; 46. 3.

95. pr. 3 30. 84. 9; 31. 11. 1. 4 30. 47. 3. 5 46. 3. 95. 1. 6 See

13. 4. 2. 3. 7 18. 1. 34. 6. 8 45. 1. 105. 9 46. 3. 95. pr. 10 Arg.

46. 3. 95. 1. 11 Ib. For the case of killing of one of promised slaves, by stipulator,

9. 2. 55. For the case of one or both being in fuga or apnd hostes, 30. 47. 3. As to the
many disputes on the foregoing questions, see, e.g., Van Wetter, Pandecte*, 3. § 326.
12 Ante, §§ CLIV, cxcm. 13 Ante, § CLXX. 14 20. 6. 12. 1. 15 See G. 3.

128-30; Cicero, de Off. 3. 14.

36—2

564 NOVATIO [CH.

merely says that of two stipulations for the same between the same, one
is void1, a much narrower proposition2. There are texts which admit the
existence of two obligations for the same thing between the same parties,
but these are treated as late equitable relaxations, though Ulpian regards
it as an old settled rule3. However this may be, the rule of classical law
was that, to effect a novatio, the new contract must involve some change4,
which might be either in form, or parties or terms. The main rules were
the following:

There must be an existing obligation, though it might be merely
natural5, but some natural obligations were not susceptible of novation6.
If the old bargain was void and the parties did not know this, there was
an exceptio under the new, or a condictio if it had been satisfied. If the
promissor did know, the new contract was valid, but it was in effect a
donatio, not a novatio7.

There must be a new obligation set up by formal contract. This
need not, however, be perfectly valid; it might novate and destroy the
original obligation though itself "inutUis." A text in the Digest suggests
that it must set up an obligatio, which may be either civilis honoraria or
naturalis8, but this was neither necessary nor sufficient. A promise by
sponsio by a peregrine and a promise by a slave (Servius held otherwise)
did not novate, though these set up a naturalis obligatio9. These were not
regarded as verbal obligations at all. But a stipulatio post mortem,

1 45. 1. 18. This must be the second, for otherwise it would be a novation. 2 It is
not a general overriding principle. It is a narrow proposition. It is merely that if there
is a contract it is not superseded by another identical in all respects. There is nothing
"inelegans" in itself in the existence between two persons of two obligations tending to
the same thing (see n. 3). A civil and a praetorian obligation cannot be the same, but both
may exist. Thus a man often has the choice of actio ex empto and actio quanta minoris (ante,
§ CLXXH). It is true that if owing a thing by sale I afterwards make a promissio of the
same thing, the old obligatio is destroyed by novatio. But what if animus novandi was
expressly excluded ? What if, owing a thing by a promise for which there was a counter
promise, I afterwards agree to sell it for a price ? It seems that the old obligatio still exists
at civil law, though there would be an exceptio. If a legacy to the creditor is advantageous,
i t is valid not only to the extent of the advantage, but absolutely, and the same is true
of legatum dotis (ante, § cxxm), yet these are assuredly "eadem res." 3 19. 1. 10;

44. 2. 14. 2; 50. 17. 159. See, however, Girard, Manuel, 706, n. 2. 4 G. 3. 177;

Inst. 3. 29. 3. 5 46. 2. 1. 6 Ante, § CLXXXIX. 7 12. 6. 62; 14. 6. 20.

8 46. 2. 1. 1. 9 G. 3. 176, 179; Inst. 3. 29. 3. The remark by Gaius that where

it was a slave it is as if stipulated "a nullo" is not the real reason, for the statement is
incorrect : it creates a naturalis obligatio, apart from the edictal rules. In fact the meaning
of the statement, though it has been used for far-reaching conclusions, is obscure. There
was no difficulty about taking a novatory promise, but as this releases the old, there must
be authority, or, in re peculii, what is the same thing, administratio peculii. P. 5. 8. 1 ;
D. 46. 2. 20; h. t. 34. These texts say that a procurator could novate for us: this means
only that his general authority is as good as an express mandate to a third party, implying
our assent. The rights under the contract made with him will not be directly acquired by
us.

xii] NOVATIO 565

though void, destroyed the old obligation, and there are other cases1.
Apparently any stipulatio sufficed if the parties were capaces of the
form whether in the individual case it was valid or not.

The new promise must refer to the old debt, notwithstanding the
change. A stipulatio for another thing in substitution was not a novatio,
though it no doubt had the effect of a pactum de non petendo on the old
promise. This rule was not abolished by Justinian, but was relaxed.
The sum of money might be altered, the right, e.g. servitude, might be
increased, but it does not appear that the debt could be wholly different2.

There must be animus novandi. The texts have been so altered that
the history of this matter is difficult if not impossible to trace. Working
backward we may say that under Justinian it must be clear on the face
of the transaction that novatio was meant3, that in later classical law
the intent must exist, i.e. be proveable4, and that Gains does not mention
intent5. The better view seems to be that where a new stipulation was
made for the same object, but with a change in some factor, animus
novandi was presumed. It is obvious that it would be necessary in
stipulating, e.g. with a new debtor, to make it clear that it was not
intended merely to add a surety to the old stipulatio6. If there was no
change the second stipulatio was ignored.

There must be change in form, parties or terms. As to form, the only
possible one was substitution of stipulatio for debt in some other form,
and it is clear that here novatio was treated as a matter of course7. Till
the relaxation by Justinian the only changes of terms we hear of are
addition or removal of dies, condicio or surety8. As to surety Justinian
speaks offideiussor where Gains says sponsor, and it may be that in the
time of Gaius only change as to sponsor sufficed. And he notes that the
Proculians did not admit that change as to surety was enough. As to
conditions, it must be noted that a conditional stipulatio neither novated
nor could be novated9. A conditional stipulatio novated a simple one
only when the condition was realised, so that it became identical with the
old one. If there was no other change one might have expected this to
nullify the second10. But we have seen that a conditional stipulatio had
an existence and was not a nullity in practice even before the condition
was satisfied, since it acted as a pactum de non petendo on the old11. If the
first was conditional and the second simple, there was novatio when the
condition arrived so that there was a debt to novate12: here there is the
same difficulty13.

1 G. 3. 176. 2 45. 1.58;h. t. 56. 7;h. t. 91. 6; 46. 2. 1;C. 8.41.8. 3 C. 8. 41. 8.

4 46. 2. 2; Inst. 3. 29. 3 a. 5 G. 3. 176 sqq. 6 See 46. 2. 6. pr. (interp.).

7 13. 5. 24; G. 3. 177. 8 G. 3. 177; Inst. 3. 29. 3. 9 46. 2. 14. 10 Ante,

p. 564. 11 12. 1. 36; G. 3. 179; dispute, ante, § CXLVIII. 12 46. 2. 14. 1. 13 The

texts do not suggest any change other than that affecting the condition.

566 NOVATIO [CH.

It might be a change of parties. Change of creditors occurred where,
with the assent of the creditor, the debtor promised the debt to a new
creditor. It was in effect the assignment of a debt. Change of debtor
occurred where a new debtor promised the same debt to the creditor:
the assent of the original debtor was not needed; that of the creditor
was evident. It might, of course, be by way of gift, but more often the
new debtor was a debtor of the old one1. In transactions of this kind
there was a special terminology. If A owed B money and the debt was
novated by stipulatio of B in which C promised to pay, it was usually
the case that C was indebted to A. It was substitution of the debtor's
debtor. There was not merely novatio; there was delegatio debitoris*.
C was delegatus. But the affair had another side. There was another
novatio, for C"s debt to A was now novated and replaced by a debt to
B. This was the strict meaning of delegatio, substitution of ^4's debtor
for himself in a debt of A's. But the word was used loosely wherever C
promised to pay B on behalf of A, whether C was a debtor to A or not3.
In like manner, the word expromissio meant, strictly, a promise by a
debtor to his creditor's creditor, by way of novatio*., but it was also used
whether the novating promissor, expromissor, was a debtor or not5. The
above case is within the strict senses of both expressions, but it would
be expromissio in the wider sense even if C had not been indebted to A.
A man could even be called expromissor for his own debt6.

Novatio destroyed the old debt with all securities and liabilities; in
particular it purged mora, so that, e.g., interest which had begun to run
on account of this, ceased to run7. Of course the new contract could
expressly preserve as much as the parties wished. It also normally
created a new obligatio, subject to what has been said, but the accessory
elements of the old one did not apply to this, except so far as they were
expressly preserved8.

The effect of litis contestatio was akin to that of novatio9, and it is
here and there in the sources so called10. But it was produced in effect
without the consent of both parties, for though, in classical law, litiga-
tion still rested in form on consent, this was unreal, since it could be
compelled, and the novatio was usually distinguished as novatio necessaria.
Its effects, considered later11, were not quite the same. Thus it did
not, of course, purge mora or destroy pledges12, and, in general, the

1 There may be more than one change. If A owes B 10 on sale, and with 5's consent
C promises to pay this 10 in 10 days all three kinds of change have occurred. 2 46.

2. 11-12. 3 Ib.; 23. 3. 5. 8. 4 E.g. 23. 3. 36. She is a debtor of the dos.
5 12.3,4. 6 14. 6. 20; 46. 2. 31. 1. 7 Ante, § CLXxxvm. 8 13. 7. 11. 1. As to
validity of defences to the old claim, see 46. 2. 12, and Girard, Manuel, 714. 9 G.

3. 180, 181. 10 Vat. Fr. 263; C. 7. 54. 3. 2. 11 Post, § ccxxxv. 12 22. 1. 35.

xn] RELEASE OF DEBT 567

obligation could not differ from that which the action was brought to
enforce1.

CXCV. Release of the debt. The primary rule was that an obligation
was to be discharged in the form in which it was made. It seems that
performance was not of itself necessarily a discharge in early law. Pay-
ment of money borrowed by way of nexum did not completely discharge
the obligation without release per aes el libram, but this may possibly
have been due to the effect on the debtor's personal position, and not
strictly to the obligation, so that we cannot say that a promise to pay
was not discharged, at one time, by payment but only by acceptilatio
as well2. It has however been pointed out that the extreme antiquity
of the formal modes of discharge is against the notion that they can
have been invented as modes of gratuitous discharge. But performance
was a complete discharge, ipso iure, in classical law, and the rule re-
quiring form applied only to voluntary release without satisfaction.

Release per aes et libram. This was a solemn weighing with copper and
scales, libripens and five witnesses. Gains gives the form for release
from jiidgment3. The debtor recited the fact of judgment and declared
himself released by copper and scales, the act emanating here, as else-
where, from the person benefiting under the transaction. The form in
Gains is somewhat corrupt, and no doubt was suitably varied in different
applications. Besides judgment it applied to nexum, to legacy per
damnaiionem of certa fungibilia, with a doubt as to measurable things4,
and possibly to any form of damnatio5. The effect was to destroy the
obligation completely.

Accepti relatio. Release of contract literis by some form of entry6.
It probably consisted in an entry in the debtor's codex with the creditor's
consent. Gaius does not however seem to know of it7. But a special
form of it is a priori probable and the form acceptum referre is well
evidenced8.

Acceptilatio. This was the most important formal mode, as it released
from the most important formal contract of classical and later law,
stipulatio, as well as from iusiurandum liberti9. Of the form given by
Gaius the essential words were "habesne acceptum?'' "habeo acceptum10."

1 See, however, as to noxal actions, post, § ccv. 2 Eisele, Beitrage, 16,

finds evidence in G. 4 21. See G. 3. 174, "me a te solvo" 3 G. 3. 173 sqq.

4 G. 3. 175. 5 It is suggested that sponsor to have the actio depensi must have

paid per aes et libram, the name of his action, and the repeated use by Gaius of the
word "dependere" in speaking of him supports this. Eisele, Studien, 28 sqq. 6 Vat.

Fr. 329. 7 G. 3. 170. 8 Lewis and Short, Latin Dictionary, s.v. Accipio,

E. See, however, for a special view of its nature, Heck, Archiv /. c. Pr. 116. 129 sqq.

9 46. 4. 13. pr. It is not shewn that it applied to dotis dictio, but it probably did.

10 G. 3. 169.

568 RELEASE OF DEBT [CH.

Ulpian says that "acceptumfacis," "facio" would do as well, and that as
it was, like stipulatio, iuris gentium, it might be in Greek1. It could not
be under express dies or condicio2, though the obligation released might,
and the acceptilatio would operate when the dies or condicio arrived3.
It might cover more than one stipulatio, and, conversely, though this was
doubted in the time of Gaius, it might, in later classical law, be a release
of part of a promise, unless the promise was indivisible, in which case the
acceptilaiio of part was void4. It could not be by procurator in classical
law5, and while a slave could take an acceptilatio he could not give one6.

Here too the act proceeded from the party to be released. It effected
complete extinction, like payment7, releasing sureties and correi, and
where it was given to a surety it released the principal, even though his
contract was not stipulatio8.

Though it applied only to verbal contract it might be made effective
in a wider field by first novating the contract. The stipulatio Aquiliana
was an important illustration of this. It was a means of discharging
any debts existing between two parties by novating them into a stipulatio
and releasing this by acceptilatio. We have the form in t\vo places9, not
quite identically, and thus shewing that it might vary both in expression
and inclusiveness. Both are very inclusive. The stipulatio covered iura
in rem, these being contemplated as actionable liabilities10. It might
cover only one group of debts or all. Neither form seems to cover delicts
and possibly it was not usual to include these. It must be remembered
that its use was not an act of charity; men do not usually abandon their
claims for nothing. If there were cross claims between parties enquiry
would shew that a balance was due one wray. Matters were simplified
by stipulationes Aquilianae and acceptilationes on the old debts and a
new stipulatio for the balance11. No doubt it was often a compromise.

Consensual contracts could be discharged as from formation by
contrarius consensus, provided nothing had yet been done. This was a
full civil law discharge12. If something had been done, or some event
had released one party, it would only be a pactum de non petendo avail-
able by way of exceptio13. It was disputed whether giving a surety was

1 46. 4. 7; h. t. 8. 4. 2 46. 4. 4; h. t. 5. But like other actus legitimi, it

might be dependent on some tacit condition, h. t. 11. 3; 23. 3. 43. pr. ; 50. 17. 77.
3 46. 4. 12. 4 G. 3. 172; D. 46. 4. 9; h. t. 13. 1. 5 46. 4. 13. 10. H. t. 3 is

probably interpolated; see also C. 8. 41. 4. 6 43. 4. 8. 1, 2; h. t. 11; h. t. 22.

7 46. 4. 5. 8 45. 2. 2; 46. 4. 13. 7, 12. An acceptilatio which failed as such might be

good as a pactum de non petendo, 46. 4. 8. pr. 9 46. 4. 18; Inst. 3. 29. 2. 10 Effect

on dominium not stated: apparently, traditio brevi manu, giving only bonitary ownership
of res mancipi in classical law. 11 2. 15. 2; P. 1. 1. 3. 12 46. 4. 8. pr.; h. t. 23;

Inst. 3. 29. 4. See 18. 5. 5. pr. ; 46. 4. 23; release by one is, in such a case, mutual release.
13 2. 14. 58; C. 4. 45. 1 ; h. t. 2. But as they are all bonaefidei, this is much the same thing.
The thing done must, apart from special agreement, be undone.

xii] PACT NOT TO SUE 569

such part performance as barred civil discharge by contrarius
consensus1.

As contracts re essentially involved something done there was no
discharge by contrarius consensus. Acceptance of return of the res
would in effect destroy it for the future, ex fide bona, but not for the past,
unless there was special agreement, amounting topactum de nonpetendo2.

Pacturn de non petendo. This was, apart from delict, a praetorian
defence. It was an informal agreement not to sue, express or tacit, i.e.
inferred from conduct. It might apply to any debt or part of a debt and
be subject to any limitations3. It might be consented to by messenger,
and even by a slave4. The defence was an exceptio pacti, which need not
be expressed in bonae fidei indicia, and might be met by replicatio doli
and so forth. The most important point is the distinction between pacta
in personam and pacta in rein.

Pacta in rem were pacts that an action should not be brought, with
no limitation as to the person who was not to sue or be sued. Pacta in
personam were pacts that action should not be brought by or against
particular persons. This was commonly shewn by naming the person:
" ne T (a T) peteret (peter etur)" but this was not conclusive. It was to
be decided, ex mente, the name being sometimes inserted only to shew
who made it, with no intention of limitation5, and there was a general
presumption that the pact was in rem. It might be made to exclude
particular persons who would otherwise be entitled to use it6. A pact
in personam affected only him who made it, not even his heres1. One
in rem affected any one suing or sued for the same debt, if there was a
right of regress, as otherwise the pact would be illusory8. Where there
were several creditors a pact by one could not be used against the others,
even if it was in rem, unless there was regress9. A surety, as he could
claim reimbursement, could use a pact made with his principal10, but
not vice versa, or one made with a co-surety, as the right of regress did
not exist11. Socii had such a right, and thus the pact of one could be
used by the others12. The rule, being due to the right of regress, did not

1 Papinian allows it. Paul on Julian's authority holds that the release is only by
exceptio. 18. 5. 3; 46. 3. 95. 12. 2 Texts are wanting, see 13. 6. 17. 5. 3 2. 14.

7. 6; h. t. 17. 3; h. t. 27. 7; h. t. 41. 4 2. 14. 2; h. t. 17. 7-19; h. t. 28. 2. 5 2. 14.

7. 8. 6 2. 14. 17. 3; h. t. 22. 7 2. 14. 21. pr. ; h. t. 25. 1 ; 24. 3. 31. 1 ; 23. 4. 20. 2.

8 2. 14. 21. 5; h. t. 32. 9 2. 14. 27. pr.; see h. t. 28. 1. 10 2. 14. 21. 5; h. t. 32.

11 2. 14. 21. 5; h. t. 25. 2; h. t. 26. 12 2. 14. 14; h. t. 25. pr. Julian in 34. 3. 3. 3

seems to deny socii the pact. It has been maintained on 46. 3. 34. 11, that correal debtors
never had the right in classical law, and similarly, on 2. 14. 19. 1-21. pr. ; 24. 3. 31. 1;
23. 4. 20. 2, that a heres had not the right in classical law unless expressly mentioned.
See Cuq, Manuel, 625. But in all these texts the pact is expressly in personam. The sug-
gestion is that the distinction between p. in r. and p. in personam is largely the work of
the compilers.

570 PACT NOT TO SUE [CH.

apply where on the facts this was excluded. Thus afideiussor who acted
donandi animo, renouncing his right of regress, could not use his principal's
pact1, and conversely, if, though nominally a fideiussor, it was really
his own affair, he could use a pact made with his nominal principal, for
the formal positions were in fact reversed2. A pact made with a vendor
was available to his buyer3, since the buyer had or might have a claim
ex empto. A pact by or to the possessor of a hereditas did not in any way
affect the true heres*. Correal debtors as such had no right of regress,
and a pact not to sue one did not therefore affect the others5.

A pact that a third party should not be sued was in principle void,
and was not confirmed though the third party afterwards became heres
to the pactor6. Thus it was generally held that a pact by reus that a
surety should not be sued was of no value, but Paul held that as in such
a case it was the principal who really benefited, the purpose of the
general rule required that the surety should be allowed to use the pact7.
Pacts by a tutor or curator that the pupil or furiosus or prodigus should
not be sued were available to the ward, an equitable relaxation, carrying-
out the principle that actions lying against the guardian could be brought
against the ward at the end of the wardship8.

Within the family the rules were different owing to the fact that the
subordinate acquired for the paterfamilias. A pact by son or slave9 " ne
peter etur" or "ne a patre peter etur" was good for the paterfamilias10. A
son's pact " ne a se peteretur" was valid for him or the pater or his heres
if sued in any way on the son's obligation11, but if the son was dead, as
it was framed personally, it was useless12, a rule more logical than
reasonable as de peculio still lay for a year. A slave's pact "tie ipse
petereV was a nullity13; he could never sue. But a slave's or son's pact
not to sue, if in rem, was valid against the pater, in re peculiari, if he
had administratio peculii and it was not donandi animo13. A son's per-
sonal pact not to sue might be good, as there were cases in which he
could sue14. A pact by a paterfamilias that the son should not be sued
was not valid for the son, but Proculus held that the father could use
it if sued on the son's account, to which Paul (or Tribonian) adds the
limitation, "si in paciscendo id acturn sit" which destroys the rule15.

1 2. 14. 32. 2 2. 14. 24. 3 2. 14. 17. 5. Sabinus held that this applied even if it
was in personam; no doubt the pact is contemplated as part of the commoda rei. He also
allowed it in case of donee, but this, it would seem, must depend on the terms of the gift.
4 2. 14. 17. 6. 5 46. 3. 34. 11. Ante, § CLvm. The rule in 2. 14. 25. pr. applies only

to socii. 6 2. 14. 17. 4. 7 2. 14. 27. 1. 8 2. 14. 15; h. t. 28. 1; C. 2. 3. 22.

But not vice versa. See ante, § LV. 9 Or one bona fide serviens, and no doubt f ructuary,
within the field of acquisition through such persons. 10 2. 14. 17. 7-21. 1. 11 2.

14. 19. 1; h. t. 20. 12 2. 14. 21. pr. 13 2. 14. 23. 2. But it will never bar the

father's right to sue on an iniuria to the son, the father's right being independent of the
son's, h. t. 30. pr. 14 2. 14. 28. 2; h. t. 30. pr. 15 2. 14. 21. 2.

xii] DELICT 571

In some cases where the pact was not available the exceptio doli
might, be used as a " subsidium" thereto1, but the principle is obscure.
A debtor had exceptio doli on a pact to his procurator or surety2, pro-
vided, says Ulpian, at least as quoted in the Digest, that this was meant,
and he applies the same rule as between co-sureties3. A father's pact
that his son should not be sued gave the son exceptio doli, at any rate
under Justinian4. A slave's pact " ne a se peteretur" gave the master an
exceptio doli5. So, too, if a filius made such a pact with creditors of a
hereditas on which he would enter after emancipatio, or a slave heres
acted similarly, thoiigh the slave's pact was a nullity, and the son's was
lost to him by the emancipatio, they had exceptio doli, though this was
doubtful in classical law, for the case of the slave6.

In delict, by virtue of words in the XII Tables, pact was a complete
defence at civil law, and, as the Tables7 use the same language as to
coming to terms after litis contestatio on any claim, it is possible that the
same rule applied there, but there is no sign of this in later law.

CXCVI. OBLIGATIO EX DELICTO. This, the second of Gaius' two
classes of obligation, was essentially a wrong done, consisting in breach
of a ius in rem, giving rise to an action for a penalty, distinct from that
which also existed in many cases, for restoration. This type of obligation
has some special characteristics which must be noted. As we have just
seen a mere pact was a complete defence at civil law, a rule which rests
on strict interpretation of the XII Tables. It had other remarkable
characteristics which originate in the fact that action on such an obliga-
tion was in origin a legal substitute for self-help, which in this case meant
revenge. Thus the action did not lie against the heres of the wrongdoer8,
revenge being a personal matter. On the other hand, for the same reason
it was not affected by capitis deminutio of the wrongdoer9, since, though
his legal personality was changed, he was still in fact the same man.
Where a delict had been committed by two or more in concert each was
liable to the whole penalty; there was no question of satisfaction by one
releasing the others10. This may be referable to the same notion: revenge
would not be so subdivided.

Justinian's symmetrical arrangement, which gives four delicts, is
artificial. It treats rapine and theft as distinct delicts, whereas rapine

1 2. 14. 10. 2. 2 76.: h. t. 25. 2. 3 2. 14. 26. 4 2. 14. 21. 2. 5 2. 14.

21. 1. 6 2. 14. 7. 18, 19. It will be seen that many of the texts have probably been

altered, and how far the above rules represent classical law may be doubted. Analogous
principles to those stated in the text were applied in case of confusio, transact 10 and set
off, 4. 8. 34. pr.; 16. 2. 5; h. t. 9. 1; 45. 2. 10. 7 1. 7; 8. 2. Girard, Textes, 12, 17;

Bruns, 1. 19, 29; Cons. 9. 1. 8 Post, § ccxxxiv. 9 Ante, § L. 10 47. 2.

21. 9; 9. 2. 11. 2; 47. 10. 34. As to an apparent exception in the cases of dolus and mctus,
post, § coin.

572 FURTUM [CH.

is aggravated theft, and it omits a number of wrongs, some of which
will call for discussion, which must on any reasonable definition of the
word come under the head of delict. He considers them all to be of one
class in that they all originate ''re, id est ex ipso maleficio," where res
is used in the sense of faction, the explanation being due to Gains1. The
four which he discusses, certainly the most important, are Furtum,
Rapina, Damnum iniuria datum and Iniuria?.

FURTUM. This is defined by Justinian as " contrectatio fraudulosa
vel ipsius rei vel etiam usus eius possessionisve?." This omits certain
elements essential to the definition. In the law as we know it, the subject-
matter must have been a res mobilis or one which became mobilis by the
theft, e.g. crops4, though Sabinus is said to have held that there could
be theft of land5. It must have been with a view to profit, lucrifaciendi
gratia6, which is however, as illustrated in the texts, a somewhat unwork-
able requirement7. The res must be a res in commercio to which some one
has a right. Thus there could be no furtum of ordinary res nullius, or of
res sacrae, though here there were other remedies8. For the same reason
there could be no furtum of res hereditariae, since they belonged to no one
at the moment9. As a by-product of the old law of usucapio lucrativa
pro herede the rule actually was that there could be no theft of such
things till they had actually been possessed by the heres10. But if, though
the hereditas was vacant, there was some other right existing in the res,
e.g. usufruct or pledge, which gave the holder a right of action for theft,
this right was not affected, and in such a case the heres also had a right
of action when he had entered11.

Contrectatio means handling, and thus theft involved actual meddling
with the thing. But it did not necessarily involve taking the thing
without consent from the owner's possession into the thief's. That is
the obvious case, but there were others, e.g. inducing a debtor to pay to
him by pretending that he was the creditor, or was the person authorised
by him to collect the money12, or even, according to most of the jurists,

1 44. 7. 4; Inst. 4. 1. pr. 2 The others of importance are mostly praetorian,

which would account for their omission by Gaius. 3 Inst. 4. 1. 1. 4 47.

2. 25. pr. 5 Aul. Gell. 11. 18. 13. As to the actio de tigno iuncto, ante, § Lxxvm.

6 47. 2. 1. 3. It is not so stated in the Institutes or in Gaius or in Pauli Sententiae,
but it is at any rate for some purposes old law; see Sabinus in Aul. Gell. 11. 18. 21. 7 It
seems to mean little more than that mere wanton destruction is not theft whatever else
it is. (See Monro, de furtis, 77, where it is shewn that the various texts on the matter
indicate a very uncertain notion.) See 47. 2. 55. 1. It is contended by Huvelin (N.B.H.
42. 73 sqq.) that as a general requirement it is due to Justinian. See also Huvelin, fitudes
sur le furtum, 1. 537, 783. 8 See ante, § LXVH. 9 G. 3. 201; D. 47. 2. 69. For

the remedy by crimen expilatae hereditatis, see 47. 19. 1. 10 G. 2. 52 ; 3. 201 ; P. 2. 31. 11 ;

D. 47. 19. 2; C. 9. 32. 6. 11 41. 3. 35; 47. 2. 69-71. The idea seems to be that where

the res was in the hands of a fructuary all the possession exists which is de facto possible.
12 47. 2. 43. pr., 1 ; h. t. 81. 6. The essential point is that there is an intention to pass the

xn] FURTUM 573

knowingly to receive payment of what was not due1. Still more striking
are the cases of what were called in Justinian's law, furtum usus and
furtum possessionis. That a commodatarius should be liable for theft
for selling the thing is rational, but the law went further. There was
furtum usus if a depositee used the thing, or a commodatarius, not
thinking the owner would assent, used it for unauthorised purposes2. It
w as furtum possessionis for an owner to take the thing from one who had
a ius in rem against him, usufructuary, pledgee or the like, or even from a
conductor with a right of retention for expenses3. These wrere thefts, and
though some classical texts assume that what was stolen must be a res
aliena*, the rules were classical, though it is not so clear that the expres-
sions furtum usus, possessionis were5. The notion of theft as involving
intent to deprive the owner of his whole interest is not really the Roman
conception.

The contrectatio must be fraudulosa; it must be against the interested
person's will6. One who supposed that the owner consented was not a
thief, nor was one who thought the owner did not consent, when in fact
he did7. It was not theft to take a thing believing one was entitled, even
though the error was one of law, and it was immaterial how causeless
the error was8.

Persons other than the actual thief might be liable to the actio furti,
i.e. those who have helped ope el consilio9. It is not easy to dra\v a clear
line between these, but, roughly, ope means by physical help, and
consilio by advice, that is, not advice to steal, urging and encouragement,
but suggestions as to method and so forth10. If several were concerned in
a theft, each was liable to the whole penalty; there was no question of
release by payment by one of them11.

There might be furtum with no actio furti. Thus if a filiusfamilias
stole from the pater there wras no actio furti as there could be no action
at all in such a case, but there was furtum, for accomplices were liable

ownership to some one other than the actual receiver. If, however misled, the owner
intended to pass the property to the actual receiver it is not furtum whatever else it may be.
1 13. 1. 18. The language of this text goes further than the principles expressed in
those cited in the last note. 2 47. 2. 77. pr.; G. 3. 196, 7; Inst. 4. 1. 6, 7.

3 47. 2. 15. 1 ; h. t. 19. 5; h. t. 60; G. 3. 200; Inst. 4. 1. 10. 4 G. 3. 195; P. 2. 31. 1.

5 The}' were probably thought of as furtum by wrongly taking the use or the possession.
See the discussion and references in Monro, de furtis, App. 1. 6 Inst. 4. 1. 1; D.

47. 2. 76. 7 47. 2. 46. 7, 8. 8 47. 2. 46. 7; h. t. 83. These rules gave rise to

dispute in connexion with the delict of servi corruptio, post, § cent. 9 Inst. 4. 1.

11. It is maintained by Huvelin (Etudes sur le furtum, 1. 392 sqq.) with predecessors,
that in early law the expression "ope consilio" had no relation to assistance to the thief
but referred to the act of the principal, "ope" being his act, "consilio" his intent. See
G. 4. 37. 10 47. 2. 50. 3; Inst. 4. 1. 11. If it did benefit the thief but was not so

intended Gains doubts whether there is not an actio infattum for the culpa. See post, p. 574,
n. 6. 11 C. 4. 8. 1. As to theft by several slaves of the same master, post, § ccv.

574 FURTUM [CH.

and the res was furtiva1. So too, no actio furti lay where one party to a
marriage stole from the other, because no infaming action lay in such
a relation2, but accomplices were liable, the res was furtiva3, and there
was a special action for the recovery of the property — actio rerum
amotarum*. We are also told that there was no actio furti for " domestica
furta," i.e. theft by liberti and free employees living with the patron5.
Apparently the domestic authority sufficed for that6.

CXCVII. Presumably, in the majority of cases, it would be the
owner7 who proceeded for theft, but other persons might have a sufficient
interesse to entitle them to sue. Conversely the owner had not the action
unless he had an interesse, and thus not where someone was responsible
to him, so that he did not stand to lose by the theft. The types of interesse
other than that of the owner were substantially two.

(a) The positive interesse of one who had a ius in rein in the thing,
including a bona fide possessor8. Usufructuary, emphyteuta and usuary
are the other obvious cases9. These had the action by reason of what
they lost10, as also had the owner11.

(b) A negative interesse in those who were responsible to the dominus
if the thing was lost, which interesse barred any in the dominus12. The
damages recovered were kept; the owner had no claim to them, though
there was in classical law some doubt in the case of commodatarius™. To
bring these rules into operation there must be a real liability. If the
person liable under the contract was insolvent, so that he had nothing
to lose, the owner had the action and he had not, and if he became
insolvent before the action it passed to the owner14, though here, too, there
were doubts in commodatum15. So, too, if the dominus released his claim
under the contract, he had the action and the other party had not16.

1 5. 1. 4; 47. 2. 16; h. t. 17; Inst, 4. 1. 12. 2 25. 2. 1; h. t. 7; C. 6. 2. 22.

4; post, § cxcvm. 3 25. 2. 29. 4 25. 2; C. 5. 21. 5 47. 2. 90; 48.

19. 11. 1. 6 The earlier conception of furtum was much wider. Sabinus laid

little stress on the element of guilt. He makes a man liable for acts amounting to "ope et
consilio" after the theft. He and Q. Mucius, older still, lay it down that any use by a
detentor in excess of his right is furtum. He and others also hold that there may be furtum
of land. Aul. Gell. 6. 15; 11. 18. 7 Several texts tell us that there might be furtum

of free persons. Gaius (3. 199) speaks of those in potestas or manus and iudicati and auctorati.
He does not mention those in mancipio. In Justinian's law texts still speak of actio furti
in case of those in potestas (Inst. 4. 1. 9; D. 47. 2. 14. 13; h. t. 38) but it may be doubted
whether it was a living part of the law. 8 47. 2. 12. 1; h. t. 20. 1; h. t. 56. 1.

9 47. 2. 15; h. t. 46. 1-4. As to pledge creditor and holder with a ius retentionis, post,
p. 575. 10 It is maintained by Schulz, Z.S.S. 32. 23 sqq., that no one but the owner

had this positive interesse in classical law (except where the owner was the thief) all others
mentioned being responsible to him for the thing, and having the action on that account
and excluding him. But this seems in conflict with the sources. See Buckland, N.R.H.
1917, 5 sqq. 11 47. 2. 46. 1. 12 G. 3. 203; Inst. 4. 1. 13. 13 19.

2. 6; C. 6. 2. 22. 3 a. 14 47. 2. 12. pr.; h. t. 14. 17; G. 3. 205; Inst. 4. 1. 15.

15 C. 6. 2. 22. 1 b. 16 47. 2. 54. 1; h. t. 91. pr.

xn] FURTUM 575

Among those said to have this right are commodatarius, conductor
operis, especially fidlo and sarcinator, conductor rei, mandatarius, nauta,
caupo and stabularius1, and no doubt others. But while in some cases
it is said that they had the action if the theft was by their culpa2, in
others it is assumed that, subject to the limits already stated, they
always had it, and, in some, this is based on the obligation custodiam
praestare3. This opens up the question already considered4 as to the
meaning and possible changes of meaning of this word. Here it need
only be noted that as culpa levis was always presumed, these holders
would always be prima facie liable for the loss without the need of
appealing to the principle of absolute liability.

For commodatum the law was altered by Justinian. He provided
that where a thing lent was stolen, the owner had the choice whether
he would sue the thief, in which case all liability of the commodatarius
was ended, or rely on his contract, leaving the commodatarius to sue the
thief. But if he took this course not knowing of the theft, he could change
his mind on discovering the facts5.

Two exceptional cases must be noted. We hear of an inter esse based
on the right of retention for expenses, the action being allowed to every
one who had such a right, except depositee6, but there is no evidence that
this right was enough, except where the thief was the owner. Also, a
pledge creditor had the action, but its basis is obscure. Some texts base
it on a liability for the thing and apply the rules which follow from this 7.
Others make the creditor impute the damages to the debt8, which is
inconsistent with this basis9. Others give both him and the owner the
action10, which is also inconsistent with the custodia basis. Some allow
pledgee to recover on a unit of the whole value, while others limit the
unit to the amount of the debt11. He could not sue twice on two thefts
if the amount due to him had been recovered on the first12. Yet he could
hardly be less liable because the debt had been paid. No doubt there are
differences of opinion, and changes of doctrine here, but the matter is
controversial.

There was an overriding rule that the interesse must be honestum.
This is of small importance in the case of positive interesse, but, while a
bonafide possessor had the action, a mala fide possessor had not, because
his interesse was not honestum, though the thing was at his risk13. For
the same reason a depositee who has acted dolosely with the thing, e.g.

1 G. 3. 205 sqq.; Inst. 4. 1. 15, 16; D. 47. 2. 12. pr.; h. t. 14. 2, 9, 12, 14, 17. 2 E.g.
47.2.14.12. 3 E.g. 47. 2. 12. pr.; h. t. 14. 2; 14. 17, etc. 4 Ante, § cxci.

5 Inst. 4. 1. 16; C. 6. 2. 22. 6 47. 2. 15. 2; h. t. 60; 47. 8. 2. 23; C. 4. 34. 11. 7 47. 2.
14. 16, both suspicious. 8 13. 7. 22. pr.; 47. 2. 15. pr. 9 19. 2. 6. 10 Unless

the thing is worth less than the debt, 47. 2. 12. 2; h. t. 14. 6; h. t. 19. 6; h. t. 46. 4.
11 47. 2. 14. 5-7 ; h. t. 15. pr. ; h. t. 88. 12 47. 2. 14. 6. 13 47. 2. 12. 1 .

576 FURTUM [CH.

by lending it, though he had the liability had no actio furti1. But one
who had an honest interesse did not lose it because he had also been
dishonest. If a thing is stolen from the owner, who himself had stolen
it from a pledgee, he had the actio furti as owner2. Afullo was liable for
custodia. If he lent the thing, which he had no right to do, and it was
stolen, we are told that he had the actio furti3, though himself liable for
theft for his loan. If A stole a man and he stole from A, A had furti
noxolis against his owner4— a grotesque case, but correct in principle;
A's interesse in the thing was honestum; it did not matter that he had no
honestum interesse in the thief5.

CXCVIII. The actions resulting from theft may be classed under
two heads:

(i) Ad poenam persequendam, the actio furti for a penalty. Furtum
manifestum was more severely dealt with than furtum nee manifestum.
Manifest theft occurred where the thief was caught in the act, an ex-
pression as to the meaning of which there were different views. On one
view it was during commission, on another, while still at the place, on
another, generally however rejected, while still in possession of the
thing6. The classical law as expressed by Gaius seems to have accepted
presence at the spot7. But Justinian goes further and accepts a view,
suggested by Sabinus and stated by Paul, that it was still manifest if the
thief, on the same day, had not yet deposited the thing in a safe place8.
According to the Institutes "caught" meant "visus vel deprehensus"
which seems to mean seen and identified9, but the rule as stated in the
Digest requires capture or at least pursuit and capture of the goods
thrown down by the thief10. A man was still committing furtum so long
as he had the thing, but if it had ceased to be manifest it did not become
so if he was afterwards caught with the goods11. To this there was one
ancient exception. If a man's premises were solemnly searched ''''lance
licioque," i.e. by a man wearing a loin cloth and bearing a dish, and the
goods were found, this was manifest theft12. This rule, of the XII Tables
and perhaps Greek13, which is explained in many ways14, seems to have
1 G. 3. 207;Inst. 4. 1. 17; D. 47. 2. 14. 3. It is true that Servius had held that in some
cases a thief might have actio furti, but this was not accepted, h. t. 14. 4; h. t. 77. 1.
2 P. 2. 31. 19. 3 47. 2. 48. 4. 4 47. 2. 68. 4. 5 There are however some texts
which conflict and hold that one who acts dolosely with the res loses any actio furti. 4. 9.
4. pr.; 47. 2. 14. 8, 9. 6 G. 3. 184, 185; Inst. 4. 1. 3; D. 47. 2. 3 sqq. 7 G. 3. 184.

8 47. 2. 4, 5; Inst. 4. 1. 3; P. 2. 31. 2. The limitation to the same day did not exist in the
time of Gaius, who speaks of uncertainty in the matter. It is attributed to Paul in the
Digest, where, however, it may be interpolated. 9 Inst. 4. 1. 3. 10 47. 2. 7.

11 47. 2. 6. 12 9. 3. 192 sqq. 13 Aristophanes, Nub. 495, cited Gneist,

Syntagma, ad h. 1. 14 Gaius, loc. cit., observes that the provision is ridiculous, as such
search would be resisted by a thief and there was no penalty for this. He states and rejects
explanations of the rule. For other ancient and modern suggestions, see Danz, Gesch.
d. R. R. § 155, n. 2; Gneist, Syntagma, cit.; Costa, Storia, 314; Karlowa, R.Rg. 2. 777 sqq.

xn] FURTUM 577

been obsolete in classical law. Manifest theft was capitally punished
under the XII Tables, while non-manifest involved only a twofold
penalty1, it may be on account of the element of doubt which surrounds
non-manifest theft, but other explanations of the difference are offered2.
The praetor introduced a fourfold penalty for manifest theft, which
gives the odd result that as the civil penalty for non-manifest theft was
unaltered, that gave an actio in ius, and manifest an actio infactum3.

The unit of which a multiple was taken was the interest of the plaintiff.
For the domlnus in possession, and in the case of the negative interesse,
that was the value of the thing, in that of usufructuary it was that of
the usufruct. If the thing had increased in value, the increased value was
the unit; if it had diminished the thief did not benefit4. The interesse
also covered extrinsic resulting losses, e.g. if a slave were stolen, the
value of an inheritance to which he was instituted, and on which he
could not be authorised to enter5, and, where evidences of a debt were
stolen, the amount of the debt, if the theft prevented recovery6. The
action was perpetua and available to the heredes of the victim, but, like
all penal actions, it did not lie against the heres of the wrongdoer7.
Condemnatio involved infamia9. Bringing it in no way barred the pro-
prietary actions which might lie9.

(ii) Ad rein persequendam, to recover the property. The owner was
still owner and had the proprietary remedies against the thief or other
holder of the goods. He had vindicatio, actio ad exhibendum and the
possessory interdicts, and a thief, as a mala fide possessor, was liable
whether he had transferred or not, in classical law by the actio ad
exhibendum, in later law by the vindicatio itself10. A usufructuary would
have the actio confessoria11.

But there was also a special remedy peculiar to cases of theft called
condictio furtiva which, as we know it, was illogical, since it expressed a
claim on the part of the owner to have the ownership transferred to
him : " dareoportere12." It was a quasi-contractual action, available against
the thief or his heres, and, unlike the delictal obligation, extinguished,
to the extent already mentioned, by capitis deminutio13. Since a thief was
not owner he could not "dare"; and Gaius has no better explanation to
give of the illogicality than that it was allowed " odio furum." It is
possible that it lay at first only where the thing had ceased to exist. It

\ G. 3. 189. 2 See, e.g., Maine, Anc. Law, 379. 3 G. 3. 189, 190; Lenel, E.P.
321. 4- 47. 2. 50. pr. 5 47. 2. 27; h. t. 52. 28. 6 47. 2. 27. 2. For the

puzzles set up by this rule, see Monro, defurtis, 37. 7 47. 1. 1. pr. ; Inst. 4. 12. pr., 1 ;

G. 4. 112. 8 3. 2. 1. 9 13. 1. 7. 1. 10 6. 1. 27. 3; ante, §§ xci, CLXXXVII.

11 7. 6. 5. 1. 12 G. 4. 4. The view of Sabinus that land could be stolen, and the

anomalous nature of this condictio, are reflected in texts suggesting it where land is " <•/
possessum." 13. 3. 2; 47. 2. 25. 1. 13 Ante, § L.

B. R. L. 37

578 FURTUM [CH.

has been suggested that it was a generalisation of the actio rerum amo-
tarum which lay on theft between husband and wife1. The actions were
much alike. Both were perpetuae and lay to and against the heres2. In
both, as the defendant was always in mora, it lay though the thing had
ceased to exist3. In both increase must be paid and lessening in value
was ignored4, and in both the fructus and extrinsic profits came into
account5. But while condictio furtiva was available only to owner and
pledge creditor6, the other was available to a bona fide possessor1.

It seems that in practice the owner relied usually on the condictio
rather than on vindicatio, even though the defendant was the heres6,
since it dispensed with evidence as to the position or existence of the thing.

There were some subsidiary actions connected with furtum which
must be mentioned. A person on whose premises a search made resulted
in the discovery of the goods was liable to a threefold penalty, furtum
conceptum, a simplification, or secularisation, of the still older furtum
lance Ucioque conceptum already mentioned9. Similarly one who placed
stolen goods in another's house was liable to the same penalty10 (furtum
oblatum). Gaius says there was no penalty under the XII Tables for
resisting search, but the praetor gave an actio in factum for a fourfold
penalty11 (furtum prohibitum), and, further, an action for failure to
produce stolen goods afterwards found on the premises (probably on
formal search, furtum non exhibitum). The penalty is not stated12. These
various actions are classed by some of the jurists as varieties of furtum13.
Justinian, observing that they had fallen into disuse (some of them
lasted into the fifth century14), says that in all these cases there is a lia-
bility for furtum nee manifestum15.

1 Ante, §CLXXXVH. 2 25. 2. 6. 2, 3; h. t. 21. 5; 13. 1. 7. 2. 3 25. 2. 3.

3; h. t. 17. 1; 13. 1. 8. pr. 4 25. 2. 29; 13. 1. 8. 1. 5 25. 2. 21. 3, 4; 13.

I 3. 6 13. 1. 1; h. t. 12. 2. 7 25. 2. 17. 3; h. t. 20. The hypothesis of this

origin is propounded by Mommsen (Strafr. 757). But the later development of actio rerum
amotarum, after marriage without manus became usual, seems at least equally probable,
especially in view of the fact that while the condictio is a civil action, the other is an actio
in factum. Lenel, E.P. 299. It is probable that in its origin this was a penal action, with
a condemnatio in duplum and a right of noxal surrender where the wife who removed the
goods was a filiafamilias. The action has been specially studied by Pampaloni, Sopra
alcuni azioni attinenti al delitto di furto, and Zanzucchi, II divieto delle azioni famose, both
cited by Huvelin, fitudes sur le furtum, 1. 621 sqq. These two writers hold that it was
only under Justinian that the action became the quasi-contractual institution which
we know. It seems clear that it lay only against the wife in early law, but under Justinian,
and probably in later classical law, it lay against the husband. 8 13. 1. 7. 2. 9 G. 3.
186, 191; P. 2. 31. 3. 10 G 3. 186, 187, 191; P. 2. 31. 3, "ne apud se inveniretur."

G. attributes these provisions to the XII Tables but they are probably praetorian; see
Huvelin, fitudes sur le furtum, 1. 53. 11 G. 3. 188, 192. It is probable that Gaius

is wrong in saying that the XII Tables gave no action for resisting search. 12 Inst. 4.
1. 4. It is commonly supposed to have been fourfold. This action is not mentioned in any
classical text. 13 G. 3. 183. 14 Gaius, Ep. 2. 11. 2. 15 Inst. 4. 1. 4.

xn] RAPINA 579

In modern systems theft is commonly dealt with as a crime, not a
wrong to be dealt with simply by an action for damages, and this was
essentially the attitude of early Roman Law. It is clear that this alter-
native was also possible in the law of the Empire; in fact, as thieves
have, commonly, no money, the civil remedy would often give no redress
at all. Ulpian tells us that criminal proceedings were the more usual
course1, and Julian says that judgment in such proceedings barred any
actiofurti2. The converse is probably true.

CXCIX. RAPINA. Vi BONORUM RAPTORUM. Theft with violence.

This was erected into a special delict in the troubled times of the
Republic, and the rules became a permanent part of the law. The action
was in factum and condemnation involved infamy3. The penalty was
fourfold, or rather, as this included the value of the thing, for threefold
and compensation. As it was penal and praetorian, it was annua, but,
as it covered compensation as well, perpetua as to the single value4.
Hence it was said to be mixta by some jurists and Justinian so decides5,
but it had the main characteristic of penal actions that it was not avail-
able against the heres6. As the act was furtum there would always be
the condictio furtiva7 . The principles were in general those of actio furti8.
Thus it applied only to res mobiles in commercio and owned. The con-
trectatio must be fraudulosa9.

On some points, however, there are slight signs of divergence. Thus
we are told that what could be recovered was a multiple of the verum
pretium, not of the interesse, but as one text tells us this of furtum also10,
the import is doubtful. Though in general those who could bring it
were the same, one text, probably due to Justinian, says that any sort
of interesse sufficed in this case11; in classical law the rule of interesse was
the same as in furtum12. One text suggests that mere encouragement
was enough to make a man liable for ope consilio13, which is consistent
with the genesis of the action. The action was a bar to actiofurti and any
action ad rem persequendamu. Probably in classical law it was barred
by actio furti, but under Justinian it was still available for any excess
recoverable by it15. It is plain that, in manifest theft, furti would be the
better remedy, but not in other cases. It does not appear that the action
could have been barred by vindicatio, at least as to threefold.

This delict involved bad faith, but violent enforcement of claims,

147.2.93. 247.2.57.1. 3 See Lenel, E.P. 381; D. 32. 1. 4 G. 3.

209; Inst. 4. 2. pr. 5 G. 4. 8; Inst. 4. 6. 19. See, however, 47. 8. 2. 27. 6 47. 8

2. 27, even to enrichment — sufficere condictionem. 7 47. 8. 1. 8 47. 8. 2. 23

9 47. 8. 1; h. t. 2. 18, 20; C. 9. 33. 1. 10 47. 2. 50. pr.; 47. 8. 2. 13. 11 47. 8. 2. 24,

which gives it even to a depositee. 12 Gaius treats it as always being furtum, which

seems to involve this. G. 3. 209. 13 47. 2. 81. 4. But the meaning of dolus here may

be limited by 47. 8. 2. 2. 14 47. 8. 1. 15 Ib.

37—2

580 DAMNUM INIURIA DATUM [CH.

even in good faith, needed repression. Such conduct had been criminal
from the Republic1, and Marcus Aurelius provided that one who seized
property to satisfy a claim, without judicial process, should forfeit his
claim2. In A.D. 389 it was provided that one who seized property under
a bona fide claim of right should, if the claim was well founded, forfeit
his right, and if it was unfounded should give back the property and its
value as well3. This penalty applied to land as well as moveables4. The
actions by which these rules were enforced were no doubt ordinary pro-
prietary actions, at any rate so far as the forfeiture of property was con-
cerned. Whether, where the claim was well founded, the heres of the
wrongdoer was equally liable does not appear; presumably he was not,
and he could hardly have been liable to penalty in the other case.

CC. DAM. YUM INIURIA DATUM. Wrongful damage to property.

The law of the Empire on this topic is mainly based on the I. Aquilia,
of which the date is uncertain, but earlier than the introduction of the
contract of mandate5. It does not seem that, as the Institutes rather
suggest, and the Digest actually says6, it superseded earlier provisions
as matter of law7, but it was of overwhelming practical importance and
seems to have swamped them. On the other hand there was praetorian
legislation on the matter8, apart from extensions of this statute. But it is
plain that this law. with its extensions, was much the most important part
of the scheme of remedies. The words damnum iniuria datum mean damage
unlawfully caused, but we get the expression actio damni iniuriae9.

The 1. Aquilia contained, besides a penalty for adstipulatores who
fraudulently released the debtor10 (which does not here concern us) and,
perhaps, a vaguely indicated procedure for multa as an alternative, in
the case which does concern usu, two important provisions for a civil
remedy for damage to property. Its first chapter provided that anyone
who unlawfully killed another's slave or beast within the class of pecus,
i.e. such as feed in herds, was liable to pay the owner the highest value
the thing had had within the previous year12. Its third chapter provided
that anyone who unlawfully damaged another's property in respects not

1 Mommscn, Strafr. 657 sqq. ; 4. 2. 12. 2, partly interpolated. In classical law violent
seizure of pledges by the creditor came under the I. lulia de vi, though it was not theft.
P. 5. 26. 4; D. 47. 2. 56. 2 D. 4. 2. 13; 48. 7. 7. 3 C. 8. 4. 7; Inst. 4. 2. 1.

4 Ib. 5 It contains provisions for an unfaithful adstipulator, not needed if actio

mandati existed, G. 3. 215. 6 Inst. 4. 3. pr.; G. 3. 210; D. 9. 2. I. pr. 7 Girard,
Textes, 17. 8 D. 4. 9; 39. 4. 1; 47. 9. 1, etc. 9 Inst. 4. 3. pr.; G. 3. 210; G.

4. 9; D. 9. 2. 32. pr., etc. We have also damnum iniuria, Cic. pro Rose. com. 11. 32, 18.
54. See on these irregular forms, Mommsen, Strafr. 826. In Inst. 4. 4. pr. it may be
damnum iniuria in apposition, though some editors insert '''datum." It is pointed out
by Monro (ad 9. 2. 27. 21) that though the. expression damni iniuriae is consistent with a
form damnum iniuriae this does not in fact occur. He interprets the usage as apposition,
the fact that iniuria was properly ablative being forgotten. 10 Ante, § CLV.

11 Cic. Brut. 131. 12 G. 3. 210, 214; Inst. 4. 3. pr.; D. 9. 2. 2. Inst., h. t. 1, give

xii] DAMNUM INIURIA DATUM 581

coming under the first chapter, by burning, breaking or destroying, was
liable to pay him the value the thing had had within 30 days before1.

The period of time was reckoned back, not from the death, but from
the injury2. The third chapter did not, like the first, say the highest
(plurimi) value within the 30 days, but the lawyers read this in, in order
to give the provision a meaning3. So far as the main text goes a man
who merely damaged the property had to pay the whole value, but,
apart from the bad economics of such a rule4, there is a text which
implies that what he had to pay was the difference between the highest
value and the value after the damage5.

The actio legis Aquiliae was a penal action with the ordinary conse-
quence that it did not lie against the heres, except to the extent of his
enrichment6, that it was not extinguished by capitis deminutio1, and
that each of joint wrongdoers was liable in full. It was penal as to the
whole of the damages and not merely as to the excess over the harm
done8, and as there often would be no such excess, it might, like the
actio doli, be penal where what was paid was merely compensation. It
was penal also in the sense that it was for double damages in case of
denial9, but this alone did not cause an action to be regarded as penal10.
The rule that it was duplex contra infitiantem, a result of the original
manus iniectio11, raises the question whether denial was of the facts or
of liability. We are told that one who confesses the fact of killing could
not afterwards deny liability, but might prove that the man was not
dead, or died from natural causes12. The text describes the action in
which he has confessed the fact as confessoria™.

The damage must be unlawful, but need not be wilful; negligence
was enough14. But the negligence must be active; mere omission did
not suffice15. Cases which look like exceptions, as of one who, having
lit a fire, neglected to look after it, so that it spread to the next property16,

a list of the animals, all ordinary domestic beasts, treated as pecus. D. 9. 2. 2. 2 adds
elephants and camels if tamed.

1 G. 3. 217; Inst. 4. 3. 13; D. 9. 2. 27. 5. 2 9. 2. 21. 1. Julian. 3 G. 3. 218.

4 It would give no inducement to stop if some damage had been done, unless the deft,
might take the res, of which there is no evidence. 5 9. 2. 24. 6 G. 4. 112; D.

9. 2. 23. 8. 7 4. 5. 2. 3. 8 Arg. 9. 2. 11. 2. Pernice, Saclibeschadigung, 125.

9 9. 2. 23. 10. 10 E.g. the action on legatum per damnationem. As to the essentials

of a penal action, post, § ccxxxm. 11 Post, § ccxn. 12 9. 2. 23. 11; h. t. 25.

pr. ; 42. 2. 4. The distinction drawn seems to rest on a confused notion of possibility. See
Monro, I. Aquilia, App. 3. 13 9. 2. 23. 11. This seems to imply that confession of the
fact alone makes the action confessoria, but only, it seems, because it dispenses with proof
of the iniuria. But in Coll. 12. 7. 1 the words are "sifatebitur iniuriaoccisum me," and in
D. 9. 2. 25. 2 (which may be interpolated Beseler, Beitrdge, 1. 54) the principle is the
same. It must be remembered that culpa sufficed and was presumed. 14 G. 3.

211; Inst. 4. 3. 3; D. 9. 2. 5. 1. 15 Arg. "occidere," etc. 16 9. 2. 27. 9 -Coll.

12. 7. 7. See also h. t. 8. pr. and Pernice, cit., 164 sqq. ; Grueber, I. Aquilia, 208 sqq.

582 DAMNUM INIURIA DATUM [CH.

were cases in which an act was done with insufficient attention to con-
sequences. The strongest case is that in which A lit a fire and B watched
it negligently. B was liable1. But he was not a casual passer without
privity; he was one who had done something to make himself responsible.
In most of the cases of this type the remedy was not the action itself, but
a praetorian extension.

The negligence need not be extreme; slight negligence created the
liability2. This rule raises the question, where there was a contract
between the parties in which culpa did not create liability, e.g. deposit,
whether damage caused by negligence created the Aquilian liability.
There is no decisive text and both views are held3. The dominant opinion
is that the liability existed4.

Contributory negligence of the aggrieved person might be a defence.
This is sometimes misleadingly called "cziTpa-compensation," which
suggests both some sort of quantitative relation between them, and the
notion of damage to the defendant by the plaintiff, neither of which
notions has anything to do with the matter. The true principle is one of
causal connexion. The causal nexus was broken if there intervened,
between the culpa of the defendant and the damage, some other cause
without which the damage would not have occurred5. Where a man
wounded another not mortally, who died in consequence of being neg-
lected, he was liable for the wounding but not for the death6. But if
the original act was wilful it is generally held, though there is no explicit
text, that intervening negligence of the injured person was no defence,
though there was the same breach of causal nexus. The texts dealing
with the case where the intervening event was a wrongful act of a third
person present some difficulty, but their doctrine seems to be as follows7:
Where a slave, wounded by A and then by B, died, if each act would
certainly have killed, A had wounded, B had killed. If several wounded
and it was clear which killed, he alone was liable for the killing. If it
was not made out that one killed, more than another, all were liable for
killing. If it was clear that A's wound would have killed, but not clear
whether B's would or not, apart from ^4's previous act, both were liable.
But there is much controversy on this. It is generally held that the texts
cannot be reconciled8.

CCI. The statute was at first very narrowly construed. At one time
it seems that it was inferred from the etymology of the word "occido"

1 9. 2. 27. 9. 2 9. 2. 44. pr. 3 Pernice, cit. 78 sqq. ; Windscheid, Lehrb. § 455,

n. 12 in f. 4 The doctrine reduces the rule in depositum to an absurdity in a wide

range of cases: the further liability might seem reasonably to be excluded by the con-
tract. 5 9. 2. 11. pr.; 50. 17. 203. 6 9. 2. 30. 4; h. t. 52. pr. 7 The principal
texts are 9. 2. 11. 2, 3; h. t. 15. 1; h. t. 51. 1. 8 Pernice, op. cit. 60; Windscheid,

Lehrb. 2. § 258, n. 15; Beseler, Beitrdge, 3. 9, 3. 20, 4. 194.

xn] DAMNUM INIURIA DATUM 583

that the act must have been done directly by the person of the wrongdoer
or a weapon held by him. But the early lawyers extended this to killing
by, e.g., actually administering poison1. The rule so understood was ex-
pressed in the words that it must be " corpori corpore," by the wrongdoer's
body to that of the injured thing2. Another extension made at civil law
by interpretatio, was to understand "rumpere" in the third chapter to
mean " corrumpere, " so that it covered any form of material damage
and the other words became unimportant3. Further, in construing the
words "highest value" the jurists included what is called " damnum
emergens," loss due to extrinsic circumstances4, and "lucrum cessans,"
profit which the fact prevented the owner from making5. The killing of
one horse of a pair, of one of a troupe of actors6, are instances of the
first, as the loss was greater than the value of the thing as a single thing.
The second is illustrated by loss of a hereditas on which the slave would
have entered7. But it must be a material loss: value of affection was not
taken into account8. Though the statute applied only to res mobiles, its
application was extended to land9.

Even so extended, the statute was extremely narrow; it was left to
the praetor to make further extensions, not of the action itself, but by
providing analogous remedies for analogous cases. Such are the follow-
ing:

(a) The lex applied only where the aggrieved person was the dominus.
The praetor provided an actio utilis, or one in factum, to persons with
lesser iura in rem, e.g. usufruct, the unit here being the value of the
interest, the owner having also an action for the value of his interest10.
A bona fide possessor had the action for the full value, but if ultimately
sued by the owner, must give up what he had recovered11. Under Jus-
tinian, but probably not before, a pledgee had it if the debtor was
insolvent, or if he had from any cause lost his personal claim against the
debtor12. In all these cases it lay against the owner himself, as an actio
in factum13. In general one with a mere ius in personam had not the
extended action, but one text gives it to a colonus where weeds are sown
in a cornfield14.

1 9. 2. 7. 6; h. t. 9. pr. 2 Inst. 4. 3. 16. 3 G. 3. 217. 4 Inst. 4. 3. 10.

5 G. 3. 212; Inst. 4. 3. 10. In the case of a slave killed there are alternative criminal
proceedings. 6 9. 2. 22. 1. 7 9. 2. 23. pr. ; Inst. 4. 3. 10. 8 9. 2. 33. pr.

9 9. 2. 27. 7-9; Coll. 12. 2. 7. 10 9. 2. 11. 10. 11 5. 3. 55; 9. 2. 11. 8; h. t. 17.

12 9. 2. 30. 1, interp. 13 9. 2. 12; h. t. 17. The genuineness of 17 may be doubted, as
to b.f. p. in view of 5. 3. 55, as to pledgee, before Justinian, see n. 12. 14 9. 2. 27. 14

(cp. h. 1. 20, which gives direct action to owner of grain with which sand has been mixed).
In the present case the injury is to the crop, which will ultimately belong to colonus, indeed
he hardly suffers injury till this has grown. No text authorises the view that a mere ius
in personam gave the action (9. 2. 11. 9). It is disputed whether 27. 14 is interpolated or
not, Debray, N.S.H. 33. 643.

584 DAMNUM INIURIA DATUM [CH.

(b) Leges did not apply to persons not cives, unless expressly, but an
actio ficticia was given in this case as if they were cives1.

(c) The lex covered only cases of property. Injury of a freeman was
thus not within it, for a man did not own his body. The praetor gave an
actio utilis to a freeman who, or whose filiusf&mUias, had been injured2,
but not where a freeman was killed3.

(d) The lex applied only where the damage was done by the body to
the body, corpore corpori. The praetor gave an action, utilis or in factum,
in cases not within this conception, where it was by but not to the body,
as by throwing frumentum into a river4. It might not be harmed, but in
effect it was destroyed. So too where it was to, but not by, the body,
as by putting poison where a slave was likely to take it, but not actually
administering it5. So too where it was neither, as by opening a stable
door so that animals escaped and were lost. It is easy to see that these
lines might be difficult to draw. There is no great difference between
mixing the seed in the sower's bag, which gives the direct action, and
sowing false seed after him which does not6. The line between actually
administering poison and merely facilitating the taking might be rather
fine.

In some of these cases an actio utilis was given; in others an actio in
factum. Gains tells us that it was utilis wherever it was not corpore7,
but the Institutes say that if it was not corpore or corpori the action
was in factum, which would make it utilis if it was corpore but not
corpori6. When we turn to the texts in the Digest it is difficult to make
them conform to any rule. Even the direct action is given in cases which
seem to be more appropriate to one of the others9, and as between these,
any logical scheme is unattainable. This may be due to the fact that the
question was one of procedure10, never very important, and practically
obsolete in the time of Justinian. In view of the words "reddendo
actiones in factum accommodatas legi Aquiliae, idque utilitas huius legis
exigit11," it is to be doubted whether any distinction is intended.

CCII. INIURIA. Insult, contumely. Justinian, following Paul, tells
us of the many senses in which this word is used, with the Greek equi-
valent in each case12. It might mean unlawful action, as in the case just
considered; it might mean any unlawful interference with right; it might
mean an unjust judgment, but, as a special delict, it meant contumelia,
insult or outrage, represented in Greek by v/3pi<>.

1 G. 4. 37. 2 9. 2. 7. pr.; h. t. 13. pr. 3 Arg. 9. 1. 3; 9. 2. 7. pr.; 9. 3. 1. 5.

4 9. 2. 27. 19. 5 9. 2. 7. 6. 6 9. 2. 27. 14, 20. 7 G. 3. 219. 8 Inst. 4.

3. 16. 9 9. 2. 27. 19-21. 10 This has been disputed : it has been said that the actio
in factum was not in duplum contra infitiantem and did not go to the highest value, but aee
Pernice, op. cit. 157 sqq. ; Grueber, op. cit. 199 sqq. 11 19. 5. 11. 12 Inst. 4.

4. pr.; Coll. 2. 5. 1.

xii] INIURIA 585

The XII Tables contained provisions against a certain number of
forms of insult, probably only assaults, usually subjecting them to a
fixed money penalty1. This crude system, limited in scope and inflicting
penalties which with changes in the value of money had become derisory
in the later Republic2, was then superseded in practice by a series of
praetorian edicts3. The first, which came to be known later as "generate
edictum" and probably was designed to deal only with the acts contem-
plated by the XII Tables, provided in terms which, as we know them,
cover any form of iniuria, that an actio in factum would lie, in which
the plaintiff must specify the nature of the iniuria complained of and
the damages he claimed, the case to be tried by recuperatores who would
fix the amount of the condemnatio*. The next dealt with convicium,
public insult, and there followed other edicts extending the scope of the
action5. These edicts expressed a profound change in the conception of
the wrong, an evolution assisted by the very general form of the edictum
generate, which lent itself to juristic interpretation, so that, in the law
as we know it, the wrong consisted in outrage or insult or wanton inter-
ference with rights6, any act. in short, which shewed contempt of the
personality of the victim or was of a nature to lower him in the estimation
of others, and was so intended7. All that was needed was that the act
be insulting in kind and intention, and unjustified8. Not only the actual
insulter was liable but any accomplice, even one who did no more than
encourage the offender9.

The evolution was somewhat interrupted by a lex Cornelia de iniuriis
of the time of Sulla, which provided a criminal or quasi-criminal remedy
for "pulsare, verberare, vi domum introire" (covering the whole field of
the iniuriae dealt with in the XII Tables)10, and apparently some other
proceedings11. It is held, on one view, that this legislation excluded
these wrongs from the ordinary actio aestimatoria iniuriarum, till late
in the classical age, when a rescript of Severus and Caracalla restored

1 Girard, Textes, 17, 18; Bruns, 1. 29, 30. 2 Aul. Cell. 20. 1. 13. 3 See the

history of them set out by Girard, Mel. Gerardin, 255 sqq. 4 Aul. Gell. ib. ; Coll. 2.

6. 1; Lenel, E.P. 384. 5 47. 10. 15. 2; adtemptota pudicitia, Inst. 4. 4. 1; infamandi

causa facia, 47. 10. 15. 25, etc. See Lenel, E.P. 384 sqq. 6 So early as Labeo it

was recognised that the generate edictum was wide enough to cover the special cases. 47.
10. 15. 3; h. t. 15. 26. See, e.g., 47. 10. 13. 7; h. t. 15. 31; h. t. 23; h. t. 27, etc. 7 The
principles differ from those of our law, resting on defamation. Intent was the gist: it ia
immaterial to liability in our law, apart from privilege. It was wider (47. 10. 1. 2). In
most cases publication to third persons was not needed, apart from convicium. The wrong
was doing intentionally what was likely to injure a man's reputation or outrage his feelings.
8 G. 3. 220; Inst. 4. 4. 1; 47. 10. 3. 1; h. t. 4; h. t. 12; h. t. 13. 1, etc. Many iniuriae
had other remedies. There was an actio contraria iniuriarum for wrongfully bringing the
action, G. 4. 177, and there were other remedies for this. 47. 10. 43; P. 5. 4. 11. 9 47.

10. 11. pr., 6. 10 3. 3. 42. 1; P. 5. 4. 8; 47. 10. 5. All the reff. to the lex are cited

Mommsen, Strafr. 785, n. 2. 11 See P. 5. 4. 8.

586 1N1URIA [CH.

the right to bring a civil action in such cases1. But the view that the
two remedies existed side by side is also held2.

The action was in a special sense " vindictam spirans." It rested not
on economic loss but on outraged feelings; hence some characteristic
rules. Like other delictal actions it did not lie against the heres of the
wrongdoer, but, contrary to the general rule, it could not be brought by
the heres of the injured person3. It lay only within a year of the event4,
and, as it rested on outraged feelings, it did not lie unless there was
evidence of anger at the outset — dissimulatione aboletur5. As it had
nothing to do with property the damages were measured according to
the position of the parties, and the grossness of the outrage6. It was
no defence that the defendant did not know the plaintiff, or mistook
him for someone else7, except that if the defendant had supposed him
to be a paterfamilias or a widow no action lay for the insult to the actual
paterfamilias or virs. But in the case of allegations, the truth of the
statement was a complete defence9.

The iniuria need not be directly to the person aggrieved; it is
plain that A might be insulted by something done to B. But the
important cases of this are of outrage to members of the family. An
iniuria to a wife gave an action not only to her but to her husband10.
An insult to a filiusfamilias was an insult to the paterfamilias as
well, who might sue for himself and for his son, though, as in certain
circumstances the son might himself sue, there was a provision
against two actions nomine filii11. Thus where a married filiafamilias
was insulted there might be three actions, or more, her own, her
husband's, her father's, and even her husband's father's12. A sponsus
might have an action on an insult to his sponsa13, and there were
other cases. It must be noted that the damages would not necessarily
be the same in these cases: in each the personality of the plaintiff
was considered14. And though an insult to wife or child was an insult
to paterfamilias, the converse was not true15. The most remarkable
case of indirect insult is that of heredes. An insult to the body or funeral
was an insult to the heres if it was after entry. If not, it was an insult

1 Mommsen, op. cit. 804, n. 3; Girard, Mel. Gerardin, 258, 279 sqq. The principal texts
relied on are 47. 10. 7. 6; h. t. 37. 1. 2 Lenel, E.P. ~s.iv. The other view is difficult to

reconcile with some texts, especially Gaius, 3. 220, who wrote long before Caracalla and
treats assault as typical iniuria for the praetorian action. See also Strahan-Davidson,
Roman Crim. Law, 1. 219 sqq. 3 47. 10. 13. pr. "lite non contestata." 4 C. 9.

35. 5. 5 47. 10. 11. 1; Inst. 4. 4. 12. 6 Inst. 4. 4. 7. 7 47. 10. 18. 3.

8 47. 10. 18. 3. But the mere fact that the offender did not know what the family
relations of the person insulted were is no reply to an action by the pater, h. t. 1. 8. 9 47.
10. 18. pr. 10 47. 10. 1. 3. 11 Ib.; h. t. 17. 10-22. 12 47. 10. 1. 9; G. 3.

221; Inst. 4. 4. 2. 13 47. 10. 15. 24. 14 47. 10. 30. 1. 15 Inst. 4. 4. 2:

exception, 47. 10. 11. 8.

xn] 1NIURIA 587

to the hereditas and the heres after entry acquired it like other claims
of the hereditas1.

Iniuria to a slave was the subject of elaborate rules. For verberatio
or submitting to torture, without justification, an action lay without
proof of intent to insult the master2. This was servi nomine: "hanc enim
el servum sentire palam ests." But the master brought the action; on
what principle the damages were assessed we do not know, or whether
they were in peculio. In general no action lay unless the iniuria was
atrox; if it was, and was intended to insult the master, there was an
actio domini nomine*. If no such intent was proved an action lay servi
nomine, but it was still really on account of the master; such a thing
did insult him, though the edict governing it said nothing of intent to
insult the master5. It did not pass on alienation of the slave6.

If there were several masters all of them might have an action, and
the damages would vary, not with their share, but with their position7.
But in no case of iniuria to a slave, apart from verberatio, etc., was the
action a matter of course: it was given causa cognita8. If there were less
rights in the slave, e.g. usufruct, the fructuary might have an action,
but the iniuria was prima facie presumed to be to the owner9. So too
a bona fide possessor might have it, and, if the man was really free, both
might have it10.

A distinction between atrox and ordinary iniuria frequently recurs.
As the question, which it was, was probably left to the praetor, it is
likely that the distinction was not very exactly drawn. We are told in
varying terms that it might be atrox ex re (or facto) from its extreme
nature, or ex persona, the person insulted being one to whom special
respect was due (e.g. the patron, or a magistrate), or ex loco, where it
was very public11. The chief results of atrocitas were that an action
would lie on insult to a slave12, and that the damages were differently
estimated. In general the plaintiff fixed his maximum claim by a taxatio,
which the index could cut down. In atrox iniuria the praetor fixed the
maximum, usually at a higher rate, and the index did not interfere
with it13.

1 47. 10. 1. 4, 6. 2 6. 1. 15. pr.; 47. 10. 15. 34. 3 47. 10. 15. 35.

4 Ib. But this distinction between actions domini and servi nomine appears to be later
than Gaius, or at any rate unknown to him, G. 3. 223. 5 47. 10. 15. 35; h. t. 44.

6 47. 10. 29. 7 Inst. 4. 4. 4. Here the action is domini nomine. In 47. 10. 16, Paul,

quoting Pedius, gives the action in proportion to their shares. This may be servi nomine.
8 47. 10. 15. 34. 9 47. 10. 15. 45-48. But fructuary had no action on iniuria by

dominus, or vice versa. Nor had common owners of the slave against each other, 47. 10.
36-38. 10 47. 10. 15. 48. 11 G. 3. 225; P. 5. 4. 10; Inst. 4. 4. 9; D. 47. 10. 7.

6-9 sqq. 12 47. 10. 15. 44. 13 G. 3. 224; Coll. 2. 2. 1. A man condemned for

atrox iniuria could not afterwards be a decurio, 47. 10. 40.

588 METUS [CH.

In many cases there were criminal remedies for iniuria, in increasing
number. In later law an extraordinarium indicium for punishment was
always available as an alternative1, which wrould be used where the
defendant was without means, and was evidently sometimes used in
other cases of extreme insult. Whichever way the matter was tried
condemnation involved infamia*.

CCIII. This concludes the list of Delicts which the Institutes, follow-
ing Gaius, expressly consider, but there were many others. A number
of wrongs were dealt with by machinery other than that of an ordinary
action, e.g. vis, by the interdict, unde vi. But there are others which
gave rise to what must be called actiones ex delicto.

MjSTUfi. There was a complex praetorian machinery for relieving one
who had been forced by threats to go through some legal transaction, or
in later law, other damaging act3, and to penalise the wrongdoer. There
existed an actio quod metus causer for fourfold damages in default of
restoration4, an exceptio metus if a claim was made under the transac-
tion5, and restitutio in integrum6, the nature of which varied with the
nature of the right purporting to have been created 7. The threats must
be of death or bodily hurt, or wrongful enslavement, or a capital charge,
or an attack on chastity, either to plaintiff or to a member of his family8.
Mere money threats were not enough9, and the fear must have been
actual, and the imminence of the threat such that a normal man might
reasonably have feared10. The action is not stated as infaming. It lay
against not only the wrongdoer, but any third persons, even innocent,
who had profited, either immediately or indirectly11. The penalty was
fourfold, of the damage, including damnuni emergens, etc., in the case
of the wrongdoer, of their profit, in the case of others12. But there was an
important limitation. The action was arbitraria in the sense that the
condemnatio was incurred only if, where the index ordered restitution,
the defendant failed to restore13. Here there was a great difference
between the positions of the wrongdoer and others. The former was
necessarily in mora, and thus took the risk of casusu, so that he might
be unable to restore, and he might have parted with the proceeds15,
while a third party was liable only for his actual profit, which he could

1 47. 10. 45; Inst. 4. 4. 10. 2 3. 2. 1. As to concurrence with actions ex contractu,
and with other delictal remedies, post, § CCXLII. 3 Accarias, Precis, 2. 931; arg. 4. 2.

9. 2. 4 4. 2. 14. 1. 5 4. 2. 9. 3. 6 4. 2. 1. All these are known in the

republic. See Cicero, de Off. 1. 10. 32; pro Flacco,2l. 49; In Verr. 2. 3. 65. 152. The
texts dealing with the different remedies are not clearly to be distinguished in the Digest.
7 Post, § CCXLIH. 8 4. 2. 8. 3. 9 4. 2. 3. 1; h. t. 7. 1; h. t. 8. 1, 2; C. 2. 19. 4, 8.

10 4. 2. 5;h. t. 6. 11 4. 2. 14. 3. 12 4. 2. 14. 1, 7; h. t. 17; h. t, 18. 13 4. 2.
14. 3, 4. It is however sometimes held that restitution barred the fourfold action only
if it was before litis contestatio. See, e.g., Biondi, Studi sulle actiones arbitrariae, 1. 42.
14 4. 2. 14. 1, interp. 15 4. 2. 14. 5, in f.

xii] DOLUS 589

always restore and thus avoid the heavy condemnatio1. The action was
available to heredes, but not against them, except to the extent of en-
richment2. As in other delicts, where more than one person was engaged
in the wrong, each was liable in full, but there was the exceptional rule
that when one had made the wrong good, the others were released3, a
result of the principle that the action lay only "si non res restituatur4."

The action being praetorian and penal was annua, but lay, in sim-
plum, after the year, causa cognita, if there was no other remedy5. It
seems that in early law the action did not lie till the loss was completed,
not, e.g., on an extorted promise where there was only the exceptio or
restitutio, but in classical law this limitation wras extinct6. In other
respects the remedies seem to have been so far as possible co-extensive.
None of the remedies was subordinate; the party could choose whichever
suited the case, but there are difficulties on the question whether he
could use more than one. If the defendant had accepted the arbitrium,
and restored, there was no room for the other remedies, but if he had
been condemned, there is some doubt on the texts 7. On the older view,
the action was purely penal, so that if the injured party was sued,
on, e.g., an extorted promise, he still had the exceptio. The harshness of
this was avoided by including in the fourfold a release of the debt, i.e. con-
demning him for threefold and a discharge: in later law the rule is clear that
the fourfold barred any other remedy, and the transaction stood. Whether
this is due to Justinian or was recognised in Ulpian's time is disputed8.

DOLUS. The definition by Labeo, adopted by Ulpian, is "any craft
or deceit employed for the circumvention or entrapping of another
person9." It is sometimes added, for the purpose of this action, that it
must have induced some act of the aggrieved party, as in metus, but the
cases shew that this restriction did not exist10, though it was no doubt
only in that case that there could be restitutio in integrum. Where this
was applicable there would be no actio doli. Very little is known of this
restitutio; it seems to have been in Julian's edict11, but it has been pointed
out12 that its only known applications were in matter of procedure; in
any case it would be useless if the actual beneficiary was a person not
concerned in the fraud. The actio doli was conceived of as penal, and was
thus available to13 but not against heredes, except to the extent of enrich-

1 4. 2. 14. 5. 2 4. 2. 14. 15. 3 4. 2. 14. 3. There seems no sufficient reason

to suppose, with Albertario, Bull. 26, 106, that this rule of release in such circumstances is
an interpolation. It is held by Beseler (Beitrage, 3. 7) that in classical law this release did
not follow where one had paid the fourfold under judgment. 4 4. 2. 19. 5 4. 2. 14.

1, 2. 6 See Knrlowa, R.Rg. 2. 1065. 7 See Girard, Manuel, 429. 8 The

text may be interpolated. 9 4. 3. 1. 2. 10 4. 3. 7. 6; h. t. 18. 5, etc. 11 4.

1. 7. 1. 12 The Digest, in its confused treatment of the matter, seems to ,iim at

suppression of the rest, in int. 13 G. 4. 112; Inst. 4. 12. 1.

590 SERVI CORRUPTIO [en.

ment1, and was barred by an annus utilisz. It was arbitraria3, and lay
only if the damage had not been made good4. As elsewhere if more than
one person was engaged in the wrong, each was liable for the whole,
but if one had made the wrong good, the others were released5, a result
of the principle that the action lay only "si non aliter res servari potest6."
In these respects it resembled the actio metus, but it differed in that it
lay only against the wrongdoer, not against third parties7, was infaming8
and was subsidiary, i.e. was not allowed if there was any other remedy,
either against the wrongdoer or another9 (even a popularis actio10), or
where the exceptio sufficed11. Even where there had been another remedy
but it was time-barred or released, there was no actio doli12. But if the
other remedy was illusory, on account of insolvency of the potential
defendant, the actio doli was allowed13, as also in case of reasonable doubt
as to the existence of another remedy14. The only certain exception is
that it was alternative to actio metus15, but there are inconclusive texts
suggesting that in later classical law it was sometimes alternative to
other actions16.

The action being purely praetorian, these delicate points would be
determined by the praetor, and we are told that the action was given
only causa cognita17. The cognitio would also deal with other grounds of
exclusion. As it was infaming it was not allowed except in cases of some
importance18, and never to liberi or liberti against pater or patronus19, or
to any humilis against one of high rank20. In such cases an actio infactum
was given which said nothing of dolus and was not infaming21. The same
action was given in ordinary cases, after the actio doli was time-barred,
to the extent of enrichment22, and perhaps where it was barred by another
remedy, itself time-barred.

SERVI CORRUPTIO. This was a praetorian delict with liability in
duplum, for making a slave less valuable, by physical, mental or moral
deterioration caused dolosely23. For careless damage this action did not

1 4. 3. 17; h. t. 26, in which case it is perpetua, h. t. 28, 29. 2 44. 7. 35. Con-

stantine further requires it to be begun within an annus continuus (with some reliefs)
and finished within two annos continues (C. Th. 2. 15. 1). Justinian modifies this enact-
ment and provides that it is enough that it be finished within two annos continues,
whenever begun (C. 2. 20. 8). It is possible indeed that C. Th. 2. 15. 1 enacted the same
thing, tempua anni being a corruption for tempus biennii. But see Gradenwitz, Z.S.S.
34. 293. The exceptio is not similarly limited. 15. 1. 30. 6 is probably interpolated; see
Beseler, Beitrage, 3. 86. 3 4. 3. 18. pr. 4 As to satisfaction after litis contestatio, ante,
p. 588, n. 13. 5 4. 3. 17. pr. 6 4. 3. 1. 8; h. t. 5. As to suggested interpolation, see
ante, p. 589, n. 3. 7 4. 3. 15. 3. 8 G. 4. 81; D. 3. 2. 1. 9 4. 3. 1. 1; h. t. 3; h. t. 4.
104.3.7.2. 11 4. 3. 1. 4; h. t. 40. 12 4. 3. 1. 6; h. t. 7. 134.3.5,6. 144.
3. 7. 3. 15 4. 2. 14. 13. 16 E.g. C. 2. 20. 1; D. 7. 4. 5. 3. Accarias, Precis, 2. 920.

17 4. 3. 1. 1. 18 4. 3. 9. 5; h. t. 10. 19 4. 3. 11. 20 4. 3. 11. 21 76.; h. t, 12.
22 4. 3. 28. 23 11. 3. 1. pr., 4, 5. 2. Concealing him in flight, persuading to mis-

conduct, idleness, crime, fraud or insolence, or wilfully causing injury to his body.

xii ] FRAUD OX CREDITORS 591

lie, though for physical harm thus caused there was an actio utilis e lege
Aquilia1. The fact that he was already of evil ways was no defence; it
did not excuse making him worse2. The action was not available to or
against a bona fide possessor3, but since it was available as an actio
iitilis to anyone with a ius in rem, owner and fructuary might have it
against each other4. It was perpetua5 and noxal6, but as it was delictal,
was available to but not against the heres7. It was not extinguished by
death, alienation or manumission of the slave8. The unit of which double
was due included, besides the lessening in value, the amount of things
stolen or damage done by the slave9, and of any liability he might have
imposed on the owner, e.g. where he was induced to steal from, or damage
the property of, a third person10. It was not barred by actio furti, e.g.
where he stole "ope consilio" of a third party against \\homfurti had
been accordingly brought, or by return of any thing he had stolen11. In
later law the master might choose between this action and surrendering
the slave, taking in return his original value12.

Gaius discusses the case in which a third person tried to induce ^4's
slave to rob him, but the slave informed A, who, in order to trap the
corrupter, told the slave to fall in with the plan. Gaius held, logically,
that there was no liability for servi corruptio, as the slave was not cor-
rupted, or for theft, as A consented. But Justinian, by a sort of rough
justice, allowed both actions13.

FRAUD ON CREDITORS14. This was dealt with by the actio Pauliana, of
which the rules are obscure, as the compilers appear to have fused
different remedies. The main principles however seem to have been the
following. The action lay where the debtor had impoverished himself to
the detriment of his creditors, with knowledge that he was so doing15,
e.g. by alienation, by incurring liabilities, or by allowing rights to lapse,
but it did not lie for failing to acquire16, or for paying just debts17. As it
required proof of insolvency, it seems to have lain only where the
creditors had taken possession, and it was brought on their behalf by a
curator bonorum18. It lay against the debtor, who might have since
acquired property, but its important field was against acquirers from
him, who were parties to the fraud19. It was fictitia, the fictio being
that the wrongful act had not taken place20. It was arbitraria21, so that
condemnatio was avoided by giving up what was due. It was in simplum,

111.3.4. 211.3.1.4. 311.3.1.1. 411.3.9.1. 511.

3. 13. 6 11. 3. 5. 3. 711. 3. 13. 8 11. 3. 5. 4. 9 E.g., destruc-

tion of evidences of debt. 11.3.11.1. 10 11. 3. M); h. t. 14. 5-8. 11 11.3.11.

2; h. t. 12. 12 11. 3. 14. 9, interpolated. 13 G. 3. 198; Inst. 4. 1. 8. 14 See for
full account of this remedy, Girard, Manuel, 432 sqq. 15 42. 8. 10. 2; h. t. 17. 1.

16 42. 8. 6. 2. 17 42. 8. 6. 7. 18 42. 8. 1. pr.; h. t. 6. 7; h. t. 10. 1. 19 42. 8.
6. 8. 20 See Lenel, E.P. 425 sq. 21 42. 8. 10. 20.

592 FRAUD ON PATRON [CH.

annua, and available to but not against heredes1, but it was not noxal2,
so that it was penal rather in respect of purpose than of effect. There
was an exceptio in appropriate cases3, and there was an inter dictum
fraudatorium, the history4 and scope of which are doubtful. In later
law there was also restitutio in integrum5.

FRAUD ON PATRONS. This was provided against by two actions;
Fabiana, where the liberties had left a will, Calvisiana, where he was
intestate7, but having similar principles. The action was in personam,
perpetua, in factum, and arbitraria8. It was available to and against
the heres9, and was quasi-contractual in other respects. Thus, if the act
complained of was through a slave, the action was de peculio, etc.10 As
we shall see, there need have been no fraud on the part of the person
liable. It lay only after death of the libertusu. If the act was inter vivos
the patron must shew not only that it lessened his gain, but that this
was intended; if it was mortis causa, e.g. donatio mortis causa or legacy,
the fact of injury sufficed12. It was brought against the receiver, but it
need not be shewn that he was in bad faith; dolus of the libertus sufficed13.
The action covered fructus before and since litis contestatio1*. As in fraud
on creditors, it lay only for diminution, not for neglect to acquire15. It
was specially aimed at gifts, and thus, where it was a sale or analogous
transaction, the third party was allowed either to have the transaction
set aside, receiving what he has given and restoring what he has received,
or to have the bargain amended to fairness16. On a fair transaction the
action did not lie at all, and the edict provided that the praetor would
enquire into this17. It does not seem to have lain against later holders,
or where the thing had ceased to exist18, subject no doubt to the rule
as to mora19.

1 42. 8. 1. pr. ; h. t. 11. It lay after the year, and against heredes, to the extent of
enrichment (42. 8. 6. 14; h. t. 11), and was extended by the jurists against innocent
donees to the same extent (42. 8. 6. 11). 2 42. 8. 6. 12. In this case it was

treated as quasi-contractual, giving de peculio, etc. There is the same intermediate
character in the next case to be considered. 3 42. 8. 3. 4 See Lenel, E.P.

475 sqq. Other literature cited, Girard, Manuel, 433 sqq. See also Huvelin, fitudes sur le
furtum, 1. 467 sqq. 5 Inst. 4. 6. 6. There is much controversy about the actio

Pauliana. For Lenel (E.P. 479) it was, in classical law, only the formula arbitraria given
under the interdictum fraudatorium. But see Solazzi, Bull. 15. 127 sqq. Collinet, N.R.H.
43. 187 sqq., is led (by an examination of the texts and glosses referring to the action) to
the conclusion that whatever the nature and origin of the action, the name Pauliana is
a late figment which did not appear even in the Digest as originally issued. 6 D. 38.

5; Frag, de formula Fabiana; Girard, Textes, 454. 7 38. 5. 1. 6; h. t. 2; h. t.

3. pr.-3. 8 38. 5. 1. 26; h. t. 3. 2; h. t. 5. 1; Fr. def. F. 1. 9 38. 5. 1. 26.

10 38. 5. 1. 22. Biondi, Studi sulle ac-tiones arbitrariae, 1. 164, holds that it was not
considered as a penal action in classical law. 11 38. 5. 1. pr. 12 38. 5. 1. 1, 12, 27.

13 38. 5. 1. 4. 14 38. 5. 1. 28; h. t. 2. 15 38. 5. 1. 6, 7. 16 38. 5. 1. 12, 13.

17 38. 5. 1. pr. 18 38. 5. 10. 19 Ante, § CLXXXvm. There are many other delictal

actions and proceedings. Such are the actio de rationibus distrahendis, ante, §JJX; the

xii] QUASI DELICT 593

CCIV. ORLIOATIO QUASI EX DRLICTQ. This classification, which
purports in the Digest to come from a work of Gains1, may possibly be
an interpolation, these obligations having been treated in classical law
among the "variae causarum figurae2." In the Institutes we get four
cases.

Index qui litem suam facit. The main source is a text from Gains,
which recurs three times with small variations. An actio in factum lay
against a index who, from carelessness or unfairness, gave a wrong
decision, or, perhaps, neglected his duty in any way to the detriment of
a party3. It was available also if he gave a judgment not authorised by
the formula*. It was not available against the heres5.

Res deiectae vel effusae. Where something was thrown from a dwelling
on a way commonly used6, to the damage of a passer or property, the
householder was liable. The action was in factum for double the damage
done7, but if there were several persons liable, satisfaction by one freed
the others8. It was perpetua and available to but not against the heres9.
If a freeman was killed there was an actio popularis annua, for a penalty
of fifty solidi10. It was provided that if several wished to bring it, persons
interested in the deceased were preferred11. If a freeman was injured
there was an actio in factum, for damages assessed by the index, perpetua
so long as the injured man was alive, but not available to his heres12.

Res suspensae. Where things were suspended from a building over
a way in common use, to the danger of passers, there was an actio
popularis for ten solidi against the occupier, not available against the
heres (unless of course on his own account), and, in general, under the
same principles as those applied to res deiectae13.

Nautae caupones stabularii. The principals of a ship or inn or public
stable were responsible for any theft or damage done by those employed
by them in the ship, etc. The action was perpetua and in factum for double

indicium de moribus, ante, § XL; the actio de arboribus succisis, XII Tables, 8. 11; Girard,
Textes, 19, and its praetorian descendant, arborum furtim caesarum, D. 47. 7 (see Huvelin,
Furtum, 1. 67), and a number of others in the XII Tables, practically superseded by the
later law of damnum and iniuria. Moreover some interdicts have a detictal character,
e.g., ''quod vi aut clam," post, § ccxLvm, as have also the proceedings for damnum infect inn,
post, § CCXLV, and "operis novi nuntiatio," post. § CCXLVI.

1 It is actually "quasi ex maleficio," 44. 7. 5. 4, 5. 2 44. 7. 1. pr. 3 44. 7. .">.

4; 50. 13. 6; Inst. 4. 5. pr. 4 G. 4. 52. See D. 50. 13. 6. 5 5. 1. 16 (Julian, contra).

It does not lie against the pater where the son is a index, and the son is liable to the ex-
tent of what was in his peculium, when he gave the judgment, 5. 1. 15; Inst. 4. 5. 2.
6 9. 3. 1. pr., 2; Inst. 4. 5. 1. 7 9. 3. 1. pr., 4. Not noxally available in case of

acts done by son or slave householder, 9. 3. 1. 8: Inst. 4. 5. 2, but noxal where done by
slave of householder, 9. 3. 1. pr., and no doubt in earlier law where it was a son. 8 9.
3. 1. 10-4. 9 9. 3. 5. 5 10 Ib.; Inst. 4. 5. 1. 11 9. 3. 5. 5. 12 //;. The

text gives this action to others for an annus utilis. 13 Inst. 4. 5. 1,2; D. 9. 3. 5. 6-13;

44. 7. 5. 5.

B. B. L. 38

594 NOXAL LIABILITY [CH.

damages and was available to, but not against, the heres1. In the case
of an inn, this extended to acts of permanent residents, but not of mere
passing travellers2. If the offender was the defendant's own slave the
liability was noxal, and presumably ended by his death, but would not
so end in other cases3. As it involved proof that the act was done by
such a person, there might be an alternative action against him4. So
far as theft was concerned this rested on a special edict5, but there
seems to have been no edict for the case of damnum6; it was probably
an extension of the actio infactum under the lex Aquilia7. An alternative
procedure of somewhat different character and scope under the edict, de
receptis, has already been considered8.

The common quality of these cases of quasi-delict is uncertain9. In
the case of the caupo, etc., Justinian suggests that it is his fault for
employing such people, and Ulpian points out that he could not pick
and choose among viatores and so was not liable for them10. But this
would make it delict, and moreover no amount of care would avoid the
liability. It was in fact insurance. They were all cases of vicarious
liability, for even in the case of the index the name, an old one11, shews
that he was contemplated as taking over the liability for act of
another.

CCV. We have now to consider generally the circumstances in which
one might be responsible for another's delict. Apart from personal
privity12, there was what is called noxal liability for delicts committed
by members of the familia, i.e. liability either to pay the damages or to
hand over the offender. The XII Tables created it for furtum13, the
/. Aquilia for damnumu, the Edict for rapina, iniuria15 and other prae-
torian wrongs. The system did not apply to crime, to contract16 or quasi-
contract, or even to quasi-delict except in the case of deiectio17. In iniuria
the master could avoid the noxal liability by handing over the slave
in iudicio, to be thrashed, the index determining the amount of chas-

1 47. 5; 44. 7. 5. 6; Inst. 4. 5. 3. 2 47. 5. 1. 6. 3 47. 5. 1. 5. 4 47. 5. 1. 3.

5 47. 5. 6 4. 9. 6, 7; 9. 4. 19. 2. See Lenel, E.P. 199. 7 Lenel, loc. cit.

8 Ante, § CLXXxm. 9 See Moyle, Instt. lust. 540; Girard, Manuel, 650 (who

considers any theoretical basis of the classification unattainable, and rejects that of
Pothier, who bases it on absence of wrongful intent, which does not fit the case of the iudex).
10 47. 5. 1. 6. 11 Girard, Manuel, 649, n. 3. 12 Connivance or failure to

prevent, having the means, made the master fully liable (P. 2. 31. 28; D. 9. 4. 2, etc.).
It was decided after discussion that this connivance did not affect the other liability of the
slave himself if freed, or of a later owner. Even command did not, if the matter was
serious (facinus) (9. 4. 2. 1; 47. 10. 17. 7, etc.). 13 G. 4. 76; D. 9. 4. 2. 1. 14 G. 4.
76. Visscher, Les actions noxales, 27, holds that this was not expressly provided but
inferred from the XII Tables. 15 G. 4. 76; Inst. 4. 8. 4. 16 As to a quasi-noxal

surrender, where the contract was by the master, the damage by the slave, ante, § CXLIH.
17 9. 3. 1. pr. As it is always in duplum it is better than the actio e lege Aquilia, also
available where the slave is identified.

xii] NOXAL LIABILITY 595

tisement1, otherwise the noxal action went on. In metus we are told
that if the dominus had surrendered the slave noxally, he could still be
sued for any enrichment2. In dolus we are told that the action was noxal
only if the matter in which the dolus occurred was itself delictal3. But
other texts make this point obscure4.

The master's liability depended on his having potestas5, which here
meant the actual power to produce the slave. If, when sued, he was not
disposed to defend, his proper course was to produce the man, and the
magistrate would authorise the plaintiff to seize him (dud vel ferri
inhere] which released the master, though there might be minor rights
in the man6. The transferee would in any case usucapt, and, under
Justinian, would be owner if the transferor was. If the master neither
surrendered nor took the proper steps in defence, he was liable in solidum
with no right of surrender7. If he was absent and the slave present, the
slave might be " ductus" and the defendant was released8. But anyone
interested, e.g. usufructuary, might defend on behalf of the master9.
Till the condemnatio, the payment or surrender may be regarded as
alternatives (though it must be noted that the power of surrender has
nothing to do with arbitrium iudicis10), but after condemnatio, which was
always primarily for money, the surrender became merely facultative11.
It did not then release if there were minor rights outstanding12, and the
actio iudicati was for the damages only13. One who would have had
potestas but for his fraud was liable, under praetorian rules, as if he still
had it14.

Noxacaputsequitur. Liability folio wed the delinquent: the person liable
was the owner at the time of the action15. Thus, apart from fraud, death,
alienation, manumission or abandonment of the slave before litis con-
testatio released the owner16, though it might make someone else liable.
There could be no noxal action between master and slave, and none

1 47. 10. 17. 4-7. In later law it seems to have been more usual to deal with it extra
ordinem, i.e. castigation under authority of the magistrate, h. t. 9. 3; h. t. 45. See, however,
as to the earlier history, Naber, Mel. Gfrardin, 467. 2 4. 2. 16. 1. 3 4. 3. 9. 4; 44.
7. 49. 4 See 4. 4. 24. 3; 10. 4. 16. The reason why noxal actions are allowed in delict

and not in contract, is that it is not exactly a liability of the master, but a right to
ransom the slave from vengeance. In time, payment and surrender come to be regarded
as alternative, some texts treating payment as primary (9. 4. 1; 42. 1. 6. 1; cp. 2. 10. 2;
9. 4. 2. pr.). This is a complete reversal of the original conception. See Girard, N.R.H.
12. 31 sqq. 5 9. 4. 21. 2, 3. 6 9. 4. 15; h. t. 21. pr. The texts imposing a

duty of conveyance are supposed to be interpolated. Pissard, iStudes Oirard, 1. 244 sqq.
7 9. 4. 21. 4; h. t. 22. 3. 8 2. 9. 2. 1; 6. 2. 6; 9. 4. 39. 3. 9 9. 4. 26. 6.

10 For the formulae, see Lenel, E.P. 190, 319. 11 42. 1. 6. 1. It is only between

litis contestatio and condemnatio that it is truly alternative, for till then death of slave
releases: it would not be a true alternative. 9. 4. 7. pr. ; ante, § cxcm. 12 42. 1. 4. 8.

13 5. 3. 20. 5. 14 9. 4. 12; h. t. 22; 47, 2. 42. 1. 15 9. 4. 7. pr. 16 9. 4. 5.

1-7. pr.; h. t. 14. pr.

38—2

596 NOXAL LIABILITY [CH.

would arise after transfer1. And if the guilty slave passed into the hands
of the injured person the action was extinct and would not revive on
alienation2. If, dolus apart, the slave was freed or transferred during the
action, this was transferred3, against himself or his new master as the
case might be.

It is generally held that in classical law death of the man after litis
contestatio did not release, but that it sufficed to surrender his dead body*.
This last power did not exist under Justinian, so that in such a case the
death left the owner liable in solidum.

Holders of lesser iura in rem could not be sued noxally, but a similar
result was produced by the rule that if the owner surrendered, they
could not enforce their right without paying the damages; hence the
rule that they might defend on behalf of an absent owner5.

Where a wrong was committed by several of a man's slaves, he ought,
on principle, to be fully liable in respect of each. But the praetor limited
the damages to what would be due if one freeman had done the act6, a
rule originating in theft and extended to many delicts, but not to all,
since, in some cases, it was not to be thought of as one, but "plurafacta."
This was so in iniuria, and, as some thought, in damnum7. The alter-
native to single damages was surrender of all the slaves concerned.
But proceedings in respect of one of the slaves who had been freed or
alienated did not release the dominus who still held the others8.

There were special rules for publicani. They were liable to an action
in duplum where goods were violently seized or damaged by their em-
ployees, slaves or free, but payment of what would be due from a single
free man was enough9. The slaves concerned must be produced, and if
the actual offender was identified there was an ordinary noxal action10.
If they were not produced it was in solidum11. The twofold included the
res, so that the injured person could, if the slave was identified, proceed
if he preferred by an ordinary noxal action on rapina or damnum12.

1 47. 2. 17; O. 4. 78; Inst. 4. 8. 6. 2 47. 2. 18. School dispute, G. 4. 78.

This, however, would work unfairly where, e.g., A bought under a mandate for B or
held the slave hi fiducia. Hence the rule that he can get an indemnity, not delictal
damages, under the contract, unless the slave is surrendered to him, which also is short of
fairness, 17. 1. 26. 7, for he may have bought the slave under special instructions, so that
his faults are not in any way imputable to him, and the damage done may exceed the man's
value. It is an application of the rough rule that an owner ought not to be liable beyond
the slave's value, to a case hi which it is quite unfair. The rule has however little im-
portance under Justinian. It is not often that a buyer under mandate would be interim
owner. See Buckland, Slavery, 125. 3 9. 4. 15. Much controversy as to this translatio
and the nature of the transferred action. See post, § CCXLI. 4 G. 4. 81 ; Aut. G. 82, 87.

5 7. 1. 17. 2; 9. 4. 18. Difficulties in this case, Buckland, Slavery, 117. 6 9. 4. 31;

47.6.1. 7 2. 1. 9; 47. 6. 1. 2. 8 47. 6. 3. pr. 9 39. 4. 1. pr.; h. t. 3. 3.

In simplum after a year. 10 39. 4. 2; h. t. 3. pr., 2. 11 39. 4. 1. 6. 12 39. 4.

1.3,4.

xii] NOXAL LIABILITY 597

Another edict, with apparently similar rules, dealt with simple theft in
such cases1.

Where a slave committed several delicts against different people,
the owner was liable in respect of all, but the rule, noxa caput sequitur,
made the first surrender free him from liability, so that the last of several
plaintiffs kept the slave, since all the rest would in turn have been
liable. But a surrender to B after litis contestatio with A would not
free the owner from A2.

Delict in connexion with contract gives rise to difficulties. If a slave
committed a delict in respect of property held by his master under con-
tract the view which prevailed was that if the master was in no way to
blame, even in the choice of the man, he could be sued ex contractu, but
might free himself by handing over the man3. Where the wrongdoing
slave was himself the subject of the contract, the rule seems to have been
that the slave's act was no breach of the contract, which he did not make,
and thus if a hired slave stole from the hirer there was no actio ex con-
ducto, but an ordinary noxal action4. But this is obscured by the fact
that, in transactions descended from fiducia, many texts refuse a
noxal action, but give one on the contract, with a right of release by
handing over the slave — pro noxae deditione. This may be due to the
fact that in fiducia the receiver, being owner, could have no noxal action,
the texts having been written of fiducia, and representing a transfer to
the new system of a rule developed in the old, to which alone it was
appropriate5. In the case of comm,odatum, Justinian, in an interpolated
text, reasonably gives a noxal action6.

Special rules appear to have existed under the /. Aquilia. No text
applies the notion of potestas to it. In general an owner was not liable
noxally for a slave infiiga, as he had not potestas, and a bonafide possessor
was liable because he had7. But in damnum an owner was liable for a
fugitivus, and a bona fide possessor was not liable8. It has been acutely
suggested that something in the lex made it impossible to apply the idea
of potestas, probably an energetic reference to herus or dominus as the
person liable9.

Under Justinian noxal liability applied only to the case of slaves,
but in classical law a son, though, no doubt, not a daughter, could be

1 They are confused in the Digest, see Lenel, E.P. 324. 2 2. 9. 1. 1 ; h. t. 2: it is

dolus. 3 Chief texts: Coll. 12. 7. 9; D. 9. 2. 27. 11; 19. 2. 11. 1; 47. 2. 62. 5. See

also, ante, § cxmi. If the act was theft and the holder was absolutely liable for custodia
(ante, § cxci), e.g., the slave of a fullo stole a thing sent to him to be cleaned, this release
would not apply: the fullo was absolutely liable for the thing. 4 19. 2. 45. pr. ;

47. 2. 62. 6. 5 See, e.g., 13. 7. 31; 17. 1. 26. 7; 47. 2. 62. 1, 5-7. 6 13. 6. 22.

7 9. 4. 12; 47. 2. 17. 3; P. 2. 31. 37. 8 9. 2. 27. 3. 9 Girard, N.R.H. 11. 430 sqq. ;
Manuel, 693. Cp. 9. 2. 11. 6: it is only the dominus who has the action.

598 PAUPERIES [CH. xn

surrendered in the same way. The softening of manners and acquisition
of proprietary rights by filiifamilias put an end to this. The holding
was in no way fiduciary, but in later classical law the holder was com-
pelled to free the man when he had worked out the damages1. The
Institutes apply this also to slaves2, but it is not so stated in the Digest
or Code.

Pauperies. The XII Tables gave an analogous procedure, an actio
in simplum with a right of surrender, where damage was done by an
animal in such circumstances that no man was to blame3. We know the
law only as it was in classical and later law4. We are told that the rule
applied only where the violence was not natural to such beasts, and thus
not where a wild beast was concerned5. But the texts also say that if
the wild beast had escaped, the old owner, being no longer owner, was
no longer liable, which implies that the action would have lain had the
beast still been in captivity6. The action was subject to the general
principles of noxal actions. It could be brought by the heres, but not
against him, qua heres, but only qua owner7. Anyone might bring it
who had an interesse in the safety of the res8. If a free person was
injured, the damages were in respect of cost of treatment, value of
time, and profits lost9. The XII Tables dealt only with quadrupeds10,
but, later, an actio utilis was given in the case of other animals11.

In addition to these proceedings there was a provision in the Edict
of the Ediles, which seems to have been designed to provide a remedy
in the case of wild animals, because there was none in pauperies. If a
wild animal was kept by the wayside, and escaped, and damaged
property, there was an action for double damages, and if a freeman was
injured, at the discretion of the index. If a freeman was killed the
penalty was 200 solidi12. Justinian declares this to be alternative to the
actio de pauperie13.

i G. 4. 79. The man is in mancipio, but in this case, on the view which prevailed, one
manumission sufficed to destroy the potestas. Coll. 2. 3. 1 ; Inst. 4. 8. 7 (which says that
at one time it was allowed for daughters). 2 Inst. 4. 8. 3. 3 9. 1. 1. pr., 3.

4 By which time it has undergone changes. 9. 1 ; Inst. 4. 9; P. 1. 15. 5 Inst. 4. 9. pr. ;

D. 9. 1. 1. 7, 10. The carrying of disease was enough. P. 1. 15. 1 b = Lex Rom. Burg. 13. 3.
6 Inst. 4. 9. pr.; D. 9. 1. 1. 10, probably interpolated. 7 9. 1. 1. 17. Death of the

animal before 1. c. destroyed the claim (h. 1. 13) but not death after I. c. (h. 1. 14). 8 9. 1. 2.
9 9. 1. 3. 10 9. 1. 1. pr. 11 9. 1. 4. 12 Inst. 4. 9. 1; D. 21. 1. 42.

13 Inst. 4. 9. 1.

CHAPTER XIII

THE LAW OF PROCEDURE. LEGIS ACT10.
FORMULA. COGNITIO

CCVI. Nature of the Law of Actions, p. 599; CCVII. Comparison of the successive systems
of procedure, 602; Actio and Indicium, 604: CCVIII. Legis Actio, 605; Sacramentum, ib.;
CCIX. Default of a party, 608; Vadimonium, 609; Procedure in iudicio, ib.; CCX. ludicis
arbitrive postulalio, 612; Condictio, ib.; CCXI. Manus Iniectio iudicati, 614; CCXII.
M. /. pro iudicato, 617; M. I. pura, ib.; CCXIII. Pignoris Capio, 618; CCXIV. Decay of
Lcgis Actio, 621; Introduction of Formula, 623; CCXV. Course of action by Formula,
626; Acliones interrogatoriae, 627; lusiurandum, 628; CCXVI. Confessio, 629; CCXVII.
Index and Indicium, 631; Details of the hearing, 632; Default, 633; CCXVIII. Officium
ludicis, Judgment, 634; Calumnia, 635; CCXIX. Execution of Judgment, 637; actio
iudicati, ib.; Personal Seizure, 638; Bonorum Venditio, ib.; Applications apart from
judgment, 640; Distractio Bonorum, ib.; CCXX. Remedies against the debtor's sureties,
641; Appeal, ib. ; Local limits of jurisdiction, ib. ; CCXXT. Structure of the Formula,
Nominatio ludicis, 643; Praescriptio, ib.; Demonstratio, 645; CCXXII. Intentio, 646;
CCXXIII. Exceptio, 648; Classifications, 651; CCXXIV. Condemnatio, 653; Clausula
Arbitraria, 654; Taxatio, 656; Adiudicatio, 657; CCXXV. Cognitio extraordinaria, ib.;
History, 658; CCXXVI. Course of Proceedings, 660; CCXXVII. Jurisdiction, 663;
Judgment, 664; Appeal, 665; Relatio, ib.; Supplicatio, 666; Execution of judgment, ib.

CCVI. The Law of Actions1, from a modern point of view, is the Law
of Procedure, of Litigation, of Remedies. Before stating the elements of
the system, as it was in Roman Law, some preliminary observations must
be made.

The subject covers two distinct sets of rules, which may be called
the law of actions, strictly so called, and the law of procedure. The former
is concerned with the distinctions between different types of remedy,
such as Actio and Interdictum, the classifications of each of these, ac-
cording to their varieties, such as actio in rein, actio in personam, inter-
dictum prohibitorium, restitutorium, exhibitor ium, and so forth, and with
the rules determining the remedy for each wrong. The latter branch is
concerned with the steps to be taken in the course of the action or other
proceeding by the plaintiff who desires to bring the matter before the
Court, and the steps to be taken by the defendant if he disputes the
claim made. It is not practicable to separate these altogether in dis-
cussion, except at the cost of repetition, but nearly all the long sixth
title in the fourth book of the Institutes deals with the former topic.

The law of actions may thus be called the law of litigation, the law
governing the submission of claims to a tribunal for settlement. But it

1 Bethmann-Hollweg, C.P. ; Keller-Wach, C.P. ; Bertolini, II processo civile; Costa,
Profile Storico del processo civile Romano.

600 LAW OF ACTIONS [CH.

must not be forgotten that legal remedies in Rome originated in self-
help, and that early Roman Law did not regard litigation as essential
to the conception of an "octa'o." Traces of this wider sense in which the
word means any proceeding regulated by law for the enforcement of
rights are to be found in Gaius, as we shall see in dealing with Legis Actio.

Though both Gaius and Justinian start evidently from the con-
ception of the Law of Actions as the Law of Remedies, Adjective Law,
they depart from this notion in the actual treatment. The whole of the
Praetorian law (there was no civil law on the matter) concerning lia-
bility of the paterfamilias on transactions by members of ihefainilia, or
business agents1 (instilor, magister navis], and the law, civil and prae-
torian, as to his liability for wrongs committed by members ofthefamiliaz
(noxal liability), both more logically belonging to the law of obligations,
are treated under the law of actions, and practically all that we hear of
purely possessory rights is said in connexion with interdicts3. This last
fact is justified by the consideration that the right of possessio, per se,
consists of nothing but the right to these remedies; possessio has a purely
procedural content4. The other cases constitute a real difficulty in re-
garding the ius rerum as the law dealing with rights with a money value,
but in view of the close affinity between obligatio and actio, and of the
fact that both these sets of rights are marked by a strongly specialised
form of procedure, it is not surprising that they are attracted to this
topic. The Romans did not possess such a developed theory of repre-
sentation as makes such a treatment unlikely in modern systems. And
Gaius, whom Justinian follows, introduces the rules of these types of
obligation, not as independent objects of discussion, but as illustrations
of certain types of action which he is explaining from the point of view
of procedure, so that, as his language shews5, it is only for convenience,
and to avoid repetition, that he treats them in detail here, instead of
treating their substantive characteristics under the law of obligations,
wrhere the matter properly belongs. The method adopted is no doubt
partly the result of the habit, observable in ordinary speech, of using
the same word, action, to denote both the right of action and the pro-
cedural steps, a practice which is at the bottom of the observed affinity
between action and obligation6.

The co-ordination of the law of actions with the law of things and
the law of persons as a third element in the classification, is the feature
of the institutional arrangement which has met with the most hostile
criticism. Some of the criticism rests indeed on misapprehension: it is

1 G. 4. 69 sqq.; Inst. 4. 7. 2 G. 4. 75 sqq.; Inst. 4. 8. 3 G. 4. 143 sqq.;

Inst. 4. 15. 2 sqq. 4 Ante, § LXXII; post, § CCXLIX. 5 G. 4. 69. 6 See D. 44.

7, rubric.

xin] LAW OF ACTIONS 601

impossible for instance to lay much stress on Austin's severe language,
as he appears to misunderstand the Roman arrangement1. But the
point that these rules of adjective law should be subordinated to, not
co-ordinated with, the substantive rules is clearly sound. If, however,
the view be accepted that the law of persons was a descriptive chapter
and the law of things the statement of the modes of acquisition of sub-
stantive rights, the actual position of the law of actions as an appendix
to it is justified, and the treatment of it as a new genus is a logical error,
but without effect on the actual treatment. It has been shewn that in
the effort to construct a triad the Romans were constantly led into errors
of this kind2. In any case few will dispute Maine's proposition that the
author of this arrangement, whoever he was, achieved a great feat of
abstraction3.

It is of course said with justice that the whole institutional scheme
is defective, that it would have been far better to base the arrangement
absolutely on rights or on duties. But the Romans were only gradually
reaching the clean-cut conception of a right which we possess, and in
the conditions which existed, the arrangement under the heads of those
persons who can be affected, the rights which the law will protect, and
the means by which this is done, seems to merit Gibbon's remark that
it is "no contemptible method4." A more logical method would no doubt
have been a division simply into Substantive Law, the ius rerum, and
Adjective Law, the ius actianum. The Law of Persons would have found
its place as an introduction to the ius rerum, as in the French Code Civil5,
and in the German Biirgerliches Gesetzbuch6, so that it is the law of
persons, rather than the law of actions which is undeserving of a separate
place. The effect of such a change would have been very small: the open-
ing phrases of the first, second and fourth books of Gains would have
needed modification, but all the rest of the matter might have stood
exactly as it is.

CCVII. The law of procedure was in a sense the most important part
of the law. A state of things can be conceived, and has indeed existed
in undeveloped communities, in which the only permanent law was that
regulating the submission of disputes to a central authority: Cadi justice.
In all early communities the law of procedure is the most prominent
part of the law. At first it may be regarded as State regulation of self-
help, but in civilised communities this mode of redress tends to be

1 It is difficult to extract a consistent doctrine from Lect. XLHI and its notes (pp. 749-
763, ed. 1873), or to see what part of the Law of Actions would be suitably placed as a
subhead of the Law of Persons as conceived by Gaius or his authority. 2 Goudy.
Trichotomy in Roman Law, passim. 3 Early Law and Custom, 367. 4 Decline

and Fall of the Roman Empire, eh. XLIV (Bury, 4. 470). 5 Code Civil, Livre I.

6 Burgerl. Gesetzbuch, §§ XXH-LXX.

602 LAW OF ACTIONS [CH.

superseded by a system in which the question in dispute is first decided
by a Court of Law, and the remedy then put in force by it, or under its
authority.

If both parties to a dispute were always agreed on the facts and the
law, and ready to carry out their legal duties, there would be no need
of a law of procedure. But this is not the case, and rules of law do not
enforce themselves. In any dispute, therefore, in which the parties have
not been able to come to terms, the enforcement of the law depends,
ordinarily, on the willingness of the party who has, or conceives himself
to have, a right which has been infringed, to take the necessary steps
to procure a decision by a court of law. It is for him to initiate pro-
ceedings. In Rome he would have to take certain formal steps, which
varied historically, in order to bring the other party before the court,
and he would have to decide, not always an easy matter, just which of
the various possible remedies would meet his case. If what he com-
plained of was that a right in rem which he claimed to have was dis-
puted, to his injury, he would ordinarily bring an actio in rem, a vindi-
catio, the generic name of all actions to enforce such rights. If what he
complained of was breach of a contractual or quasi-contractual obliga-
tion, or a delict, he would bring, normally, an actio in personam, of which
there were, in the Roman Law, many kinds. In both cases the tribunal
decided the question, and in the ordinary course judgment was given
for damages (or in some cases an order of restitution), or the defendant
was absolved. But in many cases there were proceedings open to him
which, while they would usually in the long run take the form of an
ordinary action, began in another way. Thus for interference with
purely possessory rights (or where all that was for the moment com-
plained of was interference with possession) or with some family rights,
or with many of what may be called public rights, e.g. the right to use
a highway, the remedy in classical law took the form of an interdict, a
complex procedure in which the first step was a formal order of the
magistrate, disregard of which led to an action or actions of the ordinary
type. There was another type of action, praeiudic.ium, which aimed
merely at a declaration by the court, e.g. that so and so was a libertus,
such a proceeding being usually the preliminary to another. And there
were of course many other complications.

In the long evolution of the Roman Law the forms of litigation
naturally underwent great changes. But these were more fundamental
than this way of stating the matter would suggest. They were so great
and so well marked that each new mode, as it was introduced, can hardly
be regarded as derived from the other: in each case it may almost be
said that there is supersession rather than evolution. If we neglect

xni] HISTORICAL CHANGES IN PROCEDURE 603

primitive institutions we have three systems succeeding one the other in
time, the legis actio, the formula and the cognitio extraor dinar ia. These
will be considered in detail, but the most marked differences may be
usefully stated here. In the legis actio the matter was brought before
the magistrate by a fixed ritual, each party and the magistrate himself
going through a series of acts and declarations, prescribed partly by
statute, and partly by priestly lawyers, interpreting the statute. These
ceremonials completed, the matter was referred for trial and decision /
to another person or persons (index, arbiter] who was not an official but
a private person, chosen from a list (album iudicuni) the constitution of
which was changed from time to time, but may be said to have been
made up of the better class of cives. If the decision was against the
defendant, it was enforced by seizure of the defendant by the plaintiff,
and, in the last resort, sale into slavery.

In the formulary system, which was that dominant in classical law,
there was still a preliminary hearing before the magistrate and reference
to a index, but there were three very great changes. The magistrate was
no longer an automaton, reciting words prescribed for him1; he controlled
the proceedings. His right of iurisdictio enabled him to prescribe the
form in which the issue should be submitted to the index, the formula
(chosen indeed by the parties from models set forth by the magistrate,
but subject to his approval), to refuse to issue it at all if he thought fit,
and to allow the insertion in it of defences which he thought reasonable,
though they were not contemplated in the law or admissible under the
old regime. In such matters he now had a very great power. Further,
the instruction to the index, the formula, was now written, a step almost
inevitable, so soon as it became possible to submit the more complex
issues and to give the wide discretionary powers which mark the new
system. Again, though the system of personal seizure survived through
the formulary period, it was partly superseded by a more reasonable
system, invented by the powerful magistrate, the praetor, under which
execution of judgment proceeded directly against the goods of the
debtor — bonorum venditio, the whole estate being seized and sold, a
process resembling the modern bankruptcy, but leaving the debtor still
liable to pay out of later acquisitions any part of his debt which the
sale of his property had left unsatisfied.

In the third system, cognitio extraordinaria, there was a very funda-

\ The automatic character of his action must not however be exaggerated. He had
the right to refuse concurrence if the formal requirements were not complied with, and
an individual magistrate might construe this rather widely. Apart from this, the automatic
character of his action under the legis actio is not universally admitted; see post, § ccxiv
and for the view stated in the text and full discussion, Girard, Melanges de Droit JRomain, 1.
71-99, 126 sqq.

604 ACTIO: IUDICIUM [CH.

mental change. There was no longer any reference to a second person
for hearing. The magistrate, or, it might be, a deputy appointed by him,
before whom the matter came from the beginning, himself heard and
decided the case. There was thus no issue of a formula, though the claim
and defence were still usually stated in writing. A still more rational
system of enforcement had been devised. Instead of making bankruptcy
the inevitable result of an unsatisfied judgment, the law authorised the
seizure and sale of so much of the property of the debtor as would satisfy
the judgment.

The words actio and indicium bore many meanings and shades of
meaning. Of the various meanings of the word actio, those which most
concern us are three. It might mean a right of action1. It might mean
the remedy regarded as a whole, as in nearly all the cases in the sixth
title of Book 4 of Justinian's Institutes2. It was sometimes used to
express the proceeding by legis actio as opposed to formula, the latter
being called iudicium3, and this usage left a trace in later law, in a
tendency to confine the word to civil law actions4. In this old narrow
sense the word had from another point of view a wider significance; as
will appear in the discussion of pignoris capio and manus iniectio, actio
did not necessarily imply litigation; it was a process for the enforcement
of a right.

Of the meanings of the word iudicium some appear above. Thus it
might mean procedure by formula or cognitio as opposed to legis actio,
and, occasionally, in later law, a praetorian proceeding as opposed to
civil. It has indeed been maintained5 that in the late Republic it meant
the actual written formula itself, a signification which accentuates the
distinction between the old oral and the new written process. Iudicium
was also used to denote an action tried by a iudex as opposed to an
arbiter or arbitri*. A very important meaning of iudicium was the second
stage of the hearing, the actual trial, procedure in iudicio, as opposed to
the procedure before the magistrate, procedure in iure. This distinction
disappeared in the system of cognitio, so that the name iudicium then
came to signify the whole hearing.

A distinction is drawn in some texts between Us and iurgium1.
Cicero speaks of iurgium as a friendly dispute: non Us inimicorum iurgium
dicitur8. Varro seems to say that they are the same thing9. Some legal
texts suggest that as applied to legal process the name iurgium was

1 " Nihil aliud est actio quam ius quod sibi debeatur iudicio persequendi" 44. 7. 51.
See also 50. 17. 204. 2 But the initial phrase is from the text printed in n. 1.

3 Wlassak, Processgesetze, 1. § 8. 4 See, e.g., the opening clauses in G. 4. 5 Wlassak,

loc. cit. 6 Post, §§ ccx. ccxvii. 7 See, e.g., Cicero, de Legg. 2. 12. 29; Livy, 5. 13.

8 De Rep. 4 (Nonius, 431). 9 Varro, L.L. 7. 93.

xm] LEGIS ACT 10 605

specially applied to the divisory actions1, which would accord with
Cicero's language. But it is not important for the law of the
Empire2. «,

CCVIII. THE LKGIK ACTIO. This expression is not free from dilficulty.
Gaius tells us that these proceedings were so called either as having
been introduced by lex, or as being framed strictly according to the
words of a lea?, so that, as we have said, they constituted a fixed ritual,
a fact which he illustrates by the case of one who sued for injury to his
vines and lost his action because he called them vines, the word in the
lex being arbores. There appears to have been an appropriate legis actio
for each form of wrong, the exact form for use in each case having been
elaborated by the Pontiffs, building on the words of the lex. But though
there were many legis actlones, of the words of which we know little,
we are told by Gaius4 that there were but five "modi lege agendi" five
moulds, so to speak, into one or other of which every legis actio was cast,
whatever the formal words: sacramentum, iudicis arbitrive postulatio,
condictio, manus iniectio and pignoris capio.

SACRAMENTUM. This is described by Gains5 as generalis, which seems
to mean that it was applicable where no other was prescribed6. Thus it
might be used as an actio in rem, to enforce a ius in rem, e.g. ownership,
or as an actio in personam to enforce iura in personam, obligationes, and,
in the former case at least, it had an elaborate ritual.

The process in a real action began by a summons by the plaintiff to
the defendant, the form of which (if it had a specific form) we do not
know, to appear in court — in ius vocatio7. As it was essential to the legis
actio process, as a mode of litigation, that both parties be present and
play their part, obedience to the summons could be compelled. If the
defendant simply disobeyed, the creditor proclaimed the fact (ante-
stamino), seized him, and brought him before the court8. It is probable
that some circumstances might excuse from obedience to the summons,
in particular, morbus sonticus and status dies cum hoste, which would
certainly cause postponement of the hearing before the index9. If the
defendant evaded in ius vocatio by trickery or flight, the creditor might

1 E.g. Vat. Fr. 294; C. Th. 2. 26. 4; D. 10. 2. 57. 2 See for discussion and

gested explanations, Karlowa, C.P. 5 sqq. 3 G. 4. 11. Added words not in the

prescribed ritual vitiated the process, Vat. Fr. 318. 4 G. 4. 12. 5 G. 4. 13.

6 Karlowa, op. cit. 13, holds that the meaning is that sacramentum is available if no
other is provided, which is not the same thing and would exclude the possibility of
alternative processes. See however von Mayr, Mel. Girard, 2. 171 sqq. 7 XII Tab.

1. 1. The principal authorities for the procedure are the XII Tables, as restored (Girard,
Textes, 12; Bruns, 1. 18); G. 4. 16 sqq.; Cicero, pro Murena, 12. 26 sqq.; Valerius Probus,
Notae iuris, "in legis actionibus" ; Aul. Cell. 20. 10. 8 " Igitur em capita," XII Tab.

1. 1. If he was ill the creditor must provide carriage, XII Tab. 1. 3. 9 See the reif.
Bruns, 1. 20.

606 SACRAMENTUM [CH.

seize him — manum inicere1, which probably means no more than the
right to bring him by force before the magistrate's court2.

The parties being before the court, the plaintiff formally asserted his
claim. In an ordinary claim of ownership, e.g. of a slave, he placed a
hand on the object and said: "Hunc ego hominem meum esse aio ex iure
Quiritium, secundum suam causam sicut dixi. Ecce tibi vindictam im-
posui3," at the same time touching it with a wand (festuca). The other
party now made a similar claim in the same form, this vindicatio and
counter vindicatio being called manus consertio. This completed, the
praetor ordered them both to stand away: "Mittite ambo hominem."
Then the first party formally asked the other the ground of his claim:
"Postulo anne dicas qua ex causa vindicaveris." The other replied: " lus
fed sicut vindictam imposui*." Then the first party said: "Quando tu
iniuria vindicasti, sacramento5" (50 or 500) "te provoco," and the second
replied: "Et ego te." The sacramentum was a sum of 50 asses if the
matter was worth less than 1000 or it was a question of liberty, in other
cases 500. The successful party recovered his sacramentum, but the
loser's was forfeited to the State6. In historic times the money was not
actually deposited, but security was taken7. A third party, called a
praes, pledged land (praedium) for the sacramentum8. Then the praetor
assigned interim possession to one of the parties — vindicias dicere,
normally, no doubt, to the party in present possession9. Security was
taken by way of praes for the thing and the interim profits litis el vin-
diciarum, for the event of judgment against the holder10. The next step
was the appointment of a index of the qualified class to try the issue,
originally at once, but after a /. Pinaria of uncertain date, after 30 days'
delay11, so that the parties had time to come to terms. At some time in

1 XII Tab. 1.2. 2 The praetor in Rome. As to Italy, Girard, Org. Jud. 1. 272

sqq. The view in the text is that of Bethmann-Hollweg, 3. 106. On another view it was a
formal manus iniectio (Puchta, Inst. 2. § 160; Karlowa, C.P. 321 sq.) as to which, post,
§ ccxi. 3 The words "secundum. . .dixi" are obscure. Causa in the sense of

mode of acquisition has clearly not been stated; probably the reference is to causa in
the sense of accessories, etc. Cp. 12. 1. 31. pr. 4 "lus fed" is not easily translated
but the general sense of the declarations is clear. 5 "To" sacramentum or "by"

sacramentum? Karlowa, C.P. 16, takes the latter view but the account of Gaius makes
the whole sacramentum come later. On the meaning of the word sacramentum, see Strahan-
Davidson, Problems of the Roman Crim. Law, 1. 46 sqq. 6 G. 4. 13. 7 Originally

it was deposited with the pontifices, "ad pontem," Varro, L.L. 5. 180. 8 Varro,

L.L. 6. 74; Festus, s.v. Praes; Cicero, ad Alt. 12. 52; Verr. 2. 1. 150; Phil. 2. 78; pro Bab.
Post. 4. 8. See Debray, N.E.H. 34. 528 sqq. 9 Bethmann-Hollweg, C.P. 1. §42;

Girard, Org. Jud. 1. 74. In causae liber ales the vindiciae are given secundum libertatem, 1.
2. 2. 24; in claims against the people, in favour of them, Festus, s.v. Vindiciae. 10 G.
4. 16. The exact meaning of vindiciae is disputed. Interim profits is the meaning sug-
gested by this text, but the word seems to have covered all advantages of interim posses-
sion. See Festus, s.v. Vindiciae. 11 G. 4. 15.

xml SACRAMENTUM 007

J 9

the proceedings1, there was a joint formal appeal to witnesses, a pro-
clamation to bystanders: "testes estate2" said by Fcstus to be litis con-
testatio3. The index did not proceed at once; there was a delay to the
third day, i.e. the next day but one, dies perendinus*, on which the
hearing began. The index does not appear to have given a direct judg-
ment, condemnatio or absolutio, but a sententia that the sacramentum
of one of the parties was iniustum5. If the party justified was the
interim possessor, the matter was at an end; if it was the other, the
praedes would be liable for the thing and its fruits, and one or the
other would always forfeit the sacramentum*.

Where sacramentum was brought to enforce an obligation, it was less
dramatic in form. There was no manus consertio. The plaintiff said: " Aio
te mihi dare oportere (tautum)1," and the defendant denied liability.
There was then the machinery of sacramentum, but no question of
praedes litis et vindiciarum8. The iudex gave his decision in the same
way, and if it was a question of a fixed sum, the way was clear for pro-
ceedings in execution. If the amount was uncertain, there was a further
proceeding, an arbitrium litis aestimandae in which the arbiter would
determine the money value of the claim9, and the case was then ripe
for execution. Whether this same arbitrium was applicable to claims
in rem is disputed; no doubt the remedy against the praedes would be
more usually adopted10.

This description assumes that the matter proceeded normally with
no complications, but, apart from doubts resulting from lack of authority,
and of the obscurity, and scattered nature, of such as does exist, there
were variations in the course of the proceedings which must be men-
tioned. Manus consertio is spoken of above as taking place in court, but
there are traces of manus consertio ex iure, in case of land; the parties

1 Later analogy suggests the end of the legis actio, but it has been suggested that it was at
the beginning. See Girard, Manuel, 992, and literature there cited. 2 Festus, s.v. Con-

leMari. The words may be either a summoning of witnesses for the future hearing, or an
appeal to bystanders to bear witness that the ceremonial has been properly performed.
3 As to this expression, post, §§ ccxv, ccxxxv. 4 G. 4. 15; Val. Probus, "in legis actioni-
bus" ; Festus, s.v. Res comperindinata. 5 Cicero, pro Caec. 33. 97; de Domo, 29. 78. See
however von Mayr, Mel. Girard, 2. 177, and lit. there cited. 6 The praedes are adapted

from the praedes who were sureties for debtors to the State, and may therefore have been
like them subject to executive seizure without legal process. But while the praedes sacra-
menti gave an undertaking to the praetor, the others gave it to the adverse party (G. 4. 16).
We have no further information. 7 Val. Probus, loc. cit. 8 Probus gives the

form of challenge where the claim is denied. If admitted there would probably be manus
iniectio. If it was neither admitted nor denied the plaintiff used a phrase beginning "quando
neque ais neque nega.t" (Probus, loc. cit.), but the result we do not know. See for different
views, Karlowa, C.P. 112; Girard, Manuel, 1004. 9 Val. Probus, loc. cit.:

little is known of this, Keller- Wach, C.P. § 16. 10 See for various views, Girard,

Manuel, 343, and post, § ccxr.

608 SACRAMENTUM [CH.

went to the land1. Even in historic times there was a pretence of this;
the praetor said: " Ite viam," and the parties left the court, " Redite
r>iam," and they returned with a turf2. This use of a symbol was not
confined to land; if what was being claimed was too large or too numerous
an aggregate to be brought into court, part could be brought in to repre-
sent the whole3.

It has been assumed above that the party appeared personally under
an in ius vocatio, but the vindex mentioned by Gaius4 under the formula,
who appeared also in manus iniectio, might probably also act in sacra-
mentum. It is probable, however, that his intervention occurred only
where there was some ground of excuse for non-appearance, e.g., morbus
sonticus, or the like. Many views have been held5 as to the function of
such a vindex, but while it is fairly clear that he was not a representative
by whom the procedure was continued, for there was no representation
in the legis actio, the weight of argument seems to be in favour of the
view that he pledged himself in some way for the future appearance of
the party summoned. But we know no details.

There was perhaps another way in which a third party might inter-
vene. A text of Probus shews a litigant asking: "Quando te in iure
conspicio postulo anne far auctor6?" This may mean that the party
summoned might offer as a substitute the person through whom he
claimed a right, but it is also possible that the phrase is part of the
plaintiff's nuncupatio in the actio auctoritatis*' '.

CCIX. Since the legis actio involved co-operation, it could not pro-
ceed if, after the in ius vocatus had been brought into court, he refused
to take the further steps. There could be no decision. It is possible that
in real actions the thing was simply left in the hands of the helder, and
that in personal actions the facts were treated as confessio, but it is also
possible that in each case it entitled the claimant to detain the other
party till he took the necessary steps8. The case was different in iudicio;
the index waited till the middle of the appointed day and if either party
had not by that time presented himself, judgment went in favour of the
other9.

1 Cicero, pro Murena, 12. 26; Anl. Gell. 20. 10. 2 Cicero, pro Murena, 12. 26.

3 G. 4. 17; a sheep to represent a flock, a tile for a building, and perhaps an article to
represent a hereditas. 4 G. 4. 46. 5 See Bertolini, // processo civile, 94, and

his reff. 6 Val. Probus, loc. ciL 7 Ante, § CLXXI. See however Karlowa, C.P.

75, who cites for the first opinion, Cicero, pro Caec. 19. 54, and pro Mur. 12. 26, which
however are far from conclusive. As to the possibility of a cognitor in iudicio, post, § ccxxxix.
8 See Girard, Manuel, 988, n. 4; Bertolini, op. cit. 1. 98; Karlowa, C.P. 323. These writers
are dealing with the necessary giving of vadimonium (and they cite Plautus, Persa, 2. 4. 18,
the application of which to this point does not seem certain). The same rule would no doubt
apply to other failure to comply with procedural rules. See however as to actio in persona in.
ante, p. 607, n. 8. 9 XII Tab. 1. 8. Girard, Textes, 12; Bruns, 1. 19.

xin] SACR AMENTUM 609

The whole proceeding would not be completed in one day; even the
legis actio might not, and there were then the delay of 30 days for the
appointment of a index, and the did perendinatio, while the actual
hearing might well take many days. The question arises how the presence
of the party summoned was secured for these adjournments. The vadi-
monium of the formulary system originated in the legis actio. In its
later form security was given by ordinary verbal contract, but in the
legis actio it was by a special undertaking by sureties called vades1. It
is not quite clear in which of these various delays they were used; on the
whole it seems probable that vadimonium was used in all adjournment
of the legis actio2, and for the transfer from ius to indicium3. If post-
ponement of the indicium was needed (ampliatio), it was, as it seems,
not to the next day but to dies perendinus and there might be more than
one such diffisio*. But vadimonium does not seem to have been taken
here; the fact that judgment went by default, if a party had not appeared
by noon on the appointed day, would suffice5.

Vadimonium as we know it was usually limited in amount; it might
not exceed half the value of the issue or 100,000 sesterces, except in
actiones iudicati and depensi; here it was for the full amount6. It had
different forms, sometimes a mere promise, sometimes with surety,
sometimes under oath7. It is uncertain how far the distinctions go back
to the legis actio, but we learn that in actions for land vadimonium was
purum, i.e. without security8, and this no doubt applied to legis actio,
since the immobility of land and the liability of the praedes gave sufficient
security9. And, in some cases, in the legis actio10, the vades gave security
by way of subvades.

In historical times the reference was most commonly to a single
index11, who was sworn12. It has however been held, mainly on the
strength of the text of Pomponius which says that "actiones apud colle-
gium pontificum erant," one of whom was annually appointed, " ut praeesset
privatis13," that the pontiffs sat as indices in early law, but this is not

1 Fliniaux, Vadimonium, review by Debray, N.R.H. 1910, 142, also ib. 521 sqq. D.
considers the question whether the party also promised to appear. See also ib. 534 as to
Varro (L.L. 6. 74) on Sponsor, Praes and Vas. Gaius, 4. 184 sqq. 2 G. ib.; Aul.

Cell. 6. 1. 9. 3 G. 3. 224; 4. 15; L. Rubria, 21 in f. Girard, Texts*, 76. 4 XII Tab.

2. 2. Apart from non-completion, there might be diffisio for morbus sonticus, etc. 5 These
points are matter of controversy, Bertolini, op. cit. 1. 96; Karlowa, C.P. §§41, 42;
Fliniaux, op. cit. 1. 6 G. 4. 186. 7 G. 4. 185. In some cases recuperatores

were named at once with power to give judgment for amount of vadimonium if it was not
observed. 76. 8 D. 2. 8. 15. pr. dealing with later system, but probably equally

applicable to earlier. 9 See however Keller- Wach, C.P. n. 543. 10 Aul. Gell.

16. 10. 8. 11 Details as to indices, post, § ccxvn. 12 Cicero, de Off. 3. 10. 44.

13 1. 2. 2. 6; Karlowa, C.P. 23. The probable originally religious character of sacramentum
aids this opinion.

B. B. L. 39

610 SACRAMENTUM [CH.

generally accepted1. On the other hand the index was not the only
person to preside in a indicium. In some cases the matter went to an
arbiter, as is now usually held, where an expert was required2, in others
before three arbitri, i.e. in finium regundorum, and for the purpose of
estimating the value of interim fruits in sacramentum?, which issue,
however, was probably tried by iudicis arbitrive postulatio*.

Where peregrines were concerned the case might go before recupera-
tores, but, as peregrines had in general no right to the legis actio, this
was confined to those communities with which there existed special
treaties. It is not indeed certain that these cases were tried by legis
actio, but it is probable that the treaty sometimes provided for this5. If
the transaction had taken place on Roman soil the recuperatores were
Romans; if elsewhere, of the nation of the peregrine6. The proceeding
was intended to be speedy and thus recuperators must give their judg-
ment within ten days7.

Another possible tribunal was that of the centumviri. These seem to
be of no great antiquity; the organisation with which we know them
cannot be earlier than B.C. 240, when the tribes became 35 in number8.
They were chosen from the tribes, but the method is not known. They
adjudicated in hereditatis petitio, in claims of tntela, and, apparently, in
some other real actions9. Under Augustus the court was reorganised;
the decemviri stlitibus iudicandis were incorporated with it and took
precedence in it10. The court was increased in number11 to at least 180.
It sat in four groups or sections (consilia), acting, however, sometimes
together (quadruplex indicium), sometimes separately, and, it seems,
sometimes in pairs, but the principle of these distinctions is uncertain12.
The court continued in existence throughout the classical age13.

The decemviri stlitibus iudicandis1* are perhaps more recent than the
centumviri. Pomponius speaks of them as created after, and seemingly
not long after, the creation of the Praetor Peregrinus15, but they are not

1 See Girard, Org. Judiciaire, 1. 58. The actions were with them in the sense that they
were guardians of the forms. 2 See Eisele, Beilrage, 1 sqq., who infers from etymo-

logy that an arbiter was originally one who had to investigate on the spot. 3 XII

Tab. 12. 3; Cicero, de Leg. 1. 21. 55. See Wlassak, Processg. 2. 293 sqq. 4 See Girard,

Manuel, 1006. 5 Girard, Org. Judic. 1. 83, 99 sqq.; Wlassak, Processg. 2. 299 sqq.

6 Dion. Hal. 6. 95. 7 76.; Girard, Org. Judic. 1. 102. See also I. Colon. Genetivae 95,

which gives 20 days (Girard, Textes, 97; Brims, 1. 130). 8 Festus, s.v. centumviralia
indicia. Not found before 190 B.C. Girard, Org. Judic. 1. 23. 9 Cicero, de Or. 1. 38.

175; pro Caec. 18. 53. There is dispute as to the extent of their jurisdiction and as to the
extent to which it was exclusive. See Pissard, Les questions prejudicidles, ch. m; Wlassak,
loc. tit.; see also Daremberg et Saglio, s.v. Centumviri. 10 Sueton. Aug. 36. 11 Pliny,
Ep. 6. 33. 12 See Girard, Manuel, 1014. 13 Obsolete in time of Diocletian,

Wlassak, Pauly-Wissowa, 1950. 14 Not to be confused with an earlier plebeian

tribunal of decemviri, see Girard, Org. Judic. 1. 83. 15 1. 2. 2. 29.

xin] SACRAMENTUM 611

traceable before the beginning of the seventh century1. They tried
cases of liberty2, and perhaps civitas. They ceased to exist as a separate
court under Augustus3.

Not every day was available for the proceedings in lure. The utter-
ance of the formal words "do, dico, addico" besides being limited as to
place4, was also confined to certain days5. Some days, dies fasti, were
wholly available; others, dies nefasti, were wholly excluded. Others
were available if the comitia did not meet, and others were, for various
reasons, available only partially, dies intercisi. In the later Republic
there were alterations in the assignment, of which the chief was that
market days, which had been excluded, were made available unless they
fell on a day expressly nefastus*. Further even dies fasti might be ren-
dered unavailable by a temporary closing of courts of justice, a iustitium,
which appears to have been done by the authority of a magistrate,
especially in times of tumult or national lamentation7. In the same way
the indicium might not take place except on lawful days. But while it
seems clear that the mere fact that a day was nefastus would not neces-
sarily bar proceedings, as there was no question of using the formal
words, the whole question of the days available is obscure8.

Though the word plaintiff has been used in the foregoing account,
this does not properly express the relation of the parties; it is the lan-
guage of a later system9. Each made a claim in real actions, and neither
could get judgment, without proving his title; there was no question of
burden of proof, on one rather than on the other. But this was in practice
less important than it looks. In the absence of proof on either side, the
party in possession, under the system of vindiciae, was left in possession,
so that if the original vindicans made no case, the other remained in
possession whether he had made a case or not10.

The foregoing is an account of sacramentum in its historically known
form. Its name suggests a religious origin, and it is probable that the
sacramentum was originally an oath, in support of which an expiatory
offering was made, to be forfeited to the gods by the party whose oath
was proved false11. It has also been held that the offering was not on
account of falsity, but for removing the matter from the arbitrament of

1 C.I.L. 1. 38; Mommsen, Rom. Staa.l-sr. 2. 1. 605; D.P.R. 4. 314. 2 Cicero, pro

Caec.. 33. 97. 3 The tresviri capitales (1. 2. 2. 30; Livy, 9. 46; Ep. lib. 11) elected in

the sixth century by the centuries were essentially police magistrates, but there is some
evidence for a certain subordinate function in civil jurisdiction. Mommsen, op. cit. 2.
1. 599; D.P.R. 4. 307. As to a I. Papiria, giving them certain functions in sacramentum
(Festus, s.v. Sacramentum), Girard, Org. Judic. 1. 178. 4 As to the place or places,

Girard, Org. Judic. 1. 183. 5 See Bruns, 1.41 sqq. 6 See Girard, Org. Judic.

1. 19, 60, 181. 7 Cuq, Daremberg et Saglio, s.v. Iustitium. 8 Girard, op.

cit. 1. 86. 9 G. 4. 16, 17 avoids this language. 10 So, presumably, if both are iniusta.
11 See the reft, in Bertolini, op. cit. 1. 115.

39—2

612 IUDICIS ARBITRIVE POSTULATIO [CH.

the gods1, and also, with probability, that the postponement under the
I. Pinaria is associated with secularisation of the proceeding; it was no
longer necessary to settle at once the question before the gods2.

Originally presided over by the rex, the proceeding passed to the
consuls, on the founding of the Republic, and, by the /. Licinia, to the
praetor. The praetor peregrinus had jurisdiction where aliens were con-
cerned, praesides in their provinces, and possibly in certain cases the
curule aediles. But only those mentioned could act; inferior magistrates,
e.g. municipal magistrates, had not ordinarily the legis actio3.

CCX. IUDICIS ARBITRIVE POSTULATIO. Of this process nothing
is certainly known except that it existed, that, in the opinion of Gains,
some of the matters which could be tried by condictio could be tried in
this way, and that it involved an application to the praetor in the words,
"Te praetor iudicem arbitrumve postulo uti des*." Among the con-
jectures as to its application, the most widely accepted is that it was
used to decide issues which did not admit of a simple yes or no, e.g. the
arbitrium litis aestimandae, the divisory actions, and some others. It
wrould thus be the field of arbitria as opposed to indicia. But it is difficult
to reconcile this limitation with the word iudicem in the formal demand,
or with the statement of Gains, which seems to mean that matters
coming within condictio could be tried by iudicis postulatio. The remark
may, however, mean no more than that the whole field of obligatio was
covered by existing actions. It has also been conjectured that this
process is the ancestor of the later bonaefidei indicia5.

The action is no doubt later than sacramentum, but there is no reason
to suppose it later than the XII Tables. There would be in ins vocatio,
where it was not a pendant to sacramentum, and vadimonia, if necessary.
There was probably the 30 days' delay, though this is proved only for
sacramentum and condictio. There would be diei perendinatio, and it is
probable that the judgment was a condemnatio for a money payment6.

CONDICTIO. This action was introduced by a I. Silia for the enforce-
ment of obligations for certa pecunia and extended later by a /. Calpurnia
to claims for certa res7. The dates are not known, but it is commonly
held that they were nearly of the same date, about B.C. 2508. They were
probably associated with the new verbal contract, stipulatio, though the

1 Ihering, Evolution of the Aryan, 359. 2 Eisele, Beitrdge, 222. Von Mayr, Mel.

Girard, 2. 171, traces it from sacratio capitis, through sacratio bonorum, to expiatory offer-
ing. The article contains much discussion of other views. The notion of sacramentum as a
bet, which neither wins, seems to ignore the probable origin. 3 1. 7. 4; cf. P. 2. 25. 4.

4 G. 4. 12. 20; Val. Probus, "m legis actionibus." As to Cicero, de Or. 1. 36. 166, see
Huvelin, Mel. Gerard/in, 319 and Girard, Melanges, 1. 127. 5 Keller-Wach, C.P.

35. 171. 6 Bethmann-Hollweg, C.P. 1. 64. 7 G. 4. 19. Jobbe-Duval, Proc.

civile, 63 sqq. 8 Girard, Manuel, 1006.

xin] CONDICTIO 613

legislation can hardly have been for the purpose of making these en-
forceable, since Gains tells us that the existing actions sufficed, and does
not know why this was introduced1. But it provided a simpler form,
and had the advantage that it did not involve getting security for the
sacramentum; this must sometimes have been a denial of justice. Not
every poor litigant could get a friend to risk 500 asses. Further, the
stake of which we shall hear went to the winner2.

The action was presumably available not only on contract, but also
to recover the fixed penalties prescribed in certain cases by the XII
Tables3. It owes its name to the condictio, which Gaius explains as
denuntiatio*, by which the plaintiff gave the defendant notice to appear
on the thirtieth day to receive a index. We do not know the form of the
notice or if it was in iure, but this seems probable, as the proceeding
would hardly have derived its name from what was not conceived of as
part of the legis actio5. If it was, there must presumably have been in
ius vocatio, and the effect seems to be that a simpler process is substituted
for the machinery of the sacramentum. Con-dicere suggests a mutual
arrangement, but this is not inevitable; it may mean no more than
communication. There was probably a condemnatio in money6. ^

In the later actio certae pecuniae creditae we are told7 that the plaintiff
could insist on a sponsio and restipulatio tertiae partis, and it seems that
this was a matter of course8. As this action descended from condictio e
lege Silia, it is commonly held that that also had this characteristic9.
Assuming its existence, it may have been made at the time of the
condictio or at the appointment of the index10, and it is not certain
whether the action was tried on the sponsio, as in the actiones per spon-
sionem, or on the original issue11. On this point the state of things in
the actio certae pecuniae creditae suggests the latter view. There seems no
reason to suppose a sponsio and restipulatio in condictio e lege Calpurnia12.

•

1 G. 4. 20. 2 Jobbe-Duval points out that the penal character of the earlier modes
rendered them unsuitable to an advancing civilisation. He thinks, but his evidence is slight,
that compurgation was admissible in these. He considers that the main purpose of the intro-
duction is to make the position of debtors easier, referring especially to the immediate opera-
tion of manus iniectio. 3 E.g. XII Tab. 8. 3. On the question whether it was alternative to
sacramentum or exclusive, see Jobbe-Duval, who thinks it exclusive (op. cit. 109), andGirard,
Manuel, 1006. 4 G. 4. 18. 5 Cp. the language of Gaius, 4. 29; Karlowa, G.P. 231.
6 The limitation to certa suggests this: it is probably the source of the condemnatio of the
formula. 7 G. 4. 171. 8 See the reff. in Karlowa, C.P. 233. 9 Karlowa, after adopting
it, denies its existence in a later work, E.Rg. 2. 595; indeed the evidence is not very good.
10 Karlowa at one time held the latter, arguing from the so-called I. lulia municipalis, 41,
C.P. 233. 11 The fact that in the actio certae pecuniae creditae it was tried on the main

issue, the sponsio being "si secundum me iudicatum erit" or the like (G. 4. ISO; Lenel,
E.P. 232 and reff.), strongly suggests this. Jobbe-Duval takes the other view, treating
condictio as affording a model for the actions per sponsionem (post, § ccxiv), op. cit. 180.
12 Jobbe-Duval accepts the bet for condictio e lege Silia, but he also finds in it c. e. I.

MANUS INIECTIO [en.

Another new institution supposed to attach to this action is the
iusiurandum necessarium, the plaintiff being entitled to put the defendant
to his oath as to the existence of the debt1. This institution certainly
existed under the formulary system for claims of a cerium, and it is men-
tioned in Plautus2, before the date of the I. Aebutia which introduced the
-formula, so that it seems inevitable to refer it to condictio as a legis actio.
From the scope of the iusiurandum necessarium, in the formulary system,
it would seem to have applied equally to condictio under the I. Calpurnia.

CCXI. These three actions were forms of litigation, reference of a
dispute for settlement. We pass to two others which, at least primarily,
had not this characteristic, but were modes of enforcement of a right,
regulated self-help.

MAXL-S INIECTIO. This was, essentially, seizure of a person against
whom there was a claim, no doubt older than organised redress by way
of litigation. As we know it, it was subject to exact rules of form, involv-
ing appearance before a magistrate, and strict limitation as to the cases
in which it might be used. Gaius describes it as of three types: iudicati,
pro iudicato and puraz.

Manus iniectio iudicati. The process was as follows: after 30 days
from the judgment4 or other event justifying the seizure the claimant
brought the party liable before the magistrate (in ius ducit) and said, in
iure, "quod tu mihi iudicatus" (or damnatus] "es sestertium (X milia),
quandoc non solvisti, ob earn rem ego tibi sestertium X milium iudicati
manum inicio5." The defendant might not defend himself against the
manus iniectio (manum depellere), but if it was from any cause not
justified, someone must appear on his behalf to prove this — a vindex.
The effect of the intervention was that the defendant was released, and
further proceedings were against the vindex*. The action of the vindex
was not an appeal: there was no rehearing of the original dispute. He
migKt shew that there had been no such fact basing the manus iniectio
as was claimed or that the creditor had been satisfied or had come to
terms. It is possible that he might be allowed to shew that the index
had taken a bribe, a capital offence under the XII Tables7, but he was
>" not entitled to shew simply that the judgment was wrong.

We are not told how the proceedings against the vindex were framed,

Calpurnia. He considers the bet and the iusiurandum as part of the same mechanism and
thus both essential (op. cit. 163 sqq.), but does not explain why the bet disappeared in
formulae for certae res.

1 Post, § ccxv. 2 See Girard, Manuel, 1007, n. 1. 3 G. 4. 21 sqq. 4 XII
Tab. 3. 1. 5 G. 4. 21. See Gradenwitz, Mel. Girard, 1. 506, for suggestions of

divergence here from the original form. The account in the text is of the institution
in historical times. 6 G. 4. 21. There were rules, not fully known, as to the financial

standing of persons admissible as vindices, according to the position of the debtor; XII
Tab. 1. 4. See also I. Colon. Genetivae, 61. 7 Aul. Cell. 20. 1. 7.

xiii I MANUS INIECTIO 615

but it may be inferred from the practice in the later actio iudicati1,
which seems to have been modelled, in its substantial elements, on
manus iniectio, that it was referred to a index2, and it seems fairly clear
that if the vindex failed he was condemned in duplum3. Apart from this
intervention, or satisfaction of the claim (iudicatum facere), the manum
iniciens might carry off the debtor, who, in historic times, was " addictus"
to him by the magistrate4. The creditor might keep him for 60 days in
a private prison, during which time they might, of course, come to
terms5. There was as yet nothing definitive; the debtor was still free
and a civis, and had not lost his property. The holder must produce him
publicly on three successive market days6 and proclaim the amount of
the debt, presumably to provide an opportunity of redemption. At the
expiration of this time " capite poenas dabant aut trans Tiberim peregre
venum ibant7," which is understood to mean that the creditor might
either kill him or sell him into foreign slavery. Another text says that,
where several creditors had obtained manus iniectio, "partis secanto: s-i
plus minusve secuerint se fraude esto*." The later Romans understood
this to mean that the creditors might cut the debtor to pieces without
responsibility if they cut more than their share, but it is spoken of as
unheard of; there was no record of its ever having been done9. " Capite
poenas dare" might mean merely enslavement, and since this would
deprive him of his property it has been contended that "partis secanto"
means merely division of the property, any inequality being capable of
adjustment10. It is indeed objected that a civis could not become a
slave at Rome. But this lofty principle, which was in any case not true
of later law, is not well evidenced11, and is difficult to reconcile with the
dispute mentioned by Gains, of an age, as the context shews, earlier than
the praetor's edict12. There is nothing inconsistent with the notions of a
primitive people in the literal understanding of the rule. The whole
institution is the subject of much controversy13.

1 Post, § ccxix. 2 It is clear that it was referred from the magistrate to another

tribunal in certain quasi-criminal cases of manus iniectio pura, which went before the
tresviri capitales. See Girard, Org. Judic. 1. 177. 3 This is inferred from

the existence of double damages in cases known to have descended from manus iniectio,
e.g., actio depensi, ante, § CLVI. The proof drawn from the obscure 1. Colon. Genetivae, 61,
is disputed. See Girard, Manuel, 999; Textes, 91. 4 G. 3. 189; Aul. Cell. 20. 1. 44.

See Karlowa, C.P. 158. 5 The XII Tables contain elaborate rules as to his treat-

ment during this time (3. 3, 4). 6 Apparently the last three nundinae of the

60 days, for we are told "tertiis nundinis partis secanto." 7 Aul. Gell. 20. 1. 47.

8 XII Tab. 3. 6; Aul. Gell. 20. 1. 48. 9 Aul. Gell. 20. 1. 52. 10 Karlowa,

C.P. 163, 178; secure he compares with bonorum sectio. 11 It seems to rest mainly on

Cicero's rhetorical language, pro Caecina, 34. But see Mommsen, Strafr. 945. 12 G. 3.
189, on the question whether a fur manifestus became a slave immediately on addictio.
See also Aul. Gell. 20. 1. 7, quoting Caecilius on the same rule of the XII: "in servitutem
tradit." 13 Ihering's view, Scherz und Ernst, Eine civilprozessualische Attrappe, who

616 MAN US INIECTIO [CH.

The I. Poetelia, of 326 B.C.1, provided, inter alia, some amelioration
of the position of the addictus for debt. Debtors were not to be chained
or imprisoned or to pay with their persons, but rather with their goods,
a statement of Livy2 which is supposed to mean that the power of killing
or selling was taken away. This seems to imply that they could work
out the debt and as a corollary, that the limit of 60 days disap-
peared3.

The question remains: what were the cases of manus iniectio iudicatil
As judgment, though the typical case, was certainly not the original, for
the system is, no doubt, older than judgments in the modern sense, it
may be assumed that it applied to the other ancient cases, of which
nexum is the most prominent4, and to legatum per damnationem of a
certain sum5. It applied also, even primarily, to a confessus6. Gaius
speaks of its application to iudicatus and damnatus1, giving the form,
however, not merely for iudicati, but for all manus iniectio. " Damnatus "
appears to cover not only one condemned in a judgment, but one
damnatus (damnas esto) by will, or by a contract, e.g., nexum, or by lex,
e.g., I. Aquilia8. There was probably condemnatio in condictio and in
iudicis postulatio (and thus in the arbitrium litis aestimandae after a
sacramentum), though here and in sacramentum in personam for a certum,
and in sacramentum in rem (if proceedings were taken against the actual
party, and not against the praedes} the person liable was a iudicatus.
The fact that both sacramentum and "Us et vindiciae" were recoverable
from another person seems to put the actual party in a very favourable
position. In effect, however, if the matter stood thus, it would be
oppressive, for a poor man would hardly get praedes on such terms. It
must be noted however that the case differs from that of a vindex, who
certainly took over the liability9, while in the case of the praedes no
event had happened to release the party himself, against whom the
proceedings continued10. It seems probable therefore that if the winner
preferred he might when the matter had been reduced to a certum by
arbitrium litis aestimandae, proceed by manus iniectio against the
original party11. On the other hand the praes was apparently a sponsor,
and, if he had satisfied the obligation, by depensio, had manus iniectio

treats it as a device compelling sale of the debtor to one of them, has been the source of
much discussion.

1 Girard, Man., 493. 2 Livy, 8. 28. See Varro, L.L. 7. 105. 3 Girard, Man.,

1000. 4 Ante, § CL. 5 The double liability of infitians indicating the origin in m.
ini. applied only to the case of legatum certi, ante, § cxvn; G. 4. 9. It is presumably
iudicati, as G. does not mention it among later extensions. 6 XII Tab. 3. 1, but see

for limitations, post, § ccxvi. 7 G. 4. 2. 1. As to this distinction, see Karlowa, C.P.
58. 8 Double damages contra infitiantem, G. 3. 216. 9 " Vindicem dnbat qui pro

ae causam agere solebat," G. 4. 21. 10 G. 4. 16 sqq. 11 Koschaker, Z.S.S. 37.

358 sqq. See however Girard, Manuel, 343.

xm] MAN US INIECTIO 617

(pro iudicato} against his principal. It has also been suggested on the
evidence of a passage in Gains1 that the magistrate would take steps to
seize for the winner the property in question, but this is improbable and
not justified by the text, whatever it may mean.

CCXII. Manus iniectio pro iudicato. Gains tells2 us that statutes
had extended the right of inanus iniectio to certain cases, as if there had
been a judgment, i.e. with the same incidents as in that case, of which
the most important is that any defence must be raised by a vindex. The
/. Publilia gave it to a sponsor not reimbursed within six months, per-
haps only where the payment had been formally made per aes et libram,
depensio3. The I. Furia de sponsu gave it against one who had exacted
from sponsor or fidepromissor, under a judgment, more than his share of
the debt. Perhaps here too solutio per aes et libram is assumed. He tells
us that there were other cases of the same kind4. In practice the function
of the vindex in these cases was somewhat different from that in m. i.
iudicati. Nominally it was the same; he could not go behind the facts
which justified the seizure. But in m. i. iudicati these were definite
readily established facts which the vindex must disprove; here it was in
effect an ordinary litigation, begun in an unusual way. The vindex
cannot have been under the burden of proof; it is for instance impossible
that anyone, by merely charging me with having put filth on sacred
ground, as in the Luceria case5, could compel me to find someone who
could prove that I had not done so, on pain of double liability in case of
failure. It was in fact merely a device, which survived in the later
actiones in duplum contra infitiantem of later law, to shorten proceedings
by penalising groundless defences.

Manus iniectio pura. This was a somewhat later development.
Gaius6 speaks of several cases in which leges gave m. i. pura, in which
the defendant had no need of a vindex, but could defend himself. As
there had been a manus iniectio, he might be said to be his own vindex. It
has indeed been contended that there was no liability in duplum7, but
the institution would be meaningless without this: manus iniectio would
be only another form of in ius vocatio. Gaius indicates differences be-
tween this and the other cases, but says nothing of a difference as to the
liability. And as the /. Vallia turned nearly all manus iniectio into m. i.
pura8, it is difficult to understand how the cases should have survived
into later law as actions with double liability on denial if they had not

1 G. 4. 48. 2 G. 4. 23. 3 Ante, § CLVI. 4 The only other certain case

seems to be a provision for the town of Luceria that for certain offences against public
order, anyone might proceed for a fixed penalty by manus iniectio pro iudicato (Girard,
Texteft, 25). No doubt there were other cases of the same type. 5 See post, p. 619,

n. 8. 6 G. 4. 23 sqq. As to nexum, see ante, § CL. 7 Mitteis, Z.S.S. 22. 114.

8 See post, p. 618.

618 MAN US INIECTIO [CH.

had this character in their last phase as manus iniectiones1. The whole
conception of m. i. pur a seems to be a clumsy device for securing double
liability of infitians in certain cases. Gains gives as instances the claim
under the /. Furia testamentaria against one who took a legacy greater
than 1000 asses, and that under the 1. Marcia against usurers2. It is un-
certain for many of the other recorded cases of m. iniectio whether it
was pro iudicato or pura3.

The conditions were altered by a I. Vallia of uncertain date, but
probably not long before the /. Aebutia*, which made all manus iniectio
"pura" except under judgment and in the actio depensi of the sponsor5.
It is clear from this and other known facts, that the /. Poetelia, not-
withstanding the language of Livy6, had not abolished execution on
the person; it long survived the disappearance of the legis actio.

Manus iniectio differed from the cases of legis actio previously dis-
cussed in that it was not essentially litigation. It has been suggested
that it is grouped with the others because by the intervention of a
vindex it might result in litigation7. But this can hardly be the reason
unless this litigation is itself a part of the legis actio totally unrecorded.
Gains says nothing of any formal words spoken by the vindex, or of the
litigation. The idea seems to involve a sharp distinction between litiga-
tion and execution which might have been expected from Gaius, but
hardly from the ancients from whom the classification is derived. It
appears to have been grouped with the other forms because it wras, like
them, a formal process prescribed under the lex for the enforcement of
a right8.

CCXIII. PIGNORIS CAPIO. This was essentially the seizure of property
of the debtor in order to put pressure on him. It is obviously primitive,
dating from days before the legis actio, when it had in strictness no legal
effect. Even after it had become a regulated legis actio, it no doubt con-

1 The action on legatum per damnationem (of a certum) and the Aquilian action were
both in duplum and were presumably m. iniectiones purae under this law whatever they
were before. That they were m. i. is assumed from the expression of the liability as "damnas
esto" (G. 2. 201; D. 9. 2. 27. 5) coupled with the later double liability and the word dam-
nafus in m. i. All other recorded m. i. is on a certum but the Aquilian action is not. As to
12. 1. 9. 1, see Naber, Mnemosyne, 19. 182. See also G. 2. 213; Lenel, E.P. 196. It is con-
ceivable that to get this remedy the plaintiff had to assess the value beforehand, as he had
to do in furti nee manifesti (12. 3. 9; Lenel, E.P. 318) which also gave double liability
though it is not only contra infitiantem. 12. 1. 9. 1 may be a reminiscence of this. 2 The
exact conditions of this are uncertain, G. 4. 23. 3 See, for a list, Girard, Manuel, 1001,

n. 2. 4 Girard, Manuel, 1001. 5 G. 4. 25. 6 Livy, 8. 28. 7 Ihering,

Geist (5), 1. 150 sqq. If, as is sometimes said, the further proceeding against the vindex was
a separate legis actio, presumably sacramentum at first, this view is necessarily excluded.
8 This is substantially the definition of legis actio given by Ihering elsewhere (op. cit. (4),
2. 639; Tr. Franf. 3. 331). In the other passage he is considering not the character of
legis actio, but the character of modi lege agendi.

xin] P1GNORIS CAPIO 619

tinned to be applied beyond the legal sphere. If a man seized a chattel
of his debtor, having no legal right to do so, the debtor conld claim it,
but only at the risk of being at once proceeded against for the debt,
and no doubt such extra-legal pledges often resulted from agreement.
As a legal institution it is explained by Gaius1 as follows: the creditor,
where pignoris capio was allowed, seized property of the debtor to hold
as a pledge, using formal prescribed words (certa verba), as in other legis
actiones, but there was no appearance in court, the debtor himself need
not be present, and it could be done on dies nefasti, when, in general,
because the intervention of the magistrate was involved, legis actio was
not possible.

Gaius tells us that it was allowed by custom where a soldier's stipend
(aes militare), or the money needed to procure a horse for an eques (aes
equestre), or fodder for the horse (aes hordearium), was not provided by
the person liable, this charge being, at least in case of aes hordearium,
imposed on certain persons as a tax2. The XII Tables allowed it against
one who had bought a beast for sacrifice and failed to pay the price, or
had hired a horse from one who meant to use the hire money to buy a
sacrifice, and had not paid the hire. It was allowed by a provision of
the censors to a publicanus, for unpaid taxes. Gaius does not suggest
other cases, but it is sometimes supposed that these are only examples
and that it was a much more general remedy3. There seems no evidence
for this. Gaius indeed tells us4 that in damnum infectum, though the
praetorian remedy was usually adopted5, it was possible to proceed by
legis actio and it is suggested that this was pignoris capio, for which
view there is not much evidence6; the liability is of a very different
type from that in the recorded cases. There is another recorded case in
the Empire7, but that was seizure by persons exploiting under the
State and had no relation to the legis actio. There is another somewhat
earlier case in which manus iniectio and pignoris capio were allowed
where filth was thrown in a certain area, which may have been a private
case, i.e. popularis8, but is not ancient or very closely connected with the
old legis actio. On the whole the list given by Gaius seems probably to
be exhaustive for early law.

The fact that some of these cases are based on mores and not on lex
has suggested the view that in the expression legis actio the word lex
is used 'in an extended sense, though there are different opinions as to

1 G. 4. 26 sqq. 2 See Mommsen, Staatsr. 3. 195; D.P.R. 6. 1. 219. 3 E.g.

Lenel, Essays in Legal Hist. ed. Vinogradoff, 132. 4 G. 4. 31. The cases of extra-

legal seizure are of no importance in this connexion. 5 Post, § CCXLV. 6 So

Karlowa, C.P. 216 sqq., who gives the evidence. 7 Lex Metalli Vipacensis, 16,

35, 41, etc. Girard, Textes, 120; Bruns, 1. 189. 8 Sc. de pago Montana, Girard,

Textes, 130; Bruns, 1. 189.

620 PIGNORIS CAP 10 [CH.

what this extended meaning is 1. But the forms are regulated by statute,
and the fact that some of the applications are older than the statute
does not seem to require this concession; tutela legitima is older than the
statute.

What is the common quality of the recorded cases of pignoris capiol
They all, with the very doubtful exception of damnum infectum, affect
the State or religious interests2, and it is contended that as the State
can do itself justice, these are cases in which the State had delegated
the power of enforcement to the person more immediately concerned and
responsible. The interests of religion were indeed only remotely affected,
and neither State nor religion was in any way concerned in damnum
infectum. But leaving this doubtful case out of account, they were all
certainly cases in which there was public interest, and they were all
cases in which there was no juristic relation between the parties. Those
who were to provide the funds for the soldier were not responsible to
him but to the State. The tax was not due to the publicanus but to the
State. Informal sale and hire were not recognised as giving an action
in early law. This indirect remedy was given because the public interest
was concerned.

The seizure of a pledge was in itself a poor remedy. It might indeed,
if a quantity of valuable and indispensable property was seized, put
pressure on the defaulter, but one would expect further steps to be
possible. Gaius tells us of none, and other sources give little help. There
is no hint of a right of sale. Whether the system was or was not a delega-
tion of the magistrate's power of seizure, by way of coercitio, it was
plainly modelled on it and would probably give the same rights over the
pledge. In that case the practice was, apparently, to destroy it, if the
claim was not satisfied3. This right may have existed here, and, on the
same analogy, may have been the only right. Sale in the State cases
would have suggested action in our case4, but as the State did not sell,
that analogy fails. It is, however, widely held that the further pro-
ceedings were an action5, and that to this fact is due the position of
pignoris capio in this group. This would not be an action by the victim
claiming that the seizure was wrong, for that would be a vindicatio,
presumably sacramentum, and certainly a distinct legis actio. It must
therefore have been an action to enforce redemption of the pledge,
perhaps, in view of the language of Gaius 6 and of analogous provisions
of the so-called I. lulia municipalis"7, for an amount larger than the

1 See Mitteis, Privatr. 1. 34. 2 Cuq, Inst. Jur. 1. 430; Manuel, 843. 3 Mommsen,
Strafr. 53. 4 That is the way in which the State enforces its claims, as action is for

privati. 5 Ihering, Geist (5), 1. 158 sqq. 6 G. 4. 32. 7 E.g. 44; Girard,

Textes, 84; Bruns, 1. 104.

xin] DECAY OF LEGIS ACTIO 621

original claim, but recoverable only after a certain lapse of time. But
it is surprising, if this special machinery existed, that Gaius, whose
account is full, should not have thought it worth mentioning. He tells
us of the indicium in sacramentum and condictio. He tells us that there
was difference of opinion on the question whether pignoris capio was a
legis actio; some refused so to regard it because it was not in iure, did
not need presence of the adversary and could take place on dies nefasti,
all impossible in the others1. He says that the general view was that it
was a legis actio, because of the certa verba used. He does not advert to
the existence of this indicium which must, one would suppose, have
involved appearance before the magistrate for the appointment of the
index.

Two texts are however cited to prove the existence of this action.
One is a text of Cicero in which he calls the publicanus "pignerator ac
petitor2." But another reading is "ant petitor," which makes some
difference. And it is impossible to attach much importance to a rhe-
torical utterance dealing with provincial procedure and made after
formulae had existed for a century. The other text, of Gaius3, is more
important. He tells us that there was in later times an actio fictitia
given to the publicanus containing " talis fictio . . .ut quanta pecunia olim
si pignus captum esset, id pignus is a quo captum erat luere deberet tantam
pecuniam condemnetur." The fiction is complex. The form given is, it
seems, that of the formula, in oratio obliqua. He gives other illustrations
of formulae fictitiae in personam, but this is the only one which says
" luere debere" and not " oportere," a fact which suggests that the remedy
it replaced was not an action. If the seizer had no action, but only means
of putting pressure, this fiction seems exactly designed to give an action
instead. If there had been an actio it is not easy to see why the expression
"dare oporteret" was not used; the whole formula would have been much
simpler.

CCXIV. DECAY OF THE LEGIS A CTIO. The rigid formalism and con-
sequent inexpansibility of the legis actio was unsuited to the needs of an
advancing civilisation. Still less was it suited, since its forms and cere-
monies were to agreat extent secrets in the hands of patrician magistrates
and pontiffs, to the plebeians, steadily growing in importance and strength.
The opening of various magistracies to plebeians and the publication of
the Calendar and other information by Cnaeus Flavins, about 300 B.C.4,
did something to help them, and when, half a century later, a plebeian
pontifex maximus expounded the law publicly5, all the value of the
system, even to the patricians, was gone. Only its inconveniences were

1 G. 4. 29. 2 In Verr. 2. 3. 11. 27. 3 G. 4. 32. 4 Livy, 9. 46; D. 1. 2.

2. 7. 5 1. 2. 2. 35.

622 DECAY OF LEGIS ACTIO [CH.

left, and it was superseded by the more rational Formulary System. A
certain simplification had already begun within the legis actio itself, by
the introduction of the actions per sponsionem1. This was a method of
evading the real action by sacramentum2. One of the parties, apparently
the party in possession, made a promise of a small sum to the other, if
the thing claimed belonged to that other. At the same time he gave
security for delivery of the res and the interim profits, by way of surety,
replacing the old praedes, and therefore called satisdatio pro praede litis
et vindiciarum3. Action was brought on the promise. It was probably
tried by condictio*, and the trial of the question whether the summa
sponsionis was due would in effect settle the property question. The
language of Gaius5 makes it clear that the action was in form in per-
sonam, a claim for the amount of the sponsio. The decision rendered
possible a claim against the sureties for the thing, so that it was in effect
a decision on the ius in rein. The sponsio was, as we know it, praeiudicialis,
not poenalis, i.e. it was not actually exacted6. Its amount would there-
fore be indifferent. Though the action would normally be condictio after
this action was introduced, a certain I. Crepereia of unknown date
shews that, if the case was one going before the centumviri, the claim
would be by sacramentum in personam, and it is possible that this alter-
native was always open. The same statute also provided that the sponsio,
in the same case, should be 125 sesterces7. The purpose of this provision
may have been to secure that the resulting sacramentum should be on
the lower scale, but it is obscure, and the fact that, on the money values
of the late republic, 125 sesterces were equivalent to 500 asses, i.e. the
sacramentum in important cases, has given rise to other explanations8.

The praetor's interdict played, as we shall see, a very important part
in the formulary system, but it cannot be doubted that interdicts were
issued under the legis actio system. How far the praetor could, at that
time, create new obligations in that way we need not here consider, but
he could certainly issue orders requiring obedience to existing law and

1 See Karlowa, C.P. 97 sqq. 2 Naber, Mel. Girard, 2. 309 sqq., states and

rejects various opinions as to the actual reason for its introduction, himself concluding
that it was for the purpose of substituting a single issue — is the thing the plaintiff's? — for
the duplex question which we have seen to be the essential characteristic of sacramentum
in rem. 3 See G. 4. 91, who is however dealing with the later system. 4 M. Jobbe-
Duval, fitudes de procedure civile, 485 sqq., holds that they were not tried by legis actio at
all, but by a procedure not clearly defined, the sponsio forming the instruction to the
index. He rests this mainly on Cicero, in Verr. 2. 1. 45. 115, which he considers to dis-
tinguish between legis actio and procedure per sponsionem. But it seems only to distinguish
between lege agere in hereditatem and the more circuitous process. He associates with this
action the enigmatic "deductio quae moribus fit" (Cicero, pro Tullio, 7. 16, etc.; pro Caec.
10. 27, etc.) which has been assigned by different writers to sacramentum in rem, interdict
uti possidetis and interdict unde vi. 5 G. 4. 95, " summam sponsionis petimus."

6 G. 4. 94. 7 G. 4. 95. 8 See, e.g., Naber, loc. cit.

xm] DECAY OF LEGIS ACT 10 623

enforce them by his power of coercitio1. It is likely that some of the
interdicts found in later law, giving the ordinary interdictal procedure,
either to a person aggrieved, or, where the interest was public, to any
citizen, are older than the formulary system. If that is so their character
in later law suggests that they were tried by sponsiones.

The recuperatory procedure already mentioned2 was probably in
some cases by legis actio, in others by a different method, since the
treaties on which it rested may have varied in their terms. We know
little or nothing of this other procedure3, but it has been conjectured
that the instructions to the recuperatores were written.

In the formulary system, dominant in the classical age, the main
lines of the procedure were unchanged. The issue was brought before a
magistrate, exactly formulated in his court (in iure), and referred to
another tribunal, index, arbiter, etc., for settlement. But this general
similarity is accompanied by fundamental changes in the character of
the proceedings, of which the most important are the following.

The most significant change is that instead of the "certa verba" of
the legis actio there were "eonoepta verba*." The proceedings in iure,
instead of consisting in the recitation of invariable traditional forms of
words now resulted in a statement of the issue in a formula or instruction
to the index, taken from one of a set of models provided by the praetor
as an accompaniment of his Edict, and modified, so far as was necessary,
to state the exact question, subject to the praetor's approval. This con-
trol was only one expression of a great change which had occurred in
his share in the control of litigation. He had now an extraordinarily
free hand. He could create new actions by his Edict, thereby creating
rights and liabilities not known to the civil law. He could admit defences
not known to civil law and he could refuse actions where civil law
allowed them5.

Another important change was that the instructions to the index
(formula) were put into writing, an almost inevitable result of the greater
elasticity of the proceedings; without it. disputes as to the exact issue
submitted would have been frequent.

The judgment was now, apart from the divisory actions, either a
condemnatio for a sum of money or an absolutio6. Other minor points
will be considered in dealing with the course of an action.

There remains the question of the history of these changes. Of their
legislative history a few words must suffice. Gaius tells us that the

1 See, as to " de glanda legenda," Pliny, H.N. 16. 5. 15. 2 Ante, § ccix. 3 Kar-

lowa, C.P. 213 sqq.; Girard, Org. Judir,. 1. 99 sqq. 4 G. 4. 30. 5 See, how-

ever, post, p. 625. 6 As to non-existence of absolutio in early law, see a view of

Huvelin, Mel. Gdrardin, 344 sqq.

624 DECAY OF LEGIS ACTIO [CH.

legis actio was superseded by the effect of the I. Aebutia, and the II.
luliae1. The /. Aebutia is held by Girard to have been enacted between
149 and 126 B.C.2 The II. luliae appear to date from Augustus and are
no doubt parts of the piece of legislation called the /. lulia ludiciorum3.
Gaius does not tell us what part was played by each of these enactments,
and many views are held. According to one the I. Aebutia substituted the
formula for the legis actio per condictionem, and did not affect the others,
the work being completed by the 1. lulia*. According to another, now
most widely accepted, the I. Aebutia merely authorised the formula, so
that suitors could proceed in either way while the 1. lulia swept away
the legis actio altogether5. In any case, after its enactment the legis
actio was gone, apart from fictitious litigation6, except, as Gaius tells
us7, in the case of damnum infectum (in which, he observes, it was not
used), and where the case was to go before the centumviri, in which case
it must be tried by sacramentum. To this extent it survived to the time
of Paul8. As we have seen9, the jurisdiction of the centumviri was of
limited range and need not be considered further here.

The statement of the legislative provisions which caused the dis-
appearance of the legis actio leaves open the question, whence come the
new ideas of the new system? The disappearance of the dramatic
element was prepared by the legis actio per condictionem, and thus this
action has been described as not only the last development of the legis
actio, but also the first step in the new system10. In fact, little but the
writing separates it from the early formula. The source of the writing is
obscure. It has been said that the recuperatores received their instruc-
tions in writing, and this suggested it, but there is no evidence for the
fact. It is also said that it may come from the practice in provincial
jurisdiction11, and it may also be considered a natural result of the more

1 G. 4. 30. 2 Mil. 67 sqq., 114 sqq.; Manuel, 1012. His point is that there is

evidence that, at the earlier date, legis actio was the only mode, while at the later the
magistrate had the power denegare actionem, which was a result of theZ. Aebutia, but this
is disputed, post, p. 625. 3 Girard, Z.S.S. 34. 295 sqq. ; Manuel, 1013. He dates the

/. lulia iudiciorum publicorum, on conclusive evidence, in 17 B.C., and the other, privatorum,
which abolished the legis actio, in the same or the next year, but this though highly probable
is not so securely made out. He rejects the view (Wlassak, Processg. 1. 191 sqq.) based on
the plural in G. 4. 30 that there were two II. luliae iud. privatorum, one dealing with Rome
and the other with the municipia, and shews the untenability of the view frequently ex-
pressed by Mommsen (e.g., Strafr. 128) that these II. luliae are identical with the I. lulia
de vi. 4 Cuq, Instil, jurid. 1. 714; Manuel, 852. 5 Wlassak, Processg. 1. 85 sqq.

6 Cessio in iure, manumission vindicta, etc. 7 G. 4. 31. 8 P. 5. 16. 2. 9 Ante, § ccix.
10 Keller-Wach, C.P. 95. 11 Girard, Manuel, 1011. It is also suggested that the

instructions in the arbitriumlitis aestimandae were written. Huvelin, Mel. Gtrardin, 333. See
also Koschaker, Z.S.S. 34. 434. Partsch, Schriftformel (48 sqq.), arguing from the form
in which disputes between certain Greek communities were referred by the pr. peregrinus,
under direction of the Senate, to arbitral courts for decision, concludes that something

xin] FORMULARY SYSTEM 625

complex nature of the issue, and the increased prevalence of writing,
but in truth there is no certainty. The use of variable "concepta verba"
instead of the old " certa verba" came no doubt from one of these sources,
perhaps from the provincial procedure through the intervening stage of
the praetor peregrinus1. This variability is one aspect of the changed
position of the magistrate. He could now create actions, refuse actions,
admit new defences and so forth. This power can hardly have been ex-
pressly conferred by the /. Aebutia; the rights resulting would have been
thought of as civil law rights. Probably it was a usurpation of the
praetor rendered possible by the power of issuing formulae given by the
statute. It was no doubt contemplated as an exercise of the imperium,
favoured by public opinion, and therefore not checked by authority.
These powers were, no doubt, not all exercised at the beginning. The
exceptio doli did not exist till Cicero's time2. Praescriptio pro reo became
an exceptio later still3. Whether any of the powers existed under the
legis actio system is disputed. Girard holds that none of the powers in
litigation which we regard as essentially praetorian (missio in posses-
sionem, interdicta, etc.) existed under the legis actio, except so far as
they enforced civil law rights4, but a different view is elsewhere held5.
The most doubtful case is that of denegatio actionis. Of several recorded
cases of this, one is older than the /. Aebutia and others may be. The
first is a case concerning manumissio; and on the instructions of the
Senate, both circumstances which lessen its weight, but hardly destroy
it6. It is certain that in B.C. 177 the Senate could direct the praetor as
to the exercise of his imperium, but it is not so clear that it could order
him to do what was not within the limits of his imperium. The other
cases can be but little later than that statute, and if we have to choose
between immediate exercise of this great power, without precedent, and
the possibility that it was already, in the period immediately before the
/. Aebutia, to some extent in operation, the latter seems to be the more
probable7.

like the formula was in use in the court of pr. peregrinus before the I. Aebutia and, a fortiori,
in the provinces.

1 Girard, ib. An internal origin of the formula may seem in itself more probable.
Some hypotheses start from this point of view. Thus Keller (loc. tit.) traces it from the
freer hand the magistrate had hi condictio, the magistrate's instructions here being an
anticipation of the formula. Huvelin (Mel. Gerardin, 319) traces it from the instructions
to the index in the arbitrium litis aestimandae, the formula having begun in similar in-
structions without any previous trial by sacramentum. But the interpretation of his
principal text (Cicero, de Orat., 36. 166, 167) is not very satisfactory. 2 De Off. 3.

14. 60. 3 Arg. G. 4. 133. 4 Girard, Melanges, 1. 75 sqq., 126 sqq., 170

sqq. 5 See the opposing views of Mitteis, Lenel, and Wlassak, cited and considered

by Girard, loc. cit. 6 Livy, 41. 9. 7 See also Costa, Profile Storico, 32.

and Cornil, Aperfu historique, 92, for expressions of this view.

B. B. L. 40

626 PROCEDURE UNDER THE FORMULARY SYSTEM [CH.

CCXV. COURSE OF AN ACTION UNDER THE FORMULARY SYSTEM1.
The normal beginning was in ius vocatio2, and, as before, the adversary,
now describable in all cases as the defendant, must come or give a vindex3.
The Edict provided that if he did not appear, or give a vindex, an actio
in factum for a penalty would apparently be given against him, and it
contained other auxiliary rules on the matter4. There was an actio in
factum against the vindex who failed to produce his man, and missio in
possessionem against the defaulter himself5. And it seems that the old
right of taking him by force before the magistrate if he would not come
or give a vindex still remained6. There was however an alternative to
in ius vocatio. Vadimonium, which was still used in case of postpone-
ment, might also be used to initiate proceedings7. Vadimonium was
now by verbal contract8, and, in the present case, as it was extra-
judicial, and matter of agreement, it does not seem that there was any
rule requiring surety9. It must be noted that it was distinct from the
undertaking of a vindex. That presupposes in ius vocatio; this replaces
in ius vocatio. The Edict also provided10 that if a defendant hid and so
made in ius vocatio impossible, the creditor might be given possession
of the goods of the latitans (missio in possessionem) with an ultimate
right to sell them, venditio bonorumu.

The parties being in court, the plaintiff stated the nature of his claim
and evidence, editio actionis12, and asked of the praetor the formula he
wanted, postulatio, impetratio actionis13. The possible variety of defences
and answers to these defences made the matter in iure much more
complex than it had been under the old system. Thus, in a claim on a loan
of money, the defendant might wish to plead that he was a filiusfamilias
at the time of the loan, exceptio Sci. Macedonian^, and the plaintiff
might answer that he had represented himself as a paterfamilias, re-

1 The following account is of procedure at Rome. For rules as to jurisdiction, see
Bethmann-Hollweg, C.P. 2. §§ 72 sqq. ; Bertolini, // processo civile, 55 sqq., and post, § ccxx.
2 Accompanied by a statement of the nature of the claim — an informal "editio actionis,"
required by the Edict. Lenel, E.P. § 9. As to litis denuntiatio, post, § ccxxvi. 3 G. 4.

46; Lenel, E.P. 65. The vindex, if he fails to produce his man, is liable to actio in factum
for "quanti ea res erit" (2. 8. 2. 5), an obscure saying not cleared up by h. t. 3 and 5. pr.
Cuq (Manuel, 868) holds it to mean that he is liable whether the actual defendant was or
not, though the vindex of the legis actio was liable only if the defendant would have been.
The vindex of classical law has become fideiussor iudicio sistendi causa in the Digest.
4 Perhaps missio in possessionem, Beseler, Beitrage, 3. 20. 5 Lenel, E.P. 70 sqq.

6 See, e.g., 50. 17. 103. 7 Cicero, pro Quinctio, 19. 61. Not stated in extant legal

texts. 8 G. 4. 184. 9 See, however, Fliniaux, Vadimonium, 48 sqq., and as to

circumstances barring action for vadimonium desertum, ib. 79. 10 See Lenel, E.P.

400. 11 42. 4. 7. 1 sqq. 12 See 2. 13. 1, where however it is not clear what refers
to this editio and what to that which accompanied in ius vocatio. Something of the sort
there must have been. 13 Cicero, in Verr. 2. 3. 65. 152; C. 3. 9. 1; C. 2. 57, rubr.;

D. 13. 7. 34. 14 Ante, § CLXHI.

xiii] ACTIONES INTERROGATORIAE 627

plicatio doli1. These and similar matters might take time. If the business
could not be completed in the day there would be vadimonium. Ulti-
mately the issues agreed on would be embodied in a formula, approved
by the praetor. It was issued under his authority, but it was not his
duty to see that it stated correctly the dispute between the parties;
that was their affair. What he had ordinarily to see to was that it stated
a real issue of fact and law, or, in some cases, of fact, satisfying himself,
in this last case, that the facts alleged were such as to justify the issue
of the formula infactum2.

The next step was the appointment of a index, whose identity was
arrived at by a method to be considered later. This settled, the formula
was issued and accepted by the defendant, the transaction amounting,
according to the view now dominant, to a contract between the parties3.
This is the stage called litis contestatio, the very important effects of
which will be considered later4. Whether it was still accompanied by
a joint appeal to witnesses, "testes estote5," is uncertain. There
appears to have been an express authorisation or instruction by the
praetor to the chosen index to proceed in accordance with the formula,
iudicare iubere6. The exact machinery of the issue of the formula is dis-
puted. It may have been accepted by the defendant from the praetor7,
or, more probably from the plaintiff, under the praetor's authority8,
in a written form, or dictated by the plaintiff to the defendant and
written down by him9.

Something must be said of important variations of the proceedings
in iure. In certain actions, actiones interrogatoriae10, the plaintiff, before
asking for his formula, might question the defendant as to circumstances
which affected, not the liability in general, but his personal liability.
This might be done in noxal actions, where the question was whether
the defendant had or had not "potestas" over the slave, probably only
wrhere the slave was absent11. If he admitted potestas the noxal action
proceeded. If he denied it, but the plaintiff wished nevertheless to con-

1 Post, § ccxxm. 2 In dealing with unlearned and insufficiently advised suitors

he might no doubt, on occasion, be much more helpful. 3 See Wlassak, Litis con-

testatio; Wenger, Pauly-Wissowa, s.v. Editio. For a different and not generally accepted
view, rejecting the contract theory, Schlossmann, Litis contestatio, especially 124 and the
summary, 188 sqq.- 4 Post, § ccxxxv. 5 Festus, s.v. Contestari. 6 See

Partsch, Schriftformel, 10 sqq. 7 "Accipere indicium" is equivalent to "accipere

formulam," Wlassak, R. Processg. 1. 72 sqq.; 2. 13, 28. Acceptance from praetor, Keller,
Litis contestatio. 8 Wlassak, Litis contestatio; see Girard, Manuel, 1027. 9 Lenel,
Z.S.S. 15. 374 sqq. These points are not insignificant. The view that the formula was
received by the deft, from the praetor led Keller to the conception of the relation as quasi-
contractual. The view that it is an agreed issue, a contract, suggests acceptance between
the actual parties. The conception of the formula as a contract has important conse-
quences, especially in relation to translatio iudicii, post, § CCXLJ. 10 Demelius, Die
Confessio, 245 sqq. 11 See reff. to texts and literature, Buckland, Slavery, 102.

40—2

628 IUSIURANDUM NECESSARIUM [en.

tinue, he had a formula with no right of surrender, so that if it were
eventually shewn that the defendant had potestas he would be liable
in solidum1. Probably, if the slave was present there was an interrogatio
"an elus sit" with similar results2. The interrogatio also occurred in
actions against the heres of a debtor. The plaintiff asked whether and
for what share the defendant was heres3, an important point as the
XII Tables divided the liabilities among the heredes. If he refused to
answer or answered falsely that he was not heres, or as to his share, he
was liable in solidum*. Apart from this the action proceeded as if any
admission made was true, but as this praetorian action might make one
liable who was not really heres, there is much dispute as to its exact
formulation5.

In certain cases the plaintiff might offer an oath to the defendant
(iusiurandum necessarium). If he accepted it the action was lost6. If
he refused it he was condemned. If he offered it back (referre iusiu-
randum), the analogous alternative was before the plaintiff7. But the
defendant, instead of offering the oath back, might offer the plaintiff a
iusiurandum calumniae. If this was refused the action was refused—
denegatio actionis8. If this oath was taken the defendant must then
swear or referre. It appears the better view9 that this machinery of
iusiurandum necessarium applied only to condictio certae pecuniae and
triticariaw, actio de constitute, and actio operarum, operae being con-
templated as specific danda, like sums of money11. There are, however,
other cases of iusiurandum in iure. Thus in noxal actions if the defendant
denied potestas, the plaintiff had the alternative of an action sine noxae
deditione or of offering an oath to the defendant. If he took it he was
absolved. If he refused it he was condemned, with a right of surrender12.
It does not appear that this oath could be offered back. So also in the
actio rerum amotarum an oath might be offered after a preliminary oath
de calumnia13, but the oath could not be referred back.

In any action in which the mere fact of losing it did not involve the

1 2. 9. 2. 1; 9. 4. 22. 4. 2 9. 4. 26. 3, etc. Lenel, E.P. 155 sqq. 3 11. 1. 1. pr.

Lenel, E.P. 141. 4 11. 1. 5; h. t. 11. 3, 4. If he falsely says he is heres, and is insolvent,
so that plaintiff suffers, the action against the true heres will be restored. The interroga-
tions in damni infecti (11. 1. 10, 20. 2; see Cuq, Manuel, 873) seem to have a different
character and effect. 5 See for various reconstructions, Lenel, E.P. 140. 6 12.

2. 7. 7 12. 2. 34. 6, 7. 8 12. 2. 34. 4. There has been no consumptio litis. The

iusiurandum calumniae has a wider field, post, § ccxvm. 9 Girard, Manuel,

1019. 10 The evidence for its application to condictio certae rei is not good, and it is

contended by Biondi, Giuramento decisorio, c. i, that it applied only where there was a
penalty (sponsio tertiae partis) and that the effect of refusal was not condemnation but
merely that the action, with its liability to the penalty, would proceed. Cornil, Aperfu
historique, 476, confines it to condictio certi. 11 38. 1. 4; Lenel, E.P. 327. It is

possible that such operae, dayworks, acquired a definite fixed money value, as appears to
have been the case in the old English land law. 12 9. 4. 21. 4. 13 25. 2. 11-14.

xin] CONFESSIO 629

defendant in any liability beyond the interesse, i.e. excluding cases in
which there was a sponsio poenalis, or liability to condemnation beyond
the simplum, the plaintiff might offer the defendant a iusiurandum
calumniae, i.e. that he was defending in good faith. In like manner the
defendant might offer a similar oath to the plaintiff. If this was taken
the action proceeded. If the plaintiff refused he was barred from pro-
ceeding with the action, but there was nothing to prevent his bringing
another. A defendant who refused was probably treated as an inde-
fensus1.

Besides these cases there is a possibility of iusiurandum voluntarium,
already considered2.

CCXVI. Instead of defending, the defendant might admit the
claim3. If it was on an obligation for certa pecunia, there was no diffi-
culty; he was treated as iudicatus. Confessus pro iudicato habetur*. But
in all other cases, it seems the better view that he was not iudicatus, as
all condemnatio was for a fixed sum of money and the formulary system
had no arbitrium litis aestimandae5. A text of Ulpian6 shews indeed
that even if the claim was for an incertum there might be admission of
liability for a certain sum, and if the sum acknowledged satisfied the
plaintiff, it would in classical law7 be a case of confessio certi. Apart
from this modern opinion is divided. The view now perhaps dominant
is mainly based on words in the /. Rubria8, which is not unreasonably
regarded as reflecting Roman practice. They lay it down that a confessus
incerti was to be treated as an indefensus unless he gave full security9.
This seems hard measure for one who admits liability but disputes the
amount, but it is justified as a survival of the rule of the legis actio in
which confessio barred the right to defend in any case. But the sting is
taken from this by the rule suggested by the closing words of the same
chapter of the /. Rubria that, in the case of mere dispute as to the amount
due, the defendant would not be treated as a confessus if he was still
ready to defend10. If this is so, a mere acknowledgment of general
liability in the case of an incertum has little legal effect. But opinions differ11.

1 G. 4. 171 sqq. 2 Ante, § CLXXXII. There is much controversy, Bertolini, 77

proc. civ. 1. 261, n. 4. In the Digest (12. 2) the different cases of oath are inextricably con-
fused owing to changes in the law. 3 Demelius, Die Confessio; Giffard, Confessio in
iure. 4 P. 5. 5 a. 2. 5 As to this, ante, § ccvm. 6 42. 2. 6. 1. 7 For
the practice in the earlier days of the formula, see Giffard, Confessio in iure, 88. 8 Cap.
xxn. Girard, Textes, 76; Bruns, 1. 99. It deals with Gallia Cisalpina and the name Rubria
has no real authority. 9 We shall see shortly that in all cases of claim for a certum,
anyone indefensus, in any of the possible ways in which this might occur, was treated as
iudicatus, so that in all cases of confessio, certi or incerti, the defendant was treated
as indefensus, but it was only in the former case that this was equivalent to iudiratus.

10 But it is not the most obvious interpretation of the opening words of the chapter.

11 See Lenel, E.P. 395, 398.

630 INDEFENSUS [CH.

In the case of actio in rem the principle was the same: confessio did
not make the party pro indicate. The practical effect was somewhat
different. It was as if there had been a " pronuntiatio1." The subsequent
proceedings varied according as the res was a mov cable or land. In the
former case the praetor authorised the plaintiff to take the thing2. In
the latter he issued the interdict " quern fundum " or one of its congeners3.
Only if this was not obeyed or not properly met, did the defendant
become indefensus*.

An indefensus was one who did not take the steps of procedure
necessary to defence; it was still a characteristic of the process that it
needed the cooperation of the parties. He was one "qui se non defendit
ut oportet5." This might occur in many ways. He might refuse " accipere
indicium6," or to give security where this was required7, or to answer
interrogations lawfully put to him8, or to make the sponsio in an actio
per sponsionem9. He might "latitare10," and so forth11. The effect of
this in other than real actions12 was that the praetor issued a decree of
missio in possessionem, under which the plaintiff might enter into
possession of the defendant's property and ultimately proceed to
bonorum venditio. The process might be stayed at any moment if the
defendant fell into line and did what was required, and the possessio
would be vacated13. But where the action was for a certain sum of
money the indefensus in all these cases was treated as iudicatus1*.

Another variation is that a party might wish to proceed by repre-
sentative, but this will be considered later15.

It will be evident that the function of the magistrate was very
different from his part in the legis actio and details, later to be considered,
will shew this still more clearly. He had to decide difficult points and
exercise a wide discretion, so that it is not surprising that he habitually
acted with a consilium of lawyers16. It should also be noted that the
case might occur of agreement as to the material facts, but dispute as
to the law. We shall see later that there were many matters which the
praetor did not refer to the index, but decided himself, a practice which

1 42. 2. 6. 2; post, § ccxvm. 2 2. 3. 1. 1, "duci vel ferri iubere." If the claimant
was not really owner, still "qui auctore praetore possidet iuste possidet " : he has the Publi-
cian and will usucapt. But for the protection of the owner who may exist, he is required
to give security. P. 1. 11. 1. See Pissard, tftudes Girard, 1. 255 and reff. 3 Post,

§CCXLIX. 4 Giffard, op. cit. 135. 5 42. 4. 5. 3; G. 3. 78; lex Rubria, c. xxi;

Lenel, E.P. 398. 6 46. 7. 18. 7 2. 3. 1. 1; post, § CCXL. 8 11. 1. 9. 4.

9 L. Rubria, c. xxi. 10 Ante, § ccxv. He is none the less an indefensus if having

given a vindex he still fails to appear. 11 Mere absence without defence, and exile,

and death without heres gave the same right. As to the history of the edicts on latitatio
and absentia, Fliniaux, Etudes Girard, 1. 43. 12 Dealt with as above stated. 1342.

5. 33. 1. 14 L. Rubria, c. XXT. See Girard, Manuel, 1021, n. 1. 15 Post, § ccxxxix.
16 Bethmann-Hollweg, C.P. 2. 136.

xin] IUDEX AND IUDICIUM 631

tended to increase. On the present case it is enough to say that if on
the agreed facts the praetor held that there was no case he could refuse
the action, but if he held that there was a claim the admission of
the facts would probably amount to a confessio, with practical effects,
as we have seen, varying in different cases. But we are not fully
informed.

CCXVII. Index and Indicium. The colleges of centumviri and
decemviri did not appear in the formulary system, but the other tri-
bunals already mentioned recurred1. The common case was reference
to index or arbiter. Apart from consent2 the index was determined by a
system of names offered by the plaintiff3, till one was accepted. Any re-
jection was under oath of belief that the index proposed was not likely
to be fair4. There seems to have been no limit to the number of rejec-
tions, but it is supposed that one who was obviously refusing without
reason was treated as an indefensus. The index chosen could not refuse
to serve and he was sworn5.

Both index and arbiter were drawn from the album iudicum6. There
was no fundamental distinction between them; an arbiter was a index.
Arbitri seem to have acted in cases where there was a greater discretion,
notably in bonae fidei indicia7, but actiones arbitrariae were not neces-
sarily tried by an arbiter. The "Album," or list, normally contained, in
the Republic, all the qualified members of certain high classes of society,
varied on political grounds from time to time8.

Immediately before Caesar the list consisted of 3 decuriae of 300
each of senators, equites and tribuni aerarii (then a large class, some-
what less wealthy than the equites). Caesar excluded these, but main-
tained 3 decuriae, the third now consisting also of equites. Augustus
added a fourth decuria of less wealthy persons for minor cases, and
Caligula added a fifth of the same class. As these classes did not now
include all the members of the groups9 a list was issued annually under
the control of the Emperor, but a name remained till the age of exemption
from service10, and the equites were always predominant among the
indices.

Recuperatores now tried also cases in which cives alone were con-

1 The tresviri capitales may be neglected. 2 By consent of parties it seems that

a index might be chosen not on the album. So Girard, Manuel, 1025, citing 5. 1. 12. 2, but
the text is not conclusive. 3 Cicero, pro Rose. com. 15. 45. 4 Bethmann-Hollweg,
C.P. 2. 455. 5 5. 1. 39; 50. 5. 13. 2; Cicero, de Off. 3. 10. 44. 6 It is possible that

originally arbitri, being experts, were not required to be on the album. 7 Cicero, de

Off. 3. 17. 70. 8 See Mommsen, Staatsr. 3. 528 sqq.; D.P.R. 6. 2. 132. From the list

of qualified persons prepared by the praetor the quaestors made out a list for the year.
9 See, however, as to senators, D.P.R. 6. 2. 489, n. 1, where an opinion in the German
text is modified. 10 Mommsen, Staatsr. 3. 537; D.P.R. 6. 2. 142.

632 IUDICIUM [CH.

cerned1. The exact scope of their competence is not recorded, but it
seems that, apart from the provinces and municipalities, their juris-
diction was mainly, though not exclusively, in actions with a certain
delictal character2. They did not, at least in some cases, exclude the
unus index3, and it is not clear whether the choice was with the parties
or the magistrate4. As we have seen5, the main advantage of the re-
cuperatory procedure was increased celerity, secured especially by a short
limit of time within which the judgment must be delivered, and other rules.

The instructions to the index were in a formula, a complex structure
to which we shall recur. Here it is enough to say that it was in the
general form " if you find such facts " or " such liability " in the defendant,
or "if you find such a right to belong to the plaintiff," "give judgment
in his favour; if you do not so find, absolve the defendant." It does not
appear that the 30 days' delay of the I. Pinaria survived in this system,
but the practice as to dies perendinus and, in general, postponements,
where needed, to the next day but one, remained in operation6.

The parties were present but took no part, formally, in the pro-
ceedings. The case was handled by advocates (patroni, oratores1}. It
was usual, though not universal, to begin with speeches of the respective
advocates, then to proceed to the evidence, and then, after other speeches
and discussion with the index, to pass to the judgment8. There were no
strict rules of evidence. Hearsay was admissible, though recognised as
less weighty than direct testimony. Documents were of course admitted,
and even written statements, under oath or not, by persons not pro-
duced as witnesses9. There were however rules excluding certain wit-
nesses. In general slaves could not be witnesses, except in a few cases,
especially transactions by them where there was no other evidence.
Their examination was normally by torture. They could not give evi-
dence against their master, or, from the middle of the second century
of the Empire10, for him. But most of the recorded exclusions belong to
publica indicia with which we are not concerned. There was no general
limit on the number of witnesses, but according to the Digest the index
might set a limit if he thought it desirable11, and in the recuperatory

1 G. 4. 46. 141, 185; Ulp. 1. 13 a. 2 See Girard, Manuel, 1025. 3 Wlassak,

Processg. 2. 313 sqq. 4 As to "sortitio," Keller- Wach, C.P. 45. 5 Ante, § ccix.

6 Aul. Gell. 14. 2. 1. 7 As to these, see Bertolini, II processo civ. 2. 295. 8 See

G. 4. 15, written of legis actio system but probably equally applicable here. See Bethmann-
Hollweg, C.P. 2. 586 sqq. In Cicero's speeches it is usually clear that the court is already
in possession of the evidence. 9 Bethmann-Hollweg, loc. cit. As to the obligation

to produce documents, editio, Lenel, E.P. 59 sqq. 10 See Buckland, Slavery, 86 sqq.

11 22. 3. 25. 3, probably interpolated. In later law there was a good deal of legislation
prescribing a certain minimum of evidence, see e.g. C. 4. 20. 15. 6; C. 4. 20. 9, "nemo iudicum
unius testimonium in quacumque causa facile patiatur admitti," but this is under the system
of cognitiones.

xiii] DEFAULT OF A PARTY 633

procedure it was provided in some enactments, but not in all, that a
limited number of witnesses, usually 10, might be formally summoned,
denuntiati, and so placed under an obligation of attendance1. This does
not shew that more could not be heard, and there was no question of
denuntiatio and compulsion in ordinary cases; the attendance of wit-
nesses was voluntary. As the index must decide for himself, he was not
bound by any piece of evidence. Thus the defendant might confess
liability, but the index was probably not bound to believe him; such
admissions are not always trustworthy2. If one party offered another
an oath in iudicio, its taking or refusal probably did not bind the index,
though it might affect his mind3. In doubtful cases the index might
offer an oath; the effect of the result was for him to consider4.

If both parties were absent on the appointed day, nothing happened,
and there seems nothing to prevent a new hearing on a later day. If the
plaintiff was away, as the index must absolve unless the plaintiff proved
his case, the burden of proof being on him, the defendant was entitled
to absolutio. If the defendant was absent, the plaintiff must perhaps
still prove his case, as voluntary abstention might have other causes
than knowledge that there was no defence, but it is more generally held
that condemnatio went as a matter of course5. In any case absence
means non-appearance after a long period of waiting. It seems that the
index ought not to give judgment in such a case till 4 o'clock, and then
only after sending out a messenger to proclaim the need of attendance,
otherwise he ran the risk of having made litem suam6. All this might
be avoided if the absent party sent a messenger to justify his absence
and asked for a postponement, or, in case of defendant, if a voluntary
defensor appeared for him7. Apart from this, as there was no appeal,
the only relief was by restitutio in integrum, which was given only on
certain grounds8.

Roman Law had no system of precedent9; a index was not bound
by previous decisions, even though, as often happened, the same affair

1 Bethmann-Hollweg, op. cit. 2. 598. 2 Ib. 595. Demelius however (Die Confessio,

357 sqq.), while agreeing that it could be withdrawn, holds, on general principle, that the
iudex must follow it if it was not withdrawn. 3 22. 3. 25. 3, interp. Demelius, op. cit.

85 sqq. 4 C. 7. 45. 11 (interp.?). Biondi, Giuramento, c. n, holds that the oath

offered and taken in iudicio was decisive and that the iudex had, in classical law, no power
to tender an oath. As to the presumptions conclusive or rebuttable, drawn from proof of
certain facts at different epochs in the law, see Cuq, Manuel, 898. 5 See Girard,

Manuel, 1053, n. 3 and lit. there cited; Kipp, Pauly-Wissowa, s.v. Eremodicium; Eisele,
Abhandlungen, 184; Bertolini, II pro. civ. 2. 131. But the texts are inconclusive. Some sort
of hearing there must have been, for the iudex had to fix the amount of the condemnatio.
Cornil, Aperfu historique, 425, thinks him authorised, but apparently not bound, to find
for the other. 6 Bethmann-Hollweg, C.P. 2. 603. 7 3. 5. 31. 2; 46. 7. 5. 1.

Bethmann-Hollweg, loc. cit. 8 Post, § CCXLIV. The procedure per conlumaciam,

seems to belong to the system of cognitiones, post, § ccxxvi. 9 C. 7. 45. 13.

634 OFFICIUM IUDICIS [en.

had been before another court, between different parties, or, a fortiori,
where it was merely a similar case. But such previous decisions were
not without effect; they seem to have operated much as they do in
modern continental courts1.

The issue was fixed by the litis contestatio and the formula, and it
was, prima facie, the business of the index to decide on the matter as it
stood at litis contestatio, disregarding what had happened since. This
was a survival from sacramentum, in which it was strictly logical. The
question whether a sacramentum was iustum or not could not be affected
by later events. But the rule operated unreasonably where the defendant
had satisfied the plaintiff in the meantime. It was not applied in bonae
fidei indicia; all agreed that it was within the qfficium iudicis to absolve
in such a case; it could not be said that a man ought, ex fide bona, to
pay twice. All agreed that it did not apply in actiones arbitrariae, since
the index was authorised to absolve if the thing was restored at his
desire. The Sabinians held that it ought never to apply on such facts,
omnia indicia absolutoria esse2, and this view ultimately prevailed; it
is uncertain when3. Similar questions might arise as to accidental
destruction of the thing. In contract and real actions these are con-
sidered elsewhere4.

CCXVIII. Officium Iudicis5. We have spoken of the index as bound
by the formula, but he had, in fact, much discretionary power, most of
which indeed was not excluded by the formula, but some of which seems
somewhat at odds with it. Most of his special powers will best be con-
sidered in dealing with the different actions6, but those of the second
type must be considered here. In all bonae fidei indicia he might allow
certain kinds of set off. It might be said (indeed Gaius says something
like it7) that this was only applying the words ex fide bona in the intentio.
But this would require him to take it into account, whereas he had
absolute discretion8. Another illustration is provided by what Pom-
ponius calls " stipulationes iudiciales9" which do not appear to be pro-
vided for in the formula, though they might be covered by the clausula
arbitraria. He mentions "de dolo," and the case was, apparently, such
as that given by Gains10. A defendant might have usucapted pendente

11.3. 38. We have already considered how far a index was bound by the opinion of
patented jurists and by dec.re.ta of the Emperor, ante, §§ vn, ix. 2 G. 4. 114.

3 Inst. 4. 12. 2. In D. 45. 1. 84 Paul seems to express the Proculian doctrine, but it has
been suggested that the action is not on the promise to build, but on one for a penalty if
this is not done by a certain time. 4 Post, § ccxxxvi. 5 Inst. 4. 17. 6 Many

of the Digest texts which speak of things done officio iudicis refer, not to the nnus index of
the formulary system, but to the official index of the cognitio system, 23. 2. 13; 3. 3. 73,
etc. 7 G. 4. 63. 8 Ib. A mere consideration of convenience might determine

his course. 9 45. 1. 5. pr. The expression is used by Ulpian in another sense, 46.

5. 1. 1. 10 6. 1. 20. pr.

xiii] OFFICIUM IUDICIS 635

iudicio, and might then have pledged or even mancipated the res.
Giving it back would not destroy the right of a third party thus created.
Accordingly absolutio was withheld till the defendant promised that he
had not committed and would not commit dolus; if this was not made
good, the facts would give a new claim. The texts give other cases1.

According to the formula the index must condemn or absolve2. This
does not provide for the case of inability to make up his mind, and in
fact it seems to have been usual to have repeated hearings till he could
decide3. It was however possible, by leave of the magistrate, for the
index to be released on his swearing "rem non liquere," in which case a
new index was appointed4, a case of translatio iudicii5.

The index, who might be aided by advisers6 (adsessores), must give
judgment openly by word of mouth, in the presence of the parties and
at a time and place at which his court lawfully and usually sat7. There
was no such thing as conditional judgment8; it must be condemnatio or
absolutio. The place of conditions on the judgment was taken, as we
have seen, by requiring undertakings before it was given. The con-
demnatio was not a mere statement that the plaintiff was entitled; it
must state how much was due9, as there was no arbitrium litis aesti-
mandae. The task might be difficult, as the mode of calculation of damages,
the date as at which they were to be assessed, and the factors coming
into account varied greatly. One case was specially provided for by
edict. A promise for performance at one place might be sued on at
another, where the defendant was. As payment here might be more
costly to the promisor there was risk of plus petitio. It might indeed
be worth less to the promisee. The Edict provided an action " de eo quod
certo loco," in which the index was authorised to take these matters into
account10. Having arrived at the amount due, the index ordered payment
of that sum, allowing, if he liked, a certain time for payment11: appa-
rently a judgment merely written or not delivered as stated above, or
not stating the amount due, was a mere nullity12.

Where there were several judges, e.g. recuperatores, all must be present
and the majority decided13. If one had been allowed to swear, rem non
liquere, he must be there14. If there was not an absolute majority either

1 Inst. 4. 17 passim. 2 In view of the effect of lit. contest, it might be thought

that not to condemn was to absolve, but the case would be still pending and there would
be no exc. rei iudicatae. Apart from the practical advantage of being able to point to a
judgment, there may have been cases in early law in which exc. rei in i. ded. was not avail-
able (Eisele, Beitr. 13). 3 Aul. Gell. 14. 2. 11. 4 Aul. Gell. 14. 2. 25. 5 Post,
§ CCXLI. 6 2. 2. 2; Cicero, Top. 17. 65. On the following matters, see Bethmann-
Hollweg, C.P. 2. 621 sqq. 7 42. 1. 47; C. 7. 43. 4-8; 42. 1. 59; h. t. 1; h. t. 5. 1.
8 49. 4. 1. 5. 9 G. 4. 48, 52. 10 There was evolution as to what might come
into account, Dumas, N.R.H. 34. 610. 11 42. 1. 4. 5. 12 C. 7. 43 passim;
C. 7. 44. 1 ; D. 42. 1. 59. 13 42. 1. 39. 14 42. 1. 36, 37.

636 OFFICIUM IUDICIS [CH.

way, there must be absolutio1, but Antoninus decided (perhaps only
declared) that in causae liberates the decision in such a case must be for
liberty, whichever way the action was framed2. If there was a majority
for condemnatio, but disagreement as to amount, the smallest was
taken, says Julian; all were agreed to this extent3.

The index must abide by the formula, but a decision not authorised
by it was not a nullity. Gaius tells us that a condemnatio for more than
the cerium claimed, or one which went be}Tond a taxatio in the con-
demnatio was valid, though the index was liable for any loss caused, as
one who "litem suam fecit*." A judgment once given could not be cor-
rected; semel enim male sen bene officio functus esl5.

The duty of the index was not always merely to condemn or absolve.
The possible variations will be considered later, but the chief may be
enumerated here. In some actions there was no condemnatio, but a
question was submitted to the index, e.g., "an Titius civis sit," actiones
praeiudiciales. Here his judgment was a pronuntiatio, that T. was or
was not a civis6. In real actions and some others the index, if he found
for the plaintiff, might, before condemnatio, make a pronuntiatio to that
effect, and, if he thought fit, order restoration of the res, and, only if
the order \vas disobeyed, issue a condemnatio — actiones arbitrariae7 . In
actions for division of property or adjustment of boundaries he had a
power, already considered, of adiudicatio, i.e. of issuing a decree vesting
such divided shares as he thought fair among the parties, his act con-
stituting a transfer of the ownership8. In noxal actions the defendant
might be ordered either to pay the penalty or to surrender the wrong-
doer9, the result being somewhat like that in actiones arbitrariae, but
essentially different. It was not alternative to condemnatio, but embodied
in it, and it was merely a facultas solvendi entirely at the discretion of
the defendant10.

If there was absolutio, as there was no appeal, the matter was ended,
apart from a claim to restitutio in integrumll,a,nd subject to the rules as to
calumnia. If he had not offered the iusiurandum calumniae according to
the rules already mentioned12, the defendant, after absolutio, might bring
the indicium calumniae, in which, if he shewed that the proceedings were
in bad faith, he wrould recover one-tenth of the claim, or, if it was a
claim of liberty from slavery, one-third of the value of the man from the
assertor13. Even apart from bad faith, there was a indicium contrarium

\ 42. 1. 38. pr. 2 Ib. The 1. Petronia had provided the same thing, 40. 1. 24.

3 4. 8. 27. 3; 42. 1. 38. 1. 4 G. 4. 49-52. 5 42. 1. 55. 6 Post,

§ ccxxn. 7 Post, § ccxxiv. 8 Ante, § xc; post, § ccxxiv. 9 Ante, § ccv.

10 Post, § ccxxiv. 11 Post, § ccxun. 12 Ante, § ccxv; G. 4. 174 sqq.

13 G. 4. 175.

xin] EXECUTION OF JUDGMENT 637

for one-tenth in a case of iniuria, and one-fifth in a small group of other
cases1. And there was an actio in factum (also called calumniae] against
one who for reward brought an action in bad faith, for fourfold within a
year, and in simplum after the year2. These indicia contraria create the
possibility that the plaintiff might be condemned. As the condemnation
went as a matter of course if the action was lost, the two issues might
be embodied in one formula, the part referring to the claim for calumnia
being an appendix to the rest3. It is, however, contended that the
main intentio embodied the two issues as in the divisory actions4, but
the name indicium contrarium does not suggest this. It is possible that
the same method was applied in other cases5. The defendant could of
course stay further proceedings by satisfying the creditor. What was
now due was a sum of money, and this obligation might be discharged
like any other. But, if it was not, further proceedings were in execution.

CCXIX. EXECUTION OF JUDGMENT. In the formulary system, as in
the legis actio, it was for the plaintiff to take the necessary steps for the
. enforcement of his right. It was not now by manus iniectio, but by
actio iudicati, a new method which, as has been pointed out6, was a
praetorian copy of the older one of which it retained most of the sub-
stantial characteristics, with different formalities. The defendant was
brought before the magistrate after a delay of at least 30 days7, as
before, and an actio iudicati was demanded. The formula is not known,
but it is clear that in the case of indicia legitimas, immediately connected
with the old system, it expressed a civil obligation, while in the others,
indicia imperio continentia, it was a praetorian formula of some kind,
persons condemned in such actions not being iudicati in the sense of the
old law9. If the validity of the judgment was disputed so that the
matter went to a indicium, personal surety must be found, who gave
satisdatio10, thus resembling the vindex, and the liability would be, in
general, for double damages11 as under the manus iniectio. No text ex-
pressly states the requirement of actio iudicati, but though it was
formerly thought that it was needed only where the judgment was dis-
puted12, its necessity in all cases can be inferred from many texts13, and
none indicates that execution was possible without it. It has been sug-
gested that the requirement wras to guard against execution where there

1 G. 4. 177, 178. Abolished under Justinian, but the iusiurandum was now exacted in
all cases and by the court itself. C. 2. 58. 2. pr. 2 Or, conversely, failed, corruptly,

to take such steps, 3. 6. 1. See Lenel, E.P. 104. 3 See, e.g., Lenel, E.P. 304.

4 Partsch, -Yegr. Gestio, 55 sqq. Post, § ccxxxiv. 5 E.g., ante, § LIX. 6 Girard,

Manuel, 1061. 7 G. 3. 78 partim lege XII Tabularum, partim edicto praetoris, i.e.

for indicia imperio continentia. The index can extend, but not shorten the time, 42. 1.
4. 5. 8 As to this distinction, post, § ccxxxn. 9 Lenel, E.P. 427 sqq.

10 G. 4. 102. 11 G. 4. 9. 12 Bethmann-Hollweg, C.P. 2. 635. 13 E.g. 20.

1. 13. 4; 42. 1. 6. 1; 44. 4. 9, etc.

638 BONORUM VENDITIO [CH.

had been no judgment, the creditor, in case of dispute, having of course
to prove the fact of the judgment, the defendant having to prove, if he
could, that it was in some way defective. There are some indications
of a right in the defendant to challenge the judgment without wait-
ing for the plaintiff to proceed, revocatio in duplum1, but it does not
seem that the plaintiff had a similar right to challenge an absolutio2. In
none of these cases was there any question of disputing the soundness
of the decision; it was not appeal. The only grounds were objections to
the formal validity of the judgment3. And as allowing this proceeding
to go to a indicium involved double liability in case of failure, it would
not normally go so far; the defendant admitted liability and execution
proceeded.

The abolition of manus iniectio was abolition of formalities; it did
not essentially alter the right of the judgment creditor. Personal seizure
still remained; the creditor, authorised by the magistrate (dud inhere*),
carried off the debtor and kept him in confinement, being bound to
supply him with necessaries5, and, probably, to allow him to work off
the debt6. Some literary texts speak of the debtor as addictus1, but
Gaius does not use the expression in this connexion8. In any case the
right of destroying or selling into slavery which resulted from addictio
in the legis actio no longer existed. The confinement put pressure on the
debtor, and no doubt it was mainly used for solvent debtors. It con-
tinued through the classical age9.

Just as, in the old system, the debtor's property did not pass to the
holder during the detention, whatever happened at its end10, so too, the
ductio gave no right to the property, and, accordingly, the praetor11
introduced Bonorum Venditio, modelled on the mode by which the State
recovered from its debtors12. It does not appear that seizure of the man
barred procedure under this Edict13. The proceedings were as follows.
The praetor, on the application of the creditor, issued a decree of missio
in possessionem1*, under which the creditor might enter into possession

1 Cicero, pro Flac. 21. 49. See also other texts cited, Lenel, E.P. 429. 2 Lenel,

E.P. 430. 3 49. 8. 1. pr. 4 P. 5. 26. 2. 5 42. 1. 34. 6 See Beth-

mann-Hollweg, C.P. 2. 668. 7 See reff. in Bethmann-Hollweg, C.P. 2. 662, nn. 4, 5.

8 G. 3. 189, 199. 9 See Lenel, E.P. 395 sqq. 10 Ante, § ccxi. 11 Gaius

attributes it to Publilius Rufus (4. 35) who is probably P. Rutilius Rufus, praetor before
B.C. 100; see Girard, Manuel, 1064. Our knowledge of the system is very imperfect, being
largely derived from texts which have been altered to express the later system of distractio
bonorum. See Degenkolb, Magister und Curator, who holds that the general administration
was with the curator, the magister having only such powers of administration as the indi-
vidual missi (whose delegate he was) possessed, e.g. the right to sell specific things in case
of necessity (42. 5. 8. 1) and no right of action except to enforce fulfilment of undertakings
given by the bonorum emptor, other than the actual promise of a dividend, as to which
see ante, § CXLH. 12 Mommsen, Staatsr. 1. 178; D.P.E. 1. 203. 13 Arg. I. Rubria,

c. xxn in f.; Girard, Textes, 77; Bruns, 1. 100. 14 See Cicero, pro Quinct. 6. 2.

xin] BONORUM VEND1TIO 639

for custody of the property and advertise the seiztire (proscribere1).
After 30 days the praetor authorised him to summon a meeting of
creditors, who appointed a magister bonorum to conduct the sale2, at
which point the debtor became infamis*. The interim care of the pro-
perty was provided for either by the creditors or some of them or by a
curator bonorum'1 appointed by them, those who administered being
responsible to the others for dolus and entitled to refund of proper
expenses out of the fund5. The magister published the conditions, con-
sisting mainly of an inventory of the goods and a list of the debts6.
After another delay he sold the goods, normally en bloc, to the highest
bidder7. The bids were not of money, but of a dividend on the debts8,
and there were rules determining which was to be preferred of those
offering the same dividend9. Secured creditors retained their rights, and
privileged debts, of which there were many kinds, were paid first, in
full, so far as the assets would go10. The necessary information on these
points was no doubt part of the conditions announced by the magister.
We do not really know how debts due ex die or sub condicione were
treated, but probably they became due wrhen they would, apart from the
venditio11. Nor are we informed as to the amount of proof necessary to
allow a claim to rank in the schedule of debts; it certainly was not con-
fined to judgment debts12. The position of creditors who have abstained
from claiming in the venditio is also obscure; they can hardly have had
a claim against the bonorum emptor or the magister13. The purpose of
the delays and notices was to give everyone a chance to come in, but
there may well have been persons who never heard of the matter. No
doubt they retained full rights against future acquisitions14, as those
who had claimed did in respect of the unsatisfied part of the debt15.

1 G. 3. 79; D. 42. 4. 7. 1. This appears to mean putting notices in prominent places.
2 G. 3. 79. 3 G. 4. 102; P. 1. 2. 1; 1. lul. Munic. 117. 4 As to interim

administration, post, § CCXLV. 5 42. 5. 8; h. t. 9. 6 Cicero, pro Quinc. 15. 50.

7 G. 3. 79. His account is supplemented by Theophilus, ad In-ft. 3. 12. pr., not wholly
consistent. Hence different views as to details. Kniep, Mel. Girard, 1. 623, makes the
"proscribi" come at the end of 30 days' possession, and amends the later part of the text,
in which the delays are imperfectly stated. 8 G. 2. 155, " pro portione." 9 A large
creditor to a smaller, a creditor to a relative, a relative to an outsider, 42. 5. 16.
10 42. 5. 24. 2. Lenel (E.P. 413) gives a list of these priorities. 11 Paul says in

one text that conditional creditors can get M. i. p. and in another that they cannot,
but only those can who can sell (42. 4. 6. pr. ; h. t. 14. 2). Probably they could come
in and claim but could not initiate proceedings. See for various opinions Ramadier,
Missio in possessionem, 45 sqq. He suggests that conditional creditors could claim only
where, as in case of pupillm, there would be long possession. 12 The matter is regu-

lated by Justinian, C. 7. 72. 10. 13 Cuq, Manuel, 904, suggests on the authority of 17. 1.
22. 10 and 42. 7. 5, that such creditors had an actio in factum against one who had received
a dividend, for a pro rata refund. But these texts are not concerned with bonorum
venditio, see post, § ccxxvn. 14 See C. 7. 72. 10. 1 a. There has been no capitis minuiio.
15 As to rights of action under the venditio, ante, § CXLH.

640 BONORUM DISTRACT 10 [CH.

As we have seen, these proceedings in execution were available not
only against a iudicatus, but against confessus certi and indefensus in a
claim for a cerium1. But the method had a wider field. It was available
in the other cases of confessi and indefensi2, and it also occurred in
cases which have nothing to do with litigation. It was originally not
for enforcement of judgment primarily, but a means of pressure in a
variety of conditions. It was in effect the Roman equivalent of bank-
ruptcy proceedings. It lay against a debtor who hid or absconded,
fraud u\ently(fraudationis causa latitans], unless he was prepared to defend
an action, which stayed the proceedings3. It lay against a dead man's
estate if there was no heres, and here the delays were cut down by half,
because, as Gains says, "de vivis curandum erat ne facile bonorum ven-
ditiones paterentur*." It lay also against one who had made a voluntary
surrender of his estate to his creditors (cessio bonorum). This was pro-
vided for by a /. lulia at the beginning of the Empire and gave the
debtor some advantages. He was not thereafter liable to personal
seizure for what \vas unpaid of the debts, as an ordinary bankrupt was5.
He was not liable for them at any time beyond his means6, a protection
given to other bankrupts only for a year7, and he did not become
in/amis8. Conversely, where a debtor was a pupillus or was absent "m
publicae causa, sine dolo malo," although there might be seizure, the
praetor would not authorise a sale9.

Under a sc. of unknown date it was provided that in the case of
"clarae personae" the creditors might choose whether they would pro-
ceed by bonorum venditio, of the whole estate, or have a curator appointed
after the missio in possessionem to sell in detail so much of the goods as
would satisfy the claim, bonorum distractio10. This avoided infamia and,
in view of the limitation to persons of some distinction, was probably
introduced for this reason rather than on economic grounds. The
creditors, having chosen one course, could not fall back on the other11.
This curator bonorum must be distinguished from the edictal curator
appointed in some cases where there was a missio, not to be followed
by immediate sale, whose business it was to administer the estate in the

1 Ante, §ccxvi. 2 Ib. 3 42. 4. 7. 1. 4 G. 3. 79. 5 G. 3. 78; C. 7. 71. 1.
The advantages are such that the question arises why, as is clearly the case, some in-
solvents did not do it. The suggestion that it was allowed only in insolvency from mis-
fortune has no textual support. As to reasons for not taking this course, Bethmann-
Hollweg, C.P. 2. 689. It is possible though not quite clear that there must have been
an action. See 42. 3 and C. 7. 71 passim. 6 Inst. 4. 6. 40. 7 C. 7. 75. 6. 8 C. 2.
11. 11. Acessio could be revoked before the sale, D. 41. 3. 5. 9 42. 4. 3; h. t. 6; Lenel, E.P.
399. 10 27. 10. 5. 11 27. 10. 9. It may be that, as Rarnadier suggests (op. cit.

144 sqq.), this implies an extension to other cases, since the purpose of the original in-
troduction would not have been served if the choice had been left to the creditors.
Degenkolb, Magister und Curator, 16.

xni] REMEDIES FOR ERRONEOUS JUDGMENT 641

meanwhile1, as in the case of debtor pupillus or absens reipublicae causa,
or in cases other than insolvency, e.g. where a heres was instituted con-
ditionally, and other cases2.

CCXX. The foregoing account assumes that proceedings under the
judgment went against the debtor, but this was not always the case.
Often3 the defendant had to give security, by way of surety (iudicatum
solvi or pro praede litis et vindiciarum), and in such a case the plaintiff
might, if he preferred, bring action against the sureties.

The appeal found early in the Empire does not seem to have applied
to the formula. But proceedings under the judgment might be stopped
in some ways which need mention. There might be restitutio in integrum
on certain recognised grounds4, varying in form as the case required,
but in general undoing so far as possible the impeached transaction.
But mere mistaken or even dishonest judgment was not a ground; the
remedy was against the index, qui litem suam fecit5. If the judgment
had been obtained by fraud of the other party, there might be actio doli
against him, but there was also restitutio in such a case6. If a man
became a confessus certae pecuniae under threats of violence, there was
an actio metus1 and there might be restitutio, but all this gave no relief
against mere error. There might be denegatio actionis iudicati8, but this
was a form of restitutio in integrum; it was not a mode of appeal on error,
but only shewed that there were circumstances in the case which made it
unfair to treat the judgment as conclusive. There might also be intercessio.
Though the act of the index could not be vetoed, any colleague of the
praetor could veto a decree of his, in furtherance of execution9, but
there is little trace of this and no sign that it was used to give relief in
error.

In the foregoing account it is assumed that the procedure was at
Rome, and initiated before the praetor. A few words must be said on
other jurisdictions10. In Rome there were, besides the praetors, the
curule aediles11 with similar powers in matters within their competence.
But though in the Empire much civil jurisdiction passed to other officials,
the various praefecti, etc., it does not seem that the methods of the
formula, the ordo iudiciorum, had any application in these cases.

In the provinces the praeses was the magistrate, the aedilician part
being in his hands in imperial provinces, but in those of quaestors in

1 Lenel, E.P. 418. 2 See 42. 7 passim. 3 Post, § CCXL. 4 Post,

§ ccxon. 5 Ante, § cciv. 6 4. 3. 25. 7 On general principle. Cicero

records a case in which it was granted, where recuperatores had been coerced and others of
less weight as precedents. See Girard, Manuel, 1067, n. 4. 8 E.g. 9. 4. 14; 42. 1. 4. pr.
9 Mommsen, Staatsr. 1. 266 sqq. ; D.P.R. 1. 304 sqq. 10 See for the system up to Cicero's
time, Greenidge, Legal Procedure, §2; Girard, Org. Judic. 1. 272 sqq. In general, actor
sequitur rei forum, Vat. Fr. 326. 11 G. 1. 6.

B. R. L. 41

642 JURISDICTION [CH.

the others1. The praeses held periodical assizes in the principal towns of
his province2. The law was essentially the same as at Rome, for cives,
but there are indications that it was influenced by local usages and that
the details of form in litigation were not quite the same as at Rome, or
identical in all provinces3.

In Italy, till the Social War resulted, in effect, in the conferring of
civitas on the whole of Italy, there were many regions, some Latin,
some merely peregrine, which were governed from Rome, but under
their own laws. If there were cives resident in them, their litigation
among themselves would have to take place at Rome, with some limita-
tions not very well known4. After the Social War it remains true that
the Roman courts were in principle the fit tribunals for litigation
between Romans, wherever domiciled, but of this principle there were
important derogations. In many towns there survived for a time the
practice, belonging to the earlier state of things, of sending praefecti
iure dicundo who held periodical assizes, probably exercising all the
jurisdiction of a Roman magistrate, in civil matters, but possibly with
a limitation on amount. The generalisation of municipal institutions
superseded these, and for classical law the system was that municipal
magistrates had jurisdiction in matters below a certain amount5, not
necessarily the same in all places, but with power in more important
cases to require vadimonium from a defendant for appearance at Rome6.
They were barred from trying certain types of action, the exclusions no
doubt not being always the same7. And they had iurisdictio only, not
imperium. Thus, on the one hand, they had not the legis actio, as ex-
pressed in the fictitious litigation of manumission, etc., which, however,
is not really iurisdictio8, and, on the other, they could not proceed to
the steps by which the praetor, under his imperium, facilitated execution
and compelled the taking of the proper steps in litigation. They could
not order bonorum venditio under judgment9, though they could order
personal seizure. Interdicts, missio in possessionem, restitutio in integrum
were beyond their powers10. Such matters must be referred to Rome,
though it is clear that there were exceptionally privileged places11.

CCXXI. THE STRUCTURE OF THE FORMULA. The formula usually
contained many parts. In general outline its construction is well known,
but there are many important details of which we are not informed12,
1 G. 1. 6. 2 Greenidge, op. tit. 129. 3 Greenidge, op. cit. 124. 4 Girard,

Org. Judic. 1. 272 sqq. 5 L. Rubria, cc. xxi, xxii; Fr. Atestinum (Girard, Textes, 79);

P. 5. 5 a. 1. 6 L. Rubria, ib. 7 Mommsen, Staatsr. 3. 815 sqq.; D.P.R. 6. 2. 466.
8 P. 2. 25. 4. 9 50. 1. 26. 1. 10 Ib.; 2. 1. 4; G. 4. 139. 11 The appoint-

merit of luridici for regions of Italy under Marcus Aurelius (Vat. Fr. 205; Vita M. Ant.
Phil. 11. 6), following Hadrian, cuts down to some extent the jurisdiction of Roman magi-
strates. But their functions were very limited. Pius had abolished Hadrian's system,
Mommsen, Staatsr. 2. 1084; D.P.R. 5. 391. 12 See Lenel, E.P. ix, for remarks on this point.

xin] PRAESCRIPTIO 643

and there is much resulting controversy. The various parts must be
considered separately; it must be remembered that they did not all
occur in any one formula.

Notninatio iudicis. This necessary preliminary part occurred in
every formula. It ran "T. index esto," and even where the single judge
was an arbiter he was called index at this point1. But where recupera-
tor es were employed they were called such here2, and the same rule was
perhaps applied in the few cases in which there were three arbitri3, if
indeed any of these survived into the formulary system4.

Praescriptio. This too was a preliminary part, as its name indicates.
Gains tells us that there had been two types5:

Praescriptio pro actore, i.e. to safeguard the plaintiff. He gives two
examples. If there was a stipulation for a number of payments and one
or more, but not all, were overdue, an action on the promise would
bring the whole obligatio into issue, and thus the whole right of action
would be consumed by litis contestatio6. To prevent this the scope of the
action might be limited by inserting the words: " Ea res agatur cuius rei
dies fuit7." Again, on a contract for sale of land, if action was brought
for formal conveyance, to prevent this from barring further action for
other obligations under the contract, the plaintiff might insert the
words: " Ea res agatur de fundo mancipando8." These were designed to
allow of later action on the same transaction, but Gains gives other
instances, of a different type. Where a contract was made by a filius-
familias or slave the right vested in the paterfamilias; there was a
praescriptio stating that it was a contract made by the subordinate,
perhaps only in cases of condictio certae pecuniae9. In action on a stipu-
latio for an incertum, Gaius tells us there was a praescriptio loco demon-
strationis, but what he gives is merely a demonstratio10. But if an action
on such a stipulatio was brought against a surety, there was a true
praescriptio11. There is, however, much controversy about these prae-
scriptiones12.

Praescriptio pro reo13. This was inserted on behalf of the defendant.
It belongs to the early days of the formula1*; in the time of Gaius the
defences originally raised in this way were raised by exceptio, by which
it seems to have been replaced in some cases as early as Cicero15. In

1 G. 4. 36; Bethmann-Hollweg, C.P. 2. 105. 2 G. 4. 46. 3 Ante, § ccrx.

4 See Wlassak, Processg. 2. 293 sqq. 5 G. 4. 133. 6 Post, § ccxxxv. 7 G. 4. 131.
8 G. 4. 131 a. 9 G. 4. 134, 135. The imperfect text speaks of intentio in " dare oportere"
which points to this limitation. 10 G. 4. 136. 11 G. 4. 137. 12 See Partsch,

reviewing Schlossmann, Z.S.S. 28. 440 sqq. They resemble in effect demonslrationes.
13 Pissard, Questions Prejudicielles. 14 G. 4. 133. 15 He speaks freely of exceptions,
see, e.g., de Inv. 2. 19. 57. It is probable that many, indeed all the older, exceptiones were
originally praescriptiones.

41—2

644 PRAESCRIPTIO [CH.

the time of Gaius it was entirely obsolete. The principal recorded
cases are:

1. Praescriptio praeiudicii1. Certain actions might not be brought
if the decision would prejudice that of another more important issue.
There appear to be three cases in which a praescriptio, or, later, exceptio,
on the ground of praeiudicium was admitted2. These were: (i) Exceptio
quod praeiudicium hereditati non fiat, which bars any action for what
could be recovered by hereditatis petitio3; (ii) Exceptio extra quant si in
reum capitis praeiudicium fiat?, but this does not appear in legal texts5;
(iii) Exceptio quod praeiudicium fundo partive eius non fiat, barring
action for a right based on ownership, where that was disputed between
the parties, till the vindicatio had been brought6.

2. Praescriptio longi temporis (which hands on the name to prae-
scriptio longissimi temporis, which has nothing to do with the formulary
system). In view of the late date of this institution (it cannot be traced
earlier than the end of the second century)7, it is probable that it never
was a praescriptio in the formulary sense; the name is elsewhere applied
to cases of exceptio which never were praescriptiones8.

The praescripta verba at the beginning of certain actions are not
expressly called praescriptiones, and it is matter of dispute whether they
were properly praescriptiones or demonstrations9. In view of the fact
that their earliest application was to cases in which there was a civil
obligation, but it was uncertain under what head it should come10, they
seem to have rather the character of demonstrations .

The praescriptiones pro reo give rise to an important and difficult
question. In their later form, as exceptiones, they had the effect that
proof of the exceptio involved loss of the action, and this, by consumptio
litis, commonly involved destruction of the claim. The question is
whether this was equally true of the praescriptio, or whether the effect
of~proof of the praescriptio was to withdraw the issue, the litis contestatio
being conditional on the failure of the point raised in the praescriptio.
Both views are maintained by writers of authority11.

1 Pissard, op. cit., ch. m. 2 But this does not exclude denegatio actionis in

a wider field. 3 G. 4. 133. Many opinions have been held as to the reason of this

rule. The chief are stated and considered by Pissard, loc. cit. 4 Cicero, de Inv. 2.

20. 59. 5 But these shew a wider rule, that a civil suit must not be brought so as to

prejudice a criminal trial (post, § CCXLII), probably enforced by denegatio actionis. 6 44.
1. 16; h. t. 18. There is a general rule that a maior causa must not be prejudiced by a
minor, enforced by denegatio actionis. Pissard gives the recorded cases (pp. 148 sqq.).
There is no certainty as to what is and what is not a maior causa, and P. holds that in
later law the distinction is replaced by the principle that the "proces conditionnant "
must be tried before the "proces conditionne" (p. 232), which is probably what is meant
by maior causa. 1 See Partsch, Longi temporis praescriptio, 109 sqq. 8 See

Bethmann-Hollweg, 2. 404; Pissard, Questions Prejudicielles, 122. 9 Lenel, E.P.

292. 10 Ante, § CLXXXI. 11 See Wlassak, Z.S.S. 33. 80 sqq.; Partsch, Longi

xiii] DEMONSTRATIO 645

Demonstratio. This is one of the four parts which Gains speaks of as
the "paries forrmilarum" (demonstratio, intentio, adiudicatio, condem-
natio)1. This does not mean that they must occur in an action, for though
this may be true of the intentio2, it is certainly not so of the rest. The
meaning seems rather to be that the formulae in which these parts were
used would be meaningless without them, while the omission of an
exceptio or taxatio, etc., would not vitiate the formula, but only alter
its effect. This appears to be true even of the demonstratio, for a. formula
which said that the index wras to condemn to "whatever on this account
(ob earn rem) proves to be due" had no force unless the demonstratio was
present to shew what the matter in question was. The demonstratio was
not a statement of the issue, but of the nature of the matter in issue. It
was a short statement of the transaction on which the claim rested, as
a guide to the index. It need not state the wrong, but rather the facts
which constitute the legal relation in connexion with \vhich the wrong
is alleged. This was simpler than embodying it all in the intentio, but not
logically necessary. It was not necessarily a statement of admitted
facts3, though it often might be, but the fact that sale was alleged in a
demonstratio did not dispense with the necessity of proving it, if it was
disputed. It was not important in the sense of being a critical part.
Errors in it could be adjusted — -falsa demonstration rem non perimi.
Plus petitio or minus petitio in it could be set right, in the sense that a
new action could be brought, the litis contestatio not having been
operative4 (subject perhaps to limits which will be considered later5).
Thus if the matter was wholly wrongly described in the demonstratio
there was no valid indicium; the intentio referred explicitly to the case
in the demonstratio, and the real question had not been put in issue.

The demonstratio was used only in some personal actions, not in
actions in rem, or in actions infactum (with possible exceptions6), because
in these cases the intentio stated the material points. But on the question

temporis praescriptio, 70; Pissard, Questions Prejudicielles, 112 sqq. The chief arguments
for the latter view are the form "ea res agatur," which expresses a limit on the sub-
mission, and is the same as in pr. pro actore, which certainly had this limiting effect, a
very probable assumption that pr. pro reo descends from denegatio actionis, which
excluded litis contestatio, and its close resemblance to and affinity with the demonstratio
which certainly operated in the suggested way (G. 4. 58). On the other hand, it is
pointed out that Gaius speaks of the change to exceptio as a formal change and does
not hint at so great a change in effect, that not all prs. pro actore aim at limiting the
submission, that "ea res agatur" need be no more than words introducing the question,
without strict technical significance, and that pr. pro reo does not probably descend from
den. actionis, but from praeiudicia separately submitted. It is not of course certain that
all were treated alike.

1 G. 4. 39. 2 See, however, post, § ccxxn. 3 See for criticism of a hypothesis of
its origin in such a statement, Koschaker, reviewing Ruiz, Z.S.S. 34. 433. 4 G. 4. 58.
5 Post, § ccxxxvi. 6 Post, p. 648; and § ccxxxi.

646 INTENTIO [en.

what actions in personam, i.e. on obligatio, needed it, there is some
difficulty. There is no sign of it in condictio certae pecuniae1, though here
the fact that the intentio did not state the causa seems to render some
guide necessary, or the index might seem to have a roving commission
to enquire into any transactions of that type which might have occurred
between the parties2. It occurred in actio exstipulatu, i.e. on a stipulatio
for an incertum 3, but probably not in actio ex testamento on a legacy per
damnationem, where the intentio stated the causa*. It occurred in
divisory actions5, and, apparently, in all bonae fidei indicia6. It is not
clear whether it occurred in condictio incerti of which we know little7.
There does not seem to have been any demonstratio in the actio furti
manifesti, which was an actio in factum8, nor was there, according to
Gains, in furti nee manifesti, if his formula is correct9. It may have oc-
curred in some of the formulae under the I. Aquilia, and it appears to
have occurred in the actio iniuriarum, though this was in factum, of a
special type10.

An ordinary demonstratio contained, after the statement of facts,
the words "qua de re agitur" or the like, which is the logical basis of
the rule that error in the demonstratio excluded the real issue from the
indicium11.

CCXXII. Intentio12. This was the most important part of the formula.
It denned the issue submitted to the index, and by it the claim stood or
fell. Error in it might be fatal, for there was no power of amendment,
except by restitutio in certain circumstances13, and. the action being lost,
the right was destroyed by litis contestatio1*. It was accordingly drawn
with great care and precision. A properly drawn intentio shewed whether
the action was in rem or in personam, in ins or in factum, for cerium or
incertum, a iudicium strictum or bonae fidei, each type having its char-
acteristic words. In the ordinary formula ending with a condemnatio,
the intentio raised a hypothesis which was, in principle: "if you find such
and such points proved." In an actio praeiudicialis, however, it was in
an entirely different form: it was a question submitted to the index, of

1 Lenel, E.P. 230. 2 This is indeed suggested by Cicero, pro Rose. com. 4-6,

13-16. 3 G. 4. 136. 4 Lenel, E.P. 355. 5 Lenel, E. P. 201; Audibert,

Ma. Appleton, 11 sqq. 6 G. 4. 47. 7 Lenel, E.P. 151. 8 Lenel, E.P. 321.

9 G. 4. 37. But Lenel shews reason for doubting if it is complete. Somewhere the value
seems to have been stated (50. 16. 192; cp. 12. 3. 9). See too Ulpian in 47. 2. 19, "demon-
strari." A scholium in the Basilica (Basil. Heimbach, 2. 583) seems to put this in the in-
tentio. It might be either there or in taxatio or demonstratio. Lenel rejects intentio and
taxatio, on grounds that do not look very strong and holds that it is a demonstratio.

10 G. 4. 60; Coll. 2. 6. 4. See post, p. 648; and § ccxxxi. 11 But Cicero laughs at them
as useless, as, apart from this, they seem to be, in view of the "ob earn rem" in the intentio.
Pro Murena, 13. 28; Brut. 79. 275. 12 G. 4. 41. As to its presence in all formulae,
post, p. 648. 13 Post, § CCXLIV. 14 Post, § ccxxxv.

xin] 1NTENTIO 647

which "an Titius libertus Auli sit" may be taken as the type1, the answer
of the index being a pronuntiatio. As its name shews this was commonly
a preliminary to some other proceeding. In actions in rem for ownership,
the intentio ran2: "si par el fundum Cornelianum quo de agitur, Auli
Agerii ex iure Quiritium esse3," with special forms for rights less than
ownership (ius itineris inf. C. Ai. Ai. esse*) and further complications
in actiones ficticiae, e.g., actio Publiciana5. The characteristic of an in-
tentio in rem was that it alleged a right in the res and not a claim against
the defendant, so that it did not contain the defendant's name. In
actions in personam the intentio stated an obligation in the defendant
"dare oportere6," "dare facere oportere1" "damnum decidere oportere8"
(and possibly other forms9) according to the nature of the obligatio, as will
later appear. In actions infactum it stated a hypothesis of fact according
to the truth or falsity of which the index was to condemn or absolve10.
If the claim was for a cerium or it was a vindicatio, the intentio began
with "si paret11," and stated the cerium, or subject of the vindicatio. If
it was for an incertum it began " quicquid paret12," referring to the state-
ment in the demonstratio or praescripta verba13. In an actio ex testamento
on a legacy the intentio stated the fact of the legacy14, and in the actio
furti it stated the thing stolen15, though, as we have seen16, there may

1 G. 4. 44: Lenel, E.P. 302, 329. Gaius (ib.) tells us that praeiudicia are numerous.
Those recorded seem to be (see Pissard, Questions Prejudicielles, ch. vi) An libertus sit
(G. ib. ; the corresponding an ingenuus sit is not recorded, but see Lenel, E.P. 329); An
liber sit (Inst. 4. 6. 13), declared to be the only one of statutory origin (but see Lenel,
E. P. 367, 370, who thinks it an interpolation of Justinian, and rejects the corresponding
an servus sit); utrum ex servitute in libertatem petatur an ex libertate in servitutem (40.
12. 7. 5; C. 7. 16. 21); de partu agnoscendo, to compel a father to recognise a child (Inst.
4. 6. 13; C. 8. 46. 9. In 6. 1. 1. 2, a corresponding one for a father claiming a child is
mentioned, an filius Agerii sit); quanta dos sit (G. 4. 44, purpose uncertain); an ex I.
Cicereia praedictum sit (G. 3. 123; ante, § CLVI); an iure bona venierint (42. 5. 30, M. Aur.
and Verus, to raise the question whether the bonorum venditio was justified); an ea res
qua de agitur maior sit 100 sestertiis, and another apparently connected with it (P. 5. 9.
1; purpose obscure — Lenel, see now E.P. 504, has at different times suggested three
different explanations). The list was probably much longer in classical law : there may have
been many in connexion with obsolete questions of Latinity and civitas. The praeiudicia
mentioned in C. Th. 1. 2. 5 and in many leges in C. Th. 11. 30 and 36 appear to be the inter-
locutory decisions which are so prominent in the later procedure by cognitio (post, § ccxxvi),
but the praeiudicium sanguinis of C. Th. 16. 2. 19 may perhaps, as Gothofredus suggests
(ad h. 1.), refer to one of the praeiudicia affecting status. 2 G. 4. 3, 36. 3 Aulus
Agerius (from agere) is the name given to the plaintiff in these model formulae. Similarly
the defendant is called Numerius Negidius (from negare). 4 See Lenel, E.P. 188.

They do not contain the words "ex iure Quiritium." 5 G. 4. 36; ante, § LXX.

6 G. 4. 4. 7 G. 4. 2, 47, 60. 8 G. 4. 37, 45. 9 Lenel finds "praestare

oportere" in the divisory actions, and in pro socio. Others find it in the de peculio group,
E.P. 202, 205, 260, 287. As to the formula in the divisory actions, Audibert, Mel. Appleton, 1.
10 Variations, post, § ccxxxi. 11 G. 4. 41. 12 G. 4. 41, 47. 13 Ante, §§ CLXXXI,
ccxxi. 14 G. 2. 213; Lenel, E.P. 355. 15 G. 4. 37. 16 Ante, § coxxi.

648 EXCEPTIO [CH.

have been a demonstratio as well. But details of formulation in delictal
actions are somewhat uncertain.

A statement of the issue seems essential to all litigation and it is some-
times said that every formula had an intentio. But there are two cases
which have raised difficulty. In the divisory actions, in their earlier
form, before there was any question of allowances, praestationes, there
was nothing that could be called an intentio except the words "quantum
adiudicari oportet," which Gains quotes as part of the adiudicatio1. But
the point here is hardly more than verbal, apart from certain historical
inferences on the origin of the formula which are connected with it2.
The other case is that of the actio iniuriarum and perhaps the other
actions "ex bono et deque?," where there was a demonstratio followed by
"quantum bonum aequum videbitur condemna*," in which the intentio
was so to speak merged in the condemnatio. Here too historical inferences
are drawn from the form, which has been the subject of much con-
troversy5.

CCXXIII. Exceptio*. This was an accessory part of the formula.
As we know, it is a creation of the /. Aebutia, and the praetor's power of
formulation. The question whether it existed, or what if anything re-
placed it, in the legis actio system, need not here be considered7.

An exceptio was a defence which did not deny the prima facie validity
of the claim, but alleged some circumstance which nevertheless barred
it. It may be called a collateral defence, but in fact the nature and
sources of exceptiones are so various that no general description is very
informing. Though they were in form praetorian the defence they set up
was not necessarily such. Some exceptiones gave effect to defences
based on leges9, or on senatusconsulta9, or on imperial enactments10. The

1 G. 4. 42. 2 See Ruiz, Le formule con demonstratio, review by Koschaker,

Z.S.S. 34. 434; Audibert, Mel. Girard, 1. 48. It contains the word oportet, the mark
of an intentio. It bears the same relation to the adiudicatio as the undoubted intentio
which follows it does to the condemnatio for praestationes. It is not completely stated,
for this part of the formula, like the praestatio part, was "bonaejidei" (10. 3. 4. 2). And
Gaius habitually includes, in his statement of a part of the formula, other connected
parts, see G. 4. 34, 136. 3 Post, § ccxxxi. 4 Lenel. E.P. 385. 5 Lenel, loc.

tit. ; Partsch, Schriftformel, 29 sqq., 39 sqq. ; Huvelin, Mel. Gerardin, 337 sqq., and especially
Audibert, Mel. Girard, 1. 35 sqq. The grounds on which Partsch (40 sqq.) maintains that
there was after the demonstratio an intentio in the form "si N. N. in ea re iniuriam fecit "
or the like are hardly met by Lenel's remark in E.P. 385, n. 4. As to actio ad exhibendum,
see Lenel, Z.S.S. 37. 116. 6 G. 4. 115 sqq. 7 See Girard, Melanges,

75 sqq., 148 sqq. and the reff. 8 Exc. 1. Cinciae, excessive gifts, ante, § xci; exc. I.

Plaetoriae, fraud on minors, ante, § LXII ; perhaps under the I. Furia testamentaria, exces-
sive legacies, some writers holding that there was an exceptio here, ante, § cxix. 9 E.g.,
Sci. Macedoniani, loans to filiifamilias, ante, § CLXm; Sci. Trebelliani, where heres issued
after handing over a hereditas under fideicommissum, ante, § cxxiv; Sci. Velleiani, where
a woman has become surety, ante, § CLVI. 10 Ante, § CLvn.

xin] EXCEPTIO 649

reason why the transaction was met in this way, instead of being de-
clared simply void, in these civil cases, was not always the same. In the
case of the senatusconsulta it was probably because these senatusconsulta
date from a time before the Senate had assumed the power of directly
varying the civil law, and still acted by way of issuing directions to
magistrates1. In the case of the leges many explanations are offered,
but they are more or less conjectural2. In the case of Hadrian's bene-
ficium divisionis among sureties, which was in some cases enforced by
exceptio, it is probably because the exceptio was designed not exactly as
a defence but as a means of forcing the creditor to modify his intentio,
as in some well-known applications of the exceptio doli3. But the great
majority of exceptiones were praetorian both in form and character.
Many have presented themselves in the course of the treatment of sub-
stantive law, e.g., doli, metus, pacti conventi, rei venditae et traditae, iusti
dominii*, etc. Some, e.g., cognitoria5, rei iudicatae vel in indicium deductae6,
will be considered later, but while it is impossible to enumerate them all
a few must be mentioned here.

The so-called exceptio senatusconsulti was in fact a general exceptio
to cover all cases in which an exceptio was available on account of the
provisions of a lex, of senatusconsult. It was open to the parties to use
either this general form7, for any such provision, or to use an exceptio
specifying the enactment, exceptio senatusconsulti Velleiani, legis Cinciae,
etc., or one merely alleging the facts which brought the exceptio into
operation8.

The exceptio litis dividuae dealt with the case of one who, having a
claim which admitted of subdivision, e.g. a single contract for the sale of
two things, elected to sue on one part of it. He could not then sue on
the other part in the same magistracy; if he did,- he was met by this
exceptio9. In like manner, one who having several claims against one
person brought one or more, but deferred others, so that, as Gaius says,
they might go before different indices, could not sue on these in the same
magistracy, but would be met by the exceptio rei residuae™. These rules
seem to have disappeared from Justinian's legislation, except for a trace
in one text11. The exceptio rei litigiosae was aimed at trafficking in
property the subject of litigation12.

Exceptiones are sometimes spoken of as equitable defences, and no

1 Ante, § v. 2 See Krueger, Horn. Rechtsq. 21, n. 82. 3 E.g., compensatio, under

M. Aurelius, post, § ccxxxvm. The principle is that it is dolus to persist in a claim after
knowledge that it is unfounded. See 50. 17. 177. 1. 4 Some under procedure, e.g.,

exc. iurisiurandi, praeiudicii. 5 Post, § ccxxxix. 6 Post, § ccxxxv. 7 Lenel,

E.P. 492, "si nihil in ea re contra legem vel senatusconsultum factum eM." 8 Post,

p. 652. 9 G. 4. 56, 122. 10 G. 4. 122. 11 46. 8. 4. 12 As to this

remedy, post, § CCXLIV.

650 EXCEPT10 [CH.

doubt most of them can be so described. But there was nothing particu-
larly equitable about most of the exceptiones based on lex or senatus-
consult or about some of praetorian origin, e.g. the obscure exceptio
annalis Italici contractus, which seems to have limited action on pledges
taken in Italy to one year1, or the similar exceptio in the actio de peculio
annalis2, or the exceptio rei iudicatae3. The point is of some importance
in connexion with the rules as to statement of exceptiones in bonae fidei
indicia*.

The exceptio did not deny the allegation of the intentio, but raised a
counter-hypothesis, "unless something else is true." Hence it was nega-
tive in form, introduced by nisi, si non, si nihil or the like. It thus
directed the index not to condemn if the exceptio was proved. In the
exceptio the defendant was in loco actoris and the burden of proof was on
him5. The exceptio non numeratae pecuniae which was later than the
consolidation of the Edict6, provided an exception to two of these pro-
positions. It imposed on the plaintiff the proof of the loan, and if the
claim was on a mutuuni it was in fact a denial of the basis of claim alto-
gether. It excluded the presumption against the defendant otherwise
created by the acknowledgment7.

To the proposition that an exceptio, successfully brought, must, on
the logic of the formula, destroy the action, there were two apparent, or
suggested, exceptions. It has been maintained that, where the exceptio
doli was used as a means of compelling allowance of a counter-claim, it
caused no more than a reduction of the condemnatio. The point will arise
later8; here it is enough to say that this view is not generally accepted.
Again, it is clear that where a man could not be condemned beyond his
means, failure to allow for this would cause only reduction. We are told
in the Digest that the means of raising this point was an " exceptio quod
facere potest9." But the description of this as an exceptio dates from a
time when the formula and the true exceptio have long been obsolete; in
classical law it was in all probability a taxatio10. A text, attributed to
Paul, which says that exceptiones sometimes merely reduced the con-
demnatio11, is no doubt in its present form compilers' work, probably in
reference to this case.

Just as an intentio, though proved, might be defeated by an exceptio,
so, in turn, an exceptio, though proved, might be met by a further reply,

1 C. 7. 40. 1; Fr. Ulp. disputationum, 3; Girard, Textes, 491. See Lenel, E.P. 486;
Z.S.S. 27. 71. 2 Ante, § CLXXXIV. 3 Post, § ccxxxv. 4 Post, § ccxxix.

5 44. 1.1. 6 It is unknown to Gaius, 4. 116 a. See ante, § CLIV. It is sometimes held
that it had no application in the formulary system at all. 7 As to Justinian's

changes, ante, § CLIV. 8 Post, § ccxxxvm. 9 44. 1. 7. pr. 10 See

Girard, Manuel, 1051. 11 44. 1. 22. In 16. 1. 17. 2 the last words are inter-

polated.

xin] EXCEPTIO 651

put in by the plaintiff — a replicatio1. As this raised a new hypothesis in
the event of which there was to be a condemnatio, it was introduced by
"out si" or the like2. Thus, if there had been a breach of contract and
an agreement not to sue on it, this agreement having been induced by
fraud, the exceptio pacti conventi, "nisi inter eos convenerit ne peteretur3,"
would be followed by a replicatio, "aut si in eo pacto aliquid doli mali N*
Negidiifactum sit," or the like. The matter did not necessarily end here.
There might be a further reply by the defendant, called a duplicatio, or
triplicatio (for the name duplicatio was sometimes applied to the repli-
catio*), though not in the case given, for to an exceptio or replicatio doli,
no reply but disproof was admitted5. Proof of it was decisive. But it
is doubtful how far these remoter cases occurred in practice.

Exceptiones were classified in several ways. They might be perpetuae
(peremptory ae) or temporales (dilatoriae)6. The former were always
available and would bar the action whenever brought. Such were ex-
ceptio doli, metus, pacti conventi in perpetuum, rei iudicatae vel in indicium
deductae, quod contra legem senatusconsultumve factum esf. These are
the illustrations given by Gains8. The others were effective only for a
certain time or under certain conditions, and might be avoided by de-
laying the action or bringing it in a manner not open to the objection.
Of the first type he mentions pacti conventi, where the agreement not to
sue was only for a certain time and the exceptiones rei residuae and litis
dividuae9. The exceptio non numeratae pecuniae is another10. Of the
second type, which he speaks of as ex persona, as opposed to ex tempore,
he mentions the exceptio cognitoria11, which could be avoided by bringing
the action personally or choosing a fit cognitor. Even the exceptio doli
in some applications had this character. Thus it was the means by which
allowance of compensatio could be compelled12. Gains does not mention
this; the rule of M. Aurelius for stricta iudicia13 was introduced after he
wrote14. It must be remembered that though this class of exceptiones is
called dilatoria, they were just as destructive to the action as the others.
If successfully brought they destroyed the action15; they were dilatoriae
in the sense that the threat of them would cause the plaintiff to delay
or remould his action.

Gains also classifies exceptiones as "in edicto propositae" and "causa

1 G. 4. 126, 127; Vat. Fr. 294; D. 44. 1. 2. 1. 2 G. 4. 126 a. In 4. 126 he intro-

duces a replicatio with "si non," but in the case put "aut si" would give the meaning.
3 G. 4. 121, 126. 4 44. 1. 2. 3; Vat. FT. 259; G. 4. 127. 5 44. 4. 4. 13. And no

replicatio doli was allowed to an exceptio iurisiurandi, 44. 1. 15. 6 G. 4. 120 sqq.;

Inst. 4. 13. 8 sqq. 7 As to this, see Lenel, E.P. 492, and ante, p. 649. 8 G. 4.

121. 9 G. 4. 122; ante, p. 649. 10 Ante, § CLIV. 11 G. 4. 124. See

post, § ccxxxix. 12 Post, § ccxxxvm. 13 Inst. 4. 6. 30. 14 As to restitutio

of omitted exceptiones, post, § CCXLIV. 15 G. 4. 123; D. 44. 1. 3.

652 EXCEPTIO [CH.

cognita datae1." This implies that those which were given only after
enquiry, and not as a matter of course on demand, were not set out in
the Edict though there would be no difficulty in promising them con-
ditionally, with such expressions as "si qua mihi iusta causa videbitur"
or "causa cognita'" which the Edict uses in other connexions2. But
apart from the exceptio iusti dominii these exceptiones causa cognita
datae seem to have been mostly in factum conceptae. This name, which
is given to a class of exceptiones, is unfortunate, since nearly all exceptiones,
except iusti dominii and the exceptio ususfructus3 and the like, were
in factum, in the sense that they alleged facts and not rights. Those,
however, to which the name was specially applied were such as had no
special name and were framed for the special case. Thus in actions by
parens or patron or the heres of patron it was not permissible to use the
exceptio doli or others of like character, and an exceptio would be framed
setting out the facts complained of without the use of the objectionable
word4. Again, where parties were agreed as to what was the act alleged
to be dolose, and it was denied, the task of the index might be limited
by alleging the fact instead of making a general allegation of fraud5. A
somewhat similar case is provided, as we have seen, where an exceptio
was based on an enactment6.

Exceptiones are also distinguished in the texts as being rei cohaerentes
or personae cohaerentes1. The latter were not necessarily available to
every party who might be sued on the transaction. Thus an exceptio
pacti conventi, where there were several debtors, might be in personam,
i.e. so expressed as to be available to only one of them8. Paul in the
Digest gives as an example the exceptio in id quod facere potest9 , the so-
called beneficiwm competentiae, not available to sureties of the debtor,
but this does not seem to have been an exceptio at all in classical law.
The great majority were available to any defendants10. It does not
however follow that they were equally available against all plaintiffs.
As we have seen11, the actio doli lay, in general, only against the wrong-
doer, the actio metus against anyone who had profited. This is reflected
in the corresponding exceptiones which can be distinguished from this
point of view as in personam and in rem. The exceptio doli could not be
brought against a plaintiff by reason of the dolus of one from whom he
derived title, at any rate unless he held by gift12, but the exceptio metus
was not under the same restriction; like the action, it was available

1 G. 4. 118. 2 2. 13. 6. 8; 4. 3. 1. 1, etc. 3 Exceptio iusti dominii, 17. 1. 57;

as to this exceptio, Appleton, Propr. Prdt. ch. xvi; exceptio ususfructus not evidenced, but
supposed to have been the reply where a dominus vindicated from the fructuary. 4 44.
4.4.16. 546.2.4. 6 Ante, p. 649. 7 44. 4. 4. 27; 44. 2. 7; Inst. 4. 14. 4.

8 Ante, § cxov. 9 44. 1. 7. pr. Post, § ccxxxiv. 10 E.g., doli, metus, Sci. Vellei-

ani, Macedoniani, etc. 44. 1. 7. pr. 11 Ante, § ccm. 12 44. 4. 4. 31.

xin] CONDEMN AT 10 653

against those deriving title from the wrongdoer. Thus, like the action,
it was said to be "in rem scripta1."

Exceptiones may be left with two further remarks. We shall see later2
that there were some types of action in which exceptiones, or, rather,
some exceptiones, need not be expressly pleaded. Further, the structure
of the formula shews that the exceptio was not a part of its original
design. The "si paret" of the intentio links directly with the " condemna,
si non paret absolve" of the condemnatio. The condemnatio does not refer
to the "nisi" of the exceptio, so that logically construed the formula
appears to direct the index not to condemn if the exceptio is proved, but
does not tell him to absolve in that case. This is due to the conversion of
praescriptio pro reo into exceptio after the structure of the formula was
settled. In practice, the logical point was not taken: the index absolved.

CCXXIV. Condemnatio. This was the direction to the index to con-
demn the defendant, if the conditions specified for condemnation were
satisfied, if not, to absolve him3. For a cerium, Gaius gives the form:
"Index Nm. Nm. Ao. Ao. sestertium x milia condemna, si non paret ab-
solve*" In the case of incertum, in an actio infactum, he gives: "quanti
ea res erit, tantam pecuniam index Nm. Nm. Ao. Ao. condemna, s. n.p. a.5."
For a bonae fidei indicium he gives a form differing slightly but not es-
sentially6. In real actions it was as in the form stated for an actio in
factum1. In many cases it was of course for a multiple8. As the interesse
taken into account was differently calculated in different actions, the
words expressing this varied. In some actions it was estimated as at
litis contestatio, in others, notably condictio furtiva, real actions and
actions infactum (other than those in bonum et aequum conceptae), it was
taken as at judgment, or even in some cases at the highest value in the
meantime9. In these it was " quanti ea res erit " or the like10, in the former
class it was "quanti ea res est," as, e.g., in condictio triticaria11 . The con-
trary rule in condictio furtiva is due to the fact that a thief was always

\ 44. 4. 4. 33. 2 Post, § ccxxix. 3 As to importance of actual absohitio,

ante, § ccxvra. It is contended by Audibert, Mel. Girard, 1. 57, citing 42. 1. 3 and 50.
17. 37, that there were cases in which there was no direction to absolve. This he holds is
the case in formulae which on his view had no intentio (ante, § ccxxn), and he rejects
the view that the texts refer to cases in which the absolutio clause has been omitted by
error. This doctrine of Audibert is difficult to reconcile with the very general language of
Gaius (4. 48 sqq.). That this language does not fit neatly into the formula in actio
iniuriarum may be admitted, but we have just seen a similar lack of coherence with the
exceptio. The words "s. n. p. a." do not fit neatly with an intentio in "quidquid pard," but
they certainly occurred there, G. 4. 47. 4 G. 4. 43. 5 G. 4. 47. 6 G. 4. 47.

7 G. 4. 51, which shews a similar form for any action on an incertum. Lex Rubria, xx,
gives an instance in action on a stipulatio for an incertum. 8 E.g., ac.tiofurti.

9 As in condictio furtiva. 10 In bonae fidei indicia the form is slightly different,

but the effect is the same, G. 4. 47; D. 19. 1. 1. pr. 11 13. 3. 4; post, § ccxxx.

654 CONDEMN AT 10 [CH.

in raora1. On principle the word in condictio incerti should be "est" In
the actions infactum "in bonum el aequum conceptae" it appears to run
" quantam pecuniam tibi bonum aequum videbitur2."

The condemnatio was always for a sum of money, but, apart from
subsidiary clauses with special names, there were one or two special
cases which must be mentioned. In some cases condemnatio produced,
besides the pecuniary liability, infamia in the defendant3. This did not
apply to the actio contraria where this existed4, or to cases in which a
heres, as such, was condemned, as he was not condemned suo nomine.
The same applied to a representative, for the same reason, and the prin-
cipal was not infamis as he was not condemned at all5. In noxal actions
the condemnatio ran " tantam pecuniam dare aut noxam dedere," the sur-
render being afacultas solvendi*.

The condemnatio occurred in all actions other than praeiudicia. It is
probable that in the earlier form of the divisory actions it did not exist,
for the only function of the index was adiudicare7 , before allowances
were taken into account, and the same might still be true in the case of
things which admitted of equal division, but, in view of the fact that
allowance for expenses and damages had to be made, it is probable that
in classical law there was always a condemnatio. But the formulation of
these actions is much disputed8.

The condemnatio might contain certain subsidiary clauses.

1. Clausula arbitraria. This was an instruction to the index to order
actual restitution, to his satisfaction, and to condemn only if this was
disobeyed. Its form was "nisi arbitratu tuo restituat9," or the like, so
that it was another negative condition on the condemnatio. If the order
was disobeyed there was no question of direct enforcement, by multa or
missio in possessionem, for it was an order, not of the praetor, but of the
index. But the machinery used was effective. The plaintiff was entitled
to assess the value under oath of good faith (iusiurandum in litem10) and
the condemnation was pronounced for that amount. Paul tells us that
in such a case the assessment was not too carefully looked at from the
point of view of perjury11. Still, there were restrictions. The index need
not allow the assessment under oath; he might condemn on his own
valuation12. According to the Digest, even if the oath was taken, he
1 G. 2. 79; D. 13. 1. 8. 1. 2 Post, § ccxxxi. See Lenel, E.P. 385. For other variations
and details, see Cuq, Manuel, 857, n. 3. 3 These appear to be furti, rapinae, doli,

iniuriarum (in all of which transactio is on the same level), pro socio, tutelae, mandati,
fiduciae, depositi, and perhaps some others. See Cuq, op. cit. 227; Greenidge, Infamia, 131.
4 3. 2. 1. 5 3. 2. 1; 3. 2. 6. 2. See Greenidge, Infamia, 130. 6 Ante, §ccv;

Lenel, E.P. 190. 7 Ante, § xc; post, p. 657. 8 Lenel, E.P. 200 sqq. ; Audibert,

Md. Appleton, 1. 9 4. 2. 14. 11 ; Inst. 4. 6. 31 ; G. 4. 114. But see Levy, Z.8.S. 36,

1 sqq., who denies the existence of the words "arbitratu tuo" in the formula. 10 D.

12. 3. 11 12. 3. 11. 12 12. 3. 4. 2; h. t. 5. 1.

xin] CLAUSULA ARBITRARIA 655

might ignore the estimate1, and in some cases he might, beforehand, fix
a maximum, a sort of taxatio2. Further, the oath was never allowed
unless the disobedience was wilful3, or the defendant had already
fraudulently made restoration impossible4; here it operated as a penalty.
It is difficult to say exactly what actions had this arbitrium clause.
Most of our information is from Justinian, and there are indications
that the word arbitraria is loosely used. It is clear that actiones in rem
(with a possible exception for praedial servitudes5) were arbitrariae, at
any rate if tried by the formula petitoria6. Among personal actions there
were ad exhibendum, doli, metus7, Fabiana* (and, no doubt, Calvisiana
and Pauliana), aquae pluviae arcendae9, actio infactum on an alienation
iudicii mutandi causa10, actio redhibitoria11, and some cases under inter-
dicts12. It is not clear, however, that in all these cases there was ius-
iurandum in litem. There are other more doubtful cases. The actio de eo
quod certo loco is the only action called arbitraria in classical texts13, but
it does not seem to have been arbitraria in the present sense at all. It
was so called because it gave the index discretion to determine what
allowance was to be made where what was due in one place was sued for
at another14. In the noxal actio iniuriarum the master could evade con-
demnation by allowing the man to be castigated, arbitratu iudicis. But
there was no question of iusiurandum in litem or of an order of the iudex;
it was entirely for the master to decide15. Ordinary noxal actions are
sometimes so called in view of the language of some texts16. But there
was no iusiurandum, surrender was not ordered by the iudex and was
not alternative to condemnatio, but was a facultas embodied in the
condemnatio^1. In the formula in ius given by Gaius for deposit and com-
modatum, the letters N.R. occur after the word condemnato, no doubt
meaning "nisi restituat" but as they are out of place and there is said
to be no other trace of this clause in a bonae fidei indicium in " dare
facere," they are usually rejected as an error. This is strengthened by
the fact that Gaius does not insert the words in the corresponding
formula infactum18, though most of the arbitrariae actiones in personam

1 Or even absolve, 12. 3. 4. 3; h. t. 5. 2. The first text is probably interpolated,
but this rule appears to be classical. 2 12. 3. 4. 2, perhaps not classical. See 6. 1. 68

and Girard, Manuel, 658, on the question of possible historical development. 3 12.

3. 2; h. t. 4. 4; h. t. 5. 3. 4 42. 1. 41. 1. 5 See Lenel, E.P. 186. 6 6. 1. 35.
1. If it was embodied in the formula per sponsionem it must have been in a different
form. 7 Inst. 4. 6. 31. 8 Fr. de f. Fab. 1. 9 39. 3. 22. 1. 10 4. 7.

4. 6. 11 Ante, § CLXXII. 12 Post, § CCL. 13 Even this is not certain ; they
may be interpolated. They are Inst. 4. 6. 33 a; D. 13. 4. 2. pr.; h. t. 2. 8; h. t. 3; h. t. 4.
1; h. t. 5; h. t. 8; h. t. 10; 13. 5. 16. 1; C. 3. 18. 1. 14 This action has been much
discussed. See the reff. in Girard, Manuel, 1055, n. 5, and May, Mel. Girard, 2. 151 sqq.
15 47. 10. 17. 4-6. 16 9. 4. 14. 1; Inst. 4. 17. pr. 1 (arbitrium, officium iudicis); Inst.
4. 6. 31. 17 42. 1. 6. 1. 18 G. 4. 47.

656 TAX AT 10 [CH.

are infactum. But the clause occurs in several actions for incertum, and
Marcian and Ulpian, late in the classical age, tell us that there might be
iusiurandum in litem in any bonae fidei indicium1, which however does
not necessarily refer to this use of it. Texts which speak of restitutio as
avoiding condemnation in deposit2 are not conclusive— omnia indicia
absolutoria sunt, and this very rule makes the extension less probable.
The language of these texts: " condemnandum te nisi restituas," "con-
demnandum tamen si res non restituetur," recalls the arbitrium, but the
form may be due to Justinian. The possibility remains that in post-
classical times the notion was extended to such actions, the letters N.R.
being an interpolated expression as are many other things in the MS.3
But it does not in any case appear that the clausula arbitraria could be
used for any purpose other than restitution4, e.g. to compel specific per-
formance of a bargain5.

2. Taxatio. This was a limitation on the condemnatio, having more
than one type. It might be a limitation to a fixed maximum sum, e.g.
" dumtaxat 5 millia6." It is not easy to say where this was admitted.
It is not found in real actions or the actio ad exhibendum, or, of course,
where the claim was for certa pecunia, but Gaius seems to assume that
it was always present in claims for an incertum7. It is actually recorded
in some cases of iniuria, and mfurtum8, but not in the Aquilian action.
It is found in the actio ex empto9. It seems possible that it might always
occur in actions on consensual contracts. The language of Gaius would
admit it in deposit and commodatum, but he does not put it in the
formula, and Lenel therefore rejects it10. The omission is hardly con-
clusive; his purpose is to compare two formulae and he may well have
omitted unessential parts identical in both. In the actio ex stipulatu,
i.e. on a stipulatio for an incertum, it seems to have occurred, though
we know it only in damnum infectum11. Beyond these cases we

1 12. 3. 5. pr.; 13. 6. 3. 2 (? interp.). 2 16. 3. 1. 21; h. t. 22. 3 See for an

extreme view, Kniep, in his commentary on Gaius, passim. 4 As to later law.

post, § ccxxvn. " Reslitucre" is not in itself conclusive against its application here; in
vindicatio there need have been no previous possession. 5 The propositions

stated in the text represent the ordinarily accepted opinion, but this has been attacked from
many points of view. Biondi (Studi sulle Actiones Arbitrariae, 1) holds that the expression
actio arbitraria was not known to the classical law as indicating a special type of action
having a clausula arbitraria, and that though such a clause did occur in some actions (see
G. 4. 114) its appearance in the texts is in many cases, notably in doli, metus, and other
penal actions, due to the compilers. Levy (Z.S.S. 36. 1 sqq.) holds that the clause did
not contain the words "arbitrate tuo." 6 G. 4. 51. 7 Ib. 8 G. 3. 224; D. 50.

16. 192. As tofurtum, it is not clear whether this was in the condemnatio or not. Lenel now
holds that it was in a demonstratio, E.P. 318. See ante, § ccxxi. 9 C. 4. 49. 4 (A.D. 290),

but this dates from a time when the formulary system was practically obsolete. 10 G. 4.
47. Lenel, E.P. 149. 11 L. Rubria, c. xx; Lenel, E.P. 149.

xni] COGNITIO EXTRAORDINARIA 657

know nothing, but a plaintiff could always put in a taxatio if he
chose1.

Another type of taxatio was that expressing the limitation of the
condemnatio to the content of a particular fund, e.g., " dumtaxat depeculio
et in rem verso2," and it is probable that the limitation in certain cases to
the extent of actual profit, "quod ad eum pervenit," was similarly ex-
pressed3. There was also the limitation called beneficium competentiae,
probably expressed by a taxatio, " dumtaxat in id quod facere potest*," or
the like. It may be that where a res was vindicated and the defendant
had bona fide ceased to possess, but was still liable for any "cawsa" in
his possession5, and on similar facts in the actio redhibitoria, this was
limited by taxatio, but the words "quanti ea res erit" may have sufficed.

3. Adiudicatio6. This has already been considered in its effect and
scope as a mode of acquisition7. The form given by Gains is " Quantum
adiudicari oportet, index Titio adiudicato8," no doubt incomplete, and as
the power must cover adiudicatio to more than one, probably corrupt. The
word Titio has been amended in various ways9, but there is no evidence.
It must be noted that while in communi dividundo and familiae ercis-
cundae what was divided was previously common property, infinium reg-
undorum there was or might be a complete transfer from one to the other.

4. Deductio in actions by bonorum emptor10.

CCXXV. THE SYSTEM OF COGNITIO EXTRAORDINARIA™-. We have seen
that the function of the magistrate in the formulary system, the ordo
iudiciorum, was far more independent than in the legis actio; we have
noted the incidental matters, apart from control of the formula, which
he dealt with12, and we shall later have to discuss the specially magisterial
remedies which he utilised13. It is plain that in proceedings of this kind
the line between judicial and administrative action was likely to be a
little blurred, both being based on the imperium. In the system of pro-
cedure which superseded the formula altogether in the third century,
procedure "extra ordinem1*," the outstanding change apart from differ-
ences of detail, also to be considered, is that there was no longer any
reference from ius to iudicium; the ordo iudiciorum was gone and the
whole matter was tried by the magistrate or his deputy. The other
changes will shew that the basing of all litigation, and the steps in it, on

1 See, e.g., Cicero, pro Tull. 3. 7. 2 Ante, § CLXXXIV. 3 E.g., heres liable on

delict, see post, § ccxxxni. 4 Post, § ccxxxiv. 5 Gaius says there is no taxatio

in a real action, but he is referring to a fixed maximum, G. 4. 51. 6 G. 4. 39, 42.

7 Ante, § xc. 8 G. 4. 42. 9 See Lenel, E.P. 202. It can be saved by supposing

a case in which it was agreed that the whole, being indivisible, should be allotted to T,
the other party or parties being compensated. There is also the possibility that each
party had a separate formula, all being identical, except as to the name in the adiudicatio.
10 Post, § ccxxxvm. 11 Cornil, Apercu historique, 461 sqq. 12 Ante, § ccxiv.

13 Post, ch. xv. 14 See Hartmann-Ubbelohde, Ordo Iudiciorum, 416 sqq.

B. B. L. 42

658 COGNITIO EXTRAORDINARIA [CH.

consent of the parties, a conception which governed the earlier systems,
was also gone; the magistrate controlled the whole procedure. Hence it
may be said1 that civil procedure had been superseded by adminis-
trative action. But it was still judicial. The magistrate must abide by
the law. The hearing was still a indicium, though a indicium extra-
ordinarium. The main rules of procedure remained, from time to time
modified by legislation. The system owed its origin and extension partly
to the fact that it was simpler and more convenient, and partly to the
fact that, consonantly with imperial ideas, the method tended to cen-
tralise authority and to transfer, to the Emperor's official, power which
had been in part vested in a index not so directly under the Emperor's
control. The assimilation to administrative and police action which un-
doubtedly occurred was a natural result of the change.

In the Republic it can hardly be said that the new system yet
existed, for though the praetor issued many orders in judicial matters,
e.g., restitutio in integrum, missio in possessionem, interdicts, etc., the
further proceedings under the order were usually2 tried by the methods
of the ordo. But the founding of the Empire brought a change. On the
introduction of fideicommissa, though our account of the transaction
shews that they were regarded as civilly valid3, Augustus ordered that
those submitted to him should be enforced by the consul, and this
"pauMa&m conversum est in adsiduam jurisdictionem*" soon transferred
to a new officer, the praetor fideicommissarius5. Similarly, honoraria in
mandate, not recoverable by ordinary action, could, from an early date
in the Empire, be recovered by process extra ordinem before the praetor6.
The nomination of tutores, with the consideration of questions arising
from it, excuses, etc., was vested in imperial officials from M. Aurelius
onwards7, and the removal of tutores suspecti was with the praetor8. The
obligation to provide alimenta for poor connexions, which appeared
under Pius, was in the hands of the consuls9, as was the enforcement of
the obligation to provide a dos10. The praefectus urbi dealt with com-
plaints by slaves against masters11, and the praetor with fideicommissa of
liberty overdue12.

In these cases there was no supersession of an existing jurisdiction,

1 Girard, Manuel, 1087, "Tout cela est une consequence de 1'idee qu'il n'y a pas la
justice civile mais acte de police." See also Pernice, Festgabe fur Oea. Beseler, 51 sqq.
2 Denegatio actionis and "duci inhere" (ante, §§ ccxiv, ccxvi) are however his own acts.
As to a special case of missio in possessionem, post, § CCXLV. 3 Ante, § cxxiv.

4 Inst. 2. 23. 1. 5 Ante, § cxxiv. 6 Ante, § CLXXIX. 7 Ante, §§ Lm, LIV.

But this was not a case of ordinary jurisdiction at all. 8 Ante, § LVU. 9 So

Girard, Manuel, 648, arguing from the source of the Digest texts in which it is considered.
C. 5. 25. 2-4 speaks of " competens index." 10 23. 2. 19. But it is possible that this

obligation is of later origin, see ante, § XL. 11 G. 1. 53; Coll. 3. 3. 1. 12 Ante, § xxxi.
Causae fiscales are hardly an instance: the State is doing justice in its own case.

xin] COGNITIO EXTRAORDINARIA 659

but that process appeared in the second century. The first step seems to
have been transfer to, or usurpation by, officials charged with functions
affecting public order (praefecti annonae, vigilum) of jurisdiction in
private suits arising out of matters within their field of authority1.
Causae liberates were tried by cognitio at least from Pius onwards, and
probably the same is true of questions of ingenuitas2. It seems clear that
in imperial provinces, and regions, like Egypt, which were specially
appanages of the Emperor, the system of cognitio was generalised early
in the Empire3. And in the provinces generally it superseded the formula,
on one view, by the beginning of the third century, or thereabouts, the
surviving and, in part, doubtful cases being regarded as exceptional,
and, on another, somewhat later, in view of these cases4.

How and when the supersession occurred in Rome is not clear. No
legislation abolishing the ordo for Rome is extant, and it is commonly
supposed to have disappeared not long after the provincial supersession,
a generation before the famous constitution of Diocletian (A.D. 2945), by
which he ordered praesides of provinces not to give indices, as they had
been doing, but to try cases themselves, providing that, if their business
was too pressing, they might, except in some important cases6, appoint
indices as deputies. It must be remembered that it was just at this time
that the system of provinciae was made to cover Italy also7, the new
system being probably in full operation before this enactment. The
indices to whom the enactment notes that praesides had been in the
habit of sending cases, are called indices pedanei, an obscure word which
probably does not refer to the unus index of the ordo iudiciorum, but to
delegates of the new type8. Thus the provision seems merely to mean
that magistrates were not to regard jurisdiction as a function to be
handed over as of course to someone else, but to treat it as their own
duty and not to delegate it except when overburdened with work, and
then not in all cases9. Naturally the pressure on the praeses of the new

1 Girard points out (Manuel, 1088) that this explains why these offices are occupied by
jurisconsults. See Textes, 903. 2 35. 1. 50; 40. 12. 27. 1. Addictio bonorum libertatis

causa and similar matters (ante, § CXLII) are handled in this way, but they are later than
this instance. 3 It seems clear for Egypt. Girard, Textes, 893. 4 Mitteis,

Reichxr. und Volksr. 132; Partsch, Schriftformel, 111 sqq. Wlassak, Zum Romischen Provin-
zialprozess, holds that the formula was used in imperial provinces, though not in "pro-
curatorian" districts, but that, by Hadrian's time, the praeses may choose between cognitio
and reference to a index, the index being however chosen by him, index pedaneus. Even
here the formula has changed its character and becomes rather an official statement of
the issue than an agreed issue between the parties. In this form it lasted, on this view,
in the provinces to the time of Diocletian (C. 4. 49. 4; 4. 52. 3; 8. 38. 3; Cons. 5. 7)
and apparently till Constantius abolished the formulae altogether (post, § ccxxvi).
Mitteis (Z.S.S. 40. 360 sqq.) is not quite satisfied as to the change in character of the
formula. 5 C. 3. 3. 2. 6 As to what cases, Hartmann-Ubbelohde, Ordo Iudiciorum,
604. 7 Ante, § xix. 8 Hartmann-Ubbelohde, op. cit. 602 sqq. 9 C. 3. 3. 2. 1.

42—2

660 PROCEDURE IN COGNITIO [en.

style of province, a relatively small region, would be less than that of
the old. As to Rome itself we have the negative evidence that there is
no trace of the ordo there, after about the middle of the third century1.

CCXXVI. Course of proceedings in a cognitio. Proceedings were
begun, not by in ius vocatio or vadimonium, but till, at earliest, the middle
of the fifth century by litis denuntiatio2, issued under the authority of
the magistrate3, apparently in writing, without formal impetratio or
postulatio actionis. This must be followed up by a statement of the case
within four months4, another four months being obtainable for cause5.
But under Justinian and apparently earlier6 this had been superseded
by a summons issued by the magistrate on a statement of claim sub-
mitted by the plaintiff (libellus conventionis7) and communicated to the
defendant by an official, the claim fixing a day for appearance, not less
than 10 (under Justinian 20) days later8. The official took security for
appearance, before which the defendant must submit his statement of
defence (libellus contradiction/is, responsionis9). These new methods were
of gradual introduction. The libellus conventionis was much later than
the change of system; the case was stated in a formula of the old type
till 34210, when the formula was abolished, and the formal impetratio
actionis existed till 42811. The administrative character of the process
only gradually reflected itself in the details of the procedure.

If the plaintiff did not appear on the day fixed, the case was dis-
missed12, but as there had been no litis contestatio it could be renewed.
Under Justinian there was an elaborate machinery for this case, the
results of absence differing with the cause13. If the defendant failed to
appear the sureties might be proceeded against, and, in the last resort,
the magistrate, apart from his power of fining ("multare"), could compel

1 Mommsen, Staatsr. 3. 539; D.P.R. 6. 2. 144. 2 C. Th. 2. 4. 2 and passim.

3 As to the magistrate having jurisdiction, post, p. 663. At first denuntiatio may have
been a private act, like in ius vocatio, but early in the fourth century the intervention of
authority was required, C. Th. 2. 4. 2. See Costa, Profile storico, 151. Protection for
minors, C. Th. 2. 4. 1. Some cases in which denuntiatio not needed, C. Th. 2. 4. 3; h. t. 6.
The question whether litis denuntiatio was ever used in the formulary system is disputed,
Kipp, Litis Denuntiatio. Wlassak, Rom. Provinzialprozess, thinks it essentially provincial,
a measure to unify the varying provincial practices. Aur. Victor, ad Caes. 16. He also
holds, p. 58, that it was never absolutely private: though at first the act of the party,
there was always magisterial authorisation. As to hypotheses on the source of this method
and for the view that it began with the praetor peregrinus, see Eisele, Beitrage, 168 sqq-

4 Mitteis, Grundziige der Papyrus/. 2. 1. 40; Z.S.S. 27. 351, shews the four months to
be a maximum. No procedure in contumaciam (see below) till the time has expired, but
nothing to bar earlier action if parties and magistrate are ready. 5 C. Th. 2. 6. 1.
Automatic extension of time in certain cases, h. t. 3 and 4; C. Th. 2. 7. 3; C. 3. 11. 1-
Further postponement for not more than two months by consent, C. Th. 1 1 . 33. 1 . 6 See
Nov. 53. 3. 7 Inst. 4. 6. 24. 8 Nov. 53. 3. 2. 9 C. Th. 2. 15. 1; Nov. 53. 3-
10 C. 2. 57. 1. See however Partsch, Schriftformel, 120. 11 C. Th. 2. 3. 1; C. 2. 57. 2.
12 Arg. C. Th. 2. 6. 1. 13 Now. 112. 3, 115. 2.

xin] PROCEDURE IN COGNITIO 661

appearance by force1. If the defendant evaded service of summons or
other preliminary steps, there was a procedure in contumaciam, an
elaborate system, of notices to be served on him if he could be reached,
and proclamations if he could not2. The effect of this varied in different
cases and from time to time; Justinian legislated repeatedly on the
matter3.

On the appointed day there was a cognitio. The parties appeared and
stated their cases and the facts on which they relied. The close of this
stage was apparently litis contestatio^, which remained the critical point
of time, but with effects much modified5. A time so defined was unsatis-
factory and Justinian provided, in effect, that litis contestatio was to
occur when the parties had taken the oath against calumnia*. Confessio
now led to immediate judgment whatever the nature of the claim7. The
class of actiones interrogatoriae no longer existed, but interrogations
became in a sense more important. In any action, and on any point,
either party might submit an interrogatio to the other, by leave of, and
through, the index, and, as it seems, at any stage. The answer was
evidence against the person who gave it8, but it does not seem certain
that it had any other effect. It is clear that it could not be used against
the asker, and there seems no satisfactory evidence that refusal to answer
was penalised, as it was in the actiones interrogatoriae9. The iusiurandum
necessarium had a much wider scope. Instead of being confined to a
small group of actions10 it could be offered in any action with the same
right of "relatio" and the same results of taking and of refusal as in the
formulary system, and, at least under Justinian, after litis contestatio^1.

Much of the terminology of the old procedure remained. We still
hear of exceptio, replicatio, litis contestatio, interdict, but the terms have

1 D. 2. 5. 2. 1; 2. 8. 2. 5. 2 C. Th. 12. 1. 23; C. 7. 43. 9, and h. t. passim.

Bethmann-Hollweg, Civ. proc. 3. 302 sqq. For earlier legislation, Appendix legis Bom.
Wisig. 2. 2 (Coll. libror. iuris anteiust. 2. 260 sqq.). 3 Details and reliefs, C. 7. 43

passim. See generally, Koschaker, Z.S.S. 36. 444, reviewing Steinwenter, Studien zum
Rom. Versdumnissverfahren. Judgment without these final steps, if the defendant,
warned by the index, wilfully abstains. C. 7. 43. 2. According to Wlassak, Bom. Proi-inzialpr.
36 sqq., the contumacy procedure is of provincial origin: it is there that first appears
the conception essential to it that non-appearance is disobedience to the magistrate.
4 C. Th. 2. 4. 4; C. 3. 1. 14. 4; 3. 9. 1. Preces to the Emperor, followed by rescript,
amounted to I. c , C. Th. 1. 2. 10 = 0. 1. 26. 1. As to effects of I. c., post, §ccxxxv. See also
C. 3. 1. 16. 5 These changes do not depend on the change of procedure or coincide

in time with it. 6 C. 2. 58. 1, 2. Refusal of this oath is ground for judgment, ib.;

Nov. 53. 3 makes 1. c. occur at signature of the libelli, with rules for the case of failure to
sign. On litis contestatio and "mota controversia" under Justinian, Albertario, Z.S.S. 35.
305 sqq. 7 C. 7. 59. 1. Gradually reached, Cuq, Manuel, 876. 8 11. 1. 1. 1

(interp.); h. t. 21; h. t. 7. 9 Texts in D. 11. 1 which seem to apply the old system

(e.g. 8. 1, 9. 3, 9. 7, 11. 4) actually refer only to cases of the old actiones interrogatoriae and
may be anachronisms. 10 Ante, § ccxv. 11 Different forms of oath are confused

in D. 12. 2. See C. 4. 1. 1; h. t. 8, and post, p. 662.

662 PROCEDURE IN COGNITIO [CH.

changed significance. When Justinian said that an exceptio doli was
available he meant that dolus might be pleaded and would (in general)
bar the claim; he did not mean that it was pleaded in the old way. A
possessory interdict was, for him, a possessory action, for the actual
issue of an interdict was a thing of the past. But some exceptiones were
handled in a new way; they were disposed of before litis contestatio.
Such w^ere those dealing with capacity of parties, or representatives, or
the court1, and also, perhaps, the exceptio praeiudicialis, and those
alleging previous judgment or transactio, or bar by lapse of time2.
Others were dealt with in the old way with two modifications. Ex-
ceptiones peremptoriae not originally claimed could be brought in at a
later stage, without any restitutio in integrum3, and, as an indirect
result of express legislation, some exceptiones no longer destroyed the
action4.

After litis contestatio the action proceeded, the principal changes to
note being the following. Exceptiones might be gone into, and an inter-
locutory judgment given on them, before the final decision5. There was
much legislation on the burden of proof. The evidence of witnesses was
distrusted, and there were many enactments affecting capacity to give
evidence, and on the weight to be attached to such evidence6. "Testis
unus, testis nullus" was laid down as a general rule7, and, apart from this,
a minimum of evidence was required in some cases8. An outside witness
was not to be heard in opposition to a document duly authenticated
and witnessed9. Justinian excluded evidence by humiles not vouched
for by persons of higher rank, unless under torture10. Hearsay was in
general excluded11. Witnesses were summoned by the court, ^and could
be compelled to give surety for their appearance, distinguished persons
being exempt12. The questions were asked by the index and the answers
recorded13. There was mvich legislation on the mode of proof of docu-
ments14.

The distinction between iusiurandum necessarium and voluntarium in
iudicio is much obscured under Justinian. He seems to have put any
oath offered at any stage, by a party with approval of the index, or by
the index, on the same level15. If it was refused in first instance judgment
went against the offeree on the point, subject to appeal, and the index

1 Cons. 6. 2; C. 2. 12. 13; C. 8. 35. 13. 2 Bethmann-Hollweg, C.P. 3. 265.

3 C. 8. 35. 8. 4 Compensatio, post, § ccxxxvm; plus petitio, post, § ccxxxvn.

5 C. Th. 11. 30. 37. 6 Bethmann-Hollweg, C.P. 3. 274. 7 C. Th. 11. 39.

3. 1; C. 4. 20. 9. 8 E.g. C. 4. 20. 15. 6; h. t. 18. 9 C. 4. 20. 1. Paul (S. 5. 15. 4)

lays down a similar rule, but only "si de fide tabularum nihil dicitur." 10 Nov. 90. 1,

a comprehensive enactment on these matters. 11 Nov. 90. 2. 12 C. 4. 20. 16;

h. t. 19. 13 Bethmann-Hollweg, C.P. 3. 277. 14 76. 279 sqq. 15 C. 4. 1.

12. 1 a. As to Justinian's legislation, Demelius, Scheidseid und Beweiseid, 123 sqq.

xin] JURISDICTION IN COGNITIO 663

in appeal might either confirm the judgment or, if he thought the oath
should not have been offered, and was reasonably refused, disregard it
and go into the merits1. If it was taken when offered, or taken or refused
on relatio, judgment went accordingly on the point, which of course was
not necessarily the whole issue2, with no appeal. Thus the party originally
offering the oath had no appeal3.

The case proceeded from day to day, adjournment being to a day
fixed by the index*. Non-appearance was treated as above stated for
non-appearance before litis contestatio. The administrative character of
the process led to decreased publicity. Cognitiones were always under
cover, and in later law the public, except privileged persons, had no
access but by leave of the index5. The old calendar of dies fasti, etc.,
disappeared in the Christian regime; the available days were changed
from time to time, being the same for all stages of the process, and about
the same in number as in the old system6.

CCXXVII. Jurisdiction was vested in a variety of officials7. In
Rome, and later in Constantinople, the praefectus urbi, the vicarius
urbis, and the praefecti annonae and vigilum had civil jurisdiction, in
some cases limited to particular affairs, the old praetor having lost
jurisdiction long before his name disappeared8. In a province the praeses
sitting in his chief town was the ordinary judge9. Municipal magistrates
had a limited jurisdiction, and, in the later Empire, many towns had
also a defensor civitatis, with similar jurisdiction, concurrent with that
of local magistrates10. All these were accustomed to act with an assessor
or assessors who gave opinions but had no share in the decision, and in
the more important courts the best available legal learning was used
for this purpose11.

In the cognitiones which in the third century were superseding the
or do iudiciorum, it was a common practice to delegate the jurisdiction
from initiation to decision to a deputy to whom the name index pedaneus
was applied; the magistrates seem indeed to have tended to shift off the
whole burden of civil jurisdiction. Diocletian, as we have seen, provided12
against this, except under pressure of work. The Emperor Julian en-

1 C. 4. 1. 12. 2. 2 C. 4. 1. 12. la. 3 C. 4. 1. 12. 3. 4 C. 3. 11. 1;

h. t. 3; h. t. 4. 5 Bethmann-Hollweg, C.P. 3. 189. 6 Bethmann-Hollweg,

ib. There was a temporary revival of the old system under Julian the Apostate. 7 See
Bethmann-Hollweg, C.P. 3. 35 sqq. 8 Boethius, de Consol. 3. 4, "praetura,

magna olim polestas, nunc inane nomen est." 9 Bethmann-Hollweg, C.P. 3. 45.

10 C. Th. 1. 29. 1, 6, 7. See C. 1. 55. Special officials for cases affecting State finance, and
for milites; a jurisdiction in the Bishop resting on consent (except in case of clerici), not
appealable. C. Th. 1. 27. 2; Nov. Val. 35; C. 1. 4. 7, 8. Cornil, Aperyu historique, 463. As
to the Emperor's jurisdiction, which has various forms, post, p. 665. 11 1. 22. 1; C. 1.

51. 11. Actor sequitur rei forum, C. Th. 2. 1. 4; Nov. Marc. 1. 6; C. 3. 13. 2. But an actio
in rem may now be tried where the thing is. C. 3. 19. 3. 12 C. 3. 3. 2; ante, § ccxxv.

664 JUDGMENT IN COGNITIO [CH.

acted, in A.D. 362, that there might be a similar delegation apart from
pressure of work in matters of small importance1. The indices so " dati"
were not those of the old album iudicum,to try an issue submitted by the
magistrate; the album was extinct, and they tried the whole matter as
deputies. They seem to have been chosen from the advocates practising
in the magistrates' courts2; in later law there were regular lists of them3.
The growth of this system brought with it a certain share of the parties
themselves in the selection of the iudeofi. He was, under Justinian, ex-
pressly appointed for each case5, and could exercise the magisterial
power of compulsion, e.g., missio in possessionem, in case of contumacy6.
His function ceased at judgment7; he had nothing to do with execution
of it.

The judgment was recited publicly at a formal sitting of the court8,
but like all other proceedings, it was also set out in writing, from which
it was read9. It was no longer necessary for the judgment to be for a
sum of money, though whether it was for this or for the thing in dispute
itself10, it must still be certain and unconditional11. We have seen that
there might be interim judgments, e.g. on the admissibility of an ex-
ceptio12, and these were issued in the same way. There would also be
pronuntiationes13 in actiones praeiudiciales and in actiones arbitrariae, and
adiudicationes in the appropriate cases. So too while of taxatio in the old
strict sense there was now no question, since that was an instruction to the
index, who now heard the matter from the beginning, the various rules
imposing a limit on the condemnatio must still be observed14. Justinian
added another, restricting damages in some cases to double the price15.

In an enactment of A.D. 52916 Justinian laid down the rule that a
index where he absolved the defendant could condemn the plaintiff for
anything which proved to be due from him in the same transaction,
observing that Papinian in his Quaestiones had held this admissible.
Papinian may have held that mutuae petitiones could be implied in
bonae fidei indicia, but more probably was speaking of cognitiones17 .

1 C. Th. 1. 16. 8; C. 3. 3. 5. 2 Betkmann-Hollweg, C.P. 3. 121 sqq. 3 C. 2.
6. 6. pr.; C. 2. 12. 27. 4 C. 3. 1. 14. 1. 5 Bethmann-Hollweg, C.P. 3. 125.

6 Nov. 53. 4. 1. 7 42. 1. 55. 8 C. 7. 45. 6. 9 C. 7. 44. 1-3; C. Th.

4. 17. 1. It must be both, h. t. 2 and 4. 10 Inst. 4. 6. 32. This is enforcement of

the actual render, specific performance. It applies to legacy (C. 6. 43. 1). There may
perhaps even be enforcement of a promise to serve (C. 7. 45. 14) but here money condem-
natio was usual (42. 1. 13. 1). No trace of specific performance in Sale. In English law
specific performance began under Wills. 11 49. 4. 1. 5. Cond. to "whole debt with

interest," "what you have received," are invalid. The Inst. say there must be such certainty
as is possible, an obscure utterance. 12 Ante, § ccxxvi. 13 Ante, § ccxvm.

14 Beneficium competentiae, de peculio, etc. 15 C. 7. 47. 1. 1. As to costs, Costa,

Profilo storico, 176. 16 C. 7. 45. 14. 17 System further elaborated in the Novels.

Nov. 1; Nov. 96. 2. As to the possible operation of the same idea in a narrow field (indicia
contraria), ante, § ccxvm. As to still wider application in classical law, post, § ccxxxiv.

xm] APPEAL 665

If the defendant satisfied the judgment, the matter ended, but if he
did not, there was, apart from execution, a new institution, i.e. appeal1.
The appeal was to a higher court which varied according to the nature
of the court of first instance2, from the index to the magistrate who
named him, from municipal magistrates to the praetor at Rome, so
long as his functions were real, or in some few cases to the iuridicus,
later to the praeses, from the praeses to the praefectus praetorio, and
finally to the Emperor, except where the case had gone before the prae-
fectus praetorio, who was unappealable except by an act of grace3.
And there was no appeal to the Emperor except in matters of import-
ance. In the late Empire a special appeal court of two delegates of the
Emperor was appointed to try appeals to him4. Under Justinian there
might not be more than two appeals on any one decision5.

Notice of appeal must be given within very few days6, and the
appeal proceeded also with little delay, rules somewhat relaxed by
Justinian. It might be on the final judgment or on one of the inter-
locutory judgments, though some of these latter were unappealable in
late law and practically all under Justinian7. The court either confirmed
the decision, in which case the appellant incurred penalties to the
court, and to the other party, or altered it; interlocutory judgments
apart, it was not remitted for judgment to the court below8.

The Emperor, as magistrate, might sit in first instance or appeal,
but his intervention was more usually in other ways. The most important
was consultatio or relatio9, the latter term seeming to mean the letter of
reference and the former the accompanying dossier10. The process
was used where an official, in doubt, before deciding, sent a relatio to
the Emperor, the parties being informed, and any document they wished
to send being included11. Enactments from time to time restricted his
right to relieve himself of difficulty in this way. The answer, which was

1 C. Th. 11. 36. 18; Nov. Th. 17. 2; C. 7. 4. 15. It may have been applied to formula
in its last days, as a slight circumstance might decide the mode of trial, but there is
no proof of this. Appeal must be distinguished from relatio. 2 Details,

Bethmann-Hollweg, C.P. 3. 89. 325 sqq. Costa, Profilo storico, 178 sqq. 3 C.

Th. 11. 30. 16; C. 7. 62. 19; Nov. Th. 13; C. 7. 42. 1. There may be supplicatio after they
have become privati. 4 C. 7. 62. 32. 5 C. 7. 70. 1. 6 Bethmann-

Hollweg, C.P. 3. 328. 7 C. Th. 11. 36. 18; Nov. Th. 17. 2. 2; C. 7. 45. 16.

Bethmann-Hollweg, C.P. 3. 327. Justinian, having excluded such appeals generally, strikes
out the relative provisions in the Theodosian code while reproducing the enactments so
far as they deal with other matter. Gradenwitz, Z.S.S. 38. 35 sqq., thinks such appeals
excluded much earlier. 8 Bethmann-Hollweg, C.P. 337. 9 See Bethmann-

Hollweg, C.P. 3. 90. 332-41. Andt, La Procedure par Rescrit, was not available when
the text was printed. 10 C. Th. 11. 29. 3 and 4; C. Th. 11. 30. 1. 11 A party to
a dispute who sought to remove the matter from the ordinary procedure by seeking a
relatio without bringing the other party into the matter by ordinary litigation lost his
case and his right. C. Th. 11. 29. 6.

666 SUPPLICATIO [CH.

in the form of a rescript, sometimes gave a judgment and sometimes
stated a principle and remitted the matter for actual judgment1. In
later law the relatio went, sometimes, not to the Emperor himself but
to his principal minister. All this refers to consultatio ante sententiam,
and officials were warned that it was to be so used, and not after judgment,
to prevent suitors from appealing2. But consultatio post sententiam was
common after Constantine. The method was the same. It was mainly
used in case of judgments of high officials not ordinarily appealable.

Another method was supplicatio. This was petition to the Emperor
by a private person. It was not allowed when the question was already
before a court or had been decided and not properly appealed3. It was
mainly used to bring matters before the Emperor or his delegate, in
first instance, where for any reason it was unlikely that justice would
be done, e.g. where the claimant was humble and the opponent a "po-
tentior," or where the claimant was of too high rank to go before the
ordinary court, or the decision was of an unappealable magistrate. It
Avas decided by rescript, but if no reason appeared why it was not tried
in the ordinary way, it was remitted. It was allowed if a index put
obstacles in the way of appeal, and this seems to have paved the way to
application of it by way of appeal from decisions not properly appealable.

If the final judgment was absolutio the matter ended, subject to
calumnia. If it was condemnatio, no longer appealable or confirmed on
appeal, there might be execution of judgment. There must be a delay to
give the defendant an opportunity of satisfying it4. When this had expired
execution proceeded. Whether personal seizure lasted at all into this
system is not certain, but the system of bonorum venditio to satisfy a
judgment was certainly gone. The judgment being no longer a result
reached by agreement between the parties the obligation to satisfy it
was not enforced by actio iudicati. Appeals provided against the evils
met by allowing defence to actio iudicati, and the penalties of unsuccess-
ful appeal replaced the double liability. If the judgment was for a specific
thing the officiates seized the thing and gave it to the plaintiff5. If it
was for money there was a delay, after which the officiates seized some
part of the debtor's property (pignus ex causa iudicati} to satisfy the
claim and charges. After two months, if the claims were not paid, the
pignus was sold at auction by the officiates6. Creditors might bid. If
the sale produced too little, there might be further seizure7. The creditor,

1 See ante, §§ vn, vm, as to the importance of this rescript procedure. Andt, op. cit.,
shews that under consultatio there was normally a definite decision. The cases of remis-
sion are supplicationes, and the reply a rvscriptum ad preces, a special way of beginning a
suit. 2 C. Th. 11. 29. 2. 3 C. 1. 21 passim; h. t. 3 makes one, who brings

a forbidden supplicatio, in/amis. 4 42. 1. 31. J. makes it four months. C. 7. 54. 2, 3.
5 25. 5. 1. 2; 43. 4. 3. pr.; 6. 1. 68. 6 42. 1. 31; C. 8. 22. 2. 7 42. 1. 15. 2.

xm] EXECUTION 667

if. there was no buyer, might, if he would, take the goods in payment of
the debt1.

Though the sale of a man's estate was no longer the effect of an
unsatisfied judgment, it might still occur in any case of insolvency.
This was distractio bonorum, already mentioned as a mode of execution
of judgment against one of high rank2. In later law it was used only
where there were several unsatisfied judgments or clear and undisputed
claims, or the insolvency was undisputed. There was missio in posses-
sionem, and a person was appointed to conduct the sale, after a delay
which under Justinian was very long3. He was called curator bonorum,
and, though he seized the whole, he did not sell in mass but in detail4,
and for a price, not a dividend. Thus there was no question of any person
taking the place of the debtor, or of rights and liabilities in the buyer.
The resulting money was divided with the same privileges and priorities
as in bonorum venditio, and where a debtor made a voluntary cessio to
his creditors the old rules of cessio bonorum for the protection of the
debtor still applied5.

1 42. 1. 15. 3. 2 Ante, § ccxix. 3 C. 7. 72. 10. 4 See, e.g., 42. 5. 9. 5. The

whole story of the various curationes bonorum is obscure and controverted. See Degenkolb,
Magister und Curator, 18 sqq. The curator appears to be normally appointed by the
magistrate though with consent of the creditors (42. 7. 2. pr.), but there are texts which
speak of him as appointed by the creditors themselves. See, e.g., 17. 1. 22. 10; 42. 7. 5.
These texts which treat the curator as a simple mandatary of the appointing creditors
may refer to a private, extra-judicial arrangement. But see Degenkolb, cit. D. 17. 1. 22. 10
seems to deal with two hypotheses; where the curator having sold has not handed over
the money, he is liable ex mandate to those who took part in the appointment, and ex
negotio gestio to those who did not. But where he has completed his mandate he is under
no further liability to anybody, but the absent creditors may have a claim against the
creditors under whose mandate the property was sold and who have received the price.
5 42. 3 passim; ante, § ccxrx.

CHAPTER XIV

THE LAW OF PROCEDURE (con*.). INCIDENTAL RULES

OF PROCEDURE

CCXXVTII. Actions in rem, in personam, p. 668 ; formulation, 670 ; CCXXIX. Indicia stricta,
indicia bonaefidei, 672; CCXXX. Condictio, 675; varieties of condictio, 676; CCXXXI. Actio
civilis, actio honoraria, 678; Fictitia, ib.; Rutilian, 679; in factum, ib.; Actio utilis, 680;
CCXXXII. Indicia Legitima, I. quae imperio continentur, 681; CCXXXIII. Actiones
Perpetuae, Temporales, 683 ; Actiones ad rem persequendam, ad poenam persequendam, 684 ;
Actions transmissible or not, to or against heres, 685; CCXXXIV. Actio directa, adiectitiae
qualitatis, 686; Actio in simplum, duplnm, etc., ib. ; Actiones in quibus in solidum, non
semper in solidum persequimur, 687 ; Actio popularis, privata, 688 ; CCXXXV. Litis con-
testatio, 689 ; Exceptio rei iudicatae vel in indicium deductae, ib. ; CCXXXVI. Exceptio rei
iud. in later law, 693; Other effects of litis contestatio, 694; CCXXXVII. Plus petitio,
minus petitio, ib.; CCXXXVIII. Compensatio, 696; in later law, 699; CCXXXIX. Re-
presentation in litigation, 700 ; CCXL. Security in litigation, 704 ; in case of representation,
705; CCXLI. Translatio ludicii, 706; CCXLII. Cumulation of actions, 709.

CCXXVIII. CLASSIFICATION OF ACTIONS. Actions can be classified1
from many points of view, of which the more significant are now to be
considered.

Actions in rem, in personam. This distinction, which corresponds to
our modern distinction between rights in rem and in personam, was
based not on what seems to us the primary distinction, that between the
rights, but on what was to the Romans the primary distinction, when
the expressions were framed — that between the remedies. It dates,
indeed, from days when men did not readily face abstractions. The
actio in rem was an action for a physical thing, rather than the assertion
of a right available against everyone, and it has been already noted
that an actio in personam in its origin was thought of rather as a claim
to a person2. But for classical and later law the two types may be
regarded as means for the enforcement of, respectively, rights in rem
and in personam.

The typical actio in rem was vindicatio rei, with its claim "rem Auli
Agerii esse ex iure Quiritium." This is the "formula petitoria." The other
possible formula, "per sponsionem," was tried as a personal action on
the sponsio3, though the operation of the securities gave it such similar
effects that it is spoken of as a form of real action4. No doubt the
formula petitoria gradually superseded the other5. The action covered all

1 Inst. 4. 6. 1-31. 2 See ante, § cxcv, "se solvere." 3 See ante, § ccxiv.

See however Cuq, Manuel, 296, for a different view. 4 E.g. G. 4. 91. 5 Though

one in possession does not need to vindicate, Justinian tells us (Inst. 4. 6. 2) that there is

CH. xiv] ACT 10 IN REM, IN PERSON AM 669

accessories and fruits from litis contestatio1, but not earlier fruits, which
so far as recoverable at all must be claimed by independent action2. On
the other hand the defendant was entitled from the time of Hadrian
onwards, to claim by exceptio, ius retentionis, but not by action, an
allowance for expenses to an extent which varied from time to time and
according to his good or bad faith3.

Ownership was not the only subject of actions in rem. The hereditatis
petitio, though the right to a hereditas cannot strictly be called dominium,
seems to have followed the same form: "hereditatem (or "partem
hereditatis") Titii Auli Agerii ex iure Quiritium esse*" The actions for
civil rights in rem less than ownership, e.g. usufruct or praedial servitude,
are in the form "ius ususfructus Ai. Ai. esse" "ius eundi, in fundum
Cornelianum, Ai. Ai. esseb" The scheme of remedies on such rights set
forth in the Sources provided an actio confessoria6, the action claiming
the right, and an actio negatoria, the action denying the right: "ius illi
non esse eundi7," etc. It may not at first sight be clear what was the
need for this action. But it would not suffice to interfere with the
enjoyment, leaving the claimant to bring action for enforcement of the
right, since if he had been in actual enjoyment an interdict would be at
his service by which he would usually be restored to his enjoyment
without proof of right, so that the owner of the land would be no better
off8. The same thing might of course be said if the dispute were one of
ownership, and yet there was no actio negatoria in that case; the plaintiff
never put his case in the form of denial of the other party's right, but
asserted his own. In fact the principle was the same here; the plaintiff
asserted his ownership free of this right. But, his ownership not being
disputed, the mere allegation that the thing was his would be of no use
to him. What he had to shew was that the alleged servitude did not
exist. The negative form was a mere cloak to the fact that the owner
was asserting his right as strictly as in vindicatio9.

"unus casus" in which a possessor "actoris paries obtinet." Of this the oldest and simplest
explanation is this of action by dominus against, e.g., depositee, but many others are offered.
See Moyle, ad 1. and Girard, Manuel, 347, and literature there cited. See ante, § xci in f.
1 6. 1. 16; h. t. 17; h. t. 20. 2 13. 7. 22. 2. See Pernice, Labeo, 2. 1. 350 sq.; as

to b. f. possessor, ante, § LXXXH. 3 6. 1. 37; h. t. 48; h. t. 65; C. 3. 32. 5. As to a

liability in classical law, extinct under Justinian, to pay twice their value in certain events,
Petot, fit. Girard, 1. 211 sqq. ; fructus duplio. 4 See Lenel, E.P. 174. 5 Ib. 188.

6 8. 5. 2; h. t. 4. 2. 7 8. 5. 2. pr. 8 See, e.g., D. 43. 19 passim. 9 7. 6.

5. 6; 8. 5. 2. pr. The former text contemplates actio negatoria in usufruct by an owner in
possession, which looks like a voluntary acceptance of the burden of proof; see 22. 3. 2,
"ei incumbit probatio qui dicit non qui negat." But the question of the burden of proof
in this case is much disputed. See Girard, Manuel, 356; Windscheid, Lehrbuch, § 198, nn.
15, 16. The natural thing would be to leave the fructuary to bring his claim. But many
circumstances might make it desirable to "quiet the title," e.g. an alleged fructuary
might be claiming from former tenants. The case of usufruct suggests another point. An

670 ACTIO IN REM, IN PERSONAM [en.

These remedies give rise to two questions. The name actio confessoria
was applied in classical law to the Aquilian action for damage where the
defendant had admitted the act; the adjective expresses the fact of
confession. In the present case where the word denotes assertion of
right it is found only in the Digest, and in extracts from only one liber
of Ulpian's treatise "ad edictumz." It is possible therefore that the name
is Byzantine3 and that the classical law spoke of vindicatio ususfructus,
actio de itinere, and the like, though the name of the other actio, negatoria,
is probably classical. There are also traces of an actio prohibitoria in
which the owner alleges "ius sibi esse prohibendi Nm. Nm. ire," etc.4
This seems to fill the same function and its purpose has been variously
explained, in fact it is quite uncertain5.

Modelled on the civil vindicatio there were also praetorian actions in
rein. Such were the actio Publiciana6, the hereditatis petitio possessoria"7 ,
and certain vindicationes utiles already mentioned8, all of which are
stated as actiones fictitiae.

Actions in rem had the general characteristic that the intentio
alleged a right in the plaintiff and did not mention the defendant; it
was not a question of a person, but of a res. This came to be regarded
as the mark of an actio in rem, so that we get certain actions called
"actiones in personam in rem scriptae." Justinian9 so describes the
divisory actions, which were clearly in personam. The same may be true
of ad exhibendum10, which as we know it was certainly a civil action,
but its formulation is very uncertain11. Conversely, the actio negatoria12
mentioned the name of the defendant. But it will be noticed that this

owner claiming possession will bring a vindicatio. If the defence is not that he is not owner,
but that deft, has a usufruct, what is the defence ? It is not a plus petitio, as, for this
purpose at least, usufruct is not a part (at least where the usufruct is in a third party, 50.
16. 25). The answer is said to be an exceptio ususfructus, but in fact this is not well
evidenced. A text sometimes cited, 7. 9. 7. pr. (Keller- Wach, C.P. 185), deals with usufruct
not validly created and is analogous to exceptio rei venditae et traditae. This exceptio would
not serve the purpose if, e.g., the usufruct was derived, as it might be, from one from
whom vindicans did not derive title, e.g. the present vindicans having usucapted since it
was created. For the more general exceptio the exceptio pignoris or hypothecae gives no
analogy, for these are not civil law rights.

1 Ante, § cc. 2 8. 5. 2; h. t. 4; 7. 6. 5; Ulp. ad Ed. 17. 3 Segre, Mel. Oirard,

2. 511 sqq. 4 7. 6. 5. pr.; 8. 5. 11. For other reff. see Segre, cit. 527 sqq. 5 For

Lenel (E.P. 186) it applies to praetorian servitudes, but as to these, ante, § xciv. For
Karlowa, it is for the case where an infringement is in progress, but not complete, e.g. a
building (R.Rg. 2. 469). For Segre (op. cit. 527) the two actions are mere alternatives, but
as we learn that both were stated in the edict (Bas. Supp. ed. Zachariae, 112; Lenel, E.P.
185) this seems improbable. For Beseler, Beitrdge, 1. 79, it is Byzantine. 6 Ante,

§ LXXI. 7 Ante, § oxxxvn. 8 Ante, § xci; as to vindicatio for provincial land,

ante, § LXIX. 9 Inst. 4. 6. 20. There are no doubt others. Metus is said to be one,

but this is an actio in factum. 10 Girard, Manuel, 1035. 11 Lenel, E.P. 213.

12 Ante, p. 669.

xiv] ACT 10 IN REM, IN PERSON AM 671

was not as defendant; it was as defining the extent of the right actually
claimed; the claim was of ownership, free of a certain right in rem,
i.e. a servitude vested in B. There might be other persons having such
rights, but this was not in question.

Actions in personam were very numerous. Each type of obligation
had its own action. The formula stated the matter as an obligation in
the defendant, the word expressing obligation being usually "oportere."
The nature of the obligation was expressed by technical words which
varied in the different cases. In contractual or quasi-contractual obliga-
tion for a certain sum or thing or quantity it was "dare oportere1."
For an incertum it was "dare facere oportere2." In condictio incerti it
may have been "facere oportere3" In the actio furti it was "damnum
decidere oportere*." For the Aquilian action the form is disputed5. In
some actions it seems to have been "praestare oportere" or " dare facere
praestare oportere." Lenel6 finds this in the divisory actions and in pro
socio. Others find it in de peculio and others of that group. But the
formulation of all these various actions is uncertain7. Of the divisory
actions Justinian makes the odd statement that they seem to be both
in rem and in personam6. This is due to the fact that he confuses the
claim with the ownership which it implied; in fact they were quasi -
contractual actions in personam, to which the adiudicatio gave an air
of being in rem. They were double in the sense that each party was
plaintiff' and defendant. The formulation has been much discussed. In
their original form they dealt only with division, and the later incor-
poration of provision for allowances for expenses and equalising pay-
ments led to a specially complex formulation. It has been suggested
that a separate formula was issued to each of the parties9.

The foregoing propositions assume the classification into actions in
rem and in personam to be confined to actions formulated in ius, whether
as civil law, or as praetorian, actions, the latter having a fiction or other
device (formula Rutiliand10, diei repetitio11). This is clearly the point of
view of Gains12, but Justinian, while retaining the language of Gaius13,
brings in actions infactum, adding a great number of actions in personam
and some in rein. Thus the actio Serviana and actio hypothecaria of the
secured creditor14 are called actions in rem, for though, as we have seen15,
possessio was not habitually thought of as a ius in rem, the pledge creditor

1 G. 4. 4; 4. 18. We have seen that the actio operarum claimed the services as "danda,"
not "facienda" (ante, § CLX). 2 G. 4. 5; 4. 41. As to actio rei uxoriae, post, p. 672.

3 Lenel, E.P. 153. 4 G. 4. 37. 5 See Lenel, E.P. 194. 6 E.P. 202, 205,

287; G. 4. 2; Aut. G. 108. 7 See Lenel, E.P. 260. 8 Inst. 4. 6. 20. 9 See
for the principal literature on the matter, the reS. in Lenel, E.P. 202; Girard, Manuel,
639. 10 G. 4. 35. Ante, §CXLH; post, § ccxxxi. 11 Post, § COXLI. 12 See

G. 4. 3. 13 Inst. 4. 6. 2, 15. 14 Inst. 4. 6. 31. 15 Ante, § LXXII.

672 IUDICIA STRICTA, BONAE FIDEI [CH.

had something more than a mere possessory right, since his right was
enforceable against a vindicatio. Lenel gives other instances1.

CCXXIX. Indicia stricta (actiones stricti iuris) and indicia bonae
fidei. The name actio stricti iuris seems to be due to Justinian2. The
classical name3 expresses the important fact that the distinction is
found in the formula and in the proceedings in iudicio founded thereon.
As we shall see, nearly all the results of the distinction were matter for
the index*. It was expressed by the insertion, in the intentio, in bonae
fidei indicia, of the words ex fide bona — "quidquid paret ob earn rem Nm.
Nm. Ao. Ao. ex fide bona darefacere oportere5." It is clear that the name
bonae fidei indicia applied only to certain contractual and quasi-con-
tractual actions formulated in ins. This is shewn by the various lists we
possess which come from different dates, a fact reflected in the appear-
ance of new, and disappearance of obsolete, cases6. They were the
actions on consensual contracts, on commodatum, pignus and deposit
(when formulated in ins], fiducia, rei uxoriae, negotiorum gestorum,
tutelae, familiae erciscundae, communi dividundo7, and the actio prae-
scriptis verbis8. Justinian also gives hereditatis petitio, but this is a hasty
analogy. By his time there had been so much legislation, on points
affected by the distinction, that his proposition means in effect merely,
that in this action allowances for expenses and so forth might be claimed
without an exceptio doli, a characteristic which, as his language shews,
had suggested the same view to earlier lawyers9. Further he abolished
the actio rei uxoriae and replaced it by an actio ex stipulatu, for restora-
tion of dosw, to which he gives the bonae fidei character of the old actio
rei uxoriae., quite out of place in an actio ex stipulatu.

Although it seems clear that indicia bonae fidei, in classical law, were
always contractual, or quasi11, we have no corresponding lists of indicia

1 E.g., actio prohibitoria, ante, p. 670; actio vectigalis, E.P. 183, etc. 2 Inst. 4.

6. 28. 3 G. 4. 62. 4 It is possible that stricta indicia descend from sacramen-

tum, where the sole issue was whether the party had sworn falsely or not. This would
explain the origin of the rule in stricta indicia on the point, omnia indicia absolutoria,
ante, § ccxvu. 5 G. 4. 47. 6 Cicero, de Off. 3. 15. 61; 3. 17. 70; de N. Deor. 3. 30.

74; G. 4. 62; Inst. 4. 6. 28. 7 No information as to finium regundorum. 8 This

list, based on that in the Institutes, does not necessarily represent classical law. Thus
Biondi, Indicia bonae fidei, 176 sqq., excludes the actio rei uxoriae as having no "exf. 6."
in the intentio, its equitable character being due to the words "aequius melius" in the
condemnatio, the divisory actions, the actio pigneraticia, as having in classical law only a
formula infactum (see also Levy, Z.S.S. 36. 1 sqq.), and the actio praescriptis verbis, as not
then existing. His list is empti venditi, locati cond,ucti, negotiorum gestorum, mandati,
depositi, fiduciae, pro socio, tutelae and commodati. This is the list of Gaius with the
addition of commodati, which he considers, not without probability, to have appeared in
that list at a point now illegible (G. 4. 62). 9 Inst. 4. 6. 28; cp. C. 3. 31. 12. 3. The
dispute probably was only whether allowances could be claimed without exceptio doli.
10 Inst. 4. 6. 29; cp. C. 5. 13. 1. 11 As to delictal actions, post, p. 675.

xiv] IUDICIA STRICT A, BONAE FIDE I 673

stricta and it may be that all formulae in ius, in actions other than penal,
were strictae or bonae fidei. This might be suggested by the question,
above mentioned, in hereditatis petitio, and also by the fact that in the
material points the rules of rei vindicatio, the typical real action, closely
resembled those of stricta indicia. But the important practical rule was
that all actions on unilateral obligations on contract, or quasi, gave
stricta indicia, all other actions, formulated in ius, on contract or quasi,
bonae fidei l.

The following were the main practical differences:

(i) In stricta indicia nothing could be considered which was not in
the formula. It was this which made it difficult to admit that any event
subsequent to litis contestatio could entitle the defendant to absolutio—
omnia indicia absolutoria2. But the most important result was that in
stricta indicia all collateral defences must be expressly stated by ex-
ceptio, otherwise they could not be considered. In the others, by virtue
of the words "ex fide bona" the index could take them, or some of them,
into account3, though they were not expressly raised. How far this went
is not clear. Facts which would have given rise to exceptio doli, metus,
pacti conventi* could certainly be proved; in such actions they were
within the qfficium iudicis. There are indeed texts which speak of ex-
ceptio doli, transactions and the like in bonae fidei indicia, but these do
not, mostly, imply express exceptio and those which do are commonly
thought interpolated5. We are not told of other exceptiones that " bonae
fidei iudiciis insunt"; on the other hand they are nowhere said to be
necessary. In view of the large use of exceptio doli to introduce other
defences 6, and of the fact that exceptio doli could be used as alternative
to other exceptiones, e.g., rei venditae et traditae, it would seem that the
principle was true of all equitable exceptiones7. In Ulpian's time, if the
text is genuine, the exceptio doli could replace any exceptio in factum9,
and we know that such exceptiones as that e lege Cincia could be replaced
by an exceptio in factum9, so that it is possible that almost any exceptio
could be understood in indicia bonae fidei if the plaintiff was aware of
the existence of the defence. Indeed Ulpian's language seems to go
beyond this. It is dolus to continue a claim even though it was begun
in good faith, on discovering the facts which exclude it10. But apparently

1 See Monro, de furtis, App. n, as to condictio furtiva. 2 Ante, § ccxvn. 3 Vat.
FT. 94; D. 2. 14. 7. 5, 6; 10. 3. 14. 1. 4, Ib. See 50. 17. 116. * 5 E.g. 24. 3.

49. 1, compared with Vat. Fr. 94; Bethmann-Hollweg, C.P. 2. 284. 6 Compenmtio,
post, §ccxxxvm; in the law of accessio, ante, § Lxxvm; more widely under Justinian,
Beseler, Beitrdge, 1. 108. 7 See for a number of instances, Accarias, Precis, 2.

1074. 8 44. 4. 2. 5; Beseler (Beitrdge, 1. 107) thinks it due to Justinian. See also

Biondi, Indicia Bonae fidei, 3 sqq., who holds that only doli, pacti, metus and rei iudicatae
were so implied. 9 Vat. Fr. 310. 10 44. 4. 2. 5. The limitation at the end

of the text is supposed by Pernice, Labeo, 2. 1. 250, to be interpolated. But it is not safe
B. B. L. 43

674 IUDICIA STRICTA, BONAE FIDEI [CH.

the exceptio rei iudicatae had always to be pleaded1. On these points
rei vindicotio was on the same footing as stricta indicia2.

(ii) In stricta indicia the literal meaning of words must be taken,
while in indicia bonae fidei account might be taken of terms usually
implied, of customary interpretation of words, and so forth3.

(iii) The rules of compensatio were different4.

(iv) The rules of pacta adiecta were different5.

(v) In bonae fidei indicia interest was due from mora6. In stricta
indicia it could not be recovered at all, even from litis contestatio7. If it
had been agreed for, this was a separate contract8. The case of legacy
was an exception9. Gaius says that Julian held, and others were coming
to his view, that in sinendi modo, interest was due from moraw. Paul
applies this to all legacies11. They were certainly claimed by a strictum
indicium12. As the action on 1. sinendi modo was for an incertum, " quid-
quid dare facer e oportet13," there was no formal difficulty in including
interest. It was no doubt a question of the testator's presumed intent,
but, though Paul is quite general, it is difficult to apply the notion to a
legacy of a certain sum, where the intentio would be for that sum. Under
Justinian when the formula was gone there was no procedural difficulty.
In rei vindicatio there was no question of interest.

(vi) In bonae fidei indicia, fructus were due from mora; in stricta
indicia from litis contestatio. This was laid down on equitable grounds by
the Sabinians and accepted by the later classics14. As this could not apply
to claims of certa pecunia, there was no procedural difficulty. In legacy15
the history is as in the case of interest16. In rei vindicatio fruits were
always due from litis contestatio17. In hereditatis petitio, however, all
existing fruits could be recovered in the same action, under the sc.
luventianuml8, and the mala fide possessor of the hereditas must account
for all fruits19.

(vii) The distinction in reference to the rule " omnia indicia absolu-
toria" has already been considered20.

(viii) The mode of estimation of damages varied so much in different
cases and circumstances that this has been most conveniently dealt with

to infer from interchangeability in indicia stricta, which in any case involves raising in
iure, to equal treatment in indicia bonae fidei which does not.

1 E.g. 44. 2. 22. Biondi, op. cit. 38 sqq., holds that rei iudicatae was implied and
that this text refers to the formula infactum. 2 E.g. 44. 4. 4. 7. 3 21.1.31.20.

4 Post, § ccxxxvm. 5 Ante, § CLXXXII. 6 Ante, § CLXXXVUI. 7 Ib.

8 19. 5. 24. 9 In fideicommissa interest was due from mora, but these cases were

not tried by formula, ante, § ccxxv. 10 G. 2. 280. 11 P. 3. 8. 4. 12 G. 2. 204.
13 G. 2. 213. 14 22. 1. 38. 1, 7, etc. 15 And fideicommissum. 16 G. 2.

280; P. 3. 8. 4. 17 Ante, § ccxxvm. A mala fide possessor was liable for all fruits,

but in a different action, i.e. a vindicatio of the fruits. 18 5. 3. 20. 6, 6 a. 19 5.

3. 20. 6 c. 20 Ante, p. 673.

xiv] CONDICTIO 675

under the obligations themselves. But Ulpian tells us that in stricta
indicia the interesse was to be valued as at litis contestatio, in bonae fidei
indicia as at judgment1. This is said in connexion with iuramentum in
litem. The plaintiff in swearing the value might include considerations
which did not exist at litis contestatio, and no doubt the index might do
the same. If in such cases the thing was less in value at time of j udgmcnt,
from a cause not imputable to the debtor under the rules of his liability,
this would benefit him. But this was applied, in later law at least, in
stricta indicia also2, and in rei vindicatio3.

Delictal actions do not seem to have been regarded as stricta indicia,
In the case of furtutn it must be remembered that there was an inde-
pendent actio ad rem persequendam. If vindicatio was brought, the thief,
a mala fide holder, was always in mora. If condictio was brought, this
was quasi -contractual; its special rules have already been dealt with4.
But in rapina there was no other action. It was however in factum, and
the rules making the interesse cover lucrum cessans and damnum emergens
cover the principal points. The same is true of the Aquilian action,
which was in ins. There could hardly be a question of equitable exceptiones
and pact was a complete defence. The actio iniuriarum was in factum
and "ftc bono et aequo" a class to be considered later5.

CCXXX. Condictio. Most stricta indicia (confining the term to
actions in personam), but not all, were condictiones. The name condictio
seems to be primarily used to denote an action of which the funda-
mental notion was readjustment of relations where one man was un-
justly enriched at the expense of another, as in condictio in deb it L6. The
action on stipulatio for an incertum was not condictio; it was actio ex
stipulatu1; that on legacy per damnationem or sinendi modo was not
condictio; it was the actio ex testamento8. Both these set forth the " causa"
of the obligatio in the intentio, but it was the characteristic of condictio
that it did not9. Thus the intentio of an action on a money loan runs:
"si paret Nm. Nm. Ao. Ao. HS. 10 dare oportere." It is not clear how
the index was informed of the exact issue; it can hardly have been by a
praescriptio or demonstratio, for the language of Cicero shews10 that the
plaintiff could prove any stricti iuris obligatio of the amount claimed11.

There was only one action called condictio; it was a general action
with many applications. There is little doubt that in the formulary

1 13. 6. 3. 2. 2 1H. 3. 12. 3; h. t. 14. 1. 3 6. 1. 16. pr. As to actions in

factum (post, § ccxxxi) which do not appear to be under either of these heads, the damage
was sometimes estimated as at I. c., quanti ea res est (e.g., constitutum, Lenel, E.P. 245),
and sometimes at judgment, quanti ea res erit (e.g., metus and dolus, Lenel, E.P. 110 sq.).
4 Ante, §§ CLXXXVII sq., cxcvm. 5 Post, § ccxxxi. 6 Not a general

principle, ante, § CLXXXVII. 7 Lenel, E.P. 147. 8 Ib. 355. 9 Ib. 230,

actio certae pecuniae creditae. 10 Pro Rose. com. 4, 5. 13-16. 11 See ante, § crxxi.

43—2

676 CONDICTIO [CH.

system the name condictio was first applied to claims of a certain sum
under a iure civili obligation, i.e. in just the field of condictio e lege Silia.
Indeed the fact that in the later action there was or might be a sponsio
of one-third of the sum in dispute is the chief evidence that this existed
in the old condictio1. But this action is called actio certae pecuniae
creditae2, the name condictio for it cannot be found before the great
jurists3. This suggests that legis actio per condictionern did not disappear
till the //. luliae, when the new use became possible without confusion 4.

The texts distinguish different cases of condictio by different names.
One set of names turns on the "causa," the facts which gave rise to the
action, e.g., C.furtiva, indebiti, etc. This grouping is of little importance
from the present point of view; as the intentio said nothing about the
causa, the names are no more than convenient labels for use in treating
the substantive law. The names C. furtiva and indebiti are no doubt
classical5. C. ex lege6, ex poenitentia 7 and the oddly-named C. causa data
causa non secutas are not classical. C. ob rent (or causam) dati* (or datorum)
and C. sine causa10 are probably classical. Though this multiplicity of
names has its uses it obscures the fact that in all its applications condictio
was one action.

The other distinctions, according to the nature of what was claimed,
are more important. From this point of view we get C. certi, certae
pecuniae, triticaria, incerti. But of this terminology the surviving classi-
cal texts shew no trace. The names are rare even in the Digest, and it is
maintained that all the texts shew signs of interpolation11. It is thus
uncertain wrhat the classical terminology really was. Some texts appear
to confine the name C. certi to actions for certa pecunia12, the actio certae
pecuniae creditae. This fact, coupled with the language of Gaius13, has
led to the view that when the name condictio was first applied to these
claims for a certuni there were the two names, c. certae pecuniae and c.
certae rei, which last acquired in later law the name c. triticaria1*. On
the other hand it is now generally agreed that the rubric in the Edict,
"si cerium petetur, " covered both certa res and certa pecunia, which would
thus both be varieties of c. certi. But it is uncertain whether any of
these names was in use in classical law. The condictio for certa res had
two forms, that for a specific thing and that for a specific quantity, to

1 Ante, § ccx. 2 G. 4. 13. 3 Cicero knows nothing of it. As to the termino-

logy, see Lenel, E.P. 227 sqq. 4 See Wlassak, Rom. Processg. §§ 10 sqq.

5 They are not found in classical texts independent of Justinian. 6 13. 2, rub.

7 Gradenwitz, Interpolationen, 146. 8 D. 12. 4. The name is not easy to translate.

It seems of little use in view of the cond. ob rem (or causam) dati which may be classical.
9 12. 6. 65. pr. 10 12. 7. As to the narrow and wide significances of this name and
on the scope of these condictiones generally, see ante, § CLXXXVH. 11 See Girard,
Manuel, 502. 12 12. 1. 9. 3; 46. 2. 12, both probably interpolated. Pernice, Labeo,

3. 211, n. 2. 13 G. 4. 50. 14 D. 13. 3.

xiv] CONDICTIO 677

which last alone the expression triticaria can properly apply. But this
name is almost certainly post-classical. The formulae for these cases were
set out in the Edict1. The inevitable differences, " dare, dare facere
(facere?) oportcre," would require a model for each. Hence specific
labels due either to the compilers or more probably to earlier post-
classical writers; terminology did not necessarily stand still in the
fourth and fifth centuries.

The so-called C. incerti presents difficulties. The action is of late
introduction, though not post-classical; the name is probably much
later2. As a stipulatio for an incertum or a service gave actio ex stipulatu,
stating its causa, and not a condictio, the field of this condictio was narrow.
But the texts provide many illustrations3. A vendor transferring land
omitted by error to reserve a servitude agreed on. C. incerti lay to have
it created4. It lay for release from an obligatio undertaken in mistaken
belief that there was a legal duty to undertake it5, and to recover what
had been given in precario6. Where by oversight a legacy had been paid
without security for the possibility of a Falcidian reduction, c. incerti
lay to have this given7. As to the formulation of this action, Lenel holds8
that, owing to its late introduction, no model of it appeared in the
Edict. He thinks that, like c. triticaria, it stated in the intentio the
specific render claimed; in the particular case of right to release he puts
it as " acceptum facere oportere," not of course stating the causa. On
another view the render was stated in a praescriptio, the intentio being
in " dare facere oportere9." The former view is most widely held.

Gaius appears to speak of the name condictio as applicable to all
actions in personam with an intentio " darifierive oportere10." This would
cover all indicia stricta in personam. A famous text attributed to
Ulpian, but mainly compilers' work11, speaks of condictio certi as available
wherever a cerium is due on any kind of obligatio, and instances, inter
alia, legacy, contracts re, and even actio e lege Aquilia. To this action
the name condictio generalis has been given12. A text in the Institutes13
makes a condictio available as a substitute for any of the actions in
solidum on a contract by slave or filiusfamilias. This has been supposed
to refer to the same condictio, but it is wider, for, here, the claim would
often be for an incertum. These texts involve a great widening of the
notion of condictio. The obligatio might be civil or praetorian, certain or

1 Lenel, E.P. 225 sqq.; Pernice, Labeo, 3. 1. 203. 2 See Lenel, E.P. 151 sqq.

3 For the following and others, Girard, Manuel, 627. 4 12. 6. 22. 1. 5 19. 1.

5. 1. 6 43. 26. 19. 2. 7 35. 3. 3. 10. 8 E.P. 151. 9 Bethmann-

Hollweg, C.P. 2. 272. 10 G. 4. 5. 11 12. 1. 9. pr., 1. 12 See Von Mayr,

Condictio, 246, 276. He holds, with Pernice and Mitteis, against Baron, that it is due to
Justinian. 13 Inst. 4. 7. 8. Pflueger, Z.S.S. 31. 168 sqq., shews Justinian giving

condictio where vindicatio is possible, apart from furtum.

678 ACT 10 CIVILIS, HONORARIA [CH.

uncertain, on a claim stricti iuris or bonae fidei and even on delict. It is
a single remedy under the name condictio for nearly all obligations, and
the language of the Institutes does not suggest open innovation. But
the nature and scope of the action, and even its existence, are the subject
of much controversy1.

The name indicium applied to the classes "stricta" and "bonae fidei"
must not be held to exclude arbitria, for the two most characteristic
arbitria, communi dividundo and familiae erciscundae, are in the list of
indicia bonae fidei. It has been suggested that all actiones arbitrariae in
personam and in ins were bonae fidei indicia, but the better view is that
the insertion of the arbitrium clause had no bearing on the point, though
it is quite likely that in later classical law the arbitrium clause might be
added in appropriate cases in a number of bonae fidei indicia2.

The whole classification may be left with the remark that while it is
clear that in classical law the distinction was merely one of formulation,
equitable defences being as admissible in the one group as in the other,
subject to their being expressly raised, the disappearance of the formula
with its strict rules of pleading rather confused this, but there seems to
have been no real change in principle.

CCXXXI. ACTIO CIVILIS, ACTIO HOXORARIA. The former gave
effect to a civil law claim, the latter to a right created by the magistrate3.
Of the first class many were based on express legislation, the XII Tables,
II. Plaetoria, Silia, Calpurnia and so forth, but many were juristic
creations. Thus the formulae in ins on commodatum and deposit, the
actio praescriptis verbis and others, were purely juristic. Of actiones
honorariae the great majority were praetorian4, but there were others;
the actiones redhibitoria and quanto minoris were established by the
Aediles5.

The very numerous actiones honorariae are found in all branches of
the law. They were of three types:

Actiones fictitiae6. These were actions in which some existing action
was extended to cases not within its rules, by a direction in the intentio
that the index was to proceed as if a certain state of facts existed, which,
if it did exist, would give the right. The actio Publiciana is a familiar
instance. The index was directed to give judgment for the plaintiff if
he would have been owner "si anno (biennio] possedisset7 ." Here the

1 See for discussion, Girard, Manuel, 623, 683. So far as Inst. 4. 7. 8 is concerned, it
appears to express a tendency already existing in classical times to give a condictio where a
contract had been made with slave orff. iussu palrisfamilias, the iussum being understood
to cover general authorisation to trade, i.e. the field of actio institoria. 12. 1. 29; 14.
3. 17. 5; 17. 2. 84 (interp.). The iu-ssum is thought of as a civil source of obligation.
2 Ante, § ccxxiv. 3 P. 5. 6. 10; Vat. Fr. 47 a; Coll. 2. 5. 5. 4 G. 4. 110-12.

5 Ante, § CLXXH. 6 G. 4. 32 sqq. 7 See G. 4. 36, where however the words

xiv] ACT 10 HONORARIA 679

index had to assume a certain event whether it had occurred or not. In
others an event which had happened was to be assumed not to have
happened, e.g. where an action was allowed as if a party had not suffered
capitis deminutio1. In some cases a legis actio was to be assumed as
having occurred, e.g. in the formula given to the publicanus2, where the
fiction was in an unusual form3. In some cases the party was feigned
to have some characteristic which in fact he had not, e.g. the actions to
or against bonorum possessor with the fiction "si heres esset4," and the
actio furti nee manifesti against a peregrine with a fiction "si civisb
Romanus esset," needed because statutes did not apply to peregrines
unless so expressed. More than one of these fictions might appear in a
formula, e.g. where a bonorum possessor of a deceased pledgee brought
the actio utilis e lege Aquilia. In some cases & formula was given "die
repetita," i.e. referred back to an earlier date than the actual. Thus
where in an actio ad exhibendum the res was usucapted during the action,
, and produced, the defendant was absolved only if he was prepared to
accept a vindicatio dated back to a time before usucapio was complete6.
We do not know the formulation, but it was probably by fiction.

IRutihsaa. formulae, in which one person was mentioned in the intentio
and another in the condemnatio. The simplest instance is the formula
Rutiliana in which a bonorum emptor'' alleged in the intentio a right of
the debtor and the condemnatio directed condemnation to the emptor,
or the claimant alleged a claim against the debtor and the condemnatio
was of the emptor. Another possible case is that of action against a
paterfamilias on contract by a subordinate, in which, on the dominant
view8, the intentio stated an obligation in the subordinate (with, if he
was a slave, the fiction, "si liber esset"") and the condemnatio was against
the paterfamilias. But this formulation is disputed. A third case,
needing separate consideration, is that in which a party proceeded by a
representative9.

Actions formulated in factum. All the foregoing were formulated
in ius; their intentio stated, either directly, or with help of a fiction, a
legal claim " oportere," "ius ei esse," etc. But in the present group the
intentio merely alleged certain facts and the index was directed to con-
demn if he found those facts, and otherwise to absolve. These actions
placed a great power in the hands of the praetor and clearly needed

"fingilur usucepisse" state the matter inaccurately. If usucapio were presumed there
would be nothing to try. All that is feigned is a certain lapse of time : the other require-
ments of usucapio must be proved.

1 E.g., ante, § CXLI (adrogatio). 2 G. 4. 32. It is possible that manus iniectio was
feigned in some cases. 3 As to possible inferences from the exceptional form, ante,

§ ccxm. 4 G. 4. 34. 5 G. 4. 37. 6 See post, § CCXLI. 7 Ante,

§ CXLTI; G. 4. 35. 8 Lenel, E.P. 269 sqq. 9 Post, § ccxxxix.

680 ACTIO HONORARIA [CH.

very careful and exact formulation. We have dealt with numbers of
them, e.g. actions on praetorian delicts1, actions on deposit, commodatum
and pignus2, on pacta praetoria9, the actio Serviana of the landlord4.
The most important question in regard to these actions is that of their
position in respect of the points which differentiate bonaefidei and stricta
indicia. Since the index had to decide on certain facts and no other it
seems that exceptiones would have to be inserted expressly. But there
is a small group of actions in factum in which the index is directed to
condemn in "quantum bonum aequum videbitur5." There do not seem
to be many of them6, and some no doubt became bonae fidei indicia
early in classical law7. It is likely that in the matter of equitable ex-
ceptiones they were on the same footing as bonae fidei indicia.

All these types of action were designed by the magistrate and in this
sense were actiones honorariae. But legislation is not always particular
about such distinctions. We have seen that, while nothing could be more
praetorian than bonorum possessio, the /. Papia Poppaea gave bonorum
possessio in certain cases8. The resulting actions while praetorian in
form were based on a statute. So too, in at least one case, a statute
gave an actio fictitia9. The statute adopted the praetorian remedy, but
it is difficult to call the action an actio honoraria10.

It must be noted that the expression actio in factum was not always
used in the technical sense. We have seen11 that it is by the assumption
that the name was used untechnically, to cover any action which
specified the material facts, however formulated, that the texts dealing
with praetorian extensions of the Aquilian action have been more or less
harmonised, and also that among the bewildering variety of names
given to the actio praescriptis verbis, several incorporated the element
tf in factum," though the action was formulated in iuslz.

In connexion with actiones honorariae the expression actio utilis
gives rise to some difficulty. The only proposition which can safely be
laid down by way of definition of such an action is that every actio utilis

1 Ante, § com. 2 G. 4. 47. 3 Ante, § CLXXXH. 4 Ante, § CLXVH.

5 See Lenel, E.P. 163, 168, etc. 6 We have no list. The recorded cases seem to

be injury to freeman by res deiectae (9. 3. 1. pr.), actio funeraria (11. 7. 14. 6), rei uxoriae
(4. 5. 8), damage by wild animal (21. 1. 42), iniuriarum (47. 10. 17. 2), sepulchri violati
{47. 12. 3. pr.), index qui litcm suamfacit (50. 13. 6, ? interp.). Other possible cases, Girard,
Manuel, 1037. 7 E.g., rei uxoriae, G. 4. 62. 8 Ante, § cxxxiv. 9 L. Rubria, xx;
Girard, Textes, 75. 10 An action might be in more than one of these classes, e.g.

Rutilian action by bonorum emptor on a claim giving an actio fictitia. 11 Ante, § cci.

Monro, I. Aquilia, App. 4. 12 Ante, § CLXXXI. It has indeed been contended, but with

little acceptance, that this is a mistake, that the expression actio in factum has nothing to
do with formulation but means any praetorian action, however formulated. But this
notion cannot be reconciled with the texts* Pokrowski, Z.S.S. 16. 7; 20. 99. See Erman,
M el. Appleton, 203. G. 4. 45 sqq.

xiv] IUDICIA LEGITIMA, IMPERIO CONTINENTIA 681

was an extension, on grounds of utility, of an existing action, and it is
probably true that it ordinarily contained in its formula some reference
to the parent action. It was usually honoraria in the strict sense, i.e. it
was praetorian both in form and origin. But this was not always so. The
later jurists no doubt applied the name to an extended action created
by juristic activity without the Edict, after the praetor had ceased to be
a source of law. An actio utills might be of any of the three types of
actio honoraria, and probably most actiones fictitiae might have been
called actiones utiles, though there are many to which the name was not
in fact applied. On the other hand there was nothing utilis, nothing
like extension of an existing action, in many actiones in factum. There
were indeed cases in which an actio in factum was itself extended as
utilis to new cases1. Thus the name does not fall in with the above
scheme of actiones honorariae and civiles, but cuts across it in nearly all
possible ways.

CCXXXII. IUDICIA LEGITIMA. I. QUAE IMPERIO CONTINENTUR
(IMPERIO CONTINENTIA}. ludicia legitima, in classical law, were, accord-
ing to Gains, those brought within a mile of Rome before "unus iudex,"
all parties being cives2. All others were imperio continentia. This had
nothing to do with other characteristics of the action. A purely prae-
torian action in factum would give a indicium legitimum if it satisfied
these requirements; an actio ex stipulatu would not, if it did not satisfy
them. The word indicium has been here used as meaning the procedure
before the index; the language of Gains in the above defining text cannot
apply to the whole hearing. It is however sometimes used to denote the
whole procedure, and it is maintained by Wlassak3 that this was its
original and proper meaning, that indicium was the name of the pro-
ceedings per formulam, as opposed to legis actio. As "legitimus" means
statutory he concludes that indicia legitima were those in which the
formula was issued under the directions of a lex*, so that imperium
played no part in it, from the Roman point of view, and that legis actio
had nothing to do with the conception5. Thus, for the first introduction
of indicia legitima, the lex in question was the /. Aebutia, which authorised
formulae generally, but did not command them in any case6. The limita-
tion to ewes, he holds, followed from the principle that a lex was essenti-
ally between cives, and the restriction to unus iudex merely expressed
the fact that unus iudex was the normal civil tribunal; the collegiate
courts being later and exceptional. The limitation to Rome was a mere
result of the fact that the only tribunal, that of the praetor, sat at Rome.
The ll.Iuliae substituting formula for legis actio were nearly contemporary

1 13. 5. 19. 1. 2 G. 4. 104. 3 Horn. Processgesetze, 1. ch. i. 4 Ib. 37 sqq.

5 Ib. 54 sqq. 6 Ib. ch. n, 103 sqq.

682 IUDICIA LEGITIMA, IMPERIO CONTINENTIA [CH.

with the I. lulia municipal-is, by which a uniform system of proce-
dure was laid down for municipalities, and Wlassak holds that there-
after a indicium in a municipality might be legitimum if it satisfied the
other requirements. Gains' limitation1 to Rome is to be explained by
the fact that he was writing of Rome and disregarded the municipalities
altogether.

Whatever be thought of this historical explanation2 the distinction
is clear and important, since the effects differed in many ways. Thus
adiudicationes in indicia imperio continentia gave only praetorian rights3.
A woman needed auctoritas tutoris to be a party to a indicium legitimum*.
A tutor praetorius was needed if such a indicium, arose between tutor and
ward5. A indicium legitimum was at once ended if a party suffered
capitis deminutio6. The old obligation being destroyed this was tanta-
mount to destruction of his right, to the advantage of the other; pre-
sumably there might be restitutio in integrum in appropriate cases.
Indicia imperio continentia, owing their force to the imperium of the
magistrate, ended at once if that imperium ended7. Indicia legitima
were not so determined. How they stood in this matter at first is not
clear, but by the /. lulia iudiciaria they were extinguished by the ex-
piration of 18 months from litis contestatio*. This extinction of the remedy
destroyed the right of the plaintiff, which had been novated by the
litis contestatio, either ipso iure or by the exceptio rei iudicatae vel in
indicium deductae9. It is disputed whether a naturalis obligatio
survived, but this is probable, since it survived judgment10. It
does not appear that there was any restitutio in integrum unless it
was obtainable on one of the recognised grounds11. In later classical
law the rule in the provinces was perhaps different. Paul, citing
Cervidius Scaevola, says that expiry of the magistrate's imperium did
not destroy the indicium12. But the text says "indices a praeside dati";
the reference may be to the practice of delegation and to cognitio
extraordinaria, which had then practically superseded the formula in
the provinces13.

1 Wlassak, op. tit. § 33; G. 4. 104. 2 It seems unlikely that Gaius should have

made so misleading a statement, especially in view of the fact that the frequency of his
references to provincial law has led to the view that he was a provincial. Probably the
conception had become fixed before the II. luliae; proceedings in a municipality might
have been thought of as indicia legitima, but in fact were not. 3 Ante, § xc. 4 Ante,

§ LX. 5 Ante, § LVI. 6 G. 3. 83. 7 G. 4. 104. 8 Ib. This rule has

nothing to do with the limitation of actions : it is not a rule as to the maximum time which
may elapse between the wrong and the proceedings. Post, § ccxxxm. 9 Post,

§ ccxxxv. 10 Ante, § CLXXXIX. 11 There might be actio doli in appropriate

cases, 4. 3. 18. 4. 12 5. 1. 49. 1. 13 Ante, § ccxxv. An enactment of Carus

(A.D. 282-3), C. 7. 64. 6, allows the praeses to fix a time within which judgment must be
given : if not so given it is void.

xiv] ACTIO PERPETUA, TEMPORALIS 683

The distinction between indicia legitima and others belongs entirely
to the ordo; there is no trace of it in later law. As to the time which
ended a indicium in the later system, we learn that Theodosius laid down
the rule that it must end within 30 years1, not the 30 years which limit
the right itself, but 30 years from litis contestatio. Justinian substituted
three years from commencement of proceedings2, with the proviso that
all that was destroyed was the action; there was nothing to bar a new
action on the facts3.

CCXXXIII. A CTIO PERPETUA , A CTIO TEMPORA LIS. In principle the
civil law had no statute of limitations; a right of action once accrued
was not affected by lapse of time. There were a few exceptions. Under
the XII Tables4 the action usually called the actio auctoritatis5 was
barred by lapse of the period of usucapio. By the /. Furia de Sponsu,
sponsores and fidepromissores were released, at any rate in Italy, by
lapse of two years6. The complaint that the details required by the
/. Cicereia had not been given must be raised within 30 days7. The
querela inqfficiosi testamenti had to be brought within a limit of time
which varied historically8. But praetorian actions break into two
groups: some were perpetuae, some were temporales (temporariae9). The
limit for temporary actions was nearly always an annus utilis, though
the actio redhibitoria was limited to six months10. Whether this means
an annus of dies utiles or an annus continuus beginning with the first
dies utilis is disputed11.

It is not easy to lay down a rule to determine what praetorian
actions were perpetuae and what temporales. In general, those purely for
compensation, or restoration, actiones ad rerti persequendam, were per-
petuae. But it cannot be safely said that other actions were temporary,
though Paul adopts from Cassius this basis, making penal actions tem-
porary12. But in the same text he states and also adopts another cri-
terion, i.e. the question whether the action was in furtherance or in
opposition to the civil law, and Gains expresses a similar view, observing
that furti manifesti, though praetorian and penal, was perpetua, as it
only replaced a civil law action13. The same is said of arborum furtim
caesarumu. A difficulty in applying the first of these criteria is that it
is not easy to say what was a penal action. The actio doli was penal,

1 C. Th. 4. 14. 1. 2 C. 3. 1. 13. This is of March 530: the Code contains enactments

of slightly earlier dates which seem to refer to the system of Theodosius, C. 7. 39. 9;
C. 7. 40. 1 e. Shorter periods, varied from time to time, for causes affecting the fi.scus.
C. Th. 10. 1. 4, 13; C. 3. 1. 13. 1; C. 10. 1. 11. 3 Apart from contumacia: a final decision
may be made against the contumacious party. 4 6. 3. Girard, Textes, 15. 5 Ante,

§ CLXXI. 6 G. 3. 121. 7 G. 3. 123. 8 Ante, § cxv. 9 G. 4. 110, 111.

10 Ante, § CLXXH. This is aedilician. 11 Ante, § cxcn. 12 44. 7. 35. 13 G. 4. 11 1.
14 47. 7. 7. 6.

684 ACTIO AD REM, AD POENAM PERSEQUENDAM [CH.

though only for restitution1. The actio ex testamento was not, though it
might involve double liability2. The fact that condemnatio may exceed
the defendant's profit is not decisive; this might happen in most actions.
It has been said that the jurists declared an action penal or not according
to the need of the moment without regard for consistency. Perhaps as
near as we can get is the proposition that an action was penal if its
primary object was the repressing of a wrong and the stigmatising of the
wrongdoer rather than a mere adjustment of property relations3. Thus
the actio doli, though only for restitution, made the defendant in/amis*.
But no test explains the cases. The actio iniuriarum was praetorian,
penal and annua5, though it could not be said to be, as Paul puts it,
"contra ius civile6." Sepulchri violati was praetorian and penal, but
apparently perpetual. So was the actio in duplum for res effusae9. The
actio depeculio annalis was praetorian and not penal9. In fact the matter
was one of express legislation in which it is not clear that any particular
principle was always followed. There is the further complication that in
some actiones annuae there survived an actio in factum to the extent of
enrichment10, and in some, the penalty being recoverable by an actio
annua, there survived an actio in simplum11.

In later law these principles were modified. Theodosius provided that
all the so-called actiones perpetuae should be subject to a time limit,
fixed at 30 years in ordinary cases, except for pupilli12. Further legisla-
tion fixed longer terms for specially privileged cases13, and no limit
applied to claims of the fiscus for taxes, from the collectors14. Further,
Justinian provided that the time limit where it was less than 30 years
was not to apply to minors15.

ACTIO AD REMPERSEQUENDAM.AD POENA M PERSEQUENDAM1*. This
distinction has been incidentally considered above. A few supplementary
remarks are needed. There was a class of actions both for a penalty and
for the "res"— Justinian calls them "mixtae." Such were the actio vi
bonorum raptorum, depositi miserabilis, the Aquilian action, etc. Jus-
tinian adds as an example the actio in duplum for a legacy to a religious
house17, but this is a mere extension, and limitation, of the rule for some
legacies18 per damnationem, and in classical law actiones in duplum contra
infitiantem were not on account of that alone treated as penal. These

1 Not available against heres, 4. 3. 26. 2 Ante, § cxxn. 3 It is not helpful

to say that it is penal if ex delicto — the question is: what is delictal? 4 4. 3. 11. 1.

5 G. 3. 224; Inst. 4. 4. 7; D. 47. 10. 13; C. 4. 35. 5. 644.7.35. 7 47. 12. 3. pr.

8 9. 3. 5. 5. 9 Ante, § CLXXXIV. 10 E.g. 42. 8. 10. 24, fraud on creditors.

11 E.g. 3. 6. 4, calumniae; 39. 4. 1. pr., publicanus qui vi ademit; Inst. 4. 2. pr., vi bonorum
raptorum. 12 C. Th. 4. 14. 1; C. 7. 39. 3. 13 E.g. 7. 39. 6, 7; Nov. 111. 14 C.

7. 39. 6. 15 C. 2. 40. 5. 1. As to interruption and suspension of prescription, ante,

§ cxcn. 16 Inst. 4. 6. 16 sqq. 17 Inst. 4. 6. 19. See Mitteis, Z.S.S. 37. 328 sqq.

18 Ante, § cxxn.

xiv] ACTIONS TRANSMISSIBLE OR NOT 685

actiones mixtae were penal for ordinary purposes; they were not available
against the heres, though there was usually, at least in later law, an
action to the extent of enrichment1.

In general where several were liable to a penal action each was liable
in full; if A and B had stolen, it was no defence to A that B had paid
fourfold. We have seen a modification of this where a man was liable on
delict of his subordinates2. But there were cases in which, apart from
vicarious responsibility, payment of the penal damages by one released
all, e.g., metus3, res deiectae et effusae*, servi corrupti5, de rationibus dis-
trahendis6, dolus7, and no doubt others, though in some of the cases the
restriction seems to be due to Justinian8. These are all what Justinian
calls "mixtae," and the rule represents a hesitation and perhaps changes
of view as to their character as penal or not9. These cases must be dis-
tinguished from condictio furtiva subject to the same rule10: this was
probably correal in classical law, since it was civil and ad rem perse-
quendam, while these were praetorian and penal.

ACTIONS TRANSMISSIBLE OR NOT TO OR AGAINST THE HERES. The

general principle was that actions rei persequendae causa were available
both ways, while penal actions were available to the heres, but not
against the heres of the wrongdoer (unless they had reached litis contes-
tatio) except to the extent of enrichment11. But there were many ex-
ceptional cases. The right of action of the adstipulator did not pass to
the heres12, nor did the querela inofficiosi testamenti13 or the wife's claim
in actio rei uxoriae1*. Conversely the liability of sponsor andfideipromissor
did not pass to their heredes15.

As to penal actions, there is no case in which the heres was liable for
the delict of the ancestor, though there was a gradual extension of the
principle that he could be sued to the extent of his enrichment by an
action the nature of which is disputed16. The action against the heres

1 4. 2. 16. 2; 44. 7. 35, etc. 2 Ante, § ccv. 3 4. 2. 14. 15. 4 9. 3. 1.

10-3. 5 11. 3. 14. 2 (? interp.). 6 26. 7. 55. 1. 7 4. 3. 17. 8 E.g. 11.

3. 14. 2. The rule makes them solidary. The case in 9. 3. 1. 10-3 looks as if it was correal
in classical law; there is not necessarily any personal delict. But as to dolus and metus,
see ante, § ccm. 9 See Girard, Manuel, 408, n. 1. 10 C. 4. 8. 1. 11 Inst.

4. 12. 1. 12 G. 3. 114. 13 Ante, § cxrv. 14 Ulp. 6. 7. The fact that heres
of fructuary could not sue for the usufruct does not turn on this principle: it is interilus rei.
Ad exhibendum was not available either way though heres might be liable or entitled to it
personally, 10. 4. 12. 6. 15 G. 3. 120. 16 Logically it would be c. sine causa,
47. 8. 2. 27. See Girard, Manuel, 407, n. 3. The notion is classical, its applications gradually
widened, see Francisci, cited Girard. It is a settled general rule under Diocletian, Hermoij.
Wisig. 2. 1. Albertario (Bull. 26. 112) seems to hold it nearly always due to Justinian,
but is very ready to see interpolations. The introduction of the principle by Cassius is
asserted by Venuleius (42. 8. 11), and though Pernice thinks this unlikely (Labeo, 2. 1. 199)
there is much evidence of his activity as a magistrate apart from this. 29. 2. 99; 44. 4. 4. 33;
C. 4. 6. 26. 7. It is not clear why the whole story should be supposed untrue.

686 ACTIO DIRECTA, ADIECTITIAE QUALITATIS [CH.

of a municipal magistrate who had failed by dolus or gross negligence to
take proper security from a tutor1 was no exception; it was a quasi-con-
tractual action, available against the heres on ordinary principle. Con-
versely there were a few actions in which the heres could not sue on
delict to his predecessor, e.g., iniuriarum2, de mortuo inferendo3, the
action for unauthorised in ius vocatio of a parens or patron4, and in a
case of fraud, calumniae causa5. The rule applied to bringing the action,
not to continuing one which had reached litis contestatio.

CCXXXIV. ACTIO DIRECTA, ADIECTITIAE QUALITATIS. The latter
name is a modern invention to mark off a group of actions in which a
paterfamilias or employer was made responsible for acts of subordinates.
Such were de peculio et in rem verso, tributoria, quod iussu, institoria,
exercitoria, the actio ad exemplum institoriae in mandate, in all of which
it seems that the name of the subordinate appeared in the intentio and
that of the principal in the condemnatio. Such also were the various
noxal actions, in which the name of the paterfamilias appeared in the
intentio*. The classification not being expressly stated by the Romans,
views differ as to the cases properly coming under the class of actiones
adiectitiae qualitatis. The actio de pauperie and the analogous aedilician
action do not correspond to any direct action, but the former at least
resembled a noxal action in some points. Probably the class ought to
cover the liabilities for employees of nautae caupones and stabularii7, and
the special liabilities ofpublicani for their servants8, but the classification
has little importance9.

ACTIO IN SIMPLUM, DUPLUM, TRIPLUM, QUADRUPLUM. There was 11O

1 Ante, §LIX. 2 47. 10. 28. 3 11. 7. 9. 4 2. 4. 24. 5 3. 6. 4;

ante, § ccxvin. 6 Lenel, E.P. 102, 319. 7 Ante, § cciv. 8 Ante, § ccv.

9 The expression actio directa used in this connexion to denote proceeding against the
actual wrongdoer (G. 4. 77) is also used in other senses. Thus we have actio directa as opposed
to actio utilis, e.g. under the 1. Aquilia, Inst. 4. 3. 16; the actio directa as opposed to actio
fictitia, G. 4. 34 ; the actio directa as opposed to the actio ad exhibendum which is a prepara-
tion for it, 10. 4. 3. 13; an actio directa as opposed to one resulting from restitutio in inte-
grum, 16. 1. 8. 13 (cp. C. 3. 32. 24), and no doubt others. Directa as opposed to contraria
does not seem to be usual. We find principalis (13. 6. 17. 1) and recta (h. t. 18. 4). It must
be noted that there are indications in classical times of formulae in which the intentio
was for mutual obligations (alterum alteri d. f. oportere, ex f. b.). See Cicero, de Officiis,
3. 17. 70; Top. 17. 66; G. 3. 155. These have been usually held to be distinct formulae,
perhaps issued together, but it is maintained by Partsch (Negotiorum Gestio, 50 sqq.) that
in classical law indicium contrarium means a, formula in which the intentio states the mutual
obligation and that this was the method employed in tutela (ante, § LIX), commodatum,
deposit, pignus fiducia, but not it would seem mandate. The independent actio contraria
is on this view a Byzantine institution. P. also holds that it is only where the formula
is of this independent type that condemnatio in the iud. contrarium does not involve infamy.
For some critical observations, Bortolucci, Butt. 28. 192, n. 4. For a view accepting the
intentio expressing mutual obligations in a somewhat different list of cases, including
mandate, and excluding the name iudicium contrarium in such cases for classical law, see
Biondi, Indicia bonae fidei, 59 sqq.

xiv] ACT 10 IN SOLIDUM, NON SEMPER IN SOLIDUM 687

action for more than fourfold, though the Aquilian action, since it gave
the highest value of the res within a year before, might give damages of
more than four times the real interesse. Actiones ad rem persequendam
were normally in simplum, though sometimes in duplum contra infitian-
tem, e.g., actio ex testamento1 . Many penal actions were in simplum, e.g.,
doli. Many were in duplum, e.g., furti nee manifesti, servi corrupti, and
the Aquilian action contra infitiantem. Actiones in triplum were few.
Justinian mentions only a new one introduced by him for a case of plus
petitio2. The cases of furti concepti and oblati were obsolete. Fourfold
actions were numerous, but the actio metus differed from the others,
e.g., furti manifesti, in that it was arbitraria; the penalty was incurred
only if restitution was refused in the action3.

ACTIONES QUIBUS IN SOLIDUM PERSEQUIMUR*, QUIBUS NON SEMPER
IN SOLIDUM PERSEQUIMUR. The latter class were of various types. In
some the condemnatio was confined within a certain fund, e.g., de peculio
et in rem verso5. In the actions in which a heres was liable to the extent
of enrichment there may have been a restrictive clause in the condemnatio,
such as " dumtaxat in id quod ad eum pervenit6." Justinian includes in
the class those actions in which there was a set off7, but this would
include, potentially, nearly all actions. The cases in which an actio in
factum to the extent of enrichment survived an actio annua would be
another example8. A type distinct from all these is found in the actions
in which the condemnatio was limited to the defendant's means: "in id
quod facere potest" the so-called beneficium competentiae9 . The chief
cases of this were, the debtor who had suffered bonorum venditio, in any
case for one year10, but with previous cessio bonorum, perpetual11, action
against a patron or ascendant12, actions against one who made a con-
tract while in potestate and not heres to his paterfamilias13, pro sociou,
action against a miles15, action for dos against the wife or her paterfamilias,
or for recovery of dos from the husband16 (in later classical law any action
between husband and wife17), and action against donor for the gift18.
The principle applied only to contract and quasi-contract. In estimating
the estate there was in general no deduction for debt to other persons
(occupantis potior est causa)19, though there were cases in which some
debts were deducted20, and in that of donor sued for the gift, all debts

1 Ante, § cxxn. 2 Inst. 4. 6. 24. 3 Ante, § com. 4 Inst. 4. 6. 36.

5 Ante, § ccxxiv. 6 If the action was c. sine causa, the limit would be probably in

the intentio: if on the delict, as is suggested by some texts (4. 2. 16. 2), some such taxatio
as this would be needed. 7 Inst. 4. 6. 39. 8 Ante, § ccxxxra. 9 Zanzucchi,

Bull. 1918, 61 sqq. 10 Ante, § ccxix. 11 Inst. 4. 6. 40; D. 42. 3. 4. pr.

12 Even mother of children volgo concepti, 42. 1. 16; Inst. 4. 6. 38. 13 14. 5. 2. pr.

14 Inst. 4. 6. 38; D. 42. 1. 16; cp. h. t. 22. 1. 15 42. 1. 18. 16 24. 3. 15. 2-17;

42. 1. 20. 17 42. 1. 20. 18 42. 1. 19. 1; Inst. 4. 6. 38. 19 42. 1. 19. 1, other

than judgment debts. 20 Socii, 17. 2. 63. 3; emancipatus, 14. 5. 3.

688 ACTIO POPULARIS, PRIVATA [CH.

were deducted1, except those also due as gifts. "Quodfacere potest"
was not the same in all cases; in general it was literally taken, but a
donor was allowed to retain the necessaries of life2, and this may have
been generalised under Justinian3. In the case of cessio bonorum it is
probable that the same rule applied in classical law.

The whole debt having been brought into issue, it was destroyed by
litis contestatio. Accordingly, to protect the creditor, the index required
the debtor to give security by verbal contract to pay the rest when he
was able. We are told this of pro socio*, and, for Justinian's law, of
action for recovery of dos5. The language of these texts does not indicate
a universal principle, and it may be that in some cases, e.g. in that of
donatio, the rule did not apply, and the right was exhausted.

We have seen that this defence is said in some texts to have been
raised by exceptio6, but it is generally held that it was in effect a taxatio,
raised by some such words as " dumtaxat in id quodfacere potest" in the
condemnatio1. There is however evidence that it was not expressed in
the formula at all in the actio rei uxoriae8, which Lenel considers to have
had an exceptional formula in ius expressing the duty as "dotem redder e
oportere," the direction to condemn being subject to "quod aequius
melius erit," which he thinks to cover this point9.

ACTIONES POPULARES, PRIVATAE. In ordinary cases there are, even
before the litigation, an assignable plaintiff and defendant. But the
Roman Law, like other systems, recognised cases in which, the facts
being such as to affect public interests more or less, any member of the
public might bring the action, in some cases keeping the damages or
penalty10, in others keeping none, or only a small part as a reward11. The
former class, which was small, was the most important in private law.
It included sepulchri violati12, some cases of res deiectae13, res suspensae1*,
and albi corruptio15. The latter, a numerous class, is mostly concerned
with local by-laws and the like.

These actions were all penal, and those specifically mentioned above
were all praetorian, and. like most other praetorian penal actions,
annuae. But since no one had in general any special right to the action
(though in res deiectae and sepulchri violati there were preferences in

1 42. 1. 19. 1. 2 Ib. 3 50. 17. 173. pr., Paul, which is a generalisation by

Justinian of 42. 1. 19. 1, also of Paul. 4 17. 2. 63. 4. 5 C. 5. 13. 1. 7. 6 Ante,

§ccxxm. 7/6. 824.3.12. 9 E.P. 298. 10 See nn. 12-15. 11 Karlowa,
R.Rg. 2. 979. Instances I. mun. Tare.nl. 4; Girard, Textes, 65; I. Col. Genetivae, 73; ib. 94.
Cases in which it is fairly divided, as in our "qui tarn" actions, occur. The penalty for
breach of the edictal rules as to the opening of wills is divided, 29. 5. 25. 2. The cases in
which the penalty goes to the State are mostly statutory, and to those in which the action
is really pro populo, the name actio popularis is not expressly given. Sometimes only a
local magistrate can bring the action; see Karlowa, R.Rg. 2. 980 sqq. 12 47. 12. 3. pr.

13 9. 3. 5. 5. 14 9. 3. 5. 13. 15 2. 1. 7. pr.

xiv] LITIS CONTESTATIO 689

case of competition1) they could not be said to exist as assets till litis
contestatio. Thus there was no question of transmission to heredes, and,
as penal, they were not available against heredes2. There could be no
representation on the part of plaintiff, and thus no cessio actionis3. They
could not be brought by infames*, nor, except in cases where relatives
were preferred, by women or pupilli5.

CCXXXV. We have now to consider in more detail some important
points in the course of an action which have as yet had only incidental
mention.

LITIS CONTEST A TIO. The point at which this critical stage in the pro-
ceedings occurred, and the conception of it as a contract between the
parties, have already been considered6. We have now to state its main
effects.

(i) Destruction of the old obligation. Here there is an important
distinction to be drawn. In one class of actions, legitima indicia in per-
sonam, formulated in ius, the old obligatio was destroyed "ipso iure,"
i.e. it no longer existed, so that if the action was renewed the intentio
could not be proved; there was no obligatio'7. In other actions of any
kind, real or personal, infactum or in ius, legitima or imperio continentia,
though the prae-existing right or obligation was destroyed, this was
only iure praetorio, by the help of an exceptio rei iudicatae vel in indicium
deductae8. Gams tells us9 that in the legis actio the destruction was
always ipso iure, exceptiones not having been in use as under the formula.
In the older system there is no reason to suppose that the bar had any
relation to the theory of novatio necessaria, a notion of a developed
jurisprudence. It rested on the simpler notion, non bis in idem10 — an
issue once decided must not be raised again, a principle common to
most systems of law. This must have been the governing principle in
real actions, where there was no obligatio, and in actions in factum, in
which no obligatio was expressly brought into issue. The question arises
why in real actions the bar was only praetorian. The view, in itself not
very probable, that there was no bar in these cases in the legis actio,
seems excluded by the general language of Gains u. The system of ipso
iure destruction was in fact applied only where the notion of novatio
was possible, i.e. in formulae in personam and in ius, and of these, only

1 47. 12. 6; 9. 3. 5. 5;cp. 47. 23. 2, 3. 247.23.8. 347.23.5. 447.23.4.

5 47. 23. 6. 6 Ante, § ccxv. 7 G. 3. 180 sq.; 4. 106, 107. 8 Ib.

9 4. 108. 10 Eisele, Abhandlungen, 113. 11 It has also been suggested (see ante,

§ ccxrv) that the I. Aebutia did not allow the formula in real actions, so that these would be
on a different footing. But this is not generally accepted. If, as is sometimes held, litis
contestatio in the legis actio was at its beginning, it is clear that the barring effect could not
bear any relation to novatory effect, but must have been due to the independent rule non
bis in idem, which barred repetition of a legis actio. See also on the question, Graden-
witz, Aus Rom. und Burg. JR. 392 sqq., 402 sqq.

B. B.L. 44

690 LITIS CONTESTATIO [en.

to those to which it could have been thought of as applicable in early
law, i.e., legitima indicia. It is probable that in all cases in the early
formula there was a praescriptio, and that it was only with the appear-
ance of the exceptio, as we know it, that the sharp line appeared between
consumptio ipso iure and ope exceptionis.

The exceptio rei iudicatae vel in indicium deductae appears as one in
Gaius1, and it is widely2 held that they were in fact but one. But since
every case decided must have been in indicium deducta the purpose of
the "rei iudicatae" element is not plain. On the view that they were
distinct exceptiones it has been maintained3 that, before the I. lulia,
since a iudicium legitimum was not barred by lapse of time, only the
exceptio rei in i. ded. was here available, as a judgment was the inevitable
result. But in others there might be no judgment, as the expiry of the
magistrate's imperium might destroy the iudicium. Here justice required
that further action should be barred only by judgment. Hence the
exceptio rei iudicatae; the two exceptiones thus referred to distinct classes
of action, and one class of indicia legitima supplied a third type, in which
the bar was ipso iure, i.e. those in personam, in ius. When the 1. lulia
introduced the risk of expiry by time (18 months) for indicia legitima*,
it seems on this view that the exceptio rei iudicatae ought to have applied
to both the types, and the other to have disappeared, but in fact we
find both exceptiones (or both halves) applied in both cases. If we accept
Lenel's formulation for the time of Julian, it does not follow that it was
originally the same, and Eisele's view might explain the evolution,
though the positive evidence is not strong. Of the retention of both
halves and the placing of rei iudicatae first, though it is included in the
other, Lenel's explanation5 is that the parties used only the portion
relevant to the case, and as in most cases the previous litigation would
have reached judgment, rei iudicatae was most common6.

Modern writers have distinguished from this, which may be called
the normal function of the exceptio rei iudicatae, a "positive" function,
i.e. not merely a bar to the same action between the same parties, playing
the same parts, but as enforcing the principle, as between parties bound
by the judgment, that the content of the judgment must be assumed to
be true. This is based7 on texts giving exceptio rei iudicatae, e.g. where a
defendant B in rei vindicatio was defeated by A and afterwards vindi-

\ G. 4. 106, 107. 2 Lenel, E.P. 486 sqq. 3 Eisele, Abhandlungen, 1 sqq.

4 G. 4. 104. 5 E.P., loc. cit. 6 If the case is decided for the plaintiff, in real

actions, there is a pronuntiatio rather than a judgment: it has been suggested that here the
exceptio would be "rei secundum se pronuntiatae" the texts which speak here of res iudicata
being on this view interpolated. Little evidence is offered. Beseler, Beitrage, zur Kritik,
2. 139. See hereon Mitteis, Z.S.S. 33. 206 sqq. 7 Keller- Wach, C.P. 363. See,

against the "positive" function, Eisele, Z.S.S. 35. 326.

xiv] LITIS CONTESTATIO 691

cated1, though the issue was not here the same. In the first case the
question was whether the thing was A's; in the second it was whether it
was B's. As Julian says, the decision that it was A's negatived the view
that it was B's and thus A could plead res iudicata2. Gaius uses similar
language3, observing that if in the first case judgment went for the
defendant and he afterwards sued for some of the property in the hands
of the plaintiff, the first suit proved nothing for the second; proof that
it was not ^4's was no proof that it was B's. This merely expresses the
true principle of the exceptio, as stated below. But where the exceptio rei
iudicatae was used by the loser in the previous litigation there was a
replicatio "rei secundum se (plaintiff) iudicatae'1."

We are told that there must be identity of Res, Causa and Person5
but this needs defining. Eadem res means the same object6. It need
not be the same formula— actio infactum on deposit would bar actio in
ius on the same facts. It need not be the same action, if the point was
the same7. But the point must be the same; thus, vindicatio would not
formally bar condictio furtiva8. The language twice quoted by Ulpian,
from Julian9, requires " eadem quaestio10," i.e. the question which it is
now proposed to submit to the index must have been in substance
already submitted to a index, so that a decision in the second case would
necessarily be a decision on a point already decided. As Paul put it11:
"singulis controversiis singulas actiones sufficere." The causa, i.e. the
basis of claim, must be the same, but here a distinction is to be drawn.
Real actions brought in and barred future action on all possible causae
of the claim 12, except where the claim was expressly limited to a specific
basis13. This did not of course bar action on a title accruing subsequently
to the first action14, or action against the same defendant on a subse-
quently accruing basis of liability15. But Paul, in a corrupt text, says
that personal actions are different; each causa has its action16. This
seems however to mean little more than that a claim for a debt will not
bar a claim for another debt of the same amount. A claim misdescribed
in the demonstratio can be brought again, for the real claim has not been
in issue17, and the practical result is the same if in the intentio a causa is
stated which is not the real one. But there are difficulties in the case of
condictio, where the causa is not stated18. The parties must be the same.

1 44. 2. 30. 1. 2 3. 3. 40. 2. 3 44. 2. 15. 4 44. 2. 9. 1. 5 44. 2.

27. Cp. h. t. 12-14. 6 In 44. 2. 12, 13 this appears as idem corpus, idem ius, eadem

quantita-s, but this last is not necessary, h. t. 7. pr. 7 44. 2. 3, 5, 8, 25. 1. 8 44. 2.

31; cp. 5. 3. 47; C. 3. 31. 3. 9 44. 2. 3; h. t. 7. 4. 10 Perhaps the word is interpo-

lated, Beseler, Beitrdge, 2. 144; 4. 266. 11 44. 2. 6. 12 44. 2. 11. 1; h. t. 14. 2.

13 44. 2. 11. 2; h. t. 14. 2. 14 44. 2. 11. 4, 5; h. t. 25. pr. 15 44. 2. 9. pr.;

h. t. 17 ;h. t. 18. 1644.2.14.2. 17 Ante, § ccxxi. 18 Ante, § ccxxx. The

question if, and, if so, how, the issue submitted to the index was limited in these cases,
is very obscure.

44—2

692 L1TIS CONTESTATIO [CH.

This means juristic identity1. The exceptio affected a successor in title,
but not a predecessor in title2. It covered a representative where
the case had already been brought by or against the principal, and,
subject to what will be said later, vice versa?. It covered the cases of
principal and surety4 (apart from fideiussio indemnitatis, where it was
clearly not eadem res5), and that of correi6. In later classical law there
was an equitable extension in which identity of party is difficult to see.
If the person primarily interested stood by and let judgment proceed
when he could have intervened to protect his own right, he was bound
by the judgment, e.g. pledgee who knew that the debtor was being sued
for the thing, vendee in possession allowing vendor to be sued for the
thing, husband allowing the wife or her father to be sued for a res
details'. Further it appears that if a will \vas upset at civil law, as
inqfficiosum or as ruptum or irritum, so that legacies, etc., failed, the
decision was binding on legatees, etc., though not on other persons
claiming the hereditas either independently of the will concerned, or not
themselves joining in the suit8. A more remarkable extension existed
in some questions of status. In claims for or against liberty, or ingenuitas,
and some others, a decision was good not only against the actual party
but against everyone9, not in the sense that the man was conclusively
held to be slave or free, or so forth, at the time of the judgment, but
that any claim to the contrary must be independent of those then set
up. This enlarged force of the judgment affected other rules. It applied
only where there was a iustus contradictor™. There was special machinery
to deal with collusion11, and the obscure rule as to repetition of causae
liberates12 was probably in some way connected with it.

The language of Gaius puts rei in indicium deductae and rei iudicatae
on the same footing, as applying over the same field and, in general,
this was so, at least in his time. The law of compensatio provided an ex-
ception. A index need not take compensatio into account. If he did, and
allowed it, or rejected it as not properly due, future claim of it would be
met by exceptio rei iudicatae. If he refused to consider it at all, it had

1 Thus a claim by or against a man as tutor would have no effect on his rights or
liabilities in his personal capacity. 2 44. 2. 4; h. t. 9. 2; h. t. 11. 9; h. t. 28. See

44. 2. 1; h. t. 3; h. t. 7. 4, etc. 3 44. 2. 11. 7. Post, § ccxxxix. 4 Ante, § CLVI sq.
5 Ante, § CLVn. 6 Ante, § CLVHI. In the typical form of this there is a

sort of identity of person, they are a joint unity, but this is hardly so in surety.
7 42. 1. 63; 44. 2. 29. 1. 8 5. 2. 8. 16; 30. 50. 1. 9 1. 5. 25; 25. 3. 1. 16.

It is in this connexion that we get the expression : res iudicata pro veritate accipitur, which
is not of general application, Gradenwitz, Aus Rom. und Burg. R. 410. Esmein, Mel.
Girardin, 229 sqq., holds that in early law the effect of judgment was not relative but
absolute and thus explains the rules of cessio in iure. 10 40. 16. 3; C. 7. 14. 1.

11 40. 16 passim. 12 Buckland, Slavery, 668.

xiv] LIT IS CONTEST AT 10 693

not been in issue, so that there would be no exceptio rei in indicium
deductae1.

CCXXXVI. The question how far the extinctive effect of litis con-
testatio was carried into the later system is much disputed. There was no
ipso iure destruction, since legitima indicia had disappeared. Apart from
this it is frequently held to have survived to Justinian, since he abolished
it for joint debtors2, but it is not impossible that this choice among
debtors equally liable had already become an independent principle.
Justinian calls it electio3. No known enactment abolishes the novatory
effect for single debtors, and the exceptio rei in iud. deductae is not found
in the Corpus luris Civilis, though there are traces of the old doctrine4.
The introduction of procedure in contumaciam and the fact that a
indicium no longer perished in a short time had done away with the
main cases of application of this exceptio. An enactment of uncertain
date, restored from the Basilica, but not later than Justinian, penalised
the bringing of an action in one court if it was already pending in
another5, which suggests that, apart from penalty, such a thing was
possible. The better view seems to be that under Justinian the extinctive
effect of litis contestatio was practically gone6. It survived indeed as the
basis of the law of cessio actionum by procuratio7, but this had become
a standing institution, independent of its theoretical basis.

The destructive effect of litis contestatio was not, even in classical
law, so complete in practice as might appear. The Edict contained rules
for restitutio where through error in procedure, not involving great care-
lessness, an action had been lost8. There were various cases in which an
actio de peculio w^hich had resulted in less than complete satisfaction
could be renewed "rescisso superiore iuditio9." The law of restitutio in
integrum10 is indeed in great part a set of reliefs against the operation of
this principle. Where the loss was due to excessive claim there was
some relief in the Edict and a full measure in later lawu. Though
there could be no change of parties, and no alienation after the
novation, the magistrate could relieve even here in appropriate cases12.
The rule omnia indicia absolutoria is on the same lines. It is some-
times said that where an action was barred by exceptio praeiudicii

1 16. 2. 7. 1. It is held by Beseler, Beitrdge, 4. 199, that rejection of the counter-
claim as non-existent did not, in classical law, prevent it from being raised independently,
the text being interpolated. Post, § ccxxxvm. 2 C. 8. 40. 28. 3 0. 8. 40.

28. 1. 4 E.g. 46. 2. 29. 5 C. 3. 1. 12. 2. See also C. 2. 2. 4. 6 No in-

ference can be drawn from C. 3. 10. 1 (post, § ccxxxvn), which seems to imply a power
of renewing a claim, for the point is no doubt raised, in the time of Zeno, before litis
contestatio. 1 Ante, §§ CLXXX, CLXXXIX. 8 Lenel, E.P. 119 sqq. 9 15. 1.

30. 4; h. t. 32. pr.; h. t. 47. 3; 15. 2. 1. 10. 10 Post, {jcoxxm. 11 Post, § ccxxxvn.
But see n. 6. 12 5. 1. 57; Vat. Fr. 341.

694 LITIS CONTESTATIO [CH.

(or the like1) there was relief on accxnmt of the injustice, but opinions
differ2.

(ii) Creation of a new obligation. The nature and content of this
have been sufficiently indicated in dealing with judgment.

(iii) Any action which had reached litis contestatio was transmissible.
Thus an actio ex delicto could be continued against the heres, or an actio
iniuriarum continued by the heres3.

(iv) Paul tells us that it made actiones temporariae perpetual, which
means only that if, e.g., an actio annua had reached litis contestatio it
could continue to judgment though the year had expired4.

(v) There could be no change either in parties or index, subject to
translatio iudicii5.

(vi) The res became a res litigiosa incapable of alienation6.

(vii) Usucapio was not formally interrupted, but the practical effect
was much the same7. Praescriptio seems to have been interrupted under
Justinian by protest to an official, without litigation8.

(viii) It fixed the subject-matter of the claim. This rule had many
aspects and modifications. The rule omnia indicia absolutoria9 modified
the principle that the duty was to be referred to the time of litis con-
testatio. The value was ordinarily to be taken as at that time, but stricta
indicia and others differed as to inclusion of fruits and interest from
that date10. If the object lessened in value by deterioration, or through a
change in the market value of such things, this did not in strictness
affect the liability. But this strict rule applied in classical law only in
cases of bad faith; a defendant in good faith was liable only if the
deterioration was due to his fault11. Conversely, if the thing increased
in value, this did not increase the liability unless the defendant was in
bad faith, as in condictio furtiva where the liability was for the highest
value of the thing since the theft12. The effect of total destruction by
casus was matter of school dispute; the view ultimately reached was that
apart from dolns, culpa or mora it released the defendant13. But these
rules can be applied safely only to real actions and stricta indicia; in
bonae fidei indicia and actions infactum there was a multiplicity of dis-
tinctions according to circumstances, as to what could be recovered.

CCXXXVII. PLUSPETITIO. MINUS PETITIO. The rules on this topic
express the logic of the formula. The index was to condemn only if the
claim in the intentio was proved; in all other cases he was to absolve.
If 10 were claimed and a debt of 9 was proved, absolutio followed. Plus

1 Ante, § ccxxi. 2 See Pissard, Questions Prejudicielles, 133. 3 Ante, § ccxxxm.
4 27. 7. 8. 1; 50. 17. 139. pr. 5 Vat. Fr. 341; C. 3. 1. 16. Post, § CCXLI. 6 Post,

§ CCXLIV. 7 Ante, § LXXXVD. 8 Ante, § LXXXIX. 9 Ante, § ccxvii.

10 Ante, § ccxxix. 11 See Girard, Manuel, 352, n. 1. 12 13. 1. 8. 1. 13 5. 3.
40. pr.; 6. 1. 15. 3.

xiv] PLUS PET IT 10 695

petitio might occur in many ways1; re, claiming too much, tempore,
claiming before it was due or while a condition was unsatisfied, loco,

claiming at one place what was due at another, or causa, ignoring any
alternative or option in the debtor2. In any case of plus petitio the action
was lost in classical law, and, in general, finally lost, except for relief by
praetorian restitutio, which Gains mentions3, and which Justinian tells
us had been given to minors and in certain cases of error4. In an action
for an incertum, since the intentio said "quidquid paret . . . dare facere
oportere," Gaius tells us there could be no plus petitio5. But this seems
not quite clear except for excess in amount. If a claim was made before
it was due or before a condition was satisfied the action was lost, cer-
tainly in the case of condition, and perhaps in the case of dies, though
here it is possible that the words "quidquid" and "ex fide bona" allowed
the index to condemn for the present value of the claim. If it was lost,
in the case of dies, it was finally lost, apart from relief, but, in the case
of condition, the obligation was considered as a new one arising only on
occurrence of the condition, so that the action could be renewed6. If A
or B was due at the defendant's choice, and A was claimed, this was a
plus petitio 7 and might certainly occur in an action for an incertum, and
the same is true if what was due in one place was claimed in another8.
There was a special actio "de eo quod certo loco9," to avoid the difficulty
in this case, and the title in the Digest mentions cases which would seem
to have an intentio in "quidquid10." But these can be explained away11
and this action was excluded in bonaefidei cases12, so that it seems likely
that the index could make the necessary allowance in these cases.

An overstatement in the demonstratio was fatal to the action, but
Gaius says "nihil in indicium deducitur™" and the action could therefore
be renewed, subject to the opinion of some jurists, that in infaming
actions overclaim in the demonstratio was as fatal as in the intentio1*.
This comes to saying that if the demonstratio is not true there was no
action; its truth is a condition not on condemnatio but on submission to
the index. In actions in factum with an intentio "si paret," Gaius, in a
defective text15, seems to say that overstatement in it was a plus petitio,
but this probably does not apply to the actions "ex bo-no et aequo." An
overstatement in the condemnatio led only to restitutio as a matter of course16.

1 In a rescript of Diocletian (Cons. 5. 7) it is said that it may be either summa, loco,
tempore, causa, qualitate, aestimatione. 2 G. 4. 53 d; Inst. 4. 6. 33 d.

4. 53. 4 Inst. 4. 6. 33. 5 G. 4. 54. 6 44. 7. 42. pr. ; 21. 1. 43. 9; ante, § cxLvm.
7 G. 4. 53 d; Inst. 4. 6. 33 d. 8 G. 4. 53 c; Inst. 4. 6. 33 c. 9 Ante, § ccxxiv.

10 E.g. 13. 7. 4. 1. 11 An intentio in "si paret" is possible. 12 13. 4. 7.

13 G. 4. 58. 14 G. 4. 60. As to the use of this text in support of hypotheses on

the origin of the formula, see Huvelin, Mel. Gtrardin, 337; Audibert, Mel. Girard, 1. 62,
and ante, § ccxiv. 15 G. 4. 60. 16 G. 4. 57.

696 MINUS PETITIO [CH.

It should be said that it was not plus petitio to claim the wrong
thing. The action was lost, but the real matter had not been in
issue1.

Minus petitio was claiming too little. This, in the intentio, bound the
plaintiff in that action, but did not prevent him from suing again, subject
to the exceptio litis dividuae2. If it was in the demonstratio, Gaius holds,
as in plus petitio, that "nihil in iudicium deducitur," but adds that
others, including Labeo, held the (more reasonable) view that it was
lawful so to divide the claim, subject to the above exceptio*. Minus
petitio in the condemnatio bound the plaintiff with no restitutio except
for minority4.

These rules of classical law lost their force with the disappearance of
the formula and were much changed in later law. There was no longer
any question of different parts of the statement, and Zeno provided that
in plus petitio tempore the plaintiff must wait twice the time by which he
anticipated the true date, getting no interest for this time and paying
all costs due to his wrongful claim. The index was to pay no attention to
minus petitio but to condemn for what was due5. For other forms of
plus petitio Justinian provided that the index was to ignore them and
condemn for what was due, the plaintiff paying threefold the excess
costs6.

CCXXXVIII. COMPENSATIO. Set off. If A sued B on a promise of
10, the fact that A owed B something on some other transaction was
irrelevant to the issue before the index. This liability could not be joined
to the first, so as to permit the index to try both on one issue and strike
a balance. The Roman habit and the structure of the formula did not
admit of the fusion of two issues. No doubt both might be submitted
to the same judge, even at the same time, but they were distinct issues,
mutuae petitiones7. To this exclusion there were even in early classical law
some exceptions. Where a banker sued his customer he was required to
allow what was called "compensatio" in the intentio of his action, claim-
ing only the nett balance due, after deducting anything actually due
from him to the defendant, provided the debt was of the same kind as
that for which he was suing, which would commonly be money8. If he
failed to make this allowance in his intentio, he lost his action for plus
petitio. The two debts being treated as one, he had claimed more than

1 G. 4. 55; Inst. 4. 6. 35. 2 G. 4. 66; ante, § ccxxm. 3 G. 4. 58, 59. This

view would seem to have prevailed, 13. 6. 17. 4. 4 G. 4. 57. 5 C. 3. 10. 1.

6 C. 3. 10. 2. He adds (h. t. 3) that a plaintiff who has fraudulently got an acknowledgment
from the debtor for more than is due, and submits this at the hearing, shall lose his action
altogether. But this is a punishment for fraud, not a rule of procedure. 7 2. 1. 11. 1;

17. 1. 38. pr.; C. 4. 31. 6. See Accarias, Precis, 2. 1104, and ante, § ccxxxiv. 8 G. 4.

64, 68.

xiv] COMPENSATIO 697

was due. This edictal rule1 did not turn on any logical distinction; it was
a rule of convenience, resting on the almost fiduciary position of argen-
tarii in commercial Rome. Most business was done through them. When
the practice of private bookkeeping went out, the bankers were in fact
their customers' bookkeepers2, a fact reflected in another edictal rule3:
in any litigation the banker's books might be called for, though he was
not a party to the litigation. The present rule safeguarded illiterate
persons against concealment by a banker who knew more of their affairs
than they did themselves.

Another exceptional case was that of bonorum emptor in bank-
ruptcy. If the bonorum emptor sued a debtor to the bankrupt or de-
ceased insolvent, he was required by the Edict4 to allow for any debt
due from the estate to the defendant. It need not be of the same kind
or now payable; a debt due in diem must be allowed for at its present
value. But as the emptor had no special knowledge of the relations
between these parties he was not compelled to run the risk of plus petitio;
the allowance was not by " compensatio " in the intentio, but by " de-
ductio" in the condemnatio, where, as Gains says, "periculum non inter-
venit." Thus even though the claim was for a cerium, "incerti tamen
condemnationem concipit5." Apparently the deductio was inserted only
on the defendant's request6, but if it was omitted the omission could be
set right by restitutio in integrum, as in any other case of excessive con-
demnatio. This deductio did not rest on logical considerations, but on
convenience and fairness. Apart from some such rule the debtor to the
insolvent would have had to pay in full what he owed, getting only a
dividend on what \vas due to him. Accordingly he was allowed to
recover, if he paid without taking account of the counterclaim7.

Another exception was more important, as it was general and rested
on the logic of the formula. In all bonae fidei indicia the index might, if
he thought fit, allow, on grounds of good faith, any set off arising out
of the same transaction, condemning only for the balance. This rested
on the words " ex fide bona." As the intentio claimed only what was due
ex fide bona, there was no question of plus petitio, or any express reference
to the set off8.

The rule of exclusion of all such matters in stricta indicia remained
till a certain rescript of Marcus Aurelius of which Justinian tells us9
that, by it, "opposita doli niali exceptione, compensatio inducebatur," in
stricta indicia. We know little of the system, since it was superseded

1 Lenel, E.P. 248. 2 See, e.g., 2. 13. 10. 1; h. t. 4. 1. 3 2. 13. 4 sqq.

4 Lenel, E.P. 411. 5 G. 4. 66 sqq. 6 .See G., loc. cit. The argentarius "cogitur

cum compensatione agere" the deductio "obicitur" to the emptor. 7 I.e. claiming

under his original right, 12. 6. 30, written originally of this case, Lenel, E.P. 412. 8 G. 4.
47, 61-63. 9 Inst. 4. 6. 30.

698 COMPENSATIO [CH.

under Justinian and unknown to Gains. Since such indicia were on
unilateral transactions, the debt must have been in another transaction.
It was perhaps confined to debts of the same kind1, but different views
are held, as also on the question whether the rule extended in practice
to bonae fidei indicia. It seems probable that these remained under the
old rule, as Justinian states the rule for them and then that for stricta
indicia after M. Aurelius without suggesting any reaction on the other
case2. It is true that the exceptio doli was always implied in bonae fidei
iudicia,\)ut precisely because it was not expressed, it seems incredible that
the defendant should have been able by reason of the existence of such a
counterclaim to decide at any stage to upset the action, or not, without
notice to the plaintiff. In stricta indicia the difficulty did not arise; the
exceptio would have to be demanded, and this would warn the plaintiff.

The ground on which the action was lost was not plus petitio. If it
had been there would have been no need of the exceptio doli; the mere
failure to allow for the counterclaim would destroy the action, ipso iure.
Moreover the right to sue later on the counterclaim was not affected by
the fact that no account of it had been taken in this action3, which could
hardly be the case if it had been ipso iure in issue in the earlier action;
there would have been an exceptio rei iudicatae.

It has been assumed above that failure to allow for the counterclaim,
after insertion of the exceptio, involved loss of the action, but it has been
maintained that the effect was merely to cause reduction of the con-
demnatio by the amount of the counterclaim4. The former solution is
alone consistent with the general theory of the exceptio. The index was
bound to absolve if an exceptio was proved5, and this is the view most
usually held in the present case. But the view that the effect was merely
reduction is supported on various grounds. It is said that it is unfair
that a plaintiff should lose his action for not taking account of a set off
of which he might not know the amount. But the claim of the exceptio
was notice to him of the set off and the form for argentarius* was pre-
sumably available. Before allowing the exceptio the praetor would require
details of the counterclaim. It is said that Justinian does not shew any
difference between the rules under the rescript of M. Aurelius and the old
rules in bonae fidei indicia7, and Theophilus implies that there was none
and that the action was not lost8. But in historical matters in which
Gaius does not help, Theophilus is of little weight, and Justinian says
that he is making a change and that in his system claims "ipso iure

1 P. 2. 5. 3. 2 Inst. 4. 6. 30, 39. 3 16. 2. 7. 1. See Girard, Manuel, 721, n. 4.
4 E.g. Accarias, Precis, 2. 1108; Salkowski, Inst. (8), 441. 5 Apart from replicatio,

which is not here in question. 6 G. 4. 64. 7 Inst. loc. cit. 8 Theoph.

ad Inst. 4. 6. 30.

xiv] COMPENSATIO 699

minuunt" which suggests that this was not the case before in stricta
indicia, to which the passage refers, though, of course, the novelty might
be only in the words "ipso iure." Again it is said that an exceptio did
not necessarily upset an action in the formulary system. Several texts
in the Digest say this, for the exceptio doli amongst others. But the
formula had long been extinct and different rules were applied in the
cognitio, so that the word exceptio and the rules stated for it in texts
handled by the compilers are of little weight1. The case of the so-called
beneficium competentiae is prima facie a strong one, but it has already
been pointed out that this was in all probability a taxatio in classical law2.
But neither view is absolutely proved, and it has been doubted whether
the rescript was as general as Justinian's words suggest3.

How the matter stood in cognitiones is not clear, but it is possible
that reduction became the rule there, in some cases, in view of the
great power of the magistrate, and thus became the model for Justinian.
He reorganised the matter. He allowed compensatio of the same or
different kinds (if it was so far "liquid" that it could be conveniently
estimated in that suit) in all actions but deposit, and for recovery of
land wrongfully occupied4. The rule was to apply to real as well as to
personal actions, and under it " actiones ipso iure minuunt." Thus the
effect was reduction, but, for the rest, his rule is not easy to understand.
In real actions the judgment was for the res itself, and it is not clear how
the allowance was made, possibly by way of retentio as in the case of
chargeable expenses5, or by set off against fructus. In some cases indeed
the condemnatio would have to be in money, e.g. where the defendant
had destroyed the thing, or had dolo malo ceased to possess6.

1 The most general statement is 44. 1. 22. See also 16. 1. 17. 2, which is certainly
interpolated, and 30. 85, which probably is. 2 Ante, § ccxxiv. 3 See

Leonhard, Mel. Girard, 2. 85 sqq., for a somewhat speculative account of the history
of compensatio. 4 Inst. 4. 6. 30; C. 4. 31. 14. A counterclaim might be of a

naturalis obligatio (16. 2. 6), though not all such could be so used (ante, § CLXXXIX). It
must not be conditional or in diem (16. 2. 7. pr.) apart from days of grace under a judg-
ment (h. t. 16. 1). Tt must be the defendant's own claim in the same capacity (C. 4. 31. 9;
D. 16. 2. 18. 1) and against the same person (16. 2. 16. pr.), except that a debt due to a
cnrreus socius of the deft, can be pleaded as there is regress between them (45. 2. 10). For
the same reason a fideiussor can plead a set off of his principal (16. 2. 5). A tutor
suing as such could not be met by a debt due from him personally (16. 2. 23). It might be
pending in another suit (h. t. 8). It must be clear: an alternative obligatio could not be
pleaded, if the creditor had the choice, until he had chosen (16. 2. 22), but a debt due at
another place could be pleaded with proper allowances (16. 2. 15). It might be raised in
actio iiidicati, though it had not been mentioned in the original action (C. 4. 31. 2). It
might be a claim de peculio and even here it was in solidum (16. 2. 9. pr.). The index need
not take account of it: if he simply ignored it, it was not in issue and could still be sued
on, but if the index examined and rejected it this was in effect a judgment, and any further
claim would be barred by exceptio rei iudicatae ( 16. 2. 7. 1 ). 5 A nlc. $ CXLJV. 6 The

rule of Justinian that a plaintiff might be condemned (C. 7. 45. 14) might be understood
to cover this case.

700 COMPENSATIO [CH.

The words "ipso iure" have been much discussed. They do not mean
that the set off operated necessarily, as matter of course, for, as we have
seen, the defendant need not use it and could sue on it independently,
while if it had necessarily been in issue, there would have been an ex-
ceptio rei iudicatae. They seem to mean merely that it could come in
without express mention in the libellus conventionis, with no question of
plus petitio and its penalties1.

Thus at no stage did Roman Law recognise a necessary compensatio,
operating as matter of law, apart from act of the defendant. One case
suggests an approach to this idea. In an action for recovery of dos we
are told that " necessariae impensae dotem ipso iure minuunt" while
impensae utiles, if approved by the \vife, can be brought into account by
exceptio doli2. It is held by Ihering3 that this is very ancient, but there
is little evidence of this4; it seems to result from the conception of dos
as a universitas, and, even so, impensae were not necessarily in issue,
since if the husband did not deduct in the action for dos, Marcellus held
that he could condict afterwards5, as could be done in other cases of
counter-claim.6 It must be remembered that the actio rei uxoriae was a
bonaefidei indicium in which no exceptio doli would need to be expressed.
The case of peculium, which is ipso iure cut down by debts to dominus 7,
is again a pro tanto recognition of it as a universitas. It no doubt origin-
ated as an interpretation of legacy of peculium6.

CCXXXIX. REPRESENTATION IN LITIGATION 9. In the legis actio
system there was in general no representation: nemo pro alio lege agere
potest. Justinian, who tells us this, mentions as exceptions, apparently
as all the exceptions, a provision of the Z. Hostilia, allowing actio furti on
behalf of a captive or one absent on State affairs, or their ward, and
three other cases which he calls pro populo, pro libertate and pro tutela10.
The first is probably a reference to early actiones populares and has
little real relation to representation; the second is adsertio libertatis11, and
the third is obscure. Perhaps the most probable opinions are that it
refers to the crimen suspecti tutoris which was open to anyone, is very

1 Severus Alexander provided that where there was a liquid claim on each side there was
"ipso iure compensatio'" from the moment the two debts coexisted (C. 4. 31. 4). But it has
been observed (Girard, Manuel, 721, n. 4) that this rule, probably laid down by Septimius
for a specific case (16. 2. 11, 12), and afterwards generalised (C. 4. 31. 5; C. 8. 42. 7), was
merely an equitable rule to simplify the final calculation. See also Leonhard, Mel.
Girard, 2. 97 sqq. 2 23. 4. 5. 2; Ulp. 6. 14 sqq.; ante, § XL. 3 Geist (4), 3. 69;

French transl. 4. 15. 4 See however Pernice, Labeo, 2. 1. 386, but he does not carry it

far back. See also Ulpian in 25. 1. 5, who hesitates as to the exact meaning of the rule.
5 25. 1. 5. 2. 6 See ante, §XL, and Schulz, Z.S.S. 34. 57 sqq. 7 19. 1. 30. pr.

8 See, e.g., 33. 8. 6. 1. Argentarius does not provide a case. If the debtor to him had not
raised the point in the banker's action there does not seem to have been anything to prevent
him from claiming independently. If the counterclaim had necessarily been in issue there
would have been a resiudicata. 9 G. 4. 82. 10 Inst. 4. 10. pr. 11 Ante, § xxvi.

xiv] REPRESENTATION IN LITIGATION 701

ancient and was heard by the magistrate1, or to action on behalf of a
ward, though this does not suit the name very well2. But the statement
that representation was not possible in the legis actio does not prove
impossibility in the actual hearing, which is no part of the legis actio,
and a text in the Ad Herennium, quoting, apparently, an old lex,
authorising aged and sick people to appoint cognitores to act for them,
has led to the view that they were allowed at this stage in such excep-
tional cases3. It is also held, in view of, inter alia, the form of appoint-
ment of a cognitor*, which is not only archaic, but follows closely the
structure of other ancient forms, e.g. that of manus iniectio, that no
restriction to special cases existed but that this cognitor was a recognised
institution of the legis actio5. But this is not generally accepted6; in
any case we know representation only in the later systems.

Apart from tutores and curatores1, representatives were cognitores or
procuratores. Not everyone could be a representative or appoint one.
A miles could not be a representative, for disciplinary reasons8, or a
woman because it was a virile munus9. The Edict contained provisions,
now imperfectly known10, forbidding certain persons, notably infames
and ignominiosi, to appoint, or to be themselves appointed, representa-
tives for this purpose, in some cases absolutely, in others without consent
of the other party. It is clear that the point might be decided by the
praetor in iure11. But it might be settled in iudicio, and there were
exceptiones cognitoriae12, procuratoriae, by which such points were brought
up. These are obviously suitable only for objections made by the de-
fendant; it seems that plaintiff's objection to a cognitor of his opponent
must have been disposed of in iure. After the decay of the formula
these questions seem to have been settled early in the proceeding
before litis contestatio13. Justinian abolished these exceptiones, at least so
far as infames were concerned, as being not used14, and in fact very little
is said in the Corpus luris Civilis on this matter, though it seems clear
that the disabilities or some of them still existed15.

Representation appeared earlier in litigation than in other branches

1 But see Girard, Org. Judic. 1. 70 and 75, n. 1, who points out that this process
was not a civil legis actio at all. 2 See however Bertolini, Proc. Civ. 1. 188, who

compares "pro socio." For a variety of explanations, see Girard, loc. tit.; Bertolini, loc.
cit.; Cuq, Instil. Juridiques, 1. 408 and reff. ; Karlowa, C.P. 355. 3 Hh. ad Her. 2.

13. 20; Lenel, Z.S.S. 5. 149. 4 G. 4. 83. 5 Eisele, Beitrdge, 91 sqq. ; Studien,

51 sqq. 6 No direct evidence for this civil cognitor: the laxer characteristics of the

formality (p. 702, n. 2) are against great antiquity, and formlessness is not an essential
characteristic of praetorian institutions. 7 Post, p. 703. 8 Inst. 4. 13. 11;

C. 2. 12. 7, 9. 9 Inst, 4. 13. 11; C. 2. 12. 18. 10 P. 1. 2. 1; Vat. Fr. 320-324.

See Lenel, E.P. 88 sqq.; Debray, N.R.H. 1912, 371. 11 Vat. Fr. 322. 12 G. 4.

124; Inst, cit. 13 C. Th. 2. 12. 3 = C. 2. 12. 24. 14 Inst. cit. The exceptio pro-

curatoria appears in the Digest, 3. 3. 57. 1; 17. 1. 29. 4, etc. 15 C. 2. 12. 6, 7, 9.

702 REPRESENTATION IN LITIGATION [CH.

of the private law, but in its earliest form it was short of what is called
direct representation. The cognitor did not at first "represent" in the
modern sense. He became the actual party. It was he who was con-
demned or absolved. It was he who had or was liable to the actio iudi-
cati1. But this was altered at latest by the time of Cicero, and judgment
for or against a formally appointed cognitor affected the principal. It is
likely however that from the beginning he was regarded as bringing his
principal's case into issue, so that, on the principle of "non bis in idem,"
further action was barred.

Cognitores were appointed in the presence of the other party by
"certa et quasi solemnia verba" of which Gains gives two forms, appa-
rently as alternatives2, but the difference between them (" quod...peto,
petis," " quod...agere volo, agere vis"), while it may have to do with the
nature of the action, or more probably with the place and time of ap-
pointment, has played a part in the controversy as to origin3. There
could be no condition on the appointment4. The cognitor need not be
present, but if he was not, the appointment was not effective until he
had accepted5. Procuratores were appointed informally6 (so much so that
it was possible for one to act without appointment at all7, defensor),
but in any case the appointment must take effect by the time of
litis contestatio. The formula shewed in what capacity the party was
acting, since the true principal's name appeared in the intentio8 and the
representative's in the condemnatio9. The formula could not be altered;
any further change must be by translatio iudicii10.

These two kinds of agent did not in the earlier classical law represent
their principal to the same extent. The cognitor for a plaintiff, formally
appointed, with express declaration to the opponent, brought into issue
the right of his principal, whose right of action was therefore consumed11.
A procurator did not, so that the claim might possibly be renewed, a
distinction reflected in the law as to the security which must be given.
If the representative was on the defendant's side, since the plaintiff's right

1 On behalf of defendant he is more like a vindex than a representative. 2 G. 4. 83.
The requirement of certa ve.rba is not so strict that added words vitiated the appoint-
ment as in legis actio, and it might be in Greek (Vat. Fr. 318, 319). 3 Peto is
held by Wlassak to denote the moment of litis contestatio. This he thinks the original
form, obsolete in classical law, see Aut. Gal. 91 (Cognitur, 44; Mel. Girard, 2. 637). But
there is textual evidence for peto in the sense of action after litis contestatio, and Eisele holds
(Beitrdgf,, 99) that this form was used where a cognitor was appointed in iudicio. But there is
no evidence for such appointment, apart from translalio iudicii. 4 Vat. Fr. 329. 5 G.
4. 83. 6 G. 4. 84, even conditionally, D. 3. 3. 3. 7 See, e.g., G. 4. 101. But certain
near connexions who acted without express appointment were on the same level as if ap-
pointed, 46. 7. 3. 3. 8 In the formula of a real action the principal would not appear
at all in the case of cognitio for the defence. 9 G. 4. 86, 87. 10 Post, § ccxu.
11 G. 4. 97, 98.

xiv] REPRESENTATION IN LITIGATION 703

was necessarily in issue, security was always needed1. The actio iudicati
must prima facie go to or against the person named in the condemnatio.
But the Edict seems to have given it to or against the principal in the
case of a cognitor2, though this may have required a translatio iudicii3.
It is said to have been allowed "causa cognita*," but that means only
that if it was a case of cognitio in rem suam it was not so given.

In the case of procurator the actio iudicati was available under the
Edict only to or against him5. But the procurator was gradually assimi-
lated to the cognitor, and at least in later classical law a procurator whose
intervention was ratified, or whose principal was present, or who was
appointed " apud acta," or had what Severus calls "plena potestas
agendi," fully represented his principal, so that the latter's right was
brought into issue, and the actio iudicati, with formal translatio iudicii,
was available to and against him6. The cognitor had disappeared under
Justinian, and the procurator whose powers were certain fully repre-
sented his principal7. It still remained true that a mere volunteer, a
defensor, or one of uncertain authorisation, was in the old position and
personally responsible.

The tutor could also act as representative8 for his ward. We know
little of his position in this matter in the legis actio. The rule of the /.
Hostilia above mentioned9 suggests that tutores could represent their
wards at least mfurium, probably in all cases. It is likely in view of the
early conception of tutela10 that this was hardly thought of as representa-
tion; the rights were regarded to some extent as vested in the tutor. As
to curator offuriosus or prodigus, the XII Tables describe his power as
potestas over the man and his pecunia11; he could alienate for him12 and
probably acquire. Pomponius says that the curator furiosi could not
manumit for him13, and this was a legis actio, but he rests this on the fact
that manumission is not administration, so that there was probably no
formal difficulty. However these doubtful questions are answered the
rules of classical law are fairly clear. Intervention by any of those
guardians is treated as representation, and Gaius14 shews that they were
in most respects on the footing of an authorised procurator, and, in
some15, attained practical equality with cognitor before a procurator did.

The position of curator minoris in the matter is disputed. The Digest
treats him as on the same footing as a tutor, but it is probable that

1 G. 4. 101. 2 Vat. Fr. 317, 331. 3 Post, § CCXLT. 4 Vat. Fr. cit.

5 No edict needed as his name is in the condemnatio, Lenel, E.P. 390. 6 C. 2. 12.

10; Vat. Fr. 317. 7 Inst. 4. 11. 4, 5. Differences of opinion on the question how far

this is an advance on later classical law. See, e.g., Costa, Profilo storico, 127. 8 G. 4. 99.
Apparently any acting tutor, within his field of operations. 46. 7. 3. 5; ante, § LVIII.
9 Ante, p. 700. 10 Ante, § LI. 11 5. 7 a. Girard, T&rtes, 14. 12 Ants, § LXT.

13 40. 1. 13. 14 G. 4. 101. 15 E.g., derato, G. 4. 99.

704 SECURITY IN LITIGATION [CH.

there has been a good deal of alteration of the texts. It may be that, at
any rate till the end of the classical age, he had no such power; he could
indeed be appointed as cognitor or procurator, or act without appoint-
ment, as defensor, but that is a different matter1.

Corporate bodies being incapable of acting for themselves had, of
necessity, representatives to act for them, called actores2, appointed ad
hoc in classical law, but, later, permanent, these being also called Syndici*.
There were elaborate rules as to the mode of appointment, applicable
in all cases, and the appointment had also to be in accord with their
statutes4, but in the absence of appointment it was possible for a pro-
curator voluntaries to act for them as in the case of ordinary persons5.

CCXL. SECURITY IN LITIGATION. It is convenient to deal first with
the case in which the principals were the parties, dealing afterwards
with the complications which resulted from representation.

The plaintiff did not in general give security whether the action was
in rem or in personam. The defendant, in classical law, gave, in real
actions, security varying in form according as the action was per formu-
lam petitoriam or per sponsionem. In the former case, which was a purely
formulary creation, he gave security iudicatum solvi6. This was an
undertaking by surety, satisdatio, having three branches embodied in
one stipulatio^, i.e. to satisfy the judgment if it was given against him,
to defend the action, i.e. to take the necessary steps in order that the
matter, which involves the cooperation of the parties, may proceed,
and to commit (and to have committed in any earlier stage) no dolus in
respect of the subject-matter of the suit8. In the case of action per spon-
sionem, the security is satisdatio pro praede litis et vindiciarum9, modelled
on the old praedes of the legis actio of which this procedure is the descend-
ant. As this mode is wholly obsolete under Justinian we are ill informed
as to its content. The view most widely held is that of Lenel10, that it in-
volved a promise of " quanti ea res erit" for practically the same hypo-
theses as in the other case, i.e. for the case of judgment (which, here, it
must be remembered, was only indirect, for the amount of the sponsio,
so that a stipulatio simply of the amount of the judgment would not have
sufficed11), for the case of failure to defend, and against fraud, past or
future.

1 See Solazzi, Minore Etct, 202 sqq. ; Lenel, Z.S.S. 35. 197 sqq. ; ante, § Lxrr. 2 E.g.
2. 4. 10. 4. 3 3. 4. 1. 1. See Dirksen, Manuale, s.v. Syndicus. 4 3. 4. 3; 3. 3.

74. 5 3. 4. 1. 3. A duly appointed "actor" seems to have been in the position of a

cognilor. On the whole matter, see Ramadier, fitudes Girard, 1. 259 sqq. 6 G. 4. 91.

7 46. 7. 6. 8 The exact formulation is disputed. For Lenel it contained a promise

of the amount of the judgment under the first head and " quanti ea res erit" under the others,
E.P. 509 sqq. See for other views, ib. 511, n. 4, and Duquesne, Mel. Gtrardin, 197, M41.
Fitting, 1. 321, and Lenel's reply, E.P. xv. 9 G. 4. 91, 94. 10 E.P. 496 sqq.

11 "si secundum me iudicatum erit, quanti ea res erit."

xiv] SECURITY IN LITIGATION 705

In actions in personam there was no general requirement of security,
but Gaius tells us that it was required in certain actions, i.e., iudicati,
depensi and the old actio de moribus. He tells us that it was also required
in some cases laid down by the praetor where the defendant was suspect,
as one who "decoxerit" (fraudulent bankrupt), one whose goods had
already been seized for debt, and a defendant heres whom the praetor
thought suspect1.

Under Justinian the system was much changed 2. In real actions the
judgment was normally for the thing itself, and it had become impossible
for the defendant to transfer the res litigiosa in any way so as to bar the
plaintiff's claim3. Moreover, the "real4" issue was involved with an
increasing number of personal claims. The three actions in personam in
which security was needed had disappeared5. Thus the need of security
was gone in general where the parties were the principals, though
Justinian's language suggests that the change had not been so great.
He tells us that there was no longer need for security in respect of the
subject of the suit, but that the defendant must always give security
for appearance6. But this is merely the modernised form of vadimonium,
cautio iudicio sisti. He tells us that this was sometimes by oath, e.g. for
those "in sacro scrinio militantes" r" or by mere promise, as in case of
ittustres, or, in ordinary cases, by satisdatio, varying in amount with the
status of the parties8.

The rules were more complex in the case of representation.

1. Representation on the side of the plaintiff. Here there was an
important difference between cognitor and other representatives. In the
time of Gaius the cognitor fully represented the principal and therefore
gave no special security9. In the case of other representatives, pro-
curators and guardians, as they did not directly represent the principal
it was possible for him to renew the action, his right not being in issue,
and thus the representative must give security that the principal would
ratify his action, cautio de rato, rem ratam habiturum dominum10. But the
complete representation was gradually extended to other representatives.
In the case of tutores and curatores (furiosi and prodigi) the rule requiring
cautio de rato was partially relaxed in the time of Gaius11, and in the time

1 G. 4. 101, 102. 2 Inst. 4. 11. 2. 3 Post, § CCXLIV. 4 Girard, Manuel,

354. 5 But the cases of heres suspectus and defendant whose goods have been

seized still remain, 42. 5. 31. pr. ; h. t. 33. 1. The edictal rule about decoctor seems to
have been replaced by a rule that security could be required from a suspecta persona
sued for a res mobilis, but not for land, probably only in real actions. 2. 8. 7. 2; h. t. 15.
6 Inst. 4. 11. 2. 7 C. 12. 19. 12. 8 D. 2. 6; D. 2. 11. 9 G. 4. 97. 10 G. 4.
98. There was also a stipulatio "amplivj non peti." It survived into Julian's edict (Lend.
E.P. 516; Debray, N.R.H. 1912, 1 sqq.), though it was of little value after the introduc-
tion of de rato with which it was usually coupled. 11 G. 4. 99.

B. K. L. 45

706 SECURITY IN LITIGATION [CH.

of Severus this was required only from one whose powers were uncertain,
e.g. one whose principal was not present and might have revoked the
powers or one not authorised at all, procurator voluntarius1. This re-
mained the law under Justinian apart from the change of position of
curator minoris who was now treated as a tutor. The promise was that
the principal would ratify and would not renew the action, and that
there had been and should be no dolus, the liability being for "quanti ea
res erit2." It required satisdatio3. It was discharged by ratification4, and
was broken by renewed action by anyone who would have been barred
by res iudicata, if the original action had been by the principal5.

2. Representation on the side of the defendant. The general rule for
all cases was that security iudicatum solvi must be given, since the
plaintiff's right, being brought into issue, was destroyed. The rule dates
from the earliest state of things when representation even by cognitor
was imperfect, and it applied in all cases, whether the right was brought
into issue or not: omnimodo satisdari debet, quia nemo alienae rei sine
satisdatione defensor idoneus intellegitur6. The only distinction was that
if the representative was a cognitor the principal gave it, in other cases
the representative7. The principle remained equally general under
Justinian, though there were changes in detail. There were no cognitores.
If the principal was present he gave security iudicatum solvi, or if he
preferred, could become surety for his representative, for all the clauses
of iudicatum solvi, having in both cases to give also a hypothec8 over
his property and security iudicio sisti9. If the representative was pro-
curator voluntarius, or the principal was not present, the representative
gave security iudicatum solvi10.

CCXLI. TRANSLATIO IUDICII. If, as is most commonly held, litis
contestatio was a negotium between the litigants11, the terms of which were
expressed in the formula, it follows, as is indeed clear, in fact, that no
material change in the issue, e.g. insertion of an exceptio, or correction
of plus petitio, could be made except by restitutio in integrum, involving
a renewed litis contestatio and thus a new negotium and issue. Logically
the same should be true of any change of persons. There are texts which
deal with substitution of one person for another in the litigation, such
a change being called translatio iudicii12. But as, under the libellary
system, the strict rules of the formula no longer applied, the surviving

1 C. 2. 12. 10; Vat. Fr. 317, 333. 2 Lenel, E.P. 516. 3 46. 8. 4; h. t.

8. pr.; h. t. 23, etc. 4 46. 8. 12; h. t. 18. 5 46. 8. 1; h. t. 8. 1; h. t. 14; h. t.

22. 8. 6 G. 4. 101; Inst. 4. 11. 1. 7 G. 4. 101. 8 Inst. 4. 11. 4. The

surety was meaningless as the representative was not now liable to proceedings under
the judgment. 9 Inst. 4. 11. 4. 10 Inst. 4. 11. 5. 11 Ante, § ccxv.

12 3. 3. 27. pr.; 27. 7. 8. 1, etc.

xiv] TRANSLATIO IUDICII 707

traces of the institution are few and leave open many questions; the
matter has been the subject of recent studies1.

If the introduction of a new party called for a new litis contestatio,
and restitutio in integrum, the question arises whether the transferred
indicium was a new one or the same transferred2. The texts do not
enable us to decide this question, since the effects shewn in the texts
are not those either of a wholly new indicium or of a continuation of the
old3; there is indeed no text which unequivocally says that a restitutio
was necessary in any of these cases. And the rules applied do not help
us much. Thus the question whether the procedural security given for
the old indicium was valid for the new4 is not decisive, since we are not
certainly informed as to the wording of these securities.

The principal cases suggested by the texts are three.

(a) Cases connected with representation. It is clear that the Edict
contained a provision5 that a principal who had appointed a cognitor,
could, on cause shewn, have the indicium transferred to himself or
another cognitor, and that in practice a similar initiative was allowed to
the cognitor6. No such rule applied to a procurator, but, here too, the
procurator was assimilated to the cognitor, late in the classical age7. This
translatio iudicii cognitoria is directly recorded, but we do not know the
mechanism. In the case of cognitor of the plaintiff the security iudicatum
solvi given by the defence was still valid8, while in that of procurator it
was not9. Hence Koschaker10 holds that in the case of the cognitor the
transfer was effected officially with no new litis contestatio and no effect
on the position of the parties, while in the other case there was a new
litis contestatio, with restitutio in integrum. The old issue was destroyed
and a new one created. He holds that the destructive effect of the old
litis contestatio was avoided by a fiction "ac si de ea re actum non esset."
It is shewn by Duquesne that this does not meet the difficulty in all
cases. If the action was annalis and the year expired while the first
action was pending, or if it was an action ended by death (e.g., ex delicto)
and the defendant whose procurator was defending had died, the above
fiction would not suffice to prevent the operation of the rules barring
the action. He takes a different view; for him there was restitutio in
integrum in all translatio iudicii, and a new litis contestatio. The old Us
was not necessarily completely destroyed. He suggests a fiction, evi-
denced in the texts, by means of which the new litis contestatio was
dated the same day as the first, litis contestatio repetita die, which would

1 Koschaker, Translatio Iudicii ; Duquesne, Translatio Iudicii dans la procedure civile
Romaine. 2 Koschaker, 53 sqq.; Duquesne, 56 sqq. 3 Duquesne, loc. rit.

4 Koschaker, 72 sqq.; Duquesne, 59 sqq. 5 Vat. FT. 341. 6 3. 3. 24.

7 See Duquesne, 161. 8 3. 3. 27, written of cognitor. 9 20. 6. 1. 2. 10 Op. cit.
57 sqq., 72 sqq.

45—2

708 TR AN SLAT 10 IUDICII [CH.

avoid these inconveniences1. But all the cases of litis contestatio repetita
die which he finds are between the same parties. In none of them is a
litis contestatio in the same civil action set aside. In all but one of them
it is in a purely praetorian procedure2, so that his hypothesis is hardly
proved3.

(b) Cases of Succession. Translatio iudicii successoria, i.e. where a
party dies pendente lite, and a heres takes his place. As a heres succeeds
ipso lure to the rights and liabilities of the deceased at civil law and
those under litis contestatio are not different from others, and the texts
make it clear that the new indicium was essentially the same as the
old4, all the incidents being retained, it might seem that there was here
no translatio at all, though there are texts which call it a indicium trans-
latum5 and others indicating that there was a new editio and acceptio
iudicii6. Koschaker holds7 that there was no new litis contestatio, but
that the accipere indicium which is evidenced was a procedural contract,
sui generis, which had the positive effects of litis contestatio without
destroying the old. Duquesne8, pointing out that this is no more than a
litis contestatio deprived arbitrarily of some of its effects, applies the
same method as in the other case, but some further refinement seems to
be needed9.

(c) Case of change of Index. In this case everything is doubtful; it
is not even certain that it was thought of as a translatio. If the index
was a party to the procedural contract, or a term in it, any change of
index involved translatio iudicii. If he was appointed after litis con-
testatio the difficulty would not arise10; his personality would be no part
of the procedural contract. Duquesne holds that he was appointed at
litis contestatio, and that mutatio iudicis involves a new litis contestatio
to which he applies the conception of repetitio diein.

There are other cases of translatio iudicii, but they are not helpful,
as the point is involved with other issues so complex as to make it
difficult to deduce any rule from them for translatio iudicii itself.
Duquesne mentions three types of such cases, (i) Where a party under-

1 Op. cit. 99 sqq. 2 10. 4. 9. 6. Absolutio in ad exhibendum is refused in the circum-
stances unless deft, will accept a vindicatio die repetita. 3 The intentio is in the name
of the principal, but if the new cognitor has been freed since I. c. in the first action, this
requires him to have been appointed when he was incapax. 4 3. 2. 14; 47. 10. 28;
50. 16. 12; Duquesne, 165. 5 27. 7. 8; C. 5. 53. 4. 6 E.g. 10. 2. 48. 7 Op.
cit. 254. 8 Op. cit. 167. 9 The formula suggested by D., who argues strongly
for an intentio in the name of the deceased (p. 191), is not free from difficulties. It would
require judgment even where it had already been given in a iudicium legitimum, or in a
case in which the earlier iudicium had been extinguished by the expiration of 18 months.
But it is possible on his framework to provide against this. 10 Lenel, Z.S.S. 24.
337, cited Duquesne, 225. See also Partsch, Schriftformel, 32. 11 Duquesne, loc. cit.

xiv] CUMULATION OF ACTIONS 709

went capitis deminutio1; (ii) noxal cases, e.g. where a slave the subject
of a noxal action became heres, the ordinary successoral translatio being
complicated by the change from noxal to direct action2, or where the
slave, who was a statuliber, became free during the action3, or where a
supposed slave was proved, during the action, to be free4; (iii) cases of
transfer between pater andfilius, e.g. a, pater was suing nomine filii for an
iniuria to the son and it was transferred to the son5, and a group of
cases in which an action to which the son was a party was transferred
to the pater6.

CCXLII. CUMULATION OF ACTIONS. The same set of facts might give
rise to more than one action. A defect in a thing sold might give the
actio ex empto or the actio redhibitoria. A depositee who made away
with the thing was liable ex deposito, and was also a, fur. If a hirer of a
slave wilfully killed him there might be action on the contract, the
Aquilian action, and criminal proceedings. The same act might be two
distinct delicts or a delict and a crime. Such a state of facts gave rise
to questions as to the extent to which the possible actions were mutually
exclusive or all available. The factors which create the difficulty in
determining the rules may be roughly summarised. There were differ-
ences of opinion and changes of doctrine among the classical jurists on
some points. Many of the texts have clearly been altered by Justinian,
and cannot readily be reconstructed. The recorded differences of opinion
do not usually shew on what difference of principle they turn. And the
statement that one action barred another is ambiguous. It might mean
that litis contestatio barred, or judgment, or satisfaction. The bar might
be civil or praetorian. In some cases the bar was partial; the second
action might be brought, but only for excess over what was recoverable
in the first. The matter has been the subject of much discussion; it must
suffice to outline the principal known rules and hypotheses7.

Where the two actions were both rei persequendae causa, i.e. neither
was penal, it is clear that they were not independent, but there is some
confusion in the texts. The case might arise in many ways. Thus there
might be a choice between actio ex empto and actio redhibitoria, between
actio commodati and vindicatio, between pro socio and communi dividundo.
In all cases one barred the other, but the nature of the bar was
not always the same. Sometimes litis contestatio in one barred the
other, e.g. in pro socio and communi dividundo9. It is maintained by

1 5. 2. 22. 3; Duquesne, 194 sqq. 2 3. 2. 14. 3 9. 4. 15. 4 40. 12.

24. 4. 5 47. 10. 17. 14, 22. 6 See Duquesne, 207 sqq. 7 As to the ques-

tion from the point of view of praeiudicium, see Pissard, Les question* prdjudicielles, and
ante, § ccxxi. 8 17. 2. 38. 1. In h. t. 43 we are told that one does not bar the other,

but the reason given shews that it is a case where pro socio will lie for matters that could
not come into communi dividundo: it is wider in scope. See ante, § CLXXXVT.

710 CUMULATION OF ACTIONS [CH.

Eisele1 that where the causa and the aim were the same, as where both
were rei persequendae causa2 they usually would be,litis contestatio barred,
but where the causa was different, only satisfaction; the case not being
one of procedural consumption at all. Where the same facts gave an
action on contract and one on delict, e.g., ex locato and e lege Aquilia,
where a thing hired was negligently damaged, the earlier law seems to
have been that neither formally barred the other, but the plaintiff in
the first action might be made to give security that he would not bring
the other3. But the view also appears, and seems to represent the final
attitude of classical law, that either barred the other: it is clear, however,
that, at any rate under Justinian, the delictal action could be brought
after the contractual for anything more that could be recovered by it4.

Where the same act constituted two delicts, the law is obscure, not
for lack of authority; the texts are numerous, and some of them shew
that the law was unsettled in classical times5. There are many possi-
bilities. The two might be entirely independent. Each might bar the
other absolutely or by exceptio. Or the praetor might have power to
refuse the formula unless such security was given as was mentioned in
the last case. If to these points is added the fact that the jurists found
it difficult to draw the lines, it is easy to see that it is not possible to
state the law with certainty. According to Mommsen8, if the two
delicts were of distinct moral character one might be sued on after the
other, but only as to the excess. If they were different remedies for the
same evil, one barred the other. He illustrates the former rule by damnum
and theft, damnum and iniuria, damnum and "arboribus caedendis."
He does not illustrate the latter rule and remarks that it is easier to
state than to apply. He seems to hold that by the later classical law they
were never wholly independent if it was one act, and adverts to a sc.
of Titus7 which forbade the bringing of proceedings under different
leges on the same facts8. He adds that the jurists have many differences
of opinion and in cases of doubt allow concurrence.

According to Karlowa9, they were originally quite independent if
based on different statutes, e.g. the XII Tables and the I. Aquilia. If
one or both were edictal the result depended on interpretation of the
praetor's intent. But he seems to hold that in classical times, even
where one survived the other, it was met by one of the devices above
mentioned, or limited to any excess. Pernice10 is of opinion, that the
view made dominant by Paul and accepted by Justinian was that the

1 Archiv fur C.P. 79. 327 sqq. 2 Ante, § ccxxxm. 3 See the texts cited

by Pernice, Sachbesc.Mdigungen, 141. 4 44. 7. 34. 2, interp. 5 E.g. 44. 7. 32; 47.

10. 7. 1. 6 Strafrechi, 887 sqq. 7 Sueton. Titus, 8. 8 44. 7. 53; 48. 2. 14.
9 R.Rg. 2. 985 sqq. 10 Op. cit. 132 sqq.

xiv] CUMULATION OF ACTIONS 711

second action always lay for any ex cess, but he considers that this restric-
tion applied only where the two infringements of right were involved in
one set of facts. If however a wrongful act produced two distinct states
of fact both of which were delicts, e.g. A's slave was so corrupted by B
that he stole from A, B was liable both for servi corruptio and for com-
plicity in theft.

On concurrence of delictal and criminal liability the texts are numer-
ous and confusing1. It is not clear that the law of Justinian was the same
as classical law, the mode of criminal prosecution having changed. It is
not clear that the law was the same for all cases of concurrence. An
obscure text2 suggests that where the delictal action aimed merely at
compensation, as opposed to punishment of the offender, which was the
aim of criminal proceedings, they were quite distinct, and a post-classical
text draws a similar distinction3. According to Mommsen4, so long as
the old system of criminal procedure subsisted, the private action could
not be brought while a criminal proceeding was pending or possible,
but where the injury consisted in damage to property rights, as in
damnum and theft, this rule did not apply, and, whichever was brought
first, the other could be brought nevertheless. For later law he holds
that it is not possible to lay down a general rule. Sometimes the possi-
bility of criminal proceedings barred the others, often there was a
choice5. But one text6 gives a list of cases, all affecting property, in
which civil proceedings could be brought, though a crime had been
committed. The text cites these, including damnum andfurtum, as cases
in wrhich, by the civil proceedings, a praeiudicium was created for the
subsequent criminal proceedings, so that they were cumulative. We
are told elsewhere7 that the Aquilian action could be brought before the
criminal proceedings, but that no praeiudicium should result for the
latter. The explanation seems to be that the earlier case would in fact
have decided the point or part of the point which would be in issue in
the criminal proceedings, but that in those proceedings no account was
to be taken of the earlier decision8.

1 See those cited by Monro, I. Aquilia, 5, and Coll. 12. 7. 2; D. 19. 5. 14. 1; 47. 2. 93;
47. 11. 5. 2 47. 10. 7. 1. 3 C. Th. 9. 20. 1 =C. 9. 31. 1. 4 Loc. cit. 5 47.

2. 57. 1. 6 48. 1. 4. 7 9. 2. 23. 9. 8 See C. 9. 31. 1. 2, "per altcram

quae supererit iudicatum liceat retractari."

CHAPTER XV

THE LAW OF PROCEDURE (con*.). PRAETORIAN

REMEDIES

CCXLIII. Restitutio in Integrum, p. 712; CCXLIV. Dolus, 714; Metus, ib.; Minority, ib.;
Absence, 715; Other cases, ib.; Scope of Restitutio, 716; CCXLV. Missio in possessionem,
717; Judgment and connected cases, ib.; Other cases affecting the whole estate of de-
fendant, 718; Cases affecting a whole estate, not necessarily the whole estate of defendant.
ib. ; Cases affecting specific things, 720; CCXLVI. Stipulaliones praetoriae, 721; CCXLVII.
Interdicts, 723; CCXLVIII. Exhibitory, Restitutory, Prohibitory, 724; CCXLIX. Non-
Possessory and Possessory, 726; Adipiscendae, Retinendae Recuperandae Possessionis causa,
727; CCL. Procedure under Single Interdicts, 730; CCLI. Procedure under Double Inter-
dicts, 734; CCLII. Later history of Interdicts, 737.

CCXLIII. In dealing with substantive law it has been necessary to
speak incidentally of various praetorian methods of remedy and con-
straint other than ordinary actions. Some account follows of these
devices.

RESTITUTIO IN INTEGRUM*. This was an exercise of the praetor's
imperium by which he caused to be in effect revoked or treated as non-
existent some event which had prejudiced the legal position of some
person2. It was in certain respects the most significant of the specially
praetorian remedies. Missio in possessionem was in general merely a
way of putting pressure on a party and often had nothing final about it.
Stipulaliones praetoriae were mainly ancillary to the civil law, and Inter-
dicts, though in origin they no doubt protected definite substantive and
final rights, and in some cases still had that character in classical law,
were nevertheless, in these cases, in furtherance of and not in opposition
to the civil lawr, and in the most important field of their operation for
private law, the protection of possession, they gave a provisional result3.
But it was a characteristic of restitutio in integrum that it definitely
destroyed rights existing at civil law, though they might be based on a
statute, even the XII Tables4.

Restitutio in integrum was given by a decree of the praetor, based on
his imperium5 and issued on application after enquiry6. The application
had in general to be made within an annus utilis, i.e. within a year, as it
seems of dies utiles, from the time when the disability ceased7, except in

1 P.I. 7; D. 4.1. 2 4. 1. l;h. t. 2;h. t. 7. 1. 3 Post, § CCXLVII. 4 See,

e.g., 4. 1. 6 in f. Of course actiones honorariae and exceptiones might do the same. 5 50.
1. 26. 6 4. 1. 3. 7 "Ex quo annus utilis currebat" C. 2. 52. 7, which seems to

imply that it was not an annus continuus from that date, which also is difficult to reconcile
with the four annos continues which under Justinian was a limit intended to shorten the time

CH. xv] REST ITU T 10 IN INTEGRUM 713

the case of capitis minutio in which it was perpetual1. There was post-
classical legislation dealing with this time limit2: in some cases Justinian
provided3 that the limit should be four actual years from the beginning
of the annu-s utilis, which in ordinary cases would be the cessation of
the disability, though it seems that if a new disability supervened while
the first existed the time did not begin to run while this endured, even
for transactions affected only by the first disability4.

To base a claim to restitutio in integrum there must be shewn an
interesse, i.e. some injury to a man's property rights resulting from some
transaction or from some event, such as lapse of time, which has had
legal consequences5. There was no rule specifying exactly what injuries
to property sufficed, but it is clear that there must have been such an
injury. Thus there was no restitutio against a marriage, since this could
be undone at will6, but there might be against a conveyance of dos
which had been made7. A gift of liberty was irrevocable, and thus there
was no restitutio, even where it was given under a fideicommissum in a
codicil afterwards proved to be a falsum8. Conversely there was no
restitutio where a minor had sold himself or let himself be sold as a slave
and had suffered the enslavement which resulted as a penalty, the
reason assigned being that there was no restitutio in integrum from a
status mutatio9 (a proposition quite distinct from the rules we shall meet
under which some of its effects could be set aside10). This implies that
there was no restitutio from an adrogatio or adoptio, and this seems to
have been the law. No text allows revocation of an adoptio in this way,
and indeed no property right seems to have been affected in classical
law, but there is a text in wrhich Ulpian holds somewhat hesitatingly
that a minor who, having been adrogated " se circumventum dicat," could
get restitutio11. We have seen that an adrogatus impubes could for good
reason get the adrogatio ended by emancipation, but this was a civil
process and did not annul it ab initio. There is no evidence that an adult
could get it set aside for, e.g., dolus, and from the way in which adrogatio
of a libertinus "per obreptionem" was treated13 it is likely that there was
no such right.

Any property loss sufficed, either damnum emergens or lucrum cessans1'1,
and it might be either a realised loss, e.g. a transfer of property, or a
liability incurred, an obligation undertaken or the like15, a distinction
reflected in the mode of relief.

1 4. 5. 2. 5. 2 C. Th. 2. 16. 2 = C. 2. 52. 5. 3 C. 2. 52. 7. 4 C. 2. 52. 3.

5 4. 1. l^t. 6 It has no effect on property. 7 4. 4. 9. 1. 8 40. 4. 47.

pr.; 4. 4. 9. 6. Except by the Emperor, h. t. 10. See also C. 2. 30. 2, P. 1. 9. 5 a, and

Buckland, Slavery, 566 sqq. 9 4. 4. 9. 4. 10 See Buckland, Slavery, 428.

11 4. 4. 3. 6. 12 Ante, § XLV. 13 Ante, § XLV. 14 4. 4. 44; 4. 6. 27. 15 4. 4.
41; h. t. 44.

714 RESTITUTIO IN INTEGRUM [CH.

Besides the damnum there must, however, be a iusta causa, some
ground on which the relief was claimed. Of such grounds the Edict
enumerates a considerable number.

CCXLIV. 1. Dolus1. The circumstances in which this was a
ground of restitutio have already been considered under the head of
delict2. The compilers have to a great extent suppressed the discus-
sions of it3.

2. Metus. Also dealt with in the law of delict4.

3. Minority5. A minor was entitled to restitutio where he had
suffered damage and there was no other remedy6, provided he applied
within an annus utilis from attaining the age of 257, but not if he had
confirmed his action at any time after reaching that age8, an act forced
on him, by the legal position in which he was placed, being no con-
firmation9. Restitutio was not given as a matter of course; it must be
shewn that the damage was due to his minority, i.e. to his inexperience10,
credulity or "facilitas," not merely where it turned out badly11, or the
contract was made by his predecessor in title12. It was not given to
relieve a minor from consequences of his own wrongdoing13, or, con-
versely, to enable him to enforce a penalty, as opposed14 to damages, or
where he pretended to be of full age15. It is to be observed that it was
for his own defect, not for fraud in the other party, which was not
essential16, and further that the presence of guardians at the transaction,
even where they carried it through themselves, did not necessarily bar
the claim17.

It might be given where he was afiliusfamilias, but only so far as he
was interested, not, in general, for the benefit of the paterfamilias18.
Thus, if he contracted at his father's order, the son, if sued after emanci-

\ The actio doli and actio metus are really ways of enforcing the r. i. i. This explains
why they were not treated as penal ; the restoration avoids any penalty. Hence too the
purely subsidiary character of the action (4. 3. 1. 1, 4 sqq.). Whether there was a special
edict giving r. i. i. for dolus as there was for metus (4. 2. 1) is not clear. Two texts cited to
shew it are late (4. 1. 7; 42. 1. 33), and both rest on rescripts. See however Girard,
Manuel, 430. 2 Ante, § com. 3 See however 4. 1. 1 ; 4. 1. 7. 4 Ante, § ccin.

5 For opinions as to difference of conditions giving rise to exceptio and actio e lege
Plaetoria, and those for exceptio doli and r. i. i., see Debray, Mel. Girard, 1. 265 sqq. It is
held by Partsch, Negotiorum gestio, 83 sqq., that all texts giving r. i. i. to pupilli, on trans-
actions by the tutor, are interpolated. Contra, Solazzi, Bull. 27. 296 sqq. 6 4. 4. 16. pr., 3;
P. 1. 9. 7 4. 4. 1. 1; 4. 4. 19; C. 2. 24. 1; C. 2. 52. 7, by which Justinian limited it to
four actual years. Events might make it impossible, see, e.g., 4. 4. 24. 2. 8 4. 4. 3. 2.

9 C. 2. 45. 1 ; h. t. 2. This restriction applies only to his claim for minority : it does not
follow that in an appropriate case he would not have an exceptio doli as an adult would.

1 0 A minor may be relieved against another where only one was captus, 4.4.11.6, Ulp. against
Pomponius : the text also deals with the case where both are capti. If a minor contracted
and gave security he could be restitutus in respect of both, 4. 4. 13. pr. 11 4. 4. 11.
3, 4; h. t. 44. 12 4. 4. 1. 1. 13 4. 4. 9. 2. 14 4. 4. 37. pr. 15 C. 2.
42. 2. 16 4. 4. 7. 7. 17 4. 4. 39. 1; h. t. 47; C. 2. 24. 1-5. 18 4. 4. 3. 4.

xv] REST1TUTIO IN INTEGRUM 715

patio, could apply for relief1, though the father if sued quod iussu could
not. A filia could get relief in a matter of dos, because of her interest2.
If the son contracted not iussu patris and did not apply for relief, the
father could do it for him on account of his liability de peculio3, which,
on principle, could not exceed that of the son.

4. Absence4. The Edict stated a number of cases of absence which
had led to the loss of property or the barring of a right by lapse of time,
or loss of an action for failure to appear, and promised restitutio within
an annus utilis from the time when the difficulty ceased5. The cases
mentioned are absence compelled by fear, or bona fide on State affairs,
or imprisonment, de facto slavery, or captivitas, and some similar cases
of absence of the other party, so that proceedings were impossible. It
added some cases other than absence; a magistrate had been prevented
by intercessio from acting, or had delayed matters so that the claim was
time-barred, or the other party was one who could not be in ius vocatus.
It added a proposition that the same relief would be given in other
similar cases6. The normal remedy in these cases was an actio rescissoria.

5. Error. This was riot in general a cause of restitutio, but the Edict
allowed it in certain procedural cases, some cases of plus petitio7, and
omission of an exceptio peremptoria*.

6. Alienation mutandi iudicii causa9. Where a person threatened
with litigation transferred the subject-matter to another person, so as
to change the conditions of the litigation, the praetor gave restitutio in
integrum and an actio annalis in factum, for the interesse, not available
against the heres. The cases in which this is known to have been applied
are vindicatio of property or servitude, e.g. where the thing was trans-
ferred to a "potentior," aquae pluviae arcendae and operis novi nuntiatio10.
The restitutio is suppressed in the Digest, no doubt because vindicatio
now lay against one who had dolo malo ceased to possess. It is thus
difficult to determine the field of each remedy11.

1 4. 4. 3. 4. The reference to action before emancipatio is in part at least interpolated.
24.4.3.5. 3 4. 4. 27. pr. 4 See Lenel, E.P. 1 1 7. 54.6.28.3,4.

6 4. 6. 26. 9-28. 1. 7 G. 4. 53; for adults only where the error was an entirely ex-

cusable one. Inst. 4. 6. 33. Another case, G. 4. 57. 8 G. 4. 125. See P. 1. 7. 2. Lenel
(E.P. 120) points out in 44. 2. 2 similar relief in a " dilator ia" case, of which Gains doubts
the possibility. 9 D. 4. 7. 10 C. 2. 54; D. 4. 7. 3; h. t. 4. Cases coming under

'''quod vi aut clam" are also mentioned in h. t. 3. 11 The existence of this r. i. i. has

been denied. See for discussion and statement of principal views, Pissard, Jf.R.H. 34.
377 sqq.; Lenel, Z.S.S. 37. 104; Beseler, Beitrdge, 2. 153 sqq.; Kretschmar, Z.S.S. 40.
136 sqq. The machinery was independent of that dealing with alienation of a res httgtosa.
By an edict of Augustus, no doubt a direction to the magistrates, any sale of property the
subject of pending litigation, by the plaintiff, was forbidden, an exceptio being given in
any action by the buyer, who was also liable to a penalty, presumably only if he acted
knowing the state of things (G. 4. 117 a; Fr. de i. fisci, 8). The exceptio, which may have
been in factum and stated in the Edict (Lenel, E.P. 493), did not prevent sale by a

716 RESTITUTIO IN INTEGRUM [CH.

There were other cases of restitutio of less importance. Such were the
cases of one who had dealt in good faith with a pupillus under the
auctoritas of one who was not in fact tutor1, of creditors of one who had
been adrogated or had passed into manus2, and at least some cases of
translatio iudicii3.

The damage against which relief might be claimed being of many
kinds, the relief itself varied. Thus, where a right of action, or of property,
had been lost, the remedy was an actio rescissoria*, in which there was a
fiction that the disqualifying event had not occurred. Where an obliga-
tion had been incurred, the remedy might be an exceptio5 or denegatio
actionis6. Where the relief was against entry on a hereditas, it was by
refusal of actiones hereditariae, both ways7. In some cases it was an
actio infactum or utilis of some sort8. It is to be noted that all this is by
ordinary procedural machinery. The praetor's enquiry resulted in a
decree of restitutio, but the further steps under it, apart from denegatio
actionis, were, in general, judicial, not praetorian cognitiones. In two
texts, however, we are told that the praetor himself, in the case of sale
by a minor, could order the acts needed to effect the restitutio9. This does
not appear in any other case.

The questions remain: against whom and in favour of whom might
restitutio be granted? On the first point we have seen that the rules in
dolus differ from those in metusw. Apart from this, it was available
against the wrongdoer or the immediate beneficiary from the act, or his
universal successors, but not against ordinary acquirers from him11,
while minors could get restitutio in rem, i.e. against any holder, the
defendant having a right to claim from his auctoriz. On the other hand
it was excluded against a patron or pater under Justinian13 who says that
the classics had doubted, and a decree of restitutio was of no avail
against persons not summoned to the cognitio of the praetor: it was res
inter olios acta1*.

On the second point, there is an express provision of the Edict that

defendant, in possession. An enactment of 380 (C. 8. 36. 3) dealt with gift by will of such
things by either party and provided, in effect, that the bequest should not be operative
till the litigation was over. In 532 Justinian declared void all transfers by either party, a
buyer with knowledge being bound to restore the property and pay an equivalent penalty
to the fiscus, a buyer in ignorance being entitled to recover the price and one- third more
(C. 8. 36. 5).

1 27. 6. 1, etc. 2 Ante, §CXLI; Lenel, E.P. 113. 3 Ante, § CCXLI. 4 E.g. 4.
6. 28. 5. 5 E.g. 4. 2. 9. 3. 6 E.g. 4. 4. 27. 1. 7 See 4. 2. 21. 5. 8 E.g.

4. 5. 2. 1; 4. 7. 4. 5. 9 See Girard, Manuel, 1082, n. 4. D. 4. 4. 13. 1 is explicit; h. t.

24. 4 somewhat less so; h. t. 41, also cited ib., has probably been altered. G. attributes the
singularity to the word " animadvertam" in the edict. 10 Ante, § ccrrr. 11 4. 6.

21. 1. M ilites have a special privilege, 4. 6. 17. 12 4. 4. 13. 1 ; h. t. 15. 13 C. 2.

41. 2. 14 4. 4. 29. 2.

xv] MISSIO IN POSSESSIONEM 717

the heres or other universal successor of one entitled to restitutio in
integrum had the same right for the rest of the time which was left to
the deceased, with a further provision that where the heres was himself
a minor this time began to run only from the moment when his minority
ceased1. Restitutio against dolus or metus released also sureties for the
person affected2, but restitutio of a minor did not necessarily release his
sureties since it may well have been on account of his minority that
sureties were taken3. They were, however, released if there was any
dolus or the like4, and where the restitutio was against acceptance of a
hereditas, any sureties were released whose liability was undertaken not
for the man affected, personally, but for him in his capacity as heres5.

It should be noted finally that there were cases of restitutio not pro-
vided for in the Edict, but resulting from juristic interpretatio. Thus
where one had brought an actio de peculio and had not obtained full
satisfaction, he could get restitutio in integrum though the litis con-
testatio had consumed his right6. This was clearly classical. There are
many other cases, though some of them are no doubt due to Justinian.

CCXLV. MISSIO nv POSSESSIONEM"*. This was ordered by decretum
of a magistrate having the imperium, and thus was not within the powers
of a municipal magistrate8. It may be described generally as giving to
a party to a dispute, actual or potential, some amount of possessory
right over property. Its purposes varied and thus its effects were not
uniform. In some cases it covered the whole property of a person, in
others a complex of property, e.g. a hereditas, not necessarily the whole
property of the person affected, in others a specific thing. Essentially it
was provisional, but it will be clear on examination of some of the cases
that in the long run it might have the effect of destroying civil law
rights. The chief cases were the following:

Missio in possessionem on a judgment, with the connected cases. In
a certain sense, all missio in possessionem may be said to be "m servandae
causa" but the name is specially applied to cases in this group, that of
iudicatus or condemnatus, latitans, indefensus, deceased insolvent without
a heres, one who has made cessio bonorum, and qui capitali crimine
damnatus est9. The ultimate effects of this missio have been considered;
it might result in bonorum venditio, but in some cases the decree led to
the appointment of a curator and to a limited right of sale or no such

1 4. 1. 6; 4. 4. 19; Lenel, E.P. 125. 2 4. 2. 14. 6; C. 2. 23. 2. 3 P. 1.

9. 6; D. 4. 4. 13. pr.; C. 2. 23. 1, 2. 4 C. 2. 23. 2. 5 29. 2. 89. 6 Ante,

§ ccxxxv for this and similar cases. 7 See Ramadier, Missio in bona rei servandae

causa. Apart from the cases specially provided for by the Edict or legislature the magis-
trate might apparently give m. i. p. by virtue of his imperium, causa cognita, where cir-
cumstances required it. 8 2. 1. 4; 50. 1. 26. 9 As to this case, see Lenel,
E.P. 405.

718 MISSIO IN POSSESSIONEM [CH.

right at all, as in the case of persons of senatorian rank or pupilli inde-
fensi1.

The decree gave a right to take possession, but did not effect the
actual transfer of possession of any physical thing, in fact or in law. The
creditors might take possession for custody, but, under the first decree,
might not expel the debtor2. They might proceed to all necessary acts
of administration, such as letting the property, but if they had to bring
an action they must appoint a curator3. They had an actio in factum
against one who prevented them from getting control of items of the
estate4. They were liable for dolus5. They had rights to contribution for
proper expenses6, the actions between the creditors being in factum7. It
does not seem that the existence of a curator affected this except that
where there was one, there was in general no obligation on the creditors
themselves to administer8.

Missio in bona in the case of adrogatus and woman in manu9.

Missio in bona ems qui vindicem dedit10.

Missio in possessionem of pupillus whose tutor has failed to provide
sustenance. It was rei servandae causa giving the right to possessio. A
curator was appointed with limited administration; he might sell what
must be sold. It was post-edictal, having been created by Severus and
Caracalla11.

These are all cases covering the whole estate of the person affected;
there was another group, mostly in connexion with succession, in which
it was a whole estate, but not necessarily the whole estate of the other
party.

Missio in possessionem dotis conservandae causa. Little is known of
this as it was rendered obsolete by Justinian's provision of a right of
hypothec12. It was a decree giving the widow, not possessio with inter-
dicts, but merely custody of her deceased husband's property to secure
her dos. She had a right of administration, could take rents, and sell
"moveniia," and must allow all receipts against dos and interest13.

Missio in possessionem ex Edicto dim Hadriani1*. Where there was a

1 Ante, § ccxix. 2 41. 2. 3. 23. 3 42. 5. 14. pr. 4 43. 4. 1. 5 42. 5.
9. pr. 6 42. 5. 9. 4. 7 42. 5. 9. pr. 8 The magister had only to attend to

the venditio bonorum. His appointment did not dispense the creditors from administering,
G. 3. 79. A curator would be appointed if an action was to be brought or defended and
probably in all cases in which the matter was likely to involve delay, as in the case of a
pupil. Apparently also if it was necessary to sell individual assets (26. 10. 7. 2; 42. 5. 14.
pr.). But there is much obscurity about the various cases of curatio bonorum. It does not
seem clear that the missi themselves, apart from curator, had any power of selling fruits.
Ramadier, op. cit. 98 sqq. 9 Ante, § CXLI. 10 Ante, § ccxv. This is distinct

from the cases of indefensus and the like and is in a different part of the Edict, Lenel,
E.P. 21. 11 26. 10. 7. 2; Inst. 1. 26. 9. 12 Ante, § XL. 13 Lenel, E.P.

293, cites, as referring to it, 6. 1. 9; 44. 3. 15. 4; 46. 3. 48; 50. 1. 26. 1; C. 7. 72. 8.
14. C. 6. 33; Lenel, E.P. 350.

xv] MISS 10 IN POSSESSIONEM 719

will formally valid but alleged to be ruptum or irritum, or a substitute
claimed that he was entitled, the scriptus heres could claim within one
year1 to be given possession of what was possessed by the deceased,
pending the decision, provided the will had been formally proved.
Justinian tells us that the aim of this was to secure the tax on inherit-
ances. Nothing is known of the position of the heres, but, as he paid the
tax, he must have had a power of administration. Justinian abolished
the system2.

Missio in possessionem ventris nomine. The Edict provided that,
where a woman was shewn to be pregnant of a child, who, if born, would
be suus heres of the deceased, the "venter" could have missio in posses-
sionem, a curator being appointed3. There was an interdict4. The curator
might be simply to the "venter," in which case the creditors had custody
of the estate, or to the bo no, also, with the ordinary powers of administra-
tion5. The woman was entitled to maintenance out of the estate, in any
event6, with no duty to account even though no successor was born alive;
it was more important that the child should be secured than that the
estate should reach the other person entitled without diminution7. This
was a case of real possessio; it was in fact bonorum possessio, but " de-
cretalis8."

Missio in possessionem ex Carboniano edicto. This also was bonorum
possessio decretalis9. Where it was alleged that an impubes set up as
heres was not really entitled, because he was, e.g., a supposititious child,
he was given bonorum possessio under this edict, with the ordinary
results of bonorum possessio provided satisdatio was given, the decision
being ordinarily deferred till he was pubes10. By juristic inference from
the last case he was entitled to maintenance in any event out of the
estate, without account11.

Missio in possessionem curatoris furiosi heredis. Also a case of b. p.
decretalis12. Where a furiosus was made heres, neither he nor his curator
could claim ordinary bonorum possessio13, but, on application, he or his
curator, or if neither of them applied, those entitled in his absence, could
get possession with ordinary powers14, until he became capax or died,
when normal bonorum possessio could be given accordingly. He was
presumably entitled to maintenance in the meantime16. Justinian abol-
ished the system, and provided that a curator could apply for ordinary

1 P. 3. 5. 16. 2 C. 6. 33. 3. 3 37. 9. 1. 2; h. t. 5. Rescript of Hadrian in

case of dispute, h. t. 1. 14. 4 43. 4. 3. 2. 5 37. 9. 1. 17. 6 37. 9. 1. 19.

7 37. 9. 1. 2, 3; h. t. 3. 8 38. 15. 2. 2-4; ante, § CXL. 9 37. 10. 1. pr.; ante,

§ CXL. 10 In the interest of the child the praetor might authorise immediate hearing,

37. 10. 3. 5. 11 37. 10. 5. 2, 3. 12 37. 3. 1. 13 //,. 14 37. 3. 1, med.

15 Arg. from preceding cases.

720 M1SS10 IN POSSESSIONEM [CH.

bonorum possessio for the furiosus, the grant becoming void if the
furiosus died still insane or repudiated it on reaching sanity1.

Missio in possessionem si heres suspectus non satisdabit. The rules of
bonorum separatio contemplated a heres clearly insolvent2, but apart
from this if the creditors of the deceased could shew that the solvency
of the heres was doubtful, they were entitled, causa cognita, to require
security, and, failing this, to missio in possessionem of the hereditas, and
to proceed in due course to bonorum venditio3.

Missio in possessionem, in hereditatis petitio, if the possessor evaded
process. It was of the hereditas and thus differed from the ordinary
missio in possessionem of a defendant "latitans" —that was over all his
goods. The present institution is due to Antoninus Pius4. The missus
took the fruits and kept them, thus putting pressure on the other
party.

Missio in possessionem where the question whether there would be
a heres was " diu incertum." The decree issued only "causa cognita" and
if necessary it might authorise the appointment of a creditor as curator5.

Missio in possessionem legatorum servandorum causa. If a legacy or
fideicommissum was, by reason of condition, term or other cause, not
immediately paid, the beneficiary was entitled to security from the heres,
and if this was refused, to possessio of the hereditas6. The main rules
have already been stated7. The chief effect was to impose on the legatee
a duty to preserve the assets, and to give him a sort of pledge which pre-
vented the heres from creating any rights which should take priority of
his8. He had an interdict, and9, at least in later law, the possession
might be enforced by officers of court10. A further right created by
Caracalla, under which one whose claim was clear and who had not
received payment or security, could after six months' notice enter into
possession of the goods of the heres applied, till Justinian, only to fidei-
commissaries.

There remain cases of missio in possessionem of specific things.

Missio in possessionem in rem of the fideicommissary. If the heres
sold property of which there was a fideicommissum the fideicommissary
could get missio in possessionem of it against a buyer with notice of the
trust11, and we are told that this would be enforced "potestate praetoris,"
an officer of court actually carrying out the order12. The text is not above
suspicion; in any case this was exceptional. Justinian abolished the

1 C. 5. 70. 7. The change is slight in effect : no need of a decretum, Girard, Manuel,
888. An inventory must be made. Similar provisions are applied to other gifts by will,
h. 1. 7. 2 Ante, § ex. 3 42. 5. 31. pr.-3. 4 42. 4. 7. 19. 5 42. 4. 8;

h. t. 9. pr. 6 36. 3. 1 ; h. t, 13; 36. 4 passim. 7 Ante, § cxxn. 8 36. 4. 5.

22; h. t. 11. 1. 9 43. 4. 3. pr.; Lenel, E.P. 438. 10 36. 4. 5. 27. 11 P. 4. 1. 15.
12 43. 4. 3. pr.

xv] STIPULATIONES PRAETOR1AE 721

institution calling it a " tenebrosissimus error"; we know little of its
working1.

Missio in possessionem damni infecti causa. This is a case in which
damage to a man's property was threatened by the ruinous state of that
of his neighbour. The original remedy was by legis actio2, but this was
practically superseded by praetorian machinery3. On application to the
praetor, notice and other formalities4, he would order that security
should be given against the damage (stipulatio praetoria5), and if this
was not given a decree " in possessionem ire" would issue6. This merely
entitled the aggrieved person to go on the land without ejecting the
owner7, and apparently it might, by delegation, be issued by a municipal
magistrate8. It did not confer actual possessio, but there was an actio in
factum if it was resisted9. If the owner of the ruinous tenement persisted
in refusing security or putting the matter right, a second decree might
be issued by a magistrate with imperium, giving the actual right of
possessio10. This appears to have conferred actual praetorian ownership,
excluding the old owner and ripening to civil ownership by usucapio11,
but there were provisions protecting the rights of third parties12.

CCXLVI. STIPULATIONS PRAETORIAE™. These were verbal con-
tracts, not voluntary, but forced on a party to a dispute by the praetor,
and giviiig an ordinary action if the promise was not kept. Refusal to
make the promise was dealt with differently in different cases; we have
already seen the use of these stipulations in procedure and how refusal
was dealt with14. Apart from procedure the principal cases appear to
be the following.

Damni infecti. As we have seen refusal led to missio in possessionem.
It was in the discretion of the magistrate whether the promise should
be by promise or by surety15.

1 C. 6. 43. 3. 2 Ante, § ccxm. 3 G. 4. 31. 4 39. 2. 4. 5. 5 G. 4.

31. 6 39. 2. 4. 1. 7 See 39. 2. 4. 4. 8 39. 2. 4. 3. 9 39. 2. 4. 2.

10 39. 2. 4. 4. 11 39. 2. 5. pr.; h. t. 12. No doubt even the second decree will be

nullified if the person liable falls into line before the usucapio is complete. 12 39. 2.

5; h. t. 10 sq. The security was against damage within a certain time and was renewable,
h. t. 13. 15-15. 1. The interdict mentioned in 43. 4. 4. pr. is presumably available only
after the second decree. Arg. 39. 2. 4. 2. 13 Lenel, E.P. 493. We are told that

praetorian stipulations are "ad instar actionis" (16. 2. 10. 3; 44. 7. 37). The point seems
to be that a man is entitled to these in certain circumstances, under the Edict, just as he
may be entitled to an action, that their content is determined by the Edict (or the praetor,
46. 5. 1. 10; h. t. 9), so that he is, if the circumstances entitling him arise, in much the
same position as if he had applied for an action, the compulsory stipulatio providing in fact
the intentio for his action. As to the distinction between stip. praetoria, iudicialis, com-
munis, ante, § CLUE. See, for another classification of them, 46. 5. 1. 14 Ante, §§ coxvi,
CCXL. Such are iudicatum solvi, pro pr. litis et v., de rate, etc. 15 39. 2.13. 1; h. t. 30,

etc. In general, if on his own land, promise suffices, if in alieno, satisdatio needed, h. t.
51. 2, etc. An interpolated text makes the promise binding on alienees of the property,
39. 2. 24. 1 a.

B. K. L. 46

722 STIPULATIONES PRAETORIAE [CH.

Operis novi nuntiatio. If work was being done or about to be done to
land, of a nature to injure a neighbour's land, e.g. by causing a great
flow of water1 or a nuisance of smoke2, or to interfere with his rights,
e.g. light3, the neighbour after notice given on the spot might bring the
owner before the praetor4. If a prima facie case was shewn the praetor
would order a promissio not to do the act, the words being so framed
that there was no liability if in fact the work was lawful6. If the promise
was refused there was an interdict6 or in some cases an actio infactum"7.
The promise was normally by surety8.

Collatio bonorum vel dotis. This has already been considered9. The
promise was with surety10. If it was refused the remedy was refusal of
bonorum possessio or of further proceedings under itu.

Under the /. Falcidia12. If there was a possibility that the legacy
would have to be cut down, a promise with surety, to refund propor-
tionately, if necessary, could be exacted. If it was refused the action on
the legacy was denied. Similar rules were in practice applied to fidei-
commissa13.

Eviction of the hereditas. The praetor, if he thought fit, causa cognita,
would require a promise, with surety14, to restore a legacy if this oc-
curred15. Refusal involved denial of action on the legacy16, and if it was
inadvertently paid, without security, there was condictio to have the
security given17.

Usufruct and similar rights18: the person entitled must give security
for proper use, and for restoration on expiry of the right. The rules were
similar to those in the last case19.

Legatee against universal successor. We have seen that security
could be required, with surety20. Refusal involved missio in posses-
sionem.

Rem salvam pupillo fore. This and the means of enforcement have
been considered21.

Satisdatio secundum mancipium, a problematical case22.

1 As to the old actio aquae pluviae arcendae, where the work is already done, ante,
§ CLXXXVTI. See also for other remedies where the work has been done, 39. 1. 1.
2 Arg. 8. 5. 8. 6. 3 39. 1. 5. 9. Not positive servitudes, h. t. 14. 4 39. 1.

1; h. t. 5. 2. 5 Lenel, E.P. 524. 6 39. 1. 20. pr. 7 39. 1. 20. 1.

8 39. 1. 8. 2, 3. The machinery is uncertain, the compilers having altered the texts.
The nuntiatus could apply for remission of the notice (D. 43. 25). This seems normally
to have been a remissio except so far as the nuntians had a right of prohibition (39. 1. 1. pr.
or on giving security — here the remissio was complete, 43. 24. 7. 2), but the subsequent
procedure is much disputed. See for principal views and a hypothesis, Martin, Etudes
Girard, 1. 123 sqq. 9 Ante, § cxm. 10 37. 6. 1. 9. 11 37. 6. 2. 8; h. t. 3.

12 Ante, § cxix. 13 35. 3. 1. pr.; h. t. 3. 1; h. t. 6. 14 35. 3. 4. pr.

15 76. ; h. t. 8. 16 Arg. 35. 2. 53. 17 35. 3. 3. 10. 18 Ante, § xcv.

19 Ante, § xcv. See 7. 9. 7. 20 Ante, § CCXLV. 21 Ante, § LV. 22 See

Lenel, E.P. 521.

xv] INTERDICTS 723

CCXLVII. INTERDICTS1. These were in many respects the most
important of the specially praetorian remedies. The Interdict was an
order of the magistrate2 issued on application and giving rise to further
proceedings if it was disregarded. In early times it may have been en-
forced by the magistrate's authority, but, as we know it, it was the
initial step in an ordinary piece of litigation, with special formalities.
It was in form praetorian and was, in most cases, set forth in the Edict.
But the right which it protected was not necessarily praetorian. There
were many rules of the civil law for breach of which no action was given,
but the enforcement of them was left to the imperium of the magistrate.
This was the function of most of the interdicts which related to public
interests, e.g. those for the protection of public ways and places3. But
many private rights were similarly protected. The XII Tables contained
a clause entitling a man to enter his neighbour's land to gather fruits
which had fallen over the boundary. This was enforced by the interdict
de glande legenda*, and there were others of the same type5. How the
order was at first enforced is unknown, but it is probable that from very
early times it was, as in later law, by sponsiones. These and, no doubt,
many other interdicts, existed before the praetor began to issue general
edicts. This is a fact which must be borne in mind, since it helps to
explain one at least of the peculiarities of the interdict.

From the account in Gains it is natural to assume that the interdict
was a provisional remedy, i.e. that it and its dependent procedure did
not finally settle the question at issue but merely determined which of
two parties was to be plaintiff and which defendant in some litigation of
the ordinary kind in contemplation. This no doubt is not far from the
truth in the case of possessory and quasi-possessory interdicts, and, in
relation to two of these, uti possidetis and utrubi6, it is evidently their
purpose as they are known to us in the classical law. But it is not true
of many other interdicts, of de glande legenda, or of the mass of interdicts
which have nothing to do with possession. This has been well illustrated
by a contrast7. If a man was in actual enjoyment of a way over land
and was interfered with by the owner, X, he could get the interdict de
itinere, forbidding the interference and practically compelling X, if he
wished to stop the enjoyment, to bring his actio negator ia8, in which the
question whether there really was a right of way would be finally
settled9. Nothing could be more provisional than the operation of this

1 Ubbelohde, Die Interdicte. 2 On the questions of its basis in imperium or

iurisdicfio and of the capacity of municipal magistrates, see Ubbelohde, op. cit. 1. 6 sqq.
3 D. 43. 7-14. 4 43. 28; Girard, Textes, 17. 5 E.g., de rnortuo inferendo, Lenel,

E.P. 441; si' arbor... impendebit, ib. 467, etc. 6 Post, § CCXLJX. 7 Accarias, Prdcis,

2. 1217. 8 Ante, § ccxxvm. 9 43. 19. 1.

46—2

724 CLASSIFICATION OF INTERDICTS [CH.

interdict. If however a man was in enjoyment of a right of way and
wished to repair the path, but was prevented from so doing, he could
get an interdict forbidding the interference, but, to succeed under it,
he must prove that he had a legal right to repair the way1. There was
nothing provisional about this. The ordinary possessory interdicts being
fully described by Gaius are better known to us than any others, and,
as they were in effect provisional, it is easy to fall into the mistake of
supposing that the provisional character is due to something inherent
in interdicts. In fact it has nothing to do with their character; the pro-
visional character is in the right of possession. So soon as the praetor
had resolved that a peaceable de facto enjoyment should not be inter-
fered with except by legal process, he had created provisional rights, and
the protection would have had the same apparently provisional char-
acter whether it had been by interdict, as it was in classical law, or by
possessory action, without previous issue of an interdict, as it was in the
time of Justinian.

CCXLVIII. Interdicts were very numerous. Of many we know the
form, at least approximately2. Of others we know only that they existed,
and no doubt there were many more of which we know nothing. Inter-
dicts were classed in many ways of which the most clear and exhaustive
is into Exhibitory, Restitutory and Prohibitory3.

Exhibitory interdicts. They were orders to produce a person or thing
the subject of dispute. They ended with the word "exhibeas." The few
known interdicts of this type were mostly concerned with rights over
persons. Thus the interdict "quern liberum," for the case in which a
freeman was alleged to be wrongfully detained, ran: "quern liberum dolo
malo retines exhibeas*." Of the same type were those for the production
of children or freedmen alleged to be wrongly detained5, and, though
this was later than the Edict of Julian, one for the case of a wife6. In
the case of wife and children the production would be folloAved if neces-
sary by another interdict of the prohibitory type, de liberis ducendis, de
uxore ducenda7, the case not being one for ordinary actions. For property
the interdict was usually not needed as the actio ad exhibendum* sufficed,
but there was at least one interdict for production of property, i.e. that
de tabulis exhibendis for the case of a will alleged to be wrongly sup-
pressed9. There would be difficulty in the actio ad exhibendum, since till

1 43. 19. 3. 11. For other interdicts involving proof of proprietary right, Ubbelohde,
op. cit. 1. 170. He holds that about half the known interdicts are definitive — among them
many relating to private land. But in many of the cases the evidence is insufficient.
2 See especially Lenel, E.P. 430 sqq., where the known interdicts are collected. 3 G. 4.
140—142; Inst. 4. 15. 1. See, generally, on classifications of interdicts, Berger, Z.S.S.
36. 176 sqq. 4 43. 29. 1. pr. 5 43. 30. 1. pr.; G. 4. 162; Inst. 4. 15. 1. 6 43.

30. 2. 7 43. 30. 2; h. t. 3. pr. 8 Ante, § CLXXXVH. 9 43. 5. 1. pr.

xv] CLASSIFICATION OF INTERDICTS 725

the contents of the will were known it was impossible to say who had
a right to it. Thus, if it was the will of a living man, the interdict did not
apply, but the actio ad exhibendum did, because he was the owner1.

Rcstitutory interdicts. These interdicts, which were numerous, were
essentially orders to restore or undo something which had been done
contrary to law, ending with the word "restituas*." Many of them dealt
with public rights such as those ordering an end to be put to inter-
ferences with solum publicum, sacrum, sanctum, public ways, rivers,
etc., e.g., " quod in flumine publico ripave eius immissum habeas si ob id
aliter aquafluit quam priore aestate fluxit, restituas3." Others dealt with
private rights, e.g. the interdict de precario for restoration of what was
given in precario*, the inter -dictum fraudatorium to set aside transactions
in fraud of creditors5, the interdict quod vi out clam, which ran: "quod
vi aut clamfactum est, qua de re agitur, id, si nonplus quam annus est cum
experiendi potestas est, restituas6," and others with which we shall have
to deal in connexion with possessory interdicts, e.g., quam hereditatem
and its congeners7, quod legatorum8, quorum bonorum9 and unde

vi™.

Prohibitory interdicts. This was the most numerous class. These
interdicts forbade some act and usually ended with "veto" or "vim fieri
veto," where they were prohibitions of interference with some act of
enjoyment, but some of them, e.g. that forbidding interference with
public rivers, had, according to Lenel, a different form. This interdict
he states as: "ne quid in flumine publico ripave eius facias, neve quid in
flumine publico neve in ripa eius immittas quo statio iterve navigio deterior
sit flat11." Many prohibitory interdicts dealt with interference with en-
joyment of public ways and rivers and the like, such as that last men-
tioned, the group of prohibitory interdicts dealing with loca publica,
sacra, sancta, etc.12 (which ran parallel with those ordering restitution
in case of past interference and with others forbidding interference with
persons repairing them13) and others14. Some dealt with similar inter-

1 43. 5. 1. 10. 2 Ubbelohde, op. tit. 1. 195 sqq. 3 43. 12. 1. 19. These are

interdicta popular ia. As to the measure of damages in these cases, Ubbelohde, op. at.
1. 47 sqq. 4 43. 26. 2. pr.; ante, § CLXXXI. 5 42. 8. 10. pr.; ante, § com.

6 43. 24. See Lenel, E.P. 464. This remedy is available where anyone has done an act,
secretly or by force (and both these words are construed very freely, e.g. a word of protest
makes the act "vi," 43. 24. 1. 5 sqq.), by which harm is caused to the soil, or to buildings or
the like, permanently part of it. It is indifferent where the act was done, though most of
the texts deal with acts done on the injured land. It is indifferent that the act itself was
lawful: the conditions in which it was done make it a wrong. The interdict is annua. As
in the other cases in this group Justinian's treatment of the texts makes the matter some-
what obscure (D. 43. 24). 7 Post, p. 729. 8 Ante, § oxxxvn. 9 Ante,
§cxxxvn. 10 43. 16. 1. pr. 11 43. 13. 1. pr.; Lenel, E.P. 444. 12 43.
6 sqq. 13 43. 11. 14 de via publica, 43. 10; de cloacis, 43. 23.

726 CLASSIFICATION OF INTERDICTS [CH.

ferences with private ways and the like1, of which that de itinere may
be taken as an example: "quo itinere quo de agitur, hoc anno nee vi nee
clam nee precario ab illo usus es quominus ita utaris vim fieri veto2."
Others enforced ancient rules affecting relations of adjoining owners3.
Others ordered the handing over of a child (later a wife) unjustly de-
tained4. Others dealt with rights of burial5, others were part of the pro-
cedure under operis novi nuntiatio6. One dealt with interference with
removal, by a tenant, of a slave not subject to a lien for rent7, and there
were in addition the numerous interdicts we shall have to consider in
dealing with possessory interdicts. According to Gaius these prohibitory
interdicts were called Interdicts, in a narrow sense, the other groups
being also called Deer eta9.

Before passing to other classifications it should be noted that the
peremptory form of interdicts masks two characteristics, which will be
considered more in detail in connexion with the procedure under them.
The interdict stated precisely the circumstances in which the duty
arose, so that it was a merely conditional order, as can be seen by ex-
amining those set out above. Further, the peremptory form does not
really indicate any direct coercive process of the praetor. The subsequent
proceedings, in case of dispute, were, after certain preliminaries, merely
ordinary actions resulting in a condemnatio or absolutio with the usual
characteristics.

CCXLIX. Interdicts are also classified as Non Possessory and
Possessory. The latter were by far the most important in the private
law, but the different types of non possessory interdicts already men-
tioned need a few remarks. Some were for the protection of private
rights, not dependent on possession, of which class de glande legenda is an
example. Others were so far private that they dealt with the prevention
of the enjoyment by a particular person of a public right. Such was the
interdict: ''ut via publica, ire agere liceat9." Others were simply for the
protection of public rights, e.g. that for preventing interference with, or
damage to, a public way. Of this interdict we are expressly told that it
aimed at utilitas publica and that it was popular e, i.e. could be brought
by anyone10. It must be remembered that the mode of enforcement here
was the same as in private interdicts.

1 De fonle, 43. 22; de fonte reficiendo, 43. 22. 1. 10; de itinere privato, 43. 19; de itinere
private reficiendo, 43. 19. 3. 11; de aqua, 43. 20; de rivis, 43. 21, etc. 2 43. 19. 1. pr-

3 de glande legenda, above, 43. 28, and de arboribus caedendis, for interference with one who
cuts away trees overhanging his land, 43. 27. Both these enforce rules in the XII Tables.

4 De liberis ducendis, de uxore ducenda, 43. 30. 2. pr. ; h. t. 3. 5 De mortuo in-
fer endo, de sepulchro aedificando, 43. 1. 2. 1. 6 Ante, § CCXLVI. 7 De migrando,
43.32. 8 C4. 4. 140; Inst. 4. 15. 1. 943.1.2.1. 10 43. 8. 2. 2; h. t.
2. 34.

xv] POSSESSORY INTERDICTS 727

Possessory interdicts were either Single or Double1, the nature of
which distinction will appear in the discussion of the procedure. They
were subdivided into three groups, adipiscendae, retinendae and recu-
perandae possessionis causa2 (with a group, mixed, or double, in
another sense in that they might be either adipiscendae or recuperandae
possessionis causa)3. They are the appropriate remedy for the provisional
right of possessio already considered4. Besides the true possessory inter-
dicts there were others in modified form for the analogous protection
necessary for the so-called quasi-possessory rights5 arising in connexion
with res incorporates, usufruct and the like.

(i) Adipiscendae possessionis causa. These, as their name shews, were
the machinery by which possession was obtained by one entitled to it
who had not yet had possession. The most important of these was the
interdict quorum bonorum for the enforcement of bonorum possessio*.
Closely connected with it was the interdict quod legatorum, by which
the bonorum possessor gained possession from one who held the property
against his will on the pretext, true or not, of being a legatee under the
will7. Others were:

Interdictum sectorium, the means by which the buyer of the estate of
a debtor to the fiscus, usually in cases of forfeiture, could gain possession
of what was in the hands of third persons8.

Interdictum Salvianum, to enforce the landlord's hypothec for rent9.

Interdictum possessbrium. One of the remedies of the bonorum emptor
in bonorum venditio. Little is known of it. The name is not official10.

Interdictum fraudatorium. One of the means of setting aside acts in
fraud of creditors11. There is no real authority for the name, and the
compilers of the Digest have so confused the different remedies that
little can be said of its rules12.

(ii) Retinendae possessionis causa13. These were so called as having
the function of securing a possessor, whose title was disputed, in his
actual holding, though in their working, as will shortly be seen, they

1 G. 4. 156, 160; Inst. 4. 15. 7. 2 G. 4. 143; Inst. 4. 15. 2. 3 43. 1. 2. 3 in f.;

Vat. FT. 92; post, p. 729. 4 Ante, § Lxxn. 5 E.g. 43. 17. 4; 43. 18. As to

the terminology, ante, § LXXU. 6 43. 2. 1 ; ante, § cxxxvn. According to Lenel, it

ran (E.P. 456): "Quorum bonorum ex edicto meo illi possessio data est, quod de his bonis
pro herede aut pro possessore possides, possideresve si nihil usucaptum esset quodque ille
male fecisti uti desineres possidere, id illi restituas." 7 43. 3. 1. 2; Vat. FT. 90. Some
texts give this interdict to the heres as such (C. 8. 3. 1; D. 35. 2. 1. 11; h. t. 26. pr.; 46.
3. 40). This was formerly accepted as classical law and this view has recently been revived
by Lotmar, Z.S.S. 31. 129. But it is generally held that the texts are interpolated. A
legislative change about 200 A.D. is possible, on which view C. 8. 3. 1 would be genuine.
See Lenel, E.P. 437; Mel. Girard, 2. 63; Perrot, £t. Oirard, 1. 171. 8 G. 4. 146.

9 Ante, § CLXVI. 10 G. 4. 145. 11 Ante, § com. 12 See Lenel, E.P. 475.

It is held by many writers that, notwithstanding G. 4. 144 sqq., these interdicts are not
properly called possessory. 13 G. 4. 148; Inst. 4. 15. 4.

728 POSSESSORY INTERDICTS [CH.

might operate quite differently. There were two principal forms with
variants. They were the two double interdicts, uti possidetis and
utrubi1, the use of which, as we know them, was to determine which of
two parties was to have possession, and the resulting advantageous
position of defendant, in an impending real action, the burden of proof
being of course on the plaintiff.

Uti possidetis. This was used in the case of land. In classical law it
ran somewhat as follows: "uti nunc eas aedes quibus de agitur nee vi nee
clam nee precario alter ab altero possidetis quominus ita possideatis vim
fieri veto2." Thus the possession was by these terms adjudged to the
actual possessor unless he had obtained it vi clam or precario from the
other, in which case it was given to that other. In that case it did not,
strictly, retain possession; no doubt the words producing that effect
were not part of the primitive structure of the interdict.

Utrubi. This was the interdict for moveables: "utrubi hie homo quo
de agitur maiore parte huiusce anni nee vi nee clam nee precario ab altero
fuit, quominus is eum ducat vim fieri veto5." Here the possession was
adjudged to that party who had held it longer than the other in the
past year, a difference of considerable importance4. The differences were
gone under Justinian when both interdicts, or rather the possessory
actions which had taken their place, were governed by the same rule,
that of uti possidetis5.

Besides these, there were accessory forms, such as uti possidetis utile,
for usufruct6 and no doubt usus, and the interdict de superficiebus
modelled on uti possidetis for the case of superficies'7.

(iii) Recuperandae possessionis causa*. These, as their name shews,
were for the purpose of recovering a possession of which one had been
deprived.

De vi cottidiana9. Anyone who had been turned out of possession,
by force of an ordinary character (non armata) had this interdict to
recover possession. It ran: "wide in hoc anno tu ilium vi deiecisti aut
familia tua deiecit cum ille possideret quod nee vi nee clam nee precario a
te possideret eo ilium quaequeille tune ibi habuit restituas10." This is very
like uti possidelis, and would often be alternative to it. It was confined
to the case of dispossession from land by real force11, and was brought

1 It. ; D. 43. 17; 43. 31. As to the use of ufi possidetis in later law against a mere
trespasser who raises no counter-claim of right (43. 17. 3. 2-4), see Girard, Manuel, 285
and reff. 2 43. 17. 1. pr.; G. 4. 160; Lenel, E.P. 453; Festus, s.v. possessio.

3 G. 4. 160; D. 43. 31. 1. pr. 4 G. 4. 151, 152. It is important notably in con-

nexion with the operation of the 1. Cincia on donatio. Ante, § xci. As to accessio possessionum,
G. 4. 151. 5 Inst. 4. 15. 4. 6 43. 17. 4; Vat. Fr. 90. 7 43. 18. 1 pr.

8 G. 4. 154; Inst. 4. 15. 6. 9 43. 16. 1. 10 Lenel, E.P. 449. 11 43. 16. 1. 3.

Under Justinian even a naturalis possessor has it, 43. 16. 1. 9, 10. But this probably means
one not in via usucapiendi.

xv] POSSESSORY INTERDICTS 729

by the person so dispossessed, as a single interdict, against the dis-
possessor, a state of facts which would give uti possidetis too. It had the
advantage that it covered not only the land but also "quaeque ibi
habuit1," and, according to one view, the disadvantage that it created
on recovery a new possession2, while, it is said, that recovered by uti
possidetis was regarded as the old possession3. And the limitation, "hoc
anno," does not appear in uti possidetis.

De vi armata. This ran: "unde tu ilium vi hominibus coactis armatisve
deiecisti autfamilia tua deiecit, eo ilium quaeque tune ibi habuit restituas*."
There was no limitation to the year, though Justinian may have intro-
duced it5. The fact that the ejected person himself held vi clam aut pre-
cario from the ejector was no defence. In later law this clause disap-
peared altogether and the two interdicts were one, the interdict unde vi6.
It is supposed that the interdicts de uiwere older than uti possidetis, which
would account for the overlapping7.

De precario. This was the interdict by which an owner recovered
from one to whom he had made a grant in precario*. It ran: "Quod
precario ab illo habes aut dolo malo fecisti ut desineres habere, qua de re
agitur, id illi restituas9."

Inter dicta mixta. The name is not authoritative: they are called
duplicia10. They might have the effect of giving possession to one who
had not possession before or of restoring possession to one who had had
it before, so that they were either recuperandae or adipiscendae p. c.
according to circumstances. They were quern fundum, quam hereditatem,
quern usumfructum, and perhaps quam servitutem11. Their use was this.
In a real action the person who received interim possession must give
security12. If he failed to do so this interdict issued, under which he
would have to give it to the other if he in turn offered security. Lenel
reconstructs it13, hypothetically, as: "quemfundum ille a te vindicare vult
quern possides dolove malo fecisti quominus possideres si rem nolis de-
fendere eoque nomine tibi satisdatum est aut per te stat quominus satisdetur
restituas." The changes in the law of security in later law rendered these
interdicts obsolete14.

1 43. 16. 1. 33. 2 See 41. 3. 15. 2, as shewing the possible effect on usucapio.

See 41. 4. 7. 4. 3 See however Appleton, Propriete Pretorienne, §§ 207, 208.

4 Lenel, E.P. 450. 5 See 43. 16. 3. 12, and Lenel, E.P. 451. 6 43. 16. 1.

pr. Discussion as to what amounts to armed force, 43. 16. 3. 2 sqq. 7 The same may be
true of an uncertainly evidenced interdict de clandestina possessione, Lenel, E.P. 453, n. 3.
As to the so-called interdictum momentariae possessionis of later law and other late pro-
tections against violent dispossession, see Cuq, Manuel, 323. 8 43. 26 ; ante, § CLXXXI.
9 Lenel, E.P. 466. 10 43. 1. 2. 3 in f. It will be remembered that uti possidetis and
utrubi are duplicia in a sense much more important from the point of view of procedure.
11 Ulp. Inst., FT. 4 (Girard, Textes, 489); Vat. Fr. 92. 12 Ante, § CCXL. 13 Lenel,

E.P. 458. 14. Ante, § CCXL.

730 PROCEDURE UNDER INTERDICTS [CH.

There were other interdicts to which the same name might be given.
Thus the interdict " ne vis fiat ei qui in possessionem missus est" lay
whether the holder refused to let possession be taken or ejected the
missus1, so that it was both adipiscendae and recuperandae possessionis

causa2.

CCL. The procedure under interdicts was somewhat complicated.
The distinctions just stated do not for the most part greatly affect it,
but we must bear in mind that between single and double interdicts,
which is fundamental in the matter, and that between prohibitory and
others which also has a certain bearing.

The procedure under single interdicts was simpler than that under
double interdicts and will be first dealt with. Confining ourselves for
the present to prohibitory interdicts we may take the case that A
alleged that he had been in enjoyment of a certain right and that B
had interfered with it. A would apply for an interdict and one would
be issued to him, without discussion, in a form prohibiting any inter-
ference, but always containing limiting words to shew that the pro-
hibition had no application unless the de facto enjoyment was of the kind
the praetor meant to protect. Thus in the interdict de itinere privato,
for example, the form was: "I forbid force to be done by which A is
prevented from enjoying that right of way which he has been enjoying
in the present year, his enjoyment not having been obtained from B by
force or secretly or by permission3." Here it must be noted that the
mention of a year had nothing to do with prescription. The question
was not whether he had acquired the right by lapse of time, but whether
there had in fact been a peaceable enjoyment, so recent, and so full, as
to raise a presumption of rightfulness such that the praetor thought it
ought not to be interfered with except by legal process.

If, now, A was not interfered with there would be no further process.
But if his right was really disputed, if B really intended to deny the

1 43. 4. 1. 3. As to these cases, see ante, § CXLV. For other interdicts of a "mixed"
type, see Ubbelohde, op. cit. 1. 183 sqq. 2 Ulpian in the Digest gives other classi-

fications of interdicts. Some refer to the past, e.g. restitutory, others to the present, e.g.,
uti possidetis, 43. 1. 1. 2. Some he says are annalia, some perpetua, h. 1. 4. Thus while most
interdicts are perpetua, unde vi and others, having a penal character, are annua, e.g. 43. 4. 1.
8; 43. 16. 1. pr. Paul (43. 1. 2) tells us that some aredivini iuris, e.g., nequid in loco sacro
fiat, others hominum causa. Of the latter some are publicae utilitatis, others privatae. Of
those of private utility, some are iuris sui tuendi causa, e.g., de liberis exhibendis, some
officii causa, e.g., de libero homine exhibendo, others rei familiaris causa. Of these some
raise the actual question of right, e.g., de itinere reficiendo. Others deal only with posses-
sion. He also tells us that some are noxal, and instances unde vi and quod vi aut clam,
h. t. 5 (see Buckland, Slavery, 128). Ulpian also tells us that interdicts are in rem scripta
but essentially in personam (h. t. 1. 3). The latter fact is obvious: the statement that they
are in rem scripta seems to mean only that as standing forms in the Edict they cannot
specify the person against whom they may be issued. 3 43. 19. 1. pr.

xv] PROCEDURE UNDER INTERDICTS 731

right of way, and also thought that A's enjoyment had not been such
as satisfied all the requirements of the interdict, he would proceed to
use some force in order to raise the question. The point was that if B
merely acquiesced in the interdict, the result would be that he would
not be able to put a stop to ^4's enjoyment except by bringing his actio
negatoria, in which he would have the burden of proof1. If, however, B used
force and A proceeded under the interdict, and could not prove that he
had been enjoying in the past year, to the necessary extent2, or B proved
that it was vi clam aut precario from him, B would win in the interdict
and could now disregard A altogether, obstructing his way, and leaving
him either to abandon it or to bring an actio confessoria3, in which he
must prove that he had a legal right to the servitude. If A proved the
enjoyment and B failed to prove one of the defects, A would win in the
interdict, and B must abandon his objections or bring his actio negatoria.

The force used by B would be merely formal, but enough to raise the
issue, as it amounted to disregard of the interdict. The parties went
before the praetor and the question was raised: had B disobeyed the
interdict? The point, wrhich would be tried by a index, was raised in a
noteworthy way, similar to that in real actions per sponsionem. A asked
B: "Do you promise to pay me 10 if you have disobeyed the interdict4? "
B answered: "I promise," and asked by way of restipulatio, "Do you
promise me 10 if I have not disobeyed the interdict? " and A promised.
The two stipulations were practically a bet. Each then proceeded to
sue for the amount, i.e. two formulae for condictio certae pecuniae were
issued, one to A, one to B. Here three points must be noted:

(i) B had certainly disregarded the interdict; it does not follow that
he had disobeyed it. If A's enjoyment was not such as to satisfy all the
requirements of the interdict, J?'s acts were not a contravention of its
terms, and B would win. He would be absolved in the condictio which
was issued against him, while A would be condemned in the corresponding
condictio brought by B against him.

(ii) Exceptiones5. The restrictive words in the interdicts themselves
are in some texts called exceptiones6, but apart from these it was possible
for the praetor to vary the words by introducing or omitting particular
points to meet the equity of a particular case7, and this may also be
regarded as, in effect, inserting exceptiones. But as in any other actions,

1 But, as to the burden of proof in this case, ante, § ccxxvm. 2 43. 19. 1. 4.

The Digest makes this on 30 days (43. 19. 1. 2). But this is probably due to Justinian.
In classical law the index would have to be satisfied that it had been substantially
enjoyed within the last year. 3 Ante, § ccxxvrn. 4 G. 4. 165. This would

not be the exact form, which might vary, post, p. 734. 5 See Ubbelohde, Die Interdicle,
1. 457 sqq., from whom the references are taken. 6 43. 19. 1. 11; 43. 24. 15. 5.

7 43. 13. 1. 6.

732 PROCEDURE UNDER INTERDICTS [CH.

there might be exceptiones of the ordinary type in the resulting formulae1
which would of course produce the same effect as elsewhere.

(iii) The whole duty being based on the Edict there was no liability
except that which it stated. Each interdict was therefore carefully
drawn so as to express all the conditions on which the right which it
protected was to depend2, and the index had no need to look outside its
terms to see exactly what had to be proved. Thus in, e.g., quorum
bonorum, the claimant would not indeed have to prove that he was
entitled to keep the property, but, on the words of the interdict3, he would
have to shew that the goods were in the bona of the deceased, that he
himself had a grant of bonorum possessio, that he was entitled to this
grant at the time when he got it, ex edicto, and that they were now in
the possession of the defendant, or would be but for his dolus. If he
failed to prove any of these things there would be no duty "restituere"
under the interdict4. Further the claimant would fail if it was shewn5
that the defendant held them under some claim other than pro herede
or pro posses-sore. The importance of the exact interpretation of a form
of words is characteristic of the whole formulary system, and is shewn
very clearly here. Interdicts were matter of careful drafting, to be
reconsidered, if necessary, every year. The interdict "unde vi" is a good
illustration of this. We have it in two forms, one from the time of
Cicero, and one from Justinian, and we have traces of its form in
classical law6. These forms differ materially.

If A failed in the action on the promise, the matter was at an end.
If, e.g., he had not been actually enjoying the servitude to the extent, or
in the manner, required by the interdict, and wished to make good his
claim, he must bring an actio confessoria. If, on the other hand, he won,
a formula was issued for a indicium secutorium1 for abstention from inter-
ference and damages in default. Whether there were damages for the
force done between the issue of the interdict and the judgment does not
seem to be clear. The form of the action is not known, and it has been
suggested that in cases such as that of a right of way the notion of resti-
tution was inapplicable and that the formula was simply one for damages,
while in those prohibitory interdicts which had to do with really posses-
sory rights, such as those for the protection of missi in possessionem, it
would be for restitution and only in default for damages8. In any case

1 39. 1. 1. 10, pacti conventi; 43. 30. 1. 4, rei iudicatae; etc. 2 Even where, as in

de glande legenda, the right enforced was civil. 3 Ante, § CCXLIX. 4 43. 2.

1. pr. 5 The burden of proof of this other title is on him, Arg. 5. 3. 13. pr. 6 Pro

Tull. 19. 44; pro Caec. 19. 55; G. 4. 155; Vat. FT. 93; D. 43. 16. 1. pr. 7 G. 4. 165.

The name is recorded only of the corresponding action in double interdicts, but as this has
also a special name (post, § ecu) it is likely that the name secutorium applied here as well.
8 If there was subsequent interference. As to the arbitrium in prohibitory interdicts
generally, see Lenel, E.P. 435.

xv] PROCEDURE UNDER INTERDICTS 733

there were no damages for the time before the issue of the interdict, for
till then there was no duty. The view that there was no arbitrium for
restitution in cases where the interdict was concerned with interference
with a right of way is connected with the opinion that there was no
arbitrium in an ordinary actio confessoria in respect of them1. How the
damages were assessed in such a case of interdict where no restitutio was
ordered it is difficult to say2.

If the interdict was not prohibitory, but restitutory or exhibitory,
there was an alternative, somewhat simpler, process. After the formal
act of disregard of the interdict, while the parties were in court, the
defendant was entitled to refuse the sponsiones and demand an arbiter*.
The effect would be that & formula would be issued requiring restoration
or production, as the case might be, with an arbitrium clause and a
condemnatio in default of restitution. The substantial issue would be the
same as in the procedure per sponsiones, though raised in a different way.
If the defendant left the court without calling for an arbiter, then and
there, the system of sponsiones would be applied4. It should be observed
that the use of the arbitrium form did not make much difference in the
law as we know it. It merely avoided the loss over the sponsiones5, for
it is clear that even in cases tried by sponsiones an arbitrium clause
would be inserted if the facts admitted of it6. Exactly why the alter-
native method was applied only in restitutory and exhibitory interdicts,
which it may be remembered were the class also called decreta, is not
clear7. It may perhaps be allied to the fact that they prescribe a positive
act, and actual performance, such as was contemplated by the arbitrium,
was more easily enforced here8. There are some.prohibitory interdicts to
which, as we have seen, it is possible or even probable that the arbitrium
did not apply at all, and it may well be that it had no application at
all to prohibitory interdicts in the earlier days of the interdict. The
reason why the defendant preferred the arbiter is obvious: he avoided
the risk of the sponsiones which, we are told, were not merely prae-
iudiciales but poenales, actually enforced9. The plaintiff ran the same
risk, but does not appear to have had the same privilege.

Two further observations must be made on single interdicts.

The issue to be tried in the iudicium secutorium was really decided in

1 See Lenel, E.P. 188. 2 It does not seem that iuramentum in litem was admissible
in such a case. 3 G. 4. 162 sqq. 4 G. 4. 164. 5 But in early times the

spontio and the action on it may have been the last step, and the amount of the sponsio the
real damages. In historical times the amount was probably small. 6 G. 4. 165.

7 G. 4. 140. Gaius simply speaks of the arbitraria formula as a "modestior via" G. 4.
163. 8 In the ordinary possessory cases, where after issue of a prohibitory interdict

there was an ouster, the arbitrium would obviously be applicable. 9 G. 4. 162,

168.

734 PROCEDURE UNDER INTERDICTS [CH.

the litigation on the sponsiones, and the issue in each of the actions was
the same. It is therefore very probable that all these formulae were
ssued together.

It has been assumed in the foregoing account that the sponsio was
on the general question: has the interdict been disobeyed? But as the
interdict failed if any one of its conditions was not satisfied, the task of
the index might possibly be considerably lighter. If, as would probably
be often the case, only one of the points was really in dispute, the sponsio
might be made to turn only on that point. Thus supposing the only
doubt was whether the enjoyment had been by consent, the sponsio
might be "Do you promise me 10 if I consented to your using the right
of way?" Any other of the requirements might be embodied in the
same way1.

CCLI. The procedure in the double interdicts was more complex.
There were essentially but two2, uti possidetis and utrubi, with corre-
sponding derivative forms for usufruct and usus, superficies3, and, in
later law, emphyteusis* . These interdicts were of a very special char-
acter. As we know them in classical law, their only purpose was to
confirm one of two intending litigants in possession of the disputed
property, so as to make him defendant in the impending real action, the
burden of proof being therefore on the other, the plaintiff. The interdict
was in terms addressed to both and directed whichever of them did not
satisfy the conditions on which it protected actual enjoyment not to
interfere with the other5. Thus there were practically two interdicts in
one form of words. Hence the name of double interdicts and many
complications in the procedure. The conditions on which uti possidetis
was effective were not quite the same as those for utrubi, as we have
seen6, but as there was no resulting difference in procedure it will suffice
to deal with the former. Essentially it was an order to the following
purpose: "I forbid force to be done by either of you whereby one of you
is prevented from enjoying the land as he now does, not clam, vi aut
precario from the other."

If the parties meant really to dispute the matter they proceeded to
use force against each other, a purely formal force (vis ex conventu1), but

1 In Cicero, pro Caec. 16. 45, the sponsicfis on the question whether vis has been done
"contra edictum," but these words bring in the whole interdict. 2 The "duplex"

character attributed to de aqua (43. 20. 1. 26), where two persons both claim the right of
use, and equally possible in many other cases, probably means no more than that each
will have an interdict. 3 43. 17. 4; 43. 18. 1. pr. 4 2. 8. 15. 1. 5 See the

form, ante, § CCXLIX. 6 Ib. 7 This expression is found in Cicero (pro Caec.

8. 22) but it does not seem to be technical, and indeed it is by no means clear that as
used by him it refers to this interdict. See Roby, B.P.L. 2. 514 sqq. ; Ubbelohde, Interdicte,
1, 214 sqq.

xv] PROCEDURE UNDER INTERDICTS 735

enough to constitute disregard of the interdict. They then made spon-
siones1 as in the other case, with the important difference that, in this
case, as either might have disobeyed the interdict there would be two
bets involving four stipulationes and four condictiones certae pecuniae2.
At this point another, rather accidental, complication steps in. The
whole interdictal procedure would determine who was to be plaintiff,
and who defendant, in a forthcoming real action. This was obviously an
important issue. But the question arose, who was to keep the actual
possession during the trial of the interdict, a process which might take
some time, since the facts necessary to its decision might not be easily
got at. That was not a very important matter, since no question of pro-
cedural importance was prejudiced by it. It was simply dealt with. The
opponents X and F bid against each other for it. If X bid most it was
given to him, and he then promised that if judgment in the interdict
should eventually go for F, he would give F the amount of his bid.
Hence a fifth condictio certae pecuniae3. Sometimes the stipulation was
omitted and when the possession was handed over to the highest bidder
a formula for a indicium fructuarium was given to the other, apparently
for the amount of the value of the interim possession, i.e. the loss to
him from not having had the interim possession, whatever that might
amount to, in the event of his winning in the interdict. Apparently the
lowest bidder might choose. If he chose the iudicium fructuarium the
amount of the actual bid would perhaps cease to be of importance4.
Some such alternative arrangement was convenient and even necessary
in the case which might present itself, in which the interim possession
was of uncertain value to one of the parties. He need not bid at all but
would still retain the chance of recovering whatever the value of it
might turn out to have been5.

In addition to all these formulae there would be the iudicium secu-
torium, called in this case iudicium Cascellianum6, for the definitive
transfer of the possession to the non-possessor if he should win in the
interdict7. It is to be noted that in this action he would recover not
only the possession but also the interim fruits, so that, as Gains tells us,

1 G. 4. 166. 2 Ib. 3 G. 4. 166 sq. 4 G. 4. 169. The exact content

of this action is not clear: it is at least consistent with the language of Gaius that, here
too, what was recovered was the amount of the bet: "defructus licitatione ager<-." For
various views Ubbelohde, Interdicts, 2. 164 sqq. The text is imperfect and the word
"simililcr," which is crucial, uncertain. 5 We are not told what happened if neither bid:
presumably the thing remained with the holder and the iudicium fructuarium would lie,
under which security had to be given, G. 4. 169. This also was called iudicium secutorium,
G. 4. 169. 6 G. 4. 166; G. 4. 169. Cascellius was a magistrate of the age of Cicero,

Roby. Introd. to Digest, cxxi. 7 It is of course issued to the litigant who has not

interim possession : if the other wins in the ftponsio, this formula is not wanted.

736 PROCEDURE UNDER INTERDICTS [CH.

the money recovered under the indicium fructuarium or the condictio
fructuaria was in effect a penalty1.

Thus to each party were given two condictiones certae pecuniae, and
to the party who did not get interim possession, either a condictio fruc-
tuaria or a iudicium fructuarium, at his choice, and a final indicium
secutorium (Cascellianum). In this case, as in single interdicts, the trial
of one of the condictiones certae pecuniae would determine all the questions
material to the decision of all the actions, though certain questions of
value, perhaps in the iudicium fructuarium, and certainly in the iudicium
Cascellianum, would still remain open. All these formulae appear to have
been issued together.

Here, too, disregard was not necessarily disobedience. Both parties
disregarded the interdict, but it is clear that only one can have dis-
obeyed it. Since one of the parties must have been in possession, for
otherwise the proceedings would be absurd, it seems as if one must have
disobeyed it, but the matter is not without difficulty. On the words of
the interdict as recorded, it might seem on certain facts that neither had
disobeyed. If, for instance, X held the property precario from Y, the
latter could not disobey, for the possessio by X was not within the terms
of the interdict. On the other hand it is possible to contend that X can-
not have disobeyed it, for F was not possessing at all. The matter is
controverted, but it seems that in this case X had disobeyed the inter-
dict. As against X , Y was still regarded as in possession2.

The sponsiones were penal, i.e. they were actually enforced and their
amount was not set off against the damages. Here arises the question:
what determined the amount of the sponsiones'? Could a plaintiff, sure
of his case, fix them as high as he liked? The answer seems to be that
the Edict contained a clause, only imperfectly known, which limited
the sponsiones to an amount having some relation to the value of the
right concerned, but exactly how we do not know3.

These double interdicts were prohibitory, and it follows that the
alternative method of formula arbitraria, without sponsiones, was not
available. It is clear, however, that they were in their nature extremely
well suited for an arbitrium, and that, as a matter of fact, the formula
of the iudicium Cascellianum did contain such a clause4. This case there-
fore brings into strong relief the problem of the reason for the refusal
of the formula arbitraria without sponsiones in prohibitory interdicts.

In the procedure of ordinary actions there was machinery by means

1 G. 4. 167. 2 E.g. 41. 2. 17. pr.; 43. 17. 3. pr. This text adds that if two possess

in solidum, but one holds clam vi out precario from a third party, neither can win in the
interdict against the other: both possess validly. Machelard, Interdits, 192 sqq. ; Ubbelohde,
Besitzinterdicte, 425. 3 Lenel, E.P. 454. 4 G. 4. 166 in f.

xv] LATER HISTORY OF INTERDICTS 737

of judgment in default, actio infactum, missio in possessionem, and the
like1, to deal with the case of a defendant who disobeyed the in ius
vocatio, or who refused to take the various steps involved in the defence
of an action. As to what took the place of this in interdictal procedure
our information, owing to the defective state of the manuscript of Gaius,
practically our sole authority, is unfortunately incomplete. In double
interdicts, he tells us2, when a person against whom an interdict had
been obtained refused to make the necessary sponsiones, or to take any
of the other necessary procedural steps, there were interdicta secundaria
by which he could be compelled to do so. We do not know whether they
applied also to single interdicts, nor do we know how they worked.
Apparently, in the last resort, there must have been some direct inter-
vention of the praetor, perhaps missio in possessionem on the analogy of
stipulationes praetoriae3.

CCLII. We have seen that the issue of the interdict was followed,
after other steps, by the issue of formulae in which the question was
whether the duty declared in the interdict had been broken. The question
arises, why, in view of this, the issue of the interdict was retained at all.
Instead of saying, e.g. "I order you to remove the obstruction which
you have put in the way which A was peaceably enjoying," the order to
be followed, when issued, in a particular case, by steps leading up to a
formula of which the gist was: "If it appears that B has obstructed a
way of which A was in peaceable enjoyment, condemn him to pay or
put it right," it seems that the Edict might have said simply, " If anyone
obstructs a way of which another is in peaceable enjoyment, I will give
a indicium," the nature of the necessary enjoyment being specified as
it was in the interdict. By apt words the same issue might be raised in
a more direct and simple way without any departure from the pro-
visional character of the proceeding. W'hy then was the issue of the
interdict retained?

The answer seems to be historical. Interdicts existed before the
standing Edict did, before the praetor had begun to exercise the power of
directly creating actions, and they afforded an indirect means of doing
so. The interdict was an order binding by virtue of the imperium*.
Before the Edict existed the interdict could not exist as a standing
order: it had to be issued expressly in each case. After it had come to
be set out in the perpetual Edict this ceased to be necessary; its pre-

1 Ante, § ccxvi. 2 G. 4. 170. 3 See however Ubbelohde, Interdicte, 1. 295

sqq., who thinks they operated like ordinary interdicts. Salei\\e$(ControversiapO(ises.<iionis,
§§ 64-66) thinks that the usual procedure was not to carry out the formalities under uti
possidetis, but to utilise the interdicta secundaria. In fact however we have little informa-
tion. 4 G. 4. 139.

B. R. L. 47

738 LATER HISTORY OF INTERDICTS [CH.

servation was a piece of conservatism. It is probable that many of the
known interdicts, or the germs of them, were incorporated as existing
things into the Edict, and though there were interdicts plainly later
than the origin of the Edict1, no doubt many, it is not surprising that
the existing method was followed. Once embodied in the Edict as an
integral part of it, and of the formulary system, their endurance was
guaranteed so long as the formulary system lasted. With its disappear-
ance they too were superseded. This does not mean that the rights they
had protected were henceforth unprotected. They were still protected,
but, instead of applying for an interdict, the aggrieved person brought
an action2, in which the issue raised was the same as that in the formula
issued in earlier days after the disregard of the interdict. This is well
exemplified in the case of wide vi. In the old system the interdict was
issued in the form "unde tu ilium vi deiecisti (etc.). . .vim fieri veto." In
the Digest the rule was similar except that the rule was put in general
impersonal form, and for the last three words were substituted the
words "indicium dabos." The same development took place in all inter-
dicts (though the words of the old interdictal form were still used in
some cases in the Digest4), and in relation to possessory interdicts, much
the most important in private law, a system of possessory actions was
developed, in which the issue was the same as in the old interdict, but
the order itself was no longer issued5.

We have seen that interdicts were not essentially provisional; pos-
sessory interdicts may be so described, but that is only because the right
they protected was itself provisional: if it were not it would not be
possession, but ownership. The true owner must always be able to
recover his goods from one who has no title but possession. Many con-
siderations justify, and have produced in various legal systems, protec-
tion to a mere possessor; we need not here consider which of these were
the cause of the Roman rules6. But there is one point which has led to
controversy and may be mentioned. In the long run the mere possessor
would have to give up the property to the owner. The bonorum possesso
sine re might recover the thing from the heres by the interdict quorum
bonorum, but he must ultimately give it up, if he was sued by hereditatis
petilio. A bare possessor might win against the owner in uti possidetis,
but the owner could regain his property by a vindicatio. Why was he
driven to this lengthy process? Why might not his ownership be pleaded
in reply to, e.g., uti possidetis7^ An exceptio iusti dominii would have

1 See, e.g., 43. 18. 2 See the rubric of D. 43. 1. 3 Cicero, pro Tull. 19.

44; D. 43. 16. 1. pr. 4 E.g. D. 43. 2; 43. 6, etc. 5 E.g. 43. 16. 6 See ante,

§ LXXII. 7 This is distinct from the question why possession was protected at all. It

is maintained by Ubbelohde, Besilzinlerdicte, 20. 97, 104, 430, etc. that unde vi (cotiidiana)

xv] TITLE AS DEFENCE IN INTERDICTS 739

served the purpose, and under such a plea he would have had to prove
his title just as he would in vindicatio. The explanation is in all prob-
ability to be found in a well-known characteristic of Roman procedure:
possessio and dnminium are distinct things1, and the Romans did not
like joining distinct issues in one formula. It wras this for instance which
made them so reluctant to admit set off, compensatio, in stricta indicia,
and led them in classical times to drive the parties to mutuae petitiones
even where the claims arose out of the same matter2.

and uti possidetis were not available against an ousting dominus: i.e. that however the
owner took it from the other he was not considered to have taken it clam, vi aut precario.
1 41. 2. 12. 1: "nihil commune habet proprietas cum possessione." 2 17. 1. 38. pr.
See however ante, § ccxxxiv.

47—2

INDEX

(Figures in black type are principal references)

Abdicatio filii, 133; tutoris, 150
Absence, restitutio in integrum, 715
Absolutio, 607, 623, 633, 635, 638, 653
Acceptilatio, 55, 235, 253, 255, 257, 440, 450,

452, 456, 523, 5(32, 567 sq.
Accepti relatio, 567

Accessio, 196, 210 sqq., 216, 217, 253; com-
pensation, 211; to buildings, 213; pos-
sessionum, 240, 242, 250 sq.
Accrual, in Bonorum Possessio, 384; in

legacy, 334 sq. ; in usufruct, 270, 348
Acquisition, of dominium, 188, 206 sqq. ;
of fruits by non-owner, 222 sqq.; of
patria potestas, 105 sqq.; of possessio,
201 sqq.; of servitudes, 264 sqq.; of
usufruct, 271 sq. ; through extranei, 228,
277, 278; through filiifamilias, 104, 202,
279, 529; through slaves, 202, 278, 529;
to hereditas, 306

Actio, 599 sqq.; and obligatio, 187, 600
Actio, ad exemplum institoriae, 516; ad ex- -
hibendum, 211, 214, 461, 543, 577, 724;
aquae pluviae arcendae, 544 ; ad supplen-
dam legitimam, 326; auctoritatis, 231,
236, 240, 486 sqq., 608, 683; Calvi&iana,
89, 592, 655; certae pecuniae creditae, 456,
457, 460, 462, 613, 731, 735 sq.; ciyilis
incerti, in factum, see Actio pra&scriptis
verbis; commodati, 467 sq. ; communi
dividundo, 252, 275, 452, 507, 509^ 534,-
535 sq.; confessoria, 193, 259, 268, 345,
544, 669 sq., 731 sqq.; de aestimato, 519;
de eo quod certo loco, 635, 655, 695 ; de in
rem verso, see Actio de peculio; de modo
agri, 488; de moribus, 109, 705; de pan-
perie, 208, 598, 686; de peculio et in rem
verso, 66, 87, 183, 375, 397, 449, 454, 462,
507, 529, 532, 693, 699; de pecunia con-
stituta, 526; depensi, 442, 567, 609, 616,
705 ; depositi, 465, 473 ; de rationibus dis-
fnihendis, 164; de tigno wmmcto,213,216;
doli, 312, 405, 413, 442, 519, 555, 589
sqq. ; ex empto, 480 sqq., 564; exercitoria,
424, 507, 532, 543; ex stipulatu, 110, 430,
433, 672; ex testamento, 345, 453, 675,
684; ex vendito, 481 sqq.; Fabiana, 89,
592, 6 ")•">; fin/iiUae erciscundae, 252, 294,
v 315, 333, 349, 535;fiduciae, 429, 471 sqq.,
f>42; finiitm regundontm, 252, 540; fitne-
raria, 515, 540; furti, 212, 213, 215, 216,
219, 223, 465, 469, 543, 576, 671, 683;
hypothecarix. :!4.~>, 473 sqq., 525, 543; in-
iuriarum, 134, 313, 585, 684, 686; insti-
toria, 424, 507, 516, 531; iudicati, 156,
530, 609, 637, 666, 699, 703, 705 sq.;
iurisiurandi, 526; legis Aquiliae, 107,

304, 581; mandati, 512 sqq.; metus, 545,
588, 670, 687; negotiorum gestorum, 170,
211, 215, 216, 533,540; negatoria, 669 sq.,
723, 731; oneris aversi, 503; operarum,
671; Pauliana, 591 sq., 655; pigneraticia,
473; praescriptis verbis, 241, 492, 519
sqq., 523, 644; prohibitoria, 670; pro
socio, 507, 509, 536; protutelae, 166, 540;
Publiciana, 11, 55, 192 sqq., 225, 231,
244, 246, 250, 475, 647, 670, 678; quanta
minoris, 488 sqq., 564; quasi Serviana,
see Actio hypothecaria; receptitia, 527;
quod iussu, 449, 531, 543; redhibitoria,
488 sqq., 493, 529, 683; rei uxoriae, 109
sq., 672, 685, 688, 700; rerum ainotarum,
109, 574, 578; restitutoria, 444; sepulchri
violati, 684, 688; Serviana, of bonorum
emptor, 401; Serviana, of landlord, 472,
671, 672, 680; servi corrupti, 63, 590 sq.;
subsidiaria, 165; tutelae, 164 sqq.; tri-
butoria, 157, 530

Action at law, course of, 602

Actiones, adiectitiae qualitatis, 686 sq. ; ad
poenam, ad rem, persequendam, 526, 581,
684; arbitrariae, 634, 636, 654 sqq., 664;
civiles, 678 sqq. ; directae, 686 sq. ; con-
trariae, 165, 466, 470, 473, 686; ex bono
et aequo, 648, 654, 680, 695; fictitiae, 10,
98, 183, 191 sq., 194, 388 sq., 401, 551,
620, 670, 677 sqq. ; honorariae, 678 sqq. ;
in duplum contra infitiantem, 581, 584,
617, 687; in factum, 211, 464, 679 sqq.;
in personam, 602, 605, 668 sqq. ; in per-
sonam in rem scriptae, 670; in rem, 602,
605, 668 sqq., see Vindicatio; in simplum,
duplum, etc., 686; interrogatoriae, 627,
661; mixtae, 684 sqq.; noxales, 183, 543,
594 sqq.; perpetuae, 251, 683 sq. ; per
sponsionem, 613, 622, 623 ; populares, 590,
619, 688, 700; praeiudiciales, 446, 602,
636, 645, 646, 654, 664; primtae, 688;
quibus in solidum, non semper in solid nm
persequimur, 687 sq. ; rescissoriae, 715;
temporales, 683 sq., 694; transmissible or
not, 685; utiles, 127, 142, 157, 212, 584,
680 sq.

Actionis editio, impetratio, postulatio, 626,
660

Active correality, 450

Actor, municipii, 423; universitatis, 704

Ac/us, 240

Actus legitimus, 190, 231, 235

Addictio, 88, 206, 615, 638; honorm/i
libertatis causa, 85 sq., 399; in ditm.
494

Ademptio, of legacy, 342; of liberty, 75

742

INDEX

Adipiscendae possessionis causa, see Inter-

dicta possessoria
Aditio hereditatis, 164, 168, 174, 297, 299,

305, 309 sqq., 341, 380, 386, 391, 395;

by tutor, 156
Adjective Law, 601
Adiudicatio, 197, 252, 261, 278, 509, 536,

540, 648, 654, 657, 671, 682
Adiutar tutoris, 174
Administratio, by curator, 173; by tutor,

155 sq., 163, 171; of peculium, 66, 564,

570
Adoptio, 105, 121 sqq., 236, 320, 363, 428;

of slaves, 128; plena, minus plena, 123;

restitutio, 713

Adpromissio, 441 sqq., 517
Adrogatio, 90, 124 sqq., 131, 137, 154, 282,

302, 321, 323, 396 sqq., 531, 718; of

impubes, 126, 372; oilibertus, 91, 125,

128; restitution, 126, 713, 716
Adscriptitii, 91 sq., 495
Adsertio libertatis, 74, 700
Adsessores iudicis, 630, 635
Adsignatio liberti, 375, 398
Adstipulatio, 141, 440 sq., 449, 512, 515,

557, 580, 685
Aediles, edicts of, 5, 9, 11, 45, 64, 434, 598,

678

Aequitas, 55, 220
Aerarium, 176 sq., 316
Aes equestre, hordearium, militare, 619
Aes et libra, 236, see Mancipatio; release by,

567

Aestimalum, 519, 521
Affectio, maritalis, 113; societatis, 504
Affinitas, 116

Agency in contract, 516, 529 sqq.
Ager, limitatus,212 ; stipendiarius, 191 ; tribu-
taries, ib. ; vectigalis, 275
Agnatic tutela, 146, 148, 167
Agnation, 105, 139, 371
Agnatus proximus, 364 sq.
Albi corruptio, 688
Album iudicum, 88, 603, 631, 664
Alienatio, by non-owner, 276 sqq.; of dotal

land, 108; mutandi iudicii causa, 715
Alieni iuris, 102

Alimenta, 658; legacy of, 356, 523
Alluvia, 186, 212,268
Alternative obligation, 409, 482, 561 sqq.s

595; stipulatio, 432
Altius tollendi ius, 262, 264
Ambiguity in contract, 411
Amissio bonorum, 509
Anatocismus, 461
Animus, domini, 199 sqq.; donandi, 570;

novandi, 565; possidendi, 199 sqq., 306;

reverlendi, 207

Anniculi probatio, 96, 320, 363 sq., 368
Annus utilis, restitutio, 712 sqq.
Anstalt, 177
Antestatus, 236
Antichresis, 473
Appeal, 665
Appendix, 43

Appointment of tutores, 144 sqq., 167, 284
Aquaeductus, 240, 262, 263, 266
Aquaehaustus, 265, 267
Aquae pluviae arcendae, 715
Aquilian stipulation, 568
Arbiter, 528, 603, 610, 631, 643
Arbiiraria formula in interdicts, 733
Arbitria, 678, see A ctiones arbitrariae
Arbitrium, iudicis, 595, 654 sqq., 732 sqq.;

litis aestimandae, 607, 612, 616, 625, 629,

635
Argentarii, 527; compensatio, 696, 698;

socii, 510

Arra, 479, 493; sponsalicia, 112
Assignment of obligatio, 518, 550
Atrox iniuria. 587
Auctor, 486, 608
Auctoritas patrum, 3, 4, 13
Auctoritas tutoris, 59, 144, 152 sqq., 158 sqq.,

162, 168, 173, 244 sqq., 435, 442, 682;

infantis, 202 sq.; mulieris, 225
Auctoritas (usucapio), 242
Augustus, 6 sqq., 23 sq., 77
Austin, John, 59, 182
Authenticum, 48

Barter, 520

Basilica, 48

Beneficium, abstinendi, 362; cedendarum
actionum, 445, 453; competentiae, 142,
417, 448, 509, 560, 650, 652, 657, 664,
687; deliberandi, 304; divisionis, 166,
446 sq., 453, 527, 649; excussionis (or-
dinis), 447 sq., 527; inventarii, 313, 362

Bilateral obligations, 408, 431

Bona, adventitia, 123, 141, 271,279 sq., 304,
372 sqq., 396; invecta et illata, 472, 478;
vacantia, 249, 717

Bonae fidei iudicia, see ludicia bonae fidei

Bona fide possessor, 192 sqq., 206, 537,-540;
in damnum, 583; in furtum, 575; in
iniuria, 587; ius retentionis, 407; noxal
liability, 597; of a hereditas, 315; right
to fruits, 222, 225 sqq.

Bona fides, 199, 215 sqq.; in praescriptio,
251 ; in servitudes, 266 sq. ; in usucapio,
243 sqq., 247; in usufruct, 271

Bona fide serviens, 244

Bonitary owner, 78, 192 sqq., 195, 231, 242,
244

Bonorum, addictio libertatis causa, 85 sq.,
399; cessio. see Cessio bonorum; collatio,
321 sqq. ; distractio, 640, 667

Bonorum Possessio, 10, 140, 284 sq., 288,
290, 298, 373, 375, 378 sqq., 401, 725,
727, 732, 738; acquisition by tutor, 156;
cum re, sine re, 284, 376 sqq., 383 sqq.,
391 sqq.; decretalis, edictalis, 378, 395
sq., 719; ex edicto, 384 sqq., 390, 394

Bonorum possessio, ab intestato, 366 sqq.,
380 sqq. ; contra tabulas, 293, 301, 321 sq.,
338, 366, 379 sq., 388, 391 sq.; demand,
384 sqq., 391, 395; secundum tabulas,
284, 308, 330, 370, 380, 385, 392; unde
cognati, 367, 381, 382, 391, 393; unde

INDEX

743

decent personae, 373 sq., 381 sq., 393 sq. ;
unde cognati manumissoris, 381 sq. ; unde
familia patroni, 381; unde legitimi, 367,
379 sqq., 386 sq., 391, 393; unde liberi,
366 sq., 374, 379 sqq., 386 sq., 391, 393,
394; unde patronus patrona, 382; unde vir
et uxor, 382 sq., 391, 393; uti ex legibus,
376, 382, 391, 393

Bonorum, sectio, 206, 400; separatio, 314,
346, 420

Bonorum venditio (emptio), 303, 400 sqq.,
509, 511, 603, 638 sqq., 666, 679, 687, 697

Breviarium Alaricianum, 32, 36, 39

Caduca, 253, 316, 362

Caesar es, 51

Calendar, publication, 621

Calumnia, 356, 628, 636 sq., 661

Capacity, to contract, 416 sqq.; to convey
property, 232, 234, 239, 276 sq. ; to take
under a will, 289 sqq., 337, 350; to make
a will, 287 sqq. ; to witness a will, 292

Capite poenas dare, 615

Capitis deminutio, 63, 90, 105 sq., 136 sqq.,
146, 160 sq., 274, 321, 329, 357 sq., 381,
396, 401, 416, 437, 441, 455. 549, 571,
577, 581; as discharge, 557; in civil
bondage, 138; in usufruct, 271 sq.; of
socius, 509

Captivus, 67 sqq., 113, 288, 436, 715

Caput, 136

Carbonianum edictum, 320, 719

Castrense peculium, and quasi, 279, 288, 416

Casus, 296 sq., 418, 469, 484, 567, 588

Caupones, see Nautae, caupones, stabularii

Causa, in contract, 425 sq. ; in exceptio rei
iudicatae, 691; in sacramentum, 425, 606;
liberalis, 74, 659, 692; manumissionis,
80; possessionis, 199 sq. ; rei, 464, 469,
522; see lusta causa

Causae cognitio, 195, 417, 462

Causal nexus in damnum, 582

Cautio, 432, 458, see Satisdatio and Security;
derato, 705; iudicio sisti, 705; Muciana,
76, 296 sq., 336 sq.

Censor, 103

Census, 70, 73, 125

Centumviri, 315, 318, 324, 610, 622, 624,
631

Cenluriae, 3

Certa, concepta, verba, 623, 625

Certainty, of merces, 496 ; of price, 483

Cessio, actionum, 347, 445, 451, 476, 518,
550, 689, 693; bonorum, 402, 640, 667,
687, 717

Cessio in iure, 127, 188, 190, 192, 228, 233
sq., 261, 278, 472; by tutor, 156; of
hereditas, 234, 398 sq. ; of servitude, 264,
266; of tutela, 150; of usufruct, 269

Cessio legis, 423 sq., 550 sq.

Charities, 179 sqq., 185

Child of ancilla, not an accessory, 63 ; when
free, 69

Children, sale of, 71, 85

Chirographa, 458

Christianity, and leges caducariae, 317, 335;
effect on law, 33

Church, as heres, 289; personality, 179

Civil bondage, 103 sq., 134 sqq., 137 sq.,
364, 397, 435, 440, 529, 531, 549

Civil bondsman, alienation of, 135; pos-
session by, 204

Civis libertus, 88, 95

Civitas, 87 sqq., 94, 99 sq., 136, 377, 647

Classes in Comilia centuriata, 3

Classici, 289; testes, 238

Classification, of actions, 668 sqq.; of con-
tracts, 430 sq. ; of heredea, 302 ; of obliga-
tions, 406 sqq. ; of tutelae, 144

Clausula, arbitraria, 544, 654 sqq., 678;
codicillaris, 350, 357

Codex accepti et depensi, 457

Codex, Gregorianus, 36, 38; Hermogenianus,
36, 38; lustinianus, 40, 41, 47; repetitae
praelectionis, 47; Theodosianus, 36 sqq.,
48

Codicilli, 144, 350, 356 sq.

Coelibes, 291, 300

Coemptio, 119 sqq., 236, 239; fiduciae
causa, 119 sqq., 168, 428

Coercitio, 352

Cognatio, 106, 367, 371; effect of capitis
deminutio, 140; servilis, 65, 371, 376

Cognitio extraor dinar ia, 512, 603, 657 sqq.,
682; compensatio in, 699

Cognitor, 93, 157, 608, 701 sqq.; in rem
suam, 703

Coheredes, 297, 299

Collatio, bonorum, 321 sqq., 362, 366, 392,
722; donationis, 362; dotis, 322, 362, 722

Collatio legum Romanarum et mosaicarum,
36

Collegia, 178, 291

Collusive sale, 483

Colonary Latins, 93, 96

Colonatus, 91 sqq.

Coloni, 204, 495, 499, 583

Coloni adscriptitii, 91 sqq., 499

Colonia Latina, 140

Comitia, Calata, 125, 128, 282; Centuriata,
1 sqq., 8; Curiata, 2, 125; Tributa, 3 sqq.

Comitia in the Empire, 2 sqq., 7 sq.

Comitial Will, 282

Commercium, 55, 94, 98, 197, 239, 288 sq.

Commixtio, 210

Commodatarius, custodia, 555; theft by,
573; theft from, 575

Commodatum, 459, 465, 467 sqq., 473, 495,
522; ius retentionis, 408; possession,
198

Common owners, 535 sq., 552; of slave,
manumission, 82

Communi dividundo, see Actio

Compensatio (set off), 548 sq., 558, 560, 651,
673 sq., 696 sqq., 739

Compensation in accessio, 211, 214, 215; in
specificatio, 218

Compromissum, 528

Concepta, certa, verba, 623, 625

Concilium plebis, 4

744

INDEX

Concubinatus, 128 sqq., 371

Concurrence of actions, 579, 590, 591, 709

sqq.

Condemnatio, 489, 607, 612, 613, 623, 633
sqq., 653 sqq., 664; minus petitio in, 696;
plus petitio in, 695
Condicio, see Conditions
Condictio, legis actio, 612 sqq., 624
Condictio, 157, 253 sqq., 257, 433, 522, 534,
675 sqq.; causa data causa non secuta,
521, 541, 676; certae pecuniae, see Actio
certae pecuniae creditae; certi, 456, 676
sq. ; ex lege, 464, 542, 676; ex poenitentia,
86, 241, 430, 515, 542, 676; fructuaria,
135;furtiva, 216 sqq., 223, 449, 530, 538,

542, 555, 577, 579, 676, 694; general!*.

543, 677; incerti, 434, 676 sq.; indebill,
229, 351 sq., 354, 390, 416, 420, 446,
537 sqq., 548, 559, 676; ob rem (causam)
dati, 430, 485, 519, 521, 541, 676; ob
turpem (iniustam) causam, 541; sine
causa, 418, 422, 439, 460 sq., 541 sq.,
555, 676; triticaria, 460, 537 sq., 653, 676

Conditions, 257, 261, 340, 491 sqq.; in ac-
ceptilatio, 568; in tutela, 149; in cessio in
iure, 235; in contract, 419 sqq.; in in-
stitutio heredis, 295 sqq., 299, 302; in
legacy, 210, 335; in locatio conductio, 500;
in mancipatio, 238, 240, 427; in manu-
mission, 75, 84; in mandate, 512; in
novatio, 565; in sale, 491 sqq. ; in societas,
505; in stipulatio, 438 sqq.; in traditio,
231 ; iurisiurandi, 76, 337; perplexae, 297

Conditional ademption of legacy, 342

Conditional debts, 420 sq., 639,^695

Conductor, 222, 495 sqq., 501, 556, 575

Confarreatio, 119

Confessio, 608, 616, 629 sqq., 640 sq., 661;
in actio legis Aquiliae, 581

Conflicts of schools, 27 sqq., 114, 132, 208,
216, 234, 240, 261, 263, 269, 294, 319,
332 sq., 336, 338, 349, 398, 436, 456, 482,
560, 596, 634

Confusio, in accessio, 210; in obligatio,
451 sq., 559 sq., 562; in servitudes, 266

Coniunctim, 334 sq.

Consanguinea, 365, 371

Consensual contracts, 422, 478 sq.

Consensus curatoris, 173

Consent, in adoptio, 124; in adrogatio, 127
sq. ; in contract, 410; in emancipatio, 132
sq. ; in marriage, 114

Consilium, iudicis, 630, 635; in manumis-
sion, 80; principis, 15, 17, 30, 32; sena-
tus, 15

Consistorium, 17

Consolidatio, 271

Consortium, 315, 511

Constitutio, 18; Rutiliana, 245, 249

Constitutum, debiti, 157, 423, 451, 526 sqq.;
possessorium, 204, 207, 229, 511

Consultatio principis, 665 sq.

Consultatio veteris iurisconsulti, 36

Contra tabulas, see Bonorum possessio

Contract, 404, 406, 409 sqq. ; by one alieni

iuris, 135; by servus hereditarius, 306;
by tutor, 156; causa, 425 sq. ; choice of
action, 710; condicio, 419 sqq.; consensu,
422, 478 sqq.; dies, 419; effect in rem,
184; for heres, 423; for third party, 423;
literis, 236, 456 sqq., 563; of adrogatus,
397; re, 409, 459 sqq., 519; verbis, 406,
431 sqq.

Contraria iudicia, 636, 664, 686

Contrarius consensus, 568

Contrectatio, 572

Contribution in societas, 505

Contributory negligence, 582

Contumacia, 683, 693

Contutores, 159, 162 sqq., 166, 450, 452

Conubium, 94, 97, 98, 105, 114 sqq.

Conventio, 425

Conventus, 80

Convicium, 585

Corporations, 175, 290, 511

Corpore, corpori, in damnum, 583 sq.

Corpus, in possessio, 180, 201, 203

Correality, 448 sqq., 510, 560, 569 sq., 692,
699

Counterclaim, see Compensatio

Cretio, 309 sqq., 364

Crimen, expilatae hereditatis, 304, 572; sus-
pecti tutoris, 161, 658, 700

Culpa, 465, 484 sq., 490, 497, 501, 506, 547,
551 sqq., oTJj^in aestimatum, 521; in
damnum, jj^^fL; in exchange, 520; in
imndatt^HB^^L^Y.7/ ////•/.< contracts,

Cwra re,jB Bpw//i Possessio

CumulafflHIH '44

CumulatioiFKnjH^HProe Concurrence

Curatio, 143 sqqT, T53, 169 sqq., 535; ad-
ministratio, 173; bonorum, 174, 591,
639 sq., 667, 717 sq.; furiosi, 169, 396;
minoris, 171 sq. ; prodigi, 170; pupilli,
173 sq. ; representation by, in litigation.
703 sqq.; ventris, 174

Curiae, 2

Custodia, 46, 469, 473, 484, 498, 555 sqq.,
575

Customary Law, 52

Damage, by wild animals, 208. 598 ; to free

man, 584

Damages, see Measure of damages
Damnas esto, 332, 427
Damnatio, in legacy, 332, 334
Damnatus, iudicatus, 616, 717
Damnosa hereditas, 306
Damnum emergens, 583, 588
Damnum infectum, 197, 244, 545, 619, 656,

721

Damnum iniuria datum, 580 sqq., 709 sqq.
Dasumius, will of, 359
Datio in solutum, 482, 526, 538, 560
Datio ob rem, see Condictio ob rem dati
Deaf mutes, wills, 287
Death, as discharge of obligatio, 557; of

legatee, 343; of party to mandate, 515;

of socius, 508, 510

INDEX

745

deminutio

minus)

Debitum and Obligat-io, 403, 421, 537
Debt, effect of rupiti.-i ilii/iimttio, 141;

effect of cessio in in re Jiereditatis, 398;

imputation of, 560 sq.; legacy of, 345,

347; quasi usufruct in, 270
Decemviri, of XII Tables, 1 ; xtlitibus iudi-

candis, 610, 631
Decoctor, 705
Decretalis Bonorum Possessio, 395 sqq.,

719
Decretum, interdict, 726, 733; principis,

18 sqq.

Decuriae iudicum, 631
Dediticii, 81, 83, 97, 99 sq., 289, 377 sq.
Deductio in domum, 112
Deductio in transfer of property, 231 sq.,

235, 238, 265

Deductio of bonorum emptor, 401, 559, 697
Default in litigation, 608, 633, 660
Defensor civitatis, 663
Defensores, 702, 704
Delatio Jiereditatis, 301 sqq.
Delegatio, 253, 255 sqq., 566
Delict, 407, 409, 571 sqq.; by adrogatus,

397; by slave, 65, see Actiones noxaks;

choice of remedies, 710 sq. ; discharge by

death, 313; discharge by pact, 524;

effect of capitis deminutio, 141 sq., 571;

in contract, 597
Deminutio capitis, see
Demonstratio, 643 sq^

petitio in, 695 scjfl
Denegatio actionis^t

sq., 715
De piano, 396
Deportatio, 98
Depositum, 198, 459, 464 sqq., 470, 473,

552, 554; irregulare, 466, 503; iiis re

tentionis, 408; miserabile, 466
Derelictio, 73, 84, 208
Detention, 199, 258, 496
Detestatio sacrorum, 125, 282
Dicta et promissa, 489
Dictio dotis, 44, 431, 454 sq.
Dies, 261, 546; cedit, venit, 332, 339 sqq.,

343, 346; fastus, nefastus, 611, 619; in

appointment of tutores, 149; incertus,

certus, 75, 295, 337; in contract, 419; in

institutio, 295; perendinus, 607, 609, 612,

032 ; repetito,54A, 707 sqq. ; utilis, 383, 558
Diffarreatio, 121
Digesta, of classical jurists, 28, 30, 40; of

Justinian, 40 sqq., 47
Diligentia, 551. 553 sqq.
Discharge of obligatio, 557 sr\<\.
Disiunctim, 334 sq.
Dispensing power, 13
Disputatio fori, 52, 55
Dissimulatio in iniiiria, 58(>
Distractio bonorum, 640, 667
Divisible obligations, 561
Division of the Empire, 17, 51
Divisory actions, 657
Divorce, 117 sq., 1-1
Do, dico, addico, 38'5

Dolus, 158, 161 sq., 412, 418, 453 sq., 509,
551, 553, 589 sq. ; restitulio, 714 sqq.

Domicile, 250

Dominium, 187 sqq., 739; acquisition of,
206 sqq. ; and servitude, 258

Donandi animus, 215, 570

Donatio, 158, 207, 232, 241, 253 sqq., 326,
429, 483, 505, 529, 564, see Gifts; ante
(propter) nuptias, 111, 255, 368; between
husband and wife, 111, 218; collatio,
302; inter vivos, 253 sqq., 351; mortis
causa, 72, 190, 256 sqq., 339, 429, 592;
sub modo, 253

Dos, 107 sqq., 117 sq., 129, 141, 168 sq., 190,
207, 247, 250, 261, 279, 368, 411, 444,
529, 552, 554, 557, 658, 692, 718; alie-
natio, 276; collatio, 322, 362; ius retenti-
onis, 109, 408; legacy of, 347, 351

Dotis dictio, 44, 431, 454 sqq.

Duae lucrativae causae, 343, 559 sq.

Ductio, iussu praetoris, 197, 595, 638

Duplicatio, 651

Dupli stipulatio, 487

Dupondius, 49, 298

Dyarchy, 50

Eadem res, persona, in exceptio rei iudicatae,
691 sqq.

Ecclesiastical corporations, 179 sqq.

Edicta magistratuum, 9 sqq., 24; of aediles,
9, 11, 45; of emperors, 18; of Justinian,
18, 21; of provincial governors, 5

Edictal Mass, 43

Edictum, Carbonianum, 320, 719; generale
in iniuria, 585 ; of aediles on venaliciarii,
510; of praetor on contutoret, 163; on
debts of adrogatus, 397; on warranties
in sale, 364, 488 sqq., 505; successorium,
379

Edictum, praetoris, 9 sqq. ; novum, praelatum,
tralatitium, 6, 9; relation to ius gentium,
55; revision by Julian, 10, 30

Edictum Theodorici, 37

Editio actionis, 626, 708

Effects, of adoptio, 122 sq. ; otadrogatio, 125;
of capitis deminutio, 139; of emancipatio,
133; of enslavement, 72

Egestas, 509

Ekloge, 48

Emancipatio, 121, 123, 127, 132 sqq., 236,
320, 361, 370, 416, 428 sq., 441, 571

Emancipatus, succession of, 321 sq.; suc-
cession to, 373

Emblemata Triboniani, 44 sqq.

Emperor, control of legislation, 8; enact-
ments of, 16, 24; property of, 177; suc-
cession, 51

Emphyteusis, 222, 225, 274 sq., 475, 495,
734

Emptio venditio, see Sale

Enslavement, 67 sqq.; reMitutio, 713

Entry on hereditas, see Adi I'm

Epistolae, 19

Epistola traditionis, 232, 241

Ereptio legati, 343

47—5

746

INDEX

Error, as to identity of parties or subject,
415; in cessio in iure, 235; in contract,
414 sqq.; of status, 87, 97; in procedure,
693; in traditio, 230, 231; restitutio in
integrum, 715

Erroris causae probatio, 97 sq., 320, 363 sq.,
368

Exceptio, 11, 443, 462, 643, 645, 648 sqq.,
662 sq., 673; effect of, 648, 698; in inter-
dicts, 731

Exceptio, annalis Italici contractus, 650;
honor um possessionis non datae, 389, 394;
cognitoria, procuratoria, 651, 701; doli,
211, 214, 261, 388, 390, 392, 394, 412,
413, 438, 446, 468, 470, 590, 650 sqq.,
697 sqq.; iurisiurandi, 526, 651; iusti
dominii, 195 sq., 652, 738; legis Cinciae,
254 sq., 313, 673; legis Plaetoriae, 171;
litis dividuae, 649, 696; metus, 588 sq.,
652; non adimpleti contractus, 491; non
numeratae pecuniae, 438 sq., 457 sq.,
467, 650 sq.; pacti, 261, 266, 569; prae-
iudicii, 662, 693 sq. ; rei iudicatae, in
indicium deductae, 447, 559, 635, 650,
673 sq., 682, 689 sqq., 694 sq., 698 sq.;
rei litigiosae, 649; rei residuae, 649; rei
venditae (donatae) et traditae, 193 sq., 230,
255, 670; restitutae hereditatis, 352; sena-
tusconsulti, legis, 444, 649; ususfructus,
255, 652, 670

Exceptiones in edictum propositae, 651 ; per-
petuae (peremptoriae), dilatoriae (tempo-
rales), 537, 651, 715; rei, personae, co-
Jmerentes, 652

Exchange, 520

Ex edicto, see Bonorum Possessio

Exercitores, joint, 450

Exheredatio, 296, 302, 310 sq., 318 sqq., 322,
325, 328, 357

Exhibitory interdicts, 724, 733

Ex operis, ex re, acquisition, 278 sq.

Expensilatio, 456 sqq.

Expromissio, 566

Extinction, of obligatio, 557 sqq. ; of servi-
tudes, 266 sqq.; of usufruct, 271 sq.

Extinctive praescriptio, 249

Extranei heredes, 304 sqq.

Extraneus manumissor, 147, 381, 393

Extraordinaria indicia, 657 sqq.

Eviction, in sale, 486 sqq. ; of hereditas, 722

Evidence, 632, 662

Facultas solvendi, 561, 563, 636, 655
Failure, of condition, 421 ; of legacy, 341 sqq. ;

of will, 329

Falsa, causa, 336; demonstratio, ib., 347
Familia, 102 sqq., 136
Familiae, emptio, 236 sq., 283, 293 sq., 329;

erciscundae, 452; rmitatio, 138 sq.
Family trusts, 358 sqq.
Favor libertatis, 76 sq., 336
Female agnates in succession, 365, 371
Fenus, 460 sq. ; nauticum, 463 sq.
Festuca, in cessio in iure, 233
Fictio legis Corneliae, 68

Fideicommissa, 16, 19, 45, 132, 266, 272,

342, 349 sqq., 356, 358 sqq., 362, 455,

535, 658; hereditatis, 239, 344, 349 sqq.;

libertatis, 75 sqq., 85, 90, 303, 353 sq.,

399; missio in possessionem, 720; rerum

singularum, 353

Fideicommissary substitutions, 360
Fideiussio, 441 sqq., 517 sq., 699; alterna

(mutua), 451; indemnitatis, 447, 682
Fidepromissio, 313, 405, 441 sqq., 557
Fiducia, 44, 86, 120, 189, 231, 235, 238, 241,

277, 405 sq., 427 sqq., 464, 466, 471 sqq.,

484, 522, 552, 554, 597; cum amico, 428,

543; cum creditore, 429
Filiifamilias, 102 sqq. ; acquisition through,

202, 279 sq., 529; alienation by, 276;

contract by, 529, 549; noxal surrender,

597; proprietary rights, 104, 279 sq. ;

restitutio in integrum, 714; wills, 288
Fiscus, 176 sq., 190, 220 sqq., 251, 372, 400
Flamines, 119, 121, 131, 139, 321
Floating charge, 475
Foreclosure in pledge, 474
Formal transactions, 233; contracts, 409,

441, 459
Form, of institutio, 294; of mancipatio,

236 sq. ; of stipulatio, 431 sq.
Forms, of condemnatio, 653; of intentio, 647,

671; of legacy, 331 sqq.; of surety, 448;

of will, 282 sqq.
Formula, 603, 614, 627, 642 sqq.; arbitraria,

654, 733; in ius, in factum, 465; per

sponsionem, 668, 704; petitoria, 655,

668, 704; Publiciana, 195; Rutiliana,

401, 671, 679

Formulary system, 5, 623 sqq., 659
Foundations, 179 sqq.
Fragmenta Vaticana, 36, 41
Fragmentum Dositheum, 36
Fraternitas, 504 sqq., 536
Fraud, on creditors, 80, 84, 591 sq. ; on

patron, 592

Fraudulent adstipulator, 440
Freedman, see Libertus
Free persons, acquisition through, 202 ; sale

of, 72, 135, 481; theft of, 574
Fructus, 214, 222 sqq., 272 sq., 485, 491;

civiles, 223 sq., 226, 268; duplio, 669;

licitatio, 735
Fructuum,perceptio, 222 sqq., 498; separatio,

222, 225 sqq.
Fugitivus, possession, 200
Fundus dotalis, see Dos
Furiosus, 112 sq., 152 sq., 169, 200 sqq.,

205, 229, 288, 310, 416, 570, 703, 719
Furtum, 409, 414, 440, 572 sqq.; by owner,

573; conceptum, 578; lance licioque con-

ceptum, 576, 578; manifestum, nee mani-

festum, 576, 618; non exhibitum, 578;

oblatum, ib. ; prohibitum, 578; rei here-

ditariae, 304, 375, 572
Fusion of fideicommissum and legacy, 354,

357

Gaius, 29, 34 sq.

INDEX

747

Gens, 2; succession, 365, 383

Oenus, sale of, 482

Gifts, see Donatio; in causa caduci, 316;

post mortem, pridie mortis, 76, 83
Gods, as heredes, 289
Greek law, infiltration, 37
Group personality, 175
Guardianship, see Tutela, Curatio

Habere frui possidere, 191 sq.

Habere licere, stipulatio, 487

Habitatio, 274; pledge of, 475

Hereditas, 10, 183, 188, 281 sqq.; acquisi-
tion to, 306; and reversion, 375, 378 sq. ;
cessio of, 234; iacens, 175 sq., 304 sqq.,
362; lapsed shares, 315; mancipatio of,
239, 283 ; passing to Fisc, 307, 342 ; per-
sonality of, 305; possession by, 203; sale
of, 480

Hereditatis petitio, 227, 315, 324, 349, 375,
387, 388, 391, 395, 669, 673 sq., 738 ; missio
in possessionem, 720; possessoria, 387
sqq., 395; utilis, 352

Heredes, as witnesses to will, 292; classifica-
tion of, 302 sq. ; contract for, 423; charge
of debts, 314; coacti, 352; fiduciarii, 351
sqq. ; furiosi, 719; incerti, 720; liabilities
of, 312 sqq., 405, 552, 554; missio in
possessionem, 719 sq. ; necessarii, 81, 83,
302 sqq., 308, 362; suspecti, 720

Heredium, 303

Hire, see Locatio conductio

Holograph Will, 286 sq.

Honoraria, 512, 658

Honorarii Tutores, 163

Horror of intestacy, 361

Husband and wife, succession, 368

Hypothec, 111, 250, 355, 471 sq., 477 sq.,
498

Illegal conditions in wills, 296; in contracts,

422
Impensae in accessio, 215; in dos, 109 sq.,

700; in locatio, 497; in negotiorum gestio,

535; in redhibitio, 490
Imperial legislation, 38
Imperial provinces, 9, 50
Imperitia, 501 sq.
Imperium, 148, 712, 721, 723, 737
Impetratio actionis, 660, 626; dominii, 474
Implied, ademption of legacy, 342; gift of

liberty, 75, 83

Impossibility as a discharge, 557
Impossible conditions, 76; in contracts,

422; in wills, 295, 336
Impubes, 114, 126, 143 sqq.; as tutor, 152

sq. ; unauthorised transactions, 160
In bonis habere, 192 sqq.
Incapaces in contract, 416 sqq.
Incertae personae, 179, 208, 289, 310, 350,

358 sqq.; traditio to, 231
Incerti de statu suo, 287
Indefenni, 629 sqq., 640, 717
In diem addiclio, 494
Indignitas, 317, 327, 343

Indirect representation, 533
Indivisible obligations, 408, 434, 561
Infamia, 92 sq., 118, 161 sq., 465 sqq., 509,

536, 554, 577, 640, 654, 684, 689, 701 ; of

women, 93

Infans, 159, 174, 202; aditio, 310
Infantiae proximus, 159
I nJU tans, 617, see Actio in duplum
Informal, manumission, 78; wills by parents,

286

Ingenuus, 84, 91, 135, 363
Inheritance of status, 200
Initium possessionis, 243 sqq.
Iniuria, 407, 447, 584 sqq.; noxal actions,

594, 596; to slaves, 587
Iniusta causa, see C'ondictio
Iniustum sacramentum, 607
In ius vocatio, 89, 605, 608, 613, 617, 626,

660, 686, 737

In libertate morari, 79, 80

Innominate contracts, 44, 496, 518 sqq.

Inquilinus, 92, 495

Insinuatio donationis, 255

Institor, 306, 449, 452 sq., 531

Institutes, of Gaius, 29, 46; of Justinian, 23,

46
Institutio heredis, 281, 285, 289 sqq., 293

sqq.; ad certam rem, 294, 330; of collegia,

178; of municipia, 178
Insula, 497; nata, 186, 212, 213, 268
Intellectus, 158; possidentis, 200
Intentio, 456, 460, 462, 645 sqq., 671
Intercessio, 444; of magistrate, 641, 715
Interdicta, 11, 270, 543, 602, 622, 642, 658,

661, 723 sqq.; classifications, 724 sqq.,
730; duplicia, 729; exhibitoria, restitu-
toria, prohibitoria, 724 sq. ; mixta, ib. ;
popularia, 726; possessoria, 193, 198,
200, 726 sqq. ; secundaria, 737

Interdictal procedure, 730 sqq.

Interdictio prodigi, 170

I nter dictum, de aqua, 726, 734; de glande
legenda, 723, 726; de clandestina posses-
sione, 522, 729; de liber is ducendis, ex
hibendis, 724, 726, 730; de itinere, 723,
726, 730; de itinere reficiendo, 724, 726,
730; de precario, 522, 729; de super -
ficiebus, 275, 728; de tabulis exhibendis,
724; de uxore ducenda, 724, 726; de vi
armata, cottidiana, 728 sq., see Inter-
dictum unde vi; fraudatorium, 592, 727;
momentariae possessionis, 729; posses-
sorium, 727; quam hereditatem, quern fun -
dum, 630, 725, 729; quod legatorum, 387,
389, 725, 727; quod vi aut clam, 304,
545, 715, 725, 730; quorum bonornin,
385 sqq., 392, 394 sq., 725, 727, 732.
738; Salrianum, 472, 727; sectoriuin.
727; unde vi, 9, 472, 588, 725, 729, 730,
732, 738; uti possidetis, 472, 723, 728,
734 sqq.; utrubi, 255, 472, 723, 728,
734 sqq.

Interesse, in actio nil t .rhibendum, 544; in
contract, 424, 436; in daw mini. 5S3; in
fiirtum, 574; in inliirin, 5S6; in mandate,

748

INDEX

512 sq. ; in rapina, 579; in sale, 479, 490;

for restitutio in integrum, 713
Interest, 545 sqq., 558, 674; after mora, 547
Interpolations, 44 sqq.
Interpretatio, of pontiffs, 2; of prudentes, 22,

Interpretation of contract, 411 sq.
Interrogationes in litigation, 312, 627 sq.,

661

Intestabiles, 93, 287, 291 sq.
Intestacy, 361 sqq.. 380 sqq.
Inventory, by keres, 313; by tutor, 154
Italic land, 188
Her, actus, via, 240, 263
Iteratio, 95, 146

Joint, delict by slaves, 596; commodatum,
470; liability for debts, 313; legacy,
334 sqq., 346; liability for penalty, 449,
453; stipulation, 449

Index, 11, 195, 603, 607, 610, 627, 631, 681;
pedaneus, 659, 663 ; qui litem suam facit,
593, 633, 636, 641

Judgment, effect, 70, 607, 636 sq., 664; in
default, 608 sq., 633, 660

ludicatus, 616, 717

ludicatum facere, 615

ludicatum solvi, see Satisdatio and Security

Indicia, bonae fidei, 55, 408, 410 sqq., 612,
646, 672 sqq., 694, 697 sqq.; contraria,
636, 664, 686; extraordinaria, 657 sqq.,
see Cognitio; imperio continentia, 168,
197, 637, 681 sqq., 689 sqq.; legitima,
153, 252, 447, 637, 681 sqq., 689 sqq. ; pub-
lica rei privatae, 171; stricta, 408, 410
sqq., 646, 651, 672 sqq., 694, 697 sq., 739

Judicial stipulations, 434

ludicis postulatio, 612, 616

Indicium, 604; Cascellianum, 735 sq. ;
fructuarium, ib. ; secutorium, 732 sqq.

Julian, 30; revision of the Edict, 10

Junian Latins, see Latini

lura, in bonis liberti, see Succession to freed-
men; incorporalia , 187; in re aliena, 197,
258 sqq.; praediorum, rusticorum et urba-
norum, see Servitudes

luramentum in litem (iusiurandum), 633,
655, 675, 733

lurata promissio liberti, 431

lurgium, 604

lurisdictio, 148, 603

Jurisdiction, limits, 641 sqq., 663

Jurists, 21 sqq., 33; in imperial consilium,
26; cited in Digest, 27, 41

Juristic persons, 174 sqq.

Juristic writings, 28 sqq., 34 sq.

Ins, 258, 537, 604; actionum, 29, 183, 599
sqq.; as ius in rem, 187; civile, 52 sqq.;
gentium, 52 sqq., 98, 100, 228, 231;
honorarium, 9 sqq.; naturale, 52 sqq.;
personarum, 29, 56 sqq., 60; Quiritium,
189, 192; rerum, 29, 182 sqq.

Ius abstinendi, 134, 303; accrescendi, 252,
270, 316 sq., 319, 335, 343, 362, 384;
antiquum in caducis, 292, 316, 343;

anuli aurei, 91; capiendi, 291 sq.;
edicendi, a, 9; faciendi, 259; honorum,
94, 98; in personam, 403 sqq.; in rem,
182 sqq.; -iura condere, 26; liberorum,
105, 129, 169, 368 sq., 371; offerendae
pecuniae, 477; prohibendi, 259; respond-
endi, 22 sqq.; retentionis, 214 sqq.,
407 sq., 465, 468, 470, 488, 498, 537, 575,
669; suffragii, 98; tollendi, 214sq., 497

Iusiurandum, calumniae, 356, 628 sq. ; de-
latio of, 197, 614, 628, 661 sq. ; in litem,
see luramentum; liberti, 396, 455 sq.,
567; necessarium., 614, 628, 661 sq. ;
relatio of, see Relatio iurisiurandi; vo-
luntarium, 525, 662

lussum, in acquisition by slave, 279

lusta causa, in servitudes, 266; in traditio,
229, 425, 494; in usucapio, 199, 246,
425; in usufruct, 271

lustae nuptiae, 105 sqq.

Justinian, as legislator, 40 sq.

lustitium, 611

lustus contradictor, 692

Laesio enormis, 483, 521, 563

Land, see Damnum, Furtum, Res soli,
Solum, Possessio, Usucapio

Lapsed shares in hereditas, 300, 315;
legacies, 334 sqq.

Latini, 87, 93 sqq., 99, 101, 114, 160, 647;
acquisition of civitas, 95 sq. ; capitis de-
minutio, 139; wills of, 288

Latini, colonarii, 93, 96; veteres, 93

Latini luniani, 79, 80, 83, 87, 94 sq., 145,
291, 350, 377

Latitatio, 626, 630, 640, 717

Latium, mains, minus, 94

Law, of Persons, 29, 56 sqq. ; of things, 29,
56, 182 sqq.; of actions, 29, 56, 599 sqq.

Law of Citations, 29 sqq., 39, 41

Law Schools, 39, 49, see Scholae

Legacy, 45, 219, 322, 331 sqq., 535, 720, 722;
per damnationem, 332, 334, 539, 581, 616,
618; per preceptionem, 333 sq. ; per vin-
dicationem, 331 sq., 334, 339, 354; si-
nendi modo, 333 sq.

Legacy, alimentorum, 356, 523; debiti, 347;
dotis, 347, 351; generis, 346; in annos
singulos, 438; liberations, 345, 347;
nominis, ib. ; of annuity, 347 ; of materials
of house, 341; optionis, 346, 543; par-
titionis, 349, 351; peculii, 347; rei
alienae, 345 sq.; rei obligatae, 347; sub
condicione, see Conditions; sub modo, 337,
340; to son or slave of heres, 337 sq.,
341; ususfructus, 272, 348

Legal education, 49

Legal impossibility, see Impossible, Im-
possibility

Legati Caesaris, 9, 50

Legis Actio, 5, 74, 124, 178, 233 sq., 429,
440, 447, 603, 605 sqq., 619 sqq., 634,
657, 689, 700 sqq., 721

Legislation in Republic, 1 ; in divided Em-
pire, 17, 51; of Justinian, 40

INDEX

749

Legitimation, 128 sqq.

Legititni, heredes, 367; tutores, 163 sqq.

Lex, as discharge, 559; as modus adquirendi,
253

Lex coloniae Oenetivae, 610, 614, 615;
metalli Vipacensis, 16, 619; Rhodia de
jactu, 503; Homana Bur<jnit(li(nium, 37;
Romana Wisigothorum, 32, 36, 39;
Rubria, 609, 629 sq., 638, 642, 653, 656,
680; Salpensana, 139, 143, 100

Lex comrnissoria, 474, 479, 493; contractus,
420; mancipii, 238

Lex, curiata de imperio, 7, 8; data, 7, 16;
dicta, 7, 16; edictalis, 21; generalis, 52;
/a/a, 2 sq., 7, 16, 24; perfecta, imperfecta,
minus quam perfecta, 7, 443; publica,
283; reg-ia, 1, 6, 17, 20; tributa, 4, 8

Lex (leges), Aebutia, 5, 444, 614, 618, 624,
625, 648, 681, 689; Aelia Sentia, 10,
79 sqq., 83, 90, 94, 96, 99, 101, 135, 303,
358; Appuleia, 443, 445; Aquilia, 408,
440, 539, 580 sqq., 591, 594, 597, 616,
646, 675 sqq., 686 sq., 710; Atilia, 148;
Atinia, 248; caducariae, 129, 258, 291,
298, 300, 316, 332, 334 sq., 341, 343, 347,
348, 350, 357, 362, 384; see L. Papia
Poppaea, lulia de maritandis ordinibus;
Calpurnia, 431, 612, 614, 678; Canuleia,
4, 7, 115; Cicereia, 443, 518, 527, 683;
Cincia, 7, 89, 254 sq., 257, 313, 367,
648 sq., 673,728; Claudia, 167; Corneliae,
68, 110, 288, 444,518,527,585; Crepereia,
622; duodecini tabularum, see Twelve
Tables; Falcidia, 256, 258, 294, 313 sq.,
326, 338 sq., 343, 347, 352 sqq., 542, 722;
Fufia Caninia, 14, 75, 79, 83, 135, 358;
Furia de sponsu, 443, 446, 617, 683;
Furia testamentaria, 7, 338, 367, 618,
648; Hortensia, 4 sq., 7, 14; Hostilia, 68,
700; Icilia 4; lulia, de adulteriis, 108 sq.>
249, 261, de cessione, 640, de collegiis,
178, de maritandis ordinibus, 8, 107, 109,
113, 115, 291, 316, de vi, 580, munici-
pals, 620, 639, 682; lulia et Plautia, 248;
lulia et Titia, 149 ; luliae iudiciariae, 624,
681 sq., 690; I it n in (Norbana), 10, 79
sqq., 94, 96, 145, 152, 291, 341, 357, 377;
lunia Velleia, 320; Liciniae, 5, 612;
Marcia, 7, 618; Minicia, 101; Papia
Poppaea, 8, 10, 115, 253, 291, 316, 341,
376, 382, 393 sq. ; Papiria, 611 ; Petronia,
64, 636; Pinaria, 606, 612, 632; Plae-
toria, 171, 648. 678, 714; Poetelia, 426
sq., 616, 618; Publilia, 442, 617; Publilia
Philonis, 4; Scribonia, 258, 264; Sem-
pronia, 483; Silia, 612 sq., 676, 678;
Valeria Horatia, 4; Vallia, 617 sq. ;
Visellia, 95; Voconia, 289, 337 sq., 349
sq., 365, 376

Libellus conventionis, contradictions s, 660 sq.

Libera persona, acquisition through, 202,
277

Liberi, 106, 366, 368; patroni, tutela, 147;
patroni, succession, 375, 399

Libertus, libertinus, 84, 88, 89, 375, 545;

adrogatio of, 91, 125 sq. ; as tutor, 150

sqq.; ingratus, 71; orcinus, 78, 354; see

Succession to frcedmen
Liberty, definition, 62; restitutio, 713
Liberurn matrimoninm, 106 sq., 117
Libripens, 236, 283
Lis, 604, 606
Litis contestatio, 243, 250 sq., 258, 396,

446 sq., 450 sqq., 465, 518, 544 sq., 549,

558, 566, 571, 586, 588, 590, 592, 595 sq.,

607, 627, 634 sq., 643 sq., 646, 653, 660

sqq., 669, 675, 682, 689 sqq., 700 sq.,

706 sqq., 717
Litis denuntiatio, 660
Loan, for consumption, 458 sqq. ; for use,

467 sqq. ; per aes et libram, 426 sq.
Locatio conductio, 465, 468, 478 sq., 494 sqq. ;

irregular is, 503; operarum, 500 sqq.;

operis, 500 sqq., 512; partiaria, 496; rei,

495 sqq., 500
Longi temporis praescriptio, 197, 243, 249

sqq., 644; in servitudes, 266
Longissimi temporis praescriptio, 251
Loss of testamenti factio, 307
Lucrifaciendi animus, 572
Lucrum cessans, 583
Lucre debere, 620
Luminibus officiendi ius, 264

Magister Bonorum, 401, 603

Mala fide possessor, 575; hereditatis, 315

Mancipatio, 119 sq., 124, 156, 188, 190, 192,
209, 228, 231 sq., 236 sqq., 261, 293, 329,
472, 494, 513; cum fiducia, 263, 429;
familiae, 283, 285, 307, see Mancipatory
will; in donatio, 241, 256; metus, 413; of
servitudes, 264; to or by filius or slave,
239

Mancipatory will, 237, 282 sqq., 288, 329 sq.

Mancipii causa, see Civil bondage

Mancipium, 62, 133

Mandata principis, 18, 21

Mandatum, 202, 424, 441 sq., 470, 478, 501,
507, 512 sqq., 534, 553 sq., 557; as
agency, 516; as assignment of contract,
518; as surety (m. qualificatum), 448,
517; post mortem, 515

Manumission, 63, 73 sqq., 156, 331, 455; by
will, 74 sqq., 79, 284; Censu, 73; inter
amicos, 78, 83; in ecclesiis, 82, 83; per
epistolam, 78, 83; sacrorum causa, 79;
vindicta, 73, 74, 235

Manumission, age of parties, 80; by pere-
grine, 81; in fraud of creditors, 80, 84;
in fraud of patron, 80 sq.; metus, 413; of
common slave, 82; of pledged slave, S2;
of servusfructuarius, ib. ; of serruspopnli,
ib. ; of servus universitatis, ib. ; of unborn
person, 77, 83

Mantis, 103 sqq., 118 sqq., 131, 169, 397,
531; missio in possessionem, 718; pos-
session by one in, 204

Manus consertio, 606, 607

Manus iniectio, 442 sq., 455, 606, 608, 614
sqq., 637 sq.

750

INDEX

Marriage, 105 sqq.; of concubina, 130;
reslitutio, 713; see Nuptiae, Conubium

Materna bona, 280 sq.

Matrimonium iuris gentium, 105 sqq.

Measure of damages, in actio ad exhibendum,
544; in commodatum, 469; in communi
dividundo, 536; in condictio furtiva, 578;
in damnum, 580 sq. ; in deposit, 464 sq. ;
infurtum, 577; in hereditatis petitio, 315;
in iniuria, 586 sq. ; in locatio, 497 sq. ; in
mandate, 514; in metus, 588; in negoti-
orum gestio, 534 sq. ; in pignus, 473 ; in
rapina, 579; in vindicatio, 258; in sale,
480 sq., 485 sq., 489 sq. ; in servi corrup-
tio, 591; in societas, 506

Mensor, 501

Merces, 496, 502 sq.

Metus, 413, 453 sq., 588 sqq., 673, 714,

716 sq.

Mililes, 153, 157; wills, 357 sq.

Militia, 326

Minors, 171 sqq., 549; restitutio, 714, 717

Minus petitio, 644 sqq.

Misrepresentation in contract, 416

Missio in possessionem, 197, 242, 244, 314,
320, 344, 352 sq., 359, 477, 540, 626, 630,
638 sq., 642, 654, 658, 664, 667, 712,

717 sqq., 732, 737; rei servandae causa,
717

Mistake, see Error

Modalities in contract, 419 sqq.

Modes of acquisition of dominium, 206

Modus, 253, 337; lege agendi, 605

Money paid by mistake, see Condictio

indebiti
Monilia, 219
Mora, 405, 418, 421, 450, 503, 506, 538, 546

sqq., 561, 563, 566; creditoris, 547
Morbus, in sale, 488 sqq. ; sonticus, 605, 608
Mortgage by fiducia, 471 sq.
Mortis causa capio, 328
Mother, succession of, 368 sq. ; to, 370
Multa in damnum, 580
Municipfa, personality, 177; heredes, 290
Mutatio iudicis, 708
Mutuae petitiones, 696, 739
Mutuum, 168, 410, 420, 430, 439, 459 sqq.,

467, 525, 537, 545

Natural children as heredes, 289, see Le-
gitimation

Naturalis ratio, 53

Nautae, caupones, stabularii, 555 sq., 593

Nauticum fenus, 460, 463 sq., 545

Necessarius heres, 299, 302 sqq.

Negative, conditions, 76, 296, 336; interesse
in theft, 574 sq. ; prescription, 249;
servitudes, 259, 263

Neglegentia, 552, 553, 556, see Culpa

Negotiorum gestio, 166, 211, 215, 390, 453,
513, 533, 552, 561

Nemo pro parte testatus, 281, 327, 357

Nexi liberatio, 426

Nexum, 404, 409 sq., 426, 460, 567, 616 sq.

Nomen Latinum, 93, 94

Nomina arcaria, 456; transcriptitia, see

Contract literis
Nominatio, in acquisition by slave, 279;

iudicis, 643

Non bis in idem, 454, 689, 702
Non-possessory interdicts, see Interdicts
Nonuse of servitudes, 267; of usufruct, 271
Nota censor ia, 117
Nova clausula luliani, 11, 366
Nova species, 216 sq.
Novatio, 444, 450, 452, 509, 514, 548 sq.,

563 sqq.; necessaria, 450, 566, 689; of or

by conditional obligation, 420
Novellae constitutions, 40, 47
Noxa caput sequitur, 87, 595, 597
Noxal, actions, see Actiones noxales; liability,

134, 183, 397, 404 sqq., 594 sqq., 654;

surrender of children, 104, 114
Nuda voluntas, aditio by, 310
Nude pacts, 524 sq.
Nulli res sua servit, 259 sq.
Nuncupatio in Mancipatory Will, 283 sqq.
Nuptiae, 107, 112; effect of capitis deminu-

tio, 140
Nuptiae iustae, 105 sqq. ; determination,

117, see Divorce; requirements, 112 sqq.
Nuptiae non iustae, 105 sq.

Oath, see luramentum and lusiurandum

Oblatio curiae, 130

Obligatio, 183, 403 sqq., 537; alternative,
561; and actio, affinity, 600; as res in-
corporalis, 187, 403; assignment, 518,
550; beginning in heres, 423, 515; civilis
honoraria, 406, 408; divisible, 561; ex
contractu, 409 sqq.; ex delicto, 571 sqq.;
extinction, 557 sqq. ; faciendi, dandi,
405; naturalis, 54, 66, 87, 141, 159, 408,
435, 442, 444, 461, 463, 491, 498, 545, 548
sqq., 558, 564, 682, 699 ; quasi ex contractu,
533 sqq. ; quasi ex delicto, 593 sq. ; re, 459,
572

Obsequium, 89, 91, 94, 96, 150

Occidere, 581 sq.

Occupatio, 206 sqq., 217 sqq., 223

Offer, death of party, 410

Officium iudicis, 634 sqq., 673

Omission in damnum, 581 sq.

Omission in will, of ascendants, 325; of
brothers and sisters, ib. ; oipostumi, 319;
of sui heredes, ib.

Omnia indicia absolutoria, 634, 673 sq.,
693 sq.

Oneris ferendi ius, 259

Ope consilio, 573, 591

Opening of Will, 293

Operae, servorum vel animalium, 274; liberti,
89, 90, 96, 455

Operis novi nuntiatio, 545, 715, 722, 726

Oportere, see Intentio

Optio tutor is, 167 sq.

Oral Will, 286

Oratio principis, 15, 21

Orbi, 291, 300

Ordo Equester, 88, 91; Senator ius, ib.

INDEX

751

Or do iudiciorum, 657, 663
Ownership, inferior modes, 191 sq.
Owner, treasure, 220; theft by, see Furtum

Pact and stipulation, 265, 277

Pacta, 55, 465, 469, 524 sqq., 549; adiecta,
190, 500, 524, 674; continua, 525; dotalia,
108; ex intervallo, 525; legitima, 409,
528 sqq.; praetoria, 409, 525 sqq., 680

Pactum, de non petendo, 421, 423, 448,
451 sq., 565, 568 sqq.; de retroemendo,
retrovendendo, 492; displicentiae, 492;
donationis, 256, 529; dotis, 529 ; fiduciae,
189, see Fiducia; protimeseos, 492

Papinian, 31

Papyri, as sources, 37

Pardon of servus poenae, 70, 85

Parens manumissor, 132, 369, 373 sq., 380;
tutela, 147

Parricidinm, 103

Pars, dominii, 269; legitima, 325 sq., 344

Partial ademption of legacy, 342

Partial failure of will, in querela, 328

Par'iceps, 510

Partis evictio, 487 sq.

Partns ancillae, 63, 224, 247 sq., 268

Passive correality, 450

Paterfamilias, 102; contract with filius, 548,
see Patria potestas

Pater solitarius, 291

Patria potestas, 97, 99, 103 sqq., 113; deter-
mination, 131 sqq.; over issue of one in
mancipio, 134; revocatio to, 131

Patrimonium, 184 sq.

Patron's rights, 88 sqq.; effect of capitis
deminutio, 141; succession, 89, 91, 96,
375; tutela, 146

Paul, 31

Pauperies, 598

Payment, in mancipatio, 237, 240 ; in traditio,
231; of debt to pupil, 160; see Solutio

Peculium, 66, 78, 87, 94, 133, 202, 306 sq.,
399, 529; castrense, 140, 142, 279 sq., 288,
372 sqq., 396, 416, 463; profectitium,
279; quasi-castrense, 140, 142, 280, 288,
372 sqq., 396, 416, 463; reversion of, 372
sqq., 378

Pecunia, 283; traiectitia, see Nauticum/enus

Penal actions, see Actiones ad poenam per-
sequendam

Penal slavery, 142

Penal stipulation, 424

Perambulatio, 232

Peregrini, 87, 97 sqq., 102, 114, 240, 289,
350; in damnum, 584; institutio or
legacy, 341; ownership by, 192, 197

Perendinatio diei, 607, 609, 612, 632

Permutatio, 468, 486, 520

Perpetuities, 358 sqq.

Persona, 174 sq.;^cta, 175, 305; singularis,
176

Personality, 174 sqq.

Personal nature of obligatio, 404

Personal servitudes. 260, 267 sqq.

Persons, law of, 56 sqq.

Piae causae, 179 sqq., 256

Pignoris capio, 618 sqq.

Pignus, see Pledge; and fiducia, 428; ex
causa iudicati, 666; praetorium, 477

l>l,h'i.«-;t,i, 4, -24

Pledge, 44, 183, 205, 222, 459, 470 sqq.,
474 sq., 563, 692; conditions, 420; indi-
visibility, 252; iusretentionis, 408; manu-
mission of slave, 82; novafio, 566; pri-
orities, 476 sq.; right of sale, 474; sub-
ject of, 263, 475

Pledgee, alienation by, 276; interesse in
furl Km, 57o

Plurality of principals, 448 sqq.

Plus minusve secuere, 615

Pluspelitio, 444, 635, 645, 694 sqq., 706, 715

Pollicitatio, 455

Pontifices, 2, 606, 609, 621

Populus Romanus, as person, 176

Positive interesse in theft, 574

Positive servitudes, 259, 263

Possessio, 198 sqq., 222 sq., 464, 466, 472,
496, 522, 671, 739; acquisition, 201 sqq.,
232; by hereditas, 306; chilis, naturalis,
199, 200; feigned in Publician, 196; for
captivi, 68; iuris, 260, 386 sq. ; loss of,
204 sq.,; not a res, 187, 205; pro herede,
pro possessore, 315, 386, 389 sq. ; theories
of, 199 sq.

Possessory, actions, 738; interdicts, see
Interdicta

Possibility, in contract, 417 sq. ; in con-
ditions, see Conditions

Postliminium, 67 sqq., 73, 85, 288, 356

Postpapinianian Mass, 43

Postulatio, 92; actionis, 626, 660; suspecti
tutoris, 161

Postumi, 138, 144, 290, 296, 303, 319 sq.,
363 sq.; Aquiliani, 320; extranet, 308,
337; institutio of, 308; luliani, 320; legi-
timi, 319; omission of, 319, 393; sui, 308;
Velleiani, 320

Potestas and tutela, 143

Potestas, see Patria Potestas; in noxal ac-
tions, 595, 627

Potioris nominatio, 150

Praeceptio, see Legacy

Praeda, 209

Praedial Servitudes, see Servitudes

Praefecturae, 51

Praefectus, annonae, 663; iuridicundo, 642;
praetorio, 17, 50, 51; urbi, 50, 53, 663;
vigilum, 663

Praeiudicium, see Actio praeiudicialis

Praeiudicium (as defence), 644, 709, 711

Praelegatum, 333, 339, 349

Praemia patrum, 105, 123, 129, 291, 300,
316 sq., 335

Praepostere conceptum, 337, 437

Praes, 448, 606 sq., 616, 704

Praescripta verba, see Actio praescriptis
verbis

Praescriptio, in formula, 643 sq. ; longi
temporis, 249 sqq., 277, 644, 694; langis-
simi temporis, 251; praeiudicii, 644; pro

752

INDEX

adore, pro reo, 643, 653; in usufruct,

271

Praestationes, in divisory actions, 648, 654
Praetor, de liberalibus causis, 10; peregrinus,

9, 12, 50, 625; fideicommissarius, 10,

349 sqq.; tutelaris, 10, 149; urbanus, 9,

12, 50, see Edictum praetoris
Praetorian, law of exheredatio, 321 sqq. ;

scheme of succession, 366 sqq.; will,

284 sq.

Pragmatic sanction, 21
Precarium, 467, 471, 477, 521 sq., 553,

729

Prescription of actions, 558
Presence, in auctoritatis interpositio, 158; in

stipulatio, 433
Prevention of satisfaction of condicio, 297,

421

Price in sale, 482 sqq.
" Pridie quam moriar," 437, 446
Princeps, legibus solutus, 16; senatus, 14;

succession, 51

Principum placita, 16 sqq., 24
Priority, in bonorum possessio, see Bonorum

possessio; in pledge, 476 sqq.
Privative intercessio, 444
Privileged debts, 540, 639; hypothec, 477
Privilegium, 290 sq., 312
Procedure, 599 sqq. ; in interdicts, 730 sqq.
Proculian School, 27 sqq.
Procurator, 168, 244, 512, 513, 518; accep-

tilatio by, 568; acquisition by, 202, 277;

ad litem, 701 sqq.; alienation by, 277;

in rem suam, 157, 315, 445, 518, 550;

novatio by, 564; purchase by, 405;

voluntarius (defensor), 702, 704
Prodigus inter dictus, 170, 292, 549, 570,

703; will of, 288

Profectitium peculium, see Peculium
Pro herede gestio, 310, 312, 364
Prohibition to alienate, effect in rem, 190,

359

Prohibitory interdicts, see Interdicta
Pro noxae deditione, 597
Pronuntiatio, 636, 647, 664, 690
Prescript io bonorum, 639
Pro tribunali, 396

Provincia, 659; change in meaning, 51
Provincial Edict, 12; land, see Solum
Provisional interdicts, 723, 738
Pubertati proximi, 159
Puberty, 161
Publicani, 619 sq. ; liability iorfamilia, 596;

societas, 504, 510

Pulsare, verberare, vi domum introire, 585
Pupillary substitution, 104, 300 sqq., 322,

357
Pupillus, alienation by, 276; commodatum

by or to, 470 Contract by, 436, 442, 549;

deposit by, 464 ; missio in possessionem,

718; tacit hypothec, 478
Purging of mora, 547
Putative causa, 425, see lusta causa

Quaestor sacri palatii, 17

Quarto, Antonina, 127, 323; Falcidia, 326,

354 sqq.; Pegasiana, 353 sq., 357
Quasi,, castrense peculium, 280, 288; con-
tract, 406, 533 sqq.; delict, 407, 409,
593 sq. ; possession, see Possessio iuris;
postumi, 320; pupillary substitution,
302; traditio, 265, 277; usufruct, 270
Quern liberum, see Interdictum
Querela inofficiosi donationis, dotis, 329
Querela inofficiosi testamenti, 254, 256, 289,
296, 301, 318, 324 sqq., 357, 683, 685;
under Novels, 328
Quinquaginta decisiones, 46
'''Quoad vivam," 438
(Jnod legato/rum, see Interdictum
Quorum Bonorum, see Interdictum

Rapina, 409, 579 sqq., 675

Ratification, by pater, of marriage, 114; in
litigation, see Satisdatio; of acquisition
by procurator, 202, 277; of slave's con-
tract, 531 ; of intercessio by woman, 445;
of loan to filiusfamilias, 463; of nego-
tiorum gestio, 534

Real contracts, 459, see Contracts re

Receptum, arbitri, 528; argentarii, 527;
nautae cauponis stabularii, 528

Recuperandae possessionis causa inter dicta,
see Interdicta

Recuperator es, 610, 623, 631 sq., 635

Recuperatoria ludicia, 98, 623

Re, coniuncti, disiuncti, re et verbis con-
iuncti, 334 sqq.

Redemption, of child, 71, 73; of captive, 69

Redemptor, 502

Redhibitio rei venditae, see Sale •

Regula Catoniana, 258, 337 sq., 341 sq., 346,
354

Regulae of Ulpian, 26, 33

Rei vindicatio, see Vindicatio

Relatio iurisiurundi, 526, 628, 661, 663

Relatio, to princeps, 665 sq.

Relationship of slaves, see Cognatio servilis

Release of debt, 567 sqq. ; per aes et libram,
567

Relegatio, 509

Remancipatio filii, 120

Rem non liquere, 635

Remotio tutor is, 162

Rem ratam habiturum dominum, see Cautio
de rato

Renunciation, of servitude, 266; of tenancy,
499, see Societas, Mandatum

Repetitio diei, 544, 707 sqq.

Replicatio, 447, 651

Representation, in litigation, 440, 700 sqq.,
707 ; in contract, 516, 529 sqq. ; in manu-
mission, 74, 84; in transfer of property,
276 sqq.

Repudiation, of bonorum possessio, 384 ; of
hereditas, 312; of legacy, 344

Repudium (divorce), 117

Res, 182 sqq., 404; alienae, fideicommissum
of, 353, sale of, 488; communes, 173 sqq. ;
corporales, 187; deiectae vel effusae, 453,

INDEX

753

593, 688; derelictae, 208; divini iuris,
184 sqq., 210; dotales, see Dos; extra
commercium, 201; extra patrimoniiini,
184 sq. ; furtivae, sale, 481, usucapio,
194, 248; hereditariae, theft, 572; /<«-
warn tim's, 184 sqq. ; hostis, 209 sqq. ;
incorporates, 187 sq., 260, 265, 403, 522.
cessio of, 235, commodatum of, 468,
possession, 198, sale of, 481; in patri-
monio universitatis, 184; litigiosae, 276,
481, 529, 532, 694, 705, 715; manci/>i,
nee mancipi, 168, 188, 225, 228, 231,
234, 239, 241, 250, 263, 276, 486;
nullius, 184 sqq., 209 sqq., 212, 217 sq.,
332; publicae, 184, 186, 213, 221, 725;
religiosae, 184 sq., 221, 481; sacrae,
184 sq., 221, 418, 481; soli, 188, 572, see
Solum; sanctae, 184 sq. ; suspensae, 593,
688; universitatis, 184; vitiosae, 248, 488
Res inter alios actn, 691 sq., 716
Res iudicata, 233, 398, see Exceptio rei

iudicatae

Res perit domino, 484
"Res salvas fore," 528
Rescission of usucapio, 249
Rescript procedure, 19 sq., 665 sq.
Rescripta principis, 18 sqq.
Resolutive conditions, 257; in wills, 296;
in contract, 422; in sale, 491 sqq., effect
in rem, ib.

Responsa prudentum, 22 sqq., 30
Restitutio in integrum, 72, 144, 160, 166,
171 sq., 249, 254, 266, 276, 312, 314, 317,
368, 413, 448, 549, 588, 589, 592, 636,
641 sq., 658, 682, 693, 695, 697, 706, 707,
712 sqq.; effect in rem, 716
Restitutio natalium, 91
Restitution of servus poenae, 71
Restitutory interdicts, see Interdicta
Retention, right of, see lus retentionis
Retinendae possessionis causa interdicta, see

Interdicta

Revocatio in duplum, 638
Revocatio in patriam potestatem, 131
Revocation, of gifts, 190, 253 sq., 257, 430;

of mandate, 516; of will, 329 sq., 344
Rhodian Sea Law, 503
Risk, after mora, 547; in aestimatum, 521;
in condictio furtiva, 542; in condictio in-
debiti, 539; in condictio ob rem dati, 541;
in condictio sine causa, 542; in locatio, 498,
503; in negotiorum gestio, 534; in sale,
484 sqq., 491 sq. ; in societas, 505
Rivers, in what sense public, 186
Rumpere in damnum, see Damnum
Rustic servitudes, see Servitudes
Rutilian/omwfa, 401, 679

Sabinian, doctrine, dominance of, 30; Mass,

43; School, 27 sqq.
Sacra, 125, 127, 133, 361, 364
Sacramentum, 605 sqq., 613, 616, 618, 620

sqq., 634, see Legis actio
Sacrilege, 185
Solaria, 512

Sale, 411, 478 sqq.; ad gustum, 492; by
tutor, 155; custodia, 555; defect of title,
44, 485 sqq. ; duties of parties, 484 sqq. ;
of child by paterfamilias, 103; of free-
man, 72, 417, 481; of hereditas, 480; of
res locala, 499; of res emptoris, 479 sqq.;
of res religiosa, 417; of sjies, of res
sperata, 470, 488; of usufruct, 269; of
young children, 71, S5;perfecta, 484 sqq. ;
special conditions, 491 sqq.; uti optimus
maximusque, 486

Saltus aestivi, hiberni, 204 sq.

Satisdatio, 344, 434; de rato, 705; iudicatum
solvi, 641, 704, 706; pro praede litis et
vindiciarum, 622, 641, 704, see also
Cautio, Security

Satisfaction of condicio, 297, 336, 421

Scholae prudentum, 27 sqq.; conflicts, see
Conflicts of schools

Scholia Sinaitica, 36

Scientia, 202, 278, 310, 383, 529 sqq., 594

Seashore, as res, 184, 186

Sectae prudentum, 27 sq.

Secundaria interdicta, see Interdicta

Secundum tabulas, see Bonorum possessio

Security, by adrogator impuberis, 126 sq.;
by tutor, 154, 163, 446; by usufructuary,
269; in actio iudicati, 637; in litigation,
44, 444, 704 sqq.

Self -mancipation, 135, 426 sq.

Semel heres semper heres, 281, 295, 355, 398

Senate, 3 sqq., 50

Senatorian, order, 88; province, 9, 50

Senatusconsulta, 12, 13 sqq.

Senalusconsultum, Afinianum, 323; Claudi-
anum, 69, 71, 83 ,400; Dasumianum, 85;
luncianum, 85; luventianum, 227, 315,
674; Largianum, 377; Macedonianum,
10, 14, 462 sqq., 467, 549, 626, 648, 652;
Neronianum, 333; Orphitianum, 79, 369
sq., 380; Pega-sianum, 317, 350, 352 sqq..
357, 362; Pusio-Pegasianum, 96; Rubri-
anum, 85; Silanianum, 14, 82, 309, 317;
Tertullianum, 14, 368 sqq., 380; Tre-
bellianum, 10, 351 sqq., 648; Velleianum,
10, 14, 152, 444 sq., 549, 648 sq., 652

Sententia, in sacramentum, 607

Sententiae of Paul, 26, 31, 36

Sequestratio, 466

Servian Classes, 3, 238

Servilis cognatio, 65, 371, 376

Servitudes, 188, 207, 240, 250, 258 sqq.;
equivocal forms, 273; mancipatio of,
239; on res sua, 273; on a servitude, 260,
273; personarum, 267 sqq.; praediortim,
258 sqq., 486, 536, 669

Servitus poenae, 142

Servius Tullius, 3, 88

Servus, acquisition through, 62, 202, 227,
278, 529; alienation by, L'Tii: alienus,
institutio, 302, 309; alienus, liberty to,
353 sq. ; as criminal, 543 ; as person, 1 75 ;
as res, 63 sqq. ; as witness, 67, 292, 306,
543, 632; children of, 101; commuiii*.
203, 252, 309; corruptio, 590 sq.;

754

INDEX

cruelty to, 65; differences in position,
67 ; dolus of, 470 ; fructuarius, 62 ; manu-
mission of, 73 sqq., 82; possession by,
203; fructus, 63; fugitivus, noxal liabil-
ity, 594; hereditarius, 62, 203, 305 sqq.,
358, 436; in commerce, 65 sqq.; iniuria
to, 63; institutio of. 308; pactum de non
petendo, 570; naturalis obligatio of, 548;
peculium, 66, see Actio de peculio;
pillaging hereditas, 304; poenae, 62, 70
sqq.; publici, 66, 67, 82, 154; relation-
ship, 65, 371, 376; sale of, 64; sine
domino, 63, 67, 308; stipulation by, 435;
suis nummis emptus, etc., 86, 91; uni-
versitatis, 82; wills of, 288

Set off, see Compensatio

Settlements, 358 sqq.

Shares, in hereditas, 298; in societas, 505;
in usus, 272

Simplaria venditio, 490

Sine re, cum re, see Bonorum Possessio

Singular succession, 331

Slavery, 54, 62 sqq., see also Enslavement,
Servus

Societas, 451, 478, 496, 504 sqq., 516, 552
sqq., 557; conditions, 419, 505; leonina,
505; omnium bonorum, 207, 504, 510 sqq. ;
quoad usum, sortem, 505; special types,
510 sqq.

Socii, pactum de non petendo, 569

Sodalicia, 178

Soldier's will, 357 sqq.

Solidarity, 448 sqq.

Solidi capacitas, 292, 316

Solum provinciale, italicum, 188, 191, 197,
249 sq.

Solutio, 408, 560 sqq., see Payment

Solutionis causa adiectus, 436, 460, 538, 561,
563

Son, condition on institutio of, 296

Sortitio ludicis, 632

Spatium deliberandi, 299, 312, 362, 393, 395

Specificatio, 211, 216 sqq.

Specific performance, 656

Sponsalia, 112

Sponsio (surety), 313, 405, 441, 456, 557;
formal stipulatio, 434

Sponsiones, 388, 723; and restipulationes,
613; in interdicts, 731, 733 sq., 736;
poenales, 526 sq., 731, 733, 736; prae-
iudiciales, 622; tertiae partis, 676

Sponsor es, 440 sqq., 616 sq.

Spurii, 105

Stabularii, see Nautae

Statuliber, 76, 78, 81

Status, 59; at birth, 69; of children, 100;
of one in mancipio, 134; mutatio, 136,
137; restitutio in integrum, 413, 713

Status dies cum hoste, 605

Stellionatus, 476

Sliftung, 176, 177, 180

Stillicidii non recipiendi ius, 264

Stipulatio, 55, 98, 236 sq., 409 sqq., 414,
431 sqq., 564 sqq.; ad diem, 437; am-
plius non peti, 705; and mutuum, 460,

462; Aquiliana, 523.. 568; by slave, 435;
culpa, 555; condicio, 438; "cum mortar,"
437; dupli, 487; emptae et venditae
hereditatis, 351; for third party, 436;
habere licere, 487; "in annos singulos,''
438; pacts, 525; "quoad vivam," 438;
partis et pro parte, 349 sqq. ; poenae. 424;
post mortem, 437, 440, 442, 515, 564;
praepostere concepta, 437; praetoriae, iu-
diciales, etc., 11, 434, 634, 712, 721, 737;
"pridie quam moriar," 437, 440

Stricti iuris, bonae fidei, 408, 410 sqq., see
ludicia, stricta, bonae fidei

Sublocatio, 497

Subpartnership, 507

Subpledge, 475

Subscriptio principis, 19 sq

Substantia, error in, 415 sqq.

Substantive law, 601

Substitutio, 298 sqq.; and institutio, rela-
tion. 299; of coheredes, 300

Subvades, 609

Successio graduum, ordinum, 366 sqq., 371,
382

Successio in locum, 477

Successio in querela, 325

Successio miserabilis, 400

Succession of Jurists, 27 sq.

Succession on death, by will, 281 sqq.; in
female line, 370 sq. ; of father, 372 sqq. ;
on intestacy, 48, 361 sqq. ; per capita, per
stirpes, 372; to freedmen, 89, 91, 96,
375 sqq.; under Novels, 371 sqq.; under
Twelve Tables, 363

Successive, hypothecs, 476 sqq.; substitu-
tiones, 298 sq.

Sui et necessarii heredes, 303 sq., 363 sq., 375

Sui iuris, alieni iuris, 102, 173

Summissio, 224

Superficies, 213, 274 sq., 475, 728, 734

Supervening impossibility, 296 sq., 336

Supplicatio, 19, 666

Surety, 435, 441 sqq., 449, 451, 517, 526 sq. ;
novatio, 565; pactum de non petendo, 569;
restitutio, 717, see Adpromissio, Consti-
tutum, Fideiussio, Fidepromissio, Vas,
Praes, Mandatum, Sponsio

Suspending power, 13

Syndicus, 704

Syngraphae, 458

Syro-Roman Lawbook, 48

Tabularius, 127, 154

Tacit hypothec, 478

Taxatio, 636, 646, 650, 656 sq., 664, 688

Testamentary tutors, see Tutela

Testament! factio, 145, 287 sqq., 307, 309,
351, 357

Testamentum, 281 sqq.; in comitiis calatis,
282; in procinctu, ib. ; per aes et libram,
237, 282 sqq.; special forms, 286; under
ius tripertitum, 286; under praetorian
law, 284

Testamentum, desertum, destitutum, 329;
effect of capitis deminutio, 140, of en-

INDEX

755

slavement, 72; imperfectum, 287; in-
iustum, 293; inofficiosum, 324; irritum,
285, 329; non iure factum, 293, 344;
nullius momenti, 318; of libertus, 375;
of woman, 285, 287; r upturn, 285, 328
sq., see Will

Textura, 210

Theft, see Furtum

Thesauri inventio, 206, 219 sqq.

Threefold, arrangements in law, 138; divi-
sion of the law, 29, 56 sqq., 182, 403, 600;
scheme of capitis deminutio, 136

Tigni immittendi ius, 265, 267

Tignum iniunctum, 213, 216, see Actio de
tigno iuneto

Title in interdicts, 738

Titulus in usucapio, see Iusta, causa

Traditio, 55, 112, 190, 192, 196 sq.,
206 sq., 224, 228 sqq., 494, 511; brevi
manu, 222, 223, 229, 460; by agent, 230,
232; by delivery of means of control,
229, 232; cartae, 256; eluvium, 232;
ficta, 232; fiducia, 428, 471; incertae per-
sonae, 208, 209, 247; in mancipatio, 237;
longa manu, 228; of res mancipi, 209,
242; payment of price, 231; symbolic,
229

Transactio, 155, 451 sq., 514, 523, 539; in
querela, 327

Transfer ut manumittatur, 86, 91, 112

Transfuga, 69

Translatio iudicii, 596, 627, 635, 702, 706
sq., 716; legati, 342

Transmissio heredita.tis, 317 sq.

Transscriptio, see Contract literis

Tresviri capitales, 611

Tribonian, 17, 40, 47, 48

Tribuni plebis, 4, 8

Tribunicia potestas, 6, 8

Trinoctium abesse, 121

Tripartite will, 285 sq.

Triple sale, in adoptio, 122, 128; in emanci-
patio, 132

Triplicatio, 651

Turpis, causa, 541; persona, in querela, 325,
327

Tutela, 59, 143 sqq.. 322, 417, 481, 535; age
as qualification, 152; agnatorum, 146; a
magistrate, dativa, 148 sq., 153, 161, 162,
165, 167; cessicia, 141, 168, 234; close of,
160; distribution of administration, 163;
excusationes, 150 sqq.; extranei manu-
missoris, 147; fiduciaria, 147 sq., 151,
153, 167, 428; incapacities, 152 sq. ;
legitima, 89 sqq., 141, 145 sqq., 151 sqq.,
163, 167 sqq., 285, 373; liabilities, 164,
453, 552, 554; liberorum parentis manu-
missoris, 148; liberorum patroni, 147,
154; of Latins, 160; of liberta., as res,
182; of women, 143 sq., 166 sqq., 287;
optiva, 167 sq. ; parentis manumissoris,
147; patroni, 133, 146, 154; remedies,
164; testamentaria, 104, 144 sqq., 152,167

Tutor, actio iudicati, 156; adrogatio by, 127;
administratio, 155 sqq ; ad certam rem.

153, 168, 174; appointment of slave,
145; as representative in litigation, 703;
auctoritas, 152 sqq., 157 sqq., 162, 166;
cessans, gerens, 164, 166; change of,

120 sq., 108; contract by, 156; contutores,
see this word; culpa and dolus, 158, 552
sqq.; donatio by, 158; duty to obtain,
302; honorarius, 163; insanity, 152; in-
ventory, 154; litigation for pupi-lu.^,
156; maintenance of child, 155; marriage
of ward, 115; negotia between him and
ward, 159; pactum de non petendo, 570;
praetorius, 152, 153, 159, 168, 682; sale
by, 155; security, 154, 163, 722; sus-
pectus, 161; temporary, 153; traditio by,
230; transfer of actions, 157

Tutoris, accusatio, 161 sq. ; optio, 167 sq. ;

remotio, 162
Twelve Tables, 1 sq., 7, 52, 74, 89, 118,

121 sq., 132 sq., 143, 145 sq., 148, 161,
164, 169 sq., 183, 189, 206, 213 sq., 231,
233 sqq., 238, 242, 245, 248, 253, 262,
282, 303, 313, 363 sqq., 374 sqq., 393,
399, 404, 407, 431, 465, 486, 524, 571,
576 sqq., 585, 593 sq., 598, 605, 612 sqq.,
616, 628, 637, 678, 683, 703, 710, 712,
723, 726

Ulpian, 32 sq. ; Regulae, 33, 61

Unde cognati, liberi, etc., see Bonorum pos-
sessio

Unde vi, see Interdictum

Unilateral obligatio, 404

Universal succession, 281 sqq.

Universitas iuris, 183, 281 sqq., 396 sqq.

Universita,s rerum, see Universitas iuris; of
physical things, 608, 700

Urban servitudes, see Servitudes

Usage as law, 52

Usucapio, 55, 194 sqq., 206 sq., 213, 226 sq.,
240, 242 sqq., 252, 274, 389 sq., 401, 466,
474, 486, 560, 694, 721; by hereditas,
307; ex Rutiliana constitutione, 245, 249;
libertatis (of land), 267, 271; lucrativa,
244 sq., 315; of servitudes, 258, 264; pro
emptore, 491; pro herede, 386, 388;
various causae, 247

Usufruct, 191, 268 sqq., 360, 396, 502, 728,
734; capitis deminutio, 140; custodia,
555; expiration, 224; fructus, 222 sqq.;
in singulos annos, 272; legacy of, 348;
of grex, 224; pars dominii, 269; pledge,
475; possessio, 198; risks, 224; security,
722; through son or slave, 272

Usureceptio, 245, 429

Usurpatio, 243

Usus, 272, 274; aquae, 273; manus, 121;
pledge, 475

Uti ex legibus, see Bonorum possessio

Uti possidetis, see Interdictum

Utrubi, see Interdictum

Uxor, iusta, non iusta, see lustae nuptiae

Vacua possessio, 485 s<|.

Vadimonium, 609, 612, 626 sq., 642,660, 705

756

INDEX

Variae causarum figurae, 593

Fas, 448, 609

Vatican Fragments, 36

Vectigalis societas, 504, 510

Venditio, see Emptio and Sale

Venia aetatis, 172

Ventris nomine, missio in possessionem, 719

Verba certa, concepta, 623

Verbal contracts, 431 sqq.

Verberatio of slave, 587

Verbis coniuncti, 334 sq.

Vestal virgins, 131, 137, 139, 321

Via. 240

Vi bonorum raptorum, 579 sq.

Vicarius, 51, 52, 663; servus, 529

Vicarious responsibility, 594

Vinculum iuris, 403

Vindex, 608, 614 sqq., 626, 718

Vindicatio, 193, 197, 198, 205, 211, 212, 214,
218, 227, 233, 235, 258, 331, 334, 345,
468, 606, 668 sqq., 738 sqq.; utilis, 254,
258, see Actio in rein

Vindiciae, 611

Vindicias dicere, 606

Vindicta, 74, 78, 80, 83, 233

Vir et uxor, succession, 368

Vis, 413, 725 sqq.; ex conventu, 734; maior,

503, see Risk
Vitium, in praescriptio, 251 ; in sale, 488 sqq. ;

in usucapio, 248
Vocatio, inius, see In ius vocatio; in tribu-

tum, 530

Voconiana ratio, 365
Voting power in comitia, 3
Votum, 454
Vulgaris substitutio, 298

Wild animals, capture, 207 ; edict of aediles,

208, 598
Will, see Testamentum; adoption by, 128;

manumission by, 74 sq. ; revocation, 329

sq.
Witnesses in litigation, 632 sq., 662; to

codicils, 356; to wills, 283 sq., 292 sq.
Women, adoption of, 124 sqq.; as heredes,

289; power of testation, 120, 285, 287;

tutela over, 166 sq.
Writings of jurists, 28 sq., 34 sqq.
Written, contract of sale, 479; formula in

litigation, 624; mancipatio, 237; stipu-
lation, 237, 432, 433, 449
Wrongful damage, 580 sqq.

CAMBRIDGE : PRINTED BY J. B. PEACE, M.A., AT THE UNIVERSITY PRESS.

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