by loan for consumption, that is to say, loan of such things as are
estimated by weight, number, or measure, for instance, wine, oil, corn,
coined money, copper, silver, or gold: things in which we transfer
our property on condition that the receiver shall transfer to us, at a
future time, not the same things, but other things of the same kind and
quality: and this contract is called mutuum, because thereby meum or
mine becomes tuum or thine. The action to which it gives rise is called
a condiction.
1 Again, a man is bound by a real obligation if he takes what is not
owed him from another who pays him by mistake; and the latter can, as
plaintiff, bring a condiction against him for its recovery, after the
analogy of the action whose formula ran 'if it be proved that he ought
to convey,' exactly as if the defendant had received a loan from him.
Consequently a pupil who, by mistake, is paid something which is not
really owed him without his guardian's authority, will no more be bound
by a condiction for the recovery of money not owed than by one for money
received as a loan: though this kind of liability does not seem to be
founded on contract; for a payment made in order to discharge a debt is
intended to extinguish, not to create, an obligation.
2 So too a person to whom a thing is lent for use is laid under a
real obligation, and is liable to the action on a loan for use. The
difference between this case and a loan for consumption is considerable,
for here the intention is not to make the object lent the property of
the borrower, who accordingly is bound to restore the same identical
thing. Again, if the receiver of a loan for consumption loses what he
has received by some accident, such as fire, the fall of a building,
shipwreck, or the attack of thieves or enemies, he still remains bound:
but the borrower for use, though responsible for the greatest care in
keeping what is lent him--and it is not enough that he has shown as much
care as he usually bestows on his own affairs, if only some one else
could have been more diligent in the charge of it--has not to answer for
loss occasioned by fire or accident beyond his control, provided it
did not occur through any fault of his own. Otherwise, of course, it is
different: for instance, if you choose to take with you on a journey a
thing which has been lent to you for use, and lose it by being attacked
by enemies or thieves, or by a shipwreck, it is beyond question that you
will be liable for its restoration. A thing is not properly said to
be lent for use if any recompense is received or agreed upon for the
service; for where this is the case, the use of the thing is held to be
hired, and the contract is of a different kind, for a loan for use ought
always to be gratuitous.
3 Again, the obligation incurred by a person with whom a thing is
deposited for custody is real, and he can be sued by the action of the
deposit; he too being responsible for the restoration of the identical
thing deposited, though only where it is lost through some positive
act of commission on his part: for for carelessness, that is to say,
inattention and negligence, he is not liable. Thus a person from whom
a thing is stolen, in the charge of which he has been most careless,
cannot be called to account, because, if a man entrusts property to the
custody of a careless friend, he has no one to blame but himself for his
want of caution.
4 Finally, the creditor who takes a thing in pledge is under a real
obligation, and is bound to restore the thing itself by the action of
pledge. A pledge, however, is for the benefit of both parties; of
the debtor, because it enables him to borrow more easily, and of
the creditor, because he has the better security for repayment; and
accordingly, it is a settled rule that the pledgee cannot be held
responsible for more than the greatest care in the custody of the
pledge; if he shows this, and still loses it by some accident, he
himself is freed from all liability, without losing his right to sue for
the debt.
TITLE XV. OF VERBAL OBLIGATION
An obligation is contracted by question and answer, that is to say, by a
form of words, when we stipulate that property shall be conveyed to
us, or some other act be performed in our favour. Such verbal contracts
ground two different action, namely condiction, when the stipulation is
certain, and the action on stipulation, when it is uncertain; and the
name is derived from stipulum, a word in use among the ancients to mean
'firm,' coming possibly from stipes, the trunk of a tree.
1 In this contract the following forms of words were formerly sanctioned
by usage: 'Do you engage yourself to do so and so?' 'I do engage
myself.' 'Do you promise?' 'I do promise.' 'Do you pledge your credit?'
'I pledge my credit.' 'Do you guarantee?' 'I guarantee.' 'Will you
convey?' 'I will convey.' 'Will you do?' 'I will do.' Whether the
stipulation is in Latin, or Greek, or any other language, is immaterial,
provided the two parties understand one another, so that it is not
necessary even that they should both speak in the same tongue, so long
as the answer corresponds to the question, and thus two Greeks, for
instance, may contract an obligation in Latin. But it was only in former
times that the solemn forms referred to were in use: for subsequently,
by the enactment of Leo's constitution, their employment was rendered
unnecessary, and nothing was afterwards required except that the parties
should understand each other, and agree to the same thing, the words in
which such agreement was expressed being immaterial.
2 The terms of a stipulation may be absolute, or performance may either
be postponed to some future time, or be made subject to a condition.
An absolute stipulation may be exemplified by the following: 'Do you
promise to give five aurei?' and here (if the promise be made) that sum
may be instantly sued for. As an instance of stipulation in diem, as
it is called where a future day is fixed for payment, we may take the
following: 'Do you promise to give ten aurei on the first of March?' In
such a stipulation as this, an immediate debt is created, but it cannot
be sued upon until the arrival of the day fixed for payment: and even on
that very day an action cannot be brought, because the debtor ought to
have the whole of it allowed to him for payment; for otherwise, unless
the whole day on which payment was promised is past, it cannot be
certain that default has been made.
3 If the terms of your stipulation run 'Do you promise to pay me ten
aurei a year so long as I live?' the obligation is deemed absolute, and
the liability perpetual, for a debt cannot be owed till a certain
time only; though if the promisee's heir sues for payment, he will be
successfully met by the plea of contrary agreement.
4 A stipulation is conditional, when performance is made to depend on
some uncertain event in the future, so that it becomes actionable only
on something being done or omitted: for instance, 'Do you promise to
give five aurei if Titius is made consul?' If, however, a man stipulates
in the form 'Do you promise to give so and so, if I do not go up to the
Capitol?' the effect is the same as if he had stipulated for payment to
himself at the time of his death. The immediate effect of a conditional
stipulation is not a debt, but merely the expectation that at some time
there will be a debt: and this expectation devolves on the stipulator's
heir, supposing he dies himself before fulfilment of the condition.
5 It is usual in stipulations to name a place for payment; for instance,
'Do you promise to give at Carthage?' Such a stipulation as this, though
in its terms absolute, implies a condition that enough time shall be
allowed to the promisor to enable him to pay the money at Carthage.
Accordingly, if a man at Rome stipulates thus, 'Do you promise to pay
today at Carthage?' the stipulation is void, because the performance of
the act to be promised is a physical impossibility.
6 Conditions relating to past or present time either make the obligation
void at once, or have no suspensive operation whatever. Thus, in the
stipulation 'Do you promise to give so and so, if Titius has been
consul, or if Maevius is alive?' the promise is void, if the condition
is not satisfied; while if it is, it is binding at once: for events
which in themselves are certain do not suspend the binding force of an
obligation, however uncertain we ourselves may be about them.
7 The performance or nonperformance of an act may be the object of a
stipulation no less than the delivery of property, though where this is
the case, it will be best to connect the nonperformance of the act to be
performed, or the performance of the act to be omitted, with a pecuniary
penalty to be paid in default, lest there be doubt as to the value of
the act or omission, which will make it necessary for the plaintiff to
prove to what damages he is entitled. Thus, if it be a performance
which is stipulated for, some such penalty should be added as in the
following: 'If so and so is not done, do you promise to pay ten aurei as
a penalty?' And if the performance of some acts, and the nonperformance
of others, are bargained for in the same stipulation, a clause of the
following kind should be added, 'If any default is made, either as
contrary to what is agreed upon, or by way of nonperformance, do you
promise to pay a penalty of ten aurei?'
TITLE XVI. OF STIPULATIONS IN WHICH THERE ARE TWO CREDITORS OR TWO
DEBTORS
There may be two or more parties on either side in a stipulation, that
is to say, as promisors or promisees. Joint promises are so constituted
by the promisor answering, 'I promise,' after they have all first
asked the question; for instance, if after two promises have separately
stipulated from him, he answers, 'I promise to give so and so to each of
you.' But if he first promises to Titius, and then, on another's putting
the question to him, promises to him too, there will be two distinct
obligations, namely, one between him and each of the promisees, and they
are not considered joint promisees at all. The usual form to constitute
two or more joint promisors is as follows,--'Maevius, do you promise to
give five aurei? Seius, do you promise to give the same five aurei?' and
in answer they reply separately, 'I promise.'
1 In obligations of this kind each joint promisee is owed the whole sum,
and the whole sum can be claimed from each joint promisor; and yet
in both cases but one payment is due, so that if one joint promisee
receives the debt, or one joint promisor pays it, the obligation is
thereby extinguished for all, and all are thereby released from it.
2 Of two joint promisors one may be bound absolutely, while performance
by the other is postponed to a future day, or made to depend on a
condition; but such postponement or such condition in no way prevents
the stipulator from at once suing the one who was bound absolutely.
TITLE XVII. OF STIPULATIONS MADE BY SLAVES
From his master's legal capacity a slave derives ability to be promisee
in a stipulation. Thus, as an inheritance in most matters represents
the legal 'person' of the deceased, whatever a slave belonging to it
stipulates for, before the inheritance is accepted, he acquires for the
inheritance, and so for the person who subsequently becomes heir.
1 All that a slave acquires by a stipulation he acquires for his master
only, whether it was to that master, or himself, or his fellow slave, or
no one in particular that performance was to be made under the contract;
and the same principle applies to children in power, so far as they now
are instruments of acquisition for their father.
2 When, however, what is stipulated for is permission to do some
specific act, that permission cannot extend beyond the person of the
promisee: for instance, if a slave stipulates for permission to cross
the promisor's land, he cannot himself be denied passage, though his
master can.
3 A stipulation by a slave belonging to joint owners enures to the
benefit of all of them in proportion to the shares in which they own
him, unless he stipulated at the bidding, or expressly in favour, of one
of them only, in which case that one alone is benefited. Where a jointly
owned slave stipulates for the transfer of property which cannot be
acquired for one of his two masters, the contract enures to the benefit
of the other only: for instance, where the stipulation is for the
transfer of a thing which already belongs to one of them.
TITLE XVIII. OF THE DIFFERENT KINDS OF STIPULATIONS
Stipulations are either judicial, praetorian, conventional, or common:
by the latter being meant those which are both praetorian and judicial.
1 Judicial stipulations are those which it is simply part of the judge's
duty to require; for instance, security against fraud, or for the
pursuit of a runaway slave, or (in default) for payment of his value.
2 Those are praetorian, which the praetor is bound to exact simply in
virtue of his magisterial functions; for instance, security against
apprehended damage, or for payment of legacies by an heir. Under
praetorian stipulations we must include also those directed by the
aedile, for these too are based upon jurisdiction.
3 Conventional stipulations are those which arise merely from the
agreement of the parties, apart from any direction of a judge or of the
praetor, and which one may almost say are of as many different kinds as
there are conceivable objects to a contract.
4 Common stipulations may be exemplified by that by which a guardian
gives security that his ward's property will not be squandered or
misappropriated, which he is sometimes required to enter into by the
praetor, and sometimes also by a judge when the matter cannot be managed
in any other way; or, again, we might take the stipulation by which an
agent promises that his acts shall be ratified by his principal.
TITLE XIX. OF INVALID STIPULATIONS
Anything, whether movable or immovable, which admits of private
ownership, may be made the object of a stipulation; 1 but if a man
stipulates for the delivery of a thing which either does not or cannot
exist, such as Stichus, who is dead but whom he though alive, or an
impossible creature, like a hippocentaur, the contract will be void.
2 Precisely the same principles applies where a man stipulates for the
delivery of a thing which is sacred or religious, but which he thought
was a subject of human ownership, or of a thing which is public, that is
to say, devoted in perpetuity to the use and enjoyment of the people
at large, like a forum or theatre, or of a free man whom he thought a
slave, or of a thing which he is incapable of owning, or which is
his own already. And the fact that a thing which is public may
become private property, that a free man may become a slave, that the
stipulator may become capable of owning such and such a thing, or that
such and such a thing may cease to belong to him, will not avail to
merely suspend the force of the stipulation in these cases, but it is
void from the outset. Conversely, a stipulation which originally
was perfectly good may be avoided by the thing, which is its object,
acquiring any of the characters just specified through no fault of the
promisor. And a stipulation, such as 'do you promise to convey Lucius
Titius when he shall be a slave' and others like it, are also void from
the beginning; for objects which by their very nature cannot be owned by
man cannot either in any way be made the object of an obligation.
3 If one man promises that another shall convey, or do so and so, as,
for instance, that Titius shall give five aurei, he will not be bound,
though he will if he promises to get Titius to give them.
4 If a man stipulates for conveyance to, or performance in favour of,
another person who is not his paterfamilias, the contract is void;
though of course performance to a third person may be bargained for (as
in the stipulation 'do you promise to give to me or to Seius?'); where,
though the obligation is created in favour of the stipulator only,
payment may still be lawfully made to Seius, even against the
stipulator's will, the result of which, if it is done, being that the
promisor is entirely released from his obligation, while the stipulator
can sue Seius by the action of agency. If a man stipulates for payment
of ten aurei to himself and another who is not his paterfamilias, the
contract will be good, though there has been much doubt whether in such
a case the stipulator can sue for the whole sum agreed upon, or only
half; the law is now settled in favour of the smaller sum. If you
stipulate for performance in favour of one in your power, all benefit
under the contract is taken by yourself, for your words are as the words
of your son, as his words are as yours, in all cases in which he is
merely an instrument of acquisition for you.
5 Another circumstance by which a stipulation may be avoided is want of
correspondence between question and answer, as where a man stipulates
from you for payment of ten aurei, and you promise five, or vice versa;
or where his question is unconditional, your answer conditional, or vice
versa, provided only that in this latter case the difference is express
and clear; that is to say, if he stipulates for payment on fulfilment
of a condition, or on some determinate future day, and you answer: 'I.
promise to pay today,' the contract is void; but if you merely answer:
'I promise,' you are held by this laconic reply to have undertaken
payment on the day, or subject to the condition specified; for it is not
essential that every word used by the stipulator should be repeated in
the answer of the promise.
6 Again, no valid stipulation can be made between two persons of whom
one is in the power of the other. A slave indeed cannot be under an
obligation to either his master or anybody else: but children in power
can be bound in favour of any one except their own paterfamilias.
7 The dumb, of course, cannot either stipulate or promise, nor can the
deaf, for the promisee in stipulation must hear the answer, and the
promisor must hear the question; and this makes it clear that we are
speaking of persons only who are stone deaf, not of those who (as it is
said) are hard of hearing.
8 A lunatic cannot enter into any contract at all, because he does not
understand what he is doing.
9 On the other hand a pupil can enter into any contract, provided that
he has his guardian's authority, when necessary, as it is for incurring
an obligation, though not for imposing an obligation on another person.
10 This concession of legal capacity of disposition is manifestly
reasonable in respect of children who have acquired to some
understanding, for children below the age of seven years, or who have
just passed that age, resemble lunatics in want of intelligence. Those,
however, who have just completed their seventh year are permitted, by
a beneficent interpretation of the law, in order to promote their
interests, to have the same capacity as those approaching the age of
puberty; but a child below the latter age, who is in paternal power,
cannot bind himself even with his father's sanction.
11 An impossible condition is one which, according to the course of
nature, cannot be fulfilled, as, for instance, if one says: 'Do
you promise to give if I. touch the sky with my finger?' But if the
stipulation runs: 'Do you promise to give if I do not touch the sky with
my finger?' it is considered unconditional, and accordingly can be sued
upon at once.
12 Again, a verbal obligation made between persons who are not present
with one another is void. This rule, however, afforded contentious
persons opportunities of litigation, by alleging, after some interval,
that they, or their adversaries, had not been present on the occasion in
question; and we have therefore issued a constitution, addressed to the
advocates of Caesarea, in order with the more dispatch to settle such
disputes, whereby it is enacted that written documents in evidence of a
contract which recite the presence of the parties shall be taken to
be indisputable proof of the fact, unless the person, who resorts to
allegations usually so disgraceful, proves by the clearest evidence,
either documentary or borne by credible witnesses, that he or his
adversary was elsewhere than alleged during the whole day on which the
document is stated to have been executed.
13 Formerly, a man could not stipulate that a thing should be conveyed
to him after his own death, or after that of the promisor; nor could one
person who was in another's power even stipulate for conveyance after
that person's death, because he was deemed to speak with the voice of
his parent or master; and stipulations for conveyance the day before the
promisee's or promisor's decease were also void. Stipulation, however,
as has already been remarked, derive their validity from the consent
of the contracting parties, and we therefore introduced a necessary
emendation in respect also of this rule of law, by providing that a
stipulation shall be good which bargains for performance either after
the death, or the day before the death, of either promisee or promisor.
14 Again, a stipulation in the form: 'Do you promise to give today, if
such or such a ship arrives from Asia tomorrow?' was formerly void, as
being preposterous in its expression, because what should come last
is put first. Leo, however, of famous memory held that a preposterous
stipulation in the settlement of a dowry ought not to be rejected as
void, and we have determined to allow it perfect validity in every case,
and not merely in that in which it was formerly sanctioned.
15 A stipulation, say by Titius, in the form: 'Do you promise to give
when I shall die' or 'when you shall die'? is good now, as indeed it
always was even under the older law.
16 So too a stipulation for performance after the death of a third
person is good.
17 If a document in evidence of a contract states that so and so
promised, the promise is deemed to have been given in answer to a
preceding question.
18 When several acts of conveyance or performance are comprised in
a single stipulation, if the promisor simply answers: 'I promise to
convey,' he becomes liable on each and all of them, but if he answers
that he will convey only one or some of them, he incurs an obligation in
respect of those only which are comprised in his answer, there being
in reality several distinct stipulations of which only one or some
are considered to have acquired binding force: for for each act of
conveyance or performance there ought to be a separate question and a
separate answer.
19 As has been already observed, no one can validly stipulate for
performance to a person other than himself, for the purpose of this
kind of obligation is to enable persons to acquire for themselves that
whereby they are profited, and a stipulator is not profited if the
conveyance is made to a third person. Hence, if it be wished to make
a stipulation in favour of any such third person, a penalty should be
stipulated for, to be paid, in default of performance of that which is
in reality the object of the contract, to the party who otherwise would
have no interest in such performance; for when one stipulates for a
penalty, it is not his interest in what is the real contract which
is considered, but only the amount to be forfeited to him upon
nonfulfilment of the condition. So that a stipulation for conveyance
to Titius, but made by some one else, is void: but the addition of a
penalty, in the form 'If you do not convey, do you promise to pay me so
many aurei?' makes it good and actionable.
20 But where the promisor stipulates in favour of a third person, having
himself an interest in the performance of the promise, the stipulation
is good. For instance, if a guardian, after beginning to exercise his
tutorial functions, retires from their exercise in favour of his fellow
guardian, taking from him by stipulation security for the due charge of
the ward's property, he has a sufficient interest in the performance
of this promise, because the ward could have sued him in case of
maladministration, and therefore the obligation is binding. So too a
stipulation will be good by which one bargains for delivery to one's
agent, or for payment to one's creditor, for in the latter case one may
be so far interested in the payment that, if it not be made, one will
become liable to a penalty or to having a foreclosure of estates which
one has mortgaged.
21 Conversely, he who promises that another shall do so and so is not
bound unless he promises a penalty in default;
22 and, again, a man cannot validly stipulate that property which will
hereafter be his shall be conveyed to him as soon as it becomes his own.
23 If a stipulator and the promisor mean different things, there is no
contractual obligation, but it is just as if no answer had been made to
the question; for instance, if one stipulates from you for Stichus, and
you think he means Pamphilus, whose name you believed to be Stichus.
24 A promise made for an illegal or immoral purpose, as, for instance,
to commit a sacrilege or homicide, is void.
25 If a man stipulates for performance on the fulfilment of a condition,
and dies before such fulfilment, his heir can sue on the contract when
it occurs: and the heir of the promisor can be sued under the same
circumstances.
26 A stipulation for a conveyance this year, or this month, cannot be
sued upon until the whole year, or the whole month, has elapsed:
27 and similarly the promisee cannot sue immediately upon a stipulation
for the conveyance of an estate or a slave, but only after allowing a
sufficient interval for the conveyance to be made.
TITLE XX. OF FIDEJUSSORS OR SURETIES
Very often other persons, called fidejussors or sureties, are bound for
the promisor, being taken by promises as additional security.
1 Such sureties may accompany any obligation, whether real, verbal,
literal or consensual: and it is immaterial even whether the principal
obligation be civil or natural, so that a man may go surety for the
obligation of a slave either to a stranger or to his master.
2 A fidejussor is not only bound himself, but his obligation devolves
also on his heir' 3 and the contract of suretyship may be entered into
before no less than after the creation of the principal obligation.
4 If there are several fidejussors to the same obligation, each of them,
however many they are, is liable for the whole amount, and the creditor
may sue whichever he chooses for the whole; but by the letter of Hadrian
he may be compelled to sue for only an aliquot part, determined by the
number of sureties who are solvent at the commencement of the action: so
that if one of them is insolvent at that time the liability of the rest
is proportionately increased. Thus, if one fidejussor pay the whole
amount, he alone suffers by the insolvency of the principal debtor; but
this is his own fault, as he might have availed himself of the letter of
Hadrian, and required that the claim should be reduced to his rateable
portion.
5 Fidejussors cannot be bound for more than their principal, for their
obligation is but accessory to the latter's, and the accessory cannot
contain more than the principal; but they can be bound for less. Thus,
if the principal debtor promised ten aurei, the fidejussor can well be
bound for five, but not vice versa; and if the principal's promise
is absolute, that of the fidejussor may be conditional, though a
conditional promise cannot be absolutely guaranteed, for more and less
is to be understood of time as well as of quantity, immediate payment
being regarded as more, and future payment as less.
6 For the recovery of anything paid by him for the principal the
fidejussor can sue the latter by the action on agency.
7 A fidejussor may be taken in Greek, by using the expressions 'tei
emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be
taken as equivalent to 'lego.'
8 It is to be observed that in the stipulations of fidejussors the
general rule is that whatever is stated in writing to have been done is
taken to have really been done; and, accordingly, it is settled law that
if a man signs his name to a paper stating that he became a fidejussor,
all formalities are presumed to have been duly observed.
TITLE XXI. OF LITERAL OBLIGATION
Formerly there was a kind of obligation made by writing, and said to
be contracted by the entry of a debt in a ledger; but such entries have
nowadays gone out of use. Of course, if a man states in writing that he
owes money which has never been paid over to him, he cannot be allowed,
after a considerable interval, to defend himself by the plea that
the money was not, in fact, advanced; for this is a point which has
frequently been settled by imperial constitutions. The consequence is,
that even at the present day a person who is estopped from this plea is
bound by his written signature, which (even of course where there is no
stipulation) is ground for a condiction. The length of time after
which this defence could not be pleaded was formerly fixed by
imperial constitutions at five years; but it has been reduced by our
constitution, in order to save creditors from a more extended risk of
being defrauded of their money, so that now it cannot be advanced after
the lapse of two years from the date of the alleged payment.
TITLE XXII. OF OBLIGATION BY CONSENT
Obligations contracted by mere consent are exemplified by sale, hire,
partnership and agency, which are called consensual contracts because no
writing, nor the presence of the parties, nor any delivery is required
to make the obligation actionable, but the consent of the parties is
sufficient. Parties who are not present together, therefore, can form
these contracts by letter, for instance, or by messenger: and they are
in their nature bilateral, that is, both parties incur a reciprocal
obligation to perform whatever is just and fair, whereas verbal
contracts are unilateral, one party being promisee, and the other alone
promisor.
TITLE XXIII. OF PURCHASE AND SALE
The contract of purchase and sale is complete immediately the price
is agreed upon, and even before the price or as much as any earnest is
paid: for earnest is merely evidence of the completion of the contract.
In respect of sales unattested by any written evidence this is a
reasonable rule, and so far as they are concerned we have made no
innovations. By one of our constitutions, however, we have enacted, that
no sale effected by an agreement in writing shall be good or binding,
unless that agreement is written by the contracting parties themselves,
or, if written by some one else, is at least signed by them, or finally,
if written by a notary, is duly drawn by him and executed by the
parties. So long as any of these requirements is unsatisfied, there is
room to retract, and either purchaser or vendor may withdraw from the
agreement with impunity--provided, that is to say, that no earnest has
been given. Where earnest has been given, and either party refuses to
perform the contract, that party, whether the agreement be in writing or
not, if purchaser forfeits what he has given, and if vendor is compelled
to restore double of what he has received, even though there has been no
express agreement in the matter of earnest.
1 It is necessary that the price should be settled, for without a
price there can be no purchase and sale, and it ought to be a fixed and
certain price. For instance, where the parties agreed that the thing
should be sold at a price to be subsequently fixed by Titius, the older
jurists doubted much whether this was a valid contract of sale or not.
The doubt has been settled in the following way by our decision; if the
third person named actually fixes the price, it must certainly be paid,
as settled by him, and the thing must be delivered, in order to give
effect to the sale; the purchaser (if not fairly treated) suing by the
action on purchase, and the vendor by the action on sale. But if the
third person named will not or cannot fix the price, the sale will
be void, because no price has been settled. This rule, which we have
adopted with regard to sales, may reasonably be extended also to
contracts of hire.
2 The price, too, should be in money; for it used to be much disputed
whether anything else, such as a slave, a piece of land, or a robe,
could be treated as a price. Sabinus and Cassius held the affirmative,
explaining thus the common theory that exchange is a species, and the
oldest species, of purchase and sale; and in their support they quoted
the lines of Homer, who says in a certain passage that the army of the
Greeks procured themselves wine by giving other things in exchange,
the actual words being as follow: 'then the longhaired Greeks bought
themselves wine, some with bronze, some with shining iron, some
with hides, some with live oxen, some with slaves.' The other school
maintained the negative, and distinguished between exchange on the one
hand, and purchase and sale on the other: for if an exchange were the
same thing as a sale, it would be impossible to determine which is the
thing sold, and which is the price, and both things cannot be regarded
in each of these characters. The opinion, however, of Proculus, who
affirmed that exchange was a species of contract apart by itself, and
distinct from sale, has deservedly prevailed, as it is confirmed by
other lines from Homer, and by still more cogent reasons, and this has
been admitted by preceding Emperors, and is fully stated in our Digest.
3 As soon as the contract of sale is concluded--that is, as we have
said, as soon as the price is agreed upon, if the contract is not in
writing--the thing sold is immediately at the risk of the purchaser,
even though it has not yet been delivered to him. Accordingly, if a
slave dies, or is injured in any part of his body, or if a house is
either totally or partially burnt down, or if a piece of land is wholly
or partially swept away by a river flood, or is reduced in acreage by
an inundation, or made of less value by a storm blowing down some of
its trees, the loss falls on the purchaser, who must pay the price even
though he has not got what he purchased. The vendor is not responsible
and does not suffer for anything not due to any design or fault of his
own. If, however, after the purchase of a piece of land, it receives an
increase by alluvion, it is the purchaser who profits thereby: for the
profit ought to belong to him who also bears the risk. And if a slave
who has been sold runs away, or is stolen, without any design or fault
of the vendor, one should look to see whether the latter expressly
undertook to keep him safely until delivery was made; for, if he did
this, the loss falls upon him, though otherwise he incurs no liability:
and this is a rule which applies to all animals and other objects
whatsoever. The vendor, however, will be bound to transfer to the
purchaser all his rights of action for the recovery of the object or
damages, for, not having yet delivered it to the purchaser, he still
remains its owner, and the same holds good of the penal actions on theft
and on unlawful damage.
4 A sale may be made conditionally as well as absolutely. The following
is an example of a conditional sale: 'If Stichus meets with your
approval within a certain time, he shall be purchased by you for so many
aurei.'
5 If a man buys a piece of land which is sacred, religious, or public,
such as a forum or basilica, knowing it to be such, the purchase is
void. But if the vendor has fraudulently induced him to believe that
what he was buying was not sacred, or was private property, as he cannot
legally have what he contracted for, he can bring the action on purchase
to recover damages for what he has lost by the fraud; and the same rule
applies to the purchase of a free man represented by the vendor to be a
slave.
TITLE XXIV. OF LETTING AND HIRING
The contract of hire resembles very closely the contract of sale, and
the same rules of law apply to both. Thus, as the contract of sale is
concluded as soon as the price is agreed upon, so the contract of hire
is held to be concluded as soon as the sum to be paid for the hiring is
settled, and from that moment the letter has an action on the letting,
and the hirer on the hiring.
1 What we have said above as to a sale in which the price is left to be
fixed by a third person must be understood to apply also to a contract
of hire in which the amount to be paid for hire is left to be fixed in
the same way. Consequently, if a man gives clothes to a fuller to clean
or finish, or to a tailor to mend, and the amount of hire is not fixed
at the time, but left to subsequent agreement between the parties, a
contract of hire cannot properly be said to have been concluded, but
an action is given on the circumstances, as amounting to an innominate
contract.
2 Again, a question often arose in connexion with the contract of hire
similar to that which was so common, namely, whether an exchange was a
sale. For instance, what is the nature of the transaction if a man gives
you the use or enjoyment of a thing, and receives in return the use or
enjoyment of another thing from you? It is now settled that this is not
a contract of hire, but a kind of contract apart by itself. Thus, if
a man had one ox, and his neighbour another, and they agreed that each
should in turn lend the other his ox for ten days to make use of, and
then one of the oxen died while working for the man to whom it did not
belong, an action cannot be brought on hire, nor on a loan for use, for
a loan for use ought to be gratuitous: but an action should be brought
as on an innominate contract.
3 So nearly akin, indeed, is purchase and sale, to letting and hiring,
that in some cases it is a question to which class of the two a contract
belongs. As an instance may be taken those lands which are delivered
over to be enjoyed for ever, upon the terms, that is to say, that so
long as the rent is paid to the owner it shall not be lawful for the
latter to take the lands away from either the original hirer, or his
heir, or any one else to whom he or his heirs has conveyed them by sale,
gift, dowry, or in any other way whatsoever. The questionings of the
earlier lawyers, some of whom thought this kind of contract a hiring,
and others a sale, occasioned the enactment of the statute of Zeno,
which determined that this contract of emphyteusis, as it is called, was
of a peculiar nature, and should not be included under either hire or
sale, but should rest on the terms of the agreement in each particular
case: so that if anything were agreed upon between the parties, this
should bind them exactly as if it were inherent in the very nature of
the contract; while if they did not agree expressly at whose risk the
land should be, it should be at that of the owner in case of total
destruction, and at that of the tenant, if the injury were merely
partial. And these rules we have adopted in our legislation.
4 Again, if a goldsmith agrees to make Titius rings of a certain weight
and pattern out of his own gold for, say, ten aurei, it is a question
whether the contract is purchase and sale or letting and hiring. Cassius
says the material is bought and sold, the labour let and hired; but it
is now settled that there is only a purchase and sale. But if Titius
provided the gold, and agreed to pay him for his work, the contract is
clearly a letting and hiring.
5 The hirer ought to observe all the terms of the contract, and in the
absence of express agreement his obligations should be ascertained by
reference to what is fair and equitable. Where a man has either given or
promised for hire for the use of clothes, silver, or a beast of burden,
he is required in his charge of it to show as much care as the most
diligent father of a family shows in his own affairs; if he do this, and
still accidentally lose it, he will be under no obligation to restore
either it or its value.
6 If the hirer dies before the time fixed for the termination of the
contract has elapsed, his heir succeeds to his rights and obligations in
respect thereof.
TITLE XXV. OF PARTNERSHIP
A partnership either extends to all the goods of the partners, when the
Greeks call it by the special name of 'koinopraxia,' or is confined to
a single sort of business, such as the purchase and sale of slaves, oil,
wine, or grain.
1 If no express agreement has been made as to the division of the profit
and loss, an equal division of both is understood to be intended, but
if it has, such agreement ought to be carried into effect; and there
has never been any doubt as to the validity of a contract between two
partners that one shall take twothirds of the profit and bear twothirds
of the loss, and that the remaining third shall be taken and borne
respectively by the other.
2 If Titius and Seius agreed that the former should take twothirds of
the profits, and bear only onethird of the loss, and that the latter
should bear twothirds of the loss, and take only onethird of the
profits, it has been made a question whether such an agreement ought to
be held valid. Quintus Mucius thought such an arrangement contrary to
the very nature of partnership, and therefore not to be supported: but
Servius Sulpicius, whose opinion has prevailed, was of a different view,
because the services of a particular partner are often so valuable that
it is only just to admit him to the business on more favourable terms
than the rest. It is certain that a partnership may be formed on the
terms that one partner shall contribute all the capital, and that
the profits shall be divided equally, for a man's services are often
equivalent to capital. Indeed, the opinion of Quintus Mucius is now so
generally rejected, that it is admitted to be a valid contract that
a partner shall take a share of the profits, and bear no share in the
loss, which indeed Servius, consistently with his opinion, maintained
himself. This of course must be taken to mean that if there is a profit
on one transaction, and a loss on another, a balance should be struck,
and only the net profit be considered as profits.
3 It is quite clear that if the shares are expressed in one event only,
as for instance in the event of profit, but not in the event of loss, or
vice versa, the same proportions must be observed, in the event of which
no mention has been made, as in the other.
4 The continuance of partnership depends on the continuing consent of
the members; it is dissolved by notice of withdrawal from any one of
them. But of course if the object of a partner in withdrawing from the
partnership is to fraudulently keep for himself some accruing gain--for
instance, if a partner in all goods succeeds to an inheritance, and
withdraws from the partnership in order to have exclusive possession
thereof--he will be compelled to divide this gain with his partners; but
what he gains undesignedly after withdrawing he keeps to himself, and
his partner always has the exclusive benefit of whatever accrues to him
after such withdrawal.
5 Again, a partnership is dissolved by the death of a partner, for when
a man enters into a contract of partnership, he selects as his partner
a definite person. Accordingly, a partnership based on the agreement
of even several persons is dissolved by the death of one of them, even
though several others survive, unless when the contract was made it was
otherwise agreed.
6 So too a partnership formed for the attainment of some particular
object is terminated when that object is attained.
7 It is clear too that a partnership is dissolved by the forfeiture of
the property of one of the partners, for such an one, as he is replaced
by a successor, is reckoned civilly dead.
8 So again, if one of the partners is in such embarrassed circumstances
as to surrender all his property to his creditors, and all that he
possessed is sold to satisfy the public or private claims upon him,
the partnership is dissolved, though if the members still agree to be
partners, a new partnership would seem to have begun.
9 It has been doubted whether one partner is answerable to another on
the action of partnership for any wrong less than fraud, like the bailee
in a deposit, or whether he is not suable also for carelessness, that is
to say, for inattention and negligence; but the latter opinion has now
prevailed, with this limitation, that a partner cannot be required
to satisfy the highest standard of carefulness, provided that in
partnership business he shows as much diligence as he does in his own
private affairs: the reason for this being that if a man chooses as his
partner a careless person, he has no one to blame but himself.
TITLE XXVI. OF AGENCY
Of the contract of agency there are five modes. A man gives you a
commission either for his own exclusive benefit, or for his own and
yours together, or for that of some third person, or for his own and the
third person's, or for the third person's and yours. A commission given
simply for the sake of the agent gives rise in reality to no relation
of agency, and accordingly no obligation comes into existence, and
therefore no action.
1 A commission is given solely for the benefit of the principal when,
for instance, the latter instructs you to manage his business, to buy
him a piece of land, or to enter into a stipulation as surety for him.
2 It is given for your benefit and for that of your principal together
when he, for instance, commissions you to lend money at interest to a
person who borrows it for your principal's benefit; or where, on your
wishing to sue him as surety for some one else, he commissions you to
sue his principal, himself undertaking all risk: or where, at his risk,
you stipulate for payment from a person whom he substitutes for himself
as your debtor.
3 It is given for the benefit of a third person when, for instance, some
one commissions you to look after Titius's affairs as general agent, or
to buy Titius a piece of land, or to go surety for him.
4 It is for the benefit of the principal and a third person when, for
instance, some one instructs you to look after affairs common to himself
and Titius, or to buy an estate for himself and Titius, or to go surety
for them jointly.
5 It is for the benefit of yourself and a third person when, for
instance, some one instructs you to lend money at interest to Titius; if
it were to lend money free of interest, it would be for the benefit of
the third person only.
6 It is for your benefit alone if, for instance, some one commissions
you to invest your money in the purchase of land rather than to lend it
at interest, or vice versa. But such a commission is not really so
much a commission in the eye of the law as a mere piece of advice, and
consequently will not give rise to an obligation, for the law holds no
one responsible as on agency for mere advice given, even if it turns
out ill for the person advised, for every one can find out for himself
whether what he is advised to do is likely to turn out well or ill.
Consequently, if you have money lying idle in your cashbox, and on so
and so's advice buy something with it, or put it out at interest, you
cannot sue that person by the action on agency although your purchase
or loan turns out a bad speculation; and it has even been questioned, on
this principle, whether a man is suable on agency who commissions you to
lend money to Titius; but the prevalent opinion is that of Sabinus, that
so specific a recommendation is sufficient to support an action, because
(without it) you would never have lent your money to Titius at all.
7 So too instructions to commit an unlawful or immoral act do not create
a legal obligation--as if Titius were to instigate you to steal, or to
do an injury to the property or person of some one else; and even if you
act on his instructions, and have to pay a penalty in consequence, you
cannot recover its amount from Titius.
8 An agent ought not to exceed the terms of his commission. Thus, if
some one commissions you to purchase an estate for him, but not to
exceed the price of a hundred aurei, or to go surety for Titius up
to that amount, you ought not in either transaction to exceed the sum
specified: for otherwise you will not be able to sue him on the agency.
Sabinus and Cassius even thought that in such a case you could not
successfully sue him even for a hundred aurei, though the leaders of
the opposite school differed from them, and the latter opinion is
undoubtedly less harsh. If you buy the estate for less, you will have
a right of action against him, for a direction to buy an estate for a
hundred aurei is regarded as an implied direction to buy, if possible,
for a smaller sum.
9 The authority given to an agent duly constituted can be annulled by
revocation before he commences to act upon it.
10 Similarly, the death of either the principal or the agent before the
latter commences to act extinguishes the agent's authority; but equity
has so far modified this rule that if, after the death of a principal
and without having notice of his decease, an agent executes his
commission, he can sue on the agency: for otherwise the law would be
penalizing a reasonable and unavoidable ignorance. Similar to this is
the rule, that debtors who pay a manumitted steward, say, of Titius,
without notice of his manumission, are discharged from liability, though
by the strict letter of the law they are not discharged, because they
have not paid the person whom they were bound to pay.
11 It is open to every one to decline a commission of agency, but
acceptance must be followed by execution, or by a prompt resignation, in
order to enable the principal to carry out his purpose either personally
or by the appointment of another agent. Unless the resignation is made
in such time that the principal can attain his object without suffering
any prejudice, an action will lie at his suit, in default of proof by
the agent that he could not resign before, or that his resignation,
though inconvenient, was justifiable.
12 A commission of agency may be made to take effect from a specified
future day, or may be subject to a condition.
13 Finally, it should be observed that unless the agent's services
are gratuitous, the relation between him and the principal will not be
agency proper, but some other kind of contract; for if a remuneration is
fixed, the contract is one of hiring. And generally we may say that in
all cases where, supposing a man's services are gratuitous, there would
be a contract of agency or deposit, there is held to be a contract of
hiring if remuneration is agreed upon; consequently, if you give clothes
to a fuller to clean or to finish, or to a tailor to mend, without
agreeing upon or promising any remuneration, you can be sued by the
action on agency.
TITLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION
Having enumerated the different kinds of contracts, let us now examine
those obligations also which do not originate, properly speaking, in
contract, but which, as they do not arise from a delict, seem to be
quasicontractual.
1 Thus, if one man has managed the business of another during the
latter's absence, each can sue the other by the action on uncommissioned
agency; the direct action being available to him whose business was
managed, the contrary action to him who managed it. It is clear that
these actions cannot properly be said to originate in a contract, for
their peculiarity is that they lie only where one man has come forward
and managed the business of another without having received any
commission so to do, and that other is thereby laid under a legal
obligation even though he knows nothing of what has taken place. The
reason of this is the general convenience; otherwise people might be
summoned away by some sudden event of pressing importance, and without
commissioning any one to look after and manage their affairs, the result
of which would be that during their absence those affairs would be
entirely neglected: and of course no one would be likely to attend to
them if he were to have no action for the recovery of any outlay he
might have incurred in so doing. Conversely, as the uncommissioned
agent, if his management is good, lays his principal under a legal
obligation, so too he is himself answerable to the latter for an account
of his management; and herein he must show that he has satisfied the
highest standard of carefulness, for to have displayed such carefulness
as he is wont to exercise in his own affairs is not enough, if only a
more diligent person could have managed the business better.
2 Guardians, again, who can be sued by the action on guardianship,
cannot properly be said to be bound by contract, for there is no
contract between guardian and ward: but their obligation, as
it certainly does not originate in delict, may be said to be
quasicontractual. In this case too each party has a remedy against
the other: not only can the ward sue the guardian directly on the
guardianship, but the guardian can also sue the ward by the contrary
action of the same name, if he has either incurred any outlay in
managing the ward's property, or bound himself on his behalf, or pledged
his own property as security for the ward's creditors.
3 Again, where persons own property jointly without being partners, by
having, for instance, a joint bequest or gift made to them, and one of
them is liable to be sued by the other in a partition suit because he
alone has taken its fruits, or because the plaintiff has laid out money
on it in necessary expenses: here the defendant cannot properly be said
to be bound by contract, for there has been no contract made between the
parties; but as his obligation is not based on delict, it may be said to
be quasicontractual.
4 The case is exactly the same between joint heirs, one of whom is
liable to be sued by the other on one of these grounds in an action for
partition of the inheritance.
5 So, too, the obligation of an heir to discharge legacies cannot
properly be called contractual, for it cannot be said that the legatee
has contracted at all with either the heir or the testator: yet, as
the heir is not bound by a delict, his obligation would seem to be
quasicontractual.
6 Again, a person to whom money not owed is paid by mistake is thereby
laid under a quasicontractual obligation; an obligation, indeed, which
is so far from being contractual, that, logically, it may be said to
arise from the extinction rather than from the formation of a contract;
for when a man pays over money, intending thereby to discharge a debt,
his purpose is clearly to loose a bond by which he is already bound, not
to bind himself by a fresh one. Still, the person to whom money is thus
paid is laid under an obligation exactly as if he had taken a loan for
consumption, and therefore he is liable to a condiction.
7 Under certain circumstances money which is not owed, and which is paid
by mistake, is not recoverable; the rule of the older lawyers on this
point being that wherever a defendant's denial of his obligation is
punished by duplication of the damages to be recovered--as in actions
under the lex Aquilia, and for the recovery of a legacy--he cannot get
the money back on this plea. The older lawyers, however, applied this
rule only to such legacies of specific sums of money as were given by
condemnation; but by our constitution, by which we have assimilated
legacies and trust bequests, we have made this duplication of damages
on denial an incident of all actions for their recovery, provided the
legatee or beneficiary is a church, or other holy place honoured for its
devotion to religion and piety. Such legacies, although paid when not
due, cannot be reclaimed.
TITLE XXVIII. OF PERSONS THROUGH WHOM WE CAN ACQUIRE OBLIGATIONS
Having thus gone through the classes of contractual and quasicontractual
obligations, we must remark that rights can be acquired by you not only
on your own contracts, but also on those of persons in your power--that
is to say, your slaves and children. What is acquired by the contracts
of your slaves becomes wholly yours; but the acquisitions of children in
your power by obligations must be divided on the principle of ownership
and usufruct laid down in our constitution: that is to say, of the
material results of an action brought on an obligation made in favour
of a son the father shall have the usufruct, though the ownership is
reserved to the son himself: provided, of course, that the action is
brought by the father, in accordance with the distinction drawn in our
recent constitution.
1 Freemen also, and the slaves of another person, acquire for you if
you possess them in good faith, but only in two cases, namely, when they
acquire by their own labour, or in dealing with your property.
2 A usufructuary or usuary slave acquires under the same conditions for
him who has the usufruct or use.
3 It is settled law that a slave jointly owned acquires for all his
owners in the proportion of their property in him, unless he names one
exclusively in a stipulation, or in the delivery of property to himself,
in which case he acquires for him alone; as in the stipulation 'do you
promise to convey to Titius, my master?' If it was by the direction of
one of his joint owners only that he entered into a stipulation, the
effect was formerly doubted; but now it has been settled by our decision
that (as is said above) under such circumstances he acquires for him
only who gave him the order.
TITLE XXIX. OF THE MODES IN WHICH OBLIGATIONS ARE DISCHARGED
An obligation is always extinguished by performance of what is owed,
or by performance of something else with the creditor's assent. It is
immaterial from whom the performance proceeds--be it the debtor himself,
or some one else on his behalf: for on performance by a third person the
debtor is released, whether he knows of it or not, and even when it is
against his will. Performance by the debtor releases, besides himself,
his sureties, and conversely performance by a surety releases, besides
himself, the principal debtor.
1 Acceptilation is another mode of extinguishing an obligation, and
is, in its nature, an acknowledgement of a fictitious performance. For
instance, if something is due to Titius under a verbal contract, and he
wishes to release it, it can be done by his allowing the debtor to ask
'that which I promised thee has thou received?' and by his replying 'I
have received it.' An acceptilation can be made in Greek, provided the
form corresponds to that of the Latin words, as 'exeis labon denaria
tosa; exo labon.' This process, as we said, discharges only obligations
which arise from verbal contract, and no others, for it seemed only
natural that where words can bind words may also loose: but a debt due
from any other cause may be transformed into a debt by stipulation, and
then released by an imaginary verbal payment or acceptilation. So, too,
as a debt can be lawfully discharged in part, so acceptilation may be
made of part only.
2 A stipulation has been invented, commonly called Aquilian, by which
an obligation of any kind whatsoever can be clothed in stipulation form,
and then extinguished by acceptilation; for by this process any kind of
obligation may be novated. Its terms, as settled by Gallus Aquilius,
are as follow: 'Whatever, and on whatsoever ground, you are or shall
be compellable to convey to or do for me, either now or on a future
specified day, and for whatsoever I have or shall have against you an
action personal or real, or any extraordinary remedy, and whatsoever of
mine you hold or possess naturally or civilly, or would possess, or now
fail to possess through some wilful fault of your own--as the value of
each and all of these claims Aulua Agerius stipulated for the payment
of such and such a sum, and payment was formally promised by Numerius
Negidius.' Then conversely, Numerius Negidius asked Aulus Agerius, 'hast
thou received the whole of what I have today engaged, by the Aquilian
stipulation, to pay thee?' to which Aulus Agerius replied 'I have it,
and account it received.'
3 Novation is another mode of extinguishing an obligation, and takes
place when you owe Seius a sum, and he stipulates for payment thereof
from Titius; for the intervention of a new person gives birth to a new
obligation, and the first obligation is transformed into the second, and
ceases to exist. Sometimes indeed the first stipulation is avoided by
novation even though the second is of no effect: for instance, if you
owe Titius a sum, and he stipulates for payment thereof from a pupil
without his guardian's authority, he loses his claim altogether, for
you, the original debtor, are discharged, and the second obligation is
unenforceable. The same does not hold if one stipulate from a slave; for
then the former debtor continues bound as fully as if one had stipulated
from no one. But when the original debtor is the promisor, a second
stipulation produces a novation only if it contains something new--if
a condition, for instance, or a term, or a surety be added, or taken
away--though, supposing the addition of a condition, we must be
understood to mean that a novation is produced only if the condition
is accomplished: if it fails, the prior obligation continues in force.
Among the older lawyers it was an established rule, that a novation was
effected only when it was with that intention that the parties entered
into the second obligation; but as this still left it doubtful when
the intention was present and when absent, various presumptions were
established as to the matter by different persons in different cases.
We therefore issued our constitution, enacting most clearly that no
novation shall take place unless the contracting parties expressly state
their intention to be the extinction of the prior obligation, and that
in default of such statement, the first obligation shall subsist, and
have the second also added to it: the result being two obligations
resting each on its own independent ground, as is prescribed by the
constitution, and as can be more fully ascertained by perusing the same.
4 Moreover, those obligations which are contracted by consent alone are
dissolved by a contrary agreement. For instance, if Titius and Seius
agree that the latter shall buy an estate at Tusculum for a hundred
aurei, and then before execution on either side by payment of the price
or delivery of the estate they arrange to abandon the sale, they are
both released. The case is the same with hire and the other contracts
which are formed by consent alone.