No More Learning

In or before the time of Augustus
attempts were made by testators to leave their estates, or a legacy,
to persons legally disqualified to take them (e. g. , foreigners, Latins,
unmarried persons, women in some cases). In a trust the heir was not
directed to transfer the estate or legacies but simply requested to do so.
There was no legal compulsion, the heir could fulfil the testator's desire
or not as he chose; if the property was transferred, it was as the act of
the living heir and not therefore hampered by restrictions which affected
gifts from the dead. Augustus, after much hesitation, treated such a
desire as obligatory on the heir. Gradually such appeals to the honour
and good faith of the heir became frequent and obtained full recognition
and use. Advantage was eagerly taken of this untechnical language to
get round many of the limitations of ordinary testamentary law; and if
only an heir was duly appointed and entered on the inheritance, almost
any dispositions, direct or contingent, present or future, might be made
of the estate or part of it through him as a channel. Thus testator
might secure the transfer of his estate or of a legacy in certain events
from the person first made heir or legatee to another person. Or he
might prevent his estate from being alienated from his family by
requesting the successive holders to pass it on at their deaths to other
members. And trusts might be imposed not only on named persons,
but on the heir or heirs by intestacy, in case the will should not have
regular validity. The Courts strove to give effect to the intentions of a
testator however mildly or informally expressed, and to protect the
trust against the heir. But the old difficulties then recurred: the heir
might as easily be overburdened with trusts as with legacies, and if he
did not think it worth while to enter on the inheritance, the will failed
and the trust with it. It was thus found necessary (c. a. d. 70) to ensure
1 The difference between an English trust and a Roman fideicommissum is rather
in the practical object and working than in the conception. In both one person
holds property under an obligation to give another the benefit of it, and ceases to
hold it on the obligation being completely fulfilled. But a trustee has usually, as
Morice points out, a continuous duty lasting some time according to the needs of the
cestui que trust. A fiduciary usually has no duty other than the transference of the
property to the fidei-commissary on the occurrence of a condition. Both can claim
to be put to no expense, but a trustee does not benefit as a rule even (at any rate
since the Intestates' Estate Act 1884) if the purpose cannot be executed. A
fiduciary retains the property in such a case for his own account. A fiduciary heir
could in any case claim under the Falcidian Law.


## p. 83 (#115) #############################################

Legitim. Children's rights 83
that any heir burdened with a trust should get some advantage out of it;
and accordingly he was empowered, if he entered and accepted the
liabilities, to retain one-fourth as by the Falcidian statute. Or if he
suspected the estate to be insolvent, he might restore, as the phrase
went, the inheritance altogether to the person favoured by the trust and
be free from both risk and advantage. Otherwise he might indeed take
his fourth, but would, as partial heir, be liable for his share of the heir's
obligations. If however testator had directed him to retain a certain
thing or a certain amount, which was equal in value at least to one-
fourth of the inheritance, and restore the rest, he was regarded as a
legatee and not in any way liable to the creditors of deceased's estate.
The risk and difficulty attending heirs did not arise where a trust was
imposed on a legatee; he was liable for no more than he received; and
as the validity of the will was not at stake, there was no necessity for the
law to bribe him to accept by a share of the gift.
Justinian swept away a mass of distinctions and perplexities by
putting trusts and legacies in other respects on the same footing,
giving legacies the flexibility of trusts and fortifying trusts with the
legal character and effective suits belonging to legacies. The phraseology
was held to be unimportant, the intention was to prevail. Not only
the trust but the will and legacies might now be written in Greek.
When an oral trust was added to a written will, or the will itself
was oral and contained a trust, and the regular number of witnesses had
not been present on the occasion, Justinian enacted that if the heir
denied the trust, the person claiming under it should, having first
sworn to his own good faith, put the heir on his oath whether he had
not heard the testator declare the trust: the heir's answer on oath was
then decisive.
Legitim. The Statute of the XII Tables authorised, according to
tradition, full effect to be given to a Roman's will for the disposal of his
estate at his death. But a paterfamilias was expected to shew in the
will that he had duly considered the claims of his children in his power,
and especially of his sons, they being his natural representatives. He
must either appoint them heirs or expressly disinherit them, whether
they were sons by birth or by adoption and even if posthumous. In
default of such express notice, the will was set aside. Others in his
family, whether daughters or grandchildren by his sons, had either to be
appointed heirs or to be disinherited, but general terms were sufficient,
e. g. ," all others are disinherited. " If no notice was taken of them, the will
was partly broken, for the daughters and grandchildren were admitted
to share with the appointed heirs. Justinian in 531 abolished the
distinction in these matters between sons and daughters and between
those in testator's power and those emancipated, and required express
notice for all. The praetor had already in practice made the like
amendments of the old civil law.
ch. in. 6—2


## p. 84 (#116) #############################################

84 Plaint of unduteous will
But disinheritance, as well as disregard, of his children imperilled the
will. As next heirs on an intestacy they could complain to the Court
that the will failed in the due regard which a sane man would shew
to his children. This was the " plaint of an unduteous will" (querela
inqffkiosi testamenti). If complainant established his case, the will with
all its legacies and gifts of freedom drops and intestacy results. To
establish his case he has to prove three things: that his conduct did not
justify disinheritance, that he did not get under the will (e. g. , by legacy)
at least one-fourth of the share of the inheritance to which he would
have been entitled under an intestacy, and that he had not in any way
shewn an acceptance of the will as valid. Parents could in the same
way complain of their children's wills, and brothers and sisters of the
testator could complain of his will, if the heirs appointed were disreput-
able. An illegitimate child could complain of his mother's will. If
complainant had judgment given against him, he lost anything given
him by the will. An analogous complaint was allowed against excessive
donations which unfairly diminished a child's or parent's claim.
The value of the estate is taken for this purpose as for the Falcidian
fourth. Justinian in 528 enacted that if complainants had been left
something but not enough, the deficiency could be supplied without
otherwise upsetting the will, provided testator had not justly charged
them with ingratitude. In 586 Justinian raised the share of the
inheritance which would exclude the plaint to one-third, if there were
four or fewer children, and to one-half if there were more than four,
i. e. to one-third or one-half of what would be claimant's share on an
intestacy. Thus supposing two children, each would now be entitled to
one-sixth (instead of one-eighth) of the estate: if three children, to
one-ninth: if five, to one-tenth, and so on. Such share is called
"statutory portion" (portio legitvma) and could be made up either by an
adequate share of the inheritance, or by legacy, or through a trust, or
by gift intended for the purpose or by dowry or nuptial gift or
purchaseable office in the imperial service (militia), or a combination
of such. This statutory portion becomes in French law "legitim," in
German "Pflichttheil. "
In 542 Justinian put the matter on a new footing by requiring
children to be actually named as heirs in their father's or mother's or
other ascendant's will, unless the will alleged as the cause of disherison
"ingratitude" on one at least of certain grounds, and the heirs prove the
charge to be true. These grounds are: laying hands on parents, gravely
insulting them, accusation of crimes (other than crimes against the
Emperor or the State), associating with practisers of evil acts, attempting
parent's life by poison or otherwise, lying with step-mother or father's
concubine, informing against parents to their serious cost, refusing, if a
son, to be surety for an imprisoned parent, hindering his parents from
making a will, associating with gladiators or actors against his parent's


## p. 85 (#117) #############################################

Justinian s final legislation 85
wish (unless his parent was such himself), refusing (if a daughter under
twenty-five years of age) a marriage and dowry proposed by her parent,
and preferring a shameful life, neglecting to free a parent from captivity,
neglecting him if insane, refusing the Catholic faith. If ingratitude is
charged and established, the will is good: if it is not established, the
appointment of heirs made in the will is null, and all the children share
the inheritance equally (subject to bringing any marriage settlement into
hotchpotch), but legacies, trusts, freedoms and guardianships remain
valid (subject of course to the Falcidian deduction).
Those who have no children are required to name their parents
as heirs, unless on similar grounds (a reduced list is given) they can be
justly omitted.
Having left to children (or parents) the due amount, a testator or
testatrix can dispose of the residue at his or her pleasure, and a mother can
even exclude the father from any management of the property left to the
son, and, if the son is under age, appoint another manager. Justinian
further enacted that none but orthodox should take any part of an
inheritance, and that, if all entitled under a will or on intestacy were
heterodox, in the case of clerics the Church, in the case of laymen
the Crown, should inherit.
Members of a town council (decuriones) had since 535 been obliged,
if without any children, to leave three-fourths of their estate to the
council: if they had children, legitimate or illegitimate, three-fourths or
the whole according to circumstances were to go to such of them as were
or became members or wives of members of the council. The law
imposing disability for ingratitude applied here also.
A patron, if passed over in his freedman's will, could claim a third
(free from legacies and trusts) if there were no children except such as
were justly disinherited.
Succession to an intestate. In default of a will duly made and
duly accepted by the heirs named or one of them the law provided heirs.
The statutable heirs were testator's lawful children (mi herede. i), and
failing these (in old times), his agnates, failing these, the clan (gens).
Gradually by the praetor's action cognates were also admitted, eman-
cipated children and women other than sisters were no longer excluded,
other disabilities were removed and mother and children obtained by
statute reciprocal rights of inheritance. The husband or wife claimed
only after all blood-relations. This system is found in the Digest, Code,
and Institutes. But in 543 and 548 Justinian superseded this system
with its multifarious technicalities and ambiguities, and established (but
for the orthodox only) a simpler order of succession, which is the more
interesting because it largely supplied the frame for the English Statute
of Distributions for intestate personalty.
Justinian disregarded distinctions of sex, of inclusion in or eman-
cipation from the family, of agnates and cognates, and allowed in certain


## p. 86 (#118) #############################################

86 Succession to an intestate
cases the share which would have fallen to a deceased person to be taken
by his children collectively.
The first claim to succeed was for descendants. Children (and, in
default of them, grandchildren) excluded all ascendants and collaterals
and took equal shares, whether they sprang from the same marriage
or more than one, and whether the marriage was formed by regular
settlements or not. A deceased child's children took his or her share
among them. Any child who had had from his or her parents dowry or
nuptial gift had to bring it into account as part of his or her share. If
a parent was alive and had a right of usufruct in the property or part of
it, that right remained.
In the next class, that is, when there is no living descendant, come the
father and mother and whole brothers and sisters of the deceased. In
this case the father does not retain any right of usufruct he may have.
If ascendants, not excluded by nearer ascendants, as well as brothers and
sisters of the whole blood are found, they all share alike (per capita). If
a brother or sister has predeceased the intestate, his or her children take
collectively his or her share. Of ascendants the nearer is preferred. If
there are only ascendants in the same degree, the estate is divided in
halves between those on the father's side and those on the mother's.
If there are neither descendants nor ascendants, brothers and sisters
are preferred, the whole blood excluding the half-blood, even though the
latter be nearer in degree; therefore a nephew or niece of the whole
blood excludes brothers and sisters of the half-blood. If there are no
brothers or sisters or children of such, either of the whole blood, or half-
blood, other relations succeed according to their degree, the nearer
excluding the remoter, and those of the same degree sharing per capita.
Degrees of relationship were reckoned by the number of births from
the one person to the common ancestor added to the number from him
to the other person. Thus a nephew or uncle is in the third degree of
relationship to me, a second cousin is in the sixth, there being three
births from my great-grandfather to me and three also from him to my
second cousin.
After all blood-relations are exhausted, the husband or wife would
presumably inherit as under the old law before Justinian. A poor
widow without dowry was entitled to a fourth of her husband's estate,
such fourth not exceeding 100 lbs. gold.
In the case of freedmen dying intestate, children and other descen-
dants have first claim: if there are none, then the patron and his
children (531).
If presbyters, deacons, monks, or nuns, die without making a will or
leaving relatives, their goods pass to the church or monastery to which
they are attached, unless they are freedmen or serfs or decurions, in
which cases they pass to the patron or lord or council respectively (434).
In default of any legal claimant the Crown took a deceased's estate.


## p. 87 (#119) #############################################

Gifts 87
Gifts were viewed by Roman Law with considerable suspicion, partly
as often made on the spur of the moment without due reflection, partly
as liable to exert an improper influence on the donee. In b. c. 204 a law
(Lex Cincia) was passed which forbad all gifts exceeding a certain value,
and required formal execution of gifts within that value, land to be
mancipated, goods to be delivered, investments duly transferred, etc.
Any gifts contravening the law were revocable by the donor during his
life or by will. Gifts between near relatives, either by blood or
marriage, were however excepted from the prohibition of the law.
Constantino appears to have repealed this law, and, leaving gifts
under 300 solidi free, required all gifts above that amount to be described
in a written document and recorded in court, and possession to be given
publicly before witnesses. In 529-531 Justinian further facilitated gifts.
A mere agreement was enough without any stipulation, the presence
of witnesses ceased to be necessary, and the fact of the gift was alone
required to be recorded in court and that only when its value exceeded
500 solidi. Delivery of the object given was, according to Justinian,
not so much a confirmation as a necessary consequence of the gift, and
was incumbent on the donor and his heirs, especially if it were a gift for
charitable purposes. A gift duly made could be revoked by the donor
only on clear proof of donee's ingratitude, such as is shewn by insults or
attacks on the person or property of the donor, or on non-fulfilment of
the conditions of the gift. Remuneration for a service rendered is not
a gift within the meaning of these rules.
Gifts between husband and wife, with trifling exceptions, were
absolutely void until a. d. 206, and the same rule applied to gifts to
either from anyone under the same fatherly power, or from those in
whose power they respectively were. But Caracalla by a decree of the
Senate made them only voidable. If the donor predeceased the donee and
did not repent of the gift, the donee became fully entitled. Gifts from
either to increase the marriage settlement were allowable (see above).
Gifts mortis causa are only to take effect if the donor die before the
donee, and are epigrammatically characterised as something which the
donor prefers himself to enjoy rather than the donee, and the donee
rather than his heir. Such gifts were valid if made in presence of
five witnesses orally or in writing, without any formality and with the
effect of a legacy. The Lex Falcidia was applied to such gifts by
Severus, if the heir had not had his due out of the rest of donor's estate.
Gifts for charitable purposes (piae causae) were encouraged by
Justinian who (c. 530 and 545) directed that the bishops, whether
requested or not or even forbidden by testator, should see that any
disposition by will for such purposes was duly carried into effect; the
erection of a church should be completed within three years from the
time when the inheritance or legacy was available, a house for strangers
within a year unless one was hired until the house was built. If


## p. 88 (#120) #############################################

88 Charitable gifts (Piae causae)
this was not done the bishops should take the matter in hand by
appointing administrators, the heirs or legatees after such default not
being allowed to interfere. The other charitable purposes specially
mentioned are houses for aged persons or infants, orphanages, poor-
hospitals, and redemption of captives. The bishops are to inspect and
if necessary discharge the administrators, bearing in mind the fear of
the great God and the fearful day of eternal judgment. All profits
from the endowment belong from the first to the charity. Delay after
admonition by the bishops made the heirs or legatees who were charged
with the charity, liable for double the endowment. Annuities for clergy,
monks, nuns, or other charitable bodies were not to be commuted for a
single sum, lest it should be spent and the claims of the future be
disregarded. The property of the testator was mortgaged for the
annuity, unless an agreement was made in writing and duly recorded for
setting aside an inalienable rent, larger than the annuity by at least
one-fourth and not subject to heavy public dues. If the bishops were
slack, possibly being corrupted by the heirs, or others, the metropolitan
or archbishop was authorised to interfere, or any citizen might bring an
action on the statute and demand the fulfilment of the charity.
If, in order to avoid the Falcidian Law, a testator leaving all his
property for the redemption of captives, appoints captives to be his
heirs, Justinian (581) directed such an appointment to be good and not
void for uncertainty. The bishop and church-manager (oeconomus) of
the testator's domicile had to take up the inheritance without any gain
for themselves or the Church. Similar appointments of poor as heirs
are valid, and fall, if left uncertain by testator, to the poor-house of the
place, or if there are several such to the poorest, or if there be none
such, the funds are to be distributed to poor beggars or others in the
place.
Property. The distinctions, which existed under the early Roman
Law between land in Italy and land in the provinces with a form of
conveyance (mancipatio)1 applicable to the former and not to the latter,
disappeared before Justinian. Under him full ownership in all land,
wherever situate, was conveyed by delivery actual or symbolical, in
accordance with agreement, or at least with the transferor's intention to
part with the property. And the same applied to all other corporal
objects. Such a distinction between real and personal property, between
1 Mancipation was thus: The parties meet in the presence of no less than five
witnesses, all Roman citizens of the age of puberty or upwards. An additional
witness called libripens, " balance-weigher," holds a bronze balance. The acquirer or
purchaser holds a piece of bronze as a symbol of the price, and seizing the thing to
be acquired, for instance, a slave, or clod (as symbol of land), asserts it to be his by
the law of the Quirites, strikes the balance with the bronze and hands it to the
other party or vendor.


## p. 89 (#121) #############################################

Property. Servitudes. Emphyteusis 89
land and chattels, as is found in English law, never existed with the
Romans either as to transfer of ownership between the living or in
succession to the dead. A distinction between movables and immovables
is found in some matters, e. g. , a title to the former being secured by
acquisition on lawful grounds in good faith and uninterrupted possession
by the holder and his predecessor in title for three years, whereas title
to the latter required like acquisition and ten years'1 uninterrupted
possession if claimant lived in the same province as the possessor, or
twenty years when he lived in a different province. Further protection
in some cases was given by an additional twenty years' possession: and
claims of the Church were by a law of 535 good against one hundred
years'' adverse possession; but in 541 the period was reduced to forty years.
Rights in things, as distinguished from ownership, were called servi-
tudes and were of two classes, according as the benefit of them was
attached to persons or to immovables. The principal case of the former
was usufruct, i. e. , the right of use and enjoyment of profits, corresponding
in its main incidents to life tenure. A man might have a usufruct in
lands or houses or slaves or herds and even in consumables. Security
had to be given to the owner for reasonable treatment and restoration
in specie or equivalent at the expiry of the usufruct, which was lost not
only by death but also by loss of civic status: it could not be trans-
ferred to another person. Minor rights of similar character are bare
use and habitation.
The second class of servitudes corresponds to English "easements. '"
They were limited rights, appurtenant to certain praedia whether farms
in the country or houses in towns. They secured to the occupier a
limited control over neighbouring houses or lands, which was necessary
or at least suitable for the proper use of the dominant farm or house to
which they were servient. Rights of way, of leading water, of pasturing
cattle, are instances of country servitudes: rights of light and prospect
and carrying off water are instances of urban servitudes. They were
created usually by grant and were lost by non-user for a period of two
years, which was raised by Justinian to ten or twenty years.
Emphyteusis, i. e. , plantation. The practice grew up in imperial
times of tracts of country, in many cases waste land, being held by
tenants at a fixed rent (usually called canon, vectigal, pensio) on the
terms that so long as the rent was duly paid the tenant should not be
disturbed and could transmit the land to his heirs or sell or pledge it.
The owners were usually the State or the Emperor (who had a private
domain) or country towns in Italy or in the provinces. The lawyers
doubted whether to treat this contract as sale or lease. Zeno, about
480, decreed that it should be regarded as distinct from both, and rest
upon the written agreement between lord and tenant. By Justinian's
edicts the tenant had to pay without demand the public taxes and
produce the receipts and pay the canon to the lord, who for three (or in


## p. 90 (#122) #############################################

90 Obligations
the case of church land, two) years' default could eject him. If rent
and receipts were offered and not accepted, the tenant could seal them
up and deposit them with the public authority and so be safe against
eviction. If eventually the lord did not take them, the tenant could
keep them, and pay no more rent till the landlord demanded it, and
then be liable only for future rents. As regards improvements, in the
absence of express stipulations, the tenant could not sell them to outsiders,
until he had offered them to the lord at the price he could get from
another, and two months had passed without the lord's accepting. Nor
could he alienate the farm to any but suitable persons, i. e. , such as were
allowed generally to hold on this tenure. The lord had to give admission
to the transferee and certify it by letter in his own hand or by declaration
before the governor or other public authority, a fee of two per cent, of
the price being demandable for such consent.
Edicts of the Emperors were not uncommon, which granted secure
possession on some such terms to anyone who cultivated waste lands
and was thus in a position to pay the tax upon them. If the lands had
been deserted by the owner, he could claim them back only on paying
the cultivator his expenses: after two years his right was gone.
Obligations. Besides rights which are good against all the world,
such as ownership and other rights to particular things, rights good
only against particular persons form a most important and perhaps the
most notable part of Roman Law. Such are called obligations and
arise either from contract or from delict (in English usually called
"tort"). The detailed classification of these given in the Institutes
is in many respects artificial and is not found in the other books of
Justinian.
Contracts are voluntary agreements between two or more persons.
The Romans required for an agreement which should be enforceable by
law some clear basis or ground of obligation. There must be either a
transfer of some thing from one of the parties to the other, or a strict
form of words accompanying the agreement, or there must be agreed
services of one party, usually of both. As the Romans said, the contract
must be formed out re aut verbis aut consensu. Otherwise it was a bare
agreement (nudum pactum), and, though available for defence against a
claim, it was not enforceable by suit, except so far as it set forth the
details of one of the regular contracts and was concluded in close
connexion therewith, or it reaffirmed, by a definite engagement to pay,
an already existing debt of promiser's or another (pecunia constituta).
It may be convenient to treat first of the most general form. The
contract made verbis was called "stipulation" and was made by oral
procedure between the parties present at the same place.
The matter
and details of the agreement being stated, the party intending to acquire


## p. 91 (#123) #############################################

Verbal obligations. Mutuum 91
a right said, according to the original practice, Spondesne ? " Do you
promise? " to which the other replied, Spondeo, "I promise. 11 But in
later time any other suitable words might be used, e. g. , Dafmne ? " Will
you give? " Dabo, "I will give. " The essential was that the answer
should not add to or vary the scope and conditions contained in the
questions: the agreement had to be precise. A record in writing was
very usual, but not necessary, provided the stipulation could be proved
by witnesses. The drawback in stipulation, viz. , that it required the
stipulator and promiser to meet, was to some extent removed by the use
of slaves or children, for they could stipulate (though not promise) on
behalf of their master or father, and the fact that they were under his
power made the contract at once his contract. A free person sui juris
could only stipulate for himself, and thus could not act as a mere channel
pipe for another. Stipulation however had this great convenience that it
was applicable to any kind of agreement, and at once elevated a mere
pactum into a strict, valid contract. The pactum was usually put in writing
and the fact of its having been confirmed by a stipulation was added to
the record. If a promise was stated, the law presumed it to be in reply
to an appropriate question: where consent was recorded, no special
form of words was necessary (472). A law of Justinian (531) enacted
that such record should not be disputable, whether the stipulation was
effected through a slave or by both parties themselves: if it stated that
the slave had done it, he should be deemed to have belonged to the party
and to have been present: if it stated the latter, the parties should be
deemed to have been present in person, unless it was proved by the very
clearest evidence (Justinian delights in superlatives) that one of the
parties was not in the town on the day named.
A very important contract, resting on a transfer of ownership, was
iictdum, i. e. , loan of money or of corn or any other matters (often called
"fungibles ") in which quantity and not identity is regarded, one sum of
money being as good as any other equal sum. The lender was entitled
to recover the same quantity at the agreed time, but had no implied
right to interest unless the debtor made delay. A loan was therefore
usually accompanied by a stipulation for interest. Justinian however in
536 enacted that a mere agreement was enough to secure interest to
bankers. If no day for payment of a loan was named, the debtor might
await creditor's application. Part payment could not be refused.
Justinian (531) gave to a debtor on loan as in other cases a right to set
off against a creditor's claim any debt clearly due from him.
The rate of interest was limited by law. In Cicero's time and
afterwards it was not to exceed 12 per cent, per annum. Justinian
forbad illustres to ask more than 4 per cent, per annum. Traders were
limited to 8 per cent. ; other persons to 6 per cent. But interest
on bottomry might go up to 12 or 12£ per cent. (= \) during the
CH. III.


## p. 92 (#124) #############################################

92 Interest. Pledge
voyage. Any excess paid was to be reckoned against the principal debt.
Compound interest was forbidden altogether by Justinian, and in
connexion with this the conversion of unpaid interest into principal was
forbidden. And even simple interest ceased so soon as the amount paid
equalled the amount of the principal (so Justinian 535). In loans of
corn, wine, oil, etc. , to farmers, Constantine allowed 50 per cent,
interest; Justinian only Jth (12£ per cent. ), and for money lent to
farmers only ^j (= 4J). He also forbad the land to be pledged to the
lender. In action on a judgment four months were allowed for
payment; after that simple interest at 12 per cent, was allowed.
Any son under his father's power was by a senate's decree of the
Early Empire (Sc. Macedonianum) disabled from borrowing money.
Repayment of any money so borrowed could not be enforced against
either his father or his surety or against himself (if he became
independent), unless he had recognised the debt by part payment. But
the decree did not apply, where the creditor had no ground for knowing
the debtor to be under power, or where a daughter required a dowry, or
where a student was away from home and borrowed to cover usual or
necessary expenses. The fact that the borrower was grown up and
even perhaps in high public office did not prevent the decree's applying.
Other contracts made re, involved a transference not of property but
of possession. Such are commodatcjm, gratuitous loan of something
which is to be returned in specie, and depositum, transfer of something
for safekeeping and return on demand or according to agreement. A
third contract under this head was pignus, which calls for fuller notice.
Security for debt, etc. In order to secure a person's performance of
an obligation, two means are commonly in use: (1) giving the promisee
hold over some property of the promiser's; (2) getting a confirmatory
promise from another person:' in other words, pledge and surety.
The Romans had three forms of pledge: fiducia, pignus, hypotheca.
Fiducia was an old form by which the creditor was made owner (for the
time) of the property: by pignus he is made possessor; by hypotheca he
is given simply a power of sale in case of default. Fiducia went out of
use about the fourth century; it was analogous to and probably the
origin of, our mortgage, the property being duly conveyed to the
promiser, who could, subject to account, take the profits and on default
of payment as agreed, could sell and thus reimburse himself. A
power of sale was usually made by agreement to accompany pignus and
hypotheca. In pignus it formed an additional mode of compulsion on
the debtor besides the temporary deprivation of the use of his property:
in hypotheca it constituted the essence of the security. Pignus was a
very old form and always continued in use: hypotheca was no doubt
borrowed from the Greeks, and we first hear of it in Cicero's time. It had
the great convenience for the debtor that he could remain in possession
of the object pledged, and as no physical transfer was required, it could


## p. 93 (#125) #############################################

Sureties 93
be applied to all kinds of property, movable and immovable, near or
distant, specific or general, corporal or incorporeal (such as investments).
And the creditor was not responsible, as he was in the case of pignus, for
the care and safekeeping of the object. In other respects the law which
applied to the one applied to the other. A written contract was not
necessary, if the contract could be proved otherwise.
Tacit pledges were recognised in some cases. Thus the law treated
as pledged to the lessor for the rent, without any distinct agreement,
whatever was brought into a house by the lessee with the intention of its
staying there. A lodger's things were deemed to be pledged only for his
own rent. In farms the fruits were held to be pledged, but not other
things except by agreement. One who supplied money for reconstructing
a house in Rome had the house thereby pledged to him; and for taxes
or any debt to the Crown (fiscus) a person's whole property was so
treated: guardians'1 and curators1 property is in the same position as
security to their wards; husband's as security to the wife for her dowry
(531); and what an heir gets from testator is security to the legatees
and trust-heirs; what a fiduciary legatee gets is security to the legatee
by trust.
Any clause in a pledge-agreement which provided for forfeiture of the
pledged property in default of due payment of the loan (Lex commissoria)
was forbidden by Constantine. But the right of sale for non-payment of
debt was, in the absence of contrary agreement, deemed inherent in
pledge. It had however to be exercised with due formality after public
notice and the lapse of two years from the time when formal application
had been made to the debtor or from the judgment of the Court. Then
if no sale was effected, the creditor could after further time and fresh
notice petition the Emperor for permission to retain the thing as
his own. If the value of the pledge did not equal the amount of the
debt, the creditor could proceed against the debtor for the balance; if
its value was more, the debtor was entitled to the surplus. Where the
creditor was allowed to retain the thing as his own, Justinian allowed a
still further period of two years in which the debtor could claim it back
on payment of the debt and all creditor's expenses (530).
Sureties (Jidejussores) were frequently given and were applicable to
any contract, formal or informal, and even to enforce a merely natural
obligation, as a debt due from a slave to his master. Sureties were
bound by stipulation. If there were more than one, each was liable for
the whole for which the debtor was liable, but Hadrian decided that a
surety making application for the concession should be sued only for his
share, provided another surety was solvent. The creditor had the option
of suing the debtor or one of the sureties, and, if not satisfied, then the
other; but this was modified by Justinian (535), who enacted that the
debtor should be first sued if he were there, and that if he were not,
time should be given to the sureties to fetch him; if he could not be


## p. 94 (#126) #############################################

94 Women's guaranty. Purchase and sale
produced, then the sureties might be sued, and after that, recourse should
be had to the debtor's property. If sureties paid, they had a claim on
the debtor for reimbursement and for the transfer to them of any pledge
he had given, but could not retain the pledge if debtor offered them
the amount of debt and interest. A surety's obligation passed to his heirs.
If a woman gave a guaranty for another person, even for her husband
or son or father, so as to make her liable for them, the obligation was
invalid. But she was not protected, if the obligation was really for herself,
or if she had deceived the creditor or received compensation for her
guaranty, or had after two years' interval given a bond or pledge or
surety for it. This rule, which dates from the Early Empire (senatus
consultum VeUeianum), was based on the theory that a woman might
easily be persuaded to give a promise, when she would not make a
present sacrifice. Accordingly she was not prohibited from making
gifts. Justinian confirmed and amended the law in 530 by requiring
for any valid guaranty by a woman a public document with three
witnesses, and in 556 enacted that no woman be put in prison for debt.
The class of contracts which arise consensu, i. e. , by the agreement of
the parties, without special formalities or transfer of a thing from one to
the other, is constituted by Purchase and sale, Hire and lease, Partner-
ship, Mandate.
Purchase and sale (one thing under two names) is complete when
the parties have agreed on the object and the price, or at least agreed to
the mode of fixing the price. The agreement may be oral or in writing:
if the latter, it must be written or subscribed by the parties; and till
that is done, neither party is bound. Whether the contract is oral or
written, the intended buyer, if he does not buy, (in the absence of any
special agreement on the point) forfeits any earnest money he may have
given, and the vendor, if he refuses to complete, has to repay the earnest
twofold. (So Justinian 528. ) The vendor is bound by the completed
contract to warrant to the purchaser quiet and lawful possession but is
not bound to make him owner. He must however, unless otherwise
agreed, deliver the thing to the purchaser, where it is, and thereby
transfer all his own right. From the date of completion of the contract,
though delivery has not taken place, the risk and gain pass to the
purchaser, but he is not owner until he has paid the price and got
delivery, and then only if the vendor was owner, or possession for the
due time has perfected the purchaser's title. The vendor is liable to the
purchaser on his covenants (e. g. , in case of buyer's eviction, for double
the value), and also for any serious defects which he has not declared and
of which the purchaser was reasonably ignorant.
In case of sale of an immovable Diocletian admitted rescission when
the price was much under the value (285). It was probably Justinian who


## p. 95 (#127) #############################################

Lease and hire. Partnership 95
gave generally a claim for rescission whenever the price was less than half
the real value. This ground of rescission was later called laesio enormis,
and many attempts were made to extend its application.
The contract of lease and hire is similar in many respects to that of
purchase and sale. But the lessee, if evicted, has only his claim against
the lessor on his covenant to guaranty quiet possession, and has no hold
over the land, if sold by his lessor to another. In letting a farm the
lessor was bound to put it in good repair and supply necessary stabling
and plant: and, if landslip or earthquake or an army of locusts or other
irresistible force does damage, the lessor has to remit proportionably
the current rent. The like rules held of letting houses, except that plant
was not provided. The. lessee had a good claim on the lessor for any
necessary or useful additions or improvements, and usually could recover
his expenditure or remove them. He was bound to maintain the leased
property whether farm or house, and to treat it in a proper manner,
cultivating the farm in the usual way. He could underlet within the
limits of his term; and the law of the fifth century allowed either lessor or
lessee to throw up the contract within the first year, without any penalty,
unless such had been agreed on. The usual term of lease was five years,
at least in Italy and Africa; in Egypt one or three years.
Contracts for building a house, carriage of goods, training of a
slave, etc. , come under this head, where the locator supplied the site or
other material. The conductor, who performed the service, was liable
for negligence.
Partnership is another contract founded on simple agreement, but
also characterised, like the two last mentioned, by reciprocal services.
It was in fact an agreement between two or more persons to carry on
some business together for common account. The contributions of the
members and their shares in the result were settled by agreement, and
they were accountable to each other for gains and losses. Like other
contracts it concerned only the partners: outsiders need know nothing
of it; in any business with them only the acting partner or partners
were responsible. A partner's heir did not become a partner, except
by a new contract with common consent. A partnership came to an
end by the death of a partner, or his retirement after due notice, or
when the business or time agreed came to an end.
There was no free development of association into larger companies,
without the express approval of the State. A company continues to
exist irrespectively of the change or decease of the members, regulates
its own membership and proceedings, has a common chest and a common
representative, holds, acquires and alienates its property as an individual.
In Rome such corporate character and rights were only gradually
granted and recognised, each particular privilege being conceded to this
or that institution or class of institutions as occasion required.
Towns and other civil communities had common property and a


## p. 96 (#128) #############################################

96 Companies. Mandate
common chest, could manumit their slaves and take legacies and inheri-
tances. They usually acted through a manager; their resolutions
required a majority of the quorum, which was two-thirds of the whole
number of councillors (decurkmes). They are said corpus habere, " to be
a body corporate. "
Other associations for burials or for religious or charitable purposes,
often combined with social festivities, were allowed to exist with statutes
of their own making, if not contrary to the general law. But without
express permission they could not have full corporate rights. Guilds
or unions of the members of a trade, as bakers, are found with various
privileges. Such authorised societies or clubs were often called collegia
or sodalitates. They were modelled more or less on civic corporations:
Marcus Aurelius first granted them permission to manumit their slaves.
The large companies for farming the taxes (publicani) or working
gold or silver mines had the rights of a corporation, but probably not so
far as to exclude individual liability for the debts, if the common chest
did not suffice.
Mandate differs from the three other contracts, which are based on
simple agreement. There are no reciprocal services and no remuneration
or common profits. It is gratuitous agency: not the agency of a paid
man of business; that would come under the head of hiring. Nor is it
like the agency of a slave; that is the use of a chattel by its owner. It
is the agency of a friend whose good faith, as well as his credit, is at
stake in the matter. The mandatee is liable to the mandator for due
performance of the commission he has undertaken, and the mandator is
liable to him only for the reimbursement of his expenses in the conduct
of the matter.
Similar agency but unauthorised, without any contract, was not
uncommon at Rome, when a friend took it upon himself to manage some
business for another in the latter's absence and thereby saved him from
some loss or even gained him some advantage. The swift process of the
law courts in early days seems to have produced and justified friendly
interference by third parties, which required and received legal recogni-
tion. The person whose affairs had thus been handled had a claim upon
the interferer for anything thereby gained, and for compensation for any
loss occasioned by such perhaps really ill-advised action or for negligence
in the conduct of the business, and was liable to reimburse him for
expenses, and relieve him of other burdens he might have incurred on the
absentee's behalf. Such actions were said to be negotiorum gestorum,
"for business done. 11
But in Rome the usual agent was a slave; for anything acquired bv
him was thereby ipso facto acquired for his master, and for any debt
incurred by him his master was liable up to the amount of his slave's
peculium; and if the business in question was really for the master's
account or done on his order the master was liable in full. And though


## p. 97 (#129) #############################################

Agency. Equitable interpretation 97
in general when the master was sued on account of his slave (de peculio)
he had a right to deduct from the peculium the amount of any debt due
to himself, he had no such right when he was cognisant of the slave's
action and had not forbidden it; he could then only claim rateably
with other creditors. A son or daughter under power was for these
purposes in the same position as a slave.
It was rarely that the Romans allowed a third party who was a
freeman and independent to be privy to a contract. The freeman
acquired and became liable for himself, and the principals to the
contract in case of such an agent had to obtain transfers from him of
the rights acquired: they could not themselves sue or be sued on the
agent's contract. But two cases were regarded by Roman Law as
exceptional. When a person provided a ship and appointed a skipper
in charge of it, he was held liable in full for the skipper's contracts in
connexion with it, if the person contracting chose to sue him instead of
the skipper. And the like liability was enforced, if a man had taken a shop
and appointed a manager over it. In both cases the rule held, whether
the person appointing or appointed was man or woman, slave or free,
of age or under age. The restriction of the owner's liability to the
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
But this recognition was one-sided: the principal did not acquire the
right of suing on his skipper's or manager's contract, if the latter were
free; he must, usually at least, obtain a transfer of the right of suit from
him, the transfer being enforced by suing the skipper or manager as
an employee or mandatee.
At one time there was a marked difference between the consensual
contract along with most of those arising re on the one hand, and on the
other hand stipulation and cash-loan (mutuum). In actions to enforce
the former the judge had a large discretion, and the standard by which
he had to guide his decisions or findings was what was fairly to be
expected from business men dealing with one another in good faith. In
actions to enforce the latter the terms of the bargain were to be observed
strictly: the contract was regulated by the words used: the loan was to
be repaid punctually in full. Gradually these latter contracts came to
be treated similarly to the former so far as their nature permitted, and
by Justinian's time the prevalence of equity was assured: the intention
of the parties was the universal rule for interpretation of all contracts,
and reasonable allowance was made for accidental difficulties in their
execution, when there was no evidence of fraud.
Two modes were adopted in classical times for dealing with the
engagements or position of parties where the terms and characteristics of
C ilKD. B. VOL. II. Oil. III. 7


## p. 98 (#130) #############################################

98 Quasi-contracts. Transfer
a proper contract in due form were not found. One was to treat the
matter on the analogy of some contract the incidents of which it
appeared to resemble. Thus money paid on the supposition of a debt,
which however proved not to have existed, was recoverable, as if it had
been a loan. Money or anything transferred to another in view of some
event which did not take place was recoverable, as if paid on a con-
ditional contract, the condition of which had not been fulfilled.
Another mode was for the complainant, instead of pleading a
contract, to set forth the facts of the case and invite judgment on the
defendant according to the judge's view of what the equity of the case
required. Thus barter was not within the legal conception of purchase
and sale, for that must always imply a price in money, but it had all
other characteristics of a valid contract and was enforced accordingly
on a statement of the facts. If a work had to be executed for payment
but the amount of payment was left to be settled afterwards, this was not
ordinary hire, which is for a definite remuneration, but might well be
enforced on reasonable terms.
Transfer of Obligations. Before leaving contracts, which are the
largest and most important branch of obligations, it is as well to point
out that the transfer of an obligation, whether an active obligation, Le.
the right to demand, or a passive obligation, i. e. the duty to pay or
perform, is attended with difficulties not found in the transfer of a
physical object, whether land or chattels. An obligation being a
relation of two parties with one another only, it seems contrary to its
nature for A, who has a claim on B, to insist on payment from C instead;
or for D to claim for himself B\ payment due to A. With the consent
of all parties, the substitution is possible and reasonable, but the
arrangement for transfer must be such as to secure D in the payment by
B, and to release B from the payment to A. Two methods were in use.
At ^'s bidding D stipulates from B for the debt due to A: B is thereby
freed from the debt due to A and becomes bound to D. This was called
by the Romans a novation, i. e. a renewal of the old debt in another form.
Similarly A would stipulate from C for the debt owed by B to A. This
being expressly in lieu of the former debt frees B and binds C. These
transfers being made by stipulation require the parties to meet. The
other method was for A to appoint D to collect the debt from B and keep
the proceeds, the suit being carried on in A's name, and the form of the
judgment naming D as the person entitled to receive instead of A.
Similarly in the other case C would make A his representative to get
in Bfs debt.