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Grice e Fisischella – il duello – filosofia italiana
– Luigi Speranza (Catania). Filosofo italiano. Grice: “I
love Fisichella; for one, he was a nobleman; for another, he died during
Messina’s earthquake – leaving unfinished quite a few essays – he philosophised
on both ‘nature’ and ‘convention,’ and the rationalist basis of his theory of
contract is Griceian in nature, even if he fills it with charming Roman
detail!” Appartenente alla nobile famiglia siciliana dei Fisichella, fu autore
di famose saggi. Fu responsabile della Biblioteca Civica di Catania. Insegna a
Messina. Morì vittima del terremoto di Messina. Altre opere: “Roma e il Mondo”
(Coco); “Pena temporaria, pena perpetua”; “Il concetto d’ “obbligazione
naturale””; “Il concetto del divorzio secondo la filosofia di Enrico VIII”
(Carmelo de Stefano); “Matrimonio, questione di stato – la legge di
matrimonio”. Nominato "bibliotecario onorario" Federico De Roberto,
che scrisse in uno scrittoio a schiena d'asino ancora conservato molte pagine
del suo romanzo I Viceré. Whoever has glanced through the pages of any
text-book on mercantile law will hardly deny that contract is the
handmaid if not actually the child of trade. Merchants and bankers must
have what soldiers and farmers seldom need, the means of making and
enforcing various agreements with ease and certainty. Thus, turning to the
special case before us, we should expect to find that when Roma was
in her infancy and when her free inhabitants busied themselves chiefly
with tillage and with petty warfare, their rules of sale, loan,
suretyship, are few and clumsy. Villages do not contain lawyers. Even in
towns, hucksters do not employ them. Poverty of contract is in fact
a striking feature of the early Roman jurisprudenze, and can be readily
understood in the light of the rule just stated. The explanation given by Maine
in ‘Ancient Law’ is doubtless true, but does not seem altogether
adequate. Maine points out that the Roman house-hold consists of many families
under the rule of a paternal autocrat. Few freemen have what we should
call legal capacity. Consequently, there arose few occasions for a contract.
This may indeed account for the non-existence of agency, but not
for that of all other contractual forms. For, if the households had been
trading instead of farming corporations, they must necessarily have been
more ichly provided in this respect. The fact that their commerce is
trivial, if it exists at all, alone accounts completely for the
insignificance of the contract in their early law. The origin of the contract
as a feature of social life is therefore simultaneous with the birth of Ttade
and requires no further explanation. It is with the origin and history of
its individual forms that we shall deal. As Roman civilization progresses,
we find commerce extending, and contract growing steadily to be more
complex and more flexible. Before the end of the Roman republic the
rudimentary modes of agreement which suffice for the requirements of a
semi-barbarous people have been almost wholly transformed into the
elaborate system of contract preserved for us in the fragments of the
Antonine jurists. At the most remote period concerning which statements of
reasonable accuracy can be made, and which for convenience we may call
the “regal period,” we can distinguish three ways of securing the
fulfilment of a promise. The promise could be enforced either by the
person interested, or by the gods, or by the community. When, however, we
speak of *enforcement*, we must not think of what is now called specific
performance, a conception unknown to primitive Roman law. The only kind
of enforcement then possible is to make punishment the alternative of
performance. Self-help, the most obvious method of redress in a society
just emerging from barbarism, is doubtless the most ancient protection to
promises. We find self-help to have been not only the mode by which the
anger of the individual is expressed, but also one of the authorised
means employed by a god – “il divino” -- or the community to signify displeasure.
This rough form of justice falls within the domain of law in that the law
allows it, and even encourages Romans to punish the delinquent,
whenever religion, or custom, has been violated. But as the Romans grew
more civilized and the nation larger, self-help proves a difficult and
therefore inadequate remedy. Accordingly, the scope of self-help is by
degrees narrowed, and, at last, with the introduction of surer
methods, self-help becomes wholly obsolete. ‘Religious’ law, as
administered by a priest, or representatives of a god, is another
powerful agency for the support of promises. A violation of ‘fides,’ the
sacred bond formed between the parties to an agreement, is an act of
impiety which lays a burden on the conscience of the delinquent and may
even have entailed religious disabilities. “Fides” is of the essence of every
compact. But there are certain cases in which its violation is punished
with exceptional severity. If an agreement is solemnly made in the
presence a god – Roma had three: Giove, Mars, and Quirinus --, its breach is
punishable as an act of gross sacrilege. A third agency for the
protection of a promise is legal. This third agency consists of a penaltiy
imposed upon bad faith by the laws of Rome, the rules of the gens, or
the by-laws of the guild to which the delinquent belongs. What the
sanction is in each case we are left to conjecture. It may be
public disgrace, or exclusion from the guild, or the paying of a
fine. And if a promises is strengthened by an appeal to a god, so might another
be by an invocation of the people as witnesses. An agreement, then, might
be of three kinds, correspending to these three kinds of sanction. An agreement
may consist of an entirely formless
compact, or a solemn appeal to a gods, or a solemn appeal to the
people. A formless compact is called “pactum” in the language of the
Twelve Tables. A “pactum” is merely a distinct understanding between
parties who trust to each other, and in the infancy law, a pactum must have
been the kind of agreement most generally used in the ordinary business of
life. A pactum is doubtless the oldest of all agreements, since it
is almost impossible to conceive of a time when two Romans did not barter
an act and a promise as freely as they bartered goods and without the
accompaniment of any ceremony. A compact of this sort is protected by the
universal respect for “fides,” and its violation may perhaps have been
visited with penalties by the guild or by the gens. But intensely
religious as the early Romans were, there must have been cases in which
conscience was too weak a barrier against fraud, and when a slight penalty
was ineffectual. The fear of a god has to be reinforced by the fear
of the Roman. Self-help is the remedy which naturally suggests itself. In
The Twelve Tables a pactum appears in a negative shape, as a compact
by performing which retaliation or a law-suit may be avoided. If this
compact is broken, the offended party pursues his remedy. Similarly, where a positive
pactum is violated, the injured person must have had the option of
chastising (Gell. XX. 1. 14. Auct. ad Her. ii. 13. 20) the delinquent. The
injured Roman’s revenge may take the form of personal violence, seizure
of the other's goods, or the retention of a pawn already in his
possession. A Roman could choose his own mode of punishment. But, if
his adversary proves too strong for him, he doubtless had to go unavenged.
If the broken agreement belonged to either of the other classes, the injured
party has the whole support of the priesthood or the community at his
back, and thus is certain of obtaining satisfaction. It is
therefore plain that though formless agreements contain the germ of a contract,
a formless agreement could not produce a law of Contract. By the very
nature of a formless agreement or pactum, it lacks binding force. The pactum’s
sanction depends on the caprice of individuals, whereas the essence of a
contract is that the breach of an agreement is punishable in a *particular*
way. A further element is needed, and this is supplied by the
invocation of higher powers. At what period the fashion is
introduced of confirming promises by an appeal to a god it would be idle to guess. Originally, it
seems, the plain meaning of such an appeal is alone considered, and its
form is of no importance. Under the influence of custom or of the priesthood, such
an agreement assumes, by degrees, a formal character, and it is thus that
we find them in our earliest authorities. Since Religion and
Law are both at first the monopoly of the priestly order, and since the
religious form of a promise has its counterpart in earlier customs, the
strictly SECULAR forms of an agreement s peculiarly Roman. The religious forms
are evidently the older, and formal contract has therefore had a
religious origin. “Fides” being a divine thing, the most natural
means of confirming a promise was to place it under divine
protection. This may be accomplished in two ways, by “iusiurandum” or by “sponsio”
-- each of which is a solemn declaration, placing the promise or
agreement under the guardianship of a gods. Each of these two forms – the
iusiurandum and the sponsio -- has a curious history, and they are the earliest
specimens of a true Contract. A third method, and one peculiar to the Romans,
which naturally suggested itself for the protection of agreements, is to
perform the whole transaction in view of the people. Publicity ensures
the fairness of the agreement, and placed its ex- istence beyond dispute.
If the transaction was essentially a public matter, such as the official
sale of public lauds, or the giving out of public contracts, no
formality seems ever to have been required, so that even a formless
agreement – a mere ‘pactum’ -- is, in that case, binding. The same validity is secured
for a private contract, by having is publicly witnessed, and, the
next one is but one application of this principle. In testamentary law it
seems probable that the public will in a “comitiis calatis” is also
formless, whereas, in private, the testator may only give effect to his
will by formally saying to his fellow-citizens “testimonium, mihi
perhibetote.” Thus the two elements which turned a bare agreement into a
contract are religion and publicity. The naked agreement (pactum) need
not concern the philosopher, since, its validity as a contract never
receives complete recognition. But it will be the object of the following
consideration to show how the agreement GROWS into a contract by being invested
with a religious or public dignity, and to trace the subsequent
process by which this outward clothing is slowly cast off.
Formalism is the only means by which contract rises to an established
position. But when that position is fully attained we shall find that contract
discarding the form, and returning to the state of the bare agreement
from which it springs. “Iusiiurandum” is derived by some from “louisiurandum,”
which merely indicates that Jupiter or Giove – the root, Aryan, is that of
‘dius,’ as in ‘diuspiter,’ or ‘dius-pater’ – is the god by whom Romans swear.
To make an oath is to call upon some god to witness the integrity of the
swearer, and to punish him if he swerves from it. This appears from
the wording of the oath in Livio where Scipione says: -- Si sciens falio,
turn me, luppiter optime maxime, domum familiam remque meam pessimo leto
afficias” – It also appears from the oath upon the luppiter lapis given
by Polibio and Paolo Diacono, where a man throws down a flint and
says – “Si sciens folio, turn me Dispiter saliia urbe arceque bonis
eiiciat, uti ego hunc lapidem." A promise accompanied by an oath is
simply a UNI-LATERAL contract under religious sanction. An oath is in used
for the purpose of a contract. Cicerone remarks that the oath is proved
by the language of the XII Tables to have been in former times the most
binding form of promise (Off III. 31. 111). Since an th is morally
binding -- Of. Apul. de deo Socr. 5. = xxii. 53. -- in
the time of Cicerone, though it has then no LEGAL force, Cicerone’s implicature
is that, in earlier times, an oath is LEGALLY binding also. From
Dionisio we know that the altar of Ercole, the Ara Massima -- is the place at
which a solemn compact (“a-vvOrJKai”) ais made, while Plauto and
Cicerone inform us that such a compacts is solemnised by grasping the altar and
taking the oath. It would seem probable that a gods was consulted by the
taking of an auspice, *before* the oath is
made. Cicerone says that, even in a private affair, a Roman would take no
step without asking the advice of a god. And we may safely
conjecture that whenever a god was called upon to witness a solemn promie,
he was first enquired of, so that he might have the option of refusing
his assent by giving an unfavourable auspice. The terms of the oath
were known as “concepta uerba” and they are strictly construed. “Periurium” does
not mean mere false swearing. “Periurium” means the breach of an oath, the
commission of an act at variance with these “verba concepta”. There is
some dispute as to what are the exact consequences of such a breach.
Voigt thinks that “periurium” merely entails an excommunication from a religious
rite. Danz is clearly right in maintaining that its consequences are far more serious -- 1 Dion. 1. 40. 2
piaut. Rud. 5. 2. 49; Cic. Flace. 36. 90. 3; Biv. 1. 16. 28.; Seru.
ad Aen. 12. 13. " i.e. sciens fallere; Plin. Paneg.d'i.; Seneca,
Ben. iii. 37. 4. 8; Off. III. 29. 108; lus Nat. in. 229. 8 j{g„i. (j_ „_
g 149. -- A breach amounts in fact to complete outlawry. Cicerone says
that the “sacratae leges” of the ancients confirm the validity of an oaths. Now,
a “sacrata lex” is one which declares the transgressor to be “sacer” --
i. e., a victim devoted -- to some particular god, and “sacer” in the so-called
laws of Seruius Tullius and in The XII Tables is *the* epithet of condemnation
applied to the undutiful child and the unrighteous patron. So likewise it
seems highly probable that the breaker of an oath becomes “sacer.” His
punishment, as Cicerone implicates, is death. The formula of an oath given
by Polibio is more comprehensive than that given by Paolo Diacono, for,
in it, the swearer prays that, if should he transgress, he may forfeit
not only the religious but also the civil rights of his Roman
countrymen. The oath-breaker is an utter outcast. As a gods could not
always execute vengeance in person, what the god does is to withdraw his
protection from the offender and leave him to the punishment of his Roman
fellow-men. – H. P. Grice adds: “The drawback to this old Roman method of
contract, as formulated by Polybius, is the same as that of the Law of my
country, England, which makes hanging the penalty for a slight theft. The
hanging penalty is out of all proportion to the injury inflicted by
a breach of the promise. So awful indeed was it, that no promise of an
ordinary kind could well be given in such a dangerous form, and
consequently the oath was not available for the -- 1 Festus, p.
318, s.u. sacratae. - Fest. p. 230, s.u. plorare. » Seru. ad Aen.
6. 609; Leg. ii. 9. 22. ^ ni. 25. 5 p. 114, s.u. lapideni. ' Liu.
v. 11. 16. -- common affairs
of daily life. The use of the oath therefore disappears with the rise of
other forms of binding agreement, the severity of whose remedies is
PROPORTIONATE to the right which has been violated. At the same time, the
breaking of an oath comes to be considered as a merely *moral*,
instead of a strictly *legal*, offence. By the end of the Republic, an
oath entails nothing more serious than disgrace – “dedecus” – “or disgrice, as
I prefer to spell it.” In one instance only does the *legal* force of the
oath survives. As late as the days of Justinian, the service due to a
patron by his freedman are still promised under oath. But the penalty for
the neglect of such a service changes with the development of the
law. Before the time of The XII Tables, a former slave who neglects
his former patron, like the patron who injures his former slave, are
no doubt “sacer”. The former slave is an outlaw fleeing for his life, as
we are told by Dionisio. But in later times the heavy religious penalty disappears,
and the “iurisiurandi obligatio” is enforced by a special praetorian action:
the “actio operarum.” By the time of Ulpian, the effects of the “iurata
operarum promissio” seem indeed to have been identical with those of the “operarum
stipulatio”, though the forms of the two are still quite distinct.
We may now summarise this primitive mode of contract. The contract
was a verbal declaration, on the part of the promisor, couched in a
solemn and carefully -- 138 Dig. 1. 7. = Seru. ad Aen. 6. 609. s n,
iq. * 38 Big. 1. 2 and 7. = of. 33 Dig, 1. 10. -- worded
formula, the “concepta uerba”, wherein he called upon a god (testari deos),
to behold his good faith and to punish him for a breach of it. The
sanction is the withdrawal of the protection by the god. The delinquent is then
exposed to death at the hand of any man who chooses to slay him.
The mode of release, if any, does not appear. In classical times it was
the acceptilatio, but this was clearly anomalous and resulted from the
similar juristic treatment of operae promissae and operae
iuratae. Now, though the point has been contested by high
authority, it scarcely admits of a doubt that there exists from very
early times *another* form, known as a “sponsio”, by which an agreements may
be made still under religious sanction. This method, as Danz points out, is
originally connected with a mere oath. The “sponsio” is derived from a stern
and solemn compact made under an oath to a god. Danz goes perhaps too far
when he identifies the two. “Sponsio” is, for Danz, just another name
for a sworn promise. The stages through which the “sponsio” pass tell
a different story. The word “sponsio” is closely connected with “(Tirovhrj,
a-rrevSeiv” – and, hence, a “sponsio” is literally, a pouring out of wine,
quite distinct from the convivial Xot^T) or “libatio”. A different derivation is
given by -- 138 Dig. 1. 7, fr. 3. Plaut. Rud. 5. 2. 52. 5 46
Dig. 4. 13. Danz, Sacr. Schutz, 5 Featus-p. 329 s.u. spondere. Leist, Greco-It.
B. G. p. 464, note o. -- Varrone’s and Verrius’s from “spons”, the
will, whence, according to Girtanner, a “sponsio” was a declaration of the
will (“I will,” not “I shall”), savours somewhat too strongly of classical
etymology. A pouring out of wine, as Leist shows, is a constant accompaniment
to the conclusion of a sworn compact of alliance (opKia iriaTo). This
sacrificial wine adds force to the oath. The wine is a symbol of the blood
which *would* be spilt if a god *were to be* insulted by a breach of
the oath made during this wine-pouring ceremony. In this then its original form,
a “sponsio” is nothing more than an accessory piece of ceremonial. A second
stage was brought about by the *omission* of the oath AND the use of
wine-pouring *alone* as the principal ceremony. This made a less important
agreement of a private nature. (An Indian friend of mine tells me that, in
the Indian Kama-Sutra, a sacrifice of wine is customary at
betrothals -- and comparison shows that the marriage ceremonies of the
Romans, in connection with which we find “sponsio” and “sponsalia”
applied to the betrothal and “sponsa” to the bride, are very like
those of other Aryan communities. We
may therefore clearly infer that at Rome also there was a time when
the pouring out of wine is a part of the marriage-contract. Thus, the
derivation of the “sponsio” from ‘wine-pouring’ receives independent
confirmation. In a third and last stage, a “sponsio” came to mean --
^ Lingua Latina VI. 7. 69. Festus, s. u. spotidere. ' Stip. p. 84. Greco-It.
B. G. § 60. = Leist, Alt-Ar. I. Civ. p. 443. Gell. IV. 4. Varro, Lingua Latina
vi. 7. 70. Leist, loc. cit. –-- nothing more than a promise. It is easy
to see how this came about. At first, the promise takes its name from the explicit
ceremony of wine-pouring which gives to it binding force. In course
of time, this name-giving crucial wine-pouring ceremony is left out, as what H.
P. Grice calls, a “taken for granted.” The promise alone, provided
words of style are correctly used, retains its old use and its old name. From
being a ceremonial act, “sponsio” becomes a form of words. Such is
the final stage of its development. The importance attached to the
use of the words in the conversational dyad -- A: Spondesne? -- B: Spondeo.
-- in preference to all others'
thus becomes clear. The conversational dyad: A: Spondesne? – B: Spondeo. –
means: -- A: Do you promise by the sacrifice of wine? – B: I do so
promise. -- Just as one says, "I GIVE you my oath," when we do
not even *dream* of actually *TAKING* one! Another peculiarity of
sponsio, noticed though not explained by Gaius – HI. 93 m. 94 --, is the
fact that it is used in one exceptional case to make a binding agreement
between a Romans and a NON-Roman aliens, scil., at the conclusion of a
treaty. Gaius expresses surprise at this exception. But if, as above
stated, a sacrifice of pure wine ((nrovBal aKprjToi) is one of the early
formalities of an international compact (opKia iria-Ta), it is natural
that the expression “spo'ndeo” survives on such occasions, even after the
oath and the wine-pouring had long vanished. “Sponsio” being then a
religious act and subsequently a religious formula, its sanctity is
doubtless protected by a pontiff with a suitable penalty. What the
penalty was we cannot hope to know, though clearly they are the
forerunners of the penal “sponsio tertiae partis” of the later
procedure. Varrone informs us that, besides being used at a betrothal, a “sponsio”
may also be employed in a money (“pecunia”) transaction. If “pecunia”
includes *more* than money, we may well suppose that cattle and other
forms of property, which could be designated by number are capable of
being promised in this manner. Indeed it is by no means unlikely that negotium
was at one time the proper form for a loan of money by *weight*, while “sponsio”
is the proper form for a loan of coined money -- “pecunia numerata.”
The making of a “sponsio” for a sum of money is at all events the
distinguishing feature of the “actio per sponsionem”, and though we
cannot now enter upon the disputed history of that action, its
antiquity will hardly be denied. The account here given of the origin and
early history of the “sponsio” is so different from the views taken
by many excellent authorities that we must examine their theories in
order to see why they appear untenable. One great class of
commentators have held that the “sponsio” is NOT a primitive institution,
but was introduced at a date subsequeat to The XII Tables. The adherents of
this theory are afraid of admitting the existence, at so early a period,
of a form of contract so convenient and flexible as the “sponsio”, and
they also attach great weight to the fact that no mention of “sponsio” occurs
in The XII Tables! While it would doubtless be an anachronism to ascribe
to the early -- 1 Lingua Latina VI. 7. 70. 2 Karsten, Stip. p. 42.
– “sponsio” the actionability and breadth of scope which it
had in later times, still it may very well have been sanctioned by
religious law, in ways of which nothing can be known unless the pontifical
Commentaries of Papirius' should some day be discovered! As to the silence of The
XII Tables on this subject, we are told by Pomponius that they were
intended to define and, more importantly, REFORM the law rather than to
serve as a comprehensive code. Therefore they may well have passed over a
subject like “sponsio” which is regulated by the priest. Or, if The XII Tables
did mention it, their provisions on the subject may have been lost, like
the provisions as to “iusiurandun”, of which we know only through a
casual remark of Cicerone’s. The early date here attributed to the “sponsio”
cannot therefore be disproved by any such negative evidence. Let us see
how the case stands with regard to the question of origin. The
theory best known at Oxford, owing to its support by Maine, is that “sponsio”
is a simplified form of a “nexum”, in which the ceremonial falls
away and the “nuncupatio” is left. Maine’s explanation is so utterly
obsolete that it is not worth refuting, especially since Hunter's rebuttal
of it. One fact which in itself is utterly fatal to such Maine’s theory
is that the “nuncupatio” is an assertion requiring no reply – or ‘the
securing of perlocutionary uptake,’ in the words of J. L. Austin --
1 Dion. III. 3(5. ^ 1 Dig- 2. 2. 4. 3 Off. m. 31. 111.
Maine, Anc. Law, p. 326. Hunter, Bovian Law, . " Gai. ii. 24.
B. E. 2 -- whereas the *essential* thing about the “sponsio”
is that of a question coupled with an answer that implicates the co-conversationalist’s
implication in the matter via uptake – cf. betting. Voigt follows Girtanner in
maintaining that “spondere” signifies "to declare one's will,” – as in
“I will,” not “I shall” -- and he vaguely ascribes the use of “sponsiones”
in the making of agreements to an ancient custom existing at Rome
as well as, more generally, ‘somewhere in Latium.’ Girtanner agrees with
the view here expressed that a “sponsio” was known prior to The XII
Tables, but thinks that before The XII Tables, the “sponsio” was neither
a contract (strictly true if by contract we mean an agreement
enforceable by action), nor an act in the law, and that its use as a
contract began later as a result of Latin influenced. In another place,
Girtanner expresses the opinion that the introduction of the “sponsio” as a
contract is due to legislation -- most probably to the “Lex Silia.” The
objections to this view are, first, that his – indeed Varrone’s -- etymology is
wrong, and, second, that the inference drawn as to the original ‘signification’
of “spondere” involves us in rather serious difficulties. An expression of
the will can be made by a ‘formless,’ as Dummett calls it, declaration as
well as by a formal one. And if a *formless* agreement be a “sponsio”, as
it must be if a “sponsio” refers to *any* declaration of the will,
how are we to explain the *formal* or ceremonial importance, attaching to the
use of the particular words in what Grice calls the primeval conversational
dyad: A: Spondesne? – B: Spondeo. This view ignores the religious nature
of the “sponsio”, which I have endeavoured to establish, and it forgets
that a “sponsio,” being part of the marriage ceremonial, one of the first
subjects -- 1 Bom. EG. 1. p. 42. ' lb. p. 43. 3 lus
Nat. §§ 33-4. -- to be regulated by the laws of Romulus after he
married Ercilia (later a goddess, according to Ovid) is most probably one of the oldest Roman
institutions, instituted by Romulus – (It’s different with Henry VIII marrying
Anna Boleyn --. Again, as Esmarch observes the legislative origin
of a “sponsio” is a very rash hypothesis. We only know that the “Lex
Silia” introduces an improved procedure for matters which are already
actionable, and has a new formal contract been created by such a
definite act, we should almost certainly have been informed of this by,
say, Cicero! Danz, who also (wrongly) derives “sponsion” from spans,
the will; takes “spondere” to mean “sua sponte iurare,” and thinks
that a “sponsio” is exactly the same as a “iusiurandum,” i.e. nothing
more than an oath of any kind! Danz’s chief argument for this view is to
be found in Paolo Diacono, who gives “con-sponsor” = “coniurator.” But
why need we suppose that Paulus meant more than to give a synonym ?
in which case it by no means follows that spondere = iurare. For such a
statement as that we have absolutely no authority. Moreover, as we
saw above, “iusiurandum” is a *one-sided* (first-person singular)
declaration on the part of the promisor only. How, then, could the “sponsio”,
consisting, as it does, of a question and its answer, have sprung from
such a source? Especially since the “iusiurandum”, though no longer armed
with a legal sanction, is still used as late as the days of Plauto alongside
of the “sponsio” and in complete contrast to it? Girtanner, in his
reply to the "Sacrale Schutz" of Danz, maintains that “sponsio”
has nothing -- 1 Dion. n. 25. ^ ^. y_ far q. u. R. W. ii. 516.
^ Sacr. Schutz, p. 149. *' Ueber die Sponsio, p. 4 ft.
2—2 -- to do with an oath, but that it was is a simple
declaration of the individual will, and that “stipulatio” has its
origin in the respect paid to “fides.” This view however is even *less*
supported by evidence than Danz's. Arguing again from analogy, Girtanner
thinks that, as the Roman people regulated its affairs by expressing its
will publicly in the comitia, we may conjecture that a Roman individual
could validly express his will in a private affairs -- in other
words could make a binding sponsio. But this, as well as being a
wrong analogy, is a misapprehension of a leading principle of law. For,
as we have seen, no agreement resting simply upon the will of the
parties (i.e. pactun) is valid without some outward stamp being affixed
to it, in the shape of approval expressed by a god – notably Giove -- or
by the people. In more modem language, we may say that such
approval, tacit or explicit, religious or secular, is the original “causa
civilis” which distinguishes a “contractus” from, not a “pactum,” but a “pactio.”
Now, a popular vote in the comitia bears the stamp of public
approval as plainly as did the “nexum”. But a “sponsio”, requiring no witness, is
clearly NOT endorsed by the Roman people. The endorsement which the “sponsio”
needs in order to become a “contractus iuris civilis” must have been of a
religious nature, and that such was the case appears plainly if we
admit that “sponsio” originates in a religious ceremonial such as H. P. Grice
describes: “Will you, won’t you?” “I shall!” To recapitulate the view here
given, we conclude that “sponsio” is, if it existed, a primordial
institution -- 1 See Windsoheid, K. Y. fiir G. u. R. W. i. 291. -- of
the Roman and Latin peoples, which grows into its later form through
three stages. The “sponsio” is originally a sacrifice of wine annexed to
a solemn compact of alliance or of peace made under an oath to a gods. It
next became a sacrifice used as an appeal to a god in a compacts not
jtnade under oath such as a betrothal. Just as iusiurandum for many
purposes is sufficient without the pouring out of wine, so for other
purposes sponsio came to be sufficient without the oath. Lastly it becomes
a rather empty verbal formula, expressed in language by which the utterer
*implicates* -- to use Grice’s wording -- the accompaniment of a
wine-sacrifice, but at the making of which no sacrifice is actually
performed – but “deemed” to be performed – as in the Kantian view that to will
is to act. In this final stage, which continued to the days of Justinian, its
form is a question, put by the promisee, and its AFFIRMATIVE answer, given
by the promisor, each using the verb spondere. A: Filiam mihi spondesne? –
B: Spondeo. – A: Centum dari spondes? – B: Spondeo. Throughout its history this
was a form which Roman citizens alone could use, in which fact we clearly
see religious exclusiveness and a further proof of religious origin. Why
they used question and answer rather than plain statement is a minor
point the origin of which no theory – except Grice’s -- has yet accounted
for (“In the beginning was the Dia-Logos.”). As Grice – following Collingwood –
in conversando intelligendo – notes, the recapitulation by the promisee is
obviously intended to secure the complete understanding by the promisor
of the exact nature of his promise. Its sanction in the early
period of which we are treating is doubtless imposed by the priest,
but owing to our almost complete ignorance of the pontifical law – the popes
were none of the narcissists we now know! -- we cannot tell what that
sanction is. Having examined the ways in which an
agreement could be made binding under religious sanction, let us see how
binding agreements could be made with the approval of the *community*, or
to use Cicerone’s favourite phrase, “Populus romanus”. There is reason to
believe that a secular – or communitarian (free from immunity) class of
contracts is less ancient than the religious class, because “nexum” and “mancipium”
or “municipium” were peculiar to the Romans, whereas traces of
iusiurandum and sponsio are found, as Leist dreams, in other Aryan
civilizations. There is no more disputed subject in the whole history of Roman law
than the origin and development of this one contract, termed the ‘nexum.’
Yet the facts are simple, and though we cannot be sure that every
detail is accurate, we have enough information to see clearly what the
transaction is like as a whole. We know that, as per the genus-species
diaresis – the “nexum” is a “negotium per aes et libram,” a weighing of
raw copper or other commodity measured by weight in the presence of
witnesses. That the commodity so weighed is a loan' ; and that default in the
re-payment of a loan thus made exposed the borrower to bondage and
savage punishment at the hands of the lender (Hence: “Neither a lender nor a
borrower be”). We know also that the “nexum” exists as a loan before The
XII Tables, for the “nexum” is mentioned in them as something quite
different from a “municipium,” or “manicipium.” To assert, as Bechmann does,
that since nexum included conveyance as -- 1 Alt Ar. I. Civ.
!•" Abt. pp. 435-443. 2 Gai. III. 173. 3 Mucins in Varro, L.
L. 7. 105. " Varro, L. L. vi. 5. 5 Clark, B. E. L. § 22.
-- well as loan "mancipiuvique " must therefore be
an interpolation into the text of the XII Tables -- is an arbitrary
and unnecessary conjecture. The etymology of both “nexum” *and* “mancipium”
shows that they were distinct conceptions. A “mancipium” entails the
transfer of “manus”, ownership. “Nexum” entails the making of a bond
(cf. nectere, to bind), the precise equivalent of “obligatio” in the
later law. It is true that both nexum and mancipium required the use of
copper and scales, to measure in one case the price, in the other
the amount of the loan. But this coincidence by no means proves that the
two transactions are identical. Today, a deed is used both for leases and
for conveyances of real property, yet that would be a strange argument to
prove that a lease and a conveyance are the same thing! Here
however we are met by a difficulty. If, as some hold, and as I have tried
to prove, we must regard mancipium as an institution of prehistoric
times distinct from the purely contractual nexum, how are we to
explain the fact that nexum is used by Cicerone as *equivalent* to
mancipium, or as a general term signifying, “omne quod per aes et libram
geritur,” whether a loan, a will, or a conveyance? Now first we must
notice the fact that nexum had at any rate not always been synonymous
with mancipium, for if it had been so, there could have been no doubt in
the minds of -- 1 Kauf, p. 130. ^ Mommsen, Hint. 1. 11. p. 162
n. 3 ad Fam. 7. 30; de Or. 3. 40; Top. 5. 28; Farad. 5. 1. 35.;
pro Mur. 2. * Boethius lib. 3 ad Top. 5. 28 ; Gallua Aelius
in Festus, s.u. nexum ; Manilius in Varro, L. L. 7. 105. 24 --
Scaeuola and Varrone that a “res nexa” is the same thing as a “res
mandpata.” This Scaeuola and Varrone both deny. We must also remember
that Mucins Scaeuola was the Papinian of his day. ManiUus, on the
other hand, struck perhaps by the likeness in form of the obsolete nexum
to other still existing iwgotia per aes et Ubram, seems to have made “nexum”
into a generic term for this whole class of transactions. In this, he was
followed by Gallus Aelius'. The wider meaning given by them to that
which was a technical term at the period of the XII Tables, apparently
became the received opinion – received by them! -- , partly for the very
reason that nexum no longer had an actual existence, partly because neon
liberatio, the old release of nexum, had been adopted by custom as
the proper form of release in matters which had nothing to do with the
original nexum, viz., in the release of judgment-debts and of
legacies per damnationem. One pecularity mentioned by Gaius in the release of
such a legacy seems altogether fatal to the theory that manucipium
was but a species of the genus nexum. Gaius says that “nexi liberatio”
could be used only for legacies of things measured by weight. Such things
were the sole objects of the true nexum, whereas “res manucipii”
included land and cattle. Therefore if manucipium were only a species of
nexum we should certainly find “nexi liberatio” applying to legacies of “res
mancipii”, but this, as Gaius shows, is not the case. The
view that nexum was the parent gestum per -- 1 Varro, L. L. vii.
105. ' Festus, p. 165, s. u. nexum. s Gai. III. 173-5.
® NBXVM DISTINCT FROM MANCIPIVM. 25 -- aes
et libram, and that mancipium is the name given later to one particular
form of nexum, is worth examining at some length, because it is
widely accepted, and because it fundamentally affects our opinion
concerning the early history of an important contract. Bechmann thinks it
more reasonable to suppose that “nexum” *narrowed* from a general to
a specific conception. But it is scarcely conceivable that nexum
should have had the vague generic meaning of “quodcumque per aes et
libram geritur” when it was still a living mode of contract, and the
technical meaning of “obligatio per aes et libram” when such a contractual form
no longer exists! What seems far more likely is that “nexum” has a
technical meaning -- until a nexum ceases to be practiced, subsequently to the
Lex Poetilia, and that its loose meaning – or ‘disimplicature,’ to use
Grice’s wording -- was introduced in the later Republic, partly to denote
the binding force of any contract, partly as a convenient expression for
any transaction per aes et libram. Even in Cicerone we find the “nexum” used
chiefly with a view to elegance of style, in places where “mandpatio”
would have been a clumsy expression and where there could be no doubt
as to Cicero’s meaning. But when he is writing *history*, Cicero
uses “nexum” in the sense it has, even if he concedes that that sense is
regarded by some as obsolete. 1 See Beohmann, Kauf, i. p. 130 ; Clark, E. R. L.
§ 22. 2 lb. p. 131. " Varro, I. c. — Pestus, s.u. nexum.
» Cf. ''nexu uenditi " in Ulpian, 12 Dig. 6. 26. 7. 5 Cio. de
Or. iii. 40. 159. 6 Har. Eesp. vii. 14; ad Fam. vii. 30. 2; Top. 5.
28. ' As in pro Mur. 2; Parad. v. 1. 35. 8 de Rep. 2. 34 and
cf. Liu. viii. 28. 1. Rejecting then as untenable the notion that
nexum denotes a variety of transactions, let us see how “nexum” originates.
The most obvious way of lending corn or copper or any other
ponderable commodity, was to weigh it out to the borrower, who
would naturally at the same time specify, by word of mouth, the terms on
which he accepted the loan. In order to make the transaction
binding, an obvious precaution would be to call in witnesses, or if
the transaction took place, as it most likely would, in the market-place,
the mere publicity of the loan would be enough. Thus it was that a nexum is
originally made. It was a *formless* agreement, necessarily accompanied
by the act of weighing, and made under public supervision in Rome’s
market place –the present Forum. The nexum deals only with commodities which may
be measured with a scale and a weight, and does not recognize the distinction
between res mancipi and res nee mancipi, — a strong argument that
nexum and mancipium are totally distinct affairs. The sanction of the
nexum lies in the acts of violence which the creditor might see fit to
commit against the debtor, if payment is not performed according to
the terms of his agreement. Personal violence is regulated by The XII Tables, in the
rules of “manus iniectio”. Before that time, it is safe to conjecture
that any form of retaliation against the person or property of the debtor
is freely allowed. The fixing of the number of witnesses at *five*
(why five?) which we find also in mancipium, is the only modification of
nexum that we know of prior to -- '
Gai. III. 174. Digitized b FUNCTION OF NEXAL WITNESSES. -- the XII
Tables. Bekker suggests that this change is one of the reforms of Servius
Tullius, and that the *five* witnesses, by representing the *five*
classes of the Servian census, personified the whole people – the Populus
Romaus – (the five classes were: the first class, the second class, the third
class, the fourth class, and the fifth class). This is a mere conjecture by
Bekker – and ultimately by Servius Tullius --, but a very plausible one! For we
are told, by Dionysius, that Servius made *fifty* enactments on the
subject of contracts and crimes, and in another passage of the same author,
we find an analogous case of a law which forbade the exposure of a child
except with the approval of *five* witnesses – one of each class, although
usually five first-class citizens did! --. But here a question has been raised
as to what the witnesses did, other than just BE there. The correct
answer, I believe, is that given by Bechmann, who maintains that
the five witnesses approved the transaction as a whole, and vouched for
its being properly and fairly performed. Huschke, on the other hand,
claims that the function of the five witnesses is to superintend
the weighing of the copper, and that before the introduction of coined
money some such public supervision is necessary in order to convert the
raw copper into a lawful medium of exchange. This view is part of
Huschke's theory, that nexum had two marked peculiarities. A nexum is a
legal act performed under public authority, and it was the recognised
mode of measuring out copper money by weight. The first part
of Huschke's theory may be accepted without reserve. The second part
seems quite untenable. We have no evidence to show that nexum was
confined to loans of money or of -- 1 Akt. I. 22 ff. 2 jy_ IS -J
jj. 15. * Kauf, I. p. 90. ^ Nex-um, p. 16 ff. -- copper.
Indeed we gather from a passage of Cicerone that corn is the earliest
object of nexum, while Gains states that anything measurable by
weight could be dealt with by nexi solutio. No inference in favour of
Huschke's theory can be drawn from the phrase “negotium per aes et lihram”,
for the phrase obviously dates from the more recent times when the
ceremony had only a formal significance, and when the aes rauduscidum is merely
struck against the scales. If then we reject the second part of Huschke's
theory, and admit, as , we certainly should, that nexum may deal with
any ponderable commodity, it is evident that his whole view as to
the function of the witnesses must collapse also. The reason is obviuous: the
very *idea* of turning copper from a merchandise into a legal tender is
obviously too sophisticated to have ever occurred to the mind of an early
Roman. As Bechmann rightly remarks,
the original object of the Roman state in *making* or minting coin
was not to create an authorised medium of exchange, but simply to
warrant the weight and fineness of the medium most generally used. The
view of Huschke is therefore a total anachronism. There is also
another interpretation of nexum radically different from the one here
advocated, and formerly given by some authorities at Oxford (they tell me)
but which has few if any supporters among modern jurists of the H. L. A.
Hart school, as I might call it. This view was founded upon a loosely
expressed and usually casual remark of Varrone – the grossest etymologist
Rome knew -- in which nexus is defined as -- 1 Cio. de Leg. Agr. ii.
30. 83. ^ in. 175. » Xauf, i. p. 87. * See Sell, Soheurl, Niebuhr,
Christiansen, Puohta, quoted in Danz, BSm. RG. ii. 25. -- a Roman
who gives *himself* into slavery for a debt which he owes (think indenture
by the Irish in New England). The inference drawn from this remark is that
the debtor's body, not the creditor's money, is the object of the nexvm,
and that a debtor who is selling himself by mancipium as a pledge for
the repayment of a loan is said to make a nexum. Such a theory does not
however harmonize with the facts, or indeed, with Roman dignity! The
evidence is entirely opposed to it, for Varrone’s statement admits
of quite a different implicature! Neither “nexum” nor Tnan- cipium
is ever found practised by a Roman upon his body! Nor *could* “nexum”
have applied to the debtor's body, for the idea of treating a debtor like
a res mmicipi or like a thing quod pundere numero C07istat, is absurd.
Again, if nexm = mancipium, the conveyance of the debtor's body as a
pledge must take effect as soon as the money is lent, therefore, by
thus becoming “nexus,” – not ‘nexum’ – the Roman must have been in
mancipio long before a default could occur, which is too strange to be
believed. Furthermore, being in mancipio, the Roman must have been capita
deminutus^, which Quintilian expressly states that no nexal debtor
ever is! Clearly then, mancipium was under no circumstances a factor in
nexum,. Thus it would seem that the theory which regards
nexum as a loan of raw copper or other goods measurable by weight, is the
one beset with fewest difficulties. Such goods correspond pretty
nearly to what in the later law were called “res fungihiles”. -- 1
Varro, L. L. vii. 105 and see page 52. 2 nexum inire, Liu. vii. 19.
5. " Paul. Diao. p. 70, s. u. deminutus. * Decl. 311. --.
The borrower was not required to return the very same thing, but an equal
quantity of the same kind of thing. And this explains why nexum, the
first genuine contract amongst the Romans, should have received such
ample protection. A tool – such as a hammer --, or a beast of burden –
such as an ox -- could be lent with but little risk. Both the hammer and the ox
are easily identified. A loan of *corn* -- or, at a later stage, as Cicerone
suggests -- or *copper* -- would have
been attended with very great risk, had not the law been careful to ensure
the publicity of every such transaction. lusiurandum or sponsio
might no doubt have been used for making loans, but they both lacked the
great advantage of accurate measurement, which nexum owes to its
public character. It is the presence of the five witnesses – one for each
of the five social classes -- which raised nexum from a formless loan
into a contract of loan. This sketch of the original nexum is all
that can be given with certainty. The *details* of the picture cannot be filled in, unless, as
Grice does, we draw upon our
imagination. We do not know what verbal (or conversational, if two-part)
agreement (if any) passed between the borrower and the lender. It is
fairly certain that payment of *interest* on the loan might be made a
part of the contract, and not just because of the Jewish influence! We
cannot even be quite sure whether the scale-holder (“libripens”) is an
official, or a passer-by, as some have suggested, or a mere assistant.
Our description of the contract may then be briefly recapitulated
as follows: The form of the nexum consists of the weighing out
and delivery to the borrower of goods measurable by weight, in the
presence of witnesses -- five in number, since the time of Seruius Tullius,
who found out that by census, five were the classes of the Roman people), and whose
attendance ensures the proper performance of the ceremony. The total ownership
of the particular goods passes to the borrower, who is bound to
return an equal quantity of the same kind of goods. The specific terms of each
contract – e. g. “before too long” -- were approximately fixed by a
verbal agreement uttered at the time, at the market place. The sanction
consists of the violent measures which the creditor might choose to take
against a defaulting debtor. Before The XII Tables there seems to
have been no limit to the creditor's power of punishment – “The rope by
default,” as Grice puts it. Any violence against the debtor was approved
by custom and justified by the notoriety of the transaction, so that “self-help”
– or “help me God,” in Grice’s version -- is more easily exercised and probably more
severe in the case of “nexum” than in that of any other agreement.
The release (neooi solutio) is a ceremony preisely similar to that of the
nexum itself, the amount of the loan being weighed and delivered to the
lender, in presence of witnesses – possibly with the addition of the exchange:
“Thank you” “You are very welcome”. We have now examined the three
methods by which a binding promise was made in the earliest period
of Roman history. The next question which confronts us is whether there
existed at that time any *other* method. The forms of contract,
besides these three described – the pactum, the sponsio, and the nexum --,
which are found existing at the later period of The XII Tables, are:
fiducia, lex mancipi, uadimoniv/m, and dotis dictio. Did any of these
have their origin before this time? “Fiducia” is doubtful. “Lex mancipi” owed
its existence to an important provision -- 1 Gai. III. 174. -- of
that code. As to the origin of “vadimonium,” we cannot fee certain, but
judging from a passage in our ever trusted Gellius we are almost forced
to the conclusion that “uadimonium” was *also* a creation of The XII Tables.
Specifically, Gellius speaks of " uades et subuades et XXV asses et
taliones...omnisque ilia XII Tabularum antiquitas." We know that (exactly)
XXV asses is the fine imposed by The XII Tables for cutting down a
Roman’s tree. Therefore, it would seem from the context that uades had
also been introduced by that code. The point cannot be settled, but the
XII Tables were at any rate the first enactments on the subject of which
anything is known. The only contract of which the remote antiquity is
beyond dispute is the so-called “dotis diction”. Dionysius informs
us that, in the earliest times – “I wasn’t there!” --, a dowry was given with daughters on their
marriage, and that, if the father could not afford this expense, his
client is bound to contribute. Hence, it is clear not only that dos
existed from very early times, but that custom even in remote antiquity
had fenced it about with strict rules. From Ulpian we know that dos could
be bestowed in three ways: by “dotis dictio”, by “dotis promissio”, or,
finally, by “dotis datio”. The promissio was a promise by stipulation, and the
datio was the transfer by mancipation or tradition of the property
constituting the dowry. These two are then easy to understand, even by the one
who was marrying! But this “dotis diction” *is* an obscure subject. It is
difficult to know whence it acquired its binding force as a contract, --
1 xTi. 10. 8. 2 II. 10. 3 Reg. vi. 1. – since, in form, it was *unlike*
all other contracts with which we are acquainted. Its antiquity is
evidenced not only by this peculiarity of form, but also by a passage in
the Theodosian Code which speaks of dotis dictio as conforming with the
ancient law. An illustration occurs in Terence where the father
says, "Dos, Pamphile, est decern talenta.” Pamphilus, the would-be son-in-law,
replies, "Accipio.” But we need not conclude that the transaction is
*always* formal, for the Theodosian Code, in permitting the use of any
form, seems rather to be restating the old law than making a new
enactment. A further peculiarity, stated by Ulpian and by Gaius is that dotis
dictio may be validly used only by the bride, by her father or cognates
on the father's side, or by a debtor of the bride acting with her
authority. “Dictio” is a significant word, for Ulpian distinguishes
between dictum and promissum. “Dictum,” Ulpian says, is a mere statement. “Promissum”
a binding promise. This distinction doubtless applies in the present case,
since “dotis dictio” and dotis promissio are clearly different. The
following theories seem to be erroneous. Von Meykow holds that dictio is
adopted as a form of promise instead of sponsio for this family affair
of dos, in order not to hurt the feelings of the bride and of her kinsmen
by appearing to question their bona fides. That theory would be a
plausible explanation, if dictio could ever have meant a -- 1
C. Th. 3. 12. 3. 2 And. 5. 4. 48. ■' 3. 13. 4. * Reg. VI. 2. ^
Epit. ii. 9. 3. « 21 Dig. 1. 19. ' Diet. d. Rom. Brautg. p. 5
ff. B. E. 3 -- promise, but from what Ulpian
says, this can hardly be admitted. Bechmann again connects dotis dictio
with the ceremony of sponsio at the betrothal of a daughter. The
dos, Bechmann thinks, is promised by a sponsio made at the betrothal, so
that the peculiar form known as dotis dictio is originally nothing more
than the specification of a dowry already promised. The dotis
dictio would therefore have been at first merely a “pactum adiectam”, made
actionable in later times while still preserving its ancient form.
The objection to this theory is that it lacks evidence. The only passage (this
sordid play by Terence) in which dotis dictio is presented to us with a
context goes to show that this contract is in no way connected with
the act of betrothal. Another explanation is given by Czylharz, that dotis
diction is a formal contract. Czyllharz’s view is based on the scholia attached
to the passage of Terence, which say of the bridegroom's answer that
the bridegroom, “ille nisi diodsset ' accipio ' dos non esset."
Czylharz therefore looks upon the contract as an inverted stipulation.
The *offer* of a promise *is* made by the promisor. When *accepted* by
the promisee (via uptake), this offer becomes a contract. Though such a
process is quite in harmony with the notion of a contract, it would
have been a complete anomaly at Rome. We cannot believe that, if
acceptance, or uptake, by the promisee, had been a necessary part of the
dotis dictio, we should not have been so informed by Gaius, when he
has been so careful to impress -- 1 ESm. Dotalrecht. 2 Abt. p. 103. 2 Z. f. B.
G. vn. 243. -- upon us that the dotis dictio could be made “nulla
interrogatione praecedente”. Thus the view of Czylharz besides being in
itself improbable is almost entirely unsupported by evidence. The scholiast
on Terence need not *mean* that "accipio" is an indispensable
part of the transaction, but a “prop.” The would-be son-in-lawy may merely have
meant (or implicated) that the bridegroom (his self) at this juncture might decline
the proffered dos if he so chooses – as being too low -- This
interpretation of the would-be son-in-law’s implicature is indeed the one borne
out by lulianus and Marcellus, who do give formulae of dotis dictio
*without* any words of acceptance or challenge by the would-be bridgegoom.
A satisfactory solution of the problem seems to have been found by
Danz. Danz looks upon dos as having been due from the father (or generally
male ascendant) of the bride as an officium, pietatis. Danz quotes
passages from Cicerone in which he speaks of refusing to dower a
sister or a daughter as a most shameful thing. (Cicerone had lost his
daughter by this time). The source of the obligation lies in this
relationship to the *bride* -- not in any binding effect of the
dotis dictio itself. But in order that the obligation might be
actionable its amount had to be fixed. This is just what the dictio
accomplishes. It is an acknowledgment of the debt which custom decrees
that the bride's family must pay to the bridegroom. In this respect the
dos is precisely analogous to the debt of service which a former slave
owes as an officium to patron, and which
he acknowledges by the “iurata operarum promissio”. The dos and the
operae were both “officia pietatis”, but -- 1 23 Dig. 3. 44. ^ 23
Dig. 3. 59. ' Rom. BG. 1. 163. ^ See 23 Dig. 3. 2. ' piaut. Trin.
3. 2. 63 ; Cic. Quint. 31. 98. .3—2 -- it became
customary to specify their nature and their quantity. In the one case, this was done by an oath; in the other, by
a simple declaration. In both cases, the law gives an action to protect an
anomalous forms of agreement. What kind of action may be brought on a
dotis dictio is not known. Voigt states it to have been an “actio
dictae dotis”, for which he even gives the Austinian performative formula -- but
formula and action are alike, alas, purely conjectural. We can only infer
that the dotis dictio was actionable since it constitutes a valid contract. How
or when this comes to pass we cannot tell. An advantage of
Danz' theory is that it explains the capacity of the *three* classes of
persons by whom alone dotis dictio could be performed. The father (or
male ascendant) of the bride is bound to provide a dos under
penalty of ignominia. The bride, if
sui iuris, is bound to contribute to the support of the husband's
household – ‘house-work,’ children feeding, cleaning, education -- for exactly the same reason. A debtor of
the bride is bound to carry out her orders with respect to her assets in
his possession. Supposing her whole fortune to have consisted of a debt due to
her, it is evident that a dotis dictio by the debtor is the only way
in which this fortune could be settled as a dos at all. Thus, the
hypothesis that the dos is a debt morally due from the father of the
bride, or from the bride herself, whenever a marriage takes place,
completely explains the curious limitation with -- 1 XII Taf. II. § 123. 2 24 Dig. 3. 1. 3
Cio. Top. i. 23. -- regard to the parties who could perform
dotis dictio. The nature of the transaction may then be summarized
as follows: its form is an oral declaration on the part of the bride's
father (or male cognates), the bride herself, and a debtor of the bride, that
sets forth the nature and amount of the property which he or she meant to
bestow as dowry, and spoken in the presence of the bridegroom. Land as
well as moveables could be settled in this manner. No particular
formula is necessary. The bridegroom might, if he liked, express himself
satisfied with the dos so specified. But his acceptance does not
seem to have been an essential feature of the proceeding. Most
probably, he did not have to speak at all – just run away! Its sanction does
not appear, though we may be sure that there was *some* action to compel
performance of the promise. This action, whatever it may have been, could
of course be brought by the bride's husband against the maker of the dotis
dictio. In the earliest times, the sanction, is possibly a purely
religious one. Now that we have seen the various ways in which a
binding contract could be made in the earliest period of Roman history,
we may consider briefly the general characteristics of that primitive
contractual system. The first striking point is that all every contract
hitherto mentioned is *unilateral*. The promisor alone is bound, and he is
not entitled, in virtue of the contract, to any counterperformance on the
part of the promisee. 1 Gai. Ep. 3. 9. A second point is that the *consent*
of the parties is not sufficient to bind them. Over and above that
consent, the agreement between them is required to bear the stamp of
divine or popular approval. Even in dotis dictio, as we have just
seen, a simple declaration uttered by the promisor is invested with the force of a contract merely
because the substance of that declaration is a transfer of property
approved and required by public opinion. We also notice that that the (Griceian)
*intention* of the each contracting party *is* expressed. However, the ‘utterance’
employed is not originally of any importance -- except in the one case of sponsion:
Spondesne? Spondeo -- provided the intention is, as Grice notes,
contextually clearly conveyed (cf. his remarks on ‘contextual cancellation’).
We must therefore modify the statement so commonly made that the
earliest known Roman contract is couched in a particular form of words.
For how did each of these particular forms originate and acquire the
shape in which we afterwards find it? By having long been used to
express an agreement which is binding though the type of utterance varies,
it gradually obtains a more technical significance. Consequently the formal
stage is definitely *not* the earliest stage of Contract. The most
primitive contract of all is not an agreement clothed with a form, but an agreement
clothed with the approval of the State – which includes its Religion. The
causes leading to the enactment of the great Reform Bill known as The XII
Tables are chiefly social. The indefinite state of the law of the Roman
state is the grievance which calls most loudly for a remedy. A contract and
a conveyance is but little respected. The powers of the nexal
creditor are sorely abused, and legal procedure in general is most
uncertain. Yet more than all else the law of torts and crimes need
radical reform. So that, though we possess but few actual fragments of The
XII Tables, we have enough to tell us that very little space is devoted
to reforms in the law of contract. This fact ought not to surprise
us, knowing as we do that commerce is still in a very backward
state. We hear nothing of any provision in The XII Tables
with respect to sponsio, but we know, from Cicero, that “iusiurandum” is
recognised and enforced. Dotis dictio is not mentioned. A new form, the
lex mancipi, -- 1 Off. HI, 31. 111.. -- was created by *one*
provision of this code, though its creation was not apparently intended
by the decemvirs, but was rather the result of some juristic
interpretation (or other). Vadimoniitm, a contract, is either created or
considerably modified by the XII Tables, and constitutes the earliest form of
suretyship. As the hard condition of nexal debtors is one of the
evils which leads most directly to the secession of the plebs and to the
consequent enactment of the new code, we should naturally expect to find this
or that law passed for their protection. Accordingly, it is with nexum
that the contractual clauses of the XII Tables are principally
concerned. The first provision as to the contract of the nexum is embodied
in the famous words which Festus transmits to us: CVM nexym
FACIET MANCIPIVMQVE VTI LINGVA NVNCVPASSIT ITA ivs ESTO. This
was equivalent to saying that the language used by the party making a
nexum is to be strictly followed in determining what his rights and
liabilities should be. The fact that such a declaratory law is needed
discloses two features of the earlier nexum. The *act* of weighing, not
the words which accompanied that act, is the essence of the
original transaction. A scale was actually used -- and not symbolically
as it was in later days. The *terms* of a nexal loan are liable to be
disobeyed; if, for instance, -- Festus, p. 171, s.u. nuncupata pecunia.
-- the debtor had agreed to pay at the end of one year, it
might happen that a harsh creditor would enforce payment at the end of six
months. This shows that people are not feared, as witness, to the same
extent as is a god who presides over usiurandum and sponsio. The fact of
the loan is proved beyond question by the witnesses present,. But there
is evidently no sacred virtue in the utterance which go with the loan,
and these are not therefore binding simply because uttered in the addressee’s
hearing. This defect is what the XII Tables aims at correcting. The
Tables thenceforth place the *utterance* of a nexum on as strong a
footing as the utterance of a sponsio. Conditions as to the amount of
interest payable, the date of maturity of the loan, the security to be
given by the debtor, are all now inserted in the nuncupatio. And still more important is
the fact that the sum or amount of the loan itself could be
verbally announced at the ceremony. If the debtor utters: "I
hereby receive, and am bound to repay, XXV asses," this utterance is as
binding upon him *as if* the XXV asses had been actually weighed out to
him in copper. As long as the corn or copper (money) *is* really
weighed in the scale, nexum continues to be a natural and material method
of loan. But when, by the introduction of coined money it becomes possible
to count, instead of weighing, a given quantity of copper, nexum tends to
become an “artificial” and symbolical operation. The reason is, obviously,
that counting is far more simple than weighing. When a loan of XXV asses is
being made. it became customary to name this sum in the nuncupatio *without*
weighing it at all. The scale and the witness appear, as before. But the
scale is not used. The borrower, instead of taking XXV asses out of the
scale-pan, simply strikes the scale pan with a piece of copper, so as to
conform with the outward semblance of the transaction. Though the
weighing had been dispensed with, yet, by this rule of The XII
Tables, he is as much bound in the sum of XXV asses as though they had
actually been weighed out to him. Hence the important effect of the
clause. Given a proper coinage that clause transformed the loan of money
into a datio imaginana and the release of such a loan into an
imaginana solutio. The outward form of nexum remains the same, but the
actual process is greatly simplified. This change is doubtless not
intended when the rule is made by the Decemvirs. It is the result of a
more or less unconscious and probably gradual development. The
genuine weighing and the fictitious weighing doubtless exist side by
side. But it seems fairly certain that the introduction of coined money is
another of the Decemviral reforms. If so, we may assume that the nexum
changed from a ceremony performed with a scale into one performed
with copper and scales -- “negotium per aes et libram” -- not long
after the Decemviral legislation. Another important provision relating
to nexum modified the harsh remedy hitherto applied by the creditor
against the delinquent debtor. -- 1 Mommsen, Som. Munzw. p. 175. --
The words of the XII Tables have been fortunately preserved by Gellius', and
run as follows. AERIS CONFESSI REBVSQVE IVRE IVDICATIS XXX DIES IVSTI
SVNTO. POST DEINDE MANVS INIEGTIO ESTO. IN IVS DVCITO. NI IVDICATVM FACIT
AVT QVIS ENDO EO IN IVRE VINDICIT SECVM DVCITO VINCITO AVT NERVO
AVT COMPEDIBVS XV PONDO NE MINORE AVT SI VOLET MAIORE VINCITO. SI VOLET
SVO VIVITO. NI SVO VIVIT QVI EVM VINCTVM HABEBIT LIBRAS FARRIS ENDO
DIES DATO. SI VOLET PLVS DATO. There are two knotty points in this passage
cited by Gellius. What is the exact distinction between an acknowledged money
debt – “aes confessum” -- and a judgment obtained by regular process of Law – “res
iure iudicatae”? To what class of delinquents did the punishment
apply? It can hardly be doubted that “aes confessum” includes a debt contracted by a nexum,
as well as any other kind of debt the existence of which is not
denied by the debtor. E. g.: a debt incurred by formless agreement or by
sponsio may be an instance of “aes confessum”, provided the debtor
admitted his liability. But in a nexum this liability had already been
admitted solemnly and in front of a witness. To *deny* the existence of
a nexal debt is impossible, even for Descartes! Therefore, “aes confessum”
seems to be a term quite applicable to a debt contracted by a nexum. The
words “aeris nexi” are probably not used in the context because “aeris
confessi” has a wider meaning, and this law -- 1 XX. 1. 43. ^
Ihering, G. d. R. B. i. 156, note. -- is apparently intended to cover much
more than the one case of nexal indebtedness. The other class of
debts here described as “res iure iudicatae” are no doubt judgment-debts.
Where damages had been judicially awarded to one of the parties to an
action, some means have to be provided of compelling payment from the
other party. The executive in those times was too weak to enforce its
decisions, and self-help, as we have seen, is the usual resource of an aggrieved
Roman. The only way in which the law could assist judgment
creditors is by declaring what extent of retaliation they might lawfully take.
And this brings us to the second question. In what cases is the “manus
iniectio” to be exercised ? Voigt remarks that The XII Tables never
mention “manus iniectio” as being a means of punishing default in a case
of nexum. Voigt then proceeds to state that the remedy for nexum
was an “actio pecuniae nuncupatae”. Not only is this statement purely
fanciful, as there is no mention of “actio pecimiae nuncupatae” in any
of our authorities, but Voigt is surely ignored the evidence before
him. Admitting, as we must, that “nexum” is included among the cases named
at the beginning of the clause, we can scarcely avoid the further
conclusion long ago reached by Huschke that the rest of the clause, with
its XXX days of grace, manus iniectio, ductio in ius, and all the
consequences of disregarding the iudicatum, is a description of the
punishment to which a breach of --1 XII Taf, I. 169. --
nexum might lead, as well as of that annexed to the other kinds of “aes
confessum” and to “res iure iudicatae.” The whole clause is one continuous
statement, and to hold that the latter part of it, beginning at Ni
IVDICATVM FACIT, provides a penalty solely for the case of
judgment-debts, seems a very strained and unnatural interpretation. Why explain
“iudicatum” as referring only to judgment indebtedness ? Just before it, in
the text, we find the direction “IN ivs DVCITO”, so that a nexal
debtor after “manus iniectio” evidently had to be brought into
court. The precaution is probably a new restraint upon the violence of
creditors, in order that the justice of their claims and the propriety
of “manus iniectio” might be judicially determined. But, if a judge had
to pronounce upon the validity of such proceedings, surely his decree
might be described by the term “iudicatum”, as found in the above
passage. It involves a vicious circle to say that the nature of “aes
confessum” precludes the possibility of a judicial decision, and that
therefore “iudicatum” can only refer to a res “iure iudicata”, that is,
a judgment-debt. For in spite of this alleged distinction, we find here
that debtors of” aes confessum” and judgment-debtors were treated in exactly
the same way! Each of them is at first seized by his creditor and
brought into court. Now why should this have been necessary in the case
of a “iudicatus” more than in that of a “nexus”? For a judgment debt
seems to need judicial recognition just as little as a nexal debt. And
yet we find that “ductio in ius” is prescribed in both cases. The only non-circular
way of explaining the difficulty, is to take “iudicatum” not as applying to a
judgment-debt but, as being of the essence of a judicial decree. Let the creditor, the
Tables say, bring the debtor into court. Unless the debtor obeys the
decree of the court, or finds meanwhile a champion of his cause in the
court, let the creditor lead him off into private custody, and
fetter him. Thus the “ductio in ius”, the “iudicatum”, the “domum ductio”,
and the directions as to the right kind of fetters and the proper
quantity of food, must all have applied equally to “aes confessum,” including
“nexum,” and to “res iure iudicatae”. This view is confirmed by the
passage in which Livio describes the abolition of the severe
penalties of a nexum,. The bill by which this is done ordained, so Livio
tells us, " nequis, nisi qui noxam meruisset, donee poenam lueret,
in convpedibus aut in neruo teneretur … ita nexi soluti, cautumque in posteru/m
ne necterentur." This law, the “Lex Poetilia”, is evidently passed
for the relief of “nexi”, and relief is given by abolishing the use of “compedes et
neruum”. Now as this is the very description of fetters given by the XII
Tables in our text, it seems certain that the language of the “Lex
Poetilia” referred to this clause of the Decemviral Code. Hence it
follows that the punishment provided by this code is nexum, which is the
view already deduced from the words of the XII Tables themselves. The
contrary interpretation, which is there- -- 1 PestuB, p. 376, s.u.
uindex. ^ viii. 28. -- fore probably erroneous, has strong
supporters in Muirhead and Voigt. But even though a “iudicatum” was thus
necessary in order to permit the nexal creditor to lead off his
debtor into custody, we may agree with Muirhead that the preliminary “manus
iniectio” is within the power of the nexal creditor without any judicial
proceedings. The nexum being a public transaction, a debt thereby
contracted is so notorious as to justify summary procedure. Before the
XII Tables, when self-help is subject to no regulations, this summary
procedure could be carried to all lengths in the way of severity
and cruelty. But, when the XII Tables interpo the “ductio in ius”
for the protection of nexal debtors, no other precaution against
injustice was needful, and a preliminary trial before the “manus iniectio”
would have been so superfluous that we cannot believe it to have ever
been required. The elaborate provisions for the punishment of
debtors do not end with the text which has come down to us and which has
been quoted above. The substance, though not the actual wording, of
the remainder of the law has been preserved by Gellius. As far as our
text goes, the proceedings consist of “manus iniectio,” the arrest
or seizure of the debtor by the creditor; “ductio in ius”, the bringing
of the debtor into court, that is, before the praetor or consid ; the “iudicatum,”
a decree of the praetor recognising the creditor's claim as just and the
proceedings as -- ' B. L. p. 158. ^ XII Taf. i. 629. ' xx. 1.
45-52. -- properly taken. At this stage a vindex may step in on the
debtor's behalf. What was the exact nature of his intervention we cannot
know, but from Festus's definition, he seems to have been a friend
of the debtor, who denies the justice of his arrest and stands up
in his defence. By the XII Tables, this vindex has to be “of the same [social]
class” as the debtor whom he defendes and if his assertions prove to be
false he is liable to a heavy fine. If, on the other hand, his defence is
satisfactory to the Court, further proceedings are doubtless stayed. But
if no satisfaction is given either by the vindex or by the debtor, the
creditor is entitled to lead home his debtor in bondage -- though not in
slavery -- and to bind him with cords or with shackles of not less than
15 lbs. weight. Meanwhile, the law assumes that the debtor would prefer to live
upon his own resources. This shows that a nexal debtor is not always a
bankrupt, and that it must often have been the *will*, if not the power, to
pay which is wanting in his case. As there exist in those days no means
of attaching a man's property, the only alternative was to attach his body!
If, however, the debtor is really a ruined man and can not afford to
support himself, the law bade the creditor to feed him on the barest diet,
by giving him a pound of corn a day -- or more at the creditor's
option. Here our textual information leaves off and we have to depend
on Gellius' account. Gellius says that this stage of domum duetto and uinctio
lasts LX days, and that during that period a com- -- ' Gell. XVI.
10. 5. 2 Festus, s. u. uindex. ' xx. 1. 46. -- promise might be arranged
which would stay further proceedings. Meanwhile on three successive “nundinae”,
or market-days, the debtor had to be brought into the comitiuni before
the praetor, and there the amount of his debt is publicly proclaimed.
This is a second precaution intended to protect the debtor by giving
thorough publicity to the whole affair. At last, on the third market-day,
and at the expiration of the LX days, the full measure of punishment was
meted out to the unfortunate delinquent. He was addictus by the praetor
to his creditor, and thus passed, from temporary detention, into permanent
slavery. The extreme penalty is said by Gellius to have been death,
and the words in which the former is enacted are given by him as
follows: Tertiis nvndinis partis secanto. Si PLVS MINVSVE SECVERVNT SE
FRAVDE ESTO. The meaning of Gellius’s utterance has been much disputed. Attempts
have been made to soften its explicature. “On the third market-day, let the
creditors cut up and divide the debtor's body. If any debtor should
cut more -- or less -- than his proper share, let the debtor not
suffer on that account." That this is how the ancients understood
the passage, we know from the testimony of Gellius, Quintilian, and
Tertullian. But Gellius and Dio Cassius, though they had no doubts as to
the meaning of the law, both say that -- 1 Gell. XX. 1. 51. ^ Inst.
or. iii. 6. 64. ^ Apol. 4. B. E. 4 -- this barbarous practice
of cutting a debtor in pieces was *never* carried out. The law is thus what
Grice calls “a dead letter”. Some commentators, whose views are ably
summed up by Muirhead, make the most of this admission, and hold that the
interpretation of the utterance-part, “partis secanto,” should be
entirely different. They regard the division of the debtor's body by
the creditor as too shocking a practice to have existed at Rome. Muirhead
assumes “secare” to refer -- as in a later phrase, “bonorwm section” -- to the division
(sectio) – and sale presumably -- of the debtor's property, not his body.
In the event of his property being insufficient to cover the debt, the
debtor is, then -- as Gellius informs us -- sold into slavery
"beyond the Tiber” – for some reason (what the eyes no longer sees
the heart no longer grieves for). The objections to Muirhead’s theory
have been well pointed out by Niebuhr. Not only is it opposed to
all the ancient authorities, who knew at least the traditional meaning of
the XII Tables as handed down to them through many generations, but
it also conflicts with a well recognised principle of early Law. That
principle was that the goods of a debtor are not, categorially and
categorically, responsible for his debts. His *body* is to be made to
suffer. Hs property cannot be touched. It is by no means unusual for
a nexal debtor to support himself while in bondage. This can only be explained
on the supposition that neither his property nor his earnings are
attachable by the creditor. It is this exemption of property which
accounts for -- ' > Gell. XX. 1. 52. Dio Cass, fragm. 17.
8. 2 R. Law, p. 208—9. ^ B. G. i. 630. -- the severity of the
nexal penalties. Now, a section (division), and sale, of the debtor's goods
would have been quite inconsistent with the whole system of
personal execution so plainly set before us in the rest of the law.
The killing of the debtor was but a fitting climax to his cruel fate. The
inhumanity of the proceeding is not likely to have been perceived
by men who tolerated such barbarities as the lex talionis and the
killing of a son by his paterfamilias. When our authorities express
astonishment at the cruelty of the law, we must remember that they also
lived in a gentler age, in which the powers even of the paterfamilias are
curtailed, and when they confess that they never knew of an
instance in which the law was executed. We may discount their testimony
by recollecting that the nexal penalties of the XII Tables were
abolished centuries before they were even born! Comparative jurisprudence
furnishes another argument in favour of accepting the EXPLICATURE
of the utterance-part, "partis secanto." Kohler has
collected from different quarters various instances of customs
which closely correspond with this harsh treatment of the Roman debtor.
Unless therefore we disregard analogy, probability, and the whole of the classical
evidence, we must clearly take utterer of the XII Tables on his EXPLICATURE,
and understand that the creditor could choose between selling his debtor
into slavery "beyond the Tiber," OR putting him to death.
In the latter case, if there were more than one -- ' Shakesp. v.
dem Forum der Jurisp. 4—2 -- creditor, each might cut up the
debtor’s body and each creditor carry off a piece. There is a third
clause of the XII Tables in which nexum. is mentioned, but it does not
alter the form of the contract. As far as we can make out, it
simply declares that certain agents, mysteriously described as, “forcti et
sanates,” shall have an equal right to the advantages of nexum. There is
a clause in the XII Tables intended to secure what Grice calls truthful
testimony, that most essential safeguard to Tieocum: Qui SE SIEEIT
tes- TARIER LIBRIPENSVE PVERIT NI TESTIMONIVM FATI- ATVR
IMPROBVS INTESTABILISQVE ESTO. That is, whoever had been “testis” or
“libripens” at the performance of a “nexum” or “mancipiwm” is was to give
his testimony as to the fact of the transaction, or as to its terms, under
penalty of permanent disqualification. This passage goes to show
what we also gather from other authorities, that the libripens was
a mere witness and not -- as some have wrongly supposed -- a public
official. The phrase "qui libripens fuerit" IMPLICATES that any
citizen might fill the position. Since we find that the “libripens” is
treated like any other witness, it seems clear that he could not have
been a public personage. We are now able to understand the meaning
of Varrone’s remark. "Liber qui suas operas in servitutem pro
pecwnia quam debet dat dum solueret nexus uocatur." This merely
means that a man who contracts a nexum, if unable to repay the -- ^
See Pestus s. u. sanates, Bruns Font. p. 364. 2 Gai. II. 107 ; Ulp. Eeg.
xx. 7. -- loan and therefore subject to an “addiction”, was obliged
to serve like a slave, and retained the epithet of “nexus” (cf. Irish
indenture servitude in New England) till the debt was paid (cf. Vanderbilt). On
the whole, then, the legislation of the XII Tables produces intereting
results. By increasing the importance of the *verbal* -- explicatural --
part of the ceremony, The XII Tables increase the flexibility of the
contract, and eventually change it from a real into a merely symbolical
transaction. The culminating point of the change is reached when the
money constituting the loan is not even weighed out, but merely
named in the nuncupatio, with the borrower languidly striking the
scale-pan with a piece of copper. Another interesting result is that, by
fixing certain limits to the violence of the creditor, the XII Tables soften
the hardships endured by the nexal debtor. Though the extreme penalty
of death is allowed, this may not
be inflicted till the debtor had had many opportunities and ample
time to clear himself. The formula of the nexum having now acquired great
importance, its wording is soon reduced to a definite shape running
somewhat as follows : " Quod ego tibi M lihras hoc aere
aeneaque libra dedi, eas tu 7nihi...post annum... cum semissario
foenore. . .dare damnas esto." -- This is the formula adopted by
Huschke and modified by Rudorff. The utterance part, "damnas esto,” appear
to be wrongly rejected by Voigt, who disregards the analogy of the
solutio though that seems our safest guide. The formula of said
solutio is given by Gaius as follows, though Karlowa's reading differs
consider- 1 Nexum, p. 49, etc. ^ iii. 174. 54 -- ably from
that of Huschke. Quod ego tihi tot mill'ihus condemmatus sum, me eo
nomine a te solvo liberoque hoc aere aeneaque libra: hanc tibi
libram primam postremximque expendo secunduTn legem publicam. The XII
Tables did not, as far as we know, contain any clauses affecting “sponsio”
or “dotis dictio.” The existence of those forms at such an early
period has to be inferred from other sources, and there is reason to
assert their great antiquity, which the silence of the XII Tables
cannot disprove. “Iusiurandum” is known to have been approved by the XII
Tables, but to what extent we cannot tell. We may therefore at once
proceed to examine one of the most important innovations of the decemviral
Code, viz., the contract which despite its ambiguous name is known
as the “lex mancipi.” The “lex mancipi,” as the name indicates, is a
covenant annexed to the transaction known as mandpiMm (later as mMndpatio).
Let us see first what “mancipium” is. Ulpian says that it is the mode of
transferring property in “res mancipi”. Gaius describes its use
shortly as a fictitious sale, "imaginaria venditio," and states
that it is only performed between Roman citizens, and applied only to “res
mancipi.” Gaius describes the ceremony. The parties meet in the presence
of five witnesses and of a Roman (called “libripens”), who holds a pair
of scales. The -- 1 Cic. Off. III. 31 and see above, p. 39. ^ Beg.
xix. 3. 8 I. 113. ■> I. 119-20. -- *object* of the
transfer Gaius supposes to be a slave. The alienor remains passive, but
the alienee, grasping the slave, solemnly declares aloud that he
owns the slave by right of purchase. The alienee then strikes the scales
with a piece of copper, and hands the piece to the alienor as a symbol of
the price paid. Such is our meagre evidence as to the nature of mancipium.
On this slender foundation of fact a vast amount of controversial theory
has been heaped up. One certainty alone can be deduced from the
evidence, that mancipium was not originally a general mode of conveyance, as
Gaius and Ulpian found it in their day. It beguins by being a *genuine*
sale for cash, in which the price paid by the alienee is weighed in the
scales and handed over to the alienor. The muncupatio, or
declaration made by the alienee, is merely explanatory of his right of
ownership. The *grasping* of the object by the alienee – never mind acceptance
of the price by the alienor – is no doubt originally the essential
element in the transfer. The utterance by the alienee probably had at first no
more binding effect than the utterance of the borrower in a nexum.
We may be sure that, in such a state of the law, disputes would
often arise as to the terms of the sale. And it was probably to *prevent*
such disputes that The XII Tables made their famous rule: CVM NExyM
FAOIET MANCIPIVMQVE VTI LINGVA NVNGVPASSIT ITA IVS ESTO. The
extraordinary emphasis (“not nuncu- passit but lingua mmcupassit”) which
is here laid upon the utterance of the ceremony is very striking.
Bechmann rightly argues that it would be wrong to take this rule as referring
only to the leges mandpi, but it seems that it is to the language
as ' distinct from the acts used in the ceremony that the XII
Tables meant to give force and validity. The legal results which followed
from seizing the object of sale in the presence of witnesses, and
from weighing out the price to the seller, had long since been thoroughly
well recognised. What The XII Tables now introduced was the recognition
of the utterance which accompanied this outward act. We can hardly accept
the implicature which Bechmann assigns to the utterance. Bechmann notes
the contrast between words and acts which is implied in the phrase “lingua
nuncupassit”, but he thinks that the object of the rule was to
reconcile the language of the transaction with its real nature. Bechmann’s
view is based on the assumption that even before the XII Tables mancipium
had changed from a genuine into a fictitious sale. In other words, Bechmann
assumes that, while the alienee professes to *buy* the object with money
weighed in the scales, he really weighs no money, but hands to the
alienor a piece of copper, "quasi pretii loco." In fact the “imaginaria
uenditio” of classical times is, according to Bechmann, already in vogue.
The purpose of the XII Tables is therefore to confirm this change,
by declaring that the words, and not the acts of the parties, should
henceforth have legal effect. It was as if this law said. Pay no
attention to the acts of the alienee, but listen to grasp his utterance.
He is merely delivering a piece of copper -- 1 Kauf, I. p. 197. ' lb. p.
167. -- but do not imagine that this is the whole price
due. In his declaration, the alienee states that the price is such
and such. Let that be considered the real price of the object. Let also the
outward ceremony be regarded as a mere fiction. All this appears to be a
very far-fetched interpretation of “lingua nuTwupassit”, and the
assumption on which Bechmann has based it seems unwarranted, for more
than one reason. We do not know that “mancipium” has already turned into
an “imaginaria uenditio”. There is not one shred of evidence to prove that
such a change had occurred before the XII Tables. So far indeed
from preceding the XII Tables, the change would seem to have been
directly caused by them. Until coin was introduced, the weighing of
the purchase-money was clearly necessary. If, as there is good
reason to believe, coinage is finstituted by the Decemvirs, the actual
weighing must have continued till their time. If, on the other hand, we
suppose that coined money is a much older institution (Cornelius Nepos de
uir. ill. 7. 8. attributes its invention to Servius Tullius), so that the
actual weighing had long been dispensed with, mancipium may still *not* have
been an “imaginaria uenditio”, because we can imagine no way in
which a sale on *credit* could have been practised before the XII
Tables. How could a vendor have permitted his property to be conveyed to a
purchaser for a nominal and fictitious price, when the mancupatio was as
yet devoid of legal force ? After the uti lingua nuncupassit of the XII
Tables, the nuncupatio doubtless specifies the exact amount of the
purchase-money. This the alienor might lawfully claim. Moreover, before the
Decemviral reforms, mancipium transfers full ownership to the purchaser,
and the seller might have clamoured in vain for his money, unless he had
previously taken security by means of vxidvmoniwm or sponsio. For since a
well known provision of the XII Tables was that no property should
pass in things sold till the purchase-money was either paid or secured, we are
bound to infer that, before this, the very reverse was the case. Property DID
pass even when the price had not been paid. Such having been the early
law, how can we hold, as Bechmann does, that the cash payment of
the purchase-money was frequently not required, though the forms of
weighing etc. were carried out in the original manner? He urges that
credit, not cash, must often have been employed, because we cannot
reasonably suppose that cash payment was possible in every case. But the
force of his argument is weakened by the fact that mancipation is only
practised to a limited extent. Tradition is the most ordinary mode of
transfer employed in every-day life. And in a solemn affair such as
mancipium, where five witnesses and a scale-holder had to be summoned
before anything could be done, it cannot have been a great hardship for
the purchaser to be obliged to bring his purchase-money and weigh it on the
spot. Instead of credit purchases having been usual before the XII
Tables, -- 1 2 Inst. 1. 41. , 2
j[^uf, I. p. 160. s ib. p. 1S8. -- it seems likely that the XII Tables
virtually introduced them. For, by enacting that NO property should pass
until the price is paid or secured to the vendor, the Decemvirs make it
possible for the conveyance and the payment of the price to be
separately performed. Mancipium is thus made to resemble in one respect a
modern deed. The vendor who has executed a deed, before receiving
the purchase-money, has a vendor's lien upon the property for the amount
of the price still owing to him. Similarly, the “mancipio dans” who had
not received the full price, retained his ownership of the property
until that full price is paid to him, or security given for its
payment. We may therefore reject Bechmann's idea that the
utterance-part “lingua nuncupassit” refers principally to the fixing of
price in the muncupatio. That utterance-part simply gives legal force to the
solemn utterance made in the course of mancipium. On the one hand, the
utterance-part binds the seller to abide by the price named, and to
deliver the object of sale in the condition specified by the buyer. On
the other hand, the utterance-part compels the buyer to pay the
full price stated in the muncupatio, and to carry out all such
terms of the sale as are therein expressed. In short, every “lex mancipi”
embodied in the muncupatio becomes henceforth a binding contract.
It is natural to inquire next what kind of agreement might
constitute a “lex mancipi”. The muncupatio placed by Gaius in the mouth of
the purchaser runs thus: " Hunc ego hominem ex iure
I 1. 119. 60 -- Quiritium meum esse aio, isque
mihi emtus esto hoc aere aeneaqiie libra." To this might no doubt
be annexed various qualifications, and these were the leges in
question. Voigt indeed considers that these leges might contain every
conceivable provision. But Bechmann seems to come nearer to the truth in
stating that no provision conflicting with the original conception of
mancipium as a sale for cash could be inserted in the muncupatio.
For instance, Papinian states that no suspensive condition could be
introduced into the formula of mancipiwm. The reason of this obviously is
that suspensive conditions are inconsistent with the notion of a
cash sale. The purchaser could not take the object as his own and then
qualify this proceeding by a condition rendering the ownership
doubtful, A resolutive condition is also out of the question, for when
the mancipium is transferred the ownership and the price is paid, it
would have been absurd to say that the occurrence of some future
event would rescind the sale. The transfer is in theory instantaneous. No
future event may affect it. The following then are a few cases in
which the “lex mancipi” could or could not be properly used: The
creation of an usufruct by reservation could be thus made', and the
formula is given to us by Paulus : " Emtus mihi esto pretio dedvxito
usu- frtijctu*." Property could thereby be warranted
free -- 1 XII Taf. II. 469. ^ y^t. Frag. 329. 3 Vat.
Frag. 47. * Vat. Frag. 50. -- from all servitudes by the
addition to the nuncupatio of the words "uti optimus matvimiisque
sit^." The means by which the vendor is punished if the
property fails to reach this standard of excellence are worth examining,
though! The contents and description of landed property might be
inserted in the nuncupatio, and if they were so inserted the vendor is
bound to furnish as much as was agreed upon. Failing this, the
deceived purchaser, so Paolo Diacono tells us, could bring against the
vendor an actio de modo agri, which entailed damages in duplum. The
accessories of the thing sold, destined to be passed by the same
conveyance, are also doubtless be mentioned. We might naturally
have supposed that the quality of this or that slave or of this or that
specimen of cattle could have been described just as well as the content
of an estate. Cicero says : "Cum ex XII Tabulis satis erat ea
praestari quue essent lingua nuncupata" -- as though descriptions of
all kinds might be given in the nuncupatio. Nevertheless Bechmann has
shown that such is not the case, inasmuch as we find no traces of
any action grounded upon a false description of quality. The only actions
which we find to protect mancipium are the actio auctoritatis and
the actio de modo agri. There is no authority for supposing, as
Voigt does, that the actio de modo agri is not a technical but a loose
term used by Paolo Diacono. According to Voigt, there was an action
-- 1 18 Dig. 1. 59. ^ Sent. i. 19. 1. ^ Off. iii. 16. 65. «
Eauf, I. p. 249. ^ XII Taf. 120. -- (the name of which has perished) to
enforce all the terms of a nuncupatio of whatever kind. The so-called
actio de modo agri would then have been only a variety of this general
action. This theory is inadmissible. In making his solemn list of
the actiones in dztpZwm ^Paolo Diacono would hardly have used the clumsy
phrase “actio de modo agri”, if there had been a comprehensive term
including that very thing. Consequently, the general *description* of a
specific slave or a specimen of cattle in the nuncwpatio does not seem to
have been in practice allowed. The greater protection thus afforded
to a purchaser of land than to one of other res mancipi may probably be
explained by the fact that land is not, and could not, be conveyed inter
praesentes, whereas a slave or an ox could be brought to the scene of the
mancipiwrn and their purchaser sees exactly what is was buying. Provisions
as to credit and payment by instalment might also be embodied as leges
in the nwncupatio. This has been denied by Bechmann, Keller, and
Ihering, but their reasons seem far from convincing. We may indeed fully
admit their view for the period prior to the XII Tables, since
there was then no coinage, and mancipium was an absolute conveyance
of ownership. But once coinage is introduced, when mancipium is capable
of transferring dominium only after payment of the price, and when
the oral part of mancipium receives legal validity from the XII Tables,
the whole situation changes. 1 Sent. I. 19. 1. 2 j^auf, i. p.
42. 3 Imt. 33. •> Geist d. R. R., ii. 530. -- If it
be said that credit is inconsistent with the notion of mancipium as an
unconditional cash transac-tion, we may reply that this exceptional lex is
clearly authorised by the XII Tables, since its use is implied in the
legislative change above mentioned. If it be urged that no action can be
found to enforce any such lex, the obvious answer is that no action is
needed, inasmuch as the ownership does not vest in the vendee till the
vendor's claims were satisfied. Therefore, if the vendee never pays at all, the
vendor's simple remedy is to recover his property by a “rei uindicatio”.
Nor is there much force in the argument that clauses providing for credit
would have been out of place in the nuncupatio because inconsistent
with the formula, “Hanc rem meam esse aio, mihique emta esto." On
the one hand it is probably a mistake to suppose that this fixed
form is *always* used. The expression, “uti lingua nuncupassit,” seems
to implicate that the oral part of mancipium and nexum is to be framed so
as best to express the intentions of the parties. The same
conclusion may be drawn from the comparison of the formulae of mancipatio
given in Gaius. On the other hand, admitting that " hanc rem meam
esse aio, etc." is a necessary part of the nuncupatio, it must
have been used in mancipations made on credit, which by the XII Tables
could not convey immediate ownership, and the existence of which in
classical times no one denies. We are forced then to conclude either that
"hanc rem meam esse aio" is not the phrase used at a sale on
credit, or else -- 1 2 Inst. 1. 41
and see p. 58. '' i. 119 and ii. 104. -- that it becomes so far a
stereotyped form of words that it could be used NOT only as conveying its
EXPLICATURE, but also as applying to credit transactions which the
Decemviral Code so clearly contemplated. It is indeed inconceivable that
if the price is, as every one admits, specified in the mmcupatio, the
terms of payment should not have been specified also. It is
worth while to notice how the legal conception of mancipium is indirectly
altered by the XII Tables. That very important clause which
prevented the transfer of ownership in things sold, until a full
equivalent is furnished by the vendee, had the effect of separating the
two elements of which mancipimn consisted. Delivery of the wares
and receipt of the price are at first simultaneous. Later, they could be
effected singly. Thus mancipium becomes a mere conveyance, and after
a while, as is natural, the notion of sale almost completely
disappears, so that mancipium came to be what it was in Gaius's system,
the universal mode of alienating “res mancipi”. The “lex
mancipi”, as we have now considered it, is an integral part of the
formula of viancipium which the vendee or alienee solemnly uttered.
Gaius and Ulpian give us no hint that the vendor or alienor plays any
part beyond receiving the price from the other party. But is this really
so? Could the vendee have known how to word his formula if the
vendor remains altogether silent ? We have therefore to enquire what share
the vendor took in framing the -- 1 2 Inst. 1. 41.
-- vendor's dicta. 65 leges mancipi, and how the lex mancipi
was enforced against him. The part played by the vendor is
denoted in many passages of the Digest by the word “dicere”. In
others, the word “praedicere,” or “commemorare” expresses the same idea, and we
find that the vendor sometimes made a written and sealed declaration. The
object of such dicta was to describe the property about to be sold and
they necessarily preceded the mancipium, or actual conveyance. They are
thus no part of the mancipatory ceremonial and are quite distinct from the
nuncupatio uttered by the vendee, which explains their not being
mentioned by Gaius in his account of mancipatio. It is to such
dicta that Cicerone doubtless alludes', when he says that by the XII
Tables the vendor is bound to furnish only "quae essent lingua
nimcupata" but that in course of time " a iureconsultis etiam
reticentiae poena est constituta." The reticentia here mentioned was
evidently not that of the vendee, but was a concealment by the vendor of
some defect in the object which he wished to sell, and hence this
passage is useful as showing the contrast between nuncupatio and dictum.
The former might repeat the statements contained in the latter,
thus turning them into true leges mancipi, and this explains the fact
that “lex mancipi” (or, in the Digest, “lex uenditionis”), is sometimes used in
the derived 1 e.g. 21 Big. 1. 33, and 18 Dig. 1. 59. 2 19
Dig. 1. 21. fr. 1. » 19 Dig. 1. 41. * 19 Dig. 1. 13. fr. 6. 5 19 Dig. 1.
6. fr. 4. « i. 119. = Off. III. 16. 8 19 Dig. 1. 17. fr. 6.
B. E. 5, -- interpretation of the vendor's dictum, as well as
with the primary meaning or interpretation – or explicature -- of the
vendee's nwncupatio. The leges embodied in the nuncupatio were thus
binding on the vendor, whereas his dictum is at first of no legal
importance. But in course of time the dicta come also to be regulated, and
though their terms are not formal and are never required to be
identical with those of the nwncupatio, yet it is essential that the vendor, in
making them, should not *conceal* any serious defects in the property.
The dictum itself produced no obligation. That could only be
created by incorporating the dictum, into the nuncupatio. The only function of
dictum seems to have been to exempt the vendor from responsibility
and from all suspicion of fraud. This is well illustrated by a case
to which Cicero' refers, where Gratidianus the vendor “fails” to mention,
" nominatim dicere in lege mancipi " (here used in the
secondary interpretation), some defect in a house which he was selling. Cicero
remarks that, in his opinion, Gratidianus is bound to make up to the vendee any
loss occasioned by his silence. Bechmann questions whether the
action brought against Gratidianus was the “ocii'o eniti or the actio
auotoritatis. But from the way in which Cicero speaks, it seems almost
certain that he had been trying to bring a new breach of bona fides under
the operation of the actio emti, and had not been pleading in a case of
actio auctoritatis, which would scarcely have been open to such freedom
of interpretation. We cannot therefore agree with Bechmann that dicta not
embodied in the nv/ncupatio -- 1 Or. 1. 89. 178. 2 Kauf, i. p. 257.
-- could be treated as nuncupata and made the ground for an actio
auctoritatis, though we know that in later times they may be enforced by
the actio emti. The distinction between the formal nuncupata and
the informal dicta is never lost sight of, so far as we can discover from
any of our authorities, nor is dictum ever said to have been actionable
until long after the actio emti is introduced. The matters
contained in the dicta of the vendor were descriptions of fixtures or of
property passing with an estate', (of servitudes to which an estate
was subject, or of servitudes enjoyed by the estate. It is
noticeable that these are all mere statements of fact and that they
exactly agree with the definition given by Ulpian, who expressly excludes
from dictum the idea of a binding promise. Thus the distinction
between nuncujpatio and dictio may be contrasted. Nwmupatio belonged only to
mancipium,, whereas dictio might appear in sales of res nee mancipi as
well as in mancipatory sales. Nuncupatio is a solemn and binding
formula; dictio was formless and, until the introduction of the
actio emti, not binding. Nuncupatio does not touch upon the
quality of the thing sold, whereas dictio might give, and eventually is
bound to give, full information on this point. We must notice
in conclusion what Bechmann -- 1 19 Big. 1. 26. = 21 Big. 2. 69.
fr. 5. 3 Cio. Or. I. 39. 179. * 21 Big. 1. 19. « 19
Big. 1. 6. 5—2 -- has pointed out that lex, besides
meaning a condition embodied in a sale or mancipation, signifies also a
general statement of the terms of a sale or hire. This sense occurs in
Varrone, Vitruvio, Cicerone, &c., and should be borne in mind, in order to
avoid confusion and to understand such passages correctly. The
methods by which the true leges nuneitpatae could be enforced are two. Actio de
modo agri. Of this we only know that it aims at recovering double damages
from the vendor who inserts in the nuncupatio a false statement as to the
acreage of the land conveyed; Actio auctoritatis (so called by modern civilians).
This was an action to enforce auctoritas, an obligation created by the
XII Tables, whereby the vendor who had executed a mancipatory
conveyance is bound to support the vendee against all persons
evicting him or claiming a paramount title. “Auctor” apparently means one
who supplies the want of legal power in another, and thereby assists him
to maintain his rights. It is so used in “tutela”, of the guardian
who gives auctoritas to the legal acts of his ward. In the present case, “auctor”
means one who makes good another man's claim of title by defending it. This
explains why the obligation of auctoritas varied in duration according to
the nature of the thing sold. Thus, if the thing was a moveable
(e.g. an ox, or a slave) the auctoritas of the vendor lasted I year,
since the usucapio of the vendee made it un- -- 1 Eauf, I. p. 265. 2
£. ^ vi. 74. » i. 1. 10. « Part. or. 31. 107. ^ Leuel, Z. d. Sav.
Stift. E. A. in. 190. s Lenel, Ed. perp. p. 424. ' Cic. Gaec. 19.
54. necessary after that time. But if the thing sold was
land, usucapion may not, by the XII Tables, take place in less than II years,
and the avctoritas is prolonged accordingly. The penalty for an unsuccessful
assertion of auctoritas was a sum equal to twice the price paid. This
shows that at the date of the XII Tables, as we have seen,
mancipium is still a genuine sale and involved the payment of the
full cash price. The same conclusion is drawn from Paolo Diacono’s express
statement that unless the purchase money is received no auctoritas is
incurred. This last rule is a logical (analytical, conceptual) sequence or
corollary of the enactment that no property vested until payment is
fully made. It is conceptually impossible that the vendee should need the
protection of an auctor before he himself acquires title. The
question has been much debated however by so-called analytic masters of jurisprudence,
such as H. L. A. Hart – as to whether this liability of a vendor to
defend his purchaser's title arose ipso iure out of the mancipation,
or whether it was the product of a special agreement. The latter
view is held by Karlowa, a tuttee of Hart’s - and Ihering – another one! --
but the weight of evidence against it seems to be overwhelming. Paolo
Diacono expressly states that warranty of title is given in sales of res
nee maiicipi by the stipulatio duplae, but exists ipso iure in sales
by mancipation. Varrone says that if a slave is not conveyed
-- 1 Cio. Top. i. 23. 2 Paul. Sent. ii. 17. 2-3. 3 L. A. 75.
* Geist des R. R. m. 540. 5 See Girard, in N. E. H. de D. 1882.
(6me Annge) p. 180. 6 Sent. II. 17. 1-3. ^ R. R. ii. 10. 5. -- by mancipation, his purchaser's title
should be protected by means of what Varrone calls a “stipulatio smvplae
uel duplae.” What Varrone is getting at, via implicature, is that, in a cases
of mancipation such a step is obviously (conceptually) unnecessary.
In recommending forms for contracts of sale, Varrone therefore aptly
advises the use of the stipulatio in sales of res nee mancipi'. Varrone
gives no such advice and mentions no stipulatory warranty in the case of
res mancipi, which proves our (and Varrone’s) point. We find that there are
two ways in which the vendor could escape the liability of aitctoritas. Either
the vendor could refuse to mancipate, or he could have a merely nominal price
inserted in the nuncupatio -- the real price being a matter of
private understanding between him and the vendee -- so that the
penalty for failing to appear as auctor becomes a negligible quantity.
This we actually find in a mancipatio HS nummo uno, of which an inscription is preserved
the terms' where the object in mentioning so small a sum must have been to
minimise the poena dupli in case the purchaser M'as evicted. Both
these expedients to avoid liability are absolutely fatal to the theory of
a special nwncupdtio as the source of auctoritas. In short, from all this
evidence we must conclude that, after the enactment of the XII
Tables, mandpium contains an implied warranty of the vendee's
title. The origin of the heavy penalty for failing to uphold
successfully a purchaser's title has also been much debated (what hasn’t?).
Bechmann'' attributes its severity to -- 1 R. E. n. 2. 6, and 3. 8.
" Plant. Pers. 4. 3. S7. » Bruns, Font: 251. * Kauf, i. p.
121. -- a desire to punish the vendor who had suffered his
vendee to say "hanc rem meam esse aio," when he KNOWS that such
was NOT the case. This would have been to punish the vendor for
reticentia, which was not done till much later times, as we know
from Cicerone. Moreover as we cannot be sure that the phrase "
hanc rem meam esse aio " is invariably used in mancipium, this view
of Bechmann's comes too near to the theory of the nuncupative origin
of auctoritas, not to mention the fact that it fails to explain why
the penalty was duphmi instead of simplum! The best theory is probably that of
Ihering. Ihering sees in the “poena dupli” a form of the penalty for
furtum nee manifestum. It may be true, as Girard points out, that the
actio auctoritatis is not an actio furti in every respect. The sale of land
to which the seller has no good title lacks the great characteristic of
furtum, that of being committed inuito domino. The real owner of the land
may be entirely ignorant of the transaction! Still it is plain that the
conscious keeping and selling of what one KNOWS to be another man's
property is a kind of theft – say, the Brooklyn Bridge --. In that
primitive condition of the law, it was thought unnecessary to
impose different penalties on the bona fide vendor whose trespass was
unconscious or, as Grice prefers, UN-intentional, and on the vendor who is
intentionally fraudulent. This “poena dupli” can hardly be explained as a
“poena infttiationis”, for if such, would not Paolo Diacono have been
sure to mention it among his other instances of the latter penalty?
-- ^ Geist des R. R. in. 229. ' loc. eit. p. 216. "
Paul. Sent. i. 19. 1. --. Auctoritas is supplied by the vendor
whenever any third person, within the statutory period of one or two
years, attacks the ownership of the vendee by a m uindicatio, or by a
uindioatio libertatis causa if the thing sold is a slave, or by any
other assertion of paramount title. Bechmann seems to be right in holding
that the warranty of title also extends to all real servitudes
enjoyed by the property, and to any other accessiones which had
been incorporated in the nwncwpatio. To attack the vendee's claim in that
respect is to attack a part of the res mancipata. Hence actio avctoritatis
is the remedy mentioned in connection with the true leges mancipi, and we
may hold, with Bechmann and Girard, that the actio auctoritatis and
the actio de modo agri are the only available methods of punishment for
the non-fulfilment of a lex mancipi. How the vendor is
brought into court as aioctor is a question not easy to answer. But
in Cicerone we find an action described as being “in auctorem
praesentem,” and apparently opening with the formula. “Quando in iure te
conspicio, quaero anne fias auctor." The opening words do not lead
us to suppose that the vendor is summoned, but rather that he had
casually come into court. This formula is probably uttered by the judge,
in every case of eviction, before the inauguration of the actio
avxytoritatis, in order to give the defendant an opportunity of answering and
so of avoiding the charge. -- loc. cit. p. 203. 3 Gaec. 19. 64 ;
Mm: 12. 26. < Lenel, Ed. Perp. p, 427. -- If no answer is made to the judge’s
implicatural question, the vendor is held to have defaulted, and the
vendee might properly proceed to bring his actio auctoritatis for
punitive damages. But supposing that the “auctor” duly appeared to defend
his vendee, what were his duties? It is not probable that he takes
the place of the vendee as defendant, because “auctor” does not seem to imply
this, and because the vendor having conveyed away all his rights
had no longer any interest in the property. The most probable
solution seems to be that which regards the “auctor” simply as an
indispensable witness. In the XII Tables we know what severe penalties are
laid upon a witness who did not appear, as well as upon one who bears false
testimony. Now an auctor who appears but fails to prove his case is
clearly a false witness. One who fails to appear is an absconding witness. This
is probably an additional reason for the severe punishment inflicted on
the auctor by the XII Tables. Thus the ingenious supposition of Voigt',
that the vendor cannot possibly have incurred so heavy a penalty by
mere silent acquiescence in the nuncupatio of the vendee, and must
therefore have made a nuncupatio of his own in which he repeats the words
used by the vendee, seems to be purely gratuitous as well as wholly
unsupported by evidence. Another question to be considered is: did auctoritas
apply solely to the warranty of things alienated by mancipium -- or did it
also apply to things alienated by in iure cessio? An answer in -- 1 See above p. 52. » XII Taf. ii.
120. – on the broader side is given by Huschke who cites Gaius as
proving that mancipatio and in iure cessio have identical effects. But
this is at best a loose statement of Gaius's, and cannot prevail
against the stronger evidence which goes to prove that auctoritas is
a feature peculiar to mancipmm. Bekker points out that in iure cessio cannot
have produced the obligation of auctoritas, because the in iure
cedcTis takes no part in the proceedings beyond making default, and cannot
therefore have made deceptive representations rendering him in any
way responsible. In iure cessio must then have been from its very
nature a conveyance without warranty, and Paolo Diacono confirms this inference
by stating that the three requisites of auctoritas are mancipatio, payment of
the price, and delivery of the res – ox or slave. The Lex mancipi
in its primary meaning, is a clause forming part of the mmcupatio spoken
by the vendee in the course of mancipiimi, and constituting a
binding contract. It might embody descriptions of quantity,
specifications of servitudes whether active or passive, conditions as to
payment, and any other provisions not conflicting with the original
conception of mancipium as a cash sale. In its secondary, derived,
loose, meaning, which we must carefully distinguish, it referred to the dicta
made by the vendor. -- Nexum, p. 9. ^ li. 22. s
Akt. I. p. 33, note 10. * Sent. ii. 17. 1-3. -- We even find lex
mancipi applied to the terms of sale as a whole, including nuncupatio,
dicta, and any other private agreement between the parties
respecting the sale. The two means of enforcing leos mancipi in its PROPER
(and only) sense were actio de modo agri and actio auctoritatis.
Auctoritas is an implied warranty of title introduced by the XII Tables
into every mancipatory conveyance, subject to the condition precedent that
the vendee must have received the goods and paid the price. If the
vendee is evicted, his proper remedy is the actio auctoritatis (most
probably, an instance of “legis actio sacramento”), the object of which
was to recover punitive damages of double the amount of the price
paid, and which could be brought against the vendor within II years, if
the object sold was an immoveable, and within one year, if a
moveable – an ox or a slave, or two. Since the lew mancipi is often
credited with a still wider function, we are next brought to
consider the agreement known as fidticia. The agreement of fiducia is
thought by many scholars to have been a species of lex mancipi, and
consequently a creation of the XII Tables. Among those who thus regard
fiducia as an agreement contained in the nuncupatio are Huschke, Voigt,
Eudorfif, and Moyle. The first philosopher of any weight – if however,
not Oxonian -- who disputed the correctness of this view -- 1
Girard, I.e. p. 207. ^ Nexum, pp. 76, 117. s XII Taf. II. 477. * Z.
fur EG. xi. 52. 5 App. 2 to his ed. of the Inst. – is Ihering,
and, the bad thing, is that he is now being followed by Bekker – not to mention
Bechmami, and Degenkolb. The view held by theis bunch of philosophers would
seem to be the only tenable one, alas. They assert that “fiducia” is not
a part of mancipium. Fiducia is simply an ancillary agreement tacked on
to mancipium and couched in no specific form. The argument against the
former theory are that fiducia might exist in cases of in iure cessio as
well as in cases of mancipium. Now in iure cessio gives no opportunity
for the introduction of nuncupative contract. How then can a nuncupatio
containing a fiducia have been introduced among the formalities of the
uindicatio? Doh! We know that the actio fiduciae is bonae fidei,
and ionae fidei actions are of comparatively late (i. e. sophisticated) introduction.
How then is this fact to be reconciled with the theory which derives
fiducia from the nuncupatio of the XII Tables ? Voigt states that
the actio fidiuiiae is but one form of the ordinary action on a lex
mxmcipi (in fact, Voigt regards every lex mancipi as having been
actionable). But Voigt gives no explanation of the surprising fact that
fiducia alone of all the species of lex mancipi should have been provided
with an actio bonae fidei. If we admit that the only actions
based upon mancipium are the actio auxitoritatis and the actio de modo
agri, how can the actio fiduciae be classed with either ? -- 1
Geist des R. R. ii. p. S56. = Akt. i. 124. 3 Kauf, i. p. 287. « Z.
fur RG. ix. p. 171. " XII Taf. II. p. 475. « supra, p.
68. -- The strongest piece of evidence which we
possess in favour of Ihering's theory (which Ihering never saw) may well consist
of a bronze tablet inscribed with the terms of a pactum fiduciae^ which
Degenkolb has carefully criticised and which seems to be conclusive in
favour of our view. It contains, not a copy of the words used in
mancipation, but a report of the substance of a fiduciary
transaction. The mancipation is said to have taken place first,
fidi fiduciae causa, and then the terms of the fiducia are said to have
been arranged in a pactum conuentum between the parties: Titius and Baianus. It
is evident from the language of the tablet that this fiduciary
compact is independent of the mancipatio and informally expressed. Any
attempt, such as those made by Huschke and Rudorff, to reconstruct
the formula of fiducia, and to fit such a formula into the nuncupatio of
mancipium, is necessarily futile. Voigt has even taken pains to give us
the language used in the arbitrimn by which, according to him,
fiducia is enforced. This bold restoration is a good instance of Voigt's
method of supplementing history, -- or ‘inventing’ it, as Grice prefers --
but it cannot be said materially to advance our knowledge of things.
We are nowhere told that fiducia could not be applied to cases of
traditio, and a priori there is no reason why this should not have been
the case. Yet all our instances of its use connect it solely with
mancipatio or in iure cessio*, and all the -- 1 Printed in C. I. L.
No. 5042 and Bruns, Font. p. 251. 2 Z. filr EG. IX. pp. 117—179. ''
XII Taf. ii. p. 480. * Isid. Orig. v. 25. 23 ; Gai. ii. 59 ; Boeth.
ad Gic. Top. iv. 10, 41. -- authorities, except Muther, are
agreed in thus limiting its scope. If indeed we could extend
fiducia to cases of traditio, it would be very hard to see why there
should not have been a contractibs fiduciae as well as a contraxitus
cotnmodati, depositi or pignoris. We know from Gaius that fiducia is often practised with exactly
the same purpose as pignut or depositum, and we may reasonably
infer that it is the presence of mancipaiio or in iure cessio which
causes the transaction to be described, not as pigrms or depositum, but
as fiducia. If we admit that fiducia is never connected with
traditio, we can readily see why it never becomes a distinct
contract. Bechmann' points out that in iure cessio or mancipatio is
naturally regarded as the principal feature in such transactions as
adoptions, emancipations, coemtiones, etc. The solemn transfer of
ownership is in all these cases so prominent, that fiducia was always
regarded as a mere pactum adiectum. If then we cannot admit
fiducia to any higher rank than that of a formless pactum, it follows
that the actio fiduciae, being borme fidei, and therefore most
unlikely to have existed at the period of the XII Tables, must have
originated many years later than fidvMa itself, which as a modification
of mancipatio probably dated from remote antiquity; This may serve
as an excuse for discussing ^tfcia in this place, although the XII Tables
do not actually mention it. But it must have existed soon after
that legislation, since it was the only mode of accom- -- 1
Sequestration, p. 337. " ii. 60. s Kauf, i. p. 293. -- plishing
the emancipation of a filiusfamilias as based upon the XII Tables.
The theory that fiducia originated long before the actio fiduciae
is corroborated by the account which Gaius gives of the peculiar form of
usucapio called usureceptio. This is the method by which the former
owner of property which had been mancipated or ceded by him subject to a
fiducia may recover his ownership by one year's uninterrupted possession.
It differs from ordinary usucapio only in the fact that the trespass is
deliberate, and that immoveable as well as moveable things – a slave, two
slaves -- could be thus reacquired in one year instead of in two.
This peculiarity as to the time involved may perhaps be explained
by supposing that the objects of fiducia were originally persons (slaves)
and therefore res mobiles, or else consisted of whole estates which, like
hereditates, would rank in the interpretation of the XII Tables as
ceterae res. Now ii fiducia had been incorporated, as some think, in the
formula oi mancipium, and had been actionable by means of an actio
fiduciae based on the lex mancipi, could not the owner have recovered
the value of his property by bringing this action, instead of
having been forced to abide the tedious and doubtful result of a whole
year's possession ? The fact noted by Gaius that where no money is paid
no usureceptio is necessary, simply follows from the well-known rule
that an in iure cedens as well as a mancipio dans does not lose his
dominium until the price had been fully paid to him. We may therefore
conclude that mancipatio fiduciae causa resembled in its effect any -- 1 II. 59-60. -- other mancipatio.
If this be the case, then fduda must for many years have been an informal
and non-actionable pactum, supported by fides and by nothing else.
Bechmann holds that' the object of the fiduciary mancipation is expressed in the nuncupatio by the insertion
of the utterance-part, “fidi fiduciae causa”. But this is a minor
point which it is impossible to determine with certainty.
Fiducia then may be briefly described as a formless pactum,
adiectwm, annexed to Tmrndpatio or in iure cessio, but not originally
enforceable by action. Fiducia thus has no claim at this early date to be
considered as a contract. On the other hand, vadimonium is a contract
which we know to have been mentioned – if not introduced -- by the XII
Tables^. Gellius, however, speaks of the ancient uades as having
completely passed away in his time, so that in the opinion of Karlowa we
can scarcely hope to discover the original form of the institution. The
most thorough inquiry into the question is that made by Voigt, who treats
the authorities and sources with the minutest care, but whose conclusions,
typically, do not always seem to be well founded. Let us
first examine the essence of the transaction, a point as to which there is no
doubt. Vas meant a surety, and uadimonium the contract by which the
surety bound himself. Thus uadem -- 1 Kauf, I. p. 294. " Gell. xvi. 10.
8. » ibid. * L.A. p. 324. ^ Phil. Hist. Abhandl. der k.
S. Ges. d. Wiss. viii. 299. -- IMOS'irM. 81 poscere^ means to
require a surety, vadem dare to provide a surety, uadem accipere to take
a man as surety for another man, and uadari either to give surety
or to be a surety. From the point of view of the principal (“uadimonium
dans”) uadimonium sistere means to appear in due course uadimonium
deserere, to make default, while uadivionium differre meant to postpone
the obligation which the ims had undertaken. The penalty for
nonperformance was the payment (depensio) by the uas of the sum promised
by his principal, who however was bound to repay him. There might be more
than one uas. Voigt is probably right in stating that the svbuas was a
surety for the performance of the obligation by the original uas''.
There are two kinds of luidimonium:
that which secured the performance of some contract'; and that which
secured the appearance of the party in court, =bail'. Under the first of
these heads Voigt places the satisdatio secundum mancipium which is
found in the Baetic Fiduciae Instrumentumi as well as in Cicerone, but
whether or not this satisdatio was given in the form of a uadimonium must
remain undetermined ; though, if it had been so given, we might perhaps
have expected Cicerone to use the technical phrase. -- 1 Cio.
Rep. II. 36. 61; Var. L. L. vi. 8. 74. ' Cio. Fin. ii. 24. 79. ^
Cic. Brut. i. 18. 3. " Prise. Gram. i. 820. ^ Cic. Quint. 8.
29. 6 Cic. ad Brut. i. 18. 3. ; Plaut. Bud. 3. 4. 72. '
I. c. p. 307. ^ Varro, L. L. vi. 7. 71. » Cio. Off. IV. 10. 45.
" ad Att. v. 1. 2. B. E. 6 -- Next comes the
question, in what form was uadimonium origiQally made? The verbal
nature of the primitive contract seems to be proved by the passages that
Voigt quotes while he also completely denrolishes the old view which
regarded uadimonium as having always been a kind of stipulation, and
points out Varrone’s express statement that uas and sponsor were not the
same thing. On the other hand it is plain that uadimonium had come by
Cicerone's time to denote a mere variety of the stipulation, a fact which
may be gathered from his language' and that of Varrone, as well as
from the frequent use of promittere in passages describiag the contract.
The later aspect of uadimonium, need not however detain us, and we
may occupy ourselves solely with its primitive form. Leist seems to
think that both uadimonium and praediatura were binding, like the sponsio,
in virtue of a sacred " word-pledge," or in other words that
" Vas sum" “Praes sum'' had a formal value analogous to that of
" spondeo." This view he bases on the etymology of vms, praes
and their cognates in the Aryan languages, but an examination of Pott^
Curtius' and Dernburg' serves to show how entirely obscure that etymology
is. If we cannot be sure whether “uas” is derived from “fari,” -- 1 Gic. ad Qu. fr. ii. 15. 3. ; Ovid, Am.
i. 12. 23 : uadimmia garrula; etc. a L. L. VI. 7. 71. 3
Q„int. 7. 29. * loc. cit. 6 Etymol. Forsch. iv. p. 612. « Civ.
Stud. iv. 188. ' Pfdr. I. 27.. -- to speak, uadere, to
go, or from an Indo-Germanic root meaning to bind, it is clearly
impossible to build any theory on so insecure a foundation. Moreover,
whatever the true etymology of “uas” may ultimately be proved to be, we
can find in the above derivations no suggestion of a binding
religious significance such as we discover in sponsio. Voigt boldly
assumes a knowledge of the ancient ceremony, and assigns to the
iwtdimonium connected with the sale of a farm the following formula.
“Ilium fundum qua de re agitur tihi habere recte licere, haec sic recte
fieri, et si ita faMum non erit, turn x aeris tihi dare promitto."
This is not only purely imaginary, like many of Voigt 's reconstructed
formulae, but the unilateral form in which it is expressed has no
justification from historical sources. The scope of promittis promitto in
a stipulation is well established, but how can promitto in an unilateral
declaration have had any binding effect? Voigt justifies his view by a
comparison with dotis dictio and iurata operarum promissio'^, but in both of
these there was a binding power behind the verbal declaration. The word “promitto”
alone could never have produced the desired effect, unless we admit the
principle laid down by Voigt that an unilateral promise is sufficient to
create a binding obligation, which is merely to beg the question!
(Warnock takes this position in his “Object of Moralty” – but he finds ‘begging
the question’ not as objectionable “as other of my Oxonian colleagues do” – He is
Irish). If indeed we take promittere in its ordinary sense, we cannot
doubt that uadimonium in Cicerone’s time was contracted by sponsio or
stipu- -- 1 loc. cit. p. 315. ' lusNat. in. 178.
6—2 -- latio,
but on the other hand it is equally certain that the ancient uadimonium,
whatever it was, disappeared soon after the “Lex Aebutia.” The old
form known to the Decemvirs cannot then be stated with the absolute
certainty which Voigt seems to assume, but we may hazard one theory
as to its nature which appears not im- probable, or at least far less so
than that of an unilateral promissio. Gaius tells us that there
were several ways of making uadimonia, and that one of them was the
ancient method of iusiurandwm. That this was an exceptional method is
proved by our rarely finding it in use and its adoption is almost
inconceivable, except in the earliest times when the oath is fairly
common as a mode of contract. We may be sure that the old
uadimonium is embodied in some particular form of words, else it is
hard to imagine how the penalty could have been specified. But if so, and
if we exclude sponsio, as we are bound to do, what form of words
could have had such binding force as an oath? The rarity of this
oath in Gellius’s time may have induced him to state that it had quite
disappeared, while Gaius may have mentioned it in order to make his
list of vadimonia complete. Further, on examining the
remedies for a breach of iitsiurandum, we find that self-help was
resorted to, just as it was in cases of nexum. And when self-help
began to be restrained by law, the natural -- ' IV. 185. 2
e.g. 2 Dig. 8. 16. -- substitute would have been manus iniectio.
Now there is good reason to believe that the early iwbdimonium is enforced by the legis actio per maniis
iniectionem'^, and as Karlowa rightly says, we cannot imagine such a
severe penalty to have been entailed by an ordinary sponsio. Iusiurandum,
on the contrary, may easily have had this peculiarity, since it is
the only form of verbal contract which we know to have been protected by
means of self-help. Again, nanus iniectio seems to have been
employed not only by the principal against the uas, but also by the
uas against the principal. When Gaius states that sponsores were
authorized by a Lex Puhlilia to proceed by manus iniectio against a
principal on whose behalf they had spent money (“depensum”), he
seems to show that facts and circumstances are sometimes recognized as a
source of legal obligation. But we are bound to reject this explanation,
since no obligation “ex re” was recognized until much later in the Roman
jurisprudence. It is far more likely that, as Muirhead suggests,
the Lex Puhlilia merely extended to sponsores the remedy already
available to nodes; so that sponsio became armed with the manus iniectio
simply on the analogy of its older brother uadimonium. The theory
here put forward as to the early form of uadim.oniu/ni must remain a pure
conjecture in the absence of positive evidence. But its connection
with iusiurandum is at least a possibility. -- 1 Karlowa, L. A. p.
325 : Voigt, XII Taf. ii. 495. 2 L. A. p. 324. 3 R. L. p.
166. This vexed question may however be summed up. In the legal system of
the XII Tables uadimonium was a contract of suretyship, possibly
entered into by iusiurandwm, and probably entailing manus iniectio, (a)
if the surety (uas) failed to fulfil his obligation, or (b) if the principal
(uadimonium dans) failed to refund to his surety any money expended
on his behalf (ii) In later times uadimonium was clothed in
the ordinary sponsio and its old form had completely disappeared.
There are a few other fragmentary provisions in the XII Tables,
which relate to contracts and require a brief notice. I.
Paulus^ speaks of an actio in duplimi as given by the XII Tables ex causa
depositi. This cannot have had any connection with the actio
depositi of the Institutes and Digest, for the latter was an invention of
the Praetor {honoraria), and therefore could not have appeared till
towards the end of the Kepublic, while its usual penalty was
simplum, not duplum. Voigt explains^ this action of the XII Tables as an
instance of actio fduciae based upon a fiducia cvrni amico. But we
cannot admit that fiducia at such an early period was actionable at
all', and still less can we base on Voigt's assumption the further theory
that every breach of fiducia must have had a penalty of du- plum
annexed to it. The conjecture made by 1 Sent. II. 12. n. ^ XII.
Taf. ii. 4. 79. ACTIO EX CAV8A DEPOSIT!. 87
Ubbelohde' that the actio ex causa depositi of the XII Tables was
an actio de perfidia seems still more rash than that of Voigt, and has
deservedly met with but little favour. There are two points
to be noted in this statement of Paulus. He states that the action was ex
causa depositi: he does not call it actio depositi. (ii) He
does not say how the depositum was made, but implies that it might be
made by traditio as well as by Tnancipatio, which also goes against
Voigt 's theory. It was an ancient rule^ that if a man used
the property of another in a manner of which that other did not
approve, he was guilty of common theft, and was punishable in duplum like
any other fur nee manifestus. It seems therefore quite reasonable
to suppose that the XII Tables mentioned this kind o{ furtumi as arising
ex causa depositi. If so, the penalty of duplum mentioned by Paulus is
no mystery. It was merely the ordinary penalty as- signed to furtum
nee manifestum, and depositum as a contract had nothing to do with it.
Hence this actio ex causa depositi does not properly belong to our
subject at all. II. Gaius° says that by the pignoris capio
of, the XII Tables (a) the vendor of an animal to be' used for
sacrifice could recover its value if the purchaser refused to pay the
price, and (6) a man who had let a beast of burden in order to
raise money for a sacrifice could recover the amount of -- 1
Gesch. der ben. R. G. p. 22. ^ gai. iii. 196. » iv. 28. the hire.
Hardly anything is known of the legis actio per pignoris capionem, but it
was evidently some proceeding in the nature of a distress, through
which the injured party could make good his claim by seizing the property
of the delinquent. The only points in which this passage of Gains is
in- structive are these. First, we are here shewn what were
evidently exceptional instances of the legal liability of a man's
property, as distinguished from his person, for his breaches of
agreement. Secondly, we here have conclusive proof that the
consensual contracts of sale and hire were unknown at the period of
the XII Tables : these two special instances in which the contracts were first
recognised were both of a religious nature, and the makers of the
XII Tables do not seem to have dreamt that other kinds of sale or hire
needed the least protec- tion. Thus for many years to come the most
ordinary agreements of every-day life, such as hire, sale or pledge, were
completely formless, depended solely on the honesty of the men who made
them, and were not therefore, properly speaking, contracts at all.
The principle of the old Roman law that neither consent nor conduct could
create an obliga- tion ex contractu, but that every contract must
be clothed in a solemn form, appears in the fullest force
throughout the XII Tables. At the threshold of a new period we may pause
to review briefly the ground already covered, and to observe the very
different aspect of our future field of inquiry. We find the legal
system of the XII Tables to have possessed five distinct forms of
contract, iusiurandum (including uadimonium ?), sponsio, dotis
dictio, neooum, and leoc mancipi. But though the list sounds imposing
enough, these forms were still primitive and subject to many serious
limitations. Roman citizens only were capable of using them, and hence
they were useless for purposes of foreign trade. They all alike
required the presence of the contracting parties, and were therefore
available only to persons living in or near Rome. (iii) They
all required the use of certain formal words or acts, so that, if the
prescribed formula or action was not strictly performed, the
intended contract was a nullity. The remedies for a breach of
contract, except in the case of nexum and lex mancipi, were
probably of the vaguest description, and may have consisted only of
self-help carried out under certain pontifical regulations.
A system with so many flaws was plainly incapable of meeting the many
needs which grew out of immense conquests and rapidly extending
trade. Accordingly by the end of the Republic we find that the law of
contract had wholly freed itself from every one of these four defects
: (i) Contracts had been introduced in which aliens as well
as Romans could take part. Means had been devised for making con-
tracts at a distance. Forms had by degrees been relaxed or
abolished. (iv) Remedies had been introduced by which."
not only the old contracts but all the many new. ones were made
completely actionable. The question now before us is: how had
this wonderful development been achieved ? It is customary in
histories of Roman Law to subdivide the period from the XII Tables to
the end of the Republic into two epochs, the one before the Lex
Aebutia, the other subsequent to that law. The reason for this
subdivision is that the Lea: Aebutia is supposed to have abolished the
legis actio procedure and to have introduced the so-called
formulary system, which enabled the Praetors to create new forms of
contract by promulgating in their Edict new forms of action.
Such a division doubtless has the merit of giving interest and
definiteness to our history, but it has two great drawbacks : First, that
we do not know what the Lex Aebutia did or did not abolish ; and secondly,
that its date is impossible to determine. As to its provisions, the two
passages in which the law is mentioned by Gains ^ and Gellius'''
merely prove that the legis actio system of procedure and various
other ancient forms had become obsolete as a result of the Lex Aebutia.
But that these were not suddenly abolished is proved by the
well-known fact that Plautus and Cicero refer more often to the
procedure by legis actiones than they do to that per formulas. The most
plausible theory seems to be that which regards the Lex Aebutia as
having merely authorized the Praetors and Aediles to publish new
formulae ia their annual Edicts. But even this is nothing more than a
conjecture. The date of the Lex Aebutia (probably later than
A. V. C. 500) is also involved in obscurity, as is proved by the fact
that scarcely two writers agree upon the question". It
seems clear that a law about which so little is known is no proper
landmark. The plan here adopted will therefore be a different one.
We shall content ourselves with a detailed examination of each of
the kinds of contracts which we know to have existed at Rome between the
XII Tables and the beginning of the Empire, treating in a separate
section of each contract and its history down to the end of the period.
By this means we may avoid confusion and repetition, though the
period in hand, extending as it does over nearly five hundred years, is
perhaps inconveniently large to be thus treated as a whole. 1
IV. 30. ' XVI. 10. 8. ' A. V. c, 584 according to Poste and Moyle ;
513 aecording to Voigt ; 507 according to Muirhead ; etc. Art.
1. Nexvm. The severity and unpopu- larity of nexum did not prevent its
continuance for at least one hundred years after the modifications
made in it by the XII Tables. Its character remained unchanged, until at
last the Roman people could suffer it no longer. In A. v. c. 428' a
certain nesous was so badly treated by his credi- tor that a reform was
loudly demanded. The Lex Poetilia Papiria was the outcome of this
agitation. Cicero', Livy' and Varro* have each given a short
account of the famous law, and from these it may be gathered that its
chief provisions were as follows : (i) That fetters should ia
future be used only upon criminals. (ii) That all insolvent
debtors in actual bondage who could swear that they had done their best
to meet the claims of their creditors °, should be set free.
1 According to Liyy, but Dionysius makes it 452. 2 Bep. II,
30. 40. 59. s viii. 28. * L. L. vii. 5. 101. ' Next qui bonam copiam
iurarent : cf. Lex lul. Mun. 113, -- That no one should again be neccus
for borrowed money, i.e. that manus iniectio and the other ipso
iure consequences of nescum should henceforth cease. Varro is
the one writer who mentions the qualification that it was only nexi qui
honam copiam iurarent who were set free. But Cicero and Livy may
well have thought this an unnecessary detail, considering what an immense
improvement had been made by the statute in the condition of all
future borrowers. A clause of the Lex Coloniae luliae Genetiuae^ shows
that imprisonment for debt was still permitted, but that the effects of
ductio were much softened, the uinctio neruo ant compedibus and the
capital punishment being abolished along with the addictio. But diici
inhere was still within the power of the magistrate^, and Karlowa"
seems to be right in holding that this was not a new kind of ductio
originating subsequently to the Lex Poetilia (Papiria). The Praetor
doubtless always had the power to order that a iudicatus should be taken
and kept in bonds. But this was a very different thing from the
utterly abject fate of the nexus under the XII Tables. It was only therefore
the special severities consequent upon nexum that can have been
abolished by the Lex Poetilia. Nexum itself was not abro- gated,
for the way in which later authors speak of it shows that there still
survived, if only in theory, a form bearing that name and creating an
obligation. But as soon as its summary remedies were taken -- 1
cap. 61; Bruna, Font. p. 119. 2 Lex Bubr. cap. 21 ; Bruns, Font. p.
98. ^ L. A. p. 165. -- away, neocum became less popular as a
mode of contract and gave way to the more simple obligatio uerbis.
Another reason for its being disused, wlien it no longer had the
advantage of entailing capital punishment, was that the introduction and
wide- spread use of coinage made the use of scales unnecessary.
Stipulatio, which required no acces- sories and no witnesses, was now the
easiest mode of contracting a money loan. We shall see in the next section
that it came to have still further points of superiority, and thus it was
certain to supersede newum, when neoswii ceased to have special
terrors for the delinquent debtor. The solutio per aes et libram
which we find in Gaius, as a survival of solutio nesd, was not the
release of nexii/m, but the similar release used for discharging a legacy
per darrmationem or a judgment debt. Its continued existence is no
proof that neam/rn survived along with it, for in later days it had
nothing to do with the release of borrowed money. But though nexum proper
certainly died out before the Empire, we have seen' how the meaning
of the word became more vague and com- prehensive. By the end of the
Republic we find neocum used to describe essentially different
trans- actions, and simply denoting any negotiwm per aes et
libram. Art. 2. Sponsio and stipvlatio. The origin and
early history of sponsio have already been considered. There
is no authority for Bekker's opinion that sponsio was enforceable
before the XII Tables by the legis -- actio Sacramento^, nor do we know
that it gave rise to any action, but notwithstanding this fact we
have seen good reason for concluding that it existed at Rome from the
earliest times. As we found that its origin was religious, and as the XII
Tables do not mention it, we may regard the remedies for a breach
of sponsio as having been regulated by pontifical law, down to the time
when condictiones were introduced. In the law of this last period
sponsio appears in three capacities. As a general form of contract adapted
to every conceivable kind of transaction. As a form much used in
the law of pro- cedure. (3) As a mode of contracting
suretyship. Its binding force was the same in all these three
adaptations, but its history was in each case different. Thus sponsio was
used as a general form of contract down to the time of Justinian, though
it had then long since disappeared as a form of suretyship. And
there were statutes affecting the sponsio of surety- ship which had
nothing to do with the sponsio of contract or of procedure. It will
therefore be con- venient to treat, under three distinct heads, of
the three uses to which sponsio became adapted, remem- bering
always that in form, though not in all its remedies, it was one and the
same institution. I. Sponsio as a general form of contract.
We have seen that the form of sponsio consisted of a question put
by the promisee and answered by the promisor, each of whom had to use
the -- 1 AU.i. p. 147. word spondere. For example : Qu. :
" Sponden ticam gnatam filio uxorem meo ? " Ans. : "
Spondeo^." Qu. : "Centum dari spondes?" Ans.: "
Spondeo^." This form was available only to Roman citizens. But
there subsequently came into existence a kindred form called stipulatio,
which could be used by aliens also, and could be expressed in any
terms whatsoever, provided the meaning was made clear and the
question and answer corresponded. The connection between sponsio
and stipulatio is the first question which confronts us. There is
no doubt that sponsio was the older form of the two, because (i) it
alone required the use of the formal word spondere, (ii) it was strictly
iuris ciuilis, where- as stipulatio was iuris gentium^, and (iii) it had
to be expressed in the present tense (e.g. dari spondes?) whereas
stipulatio admitted of the future tense (e.g. dabis ? fades ?), which
Ihering^ has shown to be a sign of later date. Since the rise of the tits
gentivm, was certainly subsequent to the XII Tables, we are
justified in ascribing to the stipulatio a comparatively late origin,
though the precise date cannot be fixed with certainty.
Though stipulatio was a younger and a simpli- fied form, yet it is
always treated by the classical jurists as practically identical with
sponsio. Both were verbal contracts ex interrogatione et
responsione, and their rules were so similar that it would have
been waste of time and useless repetition to discuss them
separately. 1 Varro, L. L. vi. 7. 70. ^ Qaius in. 92. 3
Gaius loc. cit. * Geist d. B. B. ii. 634. The derivation of stipulatio
has been variously given. Isidorus derived it from stipula, a straw
; Paulus Diaconus and Varro" from stips, a coin; and the
jurist Paulus*, followed by the Institutes, from stipulus, firm. The
latter derivation is doubt- less the correct one^ but it does not help us
much. What we wish to know is the process by which a certain form
of words came to be binding, so that it was distinctively termed
stipulatio, the firm trans- action. Now if we conclude, as Voigt does',
that the stipulatio and the sponsio were both imported from Latium,
their marked difference with respect to name, age and form must remain a
mystery. Whereas we may solve, or rather avoid, this diffi- culty
by acknowledging that sponsio was the parent of stipulatio, and that the
latter was but a further stage in the simplification of sponsio which
had been steadily going on since the earliest times. We have
already reviewed the three stages through which sponsio seems to have
passed. Stipulatio in all probability represents a fourth and wider
stage of development. The binding force of a promise by question
and answer, apart from any religious form, at last came to be realized
after centuries of use', and as soon as the promise became more
conspicuous than the formal use of a sacred word, the word spondere was
naturally dropped, and with -- 1 Orig. 5. 24. - s. u. Stipem.
3 L. L. VI. 7. 69-72. * Sent. v. 7. 1. ^ See Ihering, Geist
ii. § 46, note 747, who compares the German Stab, Stift, bestatigen,
bestiindig. 6 lus Nat. II. 238. '' Ihering, Geist ii. p. 585.
B. E. 7 it fell
away the once descriptive name sponsio, to make way for that of
stipulatio, now a more correct term for the transaction. Thenceforward,
as a matter of course, stipulatio became the generic name, while
sponsio was used to denote only the special form spon- desne?
spondeo. The precise date of the final change is a matter of
guess-work. But as stipulatio was the form avail- able to aliens^ it was
probably the influx of strangers which made the Romans perceive that
their old word spondere, only available to Roman citizens, was
inconvenient and superfluous. Unless contracts with aliens had become
fairly common, the need of the untrammelled stipulatio would hardly have
been felt. Therefore it seems no rash conjecture to suppose that
the stipulatio was flrst used between Romans and aliens, and first
introduced about A.V.C. 512*, the date generally assigned to the creation
of the new Praetor qui inter peregrinos ius dicebat. As to the
form of the stipulatio : (a) Ihering* and Christiansen* have
expressed the opinion that originally the promisor did not merely
say spondeo, faciam, daho, etc., as in most of the known instances, but
repeated word for word all the terms of the promise as expressed in the
question put by the promisee. This view is based upon the passages
in Gaius^ and the Digest*, which lay great stress upon the minute
correspondence necessary between the question and the answer in a
vaHd -- ' Gai. III. 93. 2 Liu ^^j-^ ^ix. » Geist II.
582. * Inst, des B. B. p. 308. •^ in. 92. « 45 Dig. 1. 1. -- stipulation.
It is hard to see how such a rule could have arisen unless there had been
some danger of a mistake in the promisor's reply, and if this reply
had been confined to the one word spondeo, promitto, or faciani, a
mistake would hardly have been possible. Hence this view seems highly
pro- bable. (b) Voigt"^ has given the following account
of the origin of the various formulae. (i) The form spondesne
? spondeo is the oldest of all, and dates back into very early times ^
which is probably quite correct. But in a more recent work' this
view expressed in "lus Naturale" is unfor- tunately abandoned,
and Voigt regards sponsio as a Latin innovation dating from the fourth
century of the City. This seems surely to place the birth of
sponsio far too late in Roman history. (ii) The looser form dabisne
? dabo is found in Plautus*, and was no doubt, as Voigt says^ a
product of the ius gentium and first introduced for the benefit of
aliens. (iii) Lastly, the origin of the forms promittis ? promitto,
and fades? faciam^, is placed by Voigt not earlier than the beguming of
the Empire. But his reasons for so doing seem most inadequate. If
the form dabisne? dabo occurs in Plautus, the form fades? fadam, which is
essentially the same, can hardly be attributed to a later period. And
since 1 Ius Nat. IV. 422 ft. 2 See Liu. iii. 24. 5,
A.v.c. 295, and iii. 56. 4, A.v.c. 305. 3 Bom. RG. i. p. 43. Pseud.
1. 1. 112, A.v.c. 663. 5 /. N. IV. 424. « Of. Gaius, in. 92. 116.
7—2 prondttam is used by Cicero as a synonym
for spondea/m}, and fidepromittere was an expression used in
stipulations, as Voigt admits, two centuries before the end of the
Republic'-', it seems rash to affirm that promittere, the shortened
phrase, was not used in stipulations until the time of the Empire.
We may therefore attribute both of these forms to republican times.
(c) The admissibility of condicio and dies as qualifications to a
stipulation must always have been recognized, since a promise deals
essentially with the future and requires to be defined. (d)
The insertion of a conventional penalty into the terms of the contract
was probably practised from the very first, whenever facere and not
dare was the purport of the promise, because the candictio certi
was older than the condictio incerti, and there- fore for many years an
unliquidated claim would have been non-actionable unless this precaution
had been taken. We have now seen that verbal contract by
ques- tion and answer, whether called sponsio or stipulatio,
existed long before it became actionable. When it finally became so is
uncertain, though we know what forms the action took. (a)
Condictio certae pecuniae. Gains' speaks of a Lex Silia as having
introduced the legis actio per condictionem for the recovery of
certa pecunia credita. This law is mentioned nowhere else, and its date
can only be approximately fixed. 1 Cic. pro Mur. 41. 90. ^ I. N.
iv. 424, note 77. -' IV. 19. We know from
Cicero^ that pecwnia credita, a re" money loan, might in his time
originate in ways, by datio (mutuum), expensilatio, or stipulatio.
But we cannot infer from this that the Lex Silia made all those three forms
of loan actionable'', for mutuum and expensilatio, as will presently be
seen, were certainly of more modern origin than the condictio
certae pecuniae. It appears indeed that stipulatio was the original
method of creating pecunia credita^: consequently the Lex Silia must
have simply provided for the recovery of loans made by sponsio or
stipulatio. It is noticeable, moreover, that Gaius speaks as though by
this law money debts had merely been provided with a new action :
he does not imply that stiptdatio or sponsio was thereby introduced, as
Voigt'' and Muirhead' have ventured to infer. Their view is surely an
un- warrantable inference, for if the Lex Silia had created so new
and important a contract as stipu- latio, Gaius would hardly have
expressed so much surprise at the creation of a new form of action
to protect that contract. His language seems clearly to imply that
pecunia credita was already known, and was merely furnished by this law
with a new remedy. We may conclude then that pecunia credita must
have existed before the Lex Silia, and can only have been created by
stipulatio. Stipulatio ' Rose. Com. 5. 14. ^ Puohta, Imt.
162. 3 Cf. the dare, credere, expensum ferre of the
Instrumentum fiduciae in Bruns, p. 2-51, with the dare, gtipulari, and
expensum ferre of Rose. Com. 5. 13-14, and see Voigt, lus Nat. it.
402. * Ills Nat. II. 243. ' R. L. p. 230.
cannot, therefore, have been introduced by this law, though it
probably was thereby transferred from the religious to the secular
code. The age of the Lex Silia has been variously given', but
there are no trustworthy data, and any attempt to fix it must be somewhat
conjectural. The only thing we do know is that this law must have
been enacted a considerable time before the Lex Aquilia of A.V.C. 467,
for the latter law pun- ished" the adstipulator who had given a
fraudulent release, and as this release must have applied to the
stipulatio certae rei of the Lex Galpurnia', it is evident that the Lex
Aquilia must have been younger than the Lex Calpurnia, which, as we shall
see, was itself younger than the Lex Silia. We may perhaps
approximate even more closely to the date of the Lex Silia. Muirhead^ has
con- jectured with much plausibility that the introduction of the
condictio certae pecmviae was a result of the abolition of the nexal penalties,
or in other words that the Lex Silia followed soon after the Lex
Poetilia of A.v.c. 428. There are several strong points in favour of this
hypothesis. It explains Gaius' difiiculty as to the reason why condictio
was introduced. For when the terrors of nexum were abolished, it was
natural to substitute some penalty of a milder description and not to
let defaulting debtors go entirely unpunished. Now 1 A.V.C.
311 to 329, according to Voigt, I. N. iv. 401. " Gai. III.
215. ' Of. quanti ea res est in Gai. loc. cit. with 13 Dig. 3.
4. * R. L. p. 230. -- this is just what the condictio
certae pecuniae, with its sponsio poenalis tertiae partis,
presumably accomplished, for like neocum it dealt only with
pecunia. (ii) This hypothesis helps us also to understand why
the condictio certae pecuniae should have been introduced before the
cmidictio certae rei, thus making a stipulation of certa pecunia
actionable, while a stipulation of res certa had not this protec-
tion. As we found above', the introduction of coin must have made the
stipulatio certae pecuniae a very convenient substitute for nexiom. It
was therefore natural to give a remedy to this stipidatio and so to
make it take the place of nexum as a binding contract of loan ; while
certa res, never having had and therefore not immediately requiriag a
remedy, was not protected by condictio until several years
later. (iii) We can also see why the condictio ceiiae
pecuniae should have been the only condictio fur- nished with so severe a
penalty as the sponsio poenalis. It was because money loans had
been jealously guarded in the days of nexum, and it was therefore
thought proper to protect the money loan by stipulation far more
carefully than the promise of a res certa. All these seem
strong points in confirmation of Muirhead's hypothesis. By connecting
stipulatio and condictio with the downfall of nexum and of its
manus iniectio, we not only get a plausible date for the Lex Silia, but
what is far more important, we obtain a satisfactory explanation of the
curious fact that, while stipulationes were made actionable, they
were not all made so at once. The forms of condictio under the
legis actio system are not known, but under the formulary system,
this condictio had the following formula: Si paret N^ N'egidium
A" Agerio HS X dare oportere, iudesc, iV™ Negidium A" Agerio X
condemna. s. n. p. a} Its peculiar sponsio will be given in another
place. (b) Condictio triticaria or certae rei. The Lex
Calpurnia, which must have preceded the Leoo Aquilia^ and must therefore
have been enacted earlier than A.v.C. 467, extended the legis actio
per condictionem to stipulations of triticum, corn, {condictio
triticaria) ; and this, being soon interpreted by the jurists as
including every debt of res certa, gave rise to the condictio certae rei.
This new kind of condictio omitted, for the reason above '-stated,
the sponsio and restipulatio tertiae partis, in place of which the
defendant merely promised to the plaintiff a numnvus wnus which was never
exacted or paid*. Therefore, as the severer law invariably precedes
the milder, we might be sure that the Lex Silia with its heavy
penalty was older than the Lex Calpurnia with its nominal fine*, even if
Gains had not clearly led us to this conclusion by the order in which
he mentions the two laws'. The formula ran thus : Si paret
N'^ Negidiwm A" Agerio tritici optimi X modios dare oportere,
qvtanti 1 Gai. IV. 41. Lenel, Ed. Perp. 187. ^ See above, p.
102. » p. 103. * Voigt, I. N. III. 792. ' Keller,
Civilp. 20. « Gains, iv. 19. ea res est, tantam pecuniam, index,
iV™ Negidium A" Agerio condemna. s. n. p. a. (c)
Condictio incerti. The above condictio triticaria, or certae rei,
was in course of time extended by the interpretation of the jurists
or by the Praetor's Edict to res incertae, and gave rise to a condictio
incerti, which was the proper action on a stipulation involving facere
or praestare or some other object of indefinite value. The thing
promised might be defined as quanti in- terest, or quanti ea lis aestimata
erit etc.', and it is plain how much this comprehensive mode of ex-
pression must have increased the adaptability and general usefulness of
the stipulation. In this way, for instance, the cautio damni infecti and
the stipu- lations of warranty were doubtless always expressed. The
nature of this condictio may perhaps be best understood from its formula,
which was as follows : Quod A^ Agerius de N" Negidio incertum
stipulatus est, quidquid paret oh earn rem N™ Negidium A"
Agerio dare facere oportere, eius iudex, N™ Negidium A" Agerio
condemna. s. n. p. aJ' This was so far an advance upon the condictio
certae rei that, the condemnatio here left the damages entirely to
the discretion of the judge; but it was still a stricti iuris
action, in which no equitable pleas were ad- mitted on the part of the
defendant. {d) Actio ex stipulatu. We have seen that the
condictiones certae pecuniae and certae rei were due to legislation, and
the con- dictio incerti to juristic interpretation: it remains 1
Voigt, RG. I. pp. 601-2. 2 (jai. iv. 131, 136. to inquire what was
the origin of the actio ex stiffulatu, i.e. the honae fidei action on a
stipulation for incertwm dare or for certwm facere^, which
completed this series of legal remedies. Its ap- pearance was an event of
great importance to the subsequent history of Contract, since it applied
ex- clusively to stipulations containing a honae fidei clausula,
and it was by means of this action alone that such stipulations were
enforced I Voigt's ex- planation of its origin is that the actio ex stipulatu
was devised as the proper remedy for fidepromissio and for the cautio rei
uxoriae introduced in A.V.C. 523'. But it is very doubtful if the date
can be fixed with such exactness. There is nothing to show that the
actio ex stipulatu did not exist earlier than those particular forms of
stipulation ; and if it had been, as Voigt thinks, the original action on
a fideproTnissio, it would probably have been known as actio ex
fidepromisso or by some such descriptive name. The
introduction of the doli clausula is the most important event in the
whole history of the stipulatio, yet the exact moment at which this took
place is hard, if not impossible, to fix. Girard* attributes its
invention to C. Aquilius Gallus. But if this had been the case, Cicero^
would hardly have overlooked the fact. On the other hand Voigt, who
rightly identifies the actio ex stipulatu with the action on a
1 Bethmann-Hollweg, C. P. p. 267. 2 44 Dig. 4. 4. fr.
15-16. 3 I. N. IV. 407. Gellius iv. 1, 2. * N. Rev.
Hist, de Droit, xiii. 93. ^ Off. in. 14. 60. doli clausula,
and regards the two as inseparable, places the introduction of doli
clausula earlier than the time of Cicero, because that writer mentions
the actio ex stipulatu among the " indicia in quibus ad- ditur
' ex fide bona^.' " The introduction of the first clausida doli was,
according to Voigt", made by the words fides, in fidepromissio, and
"quod melius aequius sit" in the cautio rei uxoriae^. This
conjecture is unsupported by evidence ; for though we know that
cautio rei ihxoriae* and fidepromissio^ were both actionable by the actio
ex stipulatu, and therefore must have contained doli clausulae, we have
no right to assume that they were the first of their kind.
We cannot, moreover, follow Voigt in supposing the actio ex
stipidatu to have been expressly invented for fidepromissio and cautio
rei uxoriae. We have to presuppose the existence of a condictio incerti
before the doli clausula could become actionable, since a claim of
damages for dolus was necessarily an in- certum; and there is no reason
why the actio ex stipulatu should not have been developed from the
condictio incerti by mere interpretation. Its essential connection with
the stipulatio containing the clausula doli may readily be admitted, but
we cannot be certain what were the first stipulations containing
clausulae of the kind. The doli clausidae are well summarized by
Voigt '^ as follows : 1 I. N. IV. 413. 2 I. N. IV. 407.
3 Boeth. ad Top. 17. 66. " 23 Dig. 4. 26. s 45 Dig. 1.
122. « I. N. iv. 411. (i) " Quod melius aequius
erit," as in " cautio rei uxoriae." (ii)
" Fide," in fidepromissio. (iii) " Si quid dolo in
ea re factum sit^." (iv) "DoluTn Tnalum, huic rei abesse
afuturuinque esse spondesne^ ?" (v) " Gui rei si
dolus malus non abest, non abfuerit, quanti ea res est tantam pecuniam,
dari spondes^ ? " The date of each of these forms is,
however, impossible to determine. The cases of contracts by
stipulation in which doli clausulae are found have been collected by
Voigt*, but need not be enumerated here. The effect of the
clausula was to convert the action on the stipulation containing it from
a stricti iuris action into a bonaefidei action, in which equitable
defences might be entertained by the judge. This ex- pansion was effected
by introducing the words " dare facer e oportere ex fide bona "
in the intentio of the action. If "ex fide bona " had not
appeared in the formula of an actio ex stipulatu, the action would
simply have been a condictio incerti. It seems there- fore reasonable to
suppose that the actio ex stipulatu was nothing more than a development
of the condictio incerti, and that the words ex fide bona, perhaps
suggested by the actio emti, were inserted to suit the liberal language
of the stipulation. In praetorian stipulations the doli clausula
was 1 4 Dig. 8. 31. ^ 46 Dig. 7. 19, 50 Dig. 16. 69.
3 46 Dig. 1. 38. fr. 13. " I. N. iv. 416 ff. an
usual part of the fonnula; e.g. in cautio legis Falcidiae^, stipulatio
iudicatum soltii', stipulatio ratam rem haberi^, etc. But in conventional
stipulations it was purely a matter of choice whether the doli
clausula should be inserted or not. We must not fancy that the
actio de dolo and the exceptio doli, which Cicero attributes to his
colleague C. Aquilius Gallus', had anything in com- mon with the actio ex
stipulatu based upon a clausula doli^. The former remedies were a
pro- tection against fraud where no agreement of a contrary kind
had been made", whereas the action on a stipulation containing the
clausula doli was available only when dolus maltts had been
specially excluded by agreement. Hence it follows that where the
stipulation had omitted the clausula doli there can have been no remedy
for dolus until the great reform introduced by Aquilius Gallus.
As soon as stipulations of all kinds had thus become actionable, and
had probably passed out of the hands of the Pontiffs into the far more
popular jurisdiction of the Praetor, the law of contract received
an extraordinary stimulus, and we find the stipulation producing entirely
new varieties of obli- gation, though its form in each kind of contract
re- mained of course substantially the same. Here are some of the
purposes for which stipulatio was em- 1 35 Big. 3. 1. = 46 Big. 1.
33. » 46 Big. 8. 22. fr. 7. ' Off. in. 14. 60. Nat. B.
in. 30. 74. » Voigt, I. N. 3. 319. ' See the case of
Canius, in Cio. Off', in. 14. 58-60. -- ployed, apart from its uses in procedure
and surety- ship. (1) It produced a special form of agency
by means of adstipulatio^. The promisee who wished a claim of his
to be satisfied at some far-off period, when he might himself be dead,
had only to get a friend to join with him in receiving the
stipulatory promise. This friend could then at any time prosecute the
claim with as good right as the principal stipulator, and the law
recognised him as agent for the latter. Even a slave could in this way
stipulate on behalf of his master*. (2) In consequence of its
universal adaptability, the stipulation gave rise to nmiatio. The
reducing to a simple verbal obligation of some debt or obligation
based upon different grounds (e.g. upon a sale, legacy, etc.) was
accomplished by stipulatio, and known as expromissio debiti
proprii. (3) It created a rudimentary assignability of
obligations by virtue of delegatio, another form of nouatio. In the one
case, the debtor was changed, and the creditor was authorised by the
former debtor to stipulate from the new debtor the amount of the
former debt : in the other case {expromissio debiti alieni) the creditor
was changed, and the new creditor stipulated from the debtor the amount
owed by him to the former creditor. (4) It also created the
notion of correal obli- gation, by which two or more promisors in a
stipulation made themselves jointly responsible for the whole debt, and
so gave additional security to 1 Gai. III. 117. = .? Inst. 17.
1. Ill the promisee.
The effects of this will be seen in a later section. (5) It
served to embody in a convenient shape any special condition annexed to a
separate contract — e.g. a promise to pay the price agreed upon in
a sale', and the stipulationes simplae et duplae annexed to sales of res
nee mancipi^. Thus an enforceable contractus adiectus could be made on
the analogy of a pactum adiectum. (6) It clothed in an
actionable form so many different kinds of agreements that it would
be impossible to exhaust the list. For instance, agree- ments as to
interest^ wagers, the promise of a dowry^, the making of a compromise^
the creation of an usufruct, could all be thrown into stipulations
either single or reciprocal, and thus turned into binding
obligations. (7) Most of the events in the history of this
immense development of stipulatio are impossible to fix at any given
period, though the attempt to do so has been often made. Yet the invention
of one famous stipulation can be exactly dated, from its bearing
the name of Cicero's colleague, C. Aquilius Gallus, and having therefore
been invented by him in the year of his Praetorship^. This Aquilian
formula, which operated as a general release of all obligations, and
which the Institutes' give us in full, is an excellent instance of the
usefulness of the stipulation, and it also clearly shows what long
and 1 Cato, R. R. 146. ^ Varro, R. R. ii. 3. ' Plant.
Most. 3. 1. 101. * See p. 32. « Plant. Bacch. 4. 8. 76. « A.v.c.
688. ' 3 Inst. 29. 2. elaborate forms this contract
sometimes assumed in later times, so that all kinds of terms, de-
scriptions or warranties might without difficulty be incorporated in a
single comprehensive formula. It was probably this increasing length of
stipu- lations which caused them to be put in writing, and induced
lawyers to publish formulae in which they should be expressed. Both of
these results had already taken place in the time of Cicero. He not
only speaks of written stipulations, but also describes the composition
of stipulatory formulae as one of the chief literary occupations of a
leading lawyer'. We know from a constitution of the Emperor Leo,
which changed the law in this respect, that the written stipulations of
the Republic and early Empire were merely put into writing for the
sake of evidence". The writing in itself constituted no contract,
and raised no presumption in favour of the existence of a contract; but
the written stipu- lation had to conform with all the rules of the
ordinary spoken stipulation, since it was nothing but a spoken
stipulation recorded in writing. The legislative changes of the
period were mostly devoted to modifications in the stipulations of
suretyship. But in a few cases the ordinary stipu- lation was itself
affected. (i) By the Lex Titia of A.v.c. 416—426° stipu-
lations for the payment of money lost at gambling were declared
void. (ii) Various laws against usury were enacted, 1
de leg. i. 4. 14. 2 3 Inst. 15. 1. ' Voigt in Phil. Hist. Ber. der
S. G. der W. xiii. 257. all of which affected the stipulation,
since that was the mode in which fenus was usually contracted.
(ui) The Lex Cinaia de mwieribus of A. v. c. 550, the object of
which was to restrain lavish gifts to pleaders and public men, naturally
limited all stipu- lations between parties within range of the
prohibi- tion, and in the corresponding condictio gave rise to the
exceptio legis Ginciae, which probably ran thus : ...si in ea re nihil
contra legem Ginciam factum sit... (iv) The Praetor C. Aquilius
Gallus, as above mentioned^, instituted in his Edict the exceptio
doli mali, and thereby nullified stipulations which, how- ever
perfect ia form, had been procured by fraud. This exceptio was of course
inapplicable to cases in which the stipulation contained a clausula
doli. II. Sponsio in the law of Procedure. The original
function of the processual sponsio seems to have been that of helping to
decide the question at issue by expressing it in the form of a
wager. As a common feature of practice, sponsio made its appearance in
many other different connec- tions, and sometimes developed into the more
modern stipulatio. We find it employed : (i) As a means of
obtaining a decision by a wager, in which the contention of either party
was succinctly stated and so submitted to the judge. This was known
as sponsio praeitodicialis. (ii) As a means of fixing a penalty, as
well as of obtaining a decision, in (a) the condictio certae
1 p. 109. B. E. 8 pecuniae or (6) the interdicts,
in which case it was known as sponsio poenalis. (iii) As a
mode of giving security ; for instance in the uindicatio, where we find
the stipulatio pro praede litis et uindiciarum. Bekker's
classification^ does not exactly correspond with this one. He divides
processual sponsiones into (A) sponsiones made in the course of a
trial, (a) as to the chief question, (6) as to
conditions and incidental matters, and (B) sponsiones made apart from a
trial, (a) with a view to some future trial, (b) with
no such view. The objection to this classification seems to
be that the whole of class (B) were not properly pro- cessual
sponsiones at all. 1. Sponsio praeiudicialis' was a promise to
pay a fixed sum, made by the plaintiff to the defendant, and
conditioned upon the plaintiff's defeat. It was accompanied by a similar
promise (restipulatio) on the part of the defendant, conditioned upon his
defeat. These mutual sponsiones were in fact nothing more than a
bet on the result of the action. They generally involved a merely nominal
sum, and were perhaps first introduced in the actio per sponsionem in
rem, as a means of settling the question of ownership without
employing the larger and more costly sacramentum of five hundred asses'.
The date of their origin is impossible to fix, but the custom of making
such sponsiones and having them decided by a judge 1 Akt. I.
257. 2 Gai. iv. 94. 165. 3 Baron, p. 403. seems to have
been one of great antiquity, and must have existed long before the
sponsio became armed with any condictio. The very notion of a bet
submitted to a judge as a means of deciding rights of property seems, as
Sir Henry Maine has said ', to savour of the primitive time when the
judge was simply a man of wisdom called in to arbitrate between two
disputants. Moreover, it is hard to imagine that the actio per sponsionem
in rem could have been introduced in any but the most ancient
times, when in Cicero's age there were the rei uindicatio sacramento and
the far simpler m uin- dicatio per formulam petitoriam to accomplish
the same objects There is therefore every probability that the
actio per sponsionem was at least as old as the legis actio sacramento.
According to Voigt* the procedure per sponsionem was the original form
also of the actio Publiciana introduced in A.v.C. 519. In Cicero's
time it was still a favorite method of pro- cedure for all sorts of
litigation^. (a) In questions as to property the plaintiff
might choose whether he preferred to bring an actio per formfublam,
petitoriam, or one per sponsionem^. If he chose the latter course, the
defendant was compelled sponsions se defenders. (b) In really
trivial praeiitdicia the question was stated in the formula and sent
straight to the i^tdex without any condemnation, but the procedure
1 E.H. of I. 259. 2 KeUer, C. P. § 28. ^ j. j^. ly. 506. "
e.g. Caec. 8. 5 Lex Ruhr. e. 21, 22; Cic. 2 Verr. i. 45. 115;
Gaius, iv. 91. ^ Gai. IV. 44. 8—2 in this
case was not necessarily based upon a sponsio praeiudicialis and might be
a simple preliminary inquiry ordered by the Praetor. The
sponsio praeiudidalis thus worked in a peculiarly roundabout way; its
penalty was nomi- nal and not therefore its real object, and it
brought about a decision on the main question by treat- ing that
question as a thing of secondary im- portance. 2. Sponsio
poenalis (a) in the condictio, was pecu- liar to the legis actio per condictionem
introduced by the Lex Silia. It was accompanied by a restipulatio,
so that either party to the action promised to the other a penalty of
one-third ' in the event of losing his case. Eudorff" reconstructs
the formula of this sponsio as follows : Si pecuniam certam creditam
qua de re agitur mihi debes, earn pecuniam cum tertia parte amplius
dare spondes? But this seems in- correct, since from Cicero's language'
we gather that the sponsio was for the tertia pars only; the sum in
dispute plus one-third is never mentioned. The formula then was probably
as follows: Si pecuniam certam creditam qua de agitur mihi debes,
dus pecuniae tertiam partem dare spondes ? Hence Rudorff* seems also
wrong in stating that the con- demnatio of the formula in the
corresponding condictio must have involved the principal sum plus
one-third. Voigt ^ more correctly holds that the condemnatio can
only have involved the summa sponsionis. We can 1 Cic. Base. Com.
5. 14. 2 Ed. Perp. p. 103. '' " legititnae partis sponsio
facta est." Rose. Com. 4. 10. * Rom. RG. II. 142. ^ j_ j^ m
741^ see that, as Gains ' implies, this sponsio was just
as much praeiudicialis as that of the actio per sponsio- nem,
giving as it did a ground for the decision of the main question ; but it
was also distinctly poenalis, be- cause the sum which it involved was
worth having and worth extorting from the unsuccessful party, and
therefore the condemnatio was carried out in the usual manner. The
principal sum in dispute was then no doubt quietly paid, since the
decision as to the sponsio tertiae partis had also settled to whom
the disputed sum belonged. (b) In the private interdicts
(possessoria and restitutoria) if the party to whom the interdict
was addressed chose to dispute it, he might do so by challenging
the plaintiff to make a sponsio and restipulatio, the rights of which
should be deter- mined by recuperatores. This sponsio differed from
the former (1) by being purely poenalis and having no trace of
praeiudicium for its object ; (2) by being in factwm concepta ^.
The origin of these two uses of sponsio cannot be dated, in the
case of (a) because we do not know the date of the Lex Silia, and in the
case of (6) because we do not know when the possessory interdict
was first granted by the Praetor. But it is fairly certain that the
sponsio poenalis of the interdict was more modern than the sponsio
poenalis of the condictio, partly because it had no sort of connection
with a praeiudicium, which seems to have been the original object
of the processual sponsio, and partly because it was in factum concepta.
1 IV. 93, 94. 2 Gai. iv. 166; Cic. Caec, 8. 23. Another purpose for
which the sponsio was adopted in procedure was to give bond against
pos- sible losses. It thus furnished a substitute for the old form
of obligation contracted by the praes in real actions. The stipulatio pro
praede litis et uindi- ciarum, accompanied by sureties ', was given by
the plaintiff who wished to bring an actio per sponsionem in rem,
or who disputed an interdict, and the amount promised in the stipulation
was double the value of the property in dispute. Another
contract of the same kind was the stipulatio ivdicatum solui ', by which
the plaintiff in an actio per formulam petitoriam obtained a
promise from the defendant that he would pay up the value of the
property in dispute and of its fructus, in the event of being defeated in
the action. Voigt gives imaginary formulae for these two
stipulations", but in reality we do not know much about them.
Stipulations of this kind were not peculiar to the law of procedure. They
were simply varieties of the cautio, a very common method of
securing future rights, and they had their counter- part in the cautio
damni infecti, cautio Muciatm, cautio legis Falcidiae and all the
praetorian stipula- tions. The origin of the cautiones in general
cannot however be dated : we know merely that they must have been
invented subsequently to the introduction of the condictio.
III. Sponsio as a means of Suretyship. The introduction of
the new idea of correal obli- 1 Cic. 2 Verr. i. 45. 115; Gai. iv.
91-94. 2 46 Dig. 7. 20 ; Gai. rr. 89. ' Im Nat. in. 588 and
820. -- gation which resulted from the use of the
stipulation, naturally led to the use of the stipulation as a mode
of suretyship. For if three sponsores promised the same sum to the same
stipulator, the latter obviously had three times as good security as if
he had put his question to one sponsor instead of to three.
1. The consequence was that sponsor soon acquired the special
meaning of a co-promisor or surety, and this change probably took place soon
after the sponsio became actionable by the Lex Silia. But if the surety
-sponsor had had no recourse against the principal-spojisor whose debt he
had been com- pelled to satisfj"^, his case would have been hard
indeed. To provide against this hardship, the Lex Publilia ' of A.
V. c. 427 enacted : (a) That the surety-spo?iso?' might make
use of an actio depensi against the principal debtor for the amount
spent on his behalf (6) That the mode of procedure in this
actio depensi should be the legis actio per manus iniec- tionem,
and that the penalty should be duplum^. (c) That the principal
debtor should however have six months' grace for the repayment of
his surety, but (d) That a surety who paid a gambling-debt
on behalf of his principal should forfeit his right of
action. This law is alluded to by Plautus, and was clearly
prior to the introduction of fidepromissio. 1 Voigt in Phil. Hist.
Ber. der k. s. Ges. d. Wiss. xlii. p. 259. 2 Gai. IV. 22. 171. In
later times the surety had in the actio mandati a further remedy against
the principal sponsor. 2. About the beginning of the fifth century,
as new forms of stipulatio grew up alongside of the old sponsio,
another sort of suretyship was introduced under the name oi
fidepromissio. It was so called because the sureties entered into a
stipulation con- taining the words : "Jide tua promittis ? fide mea
pro- mitto." The new form was no doubt devised for the benefit
of foreigners and marked the further growth of ius gentium. It seems to
have been treated as exactly equivalent to sponsio, for sponsio as well
as fidepromissio could only be used to secure a verbal obligation \
Since it is coupled with sponsio in the Lex Apideia, and since the heirs
of sponsores and fidepromissores were both alike free from the
obliga- tion of their predecessors ^ it is fairly certain that the
actio depensi and inanus iniectio of the Leoo Publilia must have been extended
to fidepromissio by interpretation '. The fidepromissor also had
the remedy of the actio mandati, but this was of later
origin. The Lex Apuleia de sponsoribus et fide promis-
soribus of A.v.C. 525 ^ applying to both Italy and the provinces, gave to
any sponsor or fidepromissor who had paid more than his aliquot share of
the principal debt a right to bring the severe actio depensi
against each of his co-promisors to recover the amount overpaid. This
law, giving as it did protection to the sponsor against his co-sponsor,
was ' Gai. III. 119 ; iv. 137. 2 Gai. in. 120. ' Gai.
III. 127. " Voigt, I. N. iv. 424. -- the natural complement to the Lex
Puhlilia which had already secured him against the principal
debtor. The object of the next law, Lex Furia de sponso-
ribus et fidepromissoribus of A.V.c. 536 \ is rather obscure, but it
seems to have re-enacted the Lex Apuleia with reference to Italy only,
and probably provided the spmisor with a more thorough mode of
redress. What this mode was the language of Gains ^ does not make plain ;
but Moyle is no doubt wrong in asserting ' that it was the actio pro socio,
unmis- takably of much later origin. Its only clearly new enactment
was that sponsores or fidepromissores in Italy, whose guarantee was for
an unlimited period, should be liable for two years only. This
limited liability Voigt thinks was perhaps borrowed from the rules
applying to the uas. Lastly, the Lex Cicereia (Studemund) of
uncertain date, but which must have been passed before A.V.c. 620,
since it ignored fideiussio, gave further protection to sureties by
enacting : (<x) That any creditor who secured his debt by
taking sponsores or fidepromissores must announce the amount of the debt
and the number of the sureties before they gave their adpromissio.
(b) If he failed to do this, any surety might within 30 days
institute a praeiudicium to inquire into his conduct ; and if the judge
declared that the required announcement had not been made, all the
sureties were freed from their liability*. This law 1 L. Furius
Philue was Praetor in that year. Voigt, I. N. iv. 424. 2 ni. 122. 2
Inst. p. 411, note. * Gai. iii. 123. REPUBLIC.
was subsequently, we know, extended by interpreta- tion to
fideiussores. 3. A third form of suretyship was at last de-
vised, by which obligations other than verbal ones could be similarly
secured. This was done by a stipulation containing the words "fide
tua ivbes ? fide mea ivheo" and it was hence known as
fideiussio. It must have been iuvented about the beginning of the
sixth century, and was doubtless needed, as Voigt suggests^, in order to
provide a form of suretyship for the newly invented real and consensual
con- tracts ". Its chief points of difference from the other
two forms were that (a) it applied to all kinds of contractual
obligations ; (6) the heir of the fideiussor was bound by the same
obligation as his predecessor ; and (c) the provisions of the foregoing
legislation as to sponsio and fidepromissio did not as a rule apply
to fideiussio. The only point of resemblance was that the fideiussor,
like the sponsor and fidepro- missor, had the actio mandati^ against his
principal, whereas the sponsor and probably the fidepromissor had
the actio depensi of the Lex Puhlilia in addition to the more modem
remedy. The Lex Cornelia mentioned by Gains * as affect- ing
all sureties alike, whether sponsores, fidepromis- sores or fideiussores,
has been shown by Voigt ' to be a part of the Lex Cornelia swmtuaria of
A.V.C. 673. Two sections of this act provided : (i) That no
surety should validly become re- 1 I. N. IV. 425. 2 Gai. ni.
119. » Gai. m. 127. » in. 124. ° Phil. Hist. Ber. der
k. s. Ges. der Wiss. xlii. p. 280. Digitized by
Microsoft® BXPMNSILA TIO. 123 sponsible for more
than two million sesterces > on behalf of the same person in any given
year. Except in the case of dos^, whatever liability was contracted
over and above that amount was void. (ii) That no suretyship of any
sort should be valid when given for a gambling debt I In thus
tabulating all the laws on this subject, we must not omit to mention the
rule applying to all forms of suretyship alike, that if the surety
had guaranteed a lesser sum than the principal debt, his guarantee
held good, but if a larger sum or a differ- ent thing, the guarantee
became void. In conclusion, it is very remarkable how largely
the law of suretyship was developed by means of legislation. The reason
was, that while sufficient means existed for enforcing the mutual
obligations of debtor and creditor, there were no rules to regulate
the relations of debtor and surety, or of sureties among one another. The
old uadimonium was ap- parently inadequate, while the newer
uadimonium, as we saw, was but a form of stipulatio, and the
ordinary condictio would clearly have been inapplic- able to cases of
this kind. Hence it became neces- sary that legislation should
intervene. So many irreconcilable statements have been made as to
the nature of the peculiarly Roman contract of the expensilatio that no
one can hope to describe it with perfect accuracy. Confident
1 20,000 according to Dauz, B. BG. ii. 83. 2 Gai. m. 124-5. ^
Voigt, Bom. BO. i. 616. * See a full summary of the various
opinions in Danz, B. BG. II. pp. 43-60. assertions on
the subject serve only to show our real ignorance, and ignorant we must
be, owing to the vagueness of the evidence. Yet it is only as to
the form of the contract that much controversy has prevailed. Its
operation and its history are tolerably certain. Form: Our
ignorance respecting the mode in which the contract was made is partly
due to the fact that tabulae, which meant account-books in general,
meant also a chirograph, or a written stipulation, or an ordinary
note-book'. We can never be quite sure in what sense a technical
term of such ambiguity is used in any given passage. Everyone
agrees that the entry of a debt in the creditor's account-book imposed a
correspbnding obligation upon the debtor, and the theory that debts
were entered for this purpose in separate documents has been exploded
ever since Savigny''' refuted it. But the question so difficult to
answer is this : what sort of account-book was the codex in which
these binding entries were made ? We gather from Cicero's speech for
Roscius the actor that there were in his day at least two principal books
in general use, (1) aduersaria ', and (2) codex or tabulae
rationwm. The former was a day-book, in which the details of every-day
business were jotted down, while the latter was a carefully kept ledger,
containing a summary of the household receipts and expenditure, copied
at regular intervals from the aduersaria. These two 1 See
Wunderlich, Liu. oblig. p. 19. s Verm. Schrif. i. 211 ff.
' Also called ephemeris. Prop. iii. 23. 20. books
were also used by bankers (argentarii) ; and in their codew or ledger
were entered their accounts- current with their different customers '.
Similarly in the codex of the householder there were probably
separate accounts, on separate folios, under such heads as ratio praedii,
ratio locitlorum, &c.^ There was sometimes used a book known as (3)
kalendanum, in which the interest on loans was computed and entered
', the making of loans at interest being hence called kalendarium
exercere. (a) Some writers are of opinion that these book
-debts were entered by the creditor in the main codex, and that this
codex was a mere cash-book. In that case, unless the debt was a loan
actually paid in cash, it must have been entered on both sides of
the account, debtor as well as creditor, otherwise the book would not
have balanced. This twofold entry is said to have been called
transcriptio; and nomen transcripticium would accordingly have been
the name applied to an}' debt contracted in that manner. The weakness of
this theory lies in the clumsiness of the alleged twofold method of
entry; we can scarcely believe that an imaginary receipt would have
been credited in the account simply for the purpose of making both sides
balance. More- over it is unwise to assume, as these writers do in
support of their theory, that the Roman method of keeping accounts was an
easy matter and therefore needed but few books ; for in a large town
house, or on a large estate with bailiffs, tenants and slaves to
1 2 Big. 13. 10 and 2 Dig. 14. 47. - 33 Dig. 8. 23. 3 12 Dig.
1. 41 and 33 Dig. 8. 23. be provided for, it seems far more
likely that the accounts should have been elaborate and the
account- books numerous. (6) According to Voigt, book-debts
(nomina) were entered in a (4) codex accepti et expensi kept for
the express purpose. Whether such a fourth book existed, or whether the
rationes accepti et eccpensi were kept as a separate account in the
main codex rationum, is a question which our authorities hardly enable us
to answer. This does not however seem very important, and it is certainly
impossible to tell in any given passage whether the author is speaking of
the main codex (2), or of the codex accepti et expensi (4), which
Voigt supposes to have been a distinct book. His theory is plausible, for
codex accepti et expensi would be a very natural name for a book
containing only expensa lata and accepta lata. But we may fairly
doubt the existence of this fourth book, partly be- cause there is no
passage which clearly distinguishes it from the other account-books, and
partly because it is hard to see why the books of a Roman house-
hold, though clearly numerous, should have been thus needlessly
multiplied. Why should not 'no- mina facere'-' have meant " to open
an account" with a man, and why could not such an account have
been opened as well on a folio of the prin- cipal ledger as on a folio of
the imaginary codex accepti et expensi ? Perhaps a banker may have
found it worth his while to keep, as Voigt supposes, a separate book for
his loans and book-debts, but we 1 Cic. 2 Verr. i. 36. 92 ; Seneca, Ben.
in. 15. cannot imagine that this would have been the common practice
of ordinary householders, when their codex would have done equally
well. Eaypensilatio was the name of the transaction, while
the entry itself was called nomen; and the term nomen transcripticium,
which has been ex- plained as the equivalent of nomen, because the
entry was transcribed from the aduersaria into the codex, or because it
was copied into both sides of the account, seems rather to have denoted
only a nomen of a novatory character'. That nomen could produce an
original obligation is proved by the cases of Visel- lius Varro" and
of Canius' in which there is no mention of transcriptio. Further Gaius
clearly im- pKes* that the nomen transcripticium was but one
instance of the use of expensilatio, and the cases cited by him are
purely novatory. Voigt therefore is probably right in distinguishing the
ordinary nomen which created an obligation, from the nomen
transcripticium, which novated an obligation already existent. If so, the
name transcripticium comes from the fact that (a) a debt
entered in one place as owed by Titius might be transcribed into another
part of the codex as owed by Negidius (transcriptio a persona in
per- sonam), or (h) a debt owed by Negidius, on account of
(e.g.) a sale, might be embodied in an expensilatio and thus
converted from a honae fidei into a stricti iuris 1 See Gaius in.
128. ^ Val. Max. vni. 2. 2. ^ Cic. Off. III. 14. 59. *
" ueluti nominibus transcripticiis ," in. 130. obligation by
being entered in the codex {transcriptio a re in personam).
Some passages are supposed to describe the entry of book-debts in
the books not only of the debtor and creditor, but of third persons also'
; but it is difficult to imagine that any man would have entered in
the midst of his own accounts a record of transactions which did
not actually concern him. Here again we may believe that the ambiguity of
the word tabulue has led the commentators astray. What they have
taken for the account-books of a third party may have meant simply his
memorandum or note-book. Salpius^ has endeavoured to explain away
the difficulty by asserting that these tabulae of third parties
really mean in every instance the tabulae of either debtor or creditor.
But the passages do not seem to be capable of bearing such an
interpretation, and it appears far more likely that the word
tabulae has caused all the difficulty. To summarise then this
view of the Literal Contract, we may believe it to have been made
by an entry written by the creditor on a separate folio of the
codex (2) or chief household ledger, and that its form was very probably
that given by Voigt' as follows : "HS X a Numerio
Negidio promissa tfcc. expen- sa Numerio Negidio fero in diem " ;
whereupon the debtor might, if he liked, make this corresponding
entry in his codex: "HS X Aulo Agerio promissa Jkc, Aulo Agerio
refero in diem,." 1 E.g. Cio. Att. IV. 18; Rose. Com. i.l; de
Or. ii. 69. 280. 2 Novation, p. 95. 3 Bam. BG. i. 64.
In cases of novation, the form would be as follows :
Creditor: "HS X a Lucio Titio dehita expensa Numerio Negidio
fero in diem" (transcriptio apersona in personam), or else :
"HS X a Numerio Negidio ex emti causa dehita expensa Numerio Negidio
fero in diem," {transcriptio a re in personam). As in the
previous case, the debtor might make similar entries in his codex.
Having thus opened an account, which could only be done with the
authorisation of the debtor, the creditor would naturally enter on the
same page such items as payment of interest on the debt, payment of
the principal on account, &c. According to Voigt, the entries showing
repayment of the principal would be made in the following form :
"HS X a Numerio Negidio dehita accepta Numerio Negidio fero."
Such an entry constituted a valid release and went by the name of
acceptilatio. Voigt' thinks that the acceptilatio, as here given, was
made first by the debtor, and that the creditor followed him with a
corresponding accepti relatio. But the word acceptum seems rather to
imply that the release was looked upon from the creditor's point of view.
It is therefore more likely to have been the creditor who took the
initiative in entering the acceptilatio, just as he did in enteiing the
expensilatio, while the debtor perhaps followed him with an accepti
relatio. We know from Cicero^ that expensilatio could be used
to create an original obligation, while Gaius tells us that it was much
used for making an assign- ment or a novation. Where however a loan made
in 1 ib. p. 65. 2 Off. III. 14. 58-60. B. E. 9 -- cash
was entered in the creditor's book, the contract was regarded as a case
not of expensilatio but of mutuum, and the entry was called nomen
arcarium}. This name seems to have come from the fact that the
money was actually drawn from the area or money-chest^; and in such case
the entry on the creditor's books constituted no fresh obligation,
but served merely as evidence of the mutuum,. History: The
old theory of its origin, given by Savigny and Sir Henry Maine, is that
ecopensilaiio was a simplified form of neacum. They argued that the
word expensum pointed clearly to the fiction of a money -loan made by
weight. But they never succeeded in explaining how it happened that
the nexal loan should have produced a contract so strangely
difierent from itself. The newer theory, which Voigt has ably
set forth ^ is far more intelligible and agrees with all the facts.
Its merit lies in recognising expensilatio as a device first used by
bankers and merchants and subsequently adopted by the rest of the
com- munity. Nothing indeed could be plainer than the commercial
origin of expensilatio. Like the negoti- able instrument of modem times
it is a striking instance of the extent to which Trade has moulded
the Law of Contract. This institution probably did not originate at Rome,
but the Greek bankers of Southern Italy may have adopted and used
it centuries before we hear of its existence. It seems to have been
first iatroduced* by the Greek argen- 1 Gaius in. 131. ••' Cic.
Top. 3. 16. 3 Z. N. II. 244 ft. * Voigt, mm. RG. i. 60.
-- torn or tarpezitae (TpaTre^Tai), who came to Rome about
A. V. c. 410 — 440, and took the seven shops known as tabernae ueteres^
on the East side of the Porum^ Their numbers were subsequently
increased, when the tabernae nouae were also occupied by them.
Their business was extremely varied and their system of book-keeping
doubtless highly developed. They made loans^, received deposits*, cashed
cheques {perscriptionesY, managed auctions', and exchanged foreign
monies for a commission (collybusy. They also used codices accepti et
expensi, in which, as we have seen, accounts-current were kept with
their customers ^ We learn from Livy' that by A. v. C. 5.59 the
expensilatio thus introduced by them had become a common transaction
among private in- dividuals. It cannot have been long before the
conception of pecunia credita was extended so as to cover book-debts as
well as stipulations ; but we do not know the exact date. From
Cicero" however we learn that pecunia expensa lata was a
branch of pecunia credita within the scope of the Lex Silia, and that the
proper remedy for its enforcement was the condictio certae pecuniae
with its sponsio tertiae partis. As Voigt" has well pointed
out, the expensilatio presupposes the exis- tence throughout the
community of a high standard of good faith. It was therefore ill adapted
for ' Liu. XXVI. 27. 2 Liu. vii. 21. 3 Plaut. Cure. 5.
2. 20. * ib. 2. 3. 66. 5 ib. 3. 62-65. « Cio. Caec. 6. 16.
? Cio. Att. XII. 6. 1. 8 2 Dig. 14. 47. ^ Liu. XXXV. 7. ^''
Rose. Com. 5. 14. 11 I. N. II. 420. 9—2 general
use among the Greeks, whose bad faith was proverbial'. The fact that it
was at Rome, and at Rome only, that this contract received full
legal recognition, is proved by Gains' doubts" as to whether a
peregrin could be bound by a nomen transcripticiwn. By the end of the
Republic eocpen- silatio was at its height of favour, but it died
out, except among bankers, soon after the time of Gains, for in
Justinian's day it was unknown. Art. 4. Chirographvm and Stngrapha
were forms of written contract borrowed, as their name implies,
from Greek custom, and chiefly used by pere- grins, as Gaius informs us°.
The distinction between the two was purely formal, the one being signed
by the debtor (cAiro^rrop/i Mm), and the other being written out in
duplicate, signed by both parties, and kept by each of them (syngraphay.
These foreign instru- ments at first produced nothing more than a
pactum nudrmi, for wherever we find syngrapha mentioned in Plautus,
it denotes a mere agreement (pactum), the terms of which had been
committed to writing and which was certainly not actionable, while
chiro- graphum, never occurs in his plays. The Roman magistrates,
finding these instruments recognised by aliens, ventured at length to
enforce debts ew syn- grapha, and thus their legal validity was
secured^ They had received, some sort of recognition by the 1
Plaut. Asin. 1. 3. 47. ■" m. 133. s III. 134. *
See Diet, thirteenth cent, in Heimbach, Greditum p. 520, and Ascon. in
Gic. Verr. i. 36. s Cic. pro Rah. Post. 3. 6; Har. resp. 13. 29 ;
Phil. ii. 37. 95 ; ad Att. Yi. 1. 15 ; ii. v. 21. 10 ; ib. vi. 2.
7. -- time of Cicero, but when they were first enforced does not
appear, though it was certainly late in the history of the Republic.
Gneist^ has advanced the theory that in Cicero's time neither
chirographum nor syngrapha was a genuine literal contract, but only
a document attesting the fact of a loan, which could always be rebutted
by evidence aliunde. This theory is the more plausible because Gains
himself does not seem certain as to the binding nature of these
documents^ An interesting passage in Theophilus° is some-
times said to give the form in which litterarum obligatio proper, i.e.
expensilatio, was contracted. This view is certainly wrong, for the
context shows that Theophilus meant to describe a contract signed
by the creditor and known as chirographum. As a sample of how chirographa
were made, the Latin translation of this instrument may therefore
be quoted : " Centum aureos quos mihi ex caussa locationis dehes tu
ex conuentione et confessione lit- terarum tuanrni dabis?" And to
this the debtor wrote the following answer: "Ex conuentione
deheo litterarum nuearutn." This was evidently not a nomen
transcripticium, but a chirographum or syngrapha, since Gaius expressly
states debere se aut daturum se scribere to be the usual phraseology of
such instruments. Both parties also seem here to have been present,
whereas one of the chief advantages of expensilatio was that it enabled
debts (by expensi- latio) and assignments (by transcriptio) to be
validly made without requiring the presence of the parties 1
Form. Vertr. p. 113. ' in. 134. » Paraphr. in. 21. .
concerned. Heimbach* is therefore wrong in taking the above passage
as equivalent to " Eacpensos tiM tuli ?" " Expensos mihi
tulisti." The transaction was evidently dififerent from
expensilatio, and can have been nothing else than a dhirographtim.
Another specimen chirographum preserved in the Digest^ shows that
the promise or acknowledgement was sometimes made in a letter from the
debtor to the creditor. > Cred. p. 330. 2 2 Dig. 14.
47. Consensual Contracts. Art. 1. Emtio Venditio. The
forms of con- tract hitherto examined have been distinguished from
most of the contracts of modern law in one or more of the following
respects : (i) They were confined to Roman citizens.
(ii) They were unilateral. (iii) They were capable of
imposing obligations only by virtue of some particular formality.
(iv) They were available only inter praesentes. The contract
which we are now about to consider was modem in all its aspects :
(i) It was open to aliens as well as to citizens. (ii) It was
bi-lateral. (iii) It rested only upon the consent of the
parties, required no formality, and could be re- solved like any modem
contract into a proposal by one party' which became a contract when
accepted by the other party. 1 Plant. Epid. 3. 4. 35.
(iv) It could be made at any distance, provided the parties
clearly understood one another's meaning. How then can the formal
contracts of the older law ever have produced such a modem institution
to all outward appearance as the consensual contract of sale?
The elements which make up the popular con- ception of sale are
usually fourfold ; they consist of: (1) The agreement by which
buyer and seller determine to exchange the wares of the latter for
the money of the former; (2) The transfer of the wares from the
seller to the buyer ; (3) The pajrment of the price by the
buyer to the seller ; (4) The representation, express or
implied, of the seller to the buyer, that his wares are as good in
point of quantity or quality as they are understood to be.
Mandpatio was at first a combination of the second and third
elements above-mentioned. It was a transfer of ownership followed by an
imme- diate payment of the price. Subsequently, as we saw, the
payment became separated from the trans- fer, so that mancipatio
represented only the second element. The fourth element, that of
warranty, existed to a certain extent in those sales in which the
transfer of property was made by moundpatio, and this fourth element we
shall consider further in a later section. But throughout the early
history of Rome the first element, indispensable wherever a sale of
any kind takes place, was completely unrecognised by the law. The reason is
that the preliminary agreement between buyer and seller was nothing
more than a pactum, an agreement without legal force because usually
without form. The parties might always of course embody their agreement
of sale in a sponsio and restipulatio, but in such a case all that
the law would recognise would be the re- ciprocal sponsiones, not the
agreement itself Why, we may ask, was recognition ever accorded to
this preliminary pactum ? In other words, what was the origin of
emtio uenditio, which turned the pactum into a contract ?
Bekker's plausible theory' adopted by Muirhead" is that
contracts of sale were originally entered into by means of reciprocal
stipulations, and that the actio emti was but a modification of the actio
ex stipu- latu founded on those stipulations, while it borrowed
from the actio ex stipulatu its characteristic bonae fidei clause. But
how then did the notion of bona fides arise in the actio ex stipulatu
itself? Bekker seems to have put the cart before the horse, and
Mommsen" holds the far more reasonable view that the actio emti was
the original agency by which bona fides found its way into the law of
contract, in which case the actio ex stipulatu must have been not
the prototype but the copy of the actio emti. The origin of the
actio emti was indeed very curious, since it seems clearly to have been
suggested and moulded by the influence of public law. The sales of
public property, which used at first to be 1 Akt. I. 158. ^ Bom.
Law, p. 334. 3 Z. der Sav. Stift. R. A. yi. 265.
carried out by the Consuls and afterwards by the Quaestors', became
increasingly frequent as the conquests of Rome were multiplied, and as
the supplies of booty, slaves and conquered lands be- came more and
more plentifiTl. The purchase by the State of materials and military
supplies was also of frequent occurrence, as the wealth of Rome
increased. Now these public emtiones and iiendi- tiones constantly
occurring between private citizens and the State were founded upon
agreements neces- sarily formless. The State could clearly not make
a iusiurandum or a sponsio, but the agreements to which the State
was a party (according to the fundamental principle laid down at the
beginning of this inquiry that the sanction of publicity was as
strong as that of religion) were no less binding than the formal
contracts of private law. A public breach of bona fides would have been
notorious and dis- graceful. Whenever therefore the State took part
in emtio uenditio, the agreement of sale was thereby invested with
peculiar solemnity ; and thus in course of time the pactum uenditionis
became so common as an inviolable contract that the actio emti uenditi
was created in order to extend the force of the public eTTitio
uenditio into the realm of private law. As soon as this action was
provided, emtio uenditio became a regular contract, which was
necessarily bilateral because performance of some sort was required
from both parties. An action could thus be brought either by the buyer
against a seller who refused to deliver (actio emti), or by the ^
MommseD, Z. der Sav. Stift. E. A. vi. p. 262. seller against
a buyer who failed to pay {actio uenditi). The history of the
words emere uendere is in- structive. We can see that at first they were
not strictly correlative. Vendere or uenumdare meant to sell, not
in the sense of agreeing upon a price, but in the sense of transferring
in return for moneys ; while eniere meant originally to take or to
receive, without reference to the notion of buying''. But neither
emere nor uendere was at first a technical term. Emere subsequently got
the specialized sense of purchasing for money as distinct from
permutare, to barter ^, but this particular shade of meaning seems
like the actio to have had a public origin. The old technical expression
for the purchase of goods at public sale was emtio sub hasta or sub
corona, while the object of the sales was to get money for the treasury,
and therefore the consideration was naturally paid by purchasers in
coin. These public uenditioiies thus led to three results: 1.
The agreement of sale came to the front as the element of chief
importance, and as a transac- tion possessing all the validity of a
contract. 2. The word emere came to denote the act of, buying
for money, as distinct from permutatio which meant buying in kind.
3. The uenditio of public law resting wholly upon consent, which
was probably signified by a lifting up of the hand in the act of
bidding*, and being necessarily a transaction bonae fidei, it follows
that when emtio ^ Voigt, I. N. IV. 519. ^ Paul. Diac. s. u.
emere. 2 21 Dig. 1. 19. fr. 5. * Cf. the word manceps.
uenditio was made actionable in private law, consent was the only thing
required to make the contract perfectly binding, and that the rules
applicable to it were those, not of iiis strictwm, but of bona
fides. The complete recognition of emMo uenditio was only
attained by degrees. The first step in that direction seems to have been
the granting of an exceptio rei uenditae et traditae to a defendant
challenged in the possession of a thing which he had honestly obtained by
purchase and delivery. The second step was the introduction of the actio
Puhli- ciana, through which a plaintiff, deprived of the possession
of a thing that had been sold and de- livered to him (1) by the owner or
(2) by one whom he honestly believed to be the owner, might recover
it by the fiction of usucapio^. These remedies, the exceptio and
the actio, were necessary complements to one another. The former
was a defensive, the latter an offensive weapon, and they both served to
protect a bona fide purchaser who had by fair means obtained possession
of an object to which in strict law another might lay • claim. The
exceptio rei uenditae et traditae^ was founded upon an Edict worded
somewhat as follows : SI QVIS ID QVOD VENDIDIT ET TRADIDIT
NONDVM VSVCAPTVM PETET, EXCEPTIONEM DABO ^ ; and in the
formula of an action by the seller to recover the thing sold this
exceptio would have been introduced thus:... si non earn rem qua de
agitur J.' Agerius 1 Gai. IV. 36. 2 44 j)ig^ i_ 20. 3
Voigt, I. N. IV. 517. Digitized by Microsoft®
ACTIO PYBLIOIANA. 141 N" Negidio vendidit et tradidit
Its effect was to protect the bona fide purchaser even of a res
mancipi against the legal owner who attempted to set up his
dominium ex iure Quiritium. On the other hand the actio Publiciana in its
alternative form, was based on two Edicts worded somewhat as
follows: (i) SI QVIS ID QVOD EI TRADITVM EST EX IVSTA CAVSA A
DOMINO ET NONDVM VSVCAPTVM PETET, IVDICIVM DABO\ (ii) SI QVIS
ID QVOD BONA FIDE EMIT ET EI TRADITVM EST NON A DOMINO ET NONDVM
VSV- CAPTVM PETET, IVDICIVM DABO I The precise wording of
these Edicts is much dis- puted, but the question of their correct
emendation is too large to be discussed here. The formula of an
actio Publiciana based on the second Edict is given by Gaius '" and
ran as follows : Si quern hominem A^ Agerius* emit et qui ei tradittis
est anno possedisset, turn si eum hominem de quo agitur eius ex iure
Quiri- tium esse oporteret, quanti ea res erit, tantam pecuniam,
iudex, N™ Negidium A" Agerio condemnato, s. n.p. a. The
usefulness of these actions as a protection to sale is apparent. They
secured the buyer in posses- sion of the object sold to him until
usucapio had ripened such possession into full dominium ; but they
were useful only when his possession had been interrupted and he wished
to recover it. On the other hand, the exceptio rei uenditae et traditae
pro- 1 Voigt, I. N. IV. 478. 2 Voigt, /. N. IV. 479. 2
IV. 36. ■• BONA FIDE here iDserted by Voigt, I. N. iv. 483, of. 6
Diri. 2. 7. fr. 15. tected him till the period of
tisucapio agaiost the former owner; but it was only usefal where
his possession had not been interrupted. The date of the actio
Publidana and of this exceptio are not to be fixed with absolute certainty;
but it is quite clear that neither of them had anything to do with
a Praetor Publicius mentioned by Cicero as having existed about A.v.c.
685'. Though there is no mention of either actio or exceptio in the
writers of the Republican period, yet it is clear from some passages of
Plautus^ that the tradition of res mancipi sold was in his time a
transac- tion protected by the law, and Voigt ^ has shrewdly argued
that both actio and exceptio must be older than the actio emti, because
the latter aimed at securing delivery (habere licere) which would
have been of no use had not delivery already been protected by
legal remedies. Now the Fasti Gapitolini report a Consul M. Publicius
Malleolus of A. v. c. 5 22*, and the conjecture that he was the author of
the actio Publi- dana seems very plausible °. The exceptio rei uen-
ditae et traditae was probably somewhat older, for the defensive would
naturally precede, not follow, the offensive remedy. Nor can this
exceptio in Voigt 's opinion have been contemporary with the actio
Publidana, because it does not bear the name of exceptio Publidana, which
it otherwise would have borne ° This argument does not seem to me
strong, 1 Cie. Cluent. 45. 126. 2 Cure. 4. 2. 8 ; Fers.
4. 3. 64 ; Epid. 3. 2. 23. ' I. N. XV. 469. < = Praetor in
a.v.c. 519. " Voigt, I. N. IV. 505. 6 I. N. iv. 468.
-- since we know that the famous exceptio doli was not
called exceptio Aquiliana. But the point is not an important one. It is
enough to be able to say with approximate certainty that the exceptio rei
uenditae et traditae and the actiones Puhlicianae were intro- duced
by some Praetor about A.v.c. 520. Still the agreement of sale was
not yet enforce- able as such. In private affairs it remained what
it had been from the time of the XII Tables, a formless agreement
supported only by the mores of the com- munity, whereas in public affairs
it was still techni- cally a pactum as before, except that the
publicity of sales made by the Quaestors gave to their terms a
peculiarly binding force. The solemnity always attaching to transactions
done in the presence of the people was, as we have seen, at the root of
this respect paid to the public uenditio. At last the Praetor
of some year decided to make the emiio uenditio of private law the ground
of an action, and thus put it on a level with the public uenditiones. We
do not know the terms of the important Edict by which the actio emti
was introduced, but the formula of the action (ex uendito) brought
by the seller is partly given by Gains ^ and must have been as follows :
Quod Aulus Agerius mensam N" Negidio uendidit, quidqvid paret oh
earn rem iV™ Negidium A" Agerio dare facere oportere ex fide
bona'', eius, index, N™ Negidium A" Agerio condemnato. s. n. p. a.
The intentio here was exactly the same as that of the actio ex stipulatu,
and was probably its prototype, both of them being equally 1 IV.
131. 2 cio. Off. III. 16. 66. -- bonae fidei actions. The
formula of the action (ex emto) brought by the purchaser was worded in
like fashion: Quod A' Agerius de N" Negidio hominem quo de
agitur emit, quidquid oh earn rem N^ Negidium A" Agerio dare facer e
oportet ex fide bona, eiv^, index, t&C. (&C.
The age of the a^tio emti has been very hotly disputed, and the
most knotty question has been whether the action existed or not in the
days of Plautus, who died A.v.c. 570. The chief opponent of the
affirmative theory has been Bekker', but the arguments of Demelius",
Costa', Voigt* and Bech- mann' are so convincing that little doubt on
the subject can any longer be entertained. It appears absolutely
certain that the actio emti was a feature of the law as Plautus knew it.
An elaborate proof of this proposition has been so well given by
Demelius and Costa that it is not necessary to do more than sum up
the evidence. (i) The contract of emtio uenditio was discussed
by Sex. Aelius Paetus Catus (Cos. A.V.C. 556) pro- bably in his
Tripertita, and by C. Liuius Drusus (Cos. A.v.c. 642)«. (ii)
The aedilician Edict, which presupposed that emtio uenditio was
actionable, is mentioned by Plautus '. (iii) We find in
Plautus many passages which are only intelligible on the supposition that
emtio ' AU. I. 146, note 38. ^ z.fiir SG. ii. 177. 3
Dir. Pnvato 365-73. * I. N. iv. 542. 5 Kauf, I. pp. 511-526. « 19
Dig. 1. 38. 7 Capt. 4. 2. 43. -- 145 uenditio was actionable. For
instance in Mostel- laria^, where the son of Theuropides pretends
to have bought a house, and where the owner of the house is
represented as begging for a rescission of the sale, we cannot suppose,
as Bekker does''', that fides was the only thing which bound the
owner. Had it not been for the existence of the actio emti he could
not have been represented as trying to have the sale cancelled'.
Again, in Act 5, Scene 1, the slave Tranio ad- vises his master
Theuropides to call the owner into court and bring an action for the
mancipation of the house *, and this can be nothing else than a
reference to the actio ex emto. In the same play° it is also plain
that hona fides was a principle controlliiig the iudicium ex emto.
Again in Persa ' it is clear that Sagaristio, when selling the
slave-girl, would not have taken such pains to disclaim all warranty if
he could not have been compelled by the actio emti to make good the
loss sustained by the purchaser. To prevent this liability Sagaristio is
careful to throw the whole periculum on the buyer. Why should he have
done so, had there been no actio emti ? Again in Rudens the
leno, who had taken earnest-money for the sale of a slave girl and
had then absconded with her, would not have been so much afraid of
meeting the buyer Plesidippus, if he 1 3. 1. and 2. ^ de Empt.
Vend. p. 16. 3 3. 2. 110. * 5. 1. 43. Cf. Gai. iv. 181.
« 3. 1. 139. 8 4. 4. 114. and 4. 7. 5. B. E. 10
-- had not feared the actio emti. And when the slave girl was
finally abiudicata from the leno *, Demelius and Costa are unquestionably
right in regarding this as a result of a iudicivmi ex emto. Bekker's
opinion that it was the result of a uindicatio in libertatem seems
hardly to agree with the fact that the leno is not represented as knowing
of her free status till two scenes later''. We might multiply
instances, but the evidence is so fully given by others that it is
not worth repeating. The general conclusion to be drawn from the above
facts is that emtio uenditio became actionable before A.v.c. 550; and, if
our argument be right, later than 520, the date of the actio
Publiciana. From Plautus we gather further that arrha or
arrhabo, the pledge or earnest money which Gaius mentions in this
connection, was often given to bind the bargain of sale as well as other
bargains. From this it has been argued that pure consensus must
have been insufficient to make the contract binding'; but, if that
be so, why should the arrha have been used in Gains' day, when we know
that sale was purely consensual ? In Rudens " it is clear that the
arrhabo was not a necessary part of the transaction, but a mere
piece of evidence, so that arrhahonem acceperat simply means uendiderat^.
The use of arrhaho is mentioned also in Mostellaria^ and Poenulus^.
It was probably forfeited by the purchaser in case the bargain fell
through. ^ 5. 1. 1. 2 5. 3—8. ' Bekker, Heid. Krit.
Jahrschrift, i. 444. ■* 2. 6. 70. « Brid. Prol. 45-6. 6
3. 1. 111—4. 4. 21. ' 5. 6. 22. -- Having now seen how the actio emti
uenditi originated and what was its probable age, let us see what
obligations were imposed by the conclusion of the sale upon each of the
parties to it : (1) Upon the purchaser (emtor). His
chief duty was reddere pretium, to pay the price agreed upon', and if the
price consisted partly of things in kind, his duty was to deliver
them " ; but according to Voigt ' there was no obli- gation iipon him
to do more than deliver. A duty which the purchaser seems very early
to have acquired was that of compensating the seller for mora on his part
*. (2) Upon the vendor (tienditor-). His chief duty was
rem praestare ° (or rem habere licere), to give quiet possession to the
vendee ; but this did not include the obligation to convey dominium
ex iure Quiritium,". The actio emti, as we have now examined
it, enforced three things : (1) recognition of the con- sensual
agreement of sale, (2) delivery by the seller, (3) prompt payment by the
buyer. Thus it dealt with three of the elements involved in the
general conception of sale. The fourth element, that of warranty,
remains to be considered. We know that this fourth element was
covered by the actio emti in the time of Ulpian, but it does not
seem to have been so during the Eepublic. Both Muirhead' and Bechmann*
have involved the ' Varro, R. R. n. 2. 6. ^ Cato, R. R. 150.
3 /. N. in. 985. ^ 19 Dig. 1. 38 fr. 1. « 19 Dig. 1. 11.
" 19 Dig. 1. 30 ; 18 Dig. 1. 25. !■ R. Law, p. 285.. ^ Kauf.
i. 505. 10—2 subject in unnecessary difficulty by
confusing a honae fidei contract of sale with one in which warranty
was employed. They speak as though bona fides included warranty, a
proposition not necessarily tnie and of which we have no proof. It
appears, on the contrary, that the actio emti to enforce warranty
was of much later origin than the actio emti to enforce consensual
sale '. We have therefore to inquire how warranty was originally given
and how it was made good. The only kind of warranty which we
have hitherto encountered is that against eviction implied in every
mancipatio and enforced by the actio auctoritatis. This method was but of
limited scope, since it ap- plied only to res mancipi. After
the introduction of the condictio incerti, it became possible to embody
warranties in the form of a stipulation. This was accomplished in one or
more of the following ways : (1) The stipulatio duplae
specified the warranty given by the vendor, and provided in case of a
breach for liquidated damages in the shape of a poena dupli, which
was doubtless copied from the duplwm of the a^tio auctoritatis. The best
specimens of this stipu- lation are texts 1 and 2 of the Transylvanian
Tablets printed by Bruns ''-. It was apparently used in those sales
of res mancipi, which were consummated not by mancipatio but by traditio
'. Its superiority to the warranty afforded by the actio auctoritatis was
that it guaranteed quality as well as title, which the actio
1 Girard, Slip, de Garantte, N. R. H. de D. vii. p. 545 note. ^
Font. p. 256. ^ Varro, B. R. ii. 10. 5. auctoritatis could
not do. The Tablets indeed show that the warranties against defects in
this stipulation "were exceedingly comprehensive, and that it
defended against eviction not only the buyer, but also those in
privity with him (emtorem eumue ad quern ea res per- tinebit).
(2) We also find a stipulatio simplae, of which the best instances
are texts 3 and 4 of the Transyl- vanian Tablets and which, according to
Varro ^ might be used as an alternative to the stipulatio duplae,
if preferred by the two parties. Its aim in securing the buyer
against eviction and defects was precisely the same as that of the former
stipulation; its only difference being that the damages were but
half the former amount, i.e. were exactly measured by the price of
the thing sold. Girard and Voigt are probably wrong in identifying this
stipulation used for res mancipi with the next one, which was
apparently used only in sales of res nee man- cipi. (3)
Another stipulation of frequent occurrence was the stipulation recte
habere licere. This guaran- teed quiet possession so far as the seller
was con- cerned. Its scope was therefore not so wide as that of the
stipulatio siviplae or duplae. The vendor simply promised recte habere
licere, but specified no penalty in the event of his non-performance, so
that the action on the stipulation must have been a condictio
incerti, in which the damages were assessed by the judge. The import of
the word 'recte' was doubtless not the same as that of ex fide bona ;
but, 1 R. R. II. 2. 5. as Bechmann ^ has pointed out,
it simply implied a waiver of technical objections. (4) A
stipulation as to quality alone is men- tioned by Varro " as annexed
to the sale of oxen and other res mancipi. The vendor simply promised
sanos praestari, so that in this case also the remedy was condictio
incerti for judicial damages. (5) A satisdatio secundum mancipiimi
is also mentioned by Cicero' and in the Baetic Tablet ^ But its
nature and form are quite uncertain. Its name implies that it had some connection
with auctoritas, and the most likely theory seems to be that it was
a stipulation of suretyship, by which security was given for the auctor,
either to insure his appearance (and if so, it was a form of
uadimo- nium/') or to guarantee his payment of the poena dupli, in
the event of eviction (and if so, it was a form oifideiiissio ').
The three first of the above stipulations prove that even in the
early Empire (a.d. 160 is the sup- posed date of the Transylvanian
Tablets) actio emii was not yet an action for implied warranty.
Ulpian's language also indicates that the implication of war- ranty
was a new doctrine in his day '. Thus far we have seen that
stipulations of war- ranty were customary, and that by the
stipulatio duplae or simplae both title and quality were secured.
The next step was to make these stipu- 1 Kauf. I. p. 639. ^ ii. 5.
11. » ad Att. V. 1. 2. * Bruns, Fcmtes, p. 251. "
Varro, vi. 7. 54. ^ gge Girard, loc. cit. p. 551. ' 21 Dig. 1. 31
fr. 20. lations compulsory, and this was first
accomplished by the Aediles, in their Edict regulating, among other
things, sales in the open market. Plautus mentions this Edict, and refers
to the rule of red- hibitio which it enforced \ The first positive
mention of aedilician regulations as to warranty occurs how- ever
in Cicero ^ and from this it appears that the Aediles first compelled a
stipulatio duplae in the sale of slaves. This innovation was doubtless
intended to punish slave dealers, who were, as Plautus shows, a low
and dishonest class, by imposing upon them the old penalty of duplum. The
two aedilician actions which could be brought, if the stipulatio duplae
had not been given, were (1) the actio redhibitoria, avail- able
within two months, and by which the vendor had to restore the duplum of
the price"; (2) the actio quanti emtoris intersit*, available within
six months for simple damages. Further than this, however, the law
of the Republic did not advance. It was not till the day of Trajan and
Septimius Severus that the stipulations of warranty were compulsory
for other things than slaves*, and we cannot therefore here trace the
development of warranty to its consummation. Art. 2. LocATio
Condvctio. The word locare has no technical equivalent in English, for it
some- times expresses the fact of hiring, sometimes that of being
hired. It means literally to place, to put out. 1 Capt. i. 2. 44 ;
Bud. 2. 3. 42 ; Most. 3. 2. 113. 2 Off. III. 17. 71. 3
21 Dig. 1. 45. « 21 Dig. 1. 28. 5 Girard, N. B. H. de D. viii. p.
425. As we say that a capitalist places his money, so the
Romans said of him pecunias locat\ The State was said opios locare when
it paid a contractor for doiag a job, while the gladiator who got paid
for fight- ing was said operas locare. This contract was con-
sensual and bi-lateral like emtio uenditio, and had a very similar
origin. It is easy indeed to see that for a long time there was no
distinction made between locatio and uenditio. The latter meant originally,
as we have seen, to transfer for a consideration, and thus included
the hire as well as the sale of an object. Festus accordingly says that
the locationes made by the Censors were originally called uendi-
tiones ^ The confusion thus produced left its traces deeply imprinted in
the later law, for we find Gaius' remarks on locatio condiictio chiefly
devoted to a discussion of how in certain doubtful cases the line
should be drawn between that and emtio uen- ditio. Like emtio
uenditio, this contract was developed in connection with the
administration of public busi- ness. The public affairs in which
contractual relations necessarily arose were of four kinds ' :
(1) Sales of public property, such as land, slaves, etc., which
devolved upon the Quaestors. This class of transactions produced the
contract of emtio uen- ditio, as above explained. (2)
Contracts for the hire of public servants, generally known as
apparitores. These were the lictores and other attendants upon the
different ' Most. 1. 3. 85. ^ Festus, s. u. uenditiones.
" Mommsen, Z. der Sav. Stif. R. A: vi. 262. -- magistrates,
and were naturally engaged by those whom they respectively served. This
hiring gave rise to the contract known as condiictio operarum,
while the offer of such services to the State con- stituted locatio
operarum. (3) Business agreements connected with public work,
such as the building of temples or bridges, the collection of revenue,
etc. This class was in charge of the Censors \ and developed the
contract of locatio operis, while the transaction viewed from the
standpoint of the contractor became known as conductio operis.
(4) Agreements for the supply of various kinds of necessaries for
the service of the State, such as beasts of burden, waggons, provisions,
etc. This hiring produced the contract known as conductio rei,
while the contractors who supplied such commodities were said rem
locare. Thus the first group of public transactions gave
birth to the contract of sale in private law, while the three last groups
each became the parent of one of the three forms of the contract of
hire. Just as uenditio seems to have been the original
equivalent of locatio, so must emtio have been the original term for what
was afterwards known as conductio. Conducere can originally have
applied only to the second class of agreements; it must have
denoted the collecting and bringing together of a body of apparitores.
Afterwards, when the notion of hiring became conspicuous, conducere
doubt- less lost its narrow meaning, and was extended to 1
Liu. xMi. 3. the pther two kinds of hire, as the
correlative to locare '- The wholly distinct origin of these
various kinds of locatio conductio, and the fact that they were
transacted by different magistrates, are sufficient reasons for the
curious distinction which the classical jurisprudence always drew between
locatio conductio r&i, operis and operarum. A trace of the old
word emere as equivalent to conducere always remained in the word
redemtor, meaning a contractor for public works. This term was never
applied to the apparitor, since it was he who took the initiative and
who was thence regarded as a locator operarwm. When the
conception of locatio conductio became separated from that of emtio
uenditio it is impossible to determine. But since the two transactions
appear in Plautus distinct as well as enforceable, and since the
contract of sale was only recognised shortly before Plautus' day, the
conceptions of sale and of hire pro- bably became quite distinct before
either transaction became actionable. We can trace in many passages
of Plautus the three forms locatio rei", locatio operis', locatio
operarum* ; and it can hardly be imagined that these contracts could have
been so common and so distinctly marked had they not been provided
with actions. Voigt ' however is of opinion that the three different
forms of locatio conductio became actionable at different periods.
Locatio conductio ' Mommsen, ib. p. 266. 2 Pseud. 4. 7.
90 ; Merc. 3. 2. 17. 3 Bacch. i. 3. 115 ; Persa, 1. 3. 80.
* Aul. 2. 4. 1 ; Merc. 3. 4. 78 ; Epid. 2. 3. 8. = I. N. IV. 596,
ff. AGE OF THE VARIOUS FORMS. 155 operis and
operarwm he places earliest, and admits that they were known as contracts
by the middle of the sixth century, which would bring them very
nearly to the age of emtio uenditio ; but from Cato ^ he infers that
locatio conductio rei was of later origin and that it did not become
actionable until the first half of the seventh century. The
earliest actual mention that we possess of locatio conductio is by
Quintus Mucins Scaeuola, author of 18 books on the IxiS Giuile'', whom
Cicero quotes^, though we cannot tell whether the quotation refers to
all kinds of locatio conductio or only to the locatio conductio
operis. Certain it is that in Cato ' locatio conductio rei seems to be
treated rather as emtio uenditio fructus rei. It is also remarkable that
lo- catio conductio rei is seldom mentioned in Plautus ^ and so
briefly that we can form no conclusion as to whether it was or was not
actionable; whereas on the contrary locatio conductio operis and
operarum appear very often and exhibit all the marks of '
thoroughly developed contracts. For instance, the locatio conductio
operancni in Asinaria" contains a lex commissoria, and that in
Bacchides'' provides for a bond to be given by the locator operarum
binding him to release the person whose operae he had been
employing, as soon as the work was finished. Again in Miles Gloriosus^
the technical term improbare opus is used to express the rejection of work
badly carried out by a contractor. All this points to the 1
R. B. 149. 2 i.y.c. 661-672. •* Off. in. 17. 70. * R. R. 149, 150.
5 Cure. 4. 1. 3 ; Merc. 3. 2. 17. 6 1. 8. 76. ' 1. 1. 8. ? 4. 4.
37. existence of an action for locatio conductio
operarum and for locatio conductio operis at the time when Plautus
wrote'; hut Voigt seems right in concluding that locatio conductio rei
did not become actionable till a good deal later. The origin
of this action, as of the actio emti, was in the Praetor's Edicts and in
form it differed but little from the actio emti uenditi. Like the latter
it was bonae fidei^ and its form {ex locato) must have been as
follows : Quod A^ Agerius N" Negidio operas locauit, quidquid paret
oh earn rem N™ Negi- dium A" Agerio dare facere oportere ex fide
bona, eius, iudex, N™ Negidium A" Agerio condemnato. s. n. p.
a. Like emtio uenditio it is also clear that locatio conductio of all
kinds could be made by mere consensus, and that from the first it must
have been a 6onae fidei contract like its prototjrpe. The
writings of Oato * are our chief authority for the existence of the
locatio conductio operis and operarum in the second half of the seventh
century, and for the manner in which these locationes were
contracted. It appears to have been customary to draw up with care the
terms (leges locationis) of such contracts, and when these were committed
to writing, as they doubtless must have been, they exactly
corresponded to the contracts made in modem times between employers and
contractors. Already in the Kepublican period the jurists had
^ So Demelins, Z.filr RG. ii. 193 ; Bechmann, Kauf. i. p. 526 j but
Bekker denies it Z.fUr RG. iii. 442. ■•i .50 Dig. 16. 5. ^ Cic. N.
D. iii. 30. 74 ; Off. a. 18. 64. * R. R. 141-5. -- begun
to subdivide the classes of contracts above mentioned. (1)
They distinguished between various sorts of locatio cmiductio rei. There
was (a) rei locatio frii- endae in which the use of the object was
granted ^ (6) rei locatio ut eadem reddatur in which the object
itself had to be returned, and (c) rei locatio ut eiusdein generis
reddatur ''■ in which a thing of the same kind might be returned.
(2) The two kinds of locatio condiictio operis were also most
probably distinguished at an early date into : (a) locatio rei faciendae
in which a thing was given out to be made (epyov), and (6) locatio
operis faciendi^ in which a job was given out to be done
{aTTOTeXea/jia). (3) Locatio condvxtio operarum alone does not
seem to have been subdivided in any way. The object of these
distinctions was doubtless to define in each case the rights and duties
of the conductor. The technical expression for the remu- neration
in locatio conductio was m,erx*, and it was always a sum of money,
probably because it was originally paid out of the aerarium and
therefore could not conveniently have been given in kind. The fact
that in Plautus the word pretium was often used instead of merx, shows
that the distinction between locatio conductio and emtio uenditio was
still of recent origin when he wrote; but our general conclusion
must be that this contract was known ^ Gai. III. 145 ; Lex agraria,
c. 25. 2 19 Dig. 2. 31 ; 34 Dig. 2. 34. 3 19 Dig. 2. 30
; 50 Dig. 16. 5. * Varro, L. L. v. 36. -- to him in some at
least of its forms, and that in all its branches it arrived at full
maturity in the Republican period. It is worth remembering
that the Lex Rhodia de iactu, the parent of the modern law of general
average, was enforced by means of this action. The owner sued the ship's
magister ex locato, and the magister forced other owners to contribute by
suing them ex conducto\ This law was discussed in Re- publican
times by Servius Sulpicius and Ofilius". Art. 3. Before
proceeding further with our history of the ius gentmm contracts we must
notice the important innovation made by the Edict Pacta conuenta,
the author of which was C. Cassius Longi- nus, Praetor A.v.c. 627'. We
have seen how the pactum uenditionis and the pactwn locationis had
been recognised and transformed into regular con- tracts about seventy
years before this time. The present Edict gave legal recognition to pacta
in general, and thus rendered immense assistance in the development
of formless Contract. Its language was somewhat as follows^:
PACTA CONVENTA, QVAE NEC VI NEC DOLO MALO NEC AD- VEESVS
LEGES PLEBISCITA EDICTA MAGISTKATVVM FACTA ERVNT, SERVABO.
The scope of the Edict was, however, less broad than might at iirst
be supposed. It might well be understood to mean that all lawful
agreements would thenceforth be judicially enforceable. But as a
matter of fact the test of what should constitute » Camazza, Bir.
Com. p. 172. ■' 14 Dig. 2. 2. fr. 3. 3 Voigt, Bom. EG. i. 591. ■• 2
Big. 14. 7. fr. 7. EDICT an enforceable pactum lay in the
discretion of the individual Praetor. He might or might not grant
an action, according as the particular agree- ment set up by the
plaintiff did or did not appear to him a valid one. This Edict was
therefore nothing more than an official announcement that the
Praetor would, in proper cases, give effect to pacta which had never
before been the objects of judicial cognizance. It needs no explanation
to show what important results such an Edict was sure to produce,
even in the hands of the most conservative Praetors; and accordingly we
find that in the next century new varieties of formless contract arose
from the habitual enforcement by the Praetor of corresponding
pacta. The mode in which tentative recognition was accorded
to the new praetorian pacta was the devising of an actio in factum^ to
suit each new set of circumstances. The formula of such an action
simply set forth the agreement, and directed the judge to assess damages
if he should find it to have been broken. This was doubtless the
means by which societas, mandatum, depositivm, commoda- tum,
pignus, hypotheca, receptum, constitutum — in short, all the contractual
relations originating in the last century of the Kepublic — were at
first protected and enforced. A curious historical parallel might
be drawn between these actiones in factum and our "actions on the
case." Not only are the terms almost synonymous, but the
adaptability of each class of actions to new circumstances was
equally remarkable; and the part played by the 1 2 Dig. 14. 7. fr.
2. -- latter class in the expansion of the English Law of
Tort bears a striking reseniblance to that played by the former in the
development of the Roman Law of Contract. We shall see
specimens of the actio in factum based upon the edict Pacta conuenta,
when we come to examine the various contracts of the later Re-
public which all owed their origin to the Praetor's Edict.
Art. 4. Mandatvm. The age of the actio man- dati is difficult to fix,
but there are good reasons for believing that it was the third bonae
fidei action devised by the Praetor, and that it is older than the
actio pro socio. Mandatv/m was an agreement whereby one person, at the
request of another, usually his friend', undertook the gratuitous
per- formance of something to the iaterest of that others In short,
it was a special agency in which the agent received no remuneration. Its
gratuitous character was essential, for where the agent was paid,
the transaction was regarded as a case of locatio conductio. We
know that the testamentum per aes et libram was virtually a mandatum to
the familiae emtor', and that fideicommissa, which began to be
important towards the end of the Republic, were nothing but
mandata*; it is plain too that as an informal trans- action mandatum,
must always have been practised long before it became recognised by the
Praetor. The earliest piece of direct evidence^ which we
1 Cie. Eosc. Am. 39. 112. == Gai. iii. 156. s Gai. II. 102. 4
Ulp. Frag. 25. 1-3. » Auot. ad Her. ii. 13. 19.
MAJVDATVAf. 161 have as to the actio mandati is that it existed
in A.V.C. 631 under the Praetorship of S. lulius Caesar. It is
probable that the action was then of recent origin, and represented the
first-fruits of the Edict Pacta conuenta^, for Caesar treated it as
non- hereditary, whereas the Praetor Marcus Drusus soon afterwards
granted an actio in h&redem according to the rule of the later
law'' From Plautus it distinctly appears that Tnandatum was a
well developed institution in his day, but there is no evidence to prove
that an actio mandati already existed. The transaction is often
mentioned', and must have been necessary in the active commercial
life which Plautus has pourtrayed. In Trinummus*, for instance, we see a
regular case of mandatv/m generate. The phrase "mandare fidei et
fiduciae" here indicates that fides pure and simple was the
only support on which mandatum rested, and that there was no motive
beyond friendly feeling to compel the performance of the mandatum. On
the other hand the word infamia is thought to have had a technical
meaning, as an allusion to the fact that the actio mxvndati was fam,osa ^
; but this is surely a flimsy basis for Demelius' opinion that the
actio mandati was in existence as early as the middle of the sixth
century *. It seems much safer to regard this action as
1 Voigt, Rom. EG. i. 681. ^ 17 Dig. 1. 53. ' E.g. Bacch. 3.
3. 71-5 ; Gapt. 2. 2. 93 ; Asin. 1. 1. 107 ; Epid. 1. 2. 27, 31 ; Gist.
i. 2. 53. ■< 1. 2. 72-121. 5 Cic. pi-o S. Rose. 38.
Ill ; Gaec. 3. 7. « Z. fur EG. II. 198 ; Costa, Dir. Priv. p.
390. B. E. 11 -- younger than those of emtio iienditio
and locatio conductio, and to trace its origin to the influence of
the Edict Pacta conuenta. The earliest form of relief granted to the
agent against his mandator was doubtless an actio in factwrn,, based upon
that Edict, and having a formula of this kind^ : Si paret N™
Negidium A" Agerio, cv/ni is in potestate l!- Titii esset,
mandauisse ut pro se solioeret, et A™ Agerium emancipatum soluisse,
quanti ea res erit, tantam pecuniam index N^ Negidium A"
Agerio condemna. s. n. p. a. When at length the Praetor was
prepared to- recognise mandatum as a regular contract of the ius
duile, he placed it on an equal footing with the older bonae fidei
contracts by granting the actio mandati, with its far more flexible
formula in ius concepta. The actio mandati directa brought by the
principal against the agent had the following formula : Quod
A' Agerius N" Negidio rem curandam man- dauit, quidquid paret oh
earn rem N™ Negidium A" Agerio darefacerepraestare oportere ex fide
bona, eius, iudex, N"^ Negidium A" Agerio condemna. s. n. p.
a. In the actio contraria, by which the agent sued the
principal, the formula began as above, but the condemnatio was different,
thus: quidquid paret ob eam rem A™ Agerium N"
Negidio dare facere praestare oportere e. f. b. eius A™ Agerium
N" Negidio condemna. s. n. p. a. Or again, where the claims
and counter-claims were conflicting, the condemnatio might be made
still more indefinite, thus : 1 17 Dig. 1. 12. fr. 6. --
quidquid paret oh earn rem alterum alteri dare facere praestare
oportere e. f. b. eius alterum alteri condemna. s. n. p. a.'
Unfortunately we do not know the language of the Edict by which the
actio mandati was instituted; but the fact that it was modelled on the
actions of sale and hire is one that nobody disputes. There
is no direct authority for assuming the existence of an actio in factum
in this case, as there is in the cases of commodatum and depositum,
where we have Gaius' express statement to that effects But it is
clear, from Gaius' allusion to "quaedam causae" and from his
use of "uelut," that double formulae existed in many other
actions. We may well accept Lenel's ingenious theory' that the
exist- ence of an actio contraria always indicates the existence of
formulae in ius and in factum conceptae, and the assumption here made is
therefore no rash conjecture. The conception of mandatum
changed somewhat before the end of the Republic. It meant at first
any charge general or special*. But by Cicero's time it had acquired the
narrow meaning, which it retained throughout the classical period, of a
par- ticular trust ^, while procuratio was used of a general trust
°, and its remedy was the actio negotiorum ges- torum ' Thus
it still remains for us to inquire to what 1 Lenel, Ed. Perp. p.
235. 2 Gai. IV. 47. ' Ed. Perp. p. 202. * Cato, R. R. 141-3.
= 17 Dig. 1. 48. 6 Cic. Top. 10. 42. ' Gai. in 3 Dig. 3. 46.
11—2 -- extent procuratio, i.e. general agency, was
practised, as distinguished from mandatv/m generate, i.e. special
agency with general instructions, and how general agents (procuratores)
were appointed. Now it is one of the most striking features of
the Boman Law that agency of this sort was unknown until almost the
end of the Republic. How and why so great a commercial people as the
Romans managed to do without agency, is a question that has received
many different answers. We may be sure that mandatum was practised long
before it ever became actionable, but if so, it was practised
informally and had no legal recognition. The cir- cumstance which made it
almost impossible for general agency to exist was that the Romans held
fast to the rigid rule : " id quod nostrum est sine facto nostra ad
ahum transferri nan potest \" Such a rule evidently had its origin
in the early period when contracts were strictly formal, and when
he alone who uttered the solemn words or who touched the scales was
capable of acquiring rights. In a formal period the rule was natural
enough; but the curious thing is that it should not have been
relaxed as soon as the real and consensual contracts became
important. This fact has sometimes been accounted for on
ethical grounds. It has been said that the keen legal conscience of the
Romans made them loth to depart from the letter of the law by admitting
that a man who entered into a contract could possibly thereby
acquire anjdihing for anybody else. But the true > 50 Dig. 17.
11. -- reason seems rather to have been a practical one ^ —
that the existence of an agency of status precluded that of an agency of
contract. Thus we know that householders as a rule had sons or slaves who
could receive promises by stipulation, though they could not bind
their paterfamilias by a disadvantageous contract; and so to a limited
extent agency always existed within the Roman family. It is also
obvious that, in an age when men seldom went on long journeys, the
necessity for an agent or fully em- powered representative cannot have
been seriously felt. Plautus shows however that agency was not
developed even in his day, when travel had become comparatively common.
In Trimimmus and Mostel- laria, for instance, no prudent friend is
charged with the affairs of the absent father, and consequently the
spendthrift son makes away with his father's goods by lending or selling
them as he pleases \ We can however mark the various stages
by which the Roman Law approximated more and more closely to the
idea of true agency. 1. The oldest class of general agents were
the tutor es to whom belonged the management (gestio) of a ward's
or woman's affairs, and the curatores of young men and of the
insane. 2. The next oldest kind of general agents were the
cognitores, persons appointed to conduct a par- ticular piece of
litigation ", and not to be confounded with the cognitores of
praediatura *. They were ori- 1 Pemice, Labeo, i. 489. " Trin.
1. 2. 129; Most. 1. 1. 74. 3 2 Verr. in. 60. 137 ; Gaee. 14.
* Lex. Malae. 63 ; Cio. Har. Resp. 45. ginally
appointed only in cases of age or illness ^ and their general authority
was limited to the manage- ment of the given suit. Gaius has shown us
how they were able to conduct an action by having their names
inserted in the condemnatio ^ Whether they existed or not under the legis
actio procedure is uncertain ; but they probably did, since we know
that they were at first appointed in a formal manner =-
Subsequently the Edict extended their powers to the informally appointed
procuratores. The action by which these agents were made responsible to
their principals was after Labeo's time the actio mandati*. During
the Republic however and before his time the jurists do not seem to have
regarded the relation between cognitor and principal as a case of
mandatum, but simply gave an action corresponding to each par-
ticular case, as for instance an actio depositi if the cognitor failed to
restore a depositwn. 3. Procuratores were persons who in
Cicero's day" acted as the agents and representatives of
persons absent on public business ^ They often appear to have been' the
freedmen of their re- spective principals, and their functions were
doubt- less modelled on those of the curatores. The connection
between curatores and procuratores is seen in the Digest where pupilli
and absent in- dividuals are often coupled together', while the
' Auot. ad Her. ii; 20. " Gai. iv. 86. 3 Gai. IV. 83.
■< 17 Dig. 1. 8. fr. 1. = Quint. 19. 60-62 ; -2 Verr. v. 7. 13 ;
Lix lui. Mm. 1. « Gaec. 57. • ' Cio. Or. 2. 249. 8 29
Dig. 7. 2. fr. 3 ; 47 Dig. 10. 17. fr. 11 ; 50 Dig. 17. 124. -- definitions
of procurator show that his power was confined to occasions on which his
principal was absent \ and the word procuratio itself indicates
that it was copied from the curatio of furiosi ^ or of prodigi.
One passage of Gaius " seems to imply that the procurator was
not always carefully distinguished from the negotioruTn gestor or
voluntary agent, and Pernice interprets some remarks of Cicero * as
indi- cating the same fact. From this he infers with much
likelihood^ that the remedy against the procurator was originally not the
actio mandati but the actio negotiorum gestorum^. Even in Labeo's time
the actio mandati was probably not well established in the case of
procuratores, though it was so by the time of Gains'. A
procurator might conduct litigation for the absent principal; but the
acquisition of property through an agent was not clearly established
even in Cicero's time °, though the principal could always bring an
action for the profits of a contract made in his name".
4. Negotiorum gestio was a relation not based upon contract, but
consisted m the voluntary in- tervention of a self-appointed agent, who
undertook to administer the affairs of some absent or deceased
friend. In the Institutes it is classed as a form of 1 Paul. Diac.
s.u. cognitor. ' Lex agr. c. 69. 3 IV. 84. ^ Top. 42 and 66. "
17 Dig. 1. 6. fr. 1. •> Labeo, I. 494. ' 4 Dig. 4. 25. fr.
1. 8 3 Dig. 3. 33. " Cic. Att. vi. 1. 4. i» 3 Dig.
3. 46. fr. 4. -- , quasi-contract, and it was always regarded
as a relation closely analogous to mandatum^. The mode of
enforcing claims made by the negotiorum gestor and his principal against
one another was the actio negotiormn gestorum, which might, like
the actio mandati, be either directa or contraria. It was based upon an
Edict worded thus : SI QVIS NEGOTIA ALTERIVS, SIVE QVIS
NEGOTIA QVAE CVIVSQVE CVM IS MORITVR FVERINT, GES- SERIT, IVDICIVM
EO NOMINE DABOl We do not know the date of this Edict, but it
was certainly issued before the end of the Republic, inasmuch as the
action founded upon it was discussed by Trebatius and Ofilius'. This
action had a formula in ills concepta which ran somewhat as follows
: Quod N' Negidius negotia A^ Agerii gessit, qua de re
agitur, quidquid oh earn rem N'^ Negidium A" Agerio dare facere
praestare oportet ex fide bona, tantam pecuniam index JV'" Negidium
A" Agerio condemna. s. n. p. a.* 5. Another means by
which agency could prac- tically be brought about was adstipulatio, as we
saw above ". This was not a case of true agency, for the
adstipulator acquired the claim in his own name, and if he sued upon it,
he did so of course in his own right : yet he was treated as agent for the
other stipulator and made liable to the actio mandati^. 6.
Fideiussio was probably treated as a form of special agency almost from
the time of its invention, 1 3 Dig. 5. 18. fr. 2. 2 3 Big. 5.
3. » 17 Big. 1. 22. fr. 10. * Lenel, Ed. Perp. p. 86. °
p. 110. » Gai. III. 111. -- since we know that it possessed
the remedy of the actio mandati as early as the time of Quintus
Mucius Scaeuola ^ Art. 5. SociETAS. This was the common
name given to several kinds of contract by which two or more
persons might combine together for a common profitq,ble purpose to which
they contributed the necessary means. These contracts could be
formed by mere consent of the parties, and except in the case of
societas uectigalis they were dissolved by the death of any one member,
so that even societas in perpetuum meant only an association for so long
as the parties should live '. Ulpian distinguishes four kinds
of societas": (1) omnium honorum, (2) negotiationis alicuius, (3)
rei unius, and (4) uectigalis. The first of these has no
counterpart in our modem law, but may be described as a contractual
tenancy in common. The second and third may be treated under one head, as
societates quaestuariae, corresponding to modem contracts of
partnership. The fourth may best be regarded as the Roman
equivalent of the modem corporation. Except in the case of this
fourth form, which was in most respects unique, the remedy of a
socius who had been defrauded, or who considered that the agreement
of partnership had been violated, or who wished for an account or a
dissolution, was either an actio in factum or the more comprehensive
actio pro socio ■*. 1 17 Dig. 1. 48. " 17 Big. 2.
1. 3 17 Dig. 2. 5. * Cic. Rose. Com. 9. Both
these actions were of praetorian origin, and the former was doubtless the
experimental mode of relief which prepared the way for the introduction
of the latter. At first we may fairly suppose the Praetor to have
granted an actio in factwm adapted to the particular case, with a formula
worded some- what as follows : 8i paret iV™ N™ cum A" A°
pactum bonuentum^ fecisse de societate ad rem certam emendam
ideoque renuntiauisse societati ut solus em^ret^, quanti ea res est
tantam pecuniam, iudex, N'^ iV™ A" A" condemna. s. n. p. a.
When the pactum societatis had thus been protected, and the juristic mind
had grown accustomed to regard societas in the light of a contract,
the Praetor then doubtless announced in his Edict that he would grant an
actio pro socio to any aggrieved member of a societas. In this way
agreements of partnership became fully recognised as contracts, and were
provided with an actio in iiis conoepta, the formula of which must have
been thus expressed': Quod A' Agerius cum N" Negidio
sodetatem coiit universoru/m quae ex quaestu veniunt, quidquid oh
eam rem N"^ Negidium A" Agerio (or alterum alteri) pro socio
dare facere praestare oportet ex fide bona, eius iudex N™ Negidium
A" Agerio (or alterum alteri) condemna. s. n. p. a. The
superiority of this honae fidei action to the former remedy, as a mode of
adjusting com- plicated disputes arising out of a partnership, is
too obvious to require explanation. The actio in 1 17 Dig. 2. 71.
"^ 17 Big. 2, 65. ir. 4. 3 Lenel, Ed. Perp. p. 237. -- factum
may still however have proved useful in certain cases.
Societas appears in Plautus with much less dis- tinctness than
either of the other three consensual contracts. Socius is not used by him
in a technical or commercial sense, but means only companion ^ or
co-owner^. The nearest approach to an allusion to societas in its more
recent form is to be found in Rudens^ where the shares of socii are
mentioned; but this is no reason for supposing that Plautus knew of
societal as a contract. The date of the actio pro socio is impossible to
fix, though Voigt^ has suggested that the Praetor P. Kutilius Rufas
must have been its author in the year 646 ^ Abso- lute certainty on the
subject is unattainable, because we cannot tell whether this Rutilius
originated or merely mentioned the edict, nor can we positively
identify him with the Praetor of a.v.c. 646. On these points there is
hopeless controversy", so that they must remain unsettled. But what
we can do with a certain measure of accuracy, is to trace the
process by which societal came to be regarded as a contractual relation,
and slowly grew in importance till it called for the creation by the
Praetor of a honae fidei action to protect it. This action certainly
existed about the end of the seventh century, for it is mentioned in the
Lex Julia Municipalis of 1 Bacch. 5. 1. 19 ; Cist. 4. 2. 78.
' Bud. i. 3. 95. ' 1. 4. 20 and 2. 6. 67. * lus N. IV. 603 note
204. 5 38 Dig. 2. 1. " See Husehke, Z. fur Civ. wnd
Proc. 14. 19 ; Schilling, Inst. §313. .
A.V.C. 709 ^ and was discussed by Quintus Mucius Scaeuola". A
closer approximation to the date of its "origin seems to be
impossible. 1. Societas omnium bonorum. The original
conception of societas seems not to have been that of a commercial
combination, but of a family. Not indeed that the term societas was
ever applied to the association of father, mother, children and cognates;
but they were practically regarded as a single body, each member of
which was bound by solemn ties to share the good or bad fortune
which befell the rest. The duty of avenging the death of a
blood-relation, the duty of providing a certain portion for children, as
enforced by the querela inofficiosi testamenti, the obsequia which
children owed to their parents, are illustrations of the principle. Now
this body, the family, could hold common property: and here is the point
at which the family touches the institution of partner- ship. The technical
term which expressed the tenancy in common of brothers in the family
pro- perty (hereditas), was consortivmi^, and the brother
co-tenants were called consortes. This institution of consortium was of
great antiquity, being even found in the Sutras*. It is compared by Gellius'
to the relation of societas, and arose from the descent or devise of the
patrimonial estate to several children who held it undivided. Division
might at any time be made among them by the actio familiae 1
Bruns, Font. p. 107. ^ gaj. ni. 149 ; Cic. Off. in. 17. 70. » Cie.
2 Veir. ii. 3. 23 ; Paul. Diao. 72. " Leist, Alt.-Ar. lus
Gent. p. 414. > i. 9. 12. -- erciscundas \ but they might
often prefer to continue the consortium, either because the property
was small, or because they wished to carry on an es- tablished
family business. If the latter course was adopted, the tenancy in common
became a partner- ship, embracing in its assets the whole wealth of
the partners ; and it is easy to see how this natural part-
nership, if found to be advantageous, would soon be copied by voluntary
associations of strangers. Thus socius, as we know from Cicero*, was
often used as a synonym of censors, and there can be no doubt that
consortium was the original pattern of the societas omnium bonorum".
That there were some differences between the rules of consortium and
those of societas does not affect the question. For in- stance *,
the gains of the consortes were not brought into the common stock, but
those ot socii were; while the death of a socius dissolved the societas,
but that of a consors did not ^ dissolve the consortium. These
points of difference and others " probably arose from the juristic
interpretation applied to societas, when it had once become fairly
recognised as a purely commercial contract. But consortium and
societas omnium bonorum have two points in common which show that
they must have been historically connected, (i) In societas omnium,
bonorum there was a complete and immediate transfer of property from the
indi- viduals to the societas'', whereas the obligations of -- Paul.
Diao. s. u. erctum. ^ Brut. i. 2. 3 Leist, Soc. 24 ; Pernioe, Z.
der S. Stift. R. A. in. 85. i 17 Dig, 2. 52. * Pernice, Labeo i. p.
69. « See Pernice, Laieo i. 85-6. ' 17 Dig. 2. 1.
-- each remained distinct and were not shared by the others'.
Now this is exactly what would have happened in consortium : the property
would have been common, but the obligation of each consors would
have remained peculiiar to himself, (ii) The treatment of socii as
brothers' is clearly also a reminiscence of consortiv/m ; and this
conception of fratemitas, being peculiar to the societas omnium
bonorum^, makes its connection with the old con- sortium still more
evident. The fraternal character of this particular societas
is responsible for the existence of a generous rule which subsequently,
under the Empire, became extended so as to apply to the other kinds of
societas^ The rule was that no defendant in an actio pro socio
should be condemned to make good any claim beyond the actual extent of
his means ^ This was known as the beneficium competentiae ; and it gave
rise to a qualified formula for the actio pro socio, as follows :
Quod A' Agerius cum N" Negidio societatem omnium bonorum emit,
quidquid 6b earn, rem iV"' Negidium A° Agerio dare f. p. oportet ex
f. b. dumtaxat in id quod i\r* Negidius facere potest, quodue dolo
malo fecerit quominus possit, eius index N™ Negidiwm A" Agerio
condemna. s. n. p. a. 2. Societas negotii uel rei alicuius.
This second form of partnership must have been the most common,
since it was presumed to be in- tended whenever the term societas was
alone used '. 1 17 Dig. 2. 3. 2 17 Dig. 2. 63. ' 17 Dig. 2.
63. * 17 Dig. 2. 63. fr. 1. 42 Dig. 1. 16 and 22. « 17
Dig. 2. 7. -- It has also been derived from consortium
by Lastig\ His theory is that consortes, or brothers, when they
undertook a business in partnership with one another^, often modified
their relations by agreement. The special agreement, he thinks,
then became the conspicuous feature of the partner- ship, and the
relations thus established were copied by associations not of consortes
but of strangers. The object of the theory is to explain the
correal obligation of partners. This correality did not how- ever
exist at Rome^, except in the case of banking partnerships, where we are
told that it was a peculiar rule made by custom*, so that Lastig's theory
lacks point. A further objection^ is that this theory does not
explain, but is absolutely inconsistent with, the exist- ence of the
actio pro socio as an actio famosa. The fraternal relations existing
between consortes could never have suggested such a remedy, for Cicero
in his defence of Quinctius lays great stress on the enormity of
the brother's conduct in having brought such a humiliatiag action against
his client. Another explanation of the actio pro socio is
given by Leist". He derives it from the actio so- cietatis given by
the Praetor against freedmen who refused to share their earnings with
their patrons. This societas of the patron must have been a one-
sided privilege, like his right to the freedman's 1 Z. filr ges.
Handelsrecht. xxiv. 409-428. 2 As in 26 Dig. 7. 47. 6.
3 14 Dig. 3. 13. 2 ; 17 Dig. 2. 82. * Auet. ad Her. ii. 13.
19 ; 2 Dig. 14. 9, 5 As Perniee has pointed out, Labeo i. p.
94. 6 Soc. p. 32. -- services' ; for the freedman could never
have brought an action against his patron, since he was not
entitled to any share in the patron's property. The actio
societatis was therefore a penal remedy available only to the patron, and
consequently it cannot pos- sibly have suggested the bilateral actio pro
socio of partners. Nor can the bonae fidei character of the actio
pro socio be explained if we assume such an origin. The most
reasonable view appears to be that which regards the actio pro socio as
the outcome of necessity. The Praetor saw partnerships springing up
about him in the busy life of Rome. He saw that the mutual relations of
socii were unregulated by law, as those of adpromissores had been
before the legislation described above in Chapter v. He found that
an actio in factum, based on the Edict Pax>ta conuenta, was but an
imperfect remedy; and as an addition to the Edict was then the
simplest method of correcting the law, it was most natural for him
to institute an actio pro socio, in which bona fides was made one of the
chief requisites simply because the mutual relations of socii had
hitherto been based upon fides \ 3. Societas uectigalium uel
pMicanorwm. This kind of societas was a corporation rather
than a partnership, and we have proof in Livy that such corporations
existed long before the other kinds of societas came to be recognised as
contracts. These 1 38 Dig. 2. 1. 2 Cie. Quint. 6. 26 ;
Q. Rose. 6. 16 ; S. Rose. 40. 116 ; 2 Verr. III. 58. 134. --
societates acted as war-contractors^ collectors of taxes ^, and
undertakers of public works'. In one passage in Livy * they are called
redemtores, and we find three societates during the second Punic War in
A.v.c. 539" supplying the State with arms, clothes and com. It
was perhaps the success of these societates publica- norwm" which
iatroduced the conception of com- mercial and voluntary partnership. But
still they were utterly unlike partnerships', so that their his-
tory must have been quite different from that of the other societates.
They were probably derived from the ancient sodalitates or collegia^,
which were per- petual associations, either religious (e.g.
augurium collegia), or administrative {quaestorum collegia), or for
mutual benefit, like the guilds of the Middle Ages (fabrorwm collegia).
This theory of their origia is based upon three points of strong
resem- blance which seem to justify us in establishing a close
connection between societas and collegium: (1) Both were regulated
by law", and were established only by State concessions or
charters. (2) Both had a perpetual corporate existence, and
were not dissolved by the death of any one member "- (3)
Both were probably of Greek origin. We > Liu. XXXIV. 6 in a.v.c.
559. ^ Liu. xxvii. 3 (a.v.c. 544). » Liu. XXIV. 18 (A.V.C. 540) ;
Cic. 2 Verr. i. 50. 150. • XLii. 3 (a.v.c. 581). ' Liu. xxiii.
48-9. " Liu. xxxix. 44 ; XXV. 3. '3 Dig. 4. 1. 8
Lex rep. of a.v.c. 631, cap. 10 ; Cic. leg. agr. ii. 8. 21 ; pro domo 20.
51 ; PUnc. 15. 36. 9 GaiuB, 3 Dig. 4. 1 ; 47 Dig. 22. 1.
"I 28 Dig. 5. 59 fr. 1 ; 17 Dig. 2. 59 ; Cic. Brut. i. 1.
B. E. 12 -- are told that societates publiccmorum
existed at Athens', while Gaius^ derives from a law of Solon the
rule applying to all collegia, that they might make whatever bye-laws
they pleased, provided these did not conflict with the public law.
These three facts may well lead us to derive this particular form
of societas from the collegium. We know further that the jurists looked
upon it as quite different from the ordinary societas, and that it did
not have the actio pro socio as a remedy'- The president or head of the
societas was called manceps*, or magister if he dealt with third parties
', and the modes of suretyship which it used in its corporate
transactions were praedes and praedia', another mark perhaps of its
semi-public origin. 1 Arist. Bep. Ath. 52. 3 and of. Voigt, I. N.
ii. 401. 2 47 Dig. 22. 4. 3 Voigt, Rom. BG. i. 808. *
Ps. Asc. in Cio. Diu. ; Paul. Diao. 151 s. u. manceps ; Cio. dam.
10. 25 ; Cic. Plane. 26. 64. ' Paul. Diac. s. u. magisterare
; Cic. Att. v. 5. 3 ; Cio. 2 Verr. 11. 70. 169 ; ib. III. 71.
167. ' Lex Mai. c. 65. -- Real Contracts.
Art. 1. MvTWM. We have not yet really dis- posed of all the
consensual contracts, for we now come to a class of obligations entered
into without formality and by the mere consent of the parties, but
ia which that consent was signified in one par- ticular way, i.e. by the
delivery of the object in respect of which the contract was made. The
con- tracts of this class have therefore been teirmed Eeal
contracts, though they might with equal propriety be called Consensual.
The oldest of them all is mutumn, the gratuitous loan of res fungibiles,
and it stands apart from the other contracts of its class in such a
marked way, that its peculiarities can only be understood from its
history. It differed from the other so-called real contracts, (i) ia
having for its remedy the condictio, an actio stricti iuris; (ii)
in being the only one which conveyed ownership in the objects lent,
and did not require them to be returned in specie. Both peculiarities
requfre explanation. 12—2. The most important function of Contract
in early- times was the making of money loans, and for this the
Romans had three devices peculiarly their own, first Tiexum, then
sponsio, and lastly earpensilatio. But these were available only to Roman
citizens, so that the legal reforms constituting the so-called ius
gentium naturally included new methods of per- forming this particular
transaction. One such in- novation was the modification of sponsio,
already described, and the rise of stipulatio in its various forms
: another was the recognition of an agreement followed by a payment as
constituting a valid contract, which might be enforced by the
condictio, like the older sponsio and expensilatio. This latter
innovation was the contract known as mutuwm. It doubtless originated in
custom, and was crystallised in the Edict of some reforming
Praetor. As its object was money, or things analogous to
money in having no individual importance, such as com, seeds, &c.,
the object naturally did not have to be returned in, specie by the
borrower. Though the bare agreement to repay was suffi-
ciently binding as regards the principal sum, the payment of interest on
the loan could not be pro- vided for by bare agreement, but had to be
clothed in a stipulation. This rule may have been due to the fact
that mutuum was originally a loan firom friend to friend ; but it rather
seems to indicate that bare consensus was at first somewhat reluctantly
tolerated. In Plautus mutuum appears as a gratuitous loan,
generally made between friends^ and in sharp con- > Cure. 1. 1. 67 and
2. 3. 51 ; Paeud. 1. 3. 76. D trast to foenus, a
loan with interest', which was always entered into by stipulation. When
mutuv/m is used by Plautus to denote a loan on which interest is
payable, we must therefore understand that a special agreement to that
effect had been entered into by stipulation, since mutuum was
essentially gratuitous. From three passages " it is
evident that mutuum was recoverable by action in the time of
Plautus* (circ. A. V. c. 570), and it seems probable that Livy^
also uses it in a technical sense ^ If then we place the date of the Lex
Aebutia as late as A.v.c. 513, and suppose, as Voigt does ', that mutuum
being a iuris gentium contract must have been subsequent to that
law, we shall be led to conclude that mutuum came into use about the
second quarter of the sixth century. This theory as to date is supported
by the fact, which Karsten points out', that mutuum would hardly
have been possible without a uniform legal tender, and that Rome did not
appropriate to herself the exclusive right of coinage till A.v.c. 486.
We thus see that the introduction of mutuum and that of emtio
uenditio, i.e. of the first real and the first consensual contract, took
place at about the same time. As regards its peculiar remedy
we know that money lent by mutuum was recoverable by a con- dictio
certae pecujiiae, with the usual sponsio and 1 Asin. 1. 3.
95. 2 Trin. 3. 2. 101 ; 4. 3. 44 ; Bacch. 2. 3. 16. 3
Cure. A.v.c. 560. ^ xxxii. 2. 1. » Of A.v.c. 555. 6 I. N. IV. 614. '
Slip. p. 38. restipulatio tertiae partis\ It seems,
like expensila- tio, to have received this stringent remedy by
means of juristic interpretation, which extended the meaning and
the remedy of pecimia certa credita so as to cover this new form of loan.
Thus we find credere often used by Plautus in the sense of making a
miwtvm/m *. When this final extension had been made iu the
meaning of pecunia credita, we may reconstruct the Edict on that subject
as follows ° : SI CERTVM PETETVR DE PECVNIA QVAM QVIS CREDIDERIT
EXPENSVMVE TVLERIT MVTVOVE DE- DERIT NEVE EX IVSTA CAVSA SOLVERIT
PROMISE- RITVE, DE EO IVDICIVM DABO. The iudicium here
referred to was the condictio certae pecuniae, the formula of which has
already been given*. We know that mutuvm, could be applied to
other fungible things besides money, such as wine, oil or seeds,
and in those cases the remedy must have been the condictio
triticaria'^. FoENVS NAVTIGVM {Bdveiov vavTiKov). A con-
tract very similar to mviuvm,, which we know to have existed in the
Republican period, since we find it mentioned by Seruius Sulpicius * and
entered into by Cato', was foeniis nauticum, a form of marine
insurance resembling bottomry^. It consisted of a money loan (pecunia
traiecticia) to be paid back by the borrower, — ^invariably the owner of
a ship, — 1 Cic. Rose. Com. 4. 13. 2 As in Pers. 1. 1.
37; Merc. 1. 1. 58; Pseud. 1. 5. 91. s Voigt, I. N. IV. 616. •* p.
104. » 12 Dig. 1. 2. 8 22 Dig. 2. 8. ' Plutarch, Cat. Mai.
21. ' Camazza, Dir. Com. p. 176 ff.
only in the event of the ship's safe return from her voyage. A
slave or freedman of the lender apparently went with the ship to guard
against fraud'; but there was no hjrpothecation of the ship, as in a
modem bottomry bond. The contract resembled mutuum in being
made without formality; but its marked peculiarities were:
(i) That it was confined to loans of money, (ii) And to loans from
insurers to ship-owners, (iii) And because of the great risk it was
not a gratuitous loan, but always bore interest at a very high rate
^ It is, however, quite possible that this interest was not originally
allowed as a part of the formless contract, but that it was customary,
as Labeo states ', to stipulate for a severe poena in case the loan
was not returned. If that be so, the stipu- l&tory poena spoken of by
Seruius and Labeo must have been the forerunner in the Republican
period of the onerous interest mentioned by Paulus'' as an inherent
part of this contract in his day. Art. 2. CoMMODATVM. The next
three real contracts are not mentioned by Gains, who appa- rently
took his classification fi-om Seruius Sulpicius, and it therefore seems
certain that in the time of Seruius and during the Republic they were not
re- garded as contracts, but as mere pacta praetoria.
Commodatum was the same transaction as mutuum applied to a
different object. In mutuum there was a gratuitous loan of money or other
res fungihilis, 1 Plut. Gat. 1. 0.; 45 Dig. 1. 122 fr. 1.
■' 22 Big. 2. 7. ' 22 Big. 2. 9. " 22 Big. 2. 7. CONTRACTS
OF THE IVS GENTIVM. whereas in commodatum the gratuitous loan was
one of a res nonfungihilis ' Both were originally acts of
friendship, as their gratuitous nature implies. Plautus shows us that
in his day the loan of money was not distinguished from that of
other objects, for he uses commodare^ and iitendwm dare^ in speaking of a
money loan, as well as in describing genuine cases of commodatum.
We do not, however, discover from Plautus that commo- datum, was
actionable in his time, as mmiuwrn clearly was. Vtendmn dare, we may
note, is in his plays a more usual term than commodare *. If it be
asked why the condictio was not extended to commodatum as it was to
mutwu/m, the answer is that the latter always gave rise to a liquidated
debt, whereas in a case of commodatum the damages had first to be
judicially ascertained, and for this purpose the con- dictio was
manifestly not available. The earliest mention of commodatum as an
action- able agreement occurs in the writings of Quintus Mucins
Scaeuola (ob. A.v.c. 672) quoted by Ulpian" and Gellius *. Cicero
significantly omits to mention it in his list of bonae fidei contracts,
and the Lex lulia Municipalis (a.v.c. 709) contains no allusion to
it'. The peculiar rules of the agreement seem to have become fixed
at an early date. Quintus Mucins Scaeuola is said to have decided that
culpa leuis ^ e.g. a scyphus, Plaut. Asin. 2. i. 38 or a chlamys,
Men. i. i. 94. 2 Asin. 3. 3. 135. « Persa, 1. 3. 37.
* Aul. 1. 2. 18 ; Bvd. 3. 1. 9. » 13 Dig. 6. 5. « VI. 15. 2.
' Bruns, Font. p. 107. Digitized by Microsoft®
AGE OF COMMODATVM. 185 should be the measure of
responsibility required from the bailee (is cui commodatur), and to have
established the rule as to furtum usus, in cases where the res
commodata was improperly used. It seems therefore probable that the
Praetor recognised commodatum at first as a pactum praetoriwn, and
granted for its protection an actio in factum, with the following
formula : Si paret A™ Agerium N" Negidio rem qua de
agitur commodasse (or utendam dedisse) eamque A" Agerio redditam non
esse, quanti ea res erit, tantam pecuniam N"^ Negidium A"
Agerio condemna. s. n. p. a. The agreement between bailor and
bailee pro- bably did not come to be regarded as a regular contract
until after the time of Cicero. We must therefore place the introduction
of the actio commo- dati at least as late as A.v.c. 710, and by so doing
we explain Cicero's silence. Whatever conclusion we shall arrive at
as to depositum must almost neces- sarily be taken as applying to
commodatum, also. They both had double forms of action in the time
of Gaius\ neither is mentioned by Cicero, and Scaeuola evidently dealt
with them both together. Hence their simultaneous origin seems
almost certain. The actio commodati is said to have been instituted
by a Praetor Pacuuius'', who, like Plau- tus, used the words utendum dare
instead of com- modare. The terms of his Edict must therefore have
been: 1 IV. 47. 2 13 Dig. 6. 1. CONTRACTS OF
THE IVS GENTIVM. QVOD QVIS VTENDVM DEDISSE DICETVR, DE EO
IVDICIVM DABOl The author of this Edict was formerly supposed
by Voigt to be Pacuuius Antistius Labeo", the father of Labeo the
jurist ; but this statement has recently been withdrawn' on the ground
that this Pacuuius, having been a pupil of Seruius Sulpicius *,
could not have been Praetor as early as the time of Quintus Mucius. If
however the above theory as to the dates be correct, Voigt's former view
may be sound : Q. Mucius may have been speaking of the actionable
pactum, while Pacuuius may have been the author of the true contract. The
aMio com- modati directa had a formula as follows: Qiiod A' Agerius
N" Negidio rem q. d. a. commodauit (or utendam dedit) quidquid oh
earn rem M™ Negi- dium A" Agerio dare facere praestare oportet
ex fide bona, eius iudex N"^ Negidiwm A' Agerio con- demna. s.
n. p. a. It was doubtless in this form that the action on a commodatum
was unknown to Cicero. He must have been familiar only with the
actio in factvmi, and for that very reason he must have regarded
com/modatwm not as a contract, but as a pactum conuentum.
Art. 3. Depositvm. The most general word denoting the bestowal of a
trust by one person upon another was commendare', and Voigt has
shown' that corrvmendaiumh was the technical term 1 I. N. III. 969.
2 I. N. in. 969 note 149G. » B. HG. i. 622 note 25. * 1 Dig. 2. 2.
44. ' Plant. Trin. 4. 3. 76 ; Cio. Fam. ii. 6. 5 ; 16 Diff. 3. 24 ;
Cio. Fin. III. 2. 9. « R. RG. i. App. 5. -- for a particular kind of pactum. If the
object of commendatio ' was the performance of some service, the
relation was a case of mandatwm'^ : if its object was the keeping of some
article in safe custody, the relation was described as depositvmi^. This
case clearly shows how arbitrary is the distinction drawn by the
Roman jurists between Real and Consensual Contract. Though starting, as
we have seen, from the same point, mandatum came to be classed as a
consensual, and depositv/m as a real contract. This was simply because
the latter dealt, while the former did not deal, with the
possession of a definite res. Depositum distinctly appears in
Plautus* as an agreement by which some object is placed in a man's
custody and committed to his care, though deponere is not the word generally
used by Plautus to denote the act of depositing. He prefers the
phrase seruandimi dare, corresponding to utendvmi dare, which we found to
be his usual expression for commodatum'. These very words, semandum
dare, were also used by Quintus Mucins Scaeuola in dis- cussiDg depositum
', but we cannot ascertain from his language whether or not the actio
depositi was already known to him. He may merely have been
discussing an actionable pactum,. Nor can we infer from any passage of
Plautus the existence of depositum as a contract in his time. He
seems 1 Cic. Fin. III. 20. 65. 2 Plant. Merc. 5. 1. 6.
3 16 Dig. 3. 24 ; Plant. Merc. 2. 1. 22. * Bacch. 2. 3. 72. 6
Merc. 2. 1. 14 ; Cure. 2. 8. 66 ; Bacch. 2. 8. 10. 8 Gell. VI. 15.
2. rather to represent it, as Cicero does ', in the light
of a friendly relation based simply on fides '^-j and in most of
the Plautine passages the transaction is that which was afterwards known
as depositum irregulare, i.e. the deposit of a package containing money either
at a banker's ', or with a friend * Some have thought that there
must have been an action in Plautus' time for the protection of
such important trusts °, but Demelius° points out that the actio
furti (to which Paulus alludes as actio ex catosa depositi) would have
afforded ample protection in most cases; and it would be extremely rash
to infer that either commodatum or d&positwm was actionable in
the sixth century of the City. At first sight it even looks as
though depositum, was not protected by any action in the days of
Cicero. The passages in which he mentions it' appear to treat the
restoration of the res deposita rather as a moral than a legal duty.
Similarly where he enumerates the bonae fidei actions', where he
mentions the persons qui bonam fidem praestare debent ', and where he
describes the indicia de fide mala'^', he entirely leaves out the actio
depositi and does not make the slightest allusion to depositum.
But all this is equally true of commodatum^. And since we have the
clearest evidence that com- modatum. was actionable in the time of
Quintus 1 2 Verr. it. 16. 36. ^ Merc. 2. 1. 14. 5 Cure.
2. 3. 66. * Bacch. 2. 3. 101. » Costa, Dir. Priv. p. 320. « Z. fur
RG. ii. 224. ' Farad, iii. 1. 21 ; Off. i. 10. 31 ; iii. 25.
95. 8 Off. III. 17. 70. 9 Top. 10. 42. " N. D. III. 30.
7. " Gai. iv. 47. -- Mucius ScaeuolaS we
can hardly avoid the con- viction that depositurn also was actionable in
his day by means of an actio in fojctvmi, whereas the actio
depositi was not introduced, as Voigt holds, till the beginning of the
eighth century==- This theory of development, already applied
to mandatum and societas, has the advantage, not only of explaining
why commodatwm and depositvmi were not numbered among hoTiae fidei
contractus, but also of accounting for the existence in Gains' day of
their double formulae which have puzzled so many jurists'. We may
then believe that depositurn was first made actionable between A.v.c. 650
and 670 as a pactum praetorium, and with the protection of an actio
in factum concepta as given by Gains: Si paret A™ Agerium apud N™
Negidiwm mensam argenteam deposuisse eamque dolo N^ Negidii A"
Agerio red- ditam nan esse, quanti ea res erit, tantam pecuniam,
iudex, N™ Negidium A" Agerio condemnato. s. n. p. a.
This formula was doubtless the only one pro- vided for depositumi
down to the end of Cicero's career. But about A.v.c. 710^ juristic
interpre- tation began to regard commodatvmi and depositurn as
genuine contracts iuris ciuilis, and thereupon a second formula was
iutroduced into the Edict, with- out disturbing the earlier one, so that
depositurn, like commodatwm, was finally recognised as a contract.
1 13 Dig. 6. 5. " Earn. EG. i. 623. * See Muirhead's
Gaim, p. 293 note. * 41 Dig. 2. 3. 18 ; 16 Dig. 31. 1. 46 ;
Trebatius was trib. pleb. A.V.C. 707. We know that the
Praetor's Edict by which this change was brought about ran somewhat thus
: QVOD NEQVE TVMVLTVS NEQVE INCENDII NEQVE RVINAE NEQVE NAVFRAGII
CAVSA DEPOSITVM SIT IN SIMPLVM, EAEVM AVTEM RERVM QVAB SVPRA COMPREHENSAE
SVNT IN IPSVM IN DVPLVM, IN HEREDEM EIVS QVOD DOLO MALO EACTVM ESSE
DICETVR QVI MORTWS SIT IN SIMPLVM, QVOD IPSIVS IN DVPLVM IVDICIVM
DABO'. The penalty of dwplwm shows that, where the depositwn had
been compelled by adverse cir- cumstances, a violation of the contract was
regarded as peculiarly disgraceful and treacherous. In other cases,
where the depositwn was made under ordinary circumstances, the amount
recovered was simplwm, and the new formula must have been that given
by Gaius " as follows : Quod A' Agenus apud N™ Negi- dium
mensam argenteam, deposuit qua de re agitur, quidquid oh earn rem JSf™
Negidium A" Agerio dare facere oportet ex fide bona, eius index N™
Negidiv/m A" Agerio condemnato. s. n. p. a. Art. 4.
PiGNVS. The giving and taking of a pledge appears in Plautus as a means
of securing a promise, but seems then to have belonged to the class
of friendly acts which the law did not con- descend to enforce. In
Gaptiui^ for instance, the slave who had been pledged is demanded in a
purely in- formal way, and in Rudens^ pignus is a mere token given
to prove that the giver is speaking the truth. Its connection with
arrhabo is very close. Each served to show that an agreement was
seriously 1 16 Dig. 3. 1. ••' IV. 47. » 5. 1. 18. • 2.
7. 23. meant by the parties, or was a means of
securing credit as a substitute for money', and if the agree- ment
was broken, the pignus or arrhabo was doubtless kept as compensation.
This practice of giving pawns or pledges was probably of great antiquity,
but we hear nothing of it from legal sources, simply because it was
an institution founded on mores alone. It pro- bably applied only to
moveables and res nee mancipi\ for res mancipi could be dealt with by a
pactvmi fiduciae annexed to mancipatio. Gaius ' derives the word
from pugnuTn, because a pledge was handed over to the pledgee ; but the
correct derivation is doubtless from the same root as pactum,
pepigi, Pacht, Pfand*. Pignus must then have meant a thing fixed or
fastened, and so a security. And this derivation suits the word in the
phrase pignoris capio equally well, without leading us to suppose
that the custom of giving a pledge was in any way derived from the
pignoris capio of the legis actio system. We do not know when
pignus became a contract, though it certainly was so before the end of
the Republic. Long before being recognised as such it doubtless
enjoyed the protection of an actio in factum, with a formula as follows :
Si paret A^ Agerium N" Negidio ratem q. d. a. oh pecuniam debitam
pignori dedisse, eamque pecuniam solutam, eoue nomine satis- factum
esse, aut per N™ Negidium stetisse quominus soluatur, eamque ratem q. d.
a. A" Agerio redditam rum esse, quanti ea res erit, tantam, &c.^
In course 1 Bechmann, Kauf, ii. 416. '' 50 Big. 16. 238. '
ibid. * Dernburg, FJr. i. p. 49 ; Beitr. zur vrgl. Sprachforsch.
ii. p. 49. ' Lenel, Ed. perp. p. 201. , of
time the actio pigneraticia was introduced as an alternative remedy, and
Ubbelohde ' has argued that since its place in the edict was between
commodatum and depositum, the Praetor must have introduced the
actio pign&raiicia after the actio com/modati and before the actio
depositi ; which seems a very plausi- ble conjecture. We have no direct
evidence of the existence of an actio pigneraticia earlier than the
time of Alfenus Varus, a jurist of the later Re- public"''; it is
not mentioned by Cicero; in short everything points to the origin of the
contract of pigrms as corresponding in age to that of commo- datwm
and depositwm. The language of the Edict by which pignus was made a
contract has not survived, while the formula of its actio
pigneraticia resembled of course that of the actio depositi, and
need not therefore be given. Though pignus was doubtless a very
inadequate security from the point of view of the pledgor, since it
might at any time be alienated or destroyed, it is the only form which
appears to be common in Plautus, and of fiducia he shows us not a trace
'- Pignus seems to have been much used for making wagers, and
pignore certare was probably as common as sponsione certare ^ which we
treated of in a pre- vious article. The contracts of a
kindred nature which seem to have arisen even sooner than pignus will be
discussed in the next chapter. 1 6. der ben. Bealcont. p. 62.
2 13 jjjgr. 7. 30. 3 Costa, Dir. Priv. p. 262. * Bekker, Akt. i.
253. We have examined in a former chapter the early
origin of the pactwm fidudae^, a formless agreement annexed to a
solemn conveyance, by which the transferee of the object conveyed
as security agreed to reconvey, as soon as the debt was paid, or whenever
a given condition should arise. As a result of the Edict Pacta
conuenta, and before Cicero's time'', this pactum became en-
forceable by the actio fiduciae. This action was in factum, like
the others of its class, and its function was to award damages, but
it could not otherwise compel the actual recon- veyance of the object.
Its formula must have been worded as follows^ : Si paret A™
Ageriwm N" Negidio fwndum quo de agitur oh pecuniam debitam fiduciae
causa mancipio dedisse, eamque pecuniam solutam eoue nomine satis-
f actum esse, aut per N™' Negidium stetisse quominus solueretur, eumque
fwndum redditum non esse, nego- 1 Supra, p. 78. '^ Cie. Off. in.
15. 61. 3 Lenel, Ed. Perp. p. 233. B. E. 13
tiumue ita actum non esse ut inter honos T)ene agier
oportet et sine fraudatione, quanti ea res erit tantwm pecuniam index N™
Negidium A" Agerio condemna. s. n. p. a. The peculiar
clause "ut inter honos bene agier oportet"'^ virtually made
this a bonae fidei action. That fact may perhaps explain vfhyfiduda was
never protected by a formula in ius coTicepta, and hence was never
regarded as a true contract. Art. 2. Hypotheca. We have seen that
there were two ways in which a tangible security might be given:
(i) the object might be conveyed with a pactum fiduciae, providing that
it should be recon- veyed on the fulfilment of a certain condition,
or else (ii) the mere detention of the object might be granted on
similar terms. In the former case the pledge or its value could be
recovered by the actio fiduciae, in the latter by the actio pigne-
raticia whose origin we have just discussed. But neither fiducia nor
pignus was a contract of pledge pure and simple; each consisted of an
agreement plus a delivery of the object. The abstract
conception of mortgage, i.e. pledging by mere agreement, is a distinct
advance upon both these methods. The contract which embodied this
form of pledge was known as hypotheca ; and as its name indicates it was
borrowed from the Greeks, from whom the Romans also took the Lex
Rhodia de iactu and the foeitms nauticum. Precisely the same
contract is found in the speeches of Demos- 1 Cic. Top. 17. 66.
thenes' under the name of v-trodr)Kr\, which could he
applied to moveables or immoveables, and even to articles not yet in
existence. The Romans how- ever regarded hypotheca not as a contract but
as a pactum. It is quite certain that a legal conception so
refined as the pactum hypothecae could not have had a place in the
legal system of the XII Tables. There are passages in Festus" and
Dionysius" in which the words si quid pignoris and eveyypat^eiv have
been supposed to indicate the existence of some such practice at an
early period. But the evidence is much too vague to supply trustworthy
data, and we may confidently assert that mortgage was unknown to
the early law*. Accordingly, we find that hy- potheca was introduced and
made actionable by slow degrees. Its popular name was pignus oppo-
situm, as distinct from pignus depositum, the ordinary pignut above
described. Its LQtroduction seems to have been one of the
many legal innovations produced by the large immi- gration of strangers
into Rome after the Second Punic War. These strangers must generally have
become tenants of Roman landlords, since the lack of ius commercii
prevented their buying lands or houses, and in order to secure his rent,
the only resource open to the landlord was to take the household
goods of these tenants as security. Such household goods {inuecta
illata) probably constituted in most cases the only wealth of the foreign
immigrant, conse- 1 Dernburg, Pfdr. i. p. 69. ^ s.u.
nancitor. " VI. 29. * Dernburg, Pfdr. i. 55.
13—2 quently the landlord could not remove them,
and the method of pignus was not available. The ex- pedient which
suggested itself was that the tenant should pledge his goods without
removal, by means of a simple agreement. The relation thus created
was the original form of hypotheca and was precisely analogous to that of
a modern chattel mortgage. As the idea was introduced by foreigners
', it was very natural that this agreement of pledge should have
received a foreign name. Another class to whom the new expedient was
applied were the free agricultural tenants (coloni) whose sole wealth
often consisted of their tools and other agricultural stock^. The
necessity of making a pledge without removal is obvious in their case also.
I. It was for the protection of landlords that a Praetor Saluius
introduced the interdictum Salui- anum, which seems to have been the
first legal recognition that hypotheca received. Its date is not
known. Formerly the Praetor Saluius lulianus, author of the Edictum perpetuum,
was regarded as the inventor of this interdict, but his own
language in the Digest^ contradicts this supposition. The most
reasonable theory is that the interdict origi- nated before the Edict
Pacta conuenta (A.v.c. 627) at about the end of the sixth century.
The fact that Plautus knew hypotheca as a mere nudum pactum can
hardly be doubted*. It is true that he not only uses, as Terence does a
little later ', 1 Dernburg, Pfdr. i. 56. " 4 Big. 15. 3.
1. » 1.S Dig. 7. 22. * Demelius, Z.filr RG. ii. 232. 5
Phorm. 4. 3. 56. the phrase pignori opponere ' to
denote the making of a pledge by mere agreement; but he also men-
tions the Greek technical term eTndi^Krj and seems to use hypotheca as a
metaphor'^. The testimony to be gathered from these passages does not
however prove that hypotheca was actionable'. The contents of
the interdictum Saluianum can- not be given with certainty. We only know
two things about it : (1) that it was a remedy of limited scope,
being available only against the tenant or pledgor, but not against third
parties to whom he had transferred or sold or pledged the goods,
and (2) that the interdict was prohibitory and forbade the pledgor
to prevent the landlord from seizing the objects which had been
mortgaged. (1) This first proposition is distinctly stated by
a constitution of Gordian", but flatly contradicted by a passage in
the Digest *. The latter authority, however, seems open to strong
suspicion " and the fact that the actio Seruiana was presumably
intro- duced because the interdictum Saluianum was inadequate
further goes to prove the correctness of Gordian's constitution.
(2) We may be fairly certain that the interdict was prohibitory,
like the interdictum utrvbi, and not restitutory, as Huschke would have
it'; since the weight of authority is in favour of the former
1 Pseud. 1. 1. 85. * True. 2. 1. i. 3 Costa, Dir. priv. p.
264 ; Dernburg, Pfdr. i. p. 65. * 8 God. 9. 1. = 43 Dig. 33. 1.
" Lenel, Z. der Sav. Stiftung, R. A, iii. 181. 7 Studien, p.
398. view^ We may therefore accept KudorfiPs
restora- tion of its formula, which runs as follows*: Si is homo
quo de agitur est ex his rebus de quibus inter te et conductorem
(colonum, &c. &c.) conuenit, ut quae in eu/m fwndum quo de agitw
inducta illata ibi nata factaue essent ea pignori tibi pro mercede
eiusfimdi essent, neque ea merces tibi soluta eoue nomine satis- f
actum, est aut per te stat quaminu^s soluatur, ita quo- minus eum ducas
uim fieri ueto. II. The second remedy introduced to enforce
the formless agreement of mortgage was the actio Seruiana, which was far
more efficacious. Its author cannot have been Seruius Sulpicius Rufus,
the Mend of Cicero, because he never was Praetor Vrbanus, and the
action must have existed long before his time. The Praetor who devised it
was doubtless one of the many Seruii Sulpicii whose names constantly
appear in the fasti consulares, and its age is probably not much
less than that of the interdictum Saluianum. The action was certainly
younger than the interdict, and an improvement upon it, because the
jurists treated the law of mortgage under the head of inter- dict',
which indicates that this was the form of the original remedy. We may be
sure that the interdict is older than the Edict Pacta conuenta, for
otherwise it would not have been needed. And as soon as pa(Aa were
thus legally recognised, it is safe to say that a more perfect remedy for
hypotheca was sure ' Dernburg, Pfdr. p. 59; Bachofen, Pfdr. p. 13;
Keller, Re- cemion. p. 977 and Eudorff, Pfandkl. p. 210 ; Lenel, Ed.
Perp. p. 394. 2 Pfandkl. p.
209. Of. Budorff, Ed. Perp. 282. ' Dernburg, Pfdr. i. p. 61.
to be devised. The probability is then that the
actio Seruiana was one of the first products of the Edict Pacta
conuenta, partly because we know that the interdict was an imperfect
remedy, partly because hypotheca was much in vogue at that early
date. Thus we may gather from Plautus' allusions that hypotheca was
already in a well developed state about A.v.c. 570. Cato the Censor^ also
seems to have alluded to it, and Caec. Statins {oh. A.v.c. 586), as
cited by Festus", unquestionably did so. The curious circumstance
that Cicero should have mentioned it only twice ^ may perhaps be
accounted for by the fact that pignus in its looser sense was
always a synonym for hypotheca *, and as he mentions it so seldom in its
Greek form, we may suppose that the term hypotheca was then only just
coming into general use. We know that pignus in the narrower sense
was distinguished by Ulpian from hypotheca as sharply as we distinguish a
pawn from a mortgage ^, but the earlier writers lead us to infer that
the term pignus oppositum, or simply pignus, was origi- nally the
equivalent of hypotheca. The effect of the actio Seruiana was
probably a mere enlargement of the scope of the interdictwm Saluianum,
giving the landlord a legal hold upon the inuecta illata of his tenant
even in the possession of third parties. But since the right of thus
pledging by agreement was as yet recognised only as between the
colonus or the house-tenant and his landlord, 1 jj. i{. 146. ^ s.u.
reluere. 3 Att. n. 17 and Fam. xiii. 56. * 20 Dig. 1. 5.
» 13 Dig. 7. 9. hypotheca was a
transaction still confined to a small class. III. A final
improvement was effected, perhaps shortly after the one just mentioned,
when the Praetor granted an action on. the analogy of the actio
Seruiana, upon all agreements of pledge of whatever description. From the
creation of this action, known as cuctio quasi Seruiana ^ or hypothecaria
", or simply Seruiana^, dated the introduction of a law of
mort- gage applicable to objects of all kinds. The name
hypothecaria, which we find applied only to the last of these three
remedies, implies either that this was the only action available for all
forms of hypotheca, or else that the Greek term was not introduced
until the contract had thus become general. The formula of
the CKtio quasi Seruiana or hypo- thecaria was of course in factum
concepta *, because the pactum hypothecae never was treated as a
con- tractus iuris ciuilis, though it became in reality as binding
as any contract. The words are restored by Lenel° as follows, in an
action by the mortgagee against a third party : Si paret inter A™ Agerium
et Ludum Titium, conuenisse ut ea res qua de agitur A° Agerio
pignori hypothecaeue esset propter pecuniam debitam, eamque rem tunc cum
conueniebat in bonis D Titiifuisse, eamque pecuniam neque solutam neque
eo nomine satisfactum esse neque per A^ Agerium, stare quominus
soluatur, nisi eares A" Agerio arbitratu-tuo 1 4 Inst. 6. 7. 2
16 Dig. 1. 13. ' Bachofen, Pfdr. p. 28. * Ed. perp. p.
397 ; cf. Dernburg, Pfdr. i. p. 78. ' ib. p. 81 ; cf. Budorfl, Ed. perp.
234. restituetur, quanti ea res erit, tantam
pecuniam index N'" Negidium A" Agerio condemna. s, n. p.
a. No mortgage can be of much practical use unless it
empowers the creditor to sell the thing pledged, so as to cover his loss.
But it is evident that the mere pledgee or mortgagee could have had no
in- herent right to sell or convey what did not belong to him. This
was an advantage possessed by fiduoia, since the property was fully
conveyed and could therefore be disposed of as soon as the condition
was broken. The only way out of the difficulty both in pignus and
hypotheca was to make a condition of sale part of the original agreement.
This was un- necessary under the Empire ^ when the power of sale
came to be implied in every hypotheca, but during the Republic the power
had to be explicitly re- served, or else the vendor was liable for
conversion (furtumy. Even Gains " speaks as though a pactum de
uendendo was usual in his time. Labeo describes a sale eoc pacta
conuento^, but the usual name for the clause of the agreement containing
the power of sale was lex ccmimissoria. When it became possible to
insert such a clause is uncertain, but Demburg seems right in maintaining
that, as the lex commis- soria was known to Labeo and to the far
more ancient Greek law, it must certainly have been customary at
Rome long before the end of the Republic. 1 13 Dig. 7.
4. 2 47 Dig. 2. 74 ; Demburg, Pfdr. i. p. 91. ^ n. 64. * 20
Dig. 1. 35. = Pfdr. I. p. 86 as against Baehofen, Pfdr. p.
157. The custom of committing hypothecae to
writing (tabulae), which is indicated by Gaius', doubtless pre-
vailed also in the Republican period, the object of the writing being
simply to facilitate proof When we translate hypotheca by the
English word mortgage, we must not forget that the latter denotes
technically a conveyance defeasible by con- dition subsequent, closely
resembling ^cZwcia, where- as the former denoted the mere creation of a
lien. On the other hand it is true that our modem mortgage
has lost its original resemblance to fidma, and has now become almost
identical with hypotheca. Art. 3. Praediatvea. This was a peculiar
form of suretyship which the Roman jurists never treated as a
contract, though it doubtless had a very ancient origin. It was connected
with the public emtiones and locationes, and was the regular method by
which contractors or undertakers of public work gave bond to do
their work properly. The transaction resembled the giving of
sponsores in private law. The friends of the contractor who were
willing to be his sureties (praedes) appeared before the Praetor or other
magistrate, and entered into a verbal contract by which they bound
them- selves with all that they possessed. The magistrate, we are
told, asked each surety " Praesne es?" and the surety answered
"Praes"\ This has every appearance of having been a formal
contract like sponsio, and it is difficult to accept the view of Mommsen
^ who considers that the publicity of the » 20 Dig. 1. 4 ; 22 Dig.
4. 4. 2 Paul. Diao. s.u. Praes. ' Stadtr. von Salpema, p.
468. transaction leads us to infer its formless
character. If we follow him in assuming that praedes and praedia
were purely public institutions, how can we explain the existence of the
praedes litis et uindici- arum, who certainly appeared in private suits
', and how can we understand those passages in Plautus and Cicero
which clearly refer to praedes and praedia in private transactions ^ ? If
then we deny to prae- diatura an exclusively public character, we
must class it with sponsio and uadimonium as another formal mode of
giving security. The etymology which explains the word praes
as being the adverbial form of praesto is undoubtedly false '.
Ihering and Goppert ■* suppose that it comes from the same root as praedium,
and means one who undertakes a liability. But in the Lex agraria
the spelling is praeuides instead of praedes, and this indicates
rather that the true derivation is from prae and uas ', in the sense of
" one who comes forth and binds himself verbally "^ Pott'
thinks that uas was the generic term for surety, and that praes was
a composite word meaning a surety who makes good (praestare) what he
undertakes. Where the derivation is so uncertain no safe conclusion can
be arrived at, and the origin of the contract must, in this case as
in that of the primitive vadimonium, remain an enigma. ' Cf.
aduersariw, Gai. iv. 16, 94. 2 Plaut. Men. 4. 2. 28 ; Cio. Att.
xiii. 3. 1. 3 Eivier, Untersuch. p. 29. * Z.fiir RG. iv. p.
26.^. ' Fas bomfari, or uas from a root meaning " to
bind." 8 Dernbur'g, P/dr. i. 27 ; Eivier, Untersueh. p.
14. ' Etym. Forsch. iv. p. 417. -- The obligation of
the praes was enforced by com- pulsory sale, the details of which we
unfortunately do not know. The expression praedes uendere^ shows
approximately how the right was enforced^, but it is uncertain whether this
^ meant to sell the property of the surety, or merely to sell the
claim of the State against him K Besides the personal
responsibility thus assumed by the praes, there was another kind of
security known as praedium^ which the principal might be required
to give. If the praedes furnished by him were not sufficient, praediwm
might be required as an additional safeguard'; but we also find
that praedes or praedia might be separately given'. The form
in which a bond of praedia had to be made was a written acknowledgment in
the Treasury (praediorum apud aerarium subsignatio), and the only
object capable of serving or being pledged as a praedium was landed
property owned by a Roman citizen, and possessing all the qualities of a
res mancipi^. Hence the seciirity of praedia could not in many
instances have been available, for the whole of solwm prouinciale and the
holdings of ager publicus in the possession of occupatorii would of
course have been excluded. The amount of ' Cio. Phil. 11. 31. 78 ;
aes Malac. cap. 64-5. 2 Dernburg, Pfdr. i. p. 28. ' Cic. 2 Verr. i. 54.
142. * Goppert, Z.filr EG. iv. p. 288. ' Lex agraria of
a.v.c. 643 ; Lex Put. parieti faciendo, Bruns, Font. p. 272, aes Malac.
cap. 64. ' ae» Malac. cap. 60. ' e.g. Lex Acilia repet. 61,
66, 67, and Festus s.u. quadrantal, 8 Cic. Place. 32. 80.
praedia which had to be given was entirely in the
magistrate's discretion ^ and to help him in his decision we find that
there existed praediorum cognitores^ who were probably persons
appointed to assess the value of praedia, and responsible to the
State if their information was wrong. As to the nature of the
transaction effected by praediorum subsignatio, there can be no doubt
that the old theory held by Savigny and others is incor- rect ',
and that the State did not in virtue of svbsig- natio become absolute
owner of the praedia. Rivier and Demburg * have demonstrated that the
State merely acquired a lien, and that praediorum sub- signatio was
therefore a species of mortgage. The classical sources fully support this
view", and it is certain that while the property was subject to
this lien its owner still had the right to sell it and to exercise
other rights of ownership*. A public sale (uenditio praediorum) followed
closely no doubt upon the default of the debtor, but did not neces-
sarily accompany the sale of the goods of the praedes^ (uenditio
praedium). At Rome the former sale was made by the praefecti aerario, and
in the Lex Mala- citana the duumvirs or decuriones are empowered to
make it °. A peculiarity of the sale of praedia was that the
' Lex agraria, 73-4 ; Bruns, Font. p. 84. 2 aes Malac. cap.
65. 3 Savigny Heid. Jahrsch. 1809, p. 268 ; Walter, E. G. p. 587
; Hugo, R. G. 449. * Pfdr. 1. p. 33. ° Varro L. L. v. 40 ;
Lex agraria, 74. 8 50 Dig. 17. 205. ^ Gai. ii. 61 ; Cie. 2 Verr. i.
55. 144. 8 cap. 64; Bruns, Font. p. 146. dominiwm
residing in the owner became instantly transferred to the praediaior or
purchaser from the State, without any act on the owner's part. The
only advantage reserved to the dispossessed owner was an exceptional
right of recovering his property from the purchaser by usurec&ptio,
i.e. conscious usucapio S one of the few instances in which it was
possible to exercise usucapio otherwise than with a bona fide colour of
title. In this case, as the praedia were always land, the statutory
period of two years was necessary to complete the adverse
possession. The lex praediatoria mentioned in the aes
Malacitanum" has been thought to be a statute of unknown date; but
it more probably denotes some collection of traditional terms used in
praediatura and analogous to a lex uenditionis in a contract of
sale °. The restoration of "praediatoria " in Gains' is
doubtful, and "censoria" seems much to be pre- ferred. The
operation of praediatura as a general lien on all the property of the
praes was probably re- cognised in the Republican period, although
Dem- burg° has doubts on this point. Such a lien is found in the
Lex Malacitana in the time of Domitian, but this may have been an
extension to the public aerarium of the general hypotheca belonging to
the Imperial Fiscus. At any rate, there is no evidence that the
lien did not exist in our period ; and if it 1 Gai. II. 61. « cap.
64. 3 Boecking, Rom. Priv. B. 294. * IV. 28. 5 Pfdr. X.
p. 42. irssv. 207 did, we can readily see that the
security of praedia- tura was superior to that of sponsio. It
is perhaps natural that the subject of praedes and praedia should be
obscure, for the complicated nature of the law of praediatura is attested
by Cicero \ who states that certain lawyers made it a special
study. Art. 4. AcTiONES ADiECTiciAE. Besides intro- ducing
the actio mandati, the Praetor's edict en- larged the scope of agency by
instituting several other important actions. These were the
actiones quod iussu, exercitoria, institoria, tributoria, de
peculio and de in rem uerso. In all of them alike the Prae- tor's
object was to fasten responsibility on some superior with whose consent,
or on whose behalf, contracts had been made by an inferior. They
are known as actiones adiecticiae, because they were considered as
supplementing the ordinary actions which could be brought against the
inferior himself ^ As they made the principal liable on the
contracts of a subordinate, it is plain that they must have been a
most useful substitute for the complete law of agency which the Romans
always lacked. The fact that they all had formulae in ius conceptae
points to a late origin, but they all doubtless origi- nated before the
end of the Republic. (1) The actio quod iussu was an action in
which a son or slave, who had made a contract at the bidding of his
pater familias, was treated as a mere conduit pipe, and by which the obligation
was directly imposed on the pater familias who had 1 Balb. 20. 45.
= 14 Dig. 1. 5. fr. 1. authorized it. Since Labeo mentioned
the action as though its practice was well developed in his day ',
we may fairly suppose that iussus was made action- able in Republican
times. The formula was as follows : Quod iussu N^
Negidii A" Agerius Gaio, cum is in potestate N'' Negidii esset,
togam uendidit qua de re agitur, quidquid oh earn rem Oaium jUium
A° Agerio dare facere oportet ex fide hona, eius iudex iV™ Negidium
patrem A" Agerio condemna. s. n. p. a. Here the express comniand of
the superior was the source of his obligation. (2) The actio
exercitoria was an action in which a ship owner or charterer {exercitor)
was held directly responsible for the contracts of the ship master "
(ma- gister nauis). Its formula probably ran as follows: Quod A^
Agerius de Lmio Titio magistro eius nauis quam N' Negidius exercebat,
eius rei causa in quam L' Titius ibi praepositus fuit, incertum
stipulatus est qua de re agitur, quidquid oh earn rem N'^ Negidium
A" Agerio praestare oportet ex fide bona eius N™' Negidium A"
Agerio condemna. s. n. p. a.- It was known to Ofilius in the eighth
century of the city*, and was very probably even older than his
day. The necessities of trade were obviously the source from which
this particular form of agency sprang, because in an age of great
commercial activity, when even bills of lading were not yet
introduced, it was expedient that the delivery of goods or the
1 15 Dig. 4. 1. fr. 9. ^ x4 Big. 1. 1. ' Baron, Abh. aus dem
B. C. P. ii. 181. * 14 Dig. 1. 1. fr. 9. making of contracts
by the master should be equi- valent to a direct transaction with the
ship owner himself. (3) The actio institoria no doubt had a
like commercial origin. This was an action by which the person who
employed a manager (institor) in a busiuess from which he drew the
profits, was made liable for the debts and contracts of the
manager. This action was known as early as the days of Seruius
Sulpicius^, and its formula closely resem- bled that of the actio
exerdtoria. The difference between these two and the actio quod iussu
con- sisted simply in the fact that the iiissus or autho- rization
was special in the one case, and general in the other two. In the
actiones exercitoria and insti- toria an implied general authority was
ascribed to the agent in virtue of his praepositio^, whereas in the
actio quod iussu the agent had only an express special authority. Thus
the magister nauis and the institor were genuine instances of general
agents ; and we find therefore, as we should have expected, that
the acts of the magister and institor only bound the master when
strictly within the scope of their authority'. This is an excellent
instance of the manner in which Mercantile Law has developed the
same rules in ancient as in modem times. (4) The actio tributoria
was that by which a master was compelled to pay over* to the
creditors of a son or slave trading with his consent whatever
1 14 Dig. 3. 5. fr. 1. 2 46 Dig. 3. 18 ; Oosta, Azioni ex. p.
40. ' 14 Dig. 1. 1. fr. 7. •* tribui, 14 Dig. 4. 5. 5.
B. E. 14 profits he had received from the
business. The formula ran thus : Quod J.' Agerius de L" Titio
qui in potestate N'' Negidii est, cum is sciente N" Negidia
merce peculiari negotiaretur, -infiertum stipulatus est qua de re agitur,
quidquid ex ea merce et quod eo nomine receptum est ob earn rem iV™
Negidium .4." Agerio tribuere oportet, eius dumtaxat in id
quod minus^ dolo malo N^ Negidii A' Agerius tribuit, N'^ Negidium
A" Agerio condemna. s. n. p. a*. This action was mentioned by Labeo
' and was there- fore probably as old as the other actions of this
class. The knowledge and tacit approval of the superior were here
the source of his obligation. (5) The actiones de peculio and de in
rem uerso were proceedings by which the master was required to make
good any obligation contracted by his son or slave, to the extent of the
son's or slave's peculium, or of such gain as had accrued to himself {in
rem uersum) from the contract. Their peculiarity, as Gaius has told
us and as a recent writer conclu- sively shows*, was that they had one
formula with an alternative condemnatio, which may be recon-
structed as follows : Quod A' Agerius de Lwdo Titio cum is in potestate
JV* Negidii esset, incertmn stipula- tus est qua de re agitur, quidquid
ob earn rem Lucius Titius A" Agerio praestare oportet ex fde bona,
eius iudex N'^ Negidium A" Agerio, dumtaxat de peculio quod
penes N"^ Negidium est, uel siquid in rem N* Negidii inde versv/m
est, condemna. s. n. p. a. This » 14 Dig. 7. 3. " Baron, I. c.
p. 176. ■< 14 Dig. 4. 7. * Baron, I. e. pp. 136-69 ;
cf. Lenel, Ed. perp. p. 225. formula might be so
modified that the actio de peculio and the actio de in rem uerso could
be brought either separately or together. These actions were known
to Alfenus Varus^, and it is safe to say that they were introduced some
time before the end of the Republic. The knowledge or consent of
the superior did not here have to be proved. The difference between
the actio tributoria and the actio de peculio was considerable. By the
former the master contributed his profits and then shared in the distribution
as an ordinary creditor. But by the latter he became a preferred
creditor, and deducted from his profits the whole amount owed to him
by the son or slave. The peculium in the latter case was in fact
only the balance remaining after the debts of the son to him had been
satisfied. Art. 5. CoNSTiTVTVM AND Receptvm. To- wards the
end of the Republic we find two kinds of formless contract by which a
debt could be created, and both of which seem to have sprung fi-om
the requirements of Roman commerce ■'. I. Gonstitutmn.
The chief characteristics of this contract may be gathered from the
constitution by which Justinian ftised together the actio recepticia and
the actio pecuniae constitutae\ as well as from allusions in the
Digest. It seems to have been a formless pro- mise of payment at a
particular date ; depending on the existence of a prior indebtedness to
which the 1 15 Dig. 3. 16. == Ihering, Geist iv. 218-220.
3 4 Cod. 18. 2. 14—2 constitutwm became
accessory^; unconditional^; en- forced by an actio pecuniae constitutae
of Praetorian origin which was in some cases perpetua and in others
armalis ; and available to persons of all classes. Constitutwm is
discussed by Labeo ', and is men- tioned by Cicero^ in a way which makes
it certain that the actio pecuniae constitutae existed in his day.
The action originated in the Praetor's Edict", and it was thereby
provided with a penal sponsio similar to that of the condictio certae pecuniae.
This leads us to infer that pecwnia constituta was treated by the
Praetor as analogous to pecunia credita ; es- pecially as Gains • states
that pecwnia credita strictly meant only an unconditional obligation to
pay money, while we know from Justinian's constitution that unless
constitutvmi was unconditional no action would lie. But why should the
penal sponsio of the actio pecuniae constitutae have been so much heavier
than that of the condictio, namely dimidiae instead of tertian
partis ' ? The reason given by Theophilus' is that constitutum, was
generally entered into by a debtor in order to gain time for the payment
of a debt already due, and that the Praetor instituted this severe
action in order to discourage insolvent debtors from this practice. Labeo
on the contrary says * that constitutvm, was made actionable in
order to enforce the payment of debts not yet due. Both ' li
Dig. 5.1. fr. 5 ' God. l.c. » 13 Big. 5. 3. ■» Quint. 5. 18.
' 13 Dig. 5. 16. » in. 124. ' Gai. IT. 171. 8 Paraphr. iv.
6-8. 18 Dig. 5. 3. Labeo and Theophilus are
probably right ', but each takes a one-sided view. The Praetor's aim
presu- mably was to enforce the payment of any debt, due or not
due, which the debtor had made a renewed promise to pay at a particular
date. The breach of a repeated promise (for constitutum always
implied a previous promise or indebtedness) was doubtless regarded
by the Praetor as a singularly flagrant breach of faith ; and hence he
compelled the defen- dant to join in a penal sponsio dimidiae
partis. This actio per sponsionem was not however the only
remedy for a breach of constitutum. The Digest shows that the usual form
of redress was an actio in factum ", which ' probably had a formula
as follows : Si paret Nwmeriimi Negidium Aulo Agerio X millia Kal.
Ian. se soluturwn constituisse, neque earn pecuniam soluisse, neque per
Agerium stetisse quo- minus solueretur, eamque pecuniam cum
constituehatur debitam fuisse, quanti ea res est, tantam pecuniam,
Nunierium Negidium Aulo Agerio condemna ; and that this actio in factum,
existed in Gaius' time as an alternative remedy seems probable from
his language in iv. 171. It is not likely that the actio in factum
arose simultaneously with the other; and of the two Puchta* is almost
certainly right in assigning the earlier date to the actio per
spon- sionem, because the custom of sponsione prouocare suggests an
ancient origin. This sponsio, like that of the condictio, was
praeiudicialis, but it also contained a strongly penal element. Its penal
character was » Bruns, Z. f. EG. i. p. 56. » 13 Dig. 5. 16.
2. ' Bruns, loc. cit. p. 59. * Inst. ii. 168.
CONTRACTS NOT CLASSIFIED. no doubt the reason why the action could
not be brought against the heir of the constituens, and why it was
annalis. As Bruns has shown, the remedy after one year was probably the
actio in factum'^, by which the plain amount of the constitutwm
could alone be recovered. Gonstitutvmn could be employed for
the renewal of the promisor's own debt {const, debiti proprii), as
well as of another man's {const, debiti alieni), and this distinction was
early allowed". In the later law it could also be used to reinforce
and render actionable an obligatio naturalis. But this feature probably
did not exist at the origin of the action", for the Praetor could
only have had in mind pecunia eredita, when he inflicted such a heavy
penalty. The effect of constitutwm was simply to reinforce the old
obligation by supplying a more stringent remedy. It never produced
novation as stipulatio or expensi- latio * would have done.
//. Receptwm. The agreement by which shipmasters,
innkeepers and stablemen {nautae, caupones, stabularii) under- took
to take care of the goods or property of their customers was known as
receptwm, and was enforced by means of an actio de recepto as rigorously
as the duties of common carriers are enforced by the Common
Law". The Edict was expressed as follows : navtae CAVPONES
stabvlarii qvod cvivsqve salvvm fore RECEPERINT NISI RESTITVENT, IN
EOS IVDICIVM DABO ; ' Bruns, loc. cit. J). 68. " 13 Dig. 5.
2. ' Bruns, ib. p. 69. < 13 Dig. 5. 28. ' Camazza,
Dir. Com. p. 106. and the remedy was an
ordinary actio in factv/m, authorising the judge to assess damages for
the loss or non-production of the goods. But the contract
which more nearly concerns us is receptum argentariorum, the nature of
which has been a subject of much controversy. This was a
formless promise to pay on behalf of another man, and we gather from
Justinian ' that it was capable of creating an original debt;
capable of being made svb conditione or in diem, and en- forced by
an actio recepticia, which was perpetua; while Theophilus tells us' that
it was confined to bankers (argentarii). Bruns" indeed supposes
that receptum was a formal contract iuris ciuilis, while according
to Voigt* it was a species of expensilatio devised by the argentarii.
Lenel^ however has proved that receptum argentariorum was
introduced and regulated by the Praetor in the same part of the
Edict in which he treated of the recepta nautarum, cauponarum and stabulariorum.
This appears from the fact that in 13 Big. 5. 27 and 28,
constituere has evidently been substituted by Tribonian and his
colleagues for recipere. Ulpian treated of constitutwm in his 27th book
on the Edict": but the passage quoted in the Digest is from
his 14th book on the Edict, in which we know ' that he discussed the
clause Nautae caupon^s sta- hularii. So also Pomponius, who discussed
recepta 1 4 Cod. 18. 2. 2 IV. 6-8. » Z. fur RG. i. 51
ft. * fiSm. EG. I. 65-8. ' Z. der Sav. Stift. ii. 62 S.
« 13 Dig. 5. 16. ' 4 Dig. 9. 1. nautarvm,
&c. in his 34th book^ and constitutum in his 8th*, is described' as
mentioning the latter in his 34th book. Gains also is represented to have
dealt with constitutum in the very same book* in which he treated
of recepta nautarum^. We must conclude, either that all these
writers introduced into their discussion of recepta naviarum
&c. the totally irrelevant subject of constitutum, or that the
subject thus introduced was not constitutum but receptum argentariorum.
If the latter conclusion ' is correct, as we may well believe that it
must be, it follows that receptum, argentariorum was, like the
other recepta, regulated by the Praetorian Edict, and was therefore not a
contract iuris ciuilis. By analogy with the other recepta we may further
conclude that receptum argentariorum was formless, and hence cannot
have been a species of eoopensilatio. The remedy was of course an actio
in factum. Recipere is used by Cicero* in the sense of under-
taking a personal guarantee, but with no clearly technical meaning.
Justinian states that the ouctio recepticia was objectionable on account
of its "solem- nia uerba," and Lenel has explained this to
mean that the actio recepticia, being necessarily in factum like
those of the other recepta, had to contain the words "si paret
soluturwm recepisse. n^que soluisse quod solui recepit," of
which recipere was a technical term. This term, being misunderstood
by the Greeks, was translated in Justinian's time > 4 Dig. 9. 1
fr. 7 and 9. 3. ^ 13 Vig. 5. 5 fr. 5. » ib. 5. 27. * ib. 5. 28. = 4
Dig. 9. 2 and 5. « Phil. V. 18. 51. ; ad Fam. xiii. 17.
by constitmre. It is almost certain that the actio
recepticia was known before the end of the Republic, since Labeo
evidently ' discussed it. The function of receptum probably was to
provide an international mode of assigning indebtedness, because
transcriptio a persona in persona/m was not available to peregrins'. The
existence of the debt between the creditor and the original debtor
was clearly not affected by the obligation of the argen- tarius who
had made a receptum; and from the passages above cited Lenel also infers
that receptum pro alio was the only known form which the contract
ever took. In short, it seems to have closely resem- bled the acceptance
of a modem bill of exchange", and it was doubtless made by the
argentarius on behalf of his clients or correspondents. 1 13
Dig. 5. 27. ' Lenel, Z. der Sav. Stift. n. 70. 3 Carnazza, Dir.
Com. p. 93. We have now traced the development of the Roman Law of
Contract from an early stage of Formalism, in which few agreements were
actionable, and those few provided with imperfect remedies, to the
almost complete maturity to which it had attained by the end of the
Republia Of all the contracts which we have examined, nexum
and uadimoniwn seem to be the only two that became obsolete during this
period, while the new contracts of Praetorian origin, such as
depositwm and constitutum, attained their full growth, as we have
seen ; so that the jurists of the Empire found little to do besides the
work of interpretation and amplification. The one great
improvement, and almost the only one, which the Law of Contract underwent
sub- sequently to our period, was the introduction of the actiones
praescriptis uerhis, by which the scope of Real Contract was immensely
enlarged. Li other respects, the Law of the Republic has the
credit of having generated that wonderful- system of Contract which later
ages have scarcely ever failed to copy, and which lies at the root of so
much of English Law. Francesco Fisichella. Fisischella. Keywords: il
duello, “del contratto” – giocco come contratto – wrestling as a contract,
fencing as a contract, contract bridge as a contract -- pena temporaria, pena
perpetua, divorzio, matrimonio, stato, legge, devere naturale, obbligazione
naturale. Refs.: Luigi Speranza, “Grice e Fisichella” – The Swimming-Pool
Library.
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