GRICE ITALO A-Z F FI

 

Grice e Firmiano: la ragione conversazonale e il culto di Giove -- Roma – filosofia italiana – Luigi Speranza (Roma). Filosofo italiano. Roman priest and philosopher. Firmiano.

 

Grice e Firmico: la ragione conversazionale e il culto di Giove -- Roma – filosofia italiana – Luigi Speranza (Roma). Filosofo italianao. Alcuni scrittori che non si occuparono in modo particolare di filosofia, mostrarono di interessarsene.Così fece Siciliano, senatore, vir consularis, che, stancatosi presto dell'avvocatura, si dedica agli studi. Per le insistenze di Lalliano Mavorzio, che lo accolta molto amichevolmente quando era governatore della Campania, pubblica, per mantenere la promessa che aveva fatto in quell'occasione, un’opera di astrologia, "Mathesis", in otto libri, dedicata al suo protettore, allora proconsole d’Africa.E il più ampio trattato di quella materia che l’antichità abbia trasmesso. Il libro I è un’introduzione in cui l'astrologia è difesa dalle critiche degl'accademici e principalmente di Carneade. F. riconosce la difficoltà delle predizioni astrologiche, che spiega platonicamente con la debolezza della natura umana in cui lo spirito è legato al corpo terreno, ma se esso si libera dai vincoli di questo ed è consapevole della sua origine celeste, facilmente, con la divina ricerca della mente, consegue risultati difficili ed ardui. Firmico esalta la grandezza dello spirito, parla dell'affinità dello spirito con l’anima e l’intelletto delle stelle e accenna alla teoria della reminiscenza. Fonti di questa filosofia naturale si considerano Posidonio e CICERONE. Da POSIDONIO, e forse anche da Porfirio, può derivare altresì la discesa e l’ascesa dell'anima. Considerando i rapporti fra l’azione del cielo e la volontà dell'uomo, F. afferma che le stelle sono LA CAUSA delle passioni e dei impulsi malvagi dell'uomo.Lo spirito dell'uomo, per la sua origine divina, può sottrarsi al potere delle stelle.Anche queste tesi concordano, oltre che con il Platonismo, con il PORTICO posidoniano. I libri II-VIII trattano dell’astrologia propriamente detta. F. esige dai cultori dell'astrologia una condotta morale retta e pura e vieta loro di occuparsi di ciò che riguarda il principe, perchè, essendo divino, non è sottoposto alle stelle. In quest'opera, che offre una testimonianza importante del timore che nell’età dell’autore il potere dei cieli incute anche alle classi superiori, appaiono influssi stoici, in generale ma non sempre posidoniani, piuttosto che specificamente neo-platonici e se in certi punti l’intonazione religiosa e mistica concorda con lo spirito di questa scuola, si deve anche pensare al carattere generale della filosofia contemporanea. Nell'insieme, F. non può considerarsi il seguace di alcun indirizzo determinato. Scrive "il De errore profanarum religionum", che è una violenta polemica contro il paganesimo di cui chiede la distruzione dagli principi Costazio e Costante. Filosofo Italiano. Di lui restano pochissime notizie biografiche, per lo più desumibili dai suoi testi.  Siciliano, secondo la sua stessa testimonianza, Firmico e senatore e per qualche tempo avvocato, ma abbandona la professione per le inimicizie che la sua pratica gli procura, sicché la successiva condizione di otium gli permise di dedicarsi agli studia humanitatis. Pubblica, così, le sue due opere conservatesi: i Matheseos libri octo e, circa dieci anni dopo, il De errore profanarum religionum. Matheseos libri octo L'opera, il cui titolo completo è “De Nativitatibus sive Matheseos libri VIII”, è dedicata al governatore della Campania, Quinto Flavio Mesio Egnazio Lolliano detto Mavorzio, e costituisce il più vasto trattato di astrologia conservatosi dall'antichità, frutto di esperienze e studi in campo neoplatonico. Il primo libro, a differenza degli altri sette di contenuto esclusivamente tecnico, contiene una vera e propria apologia morale dell'astrologia, scienza caduta in sospetto ai galilei, ma ampiamente praticata al tempo dell'autore per influsso della speculazione platonica. I restanti libri espongono diverse nozioni tecniche relative alla materia, con uno stile spesso compilatorio che però rende conto della sintesi di una lunga tradizione precedente.  F. Materno afferma che l'influenza degli astri si esercita sulla parte DIVINA dell'anima umana. Solo un animo puro e libero da ogni peccato può accostarsi all'astrologia, disciplina che pone in costante contatto col divino. Dimostra poi l'importanza dell'influsso degli astri nel determinare la vita umana, e la spiegazione della storia del mondo fin dall'età di Saturno alla luce di tale principio. Firmico espone i fondamenti dell'astrologia tra cui i segni, i pianeti, le case, le suddivisioni dello zodiaco (decani e termini), gli aspetti e, particolarmente importanti per l'astrologia di Materno, gli antiscia, ovvero il legame tra due segni in base alla loro distanza dai solstizi. Il libro contiene anche il tema natale di un aristocratico romano che ricopre diverse cariche importanti, e che è stato identificato con Lolliano Mavorzio, con Publilio Optaziano Porfirio o, con Ceionio Rufio Albino. Questo libro contiene anche alcuni avvertimenti per coloro che praticano l'astrologia: che bisogna sempre dare i propri responsi pubblicamente, e che bisogna rifiutarsi di studiare l'oroscopo del principe. In epoca romana, infatti, studiare l'oroscopo del sovrano pontifice massimo costituiva un reato di lesa maestà punibile con la morte.  Il Thema Mundi, contenuto nel Libro III, sezione ii del Matheseos Libro III presenta il concetto del Thema Mundi, l'oroscopo del mondo, poi fornisce un elenco delle delineazioni per ciascun pianeta in ciascuna casa. Tratta delle possibili delineazioni della Luna e dei Lotti della Fortuna e dello Spirito, della lunghezza della vita, della professione. Tratta delle delineazioni dei differenti segni in ciascun luogo e di ciascun pianeta. Tratta degli aspetti, anche di quelli più complicati, e della delineazione delle stelle fisse e del chronocrator. Tratta della condizione di nascita, della schiavitù, della malattia, della famiglia, del matrimonio e di temi simili. Include commenti sulle costellazioni e su gradi speciali. De errore profanarum religionum L'opera è successiva alla conversione di Materno al Cristianesimo, avvenuta in circostanze di cui si ignorano causa, luogo e tempo, ma inequivocabilmente testimoniata dall'opera apologetica De errore profanarum religionum. Nella tradizione del testo, l'opera è giunta priva delle pagine iniziali. La parte restante inizia passando in rassegna i culti naturalistici degli elementi dimostrandone l'assurdità. Considera poi quei culti di origine orientale che erano allora molto praticati presso i pagani: i misteri di Iside, Cibele, Mitra, il culto dei Coribanti, di Adone e altri. Sono applicati i principi di Evemero per dimostrare che tutte queste divinità non sono altro che uomini innalzati dopo la morte agli onori celesti e dei cui peccati gli uomini si servono per giustificare i propri. Con alcune fantasiose etimologie -- per esempio “Serapide” è fatto derivare da Σάρρας παίς, il figlio di Sara, cioè Isacco -- tenta di spiegare le origini di alcuni di esse a partire dai testi biblici; o ancora, egli dà notizie delle frasi e delle formule in codice usate nelle religioni misteriche, avvicinandole alle formule bibliche. La lingua di F. aspira alla purezza del classicismo ma non si sottrae agli influssi del suo tempo, abusando spesso di espedienti retorici, enfasi e incursioni nella lingua poetica. L'uso delle clausole metriche lo ricollega alla tradizione oratoria di CICERONE.  Lo stile dell'opera, in effetti, richiama da vicino quello degli africani Tertulliano e Arnobio, ricorrendo volentieri alla derisione e al sarcasmo.  Dell'opera colpisce il fanatismo quasi feroce con cui l'autore esorta gli imperatori Costante I e Costanzo II a perseguitare senza pietà i seguaci delle fedi fallaci. Non è infatti frequente nella filosofia trovare un'esplicita richiesta volta a sollecitare l'intervento dello stato contro i pagani, recuperando in un certo modo il disprezzo che i senatori hanno ai tempi della Repubblica per l'ellenizzazione della religione e della cultura romana -- essendo Quinto Fabio Massimo Verrucoso il più conosciuto contro l'ellenizzazione, mentre i maggiori difensori di questa furono la gens Cornelia. Ricordiamo a tale proposito che il primo imperatore a mettere fuori legge tutti i riti non cristiani e a perseguitarli apertamente fu Teodosio I. In quest'opera si coglie anche quello che dovette essere lo stato d'animo formatosi in molti nel breve lasso di tempo intercorso tra le persecuzioni dioclezianee e l'editto di Milano. Seppur F. appaia pienamente inserito nel filone della letteratura apologetica, la sua voce non giunse isolata al tempo dell'editto di Tessalonica promulgato da Teodosio I, ma nel corso del medio-evo rimase senza eco. La sua opera apologetica è considerata di particolare interesse per la storia delle religioni, riportando particolari di prima mano e plausibili sui culti misterici praticati in Sicilia in età tardo-antica. Paradossalmente e, invece, molto considerata la sua opera astrologica, la cui esaustività e leggibilità migliore rispetto all'opera di Marco Manilio giovarono alla trasmissione. Matheseos. Siciliae quam incolo et unde oriundus sum»; Matheseos libri octo, IV, proemio; Marchesi, Disegno storico della letteratura latina, Milano-Messina; L'opera contiene infatti un riferimento a un'eclissi anulare di sole. Mommsen. Hermes Brennan, F. The Hellenistic Astrology, hellenisticastrology. com/astrologers/ firmicus-maternus Neugebauer, «The Horoscope of Ceionius Rufius Albinus», The American Journal of Philology, L'unico testimone è un codice del X secolo, il Vaticanus Palatinus; F. L'errore delle religioni pagane, Introduzione, traduzione e note a cura di E. Sanzi, Roma 2006. ^ C. Marchesi, Disegno storico della letteratura latina, Messina-Milano. F., Matheseos edito da Kroll e Skutsch, Stuttgart, Teubner, Mathesis, Monat, Parigi Les Belles Lettres, Collection des Universités de France. In difesa dell'astrologia. Matheseos, a cura di Colombi, Udine, Mimesis; L'errore delle religioni pagane, a cura di Sanzi, Roma, Città Nuova; F. su Treccani Enciclopedie, Istituto dell'Enciclopedia Italiana. Niccoli, F., Istituto dell'Enciclopedia Italiana, F. su Enciclopedia Britannica, Encyclopædia Britannica F., su digilib LT, Università degli Studi del Piemonte Orientale Amedeo Avogadro. Opere di F. su MLOL, Horizons Unlimited Open Library, F.Internet Archive; F. Catholic Encyclopedia, Robert Appleton. De errore profanarum religionum, Ziegler, Lipsiae, in aedibus Teubneri Matheseos . Kroll et F. Skutsch, Lipsiae, in aedibus Teubneri Portale Antica Roma   Astrologia  Biografie Portale Letteratura Categorie: Scrittori romani Astrologi romani Scrittori Romani Senatori romani Scrittori antichi Astrologia ellenistica Scholar and statesman who wrote an attack on religion that borrowed heavily from CICERONE. PORTICO. F. writes an essay on astrology. Giulio Firmico Materno. Firmico.  

 

Grice e Firmo: la ragione conversazionale e  Roma antica -- Roma – filosofia italiana – Luigi Speranza (Roma). Filosofo italiano. Friend of Porfirio and a pupil of Plotino and Amelio Gentiliano [si veda]. He is best known because of the essay “On abstinence,” that Porfirio dedicated to him, in which the arguments for vegetarianism are set out. Firmus had evidently resumed his carnivorous ways at the time the essay was written. Firmo Castricio. Firmo.

 

Grice e Fisichella: all’isola -- la ragione conversazionale e l’implicatura conversazionale del duello – scuola di Catania -- filosofia siciliana -- filosofia italiana – Luigi Speranza (Catania). Filosofo catanese. Filosofo siciliano. Filosofo italiano. Catania, Sicilia. 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. NEXVM DISTINCT FROM MANCIPIVM-- 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. 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. -- 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.   -- 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  --  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.; Dio Cass.; 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. -- 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  --  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 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. -- 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  --  Dig. Sent. Off. iii. 16. 65.   « Eauf, I. p. 249. ^ XII Taf.  (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. 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. Cio. Or. I. 39. 179. * 21 Big. 1. 19.   « 19 Big. -- 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.  --  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. 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. 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 --  » 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 ?  Geist des R. R. ii. p. S56. = Akt. i. 124.   3 Kauf, i. p. 287. « Z. fur RG. ix. p. 171.   " XII Taf. II. 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.] 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," ii. 60. s Kauf] 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.  --  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. Cic. Brut. Prise. Gram. i. 820. ^ Cic. Quint. 8. 29.   6 Cic. ad Brut. ; 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.] 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. ] 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-  -- lus Nat.] 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 if the principal (uadimonium  dans) failed to refund to his surety any money  expended on his behalf  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.  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!. 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. 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 the vendor of an animal to be  used for sacrifice could recover its value if the  purchaser refused to pay the price, and 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. 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 : 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. 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 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.  Nexvm. The severity and unpopularity 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 creditor that a reform was loudly demanded. The Lex  Poetilia Papiria was the outcome of this agitation.  CICERONE (si veda), LIVIO (si veda), and VARRONE (si veda) have each given a short  account of the famous law, and from these it  may be gathered that its chief provisions were as  follows :   That fetters should ia future be used only  upon criminals. 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. 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. 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 accessories 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 transactions, and simply denoting any negotiwm per aes  et libram. There is no authority for Bekker's opinion that sponsio  is 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 procedure. 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. 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 doubtless 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 transaction. 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  [Orig. 5. 24. - s. u. Stipem.   3 L. L. VI. 7. 69-72. * Sent. 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.] 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 stipulation. Ihering and Christiansen have expressed  the opinion that originally the promisor does 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.] 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 probable. Voigt gives the following account of  the origin of the various formulae.  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 unfortunately abandoned, and Voigt regards sponsio as a  Latin innovation. This seems surely to place the birth of  sponsio far too late in Roman history. 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. 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] 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. 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. 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 therefore 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. 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. Cic. pro Mur. 41. 90. ^ I. N.] 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.] 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 [According to Voigt, I. N. iv. 401. Gai. Of. quanti ea res est in Gai. loc. cit. with 13 Dig. 3. 4.  * R. L.] 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. 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. Condictio triticaria or certae rei.   The Lex Calpurnia, which must have preceded  the Leoo Aquilia^ and must therefore have been  enacted earlier, 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. Voigt, I. N. III. 792.   ' Keller, Civilp. 20. « Gains].   ea res est, tantam pecuniam, index, iV™ Negidium A"  Agerio condemna. s. n. p. a.  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 expression must have increased the adaptability and  general usefulness of the stipulation. In this way,  for instance, the cautio damni infecti and the stipulations 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. 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 explanation of its origin is that the actio ex stipulatu  was devised as the proper remedy for fidepromissio  and for the cautio rei uxoriae. 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, CICERONE (si veda) 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 is necessarily an incertum; 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.Quod melius aequius erit," as in " cautio  rei uxoriae. Fide, in fidepromissio.  Si quid dolo in ea re factum sit. DoluTn Tnalum, huic rei abesse afuturuinque  esse spondesne^ ?" 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 expansion is 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 therefore 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.  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.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. 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. 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. 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.  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. 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, descriptions 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 stipulation 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. By the Lex Titia of A.v.c. 416—426° stipu-  lations for the payment of money lost at gambling  were declared void. 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. 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. 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 connections, and sometimes developed into the more modern  stipulatio. We find it employed: 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. 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 the interdicts, in which case it was  known as sponsio poenalis. 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, as to the chief question,   (6) as to conditions and incidental matters,  and (B) sponsiones made apart from a trial, with a view to some future trial,  with no such view.   The objection to this classification seems to be  that the whole of this second class are not properly processual sponsiones at all. 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 is  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. 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 uindicatio 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.   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. —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 importance. Sponsio poenalis 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 incorrect, since from CICERONE (si veda)’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 condemnatio 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 is just as  much praeiudicialis as that of the actio per sponsionem, 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. 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 by being purely poenalis and having  no trace of praeiudicium for its object ; by being  in factwm concepta. The origin of these two uses of sponsio cannot be  dated, in one case because we do not know the  date of the Lex Silia, and in the other case 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- [Cic. 2 Verr. i. 45. 115; Gai. iv. 91-94.   2 46 Dig. 7. 20 ; Gai. rr. 89. ' Im Nat.] gation which resulted from the use of the stipulation,  naturally leads 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. 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:  That the surety-spo?iso?' might make use  of an actio depensi against the principal debtor for  the amount spent on his behalf, 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. That the principal debtor should however  have six months' grace for the repayment of his  surety, but, 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. 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 : Fide tua promittis? fide mea promitto. The new form is 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 promissoribus 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.] 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, 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. 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. Gai. iii. 123. REPUBLIC. was subsequently, we know, extended by interpretation to fideiussores.  Another form of suretyship was at last devised, 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 it applied to all kinds of  contractual obligations ; 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 fidepromissor, 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. Two sections of this act provided: 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.  BXPMNSILATIO] 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. 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 different 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 apparently 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 necessary 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. See a full summary of the various opinions in Danz, B. BG.] 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, aduersaria ', and 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 [See Wunderlich, Liu. oblig. p. 19.   s Verm. Schrif. Also called ephemeris. Prop.] 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.] be provided for, it seems far more likely that the  accounts should have been elaborate and the account-  books numerous. 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, 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 because 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 principal 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  [Cic. 2 Verr. i. 36. 92 ; Seneca, Ben. in.] 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 is 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 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 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. Cic. Off. 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. 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. -- 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. Cic. Top. Z. N. II. 244 ft. * Voigt, mm. RG. --  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 LIVIO (si veda) that the expensilatio thus introduced by them becomes a common transaction among private individuals. 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 CICERONE (si veda)  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 existence throughout the community of a high standard  of good faith. It was therefore ill adapted for   ' Liv. 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. Chirographvm and Stngrapha are  forms of written contract borrowed, as their name  implies, from Greek custom, and chiefly used by peregrins, 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 chirographum, never occurs in his plays. The Roman  magistrates, finding these instruments recognised by  aliens, ventured at length to enforce debts ew syngrapha, 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 CICERONE (si veda), 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 sometimes 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 litterarum 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 is  evidently different 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 :  They were confined to Roman citizens.  They were unilateral.   They were capable of imposing obligations  only by virtue of some particular formality. They were available only inter praesentes.   The contract which we are now about to consider  was modem in all its aspects:  It was open to aliens as well as to citizens.  It was bi-lateral.  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.] 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 conception of sale are usually fourfold ; they consist of: The agreement by which buyer and seller  determine to exchange the wares of the latter for  the money of the former;  The transfer of the wares from the seller to  the buyer;   The pajrment of the price by the buyer to  the seller;  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 is a transfer of ownership followed by an immediate payment of the price. Subsequently, 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 stipulatu 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. 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 becomes 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 disgraceful. 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.] 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: 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. The word emere came to denote the act of,  buying for money, as distinct from permutatio which  meant buying in kind. 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 is 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 is 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 Puhliciana, through which a plaintiff, deprived of the  possession of a thing that had been sold and de-  livered to him by the owner or 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  is 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 Voigt, I. N. ACTIO PYBLIOIANA 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: SI QVIS ID QVOD EI TRADITVM EST EX IVSTA  CAVSA A DOMINO ET NONDVM VSVCAPTVM PETET,  IVDICIVM DABO 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.] 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. 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 transaction 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, 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.] 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 introduced by some Praetor. 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.  --  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 actio 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. The contract of emtio uenditio is discussed  by Sex. Aelius Paetus Catus (Cos. A.V.C.) probably in his Tripertita, and by C. Liuius Drusus  (Cos. A.v.c.)«. 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.Dir. Pnvato. * I. N. iv. 542.   5 Kauf, Dig. --  venditio 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 advises 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. Cf. Gai. iv. 181. « 3. 1. 139.   8 4. 4. 114. and 4. 7. 5.   B. E.--  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 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. Bekker, Heid. Krit. Jahrschrift, « Brid. Prol. 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: 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 is no obligation upon 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. Upon the vendor (tienditor-). His chief duty is rem praestare (or rem habere  licere), to give quiet possession to the vendee. But  this does not include the obligation to convey  dominium ex iure Quiritium.   The actio emti, as we have now examined it,  enforced three things: recognition of the consensual agreement of sale, delivery by the seller,  prompt payment by the buyer. Thus it deals  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 is 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. 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 stipulation 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 [Girard, Slip, de Garantte, N. R. H. de D. Font. VARRONE (si veda), B. R.] 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). We also find a stipulatio simplae, of which  the best instances are texts 3 and 4 of the Transylvanian Tablets and which, according to VARRONE (si veda) 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 mancipi.  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 points out, it simply implied a  waiver of technical objections. A stipulation as to quality alone is mentioned by VARRONE (si veda) 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. 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 warranty 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, 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 however in CICERONE (si veda) 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 the actio redhibitoria, avail-  able within two months, and by which the vendor  had to restore the duplum of the price"; 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 Oxonian English, for it sometimes 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 uenditio. Like emtio uenditio, this contract was developed  in connection with the administration of public business. The public affairs in which contractual relations  necessarily arose were of four kinds: 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. Contracts for the hire of public servants,  generally known as apparitores. These were the  lictores and other attendants upon the different [Most. Festus, s. u. uenditiones. Mommsen, Z. der Sav. Stif. R. A.] 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. 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. 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's day, the conceptions of sale and of hire probably becomes 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, Pseud.; 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] 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  CATONE (si veda) 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 Scaevola, author of books on  the IxiS Giuile'', whom CICERONE (si veda) 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 CATONE (si veda) 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 CATONE (si veda) 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. .50 Dig. 16. 5. ^ Cic. N. D. iii. 30. 74 ; Off. a. 18. 64.   * R. R.] begun to subdivide the classes of contracts above  mentioned.   (1) They distinguished between various sorts of  locatio cmiductio rei. There was rei locatio friiendae in which the use of the object was granted ^  rei locatio ut eadem reddatur in which the object  itself had to be returned, and rei locatio ut eiusdein  generis reddatur '' in which a thing of the same kind  might be returned. The two kinds of locatio condiictio operis  were also most probably distinguished at an early  date into: locatio rei faciendae in which a thing  was given out to be made (epyov), and locatio  operis faciendi in which a job was given out to be  done {aTTOTeXea/jia). Locatio condvxtio operarum alone does not  seem to have been subdivided in any way. The object of these distinctions is 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. Dig. 2. 30 ; 50 Dig. VARRONE (si veda), L. L.] 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 Longinus, 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 ADVEESVS 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. Dig. 2. 2. fr. 3.   3 Voigt, Bom. EG. i. 591.  2 Big.] EDICT an enforceable pactum lay in the discretion of  the individual Praetor. He might or might not  grant an action, according as the particular agreement 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 Republic — 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', undertakes the gratuitous performance of something to the interest of that others  In short, it is a special agency in which the agent  received no remuneration. Its gratuitous character is essential, for where the agent is paid, the  transaction is 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 transaction 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. 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 mandatvm  generate. The phrase "mandare fidei et fiduciae"  here indicates that fides pure and simple is 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.  --  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 circumstance 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 empowered 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.  The next oldest kind of general agents are  the cognitores, persons appointed to conduct a particular piece of litigation, and not to be confounded  with the cognitores of praediatura. They were ori-  [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.] ginally appointed only in cases of age or illness and  their general authority was limited to the management of the given suit. Gaius has shown us how  they were able to conduct an action by having their  names inserted in the condemnation. 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 is 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 particular case, as for instance an actio depositi if the  cognitor failed to restore a depositwn. Procuratores are persons who in Cicero's  day act as the agents and representatives of  persons absent on public business. They often  appear to have been' the freedmen of their respective principals, and their functions were doubtless 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 is confined to occasions on which his principal is  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 is not always carefully distinguished  from the negotioruTn gestor or voluntary agent, and  Pernice interprets some remarks of CICERONE (si veda) as indicating the same fact. From this he infers with much  likelihood that the remedy against the procurator is 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, GESSERIT, 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. Another means by which agency could practically be brought about was adstipulatio. This is not a case of true agency [cf. H. P. GRICE, ACTIONS AND EVENTS], 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,  Dig. Big. Big. Lenel, Ed. Perp. Gai.] since we know that it possessed the remedy of the  actio mandati as early as the time of Quintus Mucius  Scaevola  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. Dig. Big. Dig. 2. 5. * Cic. Rose. Com. 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 somewhat 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. 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 suggests 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. A.V.C. 709 ^ and was discussed by Quintus Mucius  Scaevola. A closer approximation to the date of  its "origin seems to be impossible.   1. Societas omnium bonorum. The original conception of SOCIETAS (cf. Grice’s Aristotelian Society) 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 property (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 CICERONE (si veda), 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 instance, 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 arises 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, 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 See Pernice, Laieo i. 85-6. ' 17 Dig. 2.] 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, 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. It has also been derived from consortium by  Lastig. His theory is that consortes, or brothers,  when they undertake a business in partnership  with one another, often modify their relations  by agreement. The special agreement, he thinks,  then becomes the conspicuous feature of the partnership, and the relations thus established are 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 however exist at Rome, except in the case of banking  partnerships, where we are told that it is 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 existence of the actio pro socio as an actio famosa. The  fraternal relations existing between consortes may never have suggested such a remedy, for CICERONE (si veda) 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  Paxta 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 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.] societates acted as war-contractors^ collectors of taxes,  and undertakers of public works'. In one passage in  LIVIO (si veda) 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 commercial and voluntary partnership. But still they are 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 (cf. H. P. Grice), 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: Both were regulated by law", and were  established only by State concessions or charters. 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. 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. 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 in which that consent is signified in one particular way, i.e. by the delivery of the object in  respect of which the contract is made. The contracts of this class have therefore been termed REAL  contracts, though they may 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, im having for its  remedy the condictio, an actio stricti iuris; 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. The most important function of contract in early times is the making of money loans, and for this the Romans had devices peculiarly their own,  Tiexum, sponsio, and earpensilatio.  But these are available only to Roman CITIZENS (cf. Grice: OXONIANS), so  that the legal reforms constituting the so-called ius  gentium naturally included new methods of performing this particular transaction. One such innovation 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 innovation is the contract known as mutum. It  doubtless originates in custom, and is crystallised  in the Edict of some reforming prætor. 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. 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 LIVIO (si veda)  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. 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. 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 DEDERIT NEVE EX IVSTA CAVSA SOLVERIT PROMISERITVE, 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, Cic. Rose. Com. 4. 13.   2 As in Pers. 1. 1. 37; Merc. 1. 1. 58; Pseud. 1. 5. 91. 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:  That it was confined to loans of money, And to loans from insurers to ship-owners,  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 stipulatory 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. The next three real  contracts are not mentioned by Gains, who apparently 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. Big.] 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 commodatum, 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 condictio was manifestly not available. The earliest mention of commodatum as an actionable agreement occurs in the writings of Quintus  Mucins Scaevola (ob. A.v.c. 672) quoted by Ulpian"  and Gellius. CICERONE (s veda) 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. Dig. Bruns, Font. AGE OF COMMODATVM] 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 CICERONE (si veda). We must  therefore place the introduction of the actio commodati at least as late as A.v.c. 710, and by so doing we  explain CICERONE (si veda)’s silence. Whatever conclusion we  shall arrive at as to depositum must almost necessarily 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  Scaevola evidently dealt with them both together.  Hence their simultaneous origin seems almost  certain. The actio commodati is said to have been  instituted by a prætor pacuuius'', who, like PLAUTO (si veda), used the words utendum dare instead of com-  modare. The terms of his Edict must therefore  have been:   1 IV. 47. 2 13 Dig. 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 CICERONE (si veda). 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. The most general word  denoting the bestowal of a trust by one person  upon another was commendare, and Voigt shows that corrvmendaiumh is the technical term   1 I. N. III. 969. 2 I. N. B. HG.  1 Dig. 2. 2. 44. Plant. Trin. 4. 3. 76 ; Cio. Fam. ii. 6. 5 ; 16 Diff. 3. 24 ; Cic.  Fin. IR. RG. i. App. 5. for a particular kind of pactum. If the object of  commendatio is the performance of some service,  the relation is a case of mandatwm. If its object is the keeping of some article in safe custody, the  relation is described as depositvm. This case clearly shows how arbitrary is the distinction  drawn by the Roman jurists between real contract 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 Scaevola in discussi Dg 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  CICERO (si veda) Fin. III. 20. 65. 2 Plant. Merc. Dig. 3. 24 ; Plant. Merc. Bacch. Merc. 2. 1. 14 ; Cure. 2. 8. 66 ; Bacch. 2. 8. 10.   8 Gell. VI. 15. 2. rather to represent it, as CICERONE (si veda) 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. Costa, Dir. Priv. p. 320. « Z. fur RG. ii. 224.   ' Farad, iii. 1. 21 ; Off. i. 10. 31 ; iii. 25. 95.  8 Off. Top. N. D. Gai.] 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 redditam 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. Dig. 6. 5. Earn. EG. See Muirhead's Gaim. Dig. Dig.; Trebatius was trib. pleb. 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™ Negidium 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.  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 does not condescend to enforce. In Gaptiui for instance, the slave  who had been pledged is demanded in a purely informal 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 is seriously [Dig.] meant by the parties, or was a means of securing  credit as a substitute for money, and if the agreement 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 probably applies 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 mean 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 is in any way derived  from the pignoris capio of the legis actio system.   We do not know when pignus becomes a contract,  though it certainly is so before the end of the  Republic. Long before being recognised as such it  doubtless enjoys 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 satisfactum 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  Bechmann, Kauf, ii. 416. '' 50 Big. 16. 238. ' ibid.  Dernburg, FJr. i. p. 49 ; Beitr. zur vrgl. Sprachforsch.  Lenel] 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 plausible 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 Republic. It is not mentioned by CICERONE (si veda). In short  everything points to the origin of the contract of  pigrms as corresponding in age to that of commodatum and depositum. 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 is 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. 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.  jjjgr. Costa, Dir. Priv. p. 262. * Bekker, Akt.] 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- [Cie. Off. in. 15. 61.   3 Lenel, Ed. Perp. p. 233.   B. E.] 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. We have seen that there  were two ways in which a tangible security might be  given: the object might be conveyed with a  pactum fiduciae, providing that it should be reconveyed on the fulfilment of a certain condition, or  else 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 pigneraticia whose origin we have just discussed. But  neither fiducia nor pignus is a contract of pledge  pure and simple. Each consists 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 embodies this  form of pledge is 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-   CICERONE (si veda) Top.] 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 immigration 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- [Dernburg, Pfdr. s.u. nancitor. Dernburg, Pfdr.] 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 Salvius Iulianus,  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.)  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. Big. 15. 3. 1.   » 1.S Dig. 7. 22. * Demelius, Z.filr RG. ii. 232.   5 Phorm.]  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: 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  that the interdict is prohibitory and forbids  the pledgor to prevent the landlord from seizing  the objects which had been mortgaged. 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 Serviana is presumably introduced because the interdictum Salvianum is  inadequate further goes to prove the correctness of  Gordian's constitution. 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., God.  = Dig. Lenel, Z. der Sav. Stiftung, R. A, iii. 181.  7 Studien] 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 satisfactum, 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 CICERONE (si veda), because he never is prætor urbanus, 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 interdict', 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.] 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. CATONE (si veda) the Censor also seems to  have alluded to it, and Caec. Statins, as cited by Festus", unquestionably did so.  The curious circumstance that CICERONE (si veda) should have  mentioned it only twice may perhaps be accounted  for by the fact that PIGNUS in its looser sense (in sensu lato) is  always a synonym for hypotheca, and as he mentions  it so seldom in its Greek form, we may suppose that  hypotheca is then only just coming into  general use. We know that pignus in the narrower  sense (in sensu stricto) is 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 originally the equivalent of hypotheca. The effect of the actio Serviana was probably a  mere enlargement of the scope of the interdictwm  Salvianum, 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.Att. n. 17 and Fam. xiii. 56. Dig.] hypotheca was a transaction still confined to a small  class. A final improvement is effected, perhaps  shortly after the one just mentioned, when the  prætor grants an action on. the analogy of the actio Serviana, upon all agreements of pledge of whatever  description. From the creation of this action, known  as cuctio quasi Serviana  or hypothecaria, or simply  Serviana, dated the introduction of a law of mortgage 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 contractus iuris civilis, 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  Inst. Dig. Bachofen, Pfdr. Ed. perp.; cf. Dernburg, Pfdr.; cf. Budorfl] 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 unnecessary 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 reserved, 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 convento, 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 commissoria 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. Dig.; Demburg, Pfdr. Dig. = Pfdr. as against Baehofen, Pfdr.] 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. Praediatvea is 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 resembles the giving of sponsores  in private law. The friends of the contractor who are willing to be his sureties (praedes) appear  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] 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 vindiciarum, who certainly appears in private suits, and  how can we understand those passages in Plautus  and CICERONE (si veda) which clearly refer to praedes and praedia  in private transactions? If then we deny to prædiatura 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 præs as  being the adverbial form of præsto 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 vas is the generic term for surety, and that præs is a composite word meaning a surety who makes  good (præstare) what he undertakes. Where the  derivation is so uncertain no safe conclusion may 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. Plaut. Men.; CICERONE (si veda) Cio. Att.Eivier, Untersuch. Z.fiir RG. Fas bomfari, or vas from a root meaning, to bind. Dernbur'g, P/dr.; Eivier, Untersueh. Etym. Forsch. The obligation of the praes was enforced by compulsory sale, the details of which we unfortunately  do not know. The expression prædes vendere  shows approximately how the right was enforced,  but it is uncertain whether this means 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. ' CICERONE (si veda) 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. e.g. Lex Acilia repet., 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 incorrect, and that the State did not in virtue of svbsignatio become absolute owner of the praedia. Rivier and Demburg have demonstrated that the State  merely acquired a lien, and that praediorum subsignatio 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  (venditio prædiorum) follows closely no doubt  upon the default of the debtor, but does not necessarily 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 Malacitana 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. VARRONE (si veda) L. L.; Lex agraria, Dig. 17. 205. ^ Gai. ii. 61 ; CICERONE (si veda) 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 preferred. The operation of praediatura as a general lien  on all the property of the praes is probably recognised in the Republican period, although Demburg 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. Boecking, Rom. Priv. Pfdr.  irssv. did, we can readily see that the security of praediatura 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 CICERONE (si veda) who states that certain lawyers make it a  special study. Art. 4. AcTiONES ADiECTiciAE. Besides introducing the actio mandati, the praetor's edict enlarged 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 Praetor'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. 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 [Balb. = 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 actionable in Republican times. The formula is 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. 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 (magister 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 [Dig. 4. 1. fr. 9. ^ x4 Big. Baron, Abh. aus dem B. C. P. ii. 181. Dig. 1. 1. fr. 9. making of contracts by the master should be equivalent to a direct transaction with the ship owner  himself. 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. The actio tributoria is that by which a  master was compelled to pay over to the creditors  of a son or slave trading with his consent whatever [Dig. 3. 5. fr. 1. Dig.; Oosta, Azioni, Dig.  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. The actiones de peculio and de in rem uerso are proceedings by which the master is 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  GAIO (si veda) has told us and as a recent writer conclusively shows, was that they had one formula with  an alternative condemnatio, which may be reconstructed as follows : Quod A' Agerius de Lwdo Titio  cum is in potestate JV Negidii esset, incertmn stipulatus 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 [Dig. Baron, Dig. 4. 7. Baron; cf. Lenel, Ed. perp. 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  pecuniæ constitutæ as well as from allusions in  the Digest. It seems to have been a formless promise of payment at a particular date; depending on  the existence of a prior indebtedness to which the Dig. Ihering, Geist Cod. constitutwm became accessory; unconditional; enforced by an actio pecuniae constitutae of prætorian  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 mentioned by CICERONE (si veda) in a way which makes it certain  that the actio pecuniae constitutae existed in his day.  The action originated in the prætor'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; especially as Gains states that pecwnia credita strictly means 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 TEOFILO (si veda) is that constitutum is generally entered into by a  debtor in order to gain time for the payment of a  debt already due, and that the prætor institutes this severe action in order to discourage insolvent  debtors from this practice. Labeo on the contrary  says that constitutvm is made actionable in order  to enforce the payment of debts not yet due. Both li Dig. God. Big. Quint. Dig. Gai. IT. 171. 8 Paraphr. Dig. 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 defendant 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. 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 sponsionem, because the custom of sponsione prouocare suggests an ancient origin. This sponsio, like that of  the condictio, is præiudicialis, but it also contained a strongly penal element. Its penal character is [Bruns, Z. f. EG. Dig. Bruns. Inst. CONTRACTS NOT CLASSIFIED] no doubt the reason why the action may not be brought against the heir of the constituens, and why  it is annalis. As Bruns shows, the remedy  after one year is probably the actio in factum',  by which the plain amount of the constitutum mayalone be recovered. Constitutum may 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 is 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 expensilatio would have done. The agreement by which shipmasters, innkeepers  and stablemen {nautae, caupones, stabularii) undertook to take care of the goods or property of their customers was known as receptum, 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 is expressed as follows: navtae CAVPONES stabvlarii qvod cvivsqve salvvm fore RECEPERINT NISI RESTITVENT, IN EOS IVDICIVM DABO;  Bruns) Dig. Bruns, Camazza, Dir. Com. and the remedy was an ordinary actio in factvm,  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 is a formless promise to pay on behalf of  another man, and we gather from GIUSTINIANO that it is capable of creating an original debt; capable  of being made svb conditione or in diem, and enforced by an actio recepticia, which is perpetua;  while TEOFILO (si veda) tells us that it is confined to bankers (argentarii). Bruns indeed supposes that  receptum was a formal contract iuris ciuilis, while  according to Voigt it is a species of expensilatio  devised by the argentarii. Lenel however proves that receptum argentariorum is introduced  and regulated by the prætor in the same part of  the Edict in which he treats 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  treats of constitutwm in his book on the  Edict. But the passage quoted in the Digest is  from his book on the Edict, in which we know  that he discussed the clause Nautae caupon^s statularii. So also POMPONIO (si veda), who discussed recepta Cod.  Z. fur RG.  fiSm. EG. Z. der Sav. Stift. Dig. Dig.  nautarvm, &c. and constitutum, is described as mentioning the latter. 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 is of course an actio in factum. Recipere is used by CICERONE in the sense of undertaking a personal guarantee, but with no clearly  technical meaning. Justinian states that the ouctio  recepticia was objectionable on account of its solemnia verba, 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 Dig.; Vig. = Dig. Phil.; ad Fam. 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 is 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 resembled the acceptance of a modem bill of exchange, and it is doubtless made by the argentarius on behalf of his clients or correspondents. Dig. Lenel, Z. der Sav. Stift. Carnazza, Dir. Com. 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 Republic. Of all the contracts which we have examined,  nexum and vadimonium seem to be the only two that became obsolete during this period, while the  new contracts of Praetorian origin, such as depositum  and constitutum, attain their full growth. So that the jurists of the empire find little to do besides the work of interpretation and  amplification. The one great improvement, and almost the only one, which the law of contract undergoes subsequently to our period, is the introduction of the  actiones praescriptis uerbis, by which the scope of real contract is immensely enlarged. In 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. 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. Francesco Fisischella. Fisischella.

 

Grice e Fitio: la ragione conversazionale e la setta di Reggio -- Roma – filosofia italiana – Luigi Speranza (Reggio). Filosofo italiano. A Pythagorean, cited by Giamblico.