the proceeds, and that the purchasers should only be liable to pay the price of the goods they purchased (a).

SECTION III.-OF OBLIGATIONS.

Having mentioned the several modes by which property in things might be acquired, I proceed to the third class of the Roman laws, namely, those which related to the rights which individuals might acquire in respect of their transactions with others, and the claims which might arise from the conduct of one individul [*315] toward another; or, in other words, the laws which related to the several contracts and obligations, which might be enforced by proceedings at law. This subject has already been considered to some extent, with reference to contracts according to the English law.

An obligation was defined to be, the bond of the law by which a man was constrained to make some payment, according to the law of the state (b).

Obligations were either civil, that is, having their origin in some law established by enactment, or adopted by general consent: or prætorian, that is, arising from the jurisdiction assumed by the prætors.

These obligations were of four classes :

1. Those arising from express contracts.
2. Those arising from implied contracts.
3. Those arising from actual wrongs; and,

4. Those arising from constructive wrongs.

Of obligations arising from express contracts there were four kinds:

1. Real contracts.

2. Contracts arising from words.

3. Contracts evidenced by writing.

4. Contracts arising from consent alone.

A contract was said to be real when, in addition to the mutual consent of the parties, a thing passed from the one to the other (c). The contracts of mutuum, commodatum, and depositum, were of this nature.

The contract of mutuum arose from the loan of money, or any other thing capable of being weighed, numbered, or measured: the money or other thing lent became the property of the borrower, who was bound to return something of the same kind, as money for money, wine for wine, and the like. If the borrower did not make the return at the time agreed upon, the lender might resort to a strict legal action, called certi condictio, to enforce the fulfilment of the contract (d).

The gratuitous loan of a thing to another, for a certain time, was denominated commodatum. The borrower contracted an obligation to return the thing itself, at the end of the time fixed; and, if the thing lent were lost by fraud, or even from the slightest degree of negligence, the borrower was bound to replace it; but he was not liable for loss occasioned by force or violence (e).

Where a thing was deposited with another, to be kept by him gratuitously, the contract of depositum arose, under which the depositary was bound to return the thing deposited, when required so to do. If the thing deposited were lost or injured through the fraud of the depositary, he was answerable for it; but he was not answerable for loss by negligence, provided he took the same care of the thing deposited as of his own property (ƒ).

When a thing was pledged or deposited with another to secure a debt, the obligation to return it was created; here, as the pledge was given for the benefit of both parties, the person accepting the pledge was bound to exert diligence in preserving it; but if the pledge were lost by mere accident, not by negligence, the creditor might still recover his debt (g).

Obligations of the second class were contracted by the form of an interrogation being *put by the one party, and an answer being given by the other. These [*316] obligations were denominated Stipulations; and were enforced by an action called condictio certi, if any particular thing were the subject of the stipulation, or ex

(a) Inst. iii. 13.

(b) Inst. iii. 14. pr.

(c) Ibid. iii. tit. 15. pr.

(d) Ibid. iii. 15. pr. 2. Dig. xii. 1. 1, 2.

(e) Inst. iii. 15. 2.
(ƒ) Ibid. iii. 15. 3.
(g) Ibid. iii. 15. 4.

Dig. xiii. 6. 5.
Dig. xvi. 3. 1 and 32.

stipulatu, if the matter of the stipulation were not any certain thing (a). The cere mony of interrogation and answer, which was much in use amongst the Romans, was introduced, as the means of protecting against mistakes as to the meaning of the parties. A mere promise, given without an interrogation, was considered as nudum pactum, as before noticed, and was not binding. Conditions might be annexed to such stipulations (b), and the rendering a certain thing, or doing a certain act, might equally be the subject of stipulation. The interest of the party with whom such a stipulation was made went to his heir (c). None but the parties to the stipulation, or those claiming under them, could take advantage of or enforce it; but the performance of something to a stranger might be secured by a penalty to be enforced by the party (d). If any mistake were proved to have existed at the time of the contract, it vitiated in equity the whole transaction (e), though in law it was still binding.

Stipulations were mostly entered into by the voluntary act of the parties, in their ordinary transactions with each other; but it was a common thing for the judges and the Prætor to compel litigating parties, in different stages of a cause, to enter into stipulations with each other, in the nature of recognizances, to do some act that justice required (f), or to abstain from doing some threatened act, which stipulations were enforced in the same manner, and gave rise to the same rights and actions as ordinary stipulations (g).

The obligation of suretyship was a species of stipulation by which one or more persons became bound to pay the debt of another on his default, which obligation descended on the representative of the surety: each was bound in the whole amount, though as between themselves the sureties might compel the co-sureties to contribute (h). Stipulations might be enforced as well by as against the representatives of a party dying (i).

There was this peculiarity in regard to obligations evidenced by writing, that if any one in writing admitted having received any money or other thing on loan, or admitted any other fact from which an obligation arose in law, he was held conclusively bound to such admission, unless he disproved the fact so admitted within two years, which was the utmost time allowed him to contradict such writing (k) ; but the actions that arose on contracts in writing were the same as those which arose on mere words.

The class of contracts founded on mere consent was very extensive, and embraced four distinct kinds of contract founded on mutual consent only, all of constant occurrence in the daily transactions of life. These were sale and purchase; letting and hiring; partnership; and agency, or mandate.

In these obligations, to the contracting of which the presence of the contracting parties was not essential, the one party was engaged to the other, to do or to render that which was just, (ex bono et aquo,) which of course was determined by the law (1).

*A sale, and consequently the purchase, as already has been mentioned, [*317] was complete when the price was agreed upon, even before earnest was given; and from the time that such agreement was complete, the purchaser was liable to an action to compel him to pay the price-the seller, to an action to compel him to deliver the thing sold; but if it was understood at the time that the agreement was to be reduced into writing, then until each party had signed the agreement, or it had been formally reduced into writing by a notary, there was locus pænitentia, and neither party was bound (m); so from the moment the price was agreed on, unless where the agreement was to be reduced into writing, the thing sold was at the peril of the purchaser; and if the thing sold increased in value, such increase belonged to the purchaser, "nam et commodum ejus esse debet cujus periculum est” (n); though, before delivery the seller was still considered to be so far the owner, that it was competent to him to bring an action for recovery of the thing if stolen, or to obtain damages if it were injured (0).

In the same manner, as soon as the rent or return was agreed upon, the contract of letting and hiring was complete (a), and each party had reciprocally an action against each other. There was a species of letting to hire, known by the name of emphyteusis, which I have had occasion to mention in a former Chapter. Every person who took property to hire was bound to perform not only the express covenant, but such as might be implied ex bono et æquo, and he was bound to use the same care in the use and preservation of such property as a prudent pater familias would be expected to bestow on his own property (b); the benefit of the term descended to the heir (c).

Partnerships were either general, that is, comprising all the business and transactions of the contracting parties, or special, as for the purchase and sale of some particular merchandize. In partnerships of both descriptions, if nothing were said as to the shares, the parties were considered to be entitled in equal shares; but the amount of the interest of each party might of course be the subject of agreement (d). In general, any one of the partners might at pleasure put an end to the partnership; but not if it would operate as a fraud on his copartners: the death of one of two or more partners operated ipso facto as a dissolution (e). So where the partnership was formed for any particular purpose, which failed, the partnership was considered as at an end. And if one of two or more partners, being unable to pay his debts, had his property seized in execution, or declared himself bankrupt, and gave up his property to be sold, (by cessio bonorum) for the benefit of his creditors, this operated as a dissolution. A partner could only require from his copartner the same diligence as he exercised in his own affairs (f).

When one person committed to another gratuitously the execution of any business, and the commission was accepted, each party became mutually bound, the one to act strictly according to his instructions, the other to ratify what was done by the agent within the scope of his instructions (g). Every mandate was revocable at pleasure till something was done under it; and it was put an end to by the death of either party; but if the agent, not knowing of the death of his principal, did any act within his authority, the representative of the principal was bound by what was so done (h).

[*318] *Obligations arising quasi ex Contractu or from implied Contracts.

In the early years of the republic, the citizens were frequently absent from Rome, performing the duties of officers or soldiers in the armies; therefore it became necessary that their affairs should be managed in their absence by persons who would voluntarily engage in that duty; and unless the acts of such persons, though done without previous authority, had been confirmed, and such voluntary agents had been indemnified, the affairs of persons absent must have suffered serious injury from neglect. From these considerations it early became the established law, that if any person undertook the management of the affairs of another who was absent, a mutual obligation arose the agent on the one side being bound to render a strict account, and the principal, on the other hand, being bound to indemnify the agent in respect of all his lawful acts. However, an agent of this description incurred a heavy responsibility, for if any loss happened under his management, and it appeared that any other person better skilled than such voluntary agent could have prevented such loss, the agent was held liable (i). The mutual obligation of guardian and ward (k), and the obligation of the representative of a testator to pay the legacies given by the will, were also classed under obligations arising quasi ex contractu (1). The person who received payment of a debt not due, was held liable quasi ex contractu to repay the money (m).

Of Satisfaction of Obligations arising from Contracts express or implied.

The modes of satisfying obligations are described by Justinian to be of four kinds: First, by payment of what is due, or of one thing for another, if consented to, by whomsoever made (n). Secondly, by acceptilation, which is thus explained:-If, in answer to a question put by the person bound, the obligee, or person to whom the

(a) Inst. iii. 25. pr.

(b) Ibid. iii. 25. 5.

(c) Ibid. iii. 25. 6.

(d) Inst. iii. 26. pr. and § 1.

(e) Ibid. iii. 26. § 5. 6 and 8.

Ibid. and § 9.

(g) Ibid. iii. 27. pr. and 13. et Vin. Comm.;

and Ibid. iii. 27-8.

(h) Ibid. iii. 27.

(i) Ibid. iii. 28. 1. pr.

(k) Ibid. § 2.

(1) Ibid. § 5.

(m) Ibid. § 6.

(n) Ibid. iii. 30. pr.; Cod. viii. 42. 8.

obligation was made, admitted that the obligation had been satisfied, this operated as a release and extinguishment of the obligation; and such release could not be avoided excepting for fraud or mistake. Thirdly, by novation; thus, if a creditor took a new security for the payment of the same debt from another, this new contract, by the ancient law, destroyed the original obligation; but Justinian saved the original debt unless the new obligation were expressed to be by way of novation (a). Lastly, all obligations might be dissolved by mutual consent.

Having stated the general doctrine in regard to obligations arising from contracts express and implied, I proceed, in the order of the Institutes, to describe the nature of the next general class of obligations; namely, those which arose from wrongs committed.

Obligations arising ex Delicto or Maleficio, vel quasi.

The obligations arising from wrongs (ex maleficio) were of three classes; namely, those which arose from

*Furtum, or theft;

Damnum, or damage; and

Injuria, or injury (b).

[*319]

1. Theft was defined to be a wrongful secret detraction of another's property, with a view to gain. To constitute theft, it must appear that the taking was with intent to steal (c). He who concealed stolen goods was liable to the same action at the suit of the loser as the thief himself; so he who assisted in the theft, as the person who, with a red flag, a common contrivance it would seem, frightened cattle from their pasture that another might steal them, was held to be a principal in the theft, but he who gave advice only was not liable to an action of theft (d).

Any one might bring an action of theft who had an interest that the thing should not have been stolen, even though not the owner; and the owner could not bring such action unless he had such interest (e): thus, if goods sent to a dyer were stolen, the dyer, not the owner, was entitled to bring the action of theft; the owner having an action against the dyer, on his implied contract to return the goods to him. If, how ever, the dyer were insolvent, the owner, having then an interest, might bring an action of theft (ƒ).

By the ancient law, the nightly thief was punished with death (g); but the severity of the law was gradually relaxed by the prætors, and at length a prætorian action for fourfold restitution was the severest penalty inflicted on the thief, even when accompanied by violence, and there must be fraudulent intent as well as force used to found the action (h).

By the imperial constitutions no man was permitted to seize his own property by force, the penalty was that he forfeited it, and this applied to forcible entries on lands or houses (i).

2. Damnum, or damage. He who, from want of due care, injured the property of another, was bound, by the Lex Aquilia, to make good to the owner the damage which he occasioned (k); but no one was bound to answer for any damage done by mere accident, and in the performance of a lawful act. Thus, if a soldier, in prac tising with his javelin, killed the slave of another, if it was in the usual place for exercise, he was not liable to an action; but, if it were in a place not used for such exercises, he was liable to make good the loss and damage which he had so occasioned (). A surgeon who occasioned the death of a slave by want of skill was liable under this law (m). The action being penal could not generally be brought against the representative of the person who occasioned the damage (n). Where a

(a) In Bracton, iii. c. 2. and Fleta, ii. 60. may be found, in regard to novation, one of the numerous instances of the adoption of the rules of the civil law, even in its very words, into the works of the ancient writers on the common law of England. I ought in a former page, 132, to have referred to an article in the Law Magazine, vol. vi. Orig. S. p. 187. where the transfer of the law of the corpus Juris to Bracton's pages is particularly adverted to.

(b) Inst. iv. 1. pr.

slave was killed by the unlawful act of another, not only might the owner proceed by civil action, but also by criminal prosecution (a).

3. The injuries which gave rise to civil actions were numerous. The following may serve as instances:-He who was maliciously maimed or beaten, or was calumniated by words spoken, or by a written libel, was entitled to bring an action against the perpetrator of the injury so committed. The female whose virtue was assailed was also entitled to bring an action for compensation. Originally the penalty for any bodily harm *was retaliation, or the right to have the same injury inflicted on [*320] the perpetrator; but the prætors justly considered that such a revenge could give no substantial satisfaction to the sufferer; wherefore it was universally part of every prætorian edict that the person committing the injury should give a pecuniary compensation to the person injured. Under the perpetual edict, it became part of the uniform and settled law, that "secundum gradum dignitatis (b), vita que honestatem crescit aut minuitur estimatio injuria (c)." If the injury were accompanied by any peculiar circumstance of aggravation or indignity: thus, if a person were insulted or struck in the theatre, forum, or other public place (d), the person sustaining the injury was entitled to an increased compensation. It was at the option of the person against whom any injury was committed, to proceed civilly or criminally (e). Not only he who perpetrated the injury, but he who counseled it, was liable to an action (ƒ); and the amount of compensation was always estimated by the recuperatores, of whom I have before spoken (g). In an action brought for the recovery of damages, on the ground of injury sustained, it was necessary to show that the act had been done maliciously; this action, therefore, would not lie when the act was done in jest (h).

There were certain acts which, though not of such a character as to be classed under the description of wrongs, yet were of such a nature as to give rise to an obligation to make compensation to the person injured by the act. Thus: if a judge gave a wrong judgment from unskillfulness or ignorance, or if a person, without an evil intention, by suspending or throwing anything from his house, caused any personal injury to another, he was liable quasi ex delicto to an action for compensation, at the suit of the party injured (i).

In the above general outline of the civil laws of the Romans, I have principally confined myself to the rights which had their foundation on the ancient laws, or which in our language we should say related to rights at common law. But there were some rights which had their origin in equitable principles merely: such were those which depended on the doctrine in regard to Trusts, or fidei commissa, and in regard to Restitutiones in integrum, these will be explained and considered in the subsequent part of this work. Actions and interdicts, which have been already considered, and some concise directions in regard to the office and duties of a judge, form the subject of great part of the remaining titles of the 4th Book of Justinian's Institutes, which I do not here introduce as they have been sufficiently adverted to before. Public offences or crimes, which close the 4th Book, do not come within the scope of this work. The above will, I hope, be sufficient to give the student, who may have forgotten Gibbon's xliv. Chapter, such a general notion of the Roman law as that he may not be taken wholly by surprise when any of its doctrines may incidentally come before him in his studies.

(a) Inst. iv. 3. 9.

(b) The Barbarians took this principle as the basis of their enactments on the subject of injuries.

(c) Ibid. iv. 4. 9.

(d) Ibid.

(e) Ibid. iv. 4. 10.
(f) Ibid. iv. 4. 11.
(g) Ibid. § 7.

(h) Dig. xlvii. 10.3, 3.
(2) Inst. iv. 5. 1.